Director of Public Prosecutions v Huan (a pseudonym)

IN THE COUNTY COURT OF VICTORIA

AT Shepparton sitting at Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

LIAN HUAN (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE HOGAN
WHERE HELD:	Shepparton sitting at Melbourne
DATE OF HEARING:	27 May and 27 July 2022
DATE OF SENTENCE:	11 August 2022
CASE MAY BE CITED AS:	DPP v Huan (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 1551

REASONS FOR SENTENCE
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Subject:
Catchwords: One charge of indecent act with a child under the age of 16 years (rolled-up charge comprising three offences) and one charge of sexual penetration of a child under the age of 16 years (rolled-up charge comprising three offences) – offending dating back to 2015 at which time the offender was aged 17 years and 8 months and the victim was aged 12 years and 9 months – offender was on bail and living in South Australia and breached bail by travelling to Victoria where he had arranged to stay with the victim at a caravan park – offences committed over a period of 5 days whilst at the caravan park – offender as a 17 year old had committed offences of a sexual nature involving children in South Australia and been diagnosed there in 2017 as having a non-specific paraphilic disorders and a narcissistic personality style with a high degree of psychopathology which would potentially be challenging to treat – offender sentenced in Sought Australia in the adult court system to a term of 3 years and 6 months with a Non-parole period of 2 years and 3 months (11 months of which was served in an adult prison) – offender also underwent a total of 3 years of supervision orders in the community after completing his prison sentence as well as hundreds of hours of group and some individual sex offender treatment – offender subsequently diagnosed in 2020 with Autism Spectrum Disorder and found to have been previously misdiagnosed – offender engaged voluntarily in further psychotherapy for 2 years and 6 months with treating psychologists – rehabilitative gains made by offender now considered to be at low risk of re-offending if continues psychotherapy – Delay – anxiety and depression plus rehabilitation during period of delay – no further offending in almost 7 years – pleas of guilty – remorse – offender was a child at time of offending and is currently a youthful offender – s.6AAA declaration: 2 years imprisonment with a non-parole period of 1 year
Legislation Cited: Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic).
Cases Cited:R v Verdins (2007) 16 VR 269; Bugmy v The Queen [2013] HCA 37; Azzopardi v The Queen [2011] VSCA 372; Worboyes v The Queen [2021] VSCA 169.
Sentence: Convicted and sentenced to a Community Corrections Order of 5 years with special conditions of supervision, assessment and treatment for mental health, offence specific programs and 300 hours of unpaid community work.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D Hogan	Solicitor of Public Prosecutions
For the Accused	Mr J Marcus	Nelson Brown Legal

HER HONOUR:

1Lian Huan [1], you have pleaded guilty to one charge of committing an indecent act with a child under the age of 16 years. This is a rolled-up charge comprising three offences committed between 29 September 2015 and 3 October 2015. This offence carries a maximum penalty of 10 years’ imprisonment. You have also pleaded guilty to one charge of taking part in an act of sexual penetration with a child under the age of 16 years. This is also a rolled-up charge comprising three offences which took place over the same period of time as Charge 1. This charge also carries a maximum penalty of 10 years’ imprisonment.
[1]        A pseudonym
2The circumstances of your offending are detailed in the summary of prosecution opening for plea hearing (Exhibit “A”). You were born in January 1998 and at the time of offending were aged 17 years and 8 months. Your victim was born in December 2002 and was aged 12 years and 9 months at the time of offending.
3Approximately two to three months before you committed these offences you had connected with your victim via a social media application called “Kik”. Your victim had a profile with his username and photo. Your profile had the Anglicised first name by which you are known, “Trevor”[2], and your surname, as well as your username and a photo. You instigated contact with the victim and told him that you had seen him on a teen dating website and had tracked him down. The two of you chatted on Kik for a time and your victim told you that he was 12 and you told him that you were 16. After a while, you asked for the victim’s Facebook details, which he supplied to you, and the two of you ceased contact on Kik and continued to chat on Facebook on a regular basis. Within the first week of you having contacted the victim, you told him that you were interested in him, that you “loved” him and discussed meeting up. You suggested that you should visit your victim during the school holidays, to which he agreed. You specifically asked your victim whether he wanted to have sex, suggesting both oral and anal penetration, and your victim stated, “no way”, and pointed out that it was illegal. However, you said that it was not illegal. You also asked your victim to pull down his pants and show his penis to you and to send explicit photographs to you. Your victim showed you his stomach “live” over Skype and also sent you a photograph of his stomach. I here interpolate that this conduct was the subject of a charge for which you have been sentenced already in South Australia, namely, inducing a child to expose himself, which was aggravated because the child was under 14 years.[3] The contact between yourself and your victim from the time you first connected with him was relied upon by the prosecution as uncharged grooming behaviour by you prior to the actual offending to which you have pleaded guilty. It is appropriate to note that you were also sentenced in South Australia for breaching your bail by, amongst other things, having travelled to Victoria on 29 September 2015 in order to meet your victim.[4] The sentencing Judge in South Australia, His Honour Judge Chivell, stated “Your behaviour in breaching bail and grooming the boy in Victoria indicates there is also a strong need for personal deterrence in the sentence I impose.”[5]
[2]        A pseudonym
[3]Exhibit “B”, sentencing remarks of His Honour Judge Chivell in R v STL, 11 May 2017 page 1 (dot point 6) and at page 5 (dot point 3)
[4]Exhibit “B” (op cit) page 1 (dot point 3) and page 5 (dot points 5 and 6)
[5]Exhibit “B” (op cit) page 4 second last paragraph
4You booked a cabin at a caravan park in proximity to a town where your victim lived. You used your father’s credit card and it was made in your own name, Trevor Huan. The booking was for the five days over which the offending was committed, namely Tuesday, 29 September 2015 to Saturday, 3 October 2015, and your booking specifically requested to change the double bed into a queen size one, noting that “we only need one bed”.
5The parents of your victim were separated. A couple of weeks before the September school holidays your victim asked his mother whether, during the holidays, he could stay with her (rather than with his father with whom he usually lived) as his friend, Trevor, was coming to the area. In response to a question from her, your victim stated that you were 15 years old and your victim’s mother consented, assuming that you were coming to the area with your family.
6You arrived in the area where you had booked the cabin by bus at approximately 7:00pm on 29 September 2015 and your victim met you upon arrival, after which you went to pick up pizzas and took them to the cabin.
7On the first night, after the victim had taken a shower in the cabin, he was unable to locate his clothes and you told him that he did not need them. You both lay on the bed in the cabin and you asked whether you could touch your victim’s penis and proceeded to masturbate it with your hand. (This is the first indecent act comprising the rolled-up charge, Charge 1.) You then put the victim’s penis in your mouth. (This is the first act comprising the rolled-up charge, Charge 2.) You then had your victim masturbate your penis after which you ejaculated onto the bed. (This is the second incident comprising the rolled-up Charge 1.)
8The next occasion upon which you offended involved you removing your victim’s clothes to which your victim objected. He told you to get away from him, but stated that he then “calmed down a bit” and you then masturbated his penis. (This is the third act comprising the rolled-up charge, Charge 1.) After that, you, again, placed your victim’s penis in your mouth. (This is the second incident comprising the rolled-up charge, Charge 2.)
9On a third (and separate) occasion in the cabin, you asked your victim to perform oral sex upon you and your victim complied. Your victim then permitted you to place your penis in his mouth. (This is the third incident comprising the rolled-up charge, Charge 2.)
10The victim’s mother met you in person on Thursday, 1 October 2015. She described you as “very shy and polite”. In the light of the fact that the victim’s mother had met you, your victim’s father agreed that your victim may stay with you until you returned to your home. You left the caravan park on the morning of 3 October 2015 and told the victim that you wanted to meet up with him again over the next school holidays, to which the victim gave a non-committal reply.
11Prior to you leaving to go to Victoria, you were on bail in South Australia relating to charges of sexual assault of children to whom you had been giving piano lessons. Whilst you were absent in Victoria, the South Australian Police executed a search warrant at your address, where they located evidence in your diary and on your phone, which revealed your contact with your Victorian victim. There was also evidence relating to your travel to and from Victoria, as well as instructions relating to access to the cabin which you had booked at the caravan park in Victoria. South Australian Police contacted Victoria Police who, in turn, contacted your victim’s father. In response to questions from his father, your victim made disclosures of your offending, which were reported to police. Your victim then blocked you on social media and deleted the messages which had taken place between the two of you. Subsequent to your offending, a miniature love letter ordered on the internet arrived from you to your victim on 14 September 2015 (even though the stamp on the electronic letter indicated it had been mailed from the United States). The envelope in which the miniature electronic love letter had arrived was marked “from your caring one” followed by GPS coordinates. Police subsequently related those GPS coordinates to your home in South Australia.
