Director of Public Prosecutions v Hu
[2025] VCC 1628
•7 November 2025
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| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-23-01781
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LINGMING HU |
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JUDGE: | CHIEF JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 October 2025 | |
DATE OF SENTENCE: | 7 November 2025 | |
CASE MAY BE CITED AS: | DPP v Hu | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1628 | |
REASONS FOR SENTENCE
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Subject:Criminal law – Sentence
Catchwords: Guilty plea – sexual penetration of a child under 16 – possession of child abuse material – offending over a period of four months – offender aged 17 at the time of the offending – youth considerations – delay – no prior or subsequent criminal priors – low risk of future offending – engagement in treatment – prospects of rehabilitation – general deterrence and denunciation
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Children, Youth and Families Act 2005 (Vic).
Cases Cited:R v G [2008] UKHL 37; Roberts v The King [2023] VSCA 92; Clarkson v The Queen (2011) 32 VR 361; R v Mills (1988) 4 VR 235; Azzopardi v The Queen [2011] VSCA 372; R v McGaffin [2010] SASCFC 22; Rose v The Queen [2022] VSCA 112; DPP v Yuen [2020] VCC 1527; DPP v Calladine [2020] VCC 2014; DPP v Youl [2023] VCC 635; DPP v Phal [2025] VCC 1184; The Queen v Boulton (2014) 46 VR 308
Sentence: Two year community correction order with conviction
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Duckett | Office of Public Prosecutions |
| Victoria | ||
| For the Accused | Ms A. Beech | Doogue & George Defence Lawyers |
HER HONOUR:
1Lingming Hu, you have pleaded guilty to one rolled-up charge of sexual penetration of a child under 16, and one charge of possessing child abuse material. These offences carry a maximum penalty of 15 years and 10 years’ imprisonment, respectively.
2The offending for which you are to be sentenced arises from your sexual relationship with 14-year-old Meilin Zhang[1] over approximately four months between April 2021 and July 2021. You were 17 years old, and in Year 12, at the time of this unlawful sexual relationship. Ms Zhang was in Year 9.
[1]A pseudonym.
Circumstances of offending
3The circumstances of your offending are as follows.
4You first came to know of the victim through a mutual friend in July 2020. At that time, the victim was 13 and you were 16 years old. While her friend was communicating with the victim on WeChat, you told the friend that you ‘liked’ her. The victim thought you were not genuine and added you to WeChat to see if you were ‘real’. A week later, you contacted the victim via WeChat, asking if she wanted to see a movie with you. You continued to chat online for several months. During that period, your conversations were occasionally sexual in nature. This made the victim uncomfortable and she eventually deleted your contact details.
5You initiated contact with the victim six months later, wishing her a 'Happy New Year' and asking if she wanted to see a movie or go out for food with you, but she lied to avoid contact with you, by saying she was in China.
6On 18 April 2021, you were both invited go-karting by a mutual friend. This was the first occasion the two of you met in person. You knew the victim was 14, because you had previously discussed her age during your WeChat discussions.
7After go-karting, you invited the victim to dinner, but she declined. Ultimately, the group who went go-karting went into the city for dinner together. At the restaurant, you sat with the victim, and tried to feed her from your spoon, even though she said ‘no’.
8After dinner, the rest of the group left the restaurant, leaving you and the victim alone. You ordered a taxi for you both to get home.
9During the taxi ride home, you began to hug the victim, telling her, ‘this is how hugging feels’. The victim showed you a photo of her ‘Adams apple’ and you kissed her neck. You then kissed the victim and began touching her all over her body, including her breast.[2]
[2]Uncharged act.
10You placed your hand on the victim’s groin and then inside her pants and underwear, before inserting your finger inside her vagina. This is the first act of sexual penetration of a child under 16 that forms part of rolled up Charge 1. You moved your finger inside her vagina, telling the victim that you ‘really, really liked her’ and that you were sad when she stopped contacting you.
11This was the first time the victim had been touched in a sexual manner.
12Over the next four months, you were in regular contact with one another. From the outset, your relationship with the victim was a sexual one. You would arrange to meet up at hotels, public places and in private homes where you would engage in sexual activity with the victim, knowing she was 14 years old.
