CDirector of Public Prosecutions v Yu
[2022] VCC 1685
•5 October 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02110
| DIRECTOR OF PUBLIC PROSECUTIONS (Cth) |
| v |
| Johnson YU |
---
JUDGE: | Her Honour Judge Hampel | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 September 2022 and 19 September 2022 | |
DATE OF SENTENCE: | 5 October 2022 | |
CASE MAY BE CITED AS: | CDPP v Yu | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1685 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Sentence – Use carriage service to access child pornography – Use of a carriage service to access child abuse material – Possess child abuse material – section 16BA schedule offence admitted – high level of objective serious – Guilty plea – Family hardship – entrenched paraphilic deviant sexual disorder – prospects for rehabilitation dependent on improvement in prevailing mental health conditions –
Legislation Cited: Crimes Act 1914 (Cth); Criminal Code Act 1995 (Cth); Sentencing Act 1991 (Vic)
Cases Cited:Mohamed v The Queen [2022] VSCA 136; Rodgerson v The Queen (No 2) [2022] VSCA 154; Totaan v The Queen [2022] NSWCCA 75; De Leeuw v The Queen [2015] NSWCCA 183
Sentence: Total effective sentence of two years and six months’ imprisonment, with release upon recognisance after 12 months to be of good behaviour for a period of 3 years
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Y. Hardjadibrata with Ms C. Caretti | Commonwealth Director of Public Prosecutions |
| For the Accused | Ms P. Marcou with Ms D. Mence | GW Lawyers |
HER HONOUR:
1On the morning of 11 February 2021, the Joint Anti Child Exploitation Team, executed search warrants at the home you, Johnson Yu lived in with your wife and 2 young daughters.
2
Your iPhone, a Laptop, a Hard Drive, and a computer tower were seized. A preliminary examination of the hard drive revealed a video titled 'Doctors and
14-year-old boys' which depicted various prepubescent males being masturbated by adult males.
3When you were asked by the officers to whom the hard drive belonged, you replied, 'I don’t know what to say'. You told police your wife had nothing to do with it. You were arrested, and when interviewed gave a no-comment interview.
4The four seized devices were forensically examined. The analysis revealed that child abuse material had been accessed via or saved onto all 4 devices.
5Analysis of the iPhone's web browser history led police to a website displaying images and video files of male and female children in various stages of undress, sexual positions and performing sexual acts on adults. It also revealed that you had actively searched the internet for child pornography and child abuse material, through the use of various search terms including: 'schoolboy and teacher sex stories graphic', 'boy anal virgin', 'Cambodia pedo adventure story', 'girl and boy porn', 'young boy first sex', 'pedo brother Thailand stories', 'underage teen girl hentai', 'hairless cock sucked', as well as several with the term 'doctor' or 'doctors'.
6Examination of the hard drive located in the computer tower revealed that an online peer-to-peer file sharing platform had been installed and had been used by you to download child pornography and child abuse material. The online platform automatically made all files downloaded by you accessible to and downloadable by other users of that platform. Although there is no evidence that you actually actively shared or charged people for sharing any of the files downloaded by you, it is clear that the use of that platform enabled that to happen.
7You now acknowledge that you and you alone used all four devices to access and store the child abuse material found on the devices.
8And so it is that you find yourself before this court, having pleaded guilty to, and now to be sentenced for charges relating to the use of a carriage service to access material initially described as child pornography, but now more accurately described as child abuse material, and one charge of possession of child abuse material obtained or accessed using a carriage service. All charges have been laid under section 474 of the Criminal Code (Cth).
9Charge 1, to which you have pleaded guilty, is of use of a carriage service to access what was then called child pornography, over a 2-day period between 6 and 7 August 2018. Over those 2 days, you accessed 12 child pornography files whose names are indicative of sexual activity taking place between prepubescent boys. They keyword search terms you used showed you were seeking such material including involving for children as young as 2, or toddlers.
10Charge 2 is a charge of use of a carriage service over a period of just over 7 months between 23 June 2020 and 27 January 2021 to access what by then had been legislatively renamed as child abuse material. Over that time, using the laptop, the iPhone and the computer tower you accessed 2,263 files of child abuse material.
11You have admitted a further offence of use of a carriage service to access child abuse material using the same 3 devices, for the immediately preceding period of just under 5 months between 3 February 2020 and 22 June 2020. That, as what is called a section 16BA Schedule offence,[1] is to be taken into account in sentencing you for Charge 2. During the five-month period of the Schedule offence, you accessed 95 child abuse material files.
[1] Crimes Act 1914 (Cth)
12Again, for Charge 2 and the Schedule offence the files names are indicative of sexual activity, including sexual penetration between an adult and prepubescent children, both male and female. Some of the children in these images were as young as 6, most were under 13. The images included multiple files showing sexual activity between children, as well as sexual activity between adults and prepubescent and pubescent children.
13The titles are disturbingly graphic and debased. They accurately describe the content of the files, and include themes of incest, drugging children, using force and deliberate infliction of pain on abused children.
14The offending covered by Charge 2 and the schedule offence is a course of conduct offence over that period from 3 February 2020 to 27 January 2021. The offending is split between a charge and a Schedule offence simply because a new sentencing scheme for this offence came into effect on 23 June 2020, and which is therefore the commencement date for Charge 2.
15Charge 3 relates to the child abuse material files found stored on the 3 devices (and so, was possessed by you) on the day of the execution of the warrant.
16The files found were categorised according to the Interpol Baseline Four Tier Categorisation System. Category 1 is the most serious. It involves sexual activity or focus on the sexual organs of prepubescent children of 13 years or less.
A representative sample of the 200 files found that fall within category 1 included a naked girl of approximately 2 years of age with an adult male’s penis in her mouth; a partially clothed girl of approximately 5 being forcibly orally penetrated by an adult male’s penis whilst another girl of the same age watches; and a male child of approximately 7 sitting on an adult male whose penis is penetrating the boy’s anus.
