DPP v Yuen

[2020] VCC 1527

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00444

Indictment No: K13146340.1

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALAN YUEN

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JUDGE:	HER HONOUR JUDGE CARLIN
WHERE HELD:	Melbourne
DATE OF HEARING:	27 August 2020
DATE OF SENTENCE:	24 September 2020
CASE MAY BE CITED AS:	DPP v Yuen
MEDIUM NEUTRAL CITATION:	[2020] VCC 1527

REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Sexual penetration of a child under 16 years of age; representative charge, standard sentencing, unlawful sexual activity; early plea of guilty; Applicant’s early admissions, youth, remorse and good character; difference in age and maturity; low level moral culpability; Social media messaging; Community Corrections Order (CCO); Youth Justice Centre; Doran discount; exemption Sex Offender Registration;
Legislation Cited: Sentencing Act 1991 (Vic); Crimes Act 1958 (Vic)
Cases Cited: Treloar v The Queen [2020] VSCA 6; DPP v Amad [2016] VSCA 279; Clarkson v the Queen (2011) 32 VR 361 & 362; Brown v The Queen [2019] VSCA 216; The Queen v Doran [2005] VSCA 271; Borg v The Queen [2020] VSCA 191.

Sentence: Convicted and Sentenced to a 3 year Community Corrections Order with special conditions imposed: Supervised, 350 hours of unpaid community work, and offender behaviour programs.  Application for exemption of Sex Offender Registration granted.                 ---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. James	Office of Public Prosecutions
For the Accused	Mr P. Tiwana	Dribbin & Brown Criminal Lawyers

HER HONOUR:

Introduction

1Alan Yuen, on three occasions between 22 October and 2 December 2019 you had unlawful sexual intercourse with a child.   You were nineteen and a university student and the child, who I shall call Liana to protect her identity, was fifteen and at school. 

2Your involvement with Liana was detected after sexually explicit Facebook messages between you and Liana were found on her school issued laptop computer.  Liana was questioned about these messages by Department of Health and Human Services protective workers on 28 November 2019.  She did not disclose that she had had sexual intercourse with you.  The most she said was that on one occasion she thought you were coming over for ‘sex’ but you did not turn up and that is when you stopped communicating.

3On 5 December 2019 you were arrested and interviewed and your iPhone was seized.  You readily admitted engaging in sexual intercourse with Liana and knowing that she was a 15-year-old schoolgirl.  You were charged and bailed. 

4You pleaded guilty at committal mention on 12 March 2020 and the matter proceeded by way of straight hand up brief. On 27 August 2020, you pleaded guilty before me to a single representative charge of sexual penetration of a child under 16 years of age, contrary to section 49B(1) of the Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016.

5After a plea on your behalf, it now falls to me to sentence you for your conduct.  Your counsel, Mr Tiwana, submitted that a community corrections order was within range and appropriate in your case.  The prosecutor,
Ms James, submitted that such an order was only within range if it formed part of a combination sentence, that is, if it was imposed together with an immediate term of imprisonment. 

6In arriving at an appropriate sentence, I am required by law to have regard to a number of factors which are sometimes overlapping and sometimes contradictory in nature.[1]   Some tend towards leniency and some point the other way.  No one factor automatically prevails over any other.  Rather, I must have regard to them all and give each one the weight it deserves in order to arrive at a just sentence.

[1] Sentencing Act 1991 (Vic) s 5 (2).

Circumstances of the offence

7The agreed facts were set out in the Summary of Prosecution Opening which was tendered as Exhibit A on the plea.  Those facts were drawn from your admissions to police and social media exchanges between you and Liana located on her school computer and your iPhone.     

8You told police that you met Liana ‘maybe 4 months’ prior to your arrest through a mutual friend.  You started communicating through Facebook and joked about sex.   You knew she was 15 and at school and believed she knew you were 19 and about to turn 20.  You said she gave you a birthday present.  You said that when you were with her you did not feel like you were with a 15-year-old.  You said you sometimes went to late night movies or places to eat that were open late at night.   You always saw her late at night because that was when you were free.  You found her funny and the two of you joked a lot.  You did not tell your friends about her because you usually keep that part of your life separate from them.

