Director of Public Prosecutions v Li
[2024] VCC 754
•28 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01812
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| YIYANG LI |
---
JUDGE: | HER HONOUR JUDGE HARPER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 May 2024 | |
DATE OF SENTENCE: | 28 May 2024 | |
CASE MAY BE CITED AS: | DPP v Li | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 754 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Use a carriage service to solicit child abuse material; possess or control child abuse material obtained or accessed using a carriage service; offence admitted under s.16BA; exceptional circumstances; plea of guilty, youth, delay, efforts at rehabilitation
Legislation Cited: Criminal Code Act (Cth), Crimes Act 1914 (Cth), Sex Offenders Registration Act 2004 (Vic), Sentencing Act 1991 (Vic)
Cases Cited:R v De Leeuw [2015] NSWCCA183, DPP (Cth) v Garside (2016) 50 VR 800The Queen v Tootell; ex parte A-G (Qld) [2012] QCA 273, DPP v Bradley [2022] VCC 414, CDPP v Robbins (a pseudonym) [2021] VCC 2172, CDPP v Yu [2022] VCC 1685, DPP v Carroll [2018] VCC 1374, DPP v Watterson [2019] VCC 675, CDPP v Hockley [2023] VCC 154
Sentence: 2 years imprisonment with release forthwith on entering into a recognisance of $2000 to be of good behaviour for three years
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S. Akin | Commonwealth Director of Public Prosecutions |
| For the Accused | Ms D. Price with Ms B. Seignior | Slades & Parsons Solicitors |
HER HONOUR:
1Yiyang Li, you have pleaded guilty to one charge of using a carriage service to solicit child abuse material, contrary to subsection 474.22(1) of the Criminal Code (Cth) and one charge of possessing or controlling child abuse material obtained or accessed using a carriage service, contrary to subsection 474.22A(1) of the Criminal Code (Cth).
2The maximum penalty for each of these offences is 15 years' imprisonment. This reflects the seriousness with which Parliament regards each of these offences.
3You have also admitted, in relation to Charge 1, that the offence of use a carriage service to solicit child abuse material, contrary to subsection 474.22(1) of the Criminal Code (Cth) can be taken into account in accordance with s16BA of the Crimes Act 1914 (Cth).
Circumstances of the offending
4The circumstances of your offending were outlined in the Amended Summary of Prosecution opening for Plea dated 13 May 2024. This agreed document reflects the factual basis of your offending which I will summarise here.
5In September 2021 the Victoria Police Joint Anti Child Exploitation Team received information in relation to an internet user who had uploaded child abuse material to Dropbox, Google and Snapchat between 20 July 2021 and 12 August 2021. Your email address was connected to the offending user account, which led Police to identify you.
6On 11 November 2021 police executed a search warrant and 3LA orders at your home address in Ringwood North. They seized a white iPhone, a black iPhone 4, a silver Apple MacBook and a Seagate hard drive, all of which were analysed and confirmed to contain child abuse material. It was also revealed that your mega.nz account contained child abuse material.
7You participated in a field interview and admitted owning all of the electronic devices seized.
Charge 1 – use carriage service to solicit child abuse material
8Analysis showed that on 21 September 2021 you used a Snapchat account to communicate with another user who told you she was a 15-year-old female. You sent a message asking 'how old' to which the user replied '15 baby' and said 'my Apple pay baby'. You responded 'can you show your pussy first'. The other user replied 'okey daddy' followed by a snap with contents unknown and reminded you about her Apple pay.
16BA scheduled offence - use carriage service to solicit child abuse material
9Item 1 on the 16BA Schedule, to which I will return, relates to you using a Kik account to communicate with another user to solicit child abuse material.
10On 21 October 2021 you commenced a conversation with the other user stating 'Hey', to which the user replied 'Hey'. The following day, 22 October 2021 you asked for 'baby Ashlee nudes' to which the user replied 'yeah what can you trade'. I understand that 'baby Ashlee nudes' are child abuse images of a girl who is aged approximately 15 years.
11You offered the user 'cp', being child pornography. The other user asked for 'an onlyfans leak folder or something similar'. You said 'No, I’ve got a lot of cp tho'. The other user said they weren’t interested and you responded 'ok nvm then'.
Charge 2: Possess or control child abuse material
12Analysis of the devices and accounts located by police revealed a large amount of category 1 and 2 child abuse material as follows.
13The White iPhone contained a total of 3,688 items being 3,218 unique images and 450 unique videos.
14The black Apple iPhone 4 contained a total of 73 images, all unique.
15The silver Apple MacBook Air contained a total of 6,158 items being 5,525 unique images and 542 unique videos.
16The Seagate Hard drive contained a total of 834 items being 706 unique images and 7 unique videos.
17The mega.nz account contained a total of 7,513 items being 7,280 unique images and 175 unique videos. These items were located within sub folders as categorised by you.