17There were 84 category 1 videos. By way of example, one, which ran for nearly 2 minutes, is of an adult male penetrating the mouth of a 4-year-old girl with his penis.
18There were 2,043 category 2 files, 77 of which were video recordings. Category 2 material includes depiction of sexual activity or focus on the sexual organs of prepubescent children of approximately 13 years up to under 18.
19Representative of the category 2 material was a video of boys between the ages of 10 and 14 with an adult male posing as a doctor examining their genitals and fondling and masturbating one of the children’s penises. This was particularly disturbing because you were practising as a fully qualified and registered general practitioner at the time that you were found in possession of this material.
20Also part of the Category 2 material was a 170-page manual entitled, 'How to practice Child Love (A Pedo's Guide)'. It explained in detail how to groom a child for sex. The introduction reads, 'This is an education and a step-by-step guide to adults to engage and practice sexual relationships with underage children'. Shockingly, it continues, 'The purpose of this guide is to teach adults how to safely and harmlessly practice sex with children, without hurting the child, by using advanced and well researched child psychology and pedagogy'. What a frankly misleading description.
21Despite your initial reticence when the warrant was executed and you were interviewed, you soon acknowledged that all four devices were yours, and that you had accessed and stored the images found on them. Consistently with that acknowledgement, you have now pleaded guilty to these charges, and admitted the Schedule offence.
22These are serious charges. One measure of their seriousness is the maximum penalty prescribed by parliament. Each is punishable by a maximum sentence of 15 years’ imprisonment. Objectively, for the reasons that I will outline, all three charges are serious examples of this serious offence. Before I set out my reasons for that finding, , I will deal with the relevant general principles of Commonwealth sentencing law.
23By section 16A of the Crimes Act1914 (Cth), the court must impose a sentence that is of a severity appropriate in all the circumstances of the offence.
24In addition to the matters which by section 16A(2) must be considered, and in applying an instinctive synthesis approach to the various applicable factors, both aggravating and mitigatory, the court must consider the sentence appropriate for each offence separately and then turn to questions of concurrency/cumulation and totality.
25There are further matters which apply to sentencing for offences involving accessing and possessing child abuse material. First, section 16A(2AAA) requires the court, when considering on the material available to it whether it is appropriate to impose any condition about rehabilitation or treatment options, to take the objective of rehabilitation into account in addition to other matters. The court must consider whether it is appropriate, in determining the length of any sentence, or non-parole period, to include sufficient time for the person to undertake a rehabilitation program. These considerations make it clear that the court must consider whether to mandate participation in a rehabilitation program, and whether it is appropriate to structure a sentence to allow sufficient time for participation in such a program. In other words, whether to impose, as a condition of release into the community, participation in a rehabilitation program.
26I accept the prosecution submission that this emphasis on directing offenders who have accessed and possessed child abuse material to sex offender specific treatment programs does not displace or override the requirement to impose a sentence of a severity appropriate in all the circumstances of the offence, and that it does not permit or require the court to impose a sentence which is disproportionately severe or unjustly lenient in pursuit of that prospect or objective of rehabilitation.
27Next, by section 19(5) and (6) there is a presumption in favour of cumulation when sentencing an offender for multiple child sex offences. By section19(6) that presumption is displaced if, having regard to principles of totality, and the overall severity of the offending, the court is of the view that, partially or wholly concurrent sentences should be imposed.
28It is common ground here that the three charges and the Schedule offence represent a course of conduct and it is common ground that although Charges 2 and 3 are separate offences, using a carriage service to access child abuse material, and possession of child abuse material accessed by using a carriage service respectively, there is considerable overlap in respect of the material accessed, for Charge 2, and possessed, for the purposes of Charge 3. Totality considerations clearly therefore require a substantial degree of concurrency.
29Thirdly, and importantly, section 20(1)(b)(ii), which applies to Commonwealth child sex offences committed on or after 23 June 2020 (and so, applies to Charges 2 and 3, but not the Schedule offence, or Charge 1 ) creates a presumption that a sentence involving release on a recognisance release order must include a period of imprisonment to be immediately served. That presumption cannot be displaced unless there are exceptional circumstances that justify immediate release.
30The Explanatory Memorandum introducing this amendment declared that it was intended to ensure that child sex offenders receive sentences that reflect the exceptionally serious nature of their crimes.
31In the helpful submissions provided by the Commonwealth, the recent guidance provided by the New South Wales Court of Criminal Appeal in De Leeuw v The Queen was set out. It was accepted by the defence that De Leeuw appropriately and correctly set out the law as it applies for sentencing for these cases. The court said:[2]
[2] De Leeuw v The Queen [2015] NSWCCA 183 [72].
Appellate courts throughout Australia have consistently stated that the following propositions apply to sentencing for child pornography offences:
(a) unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted;
(b) the objective seriousness of the offending is ordinarily determined by reference to the following factors:
(i) the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted;
(ii) the number of items or images possessed;
(iii) whether the material is for the purpose of sale or further distribution;
(iv) whether the offender will profit from the offence;
(v) in the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised;
(vi) the length of time for which the pornographic material was possessed;
(c) general deterrence is the primary sentencing consideration for offending involving child pornography;
(d) less or limited weight is given to an offender's prior good character;
(e) offending involving child pornography occurs on an international level and is becoming increasingly prevalent with the advent of the internet as a means of allowing people to access and obtain child pornography;
(f) offending involving child pornography is difficult to detect given the anonymity provided by the internet;
(g) the possession of child pornography material creates a market for the continued corruption and exploitation of children;
(h) there is a paramount public interest objective in promoting the protection of children as the possession of child pornography is not a victimless crime – children are sexually abused in order to supply the market;
(i) the fact that an offender does not pay to access a child pornography website or was not involved in the distribution or sale of child pornography does not mitigate the offending.