12Shortly after returning from Victoria to your home in South Australia, on 5 October 2015, you were arrested and charged with a number of further offences which had been committed by you in South Australia 2015, when you were 17 years old. The totality of your offending in South Australia comprised the following: One victim who had been your piano student was a 14 year old boy whom you had kissed on the lips. You then masturbated his penis and performed fellatio upon him, telling him not to tell his parents. This had occurred on 7 August 2015. Another of your piano students who was only nine years of age had been touched by you on his penis on three occasions between the period of 1 April 2015 and 7 August 2015. You had been given bail for these offences on 8 August 2015 but breached a condition of your bail on 27 September 2015 by giving piano lessons to two girls aged nine and 15 years and, also, as previously stated, by travelling to Victoria on 29 September 2015. In addition, when you had been first arrested in South Australia on 7 August 2015, various electronic devices were found to contain a quantity of child pornography involving children under the age of 14 years. Of most concern were 76 images in Category 4 which involved penetrative sexual activity between children or between children and adults and seven images in Category 5 which involved sadism, bestiality, humiliation or child abuse.[6]
[6]Sentencing remarks of his Honour Judge Chivell
13You pleaded guilty to a number of offences in the District Court of South Australia at Adelaide. The totality of the offences were as follows: two counts of aggravated indecent assault relating to you having been in a position of authority as a music teacher of your victim, one count of unlawful sexual intercourse with a person under 17 years, one count of aggravated indecent assault between 1 April 2015 and 7 August 2015 (the aggravating feature being that the victim was under the age of 14 years), breaching a bail agreement on 27 September and 29 September 2015, possessing child pornography on 7 August 2015, which was an aggravated offence because the children depicted in the pornography were under the age of 14 years, and inducing a child to expose himself in September 2015, which was also aggravated because the child was under 14 years of age. (As previously mentioned, this charge related to your Victorian victim.)
14Although you were 17 years old when you committed all of the offences in South Australia, on 18 July 2016 the Youth Court had ordered that you be dealt with as an adult. You had been kept in Youth Detention for 1 year and 4 months from October 2015 (the date of your arrest) and were then transferred to an adult prison by order of the Youth Court in February 2017. By this stage, you were aged 19 years. You were ultimately sentenced in May 2017 to a total effective sentence in South Australia of 5 years, reduced by 30 per cent for your pleas of guilty to 3 years and 6 months, with a non‑parole period of 2 years and 3 months, commencing from the date of your arrest on 5 October 2015. You served 11 months of that sentence in an adult prison after having been transferred from Youth Detention on 23 February 2017. The Court also made an order that you comply with reporting conditions under the Child Sex Offender Registration Act 2006 (South Australia).
15You were released on parole in South Australia in December 2018 and your head sentence expired in April 2019 without any incidents. Upon completion of your sentence, the Attorney‑General for South Australia made an application that you be placed on an Extended Supervision Order pursuant to the Criminal Law (High Risk Offenders) 2015 (South Australia). Having been on an Interim Extended Supervision Order since the expiry of your parole in April 2019, the application came before the Supreme Court in South Australia in April 2020, at which time you consented to an Extended Supervision Order for a period of 2 years from that date. According to your counsel, you completed that Extended Supervision Order with only one incident which resulted in you failing to report for supervision due to some miscommunication between yourself and your supervisor over the telephone during the time of COVID-19 restrictions and lockdown. When this failure was brought before the Parole Board, the breach of the order was found proven and you were released without any further order.
16You are now aged 24 ½ years and come before the Court with no prior criminal history or subsequent criminal history albeit that, obviously, subsequent to the commission of the offences for which I must sentence you, you were sentenced in May 2017 in South Australia for the offences against your piano students and for possession of child pornography, which had been committed prior in time to the offending for which I must sentence you, as well as the offences of breaching bail and inducing your Victorian victim to expose himself.
17The offending for which I must sentence you, by its very nature, is serious. The law provides special protection to children from being exposed to sexual activity before they have the maturity to be able to understand the complex nuances and ramifications of such activity. Although there is no victim impact statement from your victim, the VARE provided by him to police in October 2015 shows a vulnerable young victim who told police he did not really have many friends at school,[7] and who seemed to be flattered by the fact that you liked him.[8] However, he also appears to be confused as to the nature of the relationship that you were interested in pursuing with him. When asked by police whether, from his point of view he thought it was a physical sexual relationship, he answered, “I s’pose”. When asked whether it was just a friendship or “something a little bit more”, he answered, “to be honest, a bit of both I s’pose …”[9] However later in the interview he told the police that, prior to you arriving to meet up with him, you had raised the question of sexual contact and he had said “no” and told you that it was illegal and then went on to state that he did not want to be romantically involved with you[10] and when you first “sucked (his) dick” he asked “what are you doing?”[11]
[7]Q and A 57
[8]Q and A 69
[9]Qs and As 66 to 68
[10]Q and A 98
[11]Q and A 207 to 208
18Your victim told police that he felt very uncomfortable talking about what had happened between the two of you and regretted that he had given you oral sex. He appeared not to know the meaning of the word “ejaculate” albeit that he did know what happened when a penis became excited.[12] He also told police that he expressed concern when you had taken his clothes away whilst he was in the shower and when you first went to touch him, he told you to “get away from me” and then “sort of calmed down a bit”.[13] He expressed ambivalence about your suggestion of meeting up with him again in the December or January school holidays and stated that at the time, he did not know whether what had happened meant that it was a relationship between the two of you.[14] He stated that he later deleted the Facebook messages between the two of you[15] but did not tell anybody about what had happened between the two of you because “that would create drama”.[16] When asked what he thought of you coming over to Victoria, he stated “I didn’t want any sexual contact at all, really.”[17]
[12]Qs and As 242 to 252
[13]Qs and As 225 and 260 to 261
[14]Qs and As 301 to 305
[15]Q and A 167
[16]Qs and As 319 to 320
[17]        Qs and A 333.
19Courts must make it abundantly clear in cases like this that children are entitled to the protection of the law and they are not to blame for their involvement in offending perpetrated by others.
20There was plainly a five year chronological age disparity between the two of you and, generally speaking, the emotional and physical maturity between a 17 year old and a 12 year old would be considered quite significant. There is a presumption of harm to children who are offended against in the way that you offended against your victim and the application of the predominant sentencing principles of denunciation, general deterrence and protection of the community usually would warrant an immediate custodial sentence.
21It is plain from the reasons for sentence given by his Honour Judge Chivell in 2017 that he was “assisted by the psychiatric report prepared by Dr Watson”. This was a report dated “January 2017” by Dr Marshall Watson, a forensic psychiatrist with “SA Health, CAMHS Eastern Region, with the Government of South Australia.”[18] Dr Watson had obtained his Fellowship of the Royal Australian and New Zealand College of Psychiatrists four years prior to the year of the report, namely, in 2013. He had attained Advanced Certificates in both Child and Adolescent and Forensic Psychiatry two years prior to the date of the report, namely, in 2015. Dr Watson’s report was based on three appointments with you on 2 December 2016, 17 January and 19 January 2017 respectively, although he noted that he had “previously been involved in Mr Huan’s psychiatric care whilst he has been in custody.” Dr Watson ultimately formed the opinion that you had anxiety-based symptoms, but not necessarily an anxiety disorder. He considered that you had an unspecified paraphilic disorder and displayed features consistent with a Cluster B personality structure (victim aggression and serious violation of rules) and showed elements of entitlement, interpersonal exploitation and superficial levels of empathy towards others. He expressed concern that you had features suggestive of a narcissistic personality style, with concerning personality traits. He did not believe that you had any medical condition that would explain your pattern of offending and nor did he accept that the offending in South Australia occurred as a result of cultural differences, your sexuality and lack of understanding of age of consent and Australian law. He stated that although you reported remorse, the South Australia offences were opportunistic, brazen, escalated and repeated. He considered that long term you presented a moderate to high risk of reoffending without treatment and supervision. He recommended psychological therapy whilst in custody and noted that you had not received treatment relating to your sexual offending. He recommended that you should participate in a dedicated sex offender treatment program and stated “ideally he should be engaged in both psychological and potentially pharmacological therapy”. He noted that you should not be allowed to associate or work with children and should be supervised in the community.[19]

[18] Exhibit “5”
[19]Exhibit “5”, page 14 to 15, paragraphs 96 to 103
22His Honour Judge Chivell appears to have accepted Dr Watson’s views to which he referred in his sentencing remarks. He also expressed concern that, after your apprehension, you continued to initiate inappropriate behaviour towards other inmates while you were in youth detention and that was why you had been transferred to adult detention. He noted that you did not appear to fully understand the gravity or seriousness of your behaviour. For these reasons he considered it appropriate that you should be sentenced as an adult. He noted Dr Watson’s opinion that you continue to present a risk to the safety of children and, although you had not undergone any treatment, Dr Watson’s report did not give much cause for optimism that it would be successful.
