Director of Public Prosecutions v Yang
[2019] VCC 351
•21 March 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. 18-02087
18-02088
19-00268
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ZHENG YANG |
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JUDGE: | HIS HONOUR JUDGE JOHNS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 March 2019 | |
DATE OF SENTENCE: | 21 March 2019 | |
CASE MAY BE CITED AS: | DPP v Yang | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 351 | |
REASONS FOR SENTENCE
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CRIMINAL LAW SENTENCE – 2 x charges accessing child pornography using a carriage service – 1 x charge possessing child pornography – 1 x charge of transmitting child pornography – 3 x charges possessing child abuse material – Related summary offence of committing indictable matter whilst on bail – Youthful offender – State and Commonwealth offences – Term of imprisonment – Recognisance Release Order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms R Avis | OPP |
| For the Accused | Ms N Kaddeche | Emma Turnbull Lawyers |
HIS HONOUR:
1 Zheng Yang, you have pleaded guilty to two charges of accessing child pornography using a carriage service which has a maximum penalty of 15 years; one charge of possessing child pornography which has a maximum penalty of ten years; one charge of transmitting child pornography which has a maximum penalty of 15 years, and three charges of possessing child abuse material which has a maximum penalty of ten years. You have also pleaded guilty to the relevant summary offence of committing an indictable offence whilst on bail, which has a maximum of three months or 30 penalty units.
2 The circumstances of your offending are set out in detail in the comprehensive and informative prosecution opening, which was Exhibit A on your plea hearing. I do not propose to reproduce the detail of your offending, in particular the examples of pornographic film and images you accessed and possessed in its entirety. Exhibit A forms part of the reasons for this sentence.
3 You began accessing what can only be described as high end child abuse imagery from January 2013 when you were approximately 18 years of age. You are now 24. On 3 August 2016, police executed a search warrant at your premises in Hoddle Street, Collingwood, after that address came to notice subsequent to an upload of child pornography material in December 2015. You were told by police that the warrant was for the purposes of searching for child exploitation material. You told them you had a laptop and hard drive with pornographic material of young boys in your bedroom. You were arrested and police seized an ASUS laptop and portable hard drives.
4 The material was analysed and found to contain thousands of images and videos that could be described in broad terms as child abuse material, child exploitation material and child pornography. Exhibit A provides more detail, however, in summary, these images and videos contained extremely distressing and disturbing material - four year olds, six year olds, eight year olds being filmed having forced, violent penetrative intercourse, sometimes bound at the hands, wrists, and knees or with a collar around the throat on one occasion. This offending represents part of Charge 1 and Charge 2.
5 That brief summary is simply a snapshot of the content. The examples provided range further and are equally disturbing. How you could sit through these videos, as you undoubtedly must have, over years and possibly hundreds of hours, raises significant concerns as to your empathy and the danger you pose in our community.
6 On 8 August 2016 you were interviewed by police and made what I consider to be full admissions. You stated you viewed the images because you were curious. The candour of your responses revealed your lack of empathy and full appreciation of the depravity of the content you were collecting and viewing, and the horror and damage experienced by the children you were happy to watch being exposed to the depraved assaults of others.
7 On 22 February 2017 you uploaded four child pornography files to Twitter with the username of shoddaboyXB. This is the basis of Charge 3, transmitting child pornography. You were arrested again on 4 October 2017 when you attended at Melbourne West Police Station by appointment. You had in your possession a laptop and Samsung mobile phone, which were seized. Hundreds of images and videos of child abuse material were found on these devices. That is Charge 1 in continuation, and Charge 4.
8 Again, these images were extremely disturbing, and in some ways worse than the earlier material. Images of children as young as four being anally penetrated whilst in distress; an 18 month old being forcibly orally raped; a naked child, maybe six years old, bound and gagged with black leather straps around his groin, torso and head, hands pinned behind his back, wearing a black leather mask which covered his eyes, a black leather gag with a yellow ball inserted into his mouth, and a black leather collar around his neck. More examples are given in Exhibit A.
9 You were interviewed on 4 October 2017. Again, you made admissions. Despite being charged and bailed for this serious offending and despite facing a committal hearing, your offending continued. On 16 May 2018 police again executed a search warrant on your premises. An Apple iPad was seized containing 313 videos and images of child abuse material. Again, some of the images fall into a category of the highest order of abuse. You were interviewed on 11 October and answered "no comment" to questions asked of you. A black iPhone was seized and you were remanded in custody.
10 The iPhone was analysed and it contained 55 images of child abuse, some of which were of the same high order as previous examples. In relation to the charges you face, there is some overlap between Charge 1 and Charges 2, 4, and 5. The possession charges stem from the conduct embraced by the between dates access charge. There is also some overlap between Charges 6 and 7. You were remanded in custody on 11 October 2018.
Personal Circumstances
11 Turning to your personal circumstances. You were born in China in 1994 and came to Australia in 2008. You came to Australia with your father, stepmother and half sister. Another half sister was born in Australia. Your biological mother resides in China. You have been unable to have contact with her since you have been in custody. You have always lived at home with your family. Your family supported you in court, including your paternal grandmother, who helped raise you.