32Since the decision in De Leeuw the amendments introduced by section 20(1)(b)(ii) have come into effect. It now goes beyond saying, 'Unless exceptional circumstances exist a sentence involving an immediate term of imprisonment is ordinarily warranted', to 'There is to be a term of imprisonment unless exceptional circumstances exist'.
33I accept the prosecution submissions, and indeed I did not understand the defence to take issue with this, that the number of images, the high number of children whose abuse and victimisation is recorded on the images and videos accessed and possessed by you, and even from the deliberately brief and general description that I have given of the nature of the abuse revealed in the images, clearly demonstrates all of these charges are properly characterised as high level seriousness, having regard to those features identified in De Leeuw.
34Although there is no evidence that you accessed or possessed any of the images for the purposes of sale or further distribution, the peer-to-peer platform that you used to access the images for Charge 2 and the Schedule offence, did permit others to access and distribute the materials you downloaded.
35The charges properly reflect a course of conduct. The 4 separate devices seized under warrant were all shown to have been used by you to access or store the images over the period covered by the charges.
36
Charge 1 reflects a 2-day snapshot in 2018. There is then a gap of approximately 18 months before the start date of the Schedule offence. The combined time of the schedule offence and Charge 2 is just under a year. Charge 3, the possession charge is based on what was found in your possession on the day of the execution of the warrant. It is clear that that single day must be seen not as an isolated,
one-off act of possession, but must be viewed in the context of that course of conduct, as evidenced by Charges 1, 2 and the schedule offence. That in turn is reflective of your own account presented to me on sentencing.
37Of course, having said that, I understand that I must, and I do sentence you for the charges, as framed over the times framed within those charges, and not for your admissions to having engaged in like conduct over a much longer period.
38Accepting then the importance of a sentence that emphasises general deterrence and the other sentencing factors to which I have referred, let me then turn to matters personal to you.
39You are a relatively young man, you are now 34 and you were aged between 30 and 32 at the time of the offending. You have no previous convictions. You are intelligent and a high achiever. Your family of origin and your family roots are in China. Your parents left China for Australia, to start a new life here when you were only 3. You report feeling isolated in childhood, initially by language and the absence of friends or other family. Despite that, you flourished academically, winning a music scholarship to Scotch College, excelling academically as well as in music. You graduated with a very high ATAR score, high enough to get you into medicine at Melbourne University. You completed your medical degree, post graduate clinical placements, and training as a general practitioner and you went into practice as a general practitioner. You married, and at the time of arrest were living in the house that you had bought together with your wife as your family home, with her and your 2 young daughters.
40Over the period of offending, you were living what appeared to be an outwardly happy, financially comfortable and successful professional and family life.
41To the extent to which evidence of good character can be called in aid when sentencing for offences of this type, you can properly rely on, as evidence of good character, your relative youth, obvious intelligence, and demonstrated capacity for sustained study and work, as well as the absence of criminal convictions. A significant number of testimonials were provided. Although you report being socially isolated and the psychological reports suggest that you are a solitary, introverted person, the testimonials speak with one voice of a small but loyal group of friends who had known you and had contact with you for a long time, some since early school days, who think very highly of you.
42As a result of being charged, you have been unable to have unsupervised contact with your children and you have lost your right to work as a doctor. You have accepted these consequences and cooperated both with the Department of Families, Fairness and Housing (DFFH) and AHPRA. Your response to these restrictions demonstrates an acceptance of responsibility for these consequences of your conduct, which again speak to your good character.
43Given the nature of the material found in the family home, DFFH was notified, and it was their intervention that led to you not being permitted to have unsupervised access to your children. You accepted that direction and rather than forcing your wife to make choices, and to adversely affect her and the children, you moved out of the family home, leaving them the stability of remaining together in the family home. After an initial, apparently unsuccessful placement with your parents, with whom you have had a difficult relationship, you moved into a boarding house near the family home. You also accepted the termination of your employment and the suspension of your right to practice as a doctor and cooperated in that.
44You have not sought alternative employment. That is, it would appear, as a result of the combined effect of the intensity of your response and your poor mental health (a topic to which I will return shortly), the uncertainty as to the outcome of these proceedings and the prioritising of providing such childcare for your children as has been permitted within the restrictions that I have identified. You have cooperated in supporting your wife and children within the DFFH and bail restraints imposed on you. I understand you have been permitted to provide care for your children during daylight hours, for extended periods during the day, provided you are under the supervision of your wife, your mother-in-law or one other nominated trusted adult. This is particularly important in respect of your youngest daughter, who at 3 has higher needs even than other 3 year olds do, due to a diagnosis of global developmental delay. Your other child too clearly has significant needs in terms of childcare. She is only 5, and is either at pre-school or just starting school. Your wife is working full time as the primary breadwinner, adding to that burden.
45You pleaded guilty and did so at an early stage. In addition to the weight customarily given to early guilty pleas to which you are entitled, COVID considerations – that is the impact of a guilty plea in reducing the backlog in the courts - also apply. In addition, when considering whether a term of imprisonment is to be imposed, and if so, its length, the additional hardship likely to be experienced in custody occasioned by the likelihood of continued COVID restrictions and continued risk of exposure to COVID in that closed environment, also must be taken into account to reduce the sentence otherwise appropriate. So for the utilitarian benefits and the advancing of the interests of justice generally and by reference to COVID, you are entitled to a significant reduction.
46I accept that your guilty plea is also evidence of remorse (as you are able to feel and express it at present) and I give the guilty plea weight as evidence of remorse as well. I have expressed a qualification to your capacity to experience remorse by reason of the very helpful evidence of the forensic psychologist, Mr Newton. Although you gave him a full and frank account of your lengthy history of accessing, and deriving sexual gratification from viewing child abuse material, and you have recounted your shame and self-loathing for doing so, Mr Newton is of the view that your remorse and regret are primarily still associated with the impact on yourself, your career, your wife and your children. In his opinion, you have not fully grasped the impact of your conduct on the children featured in the child abuse material, or the reality of the issues associated with the production of child abuse material. In other words, in his opinion you still have limited insight into the impact of your offending on the child victims whose images you accessed and stored. That is why I have qualified it, but insofar as you are able to feel and express remorse at present, I accept that you have done so and give it weight.