23It would appear that the views of Dr Watson to which I have just referred were simply accepted by those involved in either treating or preparing reports upon your progress in South Australia over the ensuing couple of years. In particular, a report prepared by Nuala Billing, Senior Clinician, Rehabilitation Programs Branch, Department for Correctional Services South Australia, and reviewed by Stacey McCallum, A/Manager, Rehabilitation Programs Branch, Department for Correctional Services South Australia, dated 14 December 2018, appears to be premised upon the assumption that Dr Watson’s assessment and diagnoses prior to you having been sentenced were correct and were reinforced in your treatment.[20] The author noted that your online persona was such as to result in you hiding your true self and your online activities were antisocial and narcissistic.[21] The author also noted that you used “masks” to emotionally manipulate others and, in particular a “know it all mask” to “show off” and “make people admire me therefore like me”.[22] The author supported your being placed on an Extended Supervision Order on the basis of your risk status and outstanding treatment needs, noting that your expected date of release in October 2019 did not give you sufficient time under supervision to demonstrate longer term behavioural change.
[20]Exhibit “4”, page 2, lines 42 to 45
[21]ibid lines 27 to 29
[22]ibid page 10, lines 3 to 7
24In relation to an application to have you placed on an Extended Supervision Order, a further psychiatric assessment was conducted by Dr Paul Furst, consultant forensic psychiatrist, and embodied in a report dated 30 August 2019 addressed to the Deputy Registrar of the Supreme Court of South Australia (Adelaide).[23] It is noteworthy that for the purpose of preparing the report, Dr Furst had access to the report of Ms Billing (Exhibit “4”) and what would also appear to be the report by Dr Watson (Exhibit “5”) to which he assigns a date of 19 January 2017 (albeit that Exhibit “5” is simply dated “January 2017” although the body of Dr Watson’s report reveals that the third of his formal appointments with you took place on 19 January 2017).
[23]Part of Exhibit “3”
25Dr Furst expressed concern that you insisted that you were not attracted to prepubescent children, yet four years earlier you had been found to have “large collection of child pornography”.[24] He also expressed concern about your “minimisation and denial” of the offending relating to online grooming of your 12 year old Victorian victim “as merely being in love and ignoring the boy’s age”.[25] However, Dr Furst’s report was not as condemnatory of you as that of Dr Watson had been. He considered that the issue of whether you are attracted to post pubertal minors was unresolved and he did not believe that you met the criteria for psychopathic personality disorder. He described you as having “a somewhat narcissistic presentation” but thought that you had mellowed somewhat since your time in juvenile detention and noted that you did not have a history of substance abuse and were not a violent offender. He noted that you reported, at that stage, being in a mutually agreeable intimate relationship with another young man and that there had been an improvement in the relationship with your parents, which had been identified as one of the factors which caused you to isolate yourself and engage with an online world. He considered both of these factors would seem to be a positive step forward and that you presented as engaging and engaged in your future and willing to have further rehabilitation.
[24]Exhibit “3” page 8, paragraph 9.5
[25]ibid page 10, paragraph 11.3
26Although Dr Furst did not consider that the progress that you had made since you saw Dr Watson in juvenile detention was complete, he stated that this was not a reflection upon you but really a reflection that you had had relatively little time out in the community. He considered that the level of risk of you sexually reoffending would remain high until you had spent a period of time in the community under supervision.[26]
[26]Exhibit “3” pages 10 to 11, paragraphs 11.4 to 11.6
27In an addendum psychiatric report dated 12 October 2019,[27] Dr Furst outlined a number of conditions proposed to be attached to the extended supervision order which had been flagged as likely to be contested by you, primarily related to remote monitoring, contact of persons under 17 years of age, declaration by you of electronic devices and inspection and monitoring of such electronic devices. He expressed the view that such conditions would have significant impact upon reducing the risk of your reoffending and, if such conditions were not in place, then your risk of reoffending would be substantially higher. He further opined that your opposition to such conditions “shows poor insight and therefore the importance of maintaining external controls in order to reduce (your) risk of reoffending.”[28]
[27]Part of Exhibit “3”
[28]Report of Dr Paul Furst 12 October 2019 (part of Exhibit “3”), page 4 under heading “Opinion”, paragraphs 2.1 and 2.2
28This matter came before me by way of a plea hearing on 22 May 2022, with Mr Marcus of counsel appearing on your behalf. On that occasion submissions were made on your behalf which depended to a significant degree upon the opinions of two psychologists who had been treating you over the last couple of years. Tendered in evidence on that day were four reports from Ms Tracey Morrell, clinical psychologist, dated 28 July 2020, 17 November 2020, 27 June 2021 and 14 November 2021.[29] You had been referred by your general practitioner, to Ms Morrell for assessment and treatment because, as you told her during the initial consultation on 27 February 2020 you were seeking assistance because you wanted someone to help you because you felt that no one understood you and you wanted to continue with your rehabilitation. You thereafter engaged in regular therapy sessions with Ms Morrell. She stated that she had suspicions from early on that you had been incorrectly labelled by Dr Watson in his January 2017 report as having a high degree of psychopathology and traits suggestive of narcissism with concerning personality traits and, later, by Dr Paul Furst who, although of the opinion that you did not meet the criteria for a Psychopathic Personality Disorder, found you to have a somewhat narcissistic presentation. Ms Morrell disagreed that you had narcissistic or antisocial personality traits or a psychopathic personal style.
[29]Exhibit “2”
29Ms Morrell stated that she “would exercise great caution in ascribing such conditions to a 17 year old (with developmentally incomplete brain formation) from an Asian culture, whose first language is Mandarin without first seeking information from informants who understood the Chinese culture.”[30] She considered that you may well have an undiagnosed Autism Spectrum Disorder which underpinned your offending behaviour. Accordingly, in order to validate her assessment and to eliminate cultural and language factors as confounding variables, she conducted an assessment in collaboration with a forensic psychologist, Dr Loraine Lim, who was raised in a Chinese family and culture and who speaks several Chinese dialects (relevant to your case, Mandarin) and is also an accredited assessor of Autism Spectrum Disorder in South Australia.
[30]Report of Tracey Morrell, registered clinical psychologist, dated 27 June 2021, part of Exhibit “2”, page 26.
30At the hearing on 27 May 2022, two reports from Dr Lim respectively dated 25 August 2021 and 18 May 2022 were tendered as Exhibit “1”. Dr Lim took a history that you were born in China, the only child of your parents. When you were four years of age you travelled with them to live in Sydney and then returned to live again in China at the age of eight years and then, again, returned to live in Australia when you were about 15 years of age. She recorded that you reported that your parents were in a chronically unhappy marriage, with a 16 year age gap between them. In China you had seen little of your father who was working in Beijing, away from where you were living. Your mother had a volatile temper and suffered from chronic depression and subjected you to a range of physical and psychological abuse from a young age. She was domineering, emotionally labile and subjected you to corporal punishment such as pinching you until you had bruises all over your legs, caning and scratching you, and that this continued until you returned to live in Australia in your mid-teens.
31You have an elite intelligence, with a full scale IQ in the 98^th percentile, and were a musical prodigy with perfect pitch which enabled you to play the piano at a very sophisticated level. Your mother would force you to practise for many hours per day. In addition to undertaking your school studies, your mother pressured you into undertaking piano exams and winning prestigious competitions in order “to get her money’s worth (from) you.” At times when she was displeased with you, she would not speak to you for days on end and you would cower and cry in your bedroom. You were not permitted to socialise in any significant way and became very isolated. Your poor socialisation was compounded by you struggling with Mandarin and literacy skills and experiencing difficulty speaking in a native accent, which resulted in you being bullied extensively at school.
32When you returned to Australia to live in Adelaide, you were enrolled at a secondary school with a gifted students program. This began another difficult period of psychological maladjustment for you. Your mother had instructed you that “if you don’t want to be bullied by white people, you have to boast about yourself to them. That’s how you’ll get liked by others.” This was in contrast to what you had been told by your mother about socialising with the Chinese community, namely that you should be modest and self‑effacing about your achievements. You told Dr Lim that you took your mother’s advice literally. Perhaps unsurprisingly, this did not assist your socialisation process. Indeed, you told Dr Lim that, when you engaged with Dr Watson in 2017, you wanted to present a good image so “just told him what sort of things a Chinese kid might say to an adult which is what you’ve achieved in life and what you want to achieve in the future.” Again, when assessed by Dr Paul Furst in 2019, you told Dr Lim that you “just agreed to everything and told him the things I thought he wanted to hear. I wanted to give him a good image.”