9The first occasion on which you had sexual intercourse occurred by arrangement at around 2 am in the morning when you ‘snuck’ through a window in her house and went into her bedroom.  She gave you directions as to how to get into her house and what do once inside.  You asked her if you should bring a condom, but she said no, so you did not.  You were very quiet so as not to be heard and left immediately after the encounter because you ’felt uncomfortable being in someone else’s home’.  This act constitutes Charge 1 on the indictment and represents two further acts of sexual intercourse.

10The first represented act occurred when you parked a couple of streets from Liana’s house and sent her a text message to say you were there.  She came out to your car and you drove for a few minutes before parking and having sexual intercourse in the back seat.  The second represented act occurred on Monday 2 December 2019 when you picked her up at the park at around midnight. 

11You told police that you decided to use a condom after the second time because you knew Liana saw other ‘guys’ and were worried about getting sexually transmitted diseases.  You were not worried that she might get pregnant because you either did not ejaculate or ejaculated into a condom.

Objective gravity of your offending and moral culpability

12The maximum penalty of 15 years for the offence of sexual penetration of a child under 16, reflects the seriousness with which Parliament regards the crime, as does the fact the offence has a standard sentence of six years.  

13Moreover, the charge to which you have pleaded guilty was representative of two further acts of sexual intercourse.  This means that whilst I am sentencing you on that single charge, you do not get the benefit of it being treated as an isolated occurrence.  To the contrary, although you had ample time to reflect on what you had done, you decided to do it again, not once, but twice. 

14The messages between you and Liana clearly show that she was a willing participant in your sexual activity.  However, the law casts a duty on adults to refrain from engaging in sexual activity with children no matter how willing the child might be.[2] 

[2] Treloar v The Queen [2020] VSCA 6 at [36]; DPP v Amad [2016] VSCA 279 at [34] ff which noted that moral culpability should not be shifted to child victims.

15Moreover, the law is clear that the fact a child agrees to participate in sexual intercourse with an adult can never, of itself, be a mitigating factor.  This is not least because a child is presumed incapable of giving informed and meaningful consent to sexual activity. Rather than consent per se, what is of significance is the way in which any consent came about.  The circumstances of consent will have a bearing on the gravity of the offending and the moral culpability of the offender.[3] 

[3] Clarkson v the Queen (2011) 32 VR 362 at [4] to [7].

16Mr Tiwana submitted that whilst you and Liana could not be considered boyfriend and girlfriend, your behaviour was not predatory and your relationship with Liana was not all about sex.  On the contrary, he submitted, there was affection and mutual respect.  You told Mr Tiwana that Liana sent you a Facebook friend request and you became good friends before your relationship turned sexual.  You said you dined out, went to the cinema and spent time with Liana simply talking.  No doubt relying on the report of psychologist Pamela Matthews, to which I shall return, Mr Tiwana described you and Liana as both young and adolescent. 

17Ms James, on the other hand, submitted there was a significant social, financial and emotional power imbalance between the two of you.  You drove a car, worked and attended Monash University.  Liana was in Year 9 at school, sad and vulnerable.  Ms James, in essence, submitted the clandestine nature of your meetings and your ‘sexually aggressive’ messages belied the existence of a relationship of the sort portrayed by Mr Tiwana.    

18Pamela Matthews assessed you by video link on four occasions in May and June this year.  She considered your cognitive skills to be above average.  At several points in her report Ms Matthews described your offending as involving ‘consensual sex between two adolescents; hence there was no power differential’.  Granted, as Ms Matthews said, that adolescence is a developmental process not defined by age alone, she did not explain why she considered there was no power differential between you and Liana, or why, indeed, she considered you still to be adolescent.  It is noteworthy that
Ms Matthews did not examine Liana who is almost five years younger than you.  