47Finally, on the weight to be given to your guilty pleas, although the prosecution points out rightly that this was an overwhelming case, I do not devalue the weight to be given to your guilty pleas or your expressions of remorse as a result of the fact it was an overwhelming case.
48The next matter I want to turn to is delay. There has been some delay in sentencing. Your plea hearing was originally listed for early April this year. That was less than a year after being charged, which in our court times and particularly in Covid times, is still relatively brief, but delay is an ordeal for anybody awaiting sentence. However, the hearing date of early April was vacated as you were at acute risk of self-harm. You sought assistance the night before the plea hearing. You required some intensive support, and your mental health team again implemented a management plan to keep you safe, and to help prepare you for the hearing. A further delay was then occasioned by the need to await clarification from the Court of Appeal as to the approach to family hardship when sentencing for Commonwealth offences. And so the plea finally came on for hearing 4 months after its original listed date. Even then, the path from plea to sentence was protracted. Additional matters arose in the course of the hearing which required a further adjournment to allow your legal advisers to seek and present to the court further evidence in relation to your capacity to undergo sex offender treatment. I accept that all of these matters in relation to your mental health and the need to gather further evidence, are properly described as matters beyond your control, and they made the whole time from the time of being charged up until today, more distressing and onerous for you. I take that into account.
49It is clear that since being charged you have experienced a depressive episode, and that despite intensive treatment since March of last year, that depressive episode still persists at what has been assessed by Mr Newton, and confirmed by your treating psychologist Ms Allen, as a moderate level or degree of intensity.
50I have been greatly assisted by the reports and the oral evidence from Mr Newton and Ms Allen. They are both experienced and well-qualified experts, not just in psychology generally, but in the assessment and treatment of sex offenders and their authority, research and knowledge was of considerable assistance to me.
51I was also assisted by reports from your treating psychiatrist, and the written and oral reports from the mental health nurse practitioner from Eastern Health. Eastern Health has been closely involved and the psychiatrist and nurse practitioner have been closely involved in managing your mental health generally, and in preparing you for the court processes.
52It has become clear now that since your early 20s you have experienced a number of depressive episodes, and you clearly now properly attract a diagnosis of depressive disorder. All episodes appear to have been triggered by a stressor or life event. Until you were charged, you had sought no professional help for your depressive episodes, although you had at times self-prescribed anti-depressant medication. Your history reveals dislocation and social and cultural isolation following your family's arrival from China when you were so young, exposure to family violence and sexualised attention from an older child at primary school. All those factors, according to Mr Newton, left you emotionally vulnerable. You have poorly developed social skills, and a personality characterised by introversion and social reserve.
53Mr Newton and Ms Allen are agreed that you are a man with poor social skills, a history of depressive mood disorder, prominent traits of avoidant personality, and have developed a range of long term, well-entrenched maladaptive behaviours as a result. In addition to accessing child abuse material, there is a significant history of obsessive gaming and abuse of alcohol when confronted by life stressors.
54In dealing specifically with the likely impact of your depressive symptoms over the period of offending, Mr Newton said in his supplementary report:
[his] depression is likely to have had a range of predictable effects upon his social reasoning, general problem solving and cognitive efficiency. While these effects would have been manifest and noticeable, it is also clear that a) Mr Yu’s depression was not the primary cause of his offending, b) other factors (such as sexual deviance, family dynamics and early sexual experiences) played a more important role, and c) the severity of the effects of his depression was relatively mild. That is, while his arrest on these matters, together with the impacts on his work, marriage and family, have subsequently led to severe depressive symptoms, at the time of the offending the intensity of the effects of his depression was relatively mild. Thus, he retained intact his ability to carry out his usual demanding professional and personal obligations without significant impairment. Further, there is no clear nexus between Mr Yu’s depression and his offending conduct. For instance, on his report his involvement with child abuse material continued even during those times when he was not depressed.
55Whilst this opinion of Mr Newton's does not provide support for a reduction in your moral culpability by reason of depression, I accept that the fifth and sixth limbs of Verdins are clearly enlivened. Although you have had intensive support and treatment for your depressive symptoms since arrest, and in preparation for the plea hearing and sentencing, I accept the evidence of Mr Newton and Ms Allen that your depressive symptoms are still being experienced at a moderate degree of intensity, and that you pose a high risk of harm to yourself. I accept that, even if, as both Ms Allen and Mr Newton hypothesised, the intensity of your symptoms may abate once you have an outcome (that is, that the build up to plea and sentence and the uncertainty of outcome has added to your distress and the intensity of your symptoms) I accept nonetheless that imprisonment is likely to weigh more heavily on you than a person not suffering from depression, and that imprisonment may have a significant impact on your mental health. I take that into account accordingly.
56Considerable emphasis was placed in the course of the plea on family hardship. By the time the plea was finally heard our Court of Appeal had confirmed (in Mohamed v The Queen[3] and Rodgerson v The Queen[4], following the decision of the NSWCCA in Totaan[5] that it was not necessary for family hardship to be exceptional for it to be taken into account as a matter mitigating sentence. The Court of Appeal in Rodgerson confirmed that whether family hardship ultimately reduces a sentence of imprisonment to any extent, or at all, depends on the weight to be given to that hardship as against the other sentencing considerations, including the seriousness of the offending.[6] I have taken that as the guiding principle.