33Ultimately, Ms Morrell confirmed that you did have a diagnosis of Autism Spectrum Disorder as well as a Persistent Depressive Disorder (dysthymia) with intermittent episodes of Major Depression. She also noted that the subject of sex “remains a largely taboo topic of discussion with the Chinese culture”. Your parents had never discussed this with you, you recalled one lesson of human biology in which the body parts were identified, and when you were about 12 years old, you became aware of what sex was by watching pornography and experimenting with other male students at school. You reported that this was common in China and that, on regular school camps between the ages of 10 and 14, there was homosexual touching between boys which was very common. In your teens you had mentioned to your mother that you thought that you might be more sexually interested in males than females and your mother treated this as a “joke” and told you that “in that case, you can remain single for the rest of your life.” Dr Lim noted that homosexuality was something frowned upon in the Chinese culture, which further added to your confusion, anxiety and isolation.
34Dr Lim confirmed Ms Morrell’s concern, that you were not suffering from a personality disorder but, rather, a previously undiagnosed Autism Spectrum Disorder and she expressed the opinion that there was a clear and direct nexus between this disorder, cultural factors and your offending behaviour.[31]
[31]Dr Lim’s report dated 18 May 2022 (part of Exhibit “1”) page 11
35Mr Marcus relied upon the reports of Ms Morrell and Dr Lim in support of the application of the principles in Verdins case. At the hearing on 27 May 2022, Ms Hogan for the prosecution stated that, although the prosecution conceded on the basis of Ms Morrell’s and Dr Lim’s reports that you have now been diagnosed with Autism Spectrum Disorder, none of those reports adequately established the connection between that disorder and what had been described by their authors as “the concomitant theory of mind deficits”, cultural factors and your offending behaviour. Moreover, it was only at this hearing that this Court was supplied for the first time with a substantial amount of material by way of historical psychiatric and other reports which had been made available to Ms Morrell prior to her first report. In these circumstances, the matter was adjourned part-heard for further plea hearing on 27 July 2022 in order for your legal representatives to obtain, amongst other things, supplementary reports from Dr Lim and Ms Morrell. I also asked that each party file written submissions on the applicability of the principles in Bugmy v R[32] and further submissions on the applicability of all limbs in Verdins case after all supplementary reports had become available.
[32][2013] HCA 37
36On the date upon which I adjourned the matter for further hearing, I also ordered that you undergo an extended assessment to determine whether you may be suitable for a Community Correction Order, noting that an order made in Victoria would not be able to be monitored in South Australia, however, you had indicated to the Court a preparedness to move to Victoria in order to continue your rehabilitation under a Community Correction Order if the Court was minded to sentence you to such an order.
37On the date of the adjourned hearing, 27 July 2022, on your behalf a further report from Dr Lim dated 5 July 2022 was tendered as Exhibit “8” and two further reports from Ms Tracey Morrell, respectively dated 30 June 2022 and 12 July 2022, were tendered as Exhibit “9”.
38In her most recent report dated 5 July 2022, Dr Lim noted that she had conducted a diagnostic assessment of you (with your clinical psychologist, Ms Morrell, observing) over a period of 1.5 hours on 25 June 2022. She confirmed the outcome of her assessment, namely, that you do present with an Autism Spectrum Disorder and meet the required criteria of the DSM-5. In particular, she noted that you suffer persistent deficits in social communication and social interaction across multiple contexts. These include deficits in social-emotional reciprocity such as difficulty initiating and maintaining conversation unless it is on a topic in your realm of interest, having been a socially shy and awkward child who may be overly trusting and had no sense of danger unless explicitly taught, and being extremely literal in your interpretation of language and displaying an ongoing level of immaturity that was not commensurate with that of your same age peers. It also included deficits in non-verbal communication behaviours, such as appropriate eye contact, exhibiting a restricted range of emotional affect and, at times, maintaining a smiling affect which was inappropriate to the context and historically having struggled to identify subtle emotions in others. Your deficits also involved a difficulty in developing, maintaining and understanding relationships. This had manifested itself in historically being somewhat detached from your family unit, being a loner as a child, spending hours on your computer or reading or watching Asian martial arts shows, rarely playing in an imaginary way, rarely being invited to parties or having friends and reportedly being a very anxious child.
39Dr Lim also stated that you met the criteria for restrictive, repetitive and stereotypical patterns of behaviour, interests or activities. This included repeatedly using phrases such as “it depends” or “I'm not sure”, speaking in a monotone voice and displaying rigid body language. It also included a need for consistency and inflexible adherence to routines such as always sitting in the same spot at the dinner table, having your food presented in a particular way or using the same set of utensils. Also, when travelling, you would always take the same route, such that any deviation from routine would trigger anxiety and a sense of insecurity. Further, you met the criteria for highly restricted, fixated interests such as an obsessive collection of certain items such as empty boxes or mechanical or electrical objects, and she noted that, a child, you had spent a great deal of time lining up toys and organising and reorganising your books. Further, you demonstrated hyper or hypo reactivity to sensory input. This manifested itself by a startled response to loud noises and hypersensitivity to a range of strong smells. You had had a vocal tic as a child which is still present, albeit less prominent in adulthood. You also had an extreme dislike of water, which meant that you had to be prompted to take showers, and still, on occasions, need such reminders.
40Dr Lim concluded that your symptoms had been present in the early developmental period and resulted in significant impairment in a range of important areas of functioning, including social and occupational areas. She further concluded that your disturbances are not better explained by an intellectual disability. She stated that in all of these circumstances, you meet the diagnostic criteria for Autism Spectrum Disorder. Dr Lim recommended that you continue with your psychological therapy sessions with Ms Morrell to help improve your emotional and social skill deficits. She considered that you may be eligible for a Disability Support pension through Centrelink or may benefit from assistance to access supported employment in the community.
41In Ms Morrell’s report dated 30 June 2022, she confirmed her opinion that you were misdiagnosed in South Australia by the health practitioners with whom you were involved prior to being sentenced on 11 May 2017. She expressed her concern that it appears that very little consideration was given to your culture, which she described as forming best practice from a clinical treating standard. I here interpolate that the report of Dr Watson, psychiatrist, dated January 2017, makes reference to having spoken with your father for approximately one hour via an interpreter at Adelaide Youth Training Centre,[33] but goes on to dismiss in one short sentence that he does not accept that your previous offending occurred as a result of cultural differences.[34] There is a serious dearth of history in Dr Watson’s report relating to relevant cultural matters, in contradistinction to these having been very extensively canvassed by Dr Lim and factored into her diagnosis, as well as by Ms Morrell who had sufficient professional insight to refer you to Dr Lim who spoke your own language and was very familiar with the mores of Chinese culture in order that this very important consideration, which could so clearly impact upon whether a diagnostic criterion or criteria were met, could be considered.

[33]Exhibit “5”, page 3, paragraph 11
[34]ibid page 14, paragraph 99
42Ms Morrell stated that the misdiagnosis of you as a narcissistic individual with psychopathic tendencies was the basis for you being sentenced as an adult “despite being a child with a pre-existing neurodevelopmental disability, which was present at birth and is considered life long.” She went on to state that “the misfortune for ASD (Autism Spectrum Disorder) offenders, like Mr Huan and their families, lies in the misinterpretation of their criminal contact by neurotypicals, who don’t understand ASD, and accordingly measure the behaviour by neurotypical standards.” She commented that your past involvement with the criminal justice system had resulted in her having to spend time with you in therapy “trying to rebuild this young neuro-atypical man’s sense of self and self-esteem.” She went on to opine that, despite being chronologically aged 17 years at the time of offending, your social and emotional maturity would have been significantly impaired and delayed at that time. She said such impairment was one of the reasons why individuals with autism seek out younger peers (such as you did with your victim in Victoria) because of the closer alignment with a younger peer’s social-emotional maturation. She stated that, as a result of being poorly understood from a criminal justice perspective, you were sentenced to an adult prison where you reported having been raped on numerous occasions by other inmates. She stated that this can be a common situation where a person with Autism Spectrum Disorder does not understand the custodial and societal, social and non-verbal nuances and lacks the social skills to deal with conflict or inappropriate behaviour when it arises.