18In total you possessed some 18,266 items of child abuse material, 12,512 of them being unique.
19A representative sample of the child abuse material found across the devices and accounts was detailed in the prosecution summary and will not be repeated here given the graphic and distressing nature of the content.
Offence gravity
20In relation to Charge 1, solicit child abuse material, you established that the other user was 15 years of age and requested explicit material from her. There was a further inference that you would, or did, pay for the image. I find this aggravates your offending.
21I further take Item 1 on the 16BA schedule into account on passing sentence on Charge 1. You discussed trading 'cp' and requested explicit images of a 15 year old, being the 'baby Ashlee nudes'. You do not fall to be sentenced for this offence but I take it into account as elevating the need for specific deterrence and the need for adequate punishment in relation to Charge 1.
22
In relation to Charge 2, possess or control child abuse material, there is a
well-established list of considerations to be taken into account, as summarised in R v De Leeuw [2015] NSWCCA183 and adopted in DPP (Cth) v Garside (2016) 50 VR 800. These include:
i. The nature and content of the material;
ii. The number of items or images possessed;
iii. Whether the material is for the purpose of sale or further distribution;
iv. Whether an offender will profit from the offence;
v. The number of children depicted and thereby victimised; and
vi. The length of time for which the pornographic material was possessed.
23You are charged with offending on a single date and I accept you are not alleged to have distributed or profited from the images.
24The number of files you possessed was substantial, being over 18,000. The nature of the material you possessed was abhorrent and plainly disgusting, involving children aged from as young as 1 year through to those aged about 15. The number of images represents a vast number of child victims who were harmed in the production of these items.
25This is not a victimless crime. Each and every image involves a child victim. It is a crime which causes real and lasting harm to the children who are subjected to abuse for the vile gratification of those who possess and control the images. The public interest in the protection of children is high.
Personal circumstances and psychological assessments
26You are now 20 years of age, having been born in September 2003 in the Guangdong Province of China.
27You are an only child. Your mother moved to Australia while you remained with your father in China. You joined her when you were aged 7, living with your mother, your aunt and two cousins with whom you continue to reside. You are an Australian citizen. Your father did not immigrate and remains in China, although he flew to Melbourne to support you in court. You were also supported by your mother.
28You began primary school in Australia in Grade 2 without speaking English but achieved fluency within a short time.
29Your mother’s business ran into financial difficulties and in May 2020 her mother, your grandmother passed away. This coincided with the beginning of COVID lockdowns.
30You attended secondary school at Yarra Valley Grammar, graduating in 2021.
31You excelled at school, while also working as a kitchenhand when lockdowns permitted, and your parents encouraged you to study computer science at university. In your second year you transferred to meteorology but have taken a leave of absence to deal with these matters.
32You now work five days a week in a Bayswater warehouse and have used your income to pay for your legal representation.
33You were also supported in court by three high school friends. While at university you have joined several clubs and made appropriate friendships.
34You have never been in an intimate relationship. You have accessed online pornography since the age of 11 or 12, initially involving adults and then teens and ultimately younger children and other fetishes. You have engaged obsessively with these materials.
35You have been treated by clinical psychologist Dr Rachel MacKenzie since September 2023. Dr MacKenzie spent some 17 years working for Forensicare’s Community Forensic Mental Health Service within the Problem Behaviour Program and now provides specialist treatment for both victims and perpetrators of, amongst other things, sexual offending.
36Dr. MacKenzie has seen you on at least 16 occasions. She reports that:
Despite Mr. Li’s initial difficulty with the treatment process and his tendency to engage in avoidance, to his credit, he persisted with therapy, even with the confronting nature of many of our sessions. He completed homework tasks set and asked questions about aspects that he did not understand or found difficult. Subsequently, due to his willingness to persist, accept challenges and move through his discomfort, he has been able to make greater progress in treatment than I had initially anticipated.
37You have clearly made progress in your treatment with Dr. MacKenzie, however she states that 'There are still outstanding treatment targets that need to be addressed.' These would, she maintains, be better addressed in future individualised treatment rather than in group-based therapy programs.
38Dr. MacKenzie further addressed the issue of whether you suffer from a paraphilic disorder such as paedophilia. She opines that:
Although Mr. Li’s age at the time of his offending and his acknowledgement of masturbating to material involving prepubescent children does meet the criteria, the timeframe of his offending does not … In taking into account the relatively short period during which he offended and Mr. Li’s immaturity, lack of sexual experience, denial of deviant fantasies, or arousal to children in real life, the diagnosis of paedophilia is not applicable at this time.
39
I also received an assessment report from clinical and forensic psychologist
Mr Patrick Newton. You presented to him as 'an immature man with a limited connection to his emotions and a distant and socially constrained approach to interactions'.