[3] Mohamed v The Queen [2022] VSCA 136
[4] Rodgerson v The Queen (No 2) [2022] VSCA 154
[5] Totaan v The Queen [2022] NSWCCA 75
[6] Rodgerson v The Queen (No 2) [2022] VSCA 154 [107]–[108]
57There is no doubt that the impact of arrest and charge has had a significant effect on your family, and that imprisonment will cause further hardship. Your wife has had to shoulder the whole emotional and financial burden of supporting the family. The burden of meeting the mortgage, living and childcare costs now fall on one income, not the two you have previously benefitted from.
58Your children are only 3 and 5. Your younger daughter has been diagnosed with global developmental delay (speech and social), and selective mutism. She has early intervention funding provided to assist with her speech and social development, according to her paediatrician's report. He suspects that the developmental delay is anxiety related, but it is, he says, too early to know. I was told, and I accept, you have been actively involved in your younger daughter's care, and from the perspective of your mental health, being able to assist her has been an important factor in your recovery, in your remaining safe and alive. Your parents-in-law, who lived with you, your wife and your children, and have continued to remain in the home with your wife and children since your removal, continue to provide assistance with the children and their care, but they have their own health needs which limits what they can do. They also speak limited English and that has had a knock-on effect of impairing their ability to liaise with the early childhood intervention support provided for your younger daughter. Their limited English has also added to the difficulties they experience in accessing health care for their own health needs. I accept the evidence that the family has come to rely on you to assist not only with your children, but also in monitoring the health of your parents-in-law health and in assisting them in accessing health services’
59These are, sadly, all too common hardships experienced by families as a result of the wrongdoing of a family member. I take them into account as a matter relevant to consider in determining the appropriate sentence.
60Turning then to your prospects for rehabilitation. In general terms, it would appear you will continue to have the support of your wife, and will be permitted, even encouraged, to share as much of the parenting of the children as you are permitted, having regard to any restrictions placed on your unsupervised contact with them. You are intelligent and once your mental health stabilises you are capable of engaging in meaningful employment. You express a desire which I accept is genuine, to participate when you are well enough, in a Sex Offender Treatment Program and any other programs or therapies thought to be necessary to address your risk of reoffending. All of that clearly counts in your favour.
61However, your prospects of rehabilitation, whilst at one level good and promising, at another level must be regarded as guarded.
62I referred earlier to the pre-arrest outward signs of a happy, successful and law-abiding life, but behind that lies what is now exposed as a long established, well entrenched and disturbingly deviant paraphilic sexual disorder. Mr Newton describes it as extended, active and compulsive.
63You reported to Mr Newton your involvement with child abuse material goes back more than 20 years to adolescence and is used by you for masturbatory fantasy. Despite your recognition that it is morally wrong as well as illegal, despite periodic attempts to make a fresh start by deleting the material you had stored, and despite implementing strategies to try to prevent you from having further access, you managed to subvert all your efforts and to continue to access, store, and use child abuse material until your arrest. Although you insist your sexual orientation is primarily towards adult women and, to a lesser extent adult men, Mr Newton concludes your offending, 'clearly indicates sexual deviance'. He describes your engagement with child abuse material as, 'extended, obsessive and multifaceted', and points to, 'clearly deviant cognitions., I accept his opinion that you are properly characterised as falling within the criteria under ICD 11 for a diagnosis of 'other paraphilic disorder' .
64At paragraph 24 of his primary report, Mr Newton said:
Mr Yu was adamant in stating that, notwithstanding his obsessive use of child abuse material for masturbation and the content of his searches, he had never engaged in any sexualised contact with underage individuals. While he maintained such denials in the face of having downloaded a manual related to the grooming of children, he could not explain his motivation for having downloaded this manual.
65Later at paragraph 54, Mr Newton said:
… the offending committed by Mr Yu clearly indicates the presence of sexual deviance. Specifically, the fact that he has repeatedly accessed child abuse material as well as searching for, downloading and saving material with frankly paedophilic themes points to severe problems with his sexuality. Several aspects of Mr Yu’s offending raise particular concern. Notably, the material he engaged with is diverse and extreme in its content – including active sexual behaviour between children of various ages and adults, as well as extremely concerning written material. Mr Yu searched for this material explicitly and directly – making use of search terms well known within deviant subgroups to identify paedophilic content. The presence of material on a scenario associated with Mr Yu’s professional activities is also noted with concern. Further, Mr Yu acknowledged that he had engaged with this material over an extended period of time – dating back to his own adolescence. He acknowledged using the material for masturbatory fantasy and noted that he had returned repeatedly to the conduct despite multiple efforts to desist and the implementation of a diverse range of strategies to prevent such return.
66Mr Newton assessed your risk of recidivism as markedly higher than for the general cohort of non-contact child sex offenders. He did so using a:
'structured clinical judgment framework informed by a consideration of relevant empirically derived factors which have demonstrated their utility in predicting sexual recidivism'.
I accept Mr Newton's evidence that this approach represents current best practice in risk assessment and risk management. I also accept his evidence that specific actuarial risk assessment tools are not available for use with individuals charged with online offences only, and his acknowledgement that the available research indicates such offenders (online offenders only) should be considered to pose a 'low risk' of further offending unless significant aggravating factors are present.
67In your case, Mr Newton has identified factors which elevate your risk to moderate. In other words, there are significant aggravating factors present in your case. He concluded at paragraphs 62 – 64 of his primary report:
Mr Yu presents with a broad range of risk factors. These are particularly salient in the domains of his ‘Psychological Adjustment’, ‘Mental Disorder’ and ‘Social Adjustment’. In summary, the major issues identified in Mr Yu’s case arise from his deviant sexual adjustment including prominent recourse to child-abuse material for masturbation, his problems in his intimate and non-intimate relationships, and his limited insight (including his endorsement of problematic ‘cognitive distortions’). Beyond this, Mr Yu acknowledged long term involvement with deviant content and has suffered noteworthy disturbance in his mental health – with ongoing suicidal ideation complicating the provision of effective treatment. Further, his stress-management skills are limited, and he has previously been reliant on child abuse material and (at times) hazardous alcohol consumption to reduce stress. Finally, his own experiences of childhood sexualised interaction with his peers remain largely unresolved. In total, these features combine to suggest that the risk of recidivism is elevated in Mr Yu’s case.