43Ms Morrell noted that, whilst incarcerated at Port Lincoln Prison for your sexual offending, you had undergone expert treatment via the SBC (Sexual Behaviour Clinic) program totalling 215.5 hours of group therapy and 16.65 hours of individual therapy. She stated that this program was designed for neurotypical offenders and not Autism Spectrum Disorder offenders and, accordingly, your Autism Spectrum Disorder antecedence had not been addressed. She further noted that, although there was a Sexual Behaviour Clinic program for intellectually disabled sexual offenders in South Australia, there was not one for an Autism Spectrum Disorder sexual offender. She considered that your ASD traits were misjudged and led to facilitators formulating an inaccurate picture of you and forming the view that an Extended Supervision Order was indicated because you were at very high risk of reoffending. She stated that during the three year period (which comprised an interim Extended Supervision Order and a formal two year extended supervision order which expired in April 2022) you had again been poorly understood by those whom you encountered.
44Ms Morrell went on to note the significant impact of delay, in dealing with the Victorian offending which had had an adverse effect on you psychologically and medically. She noted that you have now developed a Major Depressive Disorder requiring the introduction of SSRI antidepressant and sleep medication. In addition, you had been subject to significant anxiety and stress because of the delay and have also been diagnosed with Type 2 diabetes. She commented that there is some evidence to suggest a link between stress and the risk of onset of diabetes.
45Ms Morrell noted that, since you had commenced consulting with her in 2020, you have seen her approximately three-weekly for a total of 31 sessions and that such treatment had been ongoing, even though your Extended Supervision Order had expired at the end of April this year. She stated that you had had seven sessions with a Mr Elmer whilst in custody but this was not tailored to your Autism Spectrum Disorder diagnosis, whereas she in her treatment had focussed extensively upon that and had witnessed a significant positive change in your mindset as well as addressing the recommendations made in the Sexual Behaviour Clinic report and those of Dr Furst but had tailored those recommendations to your Autism Spectrum Disorder diagnosis. She considered that you had responded well to clinical psychotherapies for your Autism Spectrum Disorder diagnosis and your offending and she detailed 16 core elements of what her therapy had involved. She considered that treatment for your offending was no longer a required major focus and was only discussed if needed, such as in relation to your reporting obligations pertaining to your lifelong status as a registered sex offender under the South Australian legislation (part of the orders made by his Honour Chivell on 11 May 2017) and such things as the pitfalls of online behaviour.
46Ms Morrell stated that the current focus of her psychological management of you is your non-insulin dependent diabetes mellitus Type 2, your mood disorder (depression) and sleep disturbance, which have required pharmacological treatment as well as cognitive behaviour therapy. She was at pains to point out that “it needs to be remembered that having Autism Spectrum Disorder does not increase the risk of reoffending, as most Autism Spectrum Disorder individuals are law abiding people.” Although the disorder and cultural complexities contributed to your offending, she is of the view that you now have insight into the contribution that these factors had and this insight is a significant protective risk factor. She also noted that, since your release from custody, you have either worked or studied and are currently undertaking university studies in architecture and that these are protective factors.
47Ms Morrell’s report, in my view, clearly spells out the way in which Autism Spectrum Disorder and complex cultural adjustment issues contributed to the offending for which I must sentence you. It makes plain the serious adverse effect that your time both in juvenile detention and adult custody had upon you by reason of your inability read emotional and social cues and your literal style of thinking to the point where you now have a Major Depressive Disorder which requires prescription of Sertraline (150 mg), Temazepam and Circadin (4 mg) to help with resumption of a normal sleep pattern which is impacted upon by your mood disorder, which, in turn, is being further impacted upon by the current protracted criminal proceedings. You also need monitoring for your non-insulin dependent diabetes mellitus Type 2 condition which was diagnosed in January this year and Ms Morrell indicates that your condition is under review to see whether diabetes medication is indicated. In addition, you take other medications for idiopathic lichen simplex and for gout.
48I accept the diagnoses of Ms Morrell, supported by Dr Lim, and I accept that your Autism Spectrum Disorder, with accompanying cultural complexities and misunderstandings, have contributed to the offending for which I must sentence you. In particular, I accept Ms Morrell’s opinion that your social and emotional age was significantly delayed at the time of the offending and is likely to have been more congruous with that of your victim, then aged 12 years, than with other 17 year old neurotypical peers. I also accept that incarceration can be cruel for Autism Spectrum Disorder individuals where domination and manipulation play a pivotal role in inmate survival and that, whilst in adult custody, you did become a target for physical and sexual abuse. I further accept Ms Morrell’s opinion that you have an ongoing vulnerability relating to your Autism Spectrum Disorder, as well as your depressive disorder, and that to return you to a prison seven years after this offending will likely expose you to further manipulation and victimisation by other inmates, as well as causing a likely further deterioration in your psychological wellbeing and the progress that you have made since your release from custody in South Australia.[35]
[35]ibid pages 4 to 6
49I must say that in having concluded that I accept the opinion of Ms Morrell and Dr Lim concerning your diagnosis of Autism Spectrum Disorder and its causative relationship to the offending for which I must sentence you, I have been very much assisted by the detailed and highly professional nature of their reports. In Ms Morrell’s case there are five reports spanning the period from 28 July 2020 to 30 June 2022, based upon over 30 professional consultation sessions with yourself, as well a brief report on 12 July 2022 explaining the nature of the social skills training which has been employed for your Autism Spectrum Disorder which will be of great assistance to any future treaters or supervisors.
50Ms Morrell holds very sound qualifications, having commenced her adult career as a teacher for some 16 years and then attained a Bachelor and a Master of Psychological (Clinical) Degree and having practised as a clinical and educational psychologist for some 21 years since, which has included providing rehabilitative and psychological treatment for offenders. She is also accredited by Autism South Australia as an assessor of Autism Spectrum Disorder and is qualified to provide opinions to the National Disability Insurance Scheme.
51Dr Lim has been of assistance in providing three reports dated 25 August 2021, 18 May 2022 and 5 July 2022. She is a nationally registered psychologist and endorsed forensic psychologist who holds a Bachelor of Science (Psychology), a Master of Child and Adolescent Health, a Master of Criminology, a Master of Forensic Psychology and a PhD in Forensic Psychology. She is an accredited Autism Spectrum Disorders diagnostician and treatment provider with Autism South Australia and has been a Fellow of the Australian Psychological Society’s College of Forensic Psychologists since 2008, a Member of the Australian Psychological Society South Australia State Committee since 2012 and is the current State Chair of the Australian Psychological Society South Australian Branch. Dr Lim worked as a public sector psychologist in South Australia for almost 10 years with the court system and for much of that period concurrently conducted a part-time private practice providing medico-legal reports and clinical therapy to individuals involved in the criminal justice system. Since September 2016, she has been in full-time private practice. She is also currently an adjunct senior clinical lecturer in the University of Adelaide School of Psychology.
52Dr Lim’s insights as an experienced psychologist, particularly one who speaks your language of Mandarin and has been raised in a Chinese family and culture, have been of enormous assistance in understanding your complex presentation. I am fortunate to be much better informed by reason of the comprehensive reports from Ms Morrell and Dr Lim than was the case with His Honour Judge Chivell who sentenced you in May 2017.
53I here note that after receiving the subsequent reports of Dr Lim and Ms Morrell which were ultimately tendered on the second day of the plea hearing, 27 July 2022, the prosecution conceded that all six limbs of Verdins case had application to you. The prosecution also accepted Dr Lim’s opinion that, at the time of offending, you were “a socially and emotionally naïve, culturally maladjusted, and sexually confused youth.” Hence, the prosecution conceded that the nexus between your Autism Spectrum Disorder and the offending was established. The prosecution submitted that, hence, there should be moderation in the application of the principles of both general and specific deterrence albeit that neither principle should be eliminated. It conceded that limb six of Verdins did apply to you based on Ms Morrell’s opinion that “a custodial sentence will likely see further deterioration in (your) psychological wellbeing.” I accept those concessions and have taken the mitigatory effect of the principles in Verdins into account in arriving at the sentence which I intend to impose.