12 You completed year 12 at Collingwood College and Fitzroy High School in 2014. You commenced a Bachelor of Health Science at La Trobe University. At the time of your remand, you had two units left before completion of your degree. During the fourth year of your degree, you studied part time and worked as a store manager at Vodaphone and then Miniso at Northland Shopping Centre as a manager. Whilst in custody you have worked in signage and participated in English courses.
13 A number of matters were raised on your behalf by your counsel, Ms Kaddeche. You were very young at the commencement of the offending and remain a young man. It is to your credit that you volunteered the information which led to the charge of transmitting child pornography. You made admissions substantially throughout the period of offending. At no stage did you use false names or identities in an effort to evade detection of your crimes. You pleaded guilty to matters prior to and in anticipation of the third and final brief of evidence against you materialising, to which you pleaded guilty.
14 You have not sat idle in custody. You have tried to work and do the courses available to you. You are in the Hopkins Unit due to the nature of the offending, which is a more restrictive environment than mainstream. You still have regular visits from family however. I accept that you have cooperated with authorities and that your admissions, early pleas and cooperation carry a significant utilitarian value, as well as being reflective of your acceptance of responsibility and a degree of remorse and shame. You have no prior convictions. This is your first experience of custody.
Report of Simon Candlish
15 A report of Simon Candlish, consultant psychologist, was tendered on your behalf and became Exhibit 2. I also received an addendum to this report, Exhibit 3. In this report dated 27 February 2019, Mr Candlish observed that you displayed a degree of social detachment, most notably in regards to your offending. In your consultation, you recounted that you experienced feelings of depression following secondary school due to needing to form new friendships at tertiary education level.
16 You told Mr Candlish that you first commenced a sexual relationship at the age of 21 and that you are same sex attracted. You explained that you did not commence a relationship at an earlier age due to concerns about the social implications of your sexual orientation. You reported that you masturbated around three or four times a week, and that you would do this during periods of stress or feeling low. You indicated that you used pornography found on the internet to gain arousal.
17 According to Mr Candlish, your use of pornographic material initially involved males of your own age but you have progressed to utilising specific search terms relating to underage males using file share systems. You told Mr Candlish that you downloaded both adult and child pornographic material in the form of both pictures and video. From what you have told Mr Candlish, it appears that you accessed both child abuse and child exploitation material through an online group. You reported that it made you feel good that people came to you to request material. You reported that you did not meet any of the other users in person.
18 Mr Candlish suggests that it is apparent that you are in the early stages of understanding your offending. You told Mr Candlish that you feel ashamed about your offending. When probed, you explained that preventing the material is preventing children from being abused. You expressed some insight into the power imbalance between adults and children in sexual relationships. It is of grave concern, however, that you stated that some of the children were willing to do it as they were sexually active, and that they wanted to have sex with an adult.
19 Mr Candlish opined that you appeared to lack empathetic regard at the time of your offending. He notes that it is of concern that your offending continued despite two occasions of police intervention. Overall, he opines that whilst you express some pro social views in relation to your offending, you possess poor recognition of the harmful nature of the material you were viewing.
20 Mr Candlish assesses that you fall into the moderate risk category for sexual recidivism in the absence of interventions. He assesses you as low risk for contact sexual offending against children. Mr Candlish also prepared an addendum report dated 16 March 2019 outlining specific guidance on intervention pathways available to you. In this report, Mr Candlish named several community based referral services that would benefit you upon release. I accept the matters set out in Mr Candlish's report.
Gravity of Offending
21 Turning back to the objective circumstances and gravity of offending. I have already referred to the extent and gravity of your offending as it relates to the content you collected and, on one occasion, transmitted. I was told by the prosecution that there were over 5000 files in total. It is of grave concern that you continued to offend in the manner in which you did, including committing the offences, the subject of Charges 6 and 7, whilst on bail.
22 As I have stated, I consider the gravity of this offending to be high end. This conclusion is reached largely on the basis of the nature and content of the material, in particular the age of the children and the gravity of the sexual activity and its accompanying features that were depicted. The volume of material is also a factor I have had regard to in arriving at this conclusion. A number of files were videos; actual children were abused in these horrific episodes.
23 I was not given an estimate of the number of children abused, traumatised, raped and terrorised in the production of the media you enjoyed. It is clear that you possessed thousands of images over a lengthy period of time. You continued to collect it despite court appearances and being on bail.
24 Aside from the nature of the content and the protracted nature of your possession, this is not a case where you were actively involved in the accessing of child pornography and its possession for profit. The offence of transmission was limited and it did not involve a commercial aspect. Mitigation is available to you due to the circumstances in which this offence first came to light.
25 I also take into account the fact that you made no attempt to conceal your identity online. You made no attempt to destroy the images prior to detection. In fact, you identified the devices containing child pornography when police first attended, and on the last occasion you surrendered the relevant devices.