Taking the factors identified by the RSVP into account, Mr Yu is assessed as posing a moderate risk of recidivism to sexual offending. That is, his risk of recidivism is about average for a typical sex offender undergoing sentence, but significantly higher than that of a typical offender charged only with online matters
The most important factor in reducing the risk of recidivism in Mr Yu’s case would be successful completion of a comprehensive offence-specific treatment. Further reductions in the level of risk could be achieved by improving his stress-management skills, assisting him to achieve sustained abstinence from alcohol, improving his social and communication skills, improving his community integration, and the provision of ongoing oversight. Assuming successful engagement with the required programs it is likely that Mr Yu’s risk of recidivism would be reduced over the medium term.
68I accept these opinions and the basis for them, given the clear expertise and authority of Mr Newton.
69That is clearly relevant to a number of sentencing factors here: the assessment of your prospects for rehabilitation, generally, and having regard to the requirement in section 16A(2AAA) to which I referred earlier, protection of the community, and deterrence, both general and specific.
70The intensity of your mental health response to being charged, and the significantly heightened risk that you have posed to yourself since then of self-harm throughout the period from charge to sentence, has prevented you from engaging in any but the most preliminary engagement in sex offence specific treatment. The consequences of being charged as I have noted, triggered a significant depressive episode. You have been repeatedly at risk of self-harm, and despite what Mr Newton described in his oral evidence as sustained treatment and exemplary care over the last 18 months, your depressive symptoms still persist at that moderate level of intensity.
71In March of this year when Mr Newton first assessed you, he noted that your ability to discuss your emotions was hampered by the severity of the depression from which you were suffering. This was, by the time your symptoms had abated to moderate. He reported:
Mr Yu willingly completed the psychological testing requested of him. He endorsed a wide range of symptoms (across multiple areas) at levels that are unusual even in clinical populations. Whilst it is not clear that he had deliberately exaggerated his problems, it was evident that his answers were affected by a starkly negative perspective on himself and the world which had likely led to a significant degree of distortion of the test profile. Specifically, the validity scales suggested that Mr Yu had emphasised his failings and suffering while concurrently minimising his positive qualities. Such profiles could be characterised as a ‘cry for help’ and are typically obtained by individuals who are seeking to ensure that the evaluator has recognised their suffering.
72This is consistent with the report of your treating psychologist, Ms Allen. Just days after you were charged your lawyers referred you to Ms Allen. She is highly qualified and experienced in the provision of sex offender specific treatment and it would appear that that was the reason for the referral: to assess your suitability for participation in the Sex Offender Treatment Program, and if suitable, to commence such a program well before sentencing. You have remained under Ms Allen's care since March of last year. However, her care has largely been confined to what she has described as 'preservation of life'. In her initial court report, prepared in April of this year, she noted your limited progress in terms of mental health stability since her initial contact with you. Your suicide risk was so acute at the time of the initial referral last year that she referred you immediately to a CATT team and to emergency hospital admission. You have required intensive support and treatment from Eastern Health Brief Intervention Team since then. You remained under their intensive care between March and July 2021 and were then returned to treatment with Ms Allen, in combination with Eastern Health and your GP. Ms Allen's treatment remains focused on preservation of life.
73She reported that she had, in the lead up to the original plea hearing which was scheduled for April, and in the broader context of your treatment, commenced to consider treatment content relating to responsibility taking, the role of sexual self-regulation and identifying/building protective factors. They were three treatment modules. In oral evidence last month, Ms Allen confirmed that even that preliminary or exploratory sex offender treatment had led to a further instability in your mental health, and she has not, since early this year, considered your mental health to be stable enough, or your risk of harm to yourself to be sufficiently reduced, for any further preliminary let alone detailed sex offender treatment to be embarked on.
74As both she and Mr Newton emphasised in their evidence, sex offender treatment is confronting and difficult, and your depression and risk of self-harm and intensity of emotional distress must be addressed and managed before you will be well enough to engage in sex offender specific treatment. In her report and oral evidence Ms Allen confirmed both your expressed willingness to undertake the Sex Offender Program and your current inability to embark on it.
75Both Ms Allen and Mr Newton were of the view that if you become well enough to participate in a Sex Offender Treatment Program, given your willingness to do so, your intelligence, and your acceptance that the use of child abuse material is morally as well as legally wrong, you are likely to benefit from it and so to reduce your risk of reoffending. That clearly is highly relevant to Mr Newton's opinion, to which I have referred earlier, of the importance, if your risk of recidivism is to be addressed, that you embark upon a comprehensive program.
76Although both Mr Newton and Ms Allen were of the opinion that imprisonment would increase the risk of self-harm and the worsening of your depressive symptoms, they also both considered that your mental state would likely stabilise once you were sentenced, even if that resulted in the imposition of a term of immediate imprisonment. And both considered that even if ultimately sentenced to a term of imprisonment, whilst there would be likely to be a deterioration in your mental health as a result, that you would ultimately likely stabilise and that you may become well enough to participate in a Sex Offender Treatment Program.
77Ms Allen expressed the hope that once the sentencing outcome was determined, whatever it was, you would be better able to be prepared to embark upon a treatment program. However, as you are still experiencing a depressive episode of moderate intensity, despite the intensive, exemplary care over the past 18 months, your treatment focus must remain on preservation of life. That your highly experienced treater currently can put it no higher than, it is hoped that after treatment for the likely decline in mental health after sentence, you will well enough to embark upon a Sex Offender Treatment Program, is telling.