54At the adjourned plea hearing, the prosecution also conceded that your childhood circumstances as outlined in the report of Dr Lim could be characterised as profoundly deprived given the psychological and physical abuse to which you have been subjected and, accordingly, your moral culpability should be reduced in line with the principles in Bugmy v R.[36] The prosecution also acknowledged that there had been delay which meant that you had had your fate hanging over your head but had also during the period of delay taken steps towards your rehabilitation by attending therapy on a regular basis, and that you should also be acknowledged as coming within the category of a youthful offender where generally rehabilitation should be afforded importance. These concessions were appropriately made, and I have also factored the mitigatory effect of these factors into the sentencing process. However, the prosecution maintained that you had guarded prospects of rehabilitation and the mitigating factors to which I have just referred should be balanced against the seriousness of the offending involving sexual offending against a 12 year old boy, in accordance with Azzopardi v R.[37]Ms Hogan on behalf of the prosecution submitted that, notwithstanding significant matters in mitigation in your favour, the only appropriate sentence was an immediate custodial sentence involving a head sentence and a non‑parole period. In support of that submission she relied upon the young age of the victim, the fact that there were multiple instances of penetrative offending over a few days and the fact that you were on bail for your South Australian offences at the time of committing this offending. I pointed out to Ms Hogan that you had already been punished for breaching your bail conditions in South Australia by coming to Victoria. Whilst I acknowledge that breach of your bail was an aggravating feature of your offending the Court must be careful to ensure that you are not subjected to double punishment.
[36][2013] HCA 37
[37][2011] VSCA 372 at [44]
55I have already acknowledged the innate seriousness of sexual offending against children and the fact that normally such offending would warrant an immediate custodial sentence. However, what should not be lost sight of is the fact that you, yourself, were a child at the time of this offending.
56I have accepted the opinion of Ms Morrell that, in the light of your Autism Spectrum Disorder, your social and emotional age was significantly delayed at the time of the offence, such that your social and emotional development, although impossible to quantitatively measure, is likely to have been more congruous with the age of your 12 year old victim than a neurotypical 17 year old. Thus, although there are features which, on their face, indicate apparent grooming (part of which have formed the subject of the punishment imposed by the South Australian District Court) and premeditation, I do not believe that they assume such a sinister nature in the light of the complexity of your cultural issues such as abusive background, social isolation, re-arriving in Australia at age 15, and struggling to ascertain your sexual identity, raising that you were attracted to males with your mother who dismissed this as a joke, and being advised by your mother to boast of your achievements to “white” Australians which further served to increase your unpopularity and, indeed, your ultimate misunderstanding by those early professionals who came in contact with you, like Dr Watson.
57These factors should be matters of concern to a sentencing court, given that, in my view, you have suffered damaging and consequences by reason of you being misunderstood and sentenced to adult custody, where you were, yourself, sexually assaulted. Even after completing your non-parole period and your parole period, you were required to undergo a further three years supervision in the community. You have participated in programs for sex offenders whilst incarcerated which were not tailored to your vulnerabilities as someone with Autism Spectrum Disorder, and have ended up suffering a Major Depressive Disorder and sleep difficulties which require medication. In addition, you have had your own formal education seriously disrupted over the intervening period of seven years, and I consider that it is appropriate in this case to exercise mercy in sentencing you.
58You are still a young man, only 24 years of age. As your counsel, Mr Marcus, stated, it is difficult to know what more you could have done to try to rehabilitate yourself. After completing your custodial sentence and consenting to an Extended Supervision Order in 2017 even after it was completed, you continued to engage extensively in treatment via your general practitioner who referred you to Ms Morrell, who has treated you regularly over the past two and a half years, with periodic assessments by Dr Lim. Ms Morrell has been very clear about the gains that you have made in therapy to the point where she considers that it is really your Major Depressive Disorder and general health concerns, including Diabetes Type 2 and a number of other conditions, which need to be the focus of attention, as well as continuing to rebuild your fractured self-esteem.
59In my view, the fact that you have been prepared to relocate yourself to Victoria from South Australia in order to undertake a Community Correction Order (for which you have been assessed as being suitable),[38] shows that you are committed to continuing your rehabilitation.
[38]Exhibit “E”
60Apart from your youth and the emphasis which should be placed upon rehabilitation, you are entitled to credit for the fact that you pleaded guilty to these offences, and the fact that there was significant delay in that you were not charged with the Victorian offences until 2019 (almost four years after the offending occurred) should be taken into account in your favour. Moreover, I regard your pleas of guilty as remorseful ones. There was much discussion in the earlier reports relating to your South Australian offending that you had minimised your offending, but what was never mentioned by anyone in relation to your Victorian offending is that you had actually texted your victim stating that your offending “it is my fault, I’m the one who should be responsible for my action, you are a great guy I don’t want you to be involved”.[39]
[39]Screenshot of a message on the offender’s Facebook page, depositions page 93
61As previously mentioned, you have been assessed for suitability for a Community Correction Order. An extended pre-sentence assessment outcome report authored by Mikeala Morphett, court assessment and prosecution officer and co-signed by her supervisor, Eva Kafkalas, each from Melbourne Court Assessment and Prosecution, dated 19 July 2022, was tendered as Exhibit “E”. In that report the author assessed you as being at medium risk of general re-offending. However, the assessment tool LS/RNR does not assess the risk of sexual re-offending. The author remarked that you have high criminogenic needs relating to your pro-criminal attitudes/orientation, family/marital and lack of leisure/recreation. She noted that the present charges were committed whilst you were on bail for your South Australian offending and that you had breached your bail by not only travelling to Victoria but also providing piano lessons to two young girls. She concluded “Mr Huan has shown a pattern of disregard for Court mandated orders.”
62At the adjourned plea hearing on 27 July 2022 Ms Morphett gave evidence. Under cross-examination from Mr Marcus, she was challenged on her assessment of you being of medium risk of general re-offending, without having used appropriate tools to assess your risk of sexual re-offending. She conceded that she had not undertaken a specific assessment of your risk of sexual re-offending but nevertheless, considered it appropriate to refer you to Forensic Services in order that you be assessed for suitability for a sex offender program. In particular, in her report she had stated that she had in mind specifically, the Better Lives Program (BLP) is a group-based intervention which targets a range of criminal behaviours and risk factors related to sexual offending. However, it is apparent that, because of your Autism Spectrum Disorder, your treating psychologist, Ms Morrell has been critical of the fact that you previously were involved in group-based interventions. This is because of your inability to interpret social cues and communicate in the same way as neurotypical individuals. Ms Morphett conceded that she had not factored in your Autism Spectrum Disorder and that it would be desirable for you to continue with your treatment with Ms Morrell.

63Ms Morphett stated that the scores you had achieved on the tool which she had applied were based on your known criminal history and, her having assigned a score of 3 to an antisocial pattern of behaviour, was a judgment which she had made on information provided to her. When Mr Marcus inquired about the score of 4 (very high) for pro-criminal attitude/orientation, she conceded that this was based on static factors as far as she could recall and noted your dysfunctional family background, although the fact that your mother was no longer living in the household was not something that was factored into her assessment. Ms Morphett also referred to being aware that there were pending charges in South Australia, which she had taken into account, although she did not know specific details of them. When Mr Marcus pointed out that they were matters listed in the Magistrates’ Court in Adelaide in September and pertained to you not having reported the fact that a car was registered in your name as you are obligated to do as a registered sex offender under the South Australia legislation, Ms Morphett stated that she was unaware of this. She was also unaware of the fact that your father had actually undertaken the registration. She also conceded that, in the risk/need profile which you had produced in response to the LS/RNR assessment tool, there was a risk of double counting factors in that your history of re-offending or breaching bail conditions could be counted in both the score for pro-criminal attitude/orientation as well as the score for antisocial pattern. She also stated that, although she was aware that Dr Lim and Ms Morrell assessed you at low risk of re-offending as long as you continue your treatment with Ms Morrell, that had not been factored into her risk assessment because the tool did not provide any specific question that enabled her to do that.
64Although I do not doubt that Ms Morphett was doing her best to master a host of historical material which was quite voluminous, I find that her assessment of you overall having a medium risk of general offending is not particularly helpful in the context of my having to sentence you specifically for sexual offending and I find that the flaws in the LS/RNR tool utilised by Ms Morphett as pointed out in cross-examination undermine the reliability of that result. I prefer the opinion of Ms Morrell who, apart from having had some two and a half years of close therapeutic contact with you, in her report dated 30 June 2022,[40] undertook a careful and critical evaluation of the different tools used for assessing the risk of recidivism. She pointed out the shortcoming of particular tools and concluded as follows:
“Results on both structured professional judgment instruments did not highlight the presence and relevance of any current risk factors including chronicity, diversity, escalation of sexual violence and physical coercion. However Mr Huan is aware that his ASD makes him vulnerable to being hoodwinked or becoming a victim. As stated, safety strategies have been developed. With regard to treatment there was no current evidence to suggest the presence of sexually deviant cognitive distortions.