13The day following the go-kart activity, 19 April 2021, you called the victim asking to go to the library together to study. When the victim declined, saying she had classes that afternoon, you replied, ‘Doesn’t matter, I can call an Uber for you. You just come’.
14The victim travelled by Uber to meet you at a café. You then travelled together by Uber to eat at a KFC restaurant. After this, you took the victim to a nearby hotel room, where you lay down next to her and hugged her. The victim told you she was tired. Approximately 10 - 20 minutes later, you hugged her tighter and touched her on the breast and over her body, saying that you ‘really, really like [her]’. You then touched the victim’s vagina and digitally penetrated her. This is the second act of sexual penetration of a child under 16 that forms part of rolled up Charge 1. You then removed your clothes and asked the victim to touch your penis, before directing her how to masturbate it.[3]
[3]Uncharged act.
15You removed the victim’s clothes from her lower body and moved on top of her, before sexually penetrating her vagina with your penis, until you ejaculated on her stomach. This is the third act of sexual penetration of a child under 16 that forms part of rolled up Charge 1. The act of sexual penetration hurt the victim. During intercourse, you told the victim that you ‘really liked’ her and that you had wanted ‘to do this last year to [her]’.
16You took a photograph of your ejaculate on the victim’s stomach. Later a mutual friend showed the photograph to the victim, asking if it was her.[4]
[4] Uncharged act.
17The victim told you that she really needed to go home as she had a class to attend. During the drive home, you both discussed whether you would have a ‘boyfriend/girlfriend’ relationship.
18On 24 April 2021, you were together in a local area around lunchtime, when the victim told you she needed to use a bathroom. Having located a public toilet in a nearby park, you followed the victim into the toilet. After she had used the bathroom, you touched her chest and lower body, before placing your hand inside her underwear to touch the outside of her vagina. You moved your finger around the outside of her vaginal area.[5] You then placed the victim’s hand on your penis and moved the victim up against the wall. You rubbed your erect penis against her hips, and tried to insert your penis into her vagina, but the timer on the automatic toilet unlocked the door causing you to stop.[6]
[5]Uncharged act.
[6]Uncharged act.
19The next day, 25 April 2025, you met the victim at a local pool hall where you discussed your respective ages. You were doing an online class, but told the victim it was too loud to study. You then asked the victim if she wanted to go to a hotel. You took her to a nearby hotel where you booked a room for 2-3 hours. Inside the hotel room, you engaged in sexual activity with the victim, sexually penetrating her vagina with your penis. This is the fourth act of sexual penetration of a child under 16 that forms part of rolled up Charge 1. You removed your penis before ejaculating, causing your ejaculate to land on the victim’s stomach and between her legs.
20Before leaving the hotel, you took photos of the victim, including one while she was in the shower wearing a top but no underwear, showing her vagina.[7]
[7]Uncharged act.
21After this, you and the victim continued to engage in sexual activity in public toilets, on approximately three or four occasions.[8]
[8]Uncharged acts.
22On the first weekend in May 2021, you and the victim had dinner with friends at a local restaurant. After eating, you followed the victim into the female toilets. The victim reminded you that it was the ‘girls bathroom’ but you ignored her. You began to kiss and hug the victim, who felt your erect penis as you did so. You placed your hand beneath her underwear, touching her vagina, before removing your pants and penetrating the victim’s vagina with your penis until you ejaculated. This is the fifth act of sexual penetration of a child under 16 that forms part of rolled up Charge 1.
23On 9 May 2021, you attended a local hotel together where you booked a room for 2-3 hours, and engaged in sexual activity during which you penetrated the victim’s vagina with your penis. This is the sixth act of sexual penetration of a child under 16 that forms part of rolled up Charge 1. There were another four or five times that you engaged in sexual intercourse with the victim at that hotel.[9]
[9]Uncharged acts.
24On 4 June 2021, you had penile/vaginal sexual intercourse with the victim in her bedroom, which is the seventh occasion that forms part of rolled up Charge 1. As you did so, you filmed the sexual activity on your mobile phone.[10]
[10]Uncharged act.