78That has presented a dilemma, best solution to which I have struggled to find . As Mr Newton makes clear, given your risk of recidivism, elevated above that generally posed by those whose sexual offending is confined to accessing child abuse material, the deeply entrenched deviant cognitions identified by him and the other personality features identified, it is clearly in your interests and those of the community that you engage in a Sex Offender Treatment Program if you can do so safely.
79As already noted, section 16A(2AAA) specifically requires me to consider rehabilitation and participation in a rehabilitation program as part of the sentencing process here.
80Ms Marcou who appeared with Mr Mence, and whose submissions both oral and written were of considerable assistance to me, directed her submissions on outcome initially to release on a community correction order, with conditions including participation in a Sex Offender Treatment Program, or as a fall back, to the imposition of a term of imprisonment with immediate release on recognisance, conditioned upon participation in a Sex Offender Treatment Program. Those submissions were obviously premised on a finding that exceptional circumstances existed as required for Charges 2 and 3, and as had been emphasised even before that in De Leeuw, for Charge 1.
81Mr Hardjadibrata’s submissions were directed to the imposition of a term of imprisonment, the length of which required a recognisance release order to be fixed, that is one of less than 3 years and which, as the prosecution submitted exceptional circumstances had not been made out, required service of a part of that term before release. He also, having regard to the conditions for supervision and treatment which by section 20(1B) were required to be attached to a recognisance release order when sentencing for a child sex offence, placed emphasis on your expressed willingness to participate in a Sex Offender Treatment Program.
As I indicated when I reminded you in custody after the last hearing, I am not satisfied that exceptional circumstances exist, so as to displace that presumption in favour of service of a term of immediate imprisonment as part of the overall sentencing order. That is so, despite those many factors in your favour including: your previous good character;
the loss of family, marriage, reputation, career, and income;
family hardship;
the impact on you of your poor mental health since charge, and the likely increased deleterious impact of it on you if you are imprisoned;
your willingness, if well enough, to participate in a Sex Offender Treatment Program;
the mitigation of a sentence otherwise appropriate by reason of your guilty plea, and the COVID discount; and
the added burden of imprisonment by reason of your mental health, and for a first-time offender, with the continuing risk of COVID exposure and restrictions.
82The fact remains though that these are very serious examples of very serious offences. The sheer number of images, as well as their nature, speak for themselves. They are as I have noted properly characterised as a course of conduct and they must be seen against that 20-year history of paraphilic sexual deviance manifesting as extended, obsessive and a multifaceted engagement with child abuse material. Previous good character does not weigh as heavily as it can for other offences. General deterrence remains the primary sentencing factor. Even if you overcome the mental health barriers currently preventing you from being able to participate in a Sex Offender Treatment Program, your level of risk of reoffending is significantly higher than for other sex offenders whose sole offending is possession of child abuse material and that is because, in addition to the diagnosed entrenched sexual deviance, there are other static features which add to the risk, including those prominent features of avoidant personality, the underlying recurrent depressive order, and the reliance on accessing child abuse material, as well as other maladaptive behaviours (excessive alcohol use and gaming) as a response to depression or life stressors.
83Whilst your risk of harm to yourself remains real and acute, the emphasis on managing your mental health takes priority over participation in a Sex Offender Treatment Program. Those matters, important as they are, cannot eclipse these important sentencing considerations.
84I was provided with a number of cases by both prosecution and defence which it was suggested were comparable. Some of them predated the introduction of s20(1)(b)(ii). Save to say that they demonstrate that each case turns on its own facts and circumstances, they provide no more than guidance. They do not in my view support a finding that exceptional circumstances, by reason of the combination of circumstances relied on here , exist in this case.
85This highly prescriptive regime, and the narrow sentencing band in which both parties submitted I should operate has troubled me. I do not consider that I should impose a condition, namely participation in a Sex Offender Treatment Program unless satisfied it is likely to be capable of being complied with and is enforceable. If you remain as unwell as you currently are, you will not be capable, by reason of your mental health, of complying with a condition to participate in a Sex Offender Treatment Program You cannot be compelled to participate in one if your mental health is not stable enough, or if participation would put you at an unacceptable risk of deterioration in your mental health or higher risk than already exists of self-harm. And you cannot be punished if you fail to comply with a condition for participation in a Sex Offender Treatment Program if your unstable mental health or the risk of harm to yourself is the cause of non-compliance.
86Unlike a sentencing order which imposes a term of imprisonment and fixes a period which must be served before being released on parole, and which therefore leaves it to the parole authorities to make an assessment, as that minimum term comes to an end, whether, and on what terms a person is released and whether, at that time, they are well enough to participate in a Sex Offender Treatment Program or condition release upon that, I am being asked to impose a condition now of future participation in a Sex Offender Treatment Program, with at the moment no great prospects that you will be well enough to do so. That is because on the evidence before me the highest it can be put is that it is hoped that you will be well enough to participate if your mental health stabilises after sentence, and the treatment focus no longer has to be on preservation of life.
87Despite my acceptance of the genuineness of your willingness to engage, it is clear that you are not well enough yet to embark on treatment. And whilst there is a hope that you will become well enough, once the uncertainty of your sentencing fate is resolved, that hope falls well short of providing a reasonable expectation that you will be well enough to be capable of complying with a condition of participation in a Sex Offender Treatment Program during the likely term of a recognisance release order.
88It is therefore with considerable misgivings as to efficacy and enforceability that I am imposing a sentence that will combine imposing a term of imprisonment to be immediately served, with release on recognisance, with conditions stipulated in s20(1)(b) requiring you to be under supervision and to participate in treatment for mental health and participation in a Sex Offender Treatment Program as directed. In fixing the period of release on recognisance, I have had regard to the requirement to consider allowing sufficient time for participation in a Sex Offender Treatment Program, and the possibility that you may require longer to successfully complete a program.