When combining the psychometric evidence, the best estimation of risk would be moderate, which again inflated by the static factors. Factoring in my clinical opinion would further reduce the recidivism risk to moderate/low, suggesting that psychological treatment has been effective. It is also anticipated that Mr Huan’s level of risk will continue to decrease with time, in the absence of any further sexual offending … since … 2015.”[41]
[40]Exhibit “9”
[41]ibid page 7
65Ms Morrell’s opinion concerning your risk of recidivism is supported by that of Dr Lim, who has had the opportunity of seeing you on multiple occasions over the last two years. Her various reports reveal careful and detailed assessments of your psychological development and cultural factors in your childhood which have adversely impacted upon such development. In her report dated 18 May 2022 (part of Exhibit “1”), she stated: “In my opinion Mr Huan’s risk of recidivism has been significantly mitigated by his motivated and meaningful engagement with Ms Morrell over the past 24 months. They have developed a strong therapeutic alliance, and this has also enabled Mr Huan to feel listened to and understood, and in turn to feel less marginalised within the Australian context. I believe that this is evidence of his significantly improved prospects of rehabilitation and prognosis in comparison to several years ago. In my opinion his risk of further sexual re-offending will remain low for as long as he maintains his psychological treatment with Ms Morrell.”[42]
[42]ibid page 13
66I accept the assessments of your future risk of further sexual offending made by Ms Morrell and Dr Lim, who as I consider to be very well placed to assist the Court with this important factor. I accept that the approach taken by Ms Morrell and Dr Lim is that identified in Dr Lim’s report dated 25 August 2021,[43] where she stated, “I would like to respectfully point out that neither Ms Morrell nor I are seeking to justify or minimise Mr Huan’s offending conduct in the context of our collaboration on this matter. Rather, we are seeking to proffer an explanation for his offending conduct that is based upon a holistic consideration of the range of factors previously identified, which in my opinion, provides the most complete formulation of Mr Huan’s psychological functioning from which future interventions and assessments of his risk of recidivism may be informed.”[44] As I previously indicated, I consider that both Dr Lim and Ms Morrell have approached the assessment of you in a thoroughly professional, careful manner. They are both particularly skilled in dealing with Autism Spectrum Disorder and, whilst acknowledging that there can be some features in common with a presentation of a narcissistic personality disorder and an Autism Spectrum Disorder, both practitioners comment that it was singularly inappropriate for you, as a teenager, to have been diagnosed with narcissistic or other personality disorder given that emotional and executive function and, in turn, personality features do not tend to crystalise until at least the age of twenty-five.[45]
[43]Part of Exhibit “1”
[44]ibid page 11
[45]Dr Lim’s report dated 18 May 2022, part of Exhibit “1”, page 13. See also, report of Tracey Morrell dated 28 July 2020 (part of Exhibit “2”) page 20
67After carefully considering the very significant volume of material before me, notwithstanding the seriousness of the offending (noting that each of the two charges are rolled-up charges involving three incidents of offending) and that the provisions of s6D of the Sentencing Act require you to be sentenced as a serious sexual offender on both of those charges, with protection of the community as the principal purpose for which the sentence is imposed, I am not satisfied that the sentence of last resort, an immediate custodial sentence, is the only appropriate sentence in this case. I have referred to the many mitigatory factors throughout the course of these sentencing remarks but re-encapsulate my reasons for deciding that it is appropriate to place you on a Community Correction Order of some length here in Victoria, since you are now residing here. Those reasons are as follows:
(a)   You were a child at the time of offending with an undiagnosed Autism Spectrum Disorder and a complex and dysfunctional background whereby you were effectively caught between two cultures, the Australian and the Chinese culture, having lived between those countries from the time you were born until you ultimately returned to live in South Australia when you were aged 15 years. This complexity was layered upon by the adverse psychological impact of a largely absent father whilst you lived in China between the ages of eight and 15 years and a highly punitive mother, who appears to have made very little attempt to understand you and simply focussed upon your elite intelligence and superior ability as a pianist, whilst neglecting your emotional welfare and causing you to become increasingly isolated, anxious and confused.
(b)   The offending for which I must sentence you occurred when you were immature and socially, emotionally and culturally maladjusted, as well as being sexually confused. You faced enormous pressure from your parents after you had tried to raise the fact that you were a homosexual and your Autism Spectrum Disorder had yet to be identified and treated. Hence, both your family and the criminal justice system seem to have adopted an attitude that, due to your superior intellect you should have known better and that your actions must have been deliberate and underpinned by a sense of superiority. This is the clear assessment of Dr Lim, taking into account both your Autism Spectrum Disorder and complex cultural factors.[46]
(c)   The evidence relating to your offending against your Victorian victim shows it to have been unsophisticated. I accept Dr Lim’s view that you had largely learned about sexual intercourse by viewing pornography as an adolescent and had mostly likely confused sexual intimacy with emotional intimacy and effectively mimicked what you had seen on movies in terms of relationships. Indeed, you were under the assumption because of what had been told to you by your mother that you were being prosecuted due to being a homosexual instead of the fact that your victims were underage.[47] Your immaturity is manifested in the communications which you had with your victim prior to travelling to Victoria to commit the offences against him. Whilst on one level finding out what he liked and catering to his needs can look creepily premeditated, it is apparent to me and I so find that the lists kept by you of such things are consistent with your need to try and navigate the world whilst having an undiagnosed Autism Spectrum Disorder and wanting someone to like you in circumstances where your emotional age has been assessed as most likely not much more than the age of your victim (12 years) rather than five years older. Further, the fact that you booked the accommodation at the caravan park for you and your victim in your own name (albeit using your father’s credit card) and retained evidence of instructions as to how to access the cabin, along with documents relating to your fares on the bus and the plane travelling to and from Victoria show a lack of sophistication which made detection of your offending very easy. In additions, although the victim deleted the messages between you and himself, you had not deleted any of the messages on your devices. To my mind this is consistent with an immature individual, who actually did not fully appreciate the seriousness of what he had done. Indeed, the text message to your victim after the offending from which I have earlier quoted refers to the serious trouble in which he had found himself in this way, “Even though this is such a hassle, we can talk together, until this is over which is in a few months.”[48] This demonstrates clearly how you under-estimated the magnitude of the serious criminal offending with which you had been charged. I have determined that the material before me of your psychological impairment satisfied the relevant nexus with your offending to reduce your moral culpability and to diminish the usual emphasis that would be placed upon general and specific deterrence.
(d)   Your situation now is very different from what it was at the time of the offending for which I must sentence you. It is important as a matter of totality that I take into account the punishment and mandated supervision which you have already undergone. This comprises the head sentence of 3 ½ years with a non‑parole period of 2 years and 3 months backdated to 5 October 2015. As previously mentioned, 11 months of that sentence was served in an adult prison, where you were sexually violated and bullied on multiple occasions and authorities had no apparent inkling that you suffered an Autism Spectrum Disorder. Following that, you were subjected to an interim Supervision Order for a period of one year and then a formal Extended Supervision Order for a period of two years from 29 April 2020. I accept the adverse effects that the foregoing have had upon you, in circumstances where you were misunderstood because you had been diagnosed as suffering narcissistic personality traits, traits consistent with psychopathy described by Dr Watson as being of “a high degree” and an unspecified paraphilic disorder. It is notable that, although Dr Watson, back in January 2017, thought that you did have anxiety based symptoms, I am unable to find evidence that they were addressed in any way. The net result of your misdiagnosis is that you have undergone hundreds of hours of sex offender treatment, primarily in a group setting whilst in custody but also a number of hours individually which did not cater for your own needs because you had undiagnosed Autism Spectrum Disorder.
(e)   Apart from having undertaken the extensive sex offender treatment whilst in custody as well as on parole and during the three years in total of supervised orders in the community, it is to your credit that you personally attended your general practitioner and arranged for a referral to see Ms Morrell because you were having trouble coping and wanted to understand how your life had ended up this way, what you could do to address it and wanted to be liked by people. By this stage in 2020 it would appear that you had developed symptoms of depression which were later diagnosed as a Major Depressive Disorder requiring significant mood stabilising medication. Further, your education had been severely disrupted. You had not completed your final year of school albeit that you subsequently did so whilst remanded in juvenile detention. Perhaps unsurprisingly your subsequent endeavours to pursue various tertiary courses have been unfulfilling with all that has been going on in your life, particularly given that it was not until almost 4 years after this offending and after having already completed your sentence in South Australia that you were charged with the offending for which I must sentence you. The stress under which you have been living has been very significant for many years.