25On 6 June 2021, you had dinner with the victim. After dinner you said that your mother needed you to return home urgently. You suggested that you both get a taxi back to your house and that the victim could make her own way home after that.
26After you arrived at your home, you went together to a nearby park, where you told the victim that you wanted to have sex with her and began touching her breasts and abdomen.[11] The victim replied that she did not want to have sex in the park. Despite this, you said 'it’s okay' before lying down with the victim on top of you. You touched the outside of her vagina, before removing the victim’s pants and underwear. You told the victim to sit on you, before positioning her so that you could penetrate her vagina with your penis until you ejaculated, which is the eighth occasion of sexual penetration that forms part of rolled up Charge 1.
[11] Uncharged act.
27You accompanied the victim to a local chemist to purchase an emergency contraceptive pill the next day, assisting her to fill in the checklist form including her date of birth. The victim told the chemist that she had engaged in unprotected sex a number of times since her last period.
28You had sexual intercourse with the victim at a hotel on three other occasions on 7 and 10 June 2021, and on 12 July 2021. On each occasion you engaged in penile/vaginal intercourse until you ejaculated. These acts of sexual penetration also form part of rolled up Charge 1.
29On 12 June 2021, you met the victim in the city for lunch and then went into a unisex toilet together where you raised her skirt, before removing her bike shorts and underwear. You sexually penetrated her vagina with your penis, while positioned behind her. This act of sexual penetration also forms part of rolled up Charge 1. You filmed this sexual activity using the mirror in front of you and then sent the video to the victim via WeChat.[12]
[12]Uncharged act.
30As stated, on 12 July 2021, you engaged in sexual activity with the victim in a hotel room, including penetrating her vagina the last act of sexual penetration that forms part of rolled up Charge 1.
31On 1 August 2021, the victim’s mother met you for the first time. She sent you a text message three days later referring to you ‘making friends’ with her daughter, and stating ‘I’m not against it, but I believe it’s a little early, she is only 14 years old.’
32You turned 18 in October 2021, soon after which the victim’s mother again reminded you that her daughter was only 14-years-old.
33Between 16-17 October 2021, you ended the relationship with the victim, causing her significant distress. Following an attempt on her life requiring the attendance of police and an ambulance, the victim disclosed to police that she had been in a sexual relationship with you.
34After the victim spoke with the police, you and your mother attended the victim’s family home. During that visit, you spoke to the victim, telling her ‘…don’t tell the police, don’t tell Mum, don’t tell anyone, and we will be together forever. Just don’t tell anyone, otherwise I will go to gaol and you can’t see me’. You then deleted all messages between the two of you, and the images you had sent to the victim from her phone. You told the victim, ‘…I regret all of this, I didn’t have sex with you’.
35The victim’s mother took her to the police station on 27 November 2021. The victim made her first audio-visual statement to police on 29 November 2021.
36On 6 December 2021, the police executed a search warrant at your address where they seized iPhones, an iPad and a MacBook Pro from your address. You were interviewed by police that morning, during which you initially denied having sex with the victim or of knowing her age until after you turned 18. However, later in the interview, you admitted to having sex and taking nude photos of the victim, although you maintained you believed she was 16 years old. You also admitted owning the MacBook Pro computer on which photos of the victim were located, some of which constituted child abuse material.[13]
[13]Charge 2 – possession of child abuse material.
37Following analysis of the computer, the police located six images of the victim that were characterised as child abuse material, including a video file depicting you sexually penetrating the victim at her home on 25 April 2021. Other images captured the victim in sexually provocative poses with her genitalia or buttocks exposed. Another image captured the victim while she used the toilet.
38Investigators conducted a second VARE with the victim on 7 December 2021. However, it was not until 24 April 2023 that you were interviewed again by police and were charged on 3 July 2023. I return to the relevance of this delay later in my reasons.
Victim impact
39Before I consider your personal circumstances, I want to say something about the impact of your offending on the victim.
40Being only 14 years old, the victim was in middle school at that time of the offending. In her victim impact statement, the victim recalls how almost everyone in her school came to know about it, causing her middle and final years in school to become ‘extremely painful and difficult’.[14] She says she felt isolated and bullied by others, causing damage to her self-esteem and reputation. She describes feeling ashamed, anxious, and without hope.