89Given your well documented mental health vulnerabilities, I again urge those responsible for your care to monitor your mental state, and to provide timely interventions if your state deteriorates. I urge the authorities to consider how best to prepare you for participation in a Sex Offender Treatment Program, including by considering making the first part of it available whilst you are in custody, and therefore to assist your transition into the community in good mental health and already engaged in a Sex Offender Treatment Program.
90I therefore propose to sentence you, Mr Yu, to a term of imprisonment the full effect of which would be, a total effective sentence of two years and six months imprisonment and to release you after a period of 12 months on a recognisance conditioned on your being of good behaviour for a period of three years, being under the supervision of a probation officer, undertaking rehabilitation programs as directed including a Sex Offender Treatment Program and mental health program. I propose to make the forfeiture and disposal orders that have been sought. I have already noted that you will be subject to reporting for life under the Sex Offender Registration Act.
91Johnson Yu, on the three charges to which you have pleaded guilty, you are convicted. On Charge 1 of use a carriage service to access child pornography you are sentenced to be imprisoned for a period of nine months.
92On Charge 2 and taking into account the schedule offence of using a carriage service to access child abuse material, you are sentenced to be imprisoned for a period of two years.
93And on Charge 3 of possession of child abuse material accessed through use of a carriage service, you are sentenced to be imprisoned for a period of 12 months.
94The sentence on Charge 1 is to commence today. The sentence on Charge 3 is to commence three months after the commencement of the sentence on Charge 1.
95The sentence on Charge 2 is to commence six months after the commencement of the sentence on Charge 1.
96That means that the total effective sentence is two years and six months.
97I declare that you have spent 16 days in pre-sentence detention and direct that that be counted and reckoned as a period of imprisonment already served under this sentence and which will be deducted administratively.
98On Charges 1, 2 and 3 I order pursuant to s20(1B) of the Crimes Act1914 (Cth) that you be released upon recognisance to be of good behaviour after serving 12 months of this sentence. You are to be of good behaviour for three years and you are subject to these conditions:
(a) That you are to be subject to the supervision of a probation officer being the Deputy Commissioner Community Correctional Service and Sex Offender Management or his or her nominee, for a period of two years.
(b) That you obey all reasonable directions of the probation officer.
(c) That you do not travel interstate or overseas without the written permission of the probation officer.
(d) That you undertake such treatment or rehabilitation programs that the probation officer reasonably directs.
99In order to give effect to these mandatory conditions you must report to the Reservoir Community Corrections Centre at 909 High Street Reservoir within two clear working days after your release from custody.
100You must report to and receive visits from a Community Correction officer.
101You must notify an officer at the Community Corrections Centre at Reservoir of any change of address or employment within two clear working days of any such change.
102You must attend, undertake and complete a sex offender program within a period of two years.
103And I fix the amount of the recognisance to be of good behaviour and to be subject to these conditions in the amount of $5,000.
104I have issued this order because you have been charged with the Federal offences of use a carriage service to access child pornography material, using a carriage service to access child abuse material, and possession or control of child abuse material obtained or accessed using a carriage service.
105I have sentenced you to a term of imprisonment of two years and six months and directed your release after serving 12 months of the service, if you comply with the conditions of the order.
106Now Mr Yu, do you understand the order that I have pronounced? That is, that you have been sentenced to this overall term of two and a half years, to be released after 12 months on a $5,000 recognisance, on your promise to be of good behaviour for a period of three years, and to be under supervision and undergo a sex offender treatment program within two years?
107OFFENDER: Yes.
108HER HONOUR: And do you consent to release on recognisance after service of the 12 months on those conditions?
109OFFENDER: Yes.
110HER HONOUR: Thank you. Is that sufficient, Ms Caretti (indistinct) to explain the purpose and effect of the order and the consequences that follow if he fails without reasonable excuse to comply with the conditions of the order?
111COUNSEL: It is, Your Honour.
112HER HONOUR: I should also tell you, Mr Yu, that you can make application to discharge or vary the order if circumstances change. So I am going to ask for that to be provided to you and for you to sign this recognisance, acknowledging that you have understood it and its terms. Mr Mence, do you want to go down with my associate, thank you.
113I now formally declare pursuant to section 34 of the Sex Offender Registration Act2004 (Vic) that the length of the reporting period following conviction for these charges is life.
114I declare pursuant to section 6AAA of the Sentencing Act 1991 (Vic) that but for the pleas of guilty, I would have sentenced you to a period of imprisonment of five years and fixed a term of three years as the time that you would have had to serve before being eligible for parole.
115I note pursuant to section 16(BA) of the Crimes Act 1914 (Cth) that you have admitted the offence of use of a carriage service to access child abuse material contrary to sub-s22(1) of section 474 of the Criminal Code (Cth) and that this offence was taken into account in sentencing on Charge 2.
116And I make the forfeiture and disposal orders sought. Is that all of the orders?
117COUNSEL: It is, Your Honour.
118HER HONOUR: I note that the Sex Offender Registration Act condition, a copy of those conditions have been provided to Mr Yu and that he has signed in acknowledgement of having received those.
119
MS MARCOU: I am indebted, Your Honour, and Your Honour did note I think the
pre-sentence detention of 16 days.
120HER HONOUR: Yes.
121MS MARCOU: I think you did, yes, thank you, Your Honour.
122HER HONOUR: Yes, or if I did not, I formally declare that you have spent 16 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.
123And before I formally arise and we adjourn can I express my thanks to all of those in court and Mr Hardjadibrata for the considerable assistance that you provided, the patience and tolerance that you have shown. As you know I found this a very difficult case and there is some, I thought very difficult sentencing issues, and I know my concerns prolonged the proceedings. I am very grateful for the assistance that I have been provided by everybody, thank you.
124COUNSEL: The court please.
125HER HONOUR: And for the high level of assistance that I was provided. Thank you, please adjourn.
- - -
4
0