(f)    You have voluntarily engaged in cognitive behaviour therapy and counselling with Ms Morrell on a regular three-weekly basis since February 2020, as well as having cooperated with multiple assessments by Dr Lim over that period. Both practitioners report positively on the development of your insight into your psychological makeup and offending such that your risk of re-offending has continued to decrease with such treatment which you anticipate continuing via Zoom or video link with Ms Morrell since you have moved to Victoria, I note that for a period during the pandemic restrictions this was the mode by which you had consultations with her. I accept that this treatment has been effective in providing you with strategies to avoid the risk of re-offending and I accept Ms Morrell’s view that there is now no evidence to suggest that you have sexually deviant cognitive distortions.[49]
(g)   You have not re-offended or shown any inappropriate interest in underage children in the almost seven years since you committed the offences for which I must sentence you. I consider that in all the circumstances you have shown a commitment to your rehabilitation, particularly by voluntarily engaging in treatment with Ms Morrell and Dr Lim for so long and also in moving to Victoria in order to make it possible for you to continue the rehabilitative process by undertaking a Community Correction Order in this state, which would not have been an available to disposition had you remained living in South Australia. You have developed a strong therapeutic relationship with Ms Morrell and I accept that you propose to continue your treatment with her.
(h)   I have accepted that your plea of guilty are remorseful, which entitle you to a tangible discount upon the sentence that otherwise would have been imposed. Further, your please were entered during the time of restrictions occasioned by the Covid-19 pandemic which made it almost impossible to run criminal trials in the State of Victoria. For this reason, your pleas hold extra utilitarian weight, which I acknowledge in the sentencing process.[50]
(i) The fact that you were a child when you committed these offences and are still now a youthful offender means that it is high time that, notwithstanding that I must pronounce pursuant to s6D Sentencing Act that the principal purpose for which the sentence is imposed is the protection of the community, there should be emphasis upon your continued rehabilitation, particularly given that I have accepted the evidence of your treating practitioners that a return to custody is likely to be very onerous for you with a repeat of sexual assault and bullying resulting in a likely deterioration of your mental health and an erosion of the rehabilitative gains which you have made to date.
[46]Report of Dr Lim dated 18 May 2022 (part of Exhibit “1”), page 10
[47]ibid page 12
[48]Screenshot from offender’s Facebook account page 92 to 93 of the Depositions
[49]Report of Ms Morrell dated 30 June 2022, (part of Exhibit “9”) page 7
[50] [2021] VSCA 169
68Before pronouncing sentence, I must address the issue of the application by the Director of Public Prosecutions that you be placed on the Sex Offender Register here in Victoria. s11 of the Sex Offenders Registration Act makes such registration discretionary where an offender was under the age of 18 years at the time of offending. A court may only make a sex offender registration order if, after taking into account any matter that it considers appropriate, it is satisfied beyond reasonable doubt that the person poses a risk to the sexual safety of one or more persons of the community.[51] Although it is plain that you have committed serious sexual offences against children in South Australia and also against your victim here in Victoria, all in 2015, I consider that in all the circumstances I cannot be satisfied beyond reasonable doubt that you now pose a real risk to the sexual safety of members of the community as I have accepted that, following the treatment from Ms Morrell, you no longer suffer cognitive distortions of a sexual nature. In any event I have accepted that your offending some seven years ago was at a time when your emotional maturity approximated that of your victim, notwithstanding a chronological age difference of five years.
[51]s11(3)
69In order to determine whether you should become a registrable offender it is necessary for me to balance the risk of you sexually re-offending and the purpose of the Sex Offenders Registration Act with the restrictions imposed on your right to enjoy freedom and autonomy of action. I note that you have been registered for life on the South Australia registry, ANCOR, pursuant to the order Judge Chivell made on 11 May 2017. That order was based on His Honour’s acceptance of Dr Watson’s diagnoses and view as to your poor prospects of rehabilitation, neither of which I share in the light of the host of material to which I have been privy which has come into existence since that order was made. The Victorian authorities are already aware of the fact of your registration on that register as it was necessary for you to notify the South Australian registry of your change of address to Victoria. Having weighed up all relevant considerations, I consider that the restrictions which would be imposed on your right to enjoy freedom and autonomy of action, whilst undergoing a lengthy rehabilitative disposition by way of Community Correction Order which I intend to impose, outweigh your risk of sexual re-offending which I have accepted to be low at the present time. Moreover, the fact that you have re-established a positive relationship with your father and have determined to continue your tertiary study in architecture online with the University of Adelaide with a view to transferring to the University of Melbourne for the academic year commencing 2023, your obvious commitment to continue treatment, your lack of re-offending over almost seven years, and the fact that during that time you have had age-appropriate relationships with no evidence of paraphilic tendencies, together with the insight which you have gained into your own psychological state, cause me to believe that your prospects of rehabilitation are good. For these reasons I do not propose to exercise the discretion to declare you to be a registrable offender pursuant to s11 of the Sex Offenders Registration Act.

70Pursuant to s6D of the Sentencing Act, I cause to be entered into the records of the Court that in sentencing you on both Charge 1 and Charge 2, you are sentenced as a serious sex offender and that the principal purpose for which the sentence is imposed is the protection of the community.
71Mr Huan, would you stand up please?
72On both Charges 1 and 2 you are convicted and sentenced to undertake a Community Correction Order for a period of 5 years. The usual core terms of such an order apply and are as follows:
(a)   You must not commit whether in or outside Victoria during the period of the order an offence punishable by imprisonment.
(b)   You must comply with any obligations or requirements prescribed by the regulations.
(c)   You must report to and receive visits from the Secretary during the period of the order.
(d)   You must report to the Community Corrections Centre specified in the order within 2 clear working days after the order coming into force.
(e)   You must notify the Secretary of any change of address or employment within 2 clear working days after the change.
(f)    You must not leave Victoria except with the permission of, generally or in relation to the particular case, the Secretary.
(g)   You must comply with any direction given by the Secretary that is necessary for the Secretary to ensure that you comply with the order.
73In addition to those terms, the following special conditions are attached to the order:
(i)     You are to be subject to the supervision of Community Correctional Services;
(ii)     You are to undergo assessment and treatment and management for your mental health conditions as directed, in particular your Autism Spectrum Disorder, anxiety and Major Depressive Disorder;
(iii)    You are to engage as directed in offending behaviour programs and, if suitable, a sexual offender program, noting that it should not be a group program and should be individually tailored to your particular needs in the light of your Autism Spectrum Disorder;
(iv)    You are to undertake unpaid community work of 300 hours throughout the term of the order. I direct that any hours spent in mental health treatment or undertaking offending behaviour programs may be credited as unpaid community work for the purpose of this condition.
74Mr Huan, I am unable to make this Community Correction Order unless you agree with the terms and conditions which I have just articulated. Do you agree to be bound by such an order with such terms and conditions?
75OFFENDER: Yes, your Honour.
76Mr Huan, you must understand that, in the event that you breach this Community Correction Order either by not complying with any of the terms or conditions or by reoffending, then that, in itself, constitutes a criminal offence which is punishable by a maximum penalty of 3 months’ imprisonment. Should that occur, it is likely that you will be brought before the Court for contravention of the order and, in that event, the order may be cancelled and you may be sentenced to a term of imprisonment. Do you understand this?
77OFFENDER: Yes, your Honour.
78Pursuant to s.6AAA Sentencing Act, I state that had it not been for your please of guilty the total effective sentence imposed would have been 2 years imprisonment with a non-parole period of one year.
79Before concluding these sentencing remarks, I wish to strongly urge Community Correctional Services to be very mindful of Mr Huan’s Autism Spectrum Disorder by ensuring that any offending behaviour programs are tailored to his particular needs. Ideally, any sex offender program which Forensic Services deem to be appropriate should, if possible, be delegated to Ms Morrell, as should his ongoing mental health treatment and, where necessary, permission should be granted to Mr Huan to travel to South Australia to consult with Ms Morrell in person. I also urge Community Correctional Services to be mindful of Mr Huan’s disrupted education and try to ensure that the order is administered in a sensitive way which will enable Mr Huan to pursue his tertiary studies in order to qualify to enter the workforce in a meaningful, contributory way which, in itself, will be of rehabilitative value. Further, where possible, Community Correctional Services should assist Mr Huan’s application to obtain a package pursuant to the NDIS, the process for which has been commenced by Ms Morrell.
80Mr Huan, I am conscious that you have only just moved to Victoria and have accommodation living on your own and have the support of only one cousin here in Melbourne, albeit that your father apparently proposes to move to Melbourne when possible. It is imperative that you take advantage of all the support which your case officer at Community Correctional Services can supply and that you be open with that case officer concerning any challenges and concerns that you may have in relation to meeting the terms and conditions of the order or your physical or psychological health. You are still young and obviously have considerable talent and this is a fresh start for you in a new state. The Court wishes you well with your rehabilitation and sincerely hopes that you will never again be before the criminal justice system.
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[2022] VCC 1551

11 August 2022