26 Despite these aspects of personal mitigation, general deterrence is a very significant factor in your case. Offending involving child pornography occurs on an international level, and is becoming increasingly prevalent on the internet. It is difficult to detect, given the anonymity provided by the internet. The access and possession of child pornography material creates a market for the continued corruption and exploitation of children. You actively participated in this market. By extension, you are part of this vile trade and exploitation of innocent, defenceless children.
27 There is a paramount public interest objective in promoting the protection of children, as the possession of child pornography is far from a victimless crime. Children are sexually abused in the most degrading and harmful ways, as you well know, in order to supply the market. In your case, you not only gained access over a lengthy period of time, you possessed the material as well, allowing for greater and repeated access. Your protracted possession, the volume of possession and the manner in which you, on the first occasion, stored a voluminous collection on portable hard drives reflects your level of interest.
28 Alongside general deterrence, denunciation is a significant sentencing consideration. The sentence I impose reflects the community's denunciation of those who actively support this market in childhood misery, but on a more basic level, the denunciation of those who derive gratification from witnessing the degradation and infliction of deranged sexual violence on children and infants.
29 I have been careful to avoid double punishment where there is overlap of criminality between the charges on the indictment. I have also applied the principle of totality in arriving at the appropriate sentence. I take into account your youth. I take into account your lack of criminal history to the extent available for matters of this type, and the fact that this is your first experience of the criminal justice system and, of course, prison.
30 These matters, together with your pleas and admissions, including the circumstances of the charge of transmitting coming to light, your level of education and family support, lead me to a view that you have some prospect of rehabilitation. Nevertheless, specific deterrence remains a significant consideration in your case. You clearly need treatment in order to rehabilitate fully.
31 The custodial sentence I impose will allow for the completion of designated courses for sex offenders such as yourself. I have considered endeavouring to provide an extended period on recognisance with a treatment order.
Sentence
32 I sentence you as follows, Mr Yang, first dealing with the State offences. Please stand. On Charge 2, knowingly possessing child pornography on 3 August 2016, you are sentenced to two and half years' imprisonment. This is the base sentence. On Charge 4, possessing child abuse material on 4 October 2017, you are sentenced to 18 months' imprisonment. Having sentenced you to two terms of imprisonment for each of Charges 2 and 4, you are now a serious sexual offender. For the remaining State offences, I sentence you as a serious sexual offender, and it will be entered into the records of the court.
33 On Charge 5, possessing child abuse material, you are sentenced to be imprisoned for 18 months. On Charge 7, possessing child abuse material on 11 October 2018, you are sentenced to be imprisoned for two years. On the summary charge of committing an indictable offence on bail, you are sentenced to be imprisoned for one month. I direct that three months of the term imposed on Charge 4 be served cumulatively upon the sentence imposed on Charge 2.
34 There is a presumption of cumulation where the sentences on Charges 5 and 7 are concerned. I direct that three months of the sentence imposed on Charge 5 be served cumulatively on the base sentence, with the remainder of that sentenced to be served concurrently. I direct that six months of the sentence imposed on Charge 7 be served cumulatively upon the base sentence with the remainder of the sentence to be served concurrently. That makes a total effective State sentence of three and a half years' imprisonment. I set a non-parole period of two years.
35 In respect of Charge 1 - this is the Commonwealth offences. In respect of Charge 1, accessing child pornography between January 2013 and May 2018 - sorry, before I move on to the Commonwealth offences, I will declare that in relation to the State matters you have served 161 days of pre-sentence detention.
36 Turning to the Commonwealth offences. In respect of Charge 1, accessing child pornography between January 2013 and May 2018, you are sentenced to be imprisoned for two and a half years, commencing on a date 18 months from today. On Charge 3, transmitting images, you are sentenced to be imprisoned for 12 months, commencing 18 months from today. On Charge 6, accessing child pornography, you are sentenced to be imprisonment for 18 months, commencing 18 months from today.
37 I direct that four months of the Federal sentence of imprisonment imposed on this day, as I have just set out, be served before being released by way of recognisance for a period of three years with the following conditions: a recognisance in the sum of $500; that you be of good behaviour for three years; that you are under the supervision of the Deputy Commissioner Community Correctional Services and Sex Offender Management or his or her nominee for three years; that you attend for assessment and if assessed as suitable, treatment for sex offender programs or programs to reduce re-offending as directed by the Deputy Commissioner Community Correctional Services and Sex Offender Management or his or her nominee; that you are not to leave Victoria except with the permission of an officer at the specified Community Corrections Centre; that you report to Sunbury Community Correctional Services within two days of release from imprisonment, and that you are to obey all lawful instructions and directions of Community Corrections officers.
38 As a consequence of your convictions on the charges on the indictment, you are to be registered under the Sex Offender Registration Act. The period of reporting is for life.
39 Pursuant to s.6AAA, I declare that but for your pleas of guilty, I would have sentenced you to a total effective sentence of five and a half years, with a non-parole period of three years.
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