19Ascertaining the circumstances of Liana’s consent is difficult without a statement from her particularly given the very different interpretation of the evidence by the prosecution and defence.  The Summary of Prosecution Opening necessarily contains only select messages between you and Liana. Both counsel submitted it would be appropriate for me to read the entirety of your social media exchanges to gain a full understanding of the nature of your relationship and I did so. 

20It must be said this was not a particularly edifying exercise.  Moreover, the picture that emerges remains imperfect. There is certainly little in the way of conventional romance and the messages are crude and sexually explicit on both sides.  However, there are occasional affectionate remarks.  There is much joking and a considerable amount of teasing, especially by Liana of you.  At one point you say to her ‘ur 15, ur not supposed to know this much’.[4]  She occasionally refers to being sad or hating life, but the discussion quickly changes direction and it is not obvious how serious she is.   You discuss eating out at late night venues, such as McDonalds and going to a drive-in cinema.  You also discuss going to an Airbnb party and Liana is obviously jealous when she learns that you will be taking someone else.   You are somewhat dismissive of her concerns.  You offer to pay for things and to drive and collect Liana at various times.   It is also obvious that on occasions you spoke to each other via the Facebook Messenger App. 

[4] Depositions page 210.

21There is no doubt that there was an economic and social power imbalance between you and Liana - you were at very different stages of your life.   However, your conversation does not reflect an obvious difference in maturity.  You appear to enjoy each other’s banter and your interest does appear to be more than just sexual.  You do not pressure or manipulate Liana and there is clearly no abuse of trust or authority.  I also accept your explanation that you met through a mutual friend and thereafter communicated via Facebook at Liana’s instigation. 

22The offence of sexual penetration of a minor encompasses a very wide range of scenarios.   Whilst arguing that there were a number of aggravating features to your offending, Ms James conceded that it fell below the middle of the range of objective seriousness for standard sentencing purposes.  I agree with that assessment as far as it goes.  This is certainly not the type of case the Court of Appeal in the well-known case of Clarkson envisaged as being at the extreme bottom end of the spectrum, that being a relationship of genuine affection between a 15-year-old and 18-year-old.  However, in my view it is closer to that type of case than the other end of the spectrum.  

23Mr Tiwana submitted your culpability for the offending was reduced by the fact you believed that ‘you were not breaking the law’.[5]  He relied upon answers in your record of interview and the fact you told Ms Matthews that you did not know that 16 was the age of consent at the time of your offending. 

[5] Outline of Plea Submissions, Exhibit 1, page 7. 

24When asked by the police if you knew it was wrong to have sex with Liana given that she was underage you said that you knew it was ‘frowned upon’ but that if you knew you would end up being interviewed by police you would not have done it.  You said you did not know it was ‘this bad’ or ‘against the law’ and you thought all that mattered was that the person consented.[6]   Later in your interview you spoke about a different girl being of ‘legal age’ and acknowledged that 15 was probably underage, but said that you simply did not think about it.[7] 

[6] Record of Interview Question and Answers 264 to 267.

[7] Record of Interview Question and Answers Question and Answer 544 to 555.

25I am not persuaded on the balance of probabilities that you believed that ‘you were not breaking the law’ as Mr Tiwana contended.  First, your exchanges with Liana indicate otherwise.  When she asked you if you liked girls in school uniform you said to her ‘are you using this as evidence in my fkn’ next court hearing?’.  At another point you joked with her about how you should introduce her to your friends.  She said ‘tell ‘em I’m 17 xx’ and you said ‘you really think I was going to tell em you’r fuckin 13 ha ha’.    Secondly, it would be very surprising if a person of your age, education and intelligence did not know the legal age of consent, and finally, at most your record of interview demonstrates an indifference or recklessness to the law rather than a positive belief that what you were doing was in fact legal. 

26In any event, I think your knowledge of the law matters little as your record of interview clearly demonstrates that you knew that what you were doing was socially unacceptable if not morally wrong.