[14] Exhibit B – Victim Impact Statement of Meilin Zhang dated 15 October 2025.
41The victim states she suffered significant mental health issues as a result of the offending, requiring medication and counselling. The offending also impacted on the victim’s ability to trust others, leaving her lonely and unable to form ‘healthy relationships’: stating that the offending has left her with ‘permanent scars’.
Personal circumstances
42
I turn now to consider your personal circumstances, much of which I have drawn from the psychological report of Dr Rachel MacKenzie dated 12 October 2025.[15]
Dr MacKenzie assessed you on 14 September 2025 for the purposes of your plea hearing.
[15] Exhibit 1 – Psychological Assessment Report of Dr Rachel McKenzie dated 12 October 2025
43You were born in China in October 2003. You have one sister, who is five years older than you. Your parents have run successful technology businesses in China and have investments in Australia. As a child, your parents were often absent for work, leaving you in the care of a maid or babysitter, who you referred to as your ‘aunt’. You describe your relationship with your parents as close and caring, although your father was ‘strict’ with high expectations for you to be successful and independent.
44In 2010, your mother and older sister moved to Melbourne for your sister’s education. You remained in China with your father, but rarely saw him due to his long work hours. You describe this period as ‘very sad and lonely’. You moved to Australia to join your mother and sister after four months. Your father would then visit the family on occasions, and you would return to China on school holidays.
45You commenced primary school at a private school in Melbourne, but found this difficult as you spoke no English. You describe feeling isolated and found school stressful, as the teachers would not allow you to speak Mandarin, even when other Chinese-speaking students tried to assist you. After a period, you transferred to a local State school which you found more supportive, and enjoyed your remaining years of primary school.
46You attended a private grammar school in your secondary school years, where you succeeded both academically and socially. However, your last two years of secondary school were disrupted due to the COVID-19 pandemic, and your academic results, whilst solid, were not as good as you had hoped for. You worked as a sales assistant for a digital technology company for a year, but left in 2021 to concentrate on your studies.
47You told Dr MacKenzie that your first 'serious’ relationship and sexual experience was with the victim in 2021. When asked about your offending, you explained to Dr MacKenzie that before the relationship commenced, you were completing the last two years of school and that, due to frequent lockdowns, you spent most of your time online, including viewing online pornography. You described pursuing the relationship with the victim, 'initially seeking companionship', and thinking it was alright to have a sexual relationship with a 14-year-old, while you were both under 18.
48You were diagnosed with anxiety and depression in August 2021, after experiencing suicidal thoughts. You report seeking assistance from a psychologist at this time, and were prescribed anti-depressants.
49After completing secondary school, you enrolled to study a Bachelor of Business at Latrobe University. You commenced the course, but then took a six month break, without telling your parents, due to the stress you were experiencing as a result of these proceedings. You are now in the final year of your degree.
50Your mother continued to live with you and your sister until you were old enough to drive, and then your mother returned to live in China. Your sister moved into her own home earlier this year, leaving you alone in a house owned by your parents, which you describe being 'too big and lonely for one person'. Your parents now plan to sell this house and purchase a smaller one for you to live in. You have regular contact with your mother, but she now spends most of her time in China. Both of your parents are aware of your offending, and although disappointed by your behaviour, have demonstrated their ongoing support for you by travelling from China to attend your plea hearing in person.
51You are actively involved in a university billiards and pool club, which you founded, and now organise tournaments and events for over 250 members. In addition to your university studies, you currently work as a showroom consultant on a casual basis 20 hours per week, and have assisted with your parents’ technology company, where you aim to continue working full-time in the future.
52You had an intimate relationship with a woman, who was nine years your senior, last year but that relationship ended amicably after nine months. You are now single.
53
You have engaged in psychological counselling with forensic psychologist,
Dr Julianne Read, since February 2025.[16] Your engagement in offence-specific counselling was initially quite poor, but since June 2025 it is reported to have improved considerably.
[16] Exhibit 2 – Treatment Summary of Dr Julianne Read dated 10 October 2025.