40You are of above average intelligence but have entrenched problems with social engagement. Mr Newton found that you downplayed and rationalised the gravity of your conduct. He opined that:
Mr. Li’s sexual adjustment shows some seriously problematic aspects including broad-based deviant arousal patters and entrenched anxiety about sexual matters. While he has made good initial progress in treatment, there is clearly a need for him to continue to engage with offence-specific counselling and education to address these issues.
41
Mr Newton found that you pose a moderate risk of committing further sexual offences, which is 'significantly above average relative to those charged with only online offending'. He nevertheless finds that you have a good rehabilitative prognosis and recommends that you continue to engage in treatment with
Dr MacKenzie.
Sentencing principles
42You are to be sentenced in accordance with the Crimes Act 1914 (Cth). Pursuant to s16A(1) of that Act, I am required to impose a sentence that is of a severity appropriate to all of the circumstances of the offence. You must also, pursuant to s16A(2)(k) be adequately punished for the offending.
43Section 16A(2) of the Act sets out a list of factors, all of which I have taken into account in passing sentence.
Plea of guilty and remorse
44You entered your plea at the first committal mention, the earliest opportunity for you to do so. You have saved the community the time and expense of running a trial. As such, you have facilitated the administration of justice and you are entitled to a benefit for the utilitarian value of your plea.
45By your plea of guilty you have also demonstrated an acceptance of responsibility for your offending, together with a level of remorse. I received a letter of apology and references from your parents and two of your friends. They indicate a level of remorse and some insight into your offending, which is also evidenced by the psychological reports, and which I accept.
Other sentencing factors
46Given the serious nature and the type of charges which you face, general deterrence is the most important sentencing consideration. Others members of the community must be deterred from committing similar offences and it must be understood that stern punishment will follow should they do so.
47Internet crime such as yours is increasingly prevalent and is often difficult to detect. It creates a market for the exploitation of children.
48You must also be specifically deterred from engaging in this type of conduct in future. You have commenced treatment but it will be a lengthy and ongoing process. The sentence I impose must make it clear to you that this offending is unacceptable and will not be tolerated by the courts or the community.
49Just punishment is also a live consideration.
50I note that you come before the court with no prior criminal history, however limited weight is to be given to your prior good character when passing sentence for offences such as these.
Sentencing submissions
51Section 20(1)(b) of the Crimes Act 1914 (Cth) concerns child sex offences. In effect, the court cannot order your immediate release on a recognisance release order unless it finds there are exceptional circumstances. The term exceptional circumstances is not defined.
52You counsel, Ms. Price, submitted that I should find exceptional circumstances in your case and release you forthwith. She relied on a number of factors in combination to satisfy this test, being your:
· Youth, given you were 18 at the time of the offending and are now 20;
· acceptance of responsibility for the offending;
· plea of guilty which was entered at the earliest opportunity;
· your efforts at rehabilitation to date;
· your prospects of further rehabilitation;
· family and social support;
· good character;
· absence of prior criminal history; and
· delay
53Ms Price submitted that having made out exceptional circumstances, the court ought to impose a community corrections order or, in the alternative, a recognisance release order.
54Ms Akin, for the prosecution, submitted that a term of imprisonment with an actual period to be served was called for. Given the exceptional circumstances requirement, she submitted, imprisonment must be considered to be the starting point.
55It was however, appropriately conceded that your youth and the delay between the execution of the warrant, the investigation and the laying of charges are relevant factors to be taken into account.
56Ms Akin noted the nature of the offending is reflected in the maximum penalties and that the soliciting of images and the discussion of payment aggravate Charge 1. Charge 2 relates to a very large number of files, the content of which is best described as depraved in its depiction of prepubescent children. I accept these submissions.
57The prosecutor further submitted that while you have demonstrated progress in the areas of shame and remorse, rehabilitation should be given limited weight, particularly in light of your risk assessment.
58I was referred to several cases by the parties, some addressing exceptional circumstance and others relevant to sentence. I have considered The Queen v Tootell; ex parte A-G (Qld) [2012] QCA 273, DPP v Bradley [2022] VCC 414, CDPP v Robbins (a pseudonym) [2021] VCC 2172 and CDPP v Yu [2022] VCC 1685 as to the question of exceptional circumstances.
59I also take into account DPP v Carroll [2018] VCC 1374, DPP v Watterson [2019] VCC 675 and CDPP v Hockley [2023] VCC 154, noting the distinguishing features as compared with the instant matter.
Analysis
60I find the submissions as to your youth, the delay in this matter and your prospects of rehabilitation compelling when considering whether exceptional circumstances have been established.
61You were barely 18 at the time these offences were committed, although I note you had accumulated a very large collection of child abuse material which you had organised into various categories.
62The delay from the execution of the warrant in November 2021 to the charge in July 2023 and the plea in May 2024, while explicable, has led to these matters hanging over your head for an extended period of time. You are now almost 21 years of age.