27Notwithstanding this, I do consider your moral culpability to be relatively low.  This was not a case where you were predatory or seeking to manipulate or exploit a minor purely for your own sexual gratification. 

28Further, I take into account the fact you were only 19 at the time of the offending and immature yourself.  Although your offending could hardly be considered impulsive, especially given it was repeated, the law recognises that young people are more prone to make ill-considered decisions and may have less self-control than an older person.  Further, they may not fully appreciate the seriousness or consequences of their conduct, which I am satisfied is the case here.  In that regard you told Ms Matthews that what you were doing did not seem wrong at the time as Liana had had sex before and ‘it did not seem like being around a child’. 

29The social media exchanges bear out your account that Liana seemed more worldly than her chronological age would suggest.  This is not to say that the fact, as seems clear, that Liana was sexually active prior to your involvement with her excuses or mitigates your offending.  Indeed, such a circumstance may reveal a young person to be more, not less, vulnerable to harm and exploitation.  It is however, to acknowledge that you did not appreciate that this might be so. 

30Finally, whilst you were the adult and you should have been more responsible, I take into account that your failure to wear a condom on the first occasion, being the charged act, was because Liana specifically asked you not to do so.  This is borne out by your social media conversations.

Current Sentencing Practices

31One, and one only, of the matters to which I must have regard in arriving at an appropriate sentence for you is current sentencing practices.  Since

[8] Sentencing Act 1991 (Vic) ss 5A and 11A.

1 February 2018, the offence of sexual penetration of a child under 16 has been a standard sentence offence under the Sentencing Act 1991 with the standard sentence for an offence of mid-range objective seriousness set at six years with a presumed minimum non-parole period of 60% of the head sentence.[8] 

32The methodology for sentencing standard sentence offences is not that I engage in a two-step process of first assessing the objective seriousness of your offence compared to some other hypothetical mid-range offence and then work up or down depending on your personal circumstances or other factors.   Rather, I must take into account the standard sentence and standard non-parole period in the same way as I take into account the maximum penalty, and indeed all other relevant sentencing factors, to arrive at an appropriate sentence by a process known as instinctive synthesis.[9]    

[9] Brown v The Queen [2019] VSCA 216.

33The reason for looking at current sentencing practices is to promote consistency of approach in sentencing, particularly, the application of relevant sentencing principles.  Whilst no two cases are ever truly the same, and other sentences are not precedents to be applied or distinguished, sentences imposed in comparable cases may provide a convenient yardstick against which to measure any sentence proposed in the instant case. 

34There is no doubt, as Mr Tiwana pointed out, that community corrections orders have previously been imposed for the offence of sexual penetration of a child under 16 in circumstances where the age differential was not great and the activity consensual.  Three of the four cases to which he referred involved committed romantic relationships and, in that sense, involved objectively less serious offending than yours.  Moreover, none were standard sentencing cases and, as Mr Tiwana acknowledged, I am specifically prohibited from looking at them in my consideration of current sentencing practices. 

35It is probably too early to discern a sentencing practice under the standard sentencing regime, however, Ms James identified four broadly similar cases in that the offenders were all young and the victims consented to a greater or lesser extent.    Three of those cases resulted in terms of imprisonment with a non-parole period and the remaining one a combination sentence.   That said, each case involved objectively more serious offending than yours.  The offenders were older, albeit only one to two years, and the victims were younger, aged between 12 to 14.  Necessarily, the age differential between victim and offender was greater, seven to nine years, as compared to the four, almost five, year age difference between you and Liana.  Further, they variously involved pressure or predatory behaviour, persistence in the face of warnings, deceit or multiple offences.   The mitigating circumstances were also different. 

36I have had regard to all of the cases to which I was referred and others.  They are all informative but ultimately my duty is to impose a just and appropriate sentence on you in the unique circumstances of this case. 