54Significantly, you have no prior criminal history. You are now aged 22, and have no subsequent or pending criminal matters.
Nature and gravity of the offending
55I now turn to make some comments about the nature and gravity of your offending.
56The crime of sexual penetration of a child under 16 is an inherently serious offence, reflected in the maximum penalty set by Parliament, being 15 years’ imprisonment. The law places an absolute prohibition on sexual activity with children under 16, acknowledging the harm that is presumed to flow from such offending. This is because premature sexual activity is presumed to cause ‘long term and serious harm, both physical and psychological, to a child’.[17] In this case, the harm caused by your offending is clearly borne out by the victim’s eloquent and detailed victim impact statement.
[17] R v G [2008] UKHL 37 at [49].
57Balanced against this, the law also recognises that the offence of sexual penetration of a child under the age of 16 can be committed in a wide range of circumstances. In the case of Roberts v The King, to which I was referred by your counsel, the Court of Appeal described the spectrum of gravity applicable to this type of offending in the following terms:
‘The offence of sexual penetration of a child under the age of 16 covers a truly vast range of sexual activity. The common characteristic is that in every case the victim is a child whose welfare is sought to be protected by this and similar age-related offences. Every example of this offending is serious. Some, however, are more serious than others; the 50 or 60 year old predator engaging with a 12 or 13 year old, having groomed and coerced the victim, is at one end of the spectrum. Two teenagers straddling the age limit and sexually experimenting is at the other.’[18]
[18] Roberts v The King [2023] VSCA 92 at [17]
58This instance of offending, while serious, falls towards the lower end of the spectrum of gravity. Unlike cases involving much older males, you were a teenager yourself. An age disparity of three years, whilst significant for a 14 year old, is not as great as that seen in more serious cases. However, you were aware the victim was 14 at the time you initiated the sexual relationship; one which you actively encouraged and directed throughout the four months, organising hotel rooms and following the victim into public toilets to engage in sexual activity.
59The fact that you engaged in repeated acts of unprotected sex with the victim, placing her at risk of pregnancy, aggravates the offending significantly. You also took the opportunity that presented when you were engaged in the offending to video and photograph the victim engaged in sexual activity or in sexualised poses. Although you are not charged with transmitting any of the images (and are not to be sentenced for that offence), you accept that you sent an image of your ejaculate on the victim’s body to a mutual friend. It can only have been distressing for the victim when she was asked if the image was of her.
60The charge of sexual penetration of a child under 16 is a rolled up charge, encapsulating eleven separate acts of sexual penetration; with two of those instances involving digital penetration, and the remaining charges involving penile/vaginal penetration. The sentence imposed must reflect the extent of that offending, over a period of four months, even though the one maximum penalty applies. This is not an example of isolated or spontaneous offending.
61To protect children under the age of 16, the law specifically provides that the consent of the child is not relevant to the commission of the offence. The consent of the victim in such cases can never, of itself, be a mitigating factor. However, the nature of the relationship and the circumstances in which ostensible consent is given, may be relevant to an assessment of the gravity of the offending and the offender’s moral culpability.
62This was a relationship, although a highly sexualised one, between a 14 year old girl and a 17 year old boy. It was not accompanied by overt acts of duress or coercion, and although the sexual activity was repeatedly instigated by you, it was not a relationship devoid of mutual affection or shared social activities.
63Nonetheless, the circumstances in which the relationship ended after you turned 18 clearly caused the victim significant emotional distress, demonstrative of precisely the type of harm this offence is designed to prevent. You sought to prevent the victim from telling anyone about your relationship, holding out the prospect of being ‘together forever’ if she did not. It was wrong of you to do so, and you must have known that. You acknowledge that you bear responsibility for the harm you caused the victim.
64In the case of Clarkson v the Queen, the Court of Appeal outlined a category of 'exceptional cases – for example, a relationship between a 15-year-old girl and an 18-year-old boy – where consent is, relatively speaking, freely given and… a reflection of genuine affection between the two'.[19] While this case does not clearly fall within the category of exceptional cases envisaged in Clarkson, I do not consider it is so far removed as to elevate this offending beyond a lower level example of this type of offence, particularly having regard to your age at the time.