63You have, of your own volition, commenced sex offender treatment. You have engaged positively with Dr MacKenzie. I consider that if you keep up this treatment, your prospects of rehabilitation are good.
64While you still have a long way to go, I consider that group sex-offender treatment, as would be necessary for you to undertake in a custodial environment, would be detrimental to your rehabilitation. You would by necessity be mixing with other sex offenders, some of whom are likely to have committed contact offences. This would in no way promote your recovery and indeed, is likely to see you take a backwards step.
65The offending is most serious and can only be appropriately punished by the imposition of a custodial sentence. I must then consider whether there are exceptional circumstances that would allow me to order your release immediately upon entering into a recognisance release order.
66Having taken into account the objective seriousness of the conduct and the matters put in mitigation including your youth, the delay, your family and social supports, your efforts at rehabilitation and your prospects of rehabilitation, by the barest of margins, I have determined that there are exceptional circumstances such that you need not serve an immediate period of imprisonment. Please stand, Mr Li.
Disposition
67On Charge 1 you are sentenced to 12 months' imprisonment.
68On Charge 2 you are sentenced to 18 months' imprisonment.
69I order that 6 months of the sentence imposed on Charge 1 be served cumulatively on the sentence imposed on Charge 2.
70That makes a total effective sentence of 2 years' imprisonment.
71I direct that you be released forthwith upon entering into a recognisance in the amount of $2,000 to be of good behaviour for a period of three years from today.
72You are to comply with the following further conditions, pursuant to s20(1B) of the Crimes Act 1914 (Cth) for a period of 2 years:
· You are to be under the supervision of the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee;
· You are to obey all reasonable directions of the Community Corrections Officer;
· You are to undertake such treatment or rehabilitation programs as the Community Corrections Officer reasonably directs;
· You are to attend for assessment and, if assessed as suitable, treatment for sex offender programs or programs to reduce re-offending as directed by the Community Corrections Officer;
· You are not to travel interstate or overseas without the written permission of the Community Corrections Officer;
· You are to report to the Ringwood Community Corrections Centre at 60-62 Maroondah Highway Ringwood 3134 by 4 pm on 30 May 2024;
· You are to report to and receive visits from a Community Corrections Officer or officers;
· You are to notify an officer at the specified Community Corrections Centre of any change of address or employment within 2 clear working days after the change;
· I impose a further condition that you continue to engage in sex offender treatment with Dr Rachel MacKenzie and follow all lawful directions of
Dr Rachel MacKenzie.73
Having been sentenced to two class 2 offences pursuant to the Sex Offenders Registration Act 2004 (Vic), you are to be placed on the Register for a period of
15 years.
74
Pursuant to s6AAA of the Sentencing Act 1991 (Vic), I declare that had you not pleaded guilty the sentence I would have imposed would have been 4 years
6 months' imprisonment with a non-parole period of 2 years 10 months' imprisonment.
75Mr Li, I am required by law to explain the consequences of this order to you.
76You are going to be placed on what is called a recognisance release order in the amount of $2,000. You do not have to pay that amount, but you need to understand that it is in effect a gaol sentence that allows your release upon giving the undertaking that you will be of good behaviour and comply with this order.
77
If you fail to comply with the order, the consequences are likely to be that you will forfeit $2,000 and more significantly, you will be brought back to be dealt with by the court again. The court will then consider whether you have to serve that
2 years' imprisonment. That promise runs for 3 years from today.
78Are you prepared to abide by those conditions?
79OFFENDER: Yes, Your Honour.
80HER HONOUR: Would counsel please confirm the terms of the order as my associate hands out the draft?
81COUNSEL: Yes, Your Honour.
82HER HONOUR: Thank you.
83MS ATKIN: That order is correct, Your Honour.
84HER HONOUR: It's correct. And to you, Ms Seignior?
85MS SEIGNIOR: Agreed.
86HER HONOUR: Thank you. Mr Li, I now require you to sign the recognisance release order and the sex offender registration acknowledgment. Ms Seignior, your instructor or you may attend the dock with my associate for that paperwork to be signed.
87Mr Li, your youth and the work you have done with Dr MacKenzie have combined to create exceptional circumstances which have kept you out of prison. Understand that if you offend again in this way, or in any way, you face the very real likelihood of immediate gaol time. Do you understand?
88OFFENDER: Yes, Your Honour.
89HER HONOUR: You may be seated.
90I thank both counsel for their very helpful submissions in the running of this plea. Is there anything else from either party?
91MS ATKINS: Nothing further, Your Honour.
92MS SEIGNIOR: No, Your Honour.
93HER HONOUR: Thank you. If Mr Li would wait in court to see my associate for the relevant paperwork please. Thank you, we will adjourn the court.
- - -
0
8
0