[19] (2011) 32 VR 361 (‘Clarkson’)
65Similarly, I consider the charge of possession of child abuse material to be low level example of this form of offending, noting that the offending relates to a total of five images and one video found on your laptop. The gravity of this offending arises from the fact you captured these images knowing that the victim was only 14 years old, and that you chose to retain them.
Matters in mitigation
66Having discussed the objective gravity of your offending, I now turn to the matters raised on your behalf in mitigation of your sentence.
Guilty plea
67You have pleaded guilty to these offences following a sentence indication hearing,[20] and in doing so acknowledge responsibility for your offending. By your guilty plea, you save the court and the community the time and resources associated with a trial. Significantly, in a case such as this, you saved the victim the trauma often associated with giving evidence in court. There is significant utility in your guilty plea, which must be reflected in a discernible sentencing discount.
[20] Sentence Indication hearing on 6 May 2025
Youth and delay
68The fact you were 17-years-old at the time of the offending is a powerful mitigating factor in a number of ways. The law recognises that young offenders are more prone to impulsive, ill-considered or rash decisions than older, presumably more mature offenders. Young offenders may not fully appreciate the nature, seriousness and consequences of their criminal conduct. Moreover, a young offender is not to be sent to an adult prison if such a disposition can be avoided. The law recognises that the benchmark for what is serious offending that would justify adult imprisonment may be quite high in the case of a young, first-time offender. [21]
[21]R v Mills (1988) 4 VR 235; Azzopardi v The Queen [2011] VSCA 372 at [34] quoting R v McGaffin [2010] SASCFC 22.
69The law characterises an offender under the age of 18 as a ‘child’ offender. The sentencing considerations for child offenders are distinctly focused on the rehabilitation of the child, even where they are at the upper reaches of childhood. For young offenders, the law is cognisant that adult imprisonment is more likely to impair, rather than improve, the offender’s prospects of successful rehabilitation.
70Having conducted a detailed psychological assessment, Dr MacKenzie expresses the opinion that the psychological context in which your offending occurred is reflective of your youth, upbringing, and inexperience, stating:
'In formulating Mr Hu’s offending, it is important to take into account that, at the time, he was a sexually inexperienced adolescent whose sexual scripts had primarily been informed by watching online pornography. In attempting to cope with the stressors that arose during the COVID-19 pandemic, it is likely that his initial contact with the victim did develop out of a desire to connect with others during a particularly vulnerable time. It is hypothesised that his pursuit of a sexual relationship with the young victim manifested from a combination of the desire for sexual gratification, the egocentricity inherent in youth, a traditional patriarchal notion of gender behaviour in courtship, and also a means of bolstering his self-esteem during a period of low mood, heightened anxiety and great uncertainty.'[22]
[22] Exhibit 1 at [72]
71Although the weight that is attached to youth is lessened the more serious the offending, this is far from a case where the mitigating effect of your youth and immaturity is extinguished.
72Four and a half years have now elapsed since the offending, and you now stand to be sentenced as a 22-year-old. In the circumstances of this case, delay operates as a powerful mitigating factor.
73Although the victim made her second recorded statement on 7 December 2021, you were not invited to participate in a further record of interview until 16 months later, on 24 April 2023, when you exercised your right to silence. You were not charged until 3 July 2023, by which time you had turned 19. The prosecution is unable to explain the reason for the delay in the initiation of charges in this matter, beyond a failure to prioritise and resource the matter by investigators. There is no suggestion the delay was caused by any fault of yours.
74The ramifications of this delay from a sentencing perspective are significant. Given you had turned 19 by the time you were charged, you lost the opportunity to be sentenced under the child-specific sentencing regime of the Children, Youth and Families Act 2005.
75Moreover, you now fall to be sentenced at the age of 22, the further delay making you ineligible to be considered for a youth justice centre order.
76There are two ways in which delay is relevant to sentence.
77The first concerns unfairness to the offender in circumstances where the prospect of being charged, or of having charges hanging over the offender’s head, creates uncertainty and anxiety. In this case, not only did you have the prospect of being charged hanging over your head after you were first interviewed on 6 December 2021, but you lost the opportunity to be sentenced as either a child or a young offender due to the period of delay, for which you bear no responsibility. This case highlights the very real unfairness to young offenders where the passage of time acts to deprive them of youth-specific sentencing options or regimes.
78The second way in which delay is relevant is where it can demonstrate that the offender has made progress towards their rehabilitation over the period of the delay.
79
In her report, Dr MacKenzie gives a detailed overview of your engagement in offence specific counselling with Dr Read. Your initial engagement was poor.
Dr MacKenzie states that you frequently failed to attend appointments and more significantly, failed to appreciate the seriousness of your offending or have insight into the impact of your crimes on the victim. However, since July this year,
Dr MacKenzie reports that you have demonstrated improved commitment to counselling and increased empathy for the victim. In the words of Dr Read, you still have ‘a way to go’ in terms of your engagement in sex offender treatment.[23]
[23] Exhibit 1 at [35].
80Appropriately, your counsel concedes that despite your acceptance of responsibility for this offending, your insight and remorse is currently incomplete and progress in that regard has been slow.
81During her assessment, Dr MacKenzie expressed reservations about the validity of your test results, given your tendency to provide responses aimed at making a favourable impression. However, when assessed against objective criteria rather than self-assessment, Dr MacKenzie concludes that you pose a low risk of sexual recidivism. More particularly, Dr MacKenzie makes no suggestion that your offending was associated with a paedophilic disorder or a sexual interest in minors. Dr MacKenzie recommends that you continue to engage in individual (rather than group) treatment to improve your appreciation of the nature and gravity of this offending.
82In assessing your prospects of rehabilitation, I have regard to the fact that you are a young first-time offender. More particularly, since this offending, you have engaged in various forms of employment, education, and social activities that all bode well for your future. You are actively engaged in university life at Latrobe University and your family and other friends describe you as a happy, friendly and intelligent young man in the character references provided on your behalf.[24] You are a person of otherwise good character, with no prior criminal history or any subsequent offending.
[24] Exhibit 3 – Bundle of character references.
83Subject to your genuine engagement in ongoing offence specific treatment and with added maturity, these positive indications for your future lead me to conclude that you have good prospects of rehabilitation.
Other sentencing considerations
84In cases such as this, the sentencing considerations of general deterrence and denunciation are given prominence, although these must be sensibly moderated given your young age at the time of the offending. Nonetheless, other young men must understand that engaging in sexual activity with underage girls is a serious crime that generally warrants stern punishment.
85As I have explained, the law seeks to protect children under 16 from sexual activity due to the risk of long-term harm caused by premature sexual activity. This is equally the case whether the offender is a younger or older male. Others must be deterred by the sentence I impose in order to protect children from the very harm this offence seeks to prevent. There is also a need for the court to denounce your conduct.
86For the reasons I have explained however, I consider that the need for the sentence to operate as a personal, or specific deterrent to you, is less significant given the punitive effect of delay in this case, your recent positive engagement in counselling and as a result, a more favourable assessment of your prospects of rehabilitation.
87On your behalf, it was submitted that in the circumstances of this case, a community correction order is available to meet the relevant sentencing factors. In particular, your counsel emphasised your young age at the time of the offending, the impact of delay, and your engagement in offence-specific treatment to date as moderating your sentence. The sentencing submissions highlighted the sentencing principle of parsimony, which makes any sentence of imprisonment a sentence of last resort.
88At the sentence indication hearing, the prosecution submitted that a sentence involving a combination of imprisonment and a community correction order was warranted, notwithstanding the concession that the standard sentence of four years imprisonment did not apply to Charge 1 given you were under 18 at the time of the offending.
89However, when the matter returned for plea, the prosecutor fairly accepted that a community correction order, appropriately conditioned, was not inconsistent with the sentencing dispositions given in comparable cases to which I was referred by both parties.
90The prosecution referred me to the decision of the Court of Appeal in Rose (a pseudonym) v The Queen.[25] In that case, the Court of Appeal upheld an appeal against a sentence of imprisonment imposed for five charges of sexual penetration of a child under 15 and four charges of committing an indecent act with a child under 16. The offender was 18 (and therefore an adult offender) when he engaged in sexual activity with the 14 year old victim over four months. The two had met in school.
[25] [2022] VSCA 112
91In that case, the offender had placed pressure on the victim to engage in the sexual activity and, at one point, had forcibly grabbed the victim's wrist, pinning her arms down during the sexual activity. In contrast, there is no suggestion that you used force during the offending. On appeal, the sentence of two years, five months’ imprisonment was reduced to seven months (equivalent to time served) to be followed by a community correction order of 12 months’ duration. Notably, the Court of Appeal concluded that ‘a CCO was well within the range of sentencing options available to the judge’ in that case.[26]
[26] Ibid at [73]
92I have also had regard to sentences imposed in the cases of Yuen, Calladine, Youl and Phal[27]. Each of these cases involved multiple or representative charges for the offence of sexual penetration of a child under 16 committed by young offenders, where the offenders were sentenced to community correction orders of varying duration. As always, there are features that distinguish each of these cases from yours. In contrast to those cases, you are being sentenced for offending as a 17-year-old child, rather than as a young adult. I am mindful that a young person should not be sent to an adult prison if such a sentence can be avoided.
[27]DPP v Yuen [2020] VCC 1527; DPP v Calladine [2020] VCC 2014; DPP v Youl [2023] VCC 635; DPP v Phal [2025] VCC 1184
93In my view, there are powerful reasons not to impose a sentence of adult imprisonment in this case, notwithstanding the inherent seriousness of the offending and the undeniable harm suffered by the victim by your offending.
94Despite the serious nature of your offending, by reason of your youth and the particular circumstances of your offending, general deterrence, denunciation and just punishment attract less weight in the sentencing synthesis than that would had you been older and your offending occurred in a different context. Further, your guilty plea, and the punitive impact of delay in this case, all operate to significantly moderate your sentence.
95You have been assessed as suitable for a community correction order and have consented to such an order being made.
96In the guideline decision of The Queen v Boulton, the Court of Appeal confirmed that a community correction order can operate as a punitive and rehabilitative order simultaneously.[28] As the Court of Appeal observed, a suitably conditioned CCO diminishes the conflict in sentencing considerations that are particularly acute for young offenders, enabling the Court to fashion a CCO which achieves the objectives of deterrence and denunciation whilst promoting the young offender’s rehabilitation.
[28] (2014) 46 VR 308
Sentence
97Balancing the matters to which I have referred, while having regard to the maximum penalty for each offence, I sentence you as follows.
98On Charge 1 – a rolled up charge of sexual penetration of a child under 16 and on Charge 2 – possession of child pornography – you are convicted and sentenced to a two year community correction order (‘CCO’).
99It is a condition of the CCO that you undertake 250 hours of unpaid community work and be assessed for and undertake any offence specific programs that are recommended. In relation to this condition, I urge Community Corrections to have regard to Dr MacKenzie’s recommendation that you continue with individual treatment tailored to your specific needs, rather than a group setting given the risk that you will engage in 'impression management' in the presence of others. It is a further condition of the order that you be supervised by Community Corrections for the duration of the order. I intend, at least initially, to judicially monitor your compliance with the order, and a date will soon be fixed for judicial monitoring before me.
100Pursuant to s 48CA of the Sentencing Act 1991, I direct that all hours that you satisfactorily complete pursuant of the treatment and rehabilitation conditions of the CCO may be credited as hours of unpaid community work. I make this direction to give prominence to the rehabilitation aspect of the CCO.
101Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty, the sentence I would otherwise have imposed is a sentence of 12 months’ imprisonment combined with a community correction order.
102Your offending attracts the provisions of the Sex Offenders Registration Act 2004 and you are a registrable offender. Given you have been found guilty of a Class 1 and Class 2 offence, pursuant to s 34(c)(ii) you are required to comply with the reporting conditions under that Act for life.[29]
[29]In circumstances where Charge 2 – possession of child abuse material was committed as an adult, the reporting periods specified in s 34 apply as if the Act did not contain s 35 (see Note to s 34).
103Finally, I make the forfeiture order sought by the prosecution, noting that it is not opposed.
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