Impact of your offending

37Although I do not have a victim impact statement from Liana, there is a legal presumption that premature sexual activity causes long term and serious physical and psychological harm to children whether or not they consent.[10]  Upon specific enquiry Mr Tiwana did not seek to persuade me otherwise and accordingly I proceed on the basis that what you did has, or will, harm Liana.   These are not just empty words.  I have already pointed out that the fact Liana was sexually active before you met her does not mean she was not vulnerable and not liable to be harmed by your actions.  In that regard, there is evidence that she had difficulties in her life at the time of your involvement with her relating to her ex-boyfriend and her parents. 

[10] Clarkson v The Queen (2011) 32 VR 361

Plea of Guilty, co-operation and remorse

38You are entitled to a significant discount in your sentence for the fact you pleaded guilty and did so at a very early stage.  More than that, you are entitled to something called a Doran discount, based on a case by that name in which an offender disclosed to police offences which otherwise might not have been detected. The Court in that case said:

39'Most importantly, however, the appellant quite voluntarily without any pressure from any authorities, provided the prosecution with all the evidence necessary to convict him of the majority of the crimes. In my view, the consequences of the appellant's admissions are that they reduce the need for a sentence to personally deter the appellant, they increase the prospects of his successful rehabilitation and they demonstrate genuine remorse for his actions. I would add that I think it is important that the appellant should receive a demonstrable discount in his sentence in order to encourage others to make like admissions.[11]'

[11] The Queen v Doran [2005] VSCA 271 at [14].

40At the beginning of your record of interview the police told you that they were interviewing you in relation to the offence of grooming a child under 16 for a sex offence.  After being cautioned and given your rights you were asked about your relationship with Liana.  You immediately told them that you were good friends who caught up maybe once or twice a week and ‘as you already know, have just – go beyond friends…we have sex’.  You then went on to outline your relationship and the occasions of sexual intercourse in more detail.

41Even though you appeared to believe the police already had evidence that you and Liana had engaged in sexual intercourse, the fact is you provided them with the evidence necessary to convict you.  It may be accepted, as Ms James argued, that the messages between you and Liana provided strong circumstantial evidence of the fact of sexual penetration, however absent Liana’s cooperation, or your admissions, a successful prosecution for that offence, particularly on a representative basis, was very unlikely.  Public policy demands that you receive a significant reduction in penalty for that level of disclosure so as to encourage others to do the same. 

42By your conduct in confessing and pleading guilty, you have not only facilitated the course of justice and taken legal responsibility for your crimes, something which is particularly valuable in the current COVID-19 environment, you have spared Liana from possible further questioning about her relationship with you. 

43Moreover, I am satisfied that you are genuinely remorseful for your actions.  You have expressed remorse to your various friends and family members who have provided character references and to Ms Matthews, who had no doubt that it was genuine.

44Background and personal circumstances

45Your background and personal circumstances were set out in detail in the Outline of Defence Submissions and the report of Ms Matthews, dated
12 August 2020, tendered on your plea and marked as Exhibits 1 and 2 respectively. 

46Very briefly, you are now aged 20 and still live with your parents in Pakenham. You were born in Traralgon.  Your mother was born in Vietnam and your father was born in China.  They moved to Australia in 1989.  You are part of a sibship of three.  Your family remain supportive of you with your mother and two siblings providing character references on your plea and supporting you in Court. 

47Growing up, your parents owned and ran Chinese restaurants, first in Traralgon and then Pakenham, when your family moved there.  You remember barely seeing your parents as a child, as they were ‘immersed’ in running their restaurants which were open seven days a week.  Your parents sold the Pakenham restaurant in 2013, with your father now working part time as a chef and your mother being ]semi-retired.  You told Ms Matthews that your childhood was not particularly ‘happy’ however you were not exposed to any kind of abuse. 

48You completed Year 12 in 2017. You studied the piano and guitar during school and have a black belt in Tai Kwon Do.  You commenced a double degree in accounting and taxation at Monash University in 2018.  You are currently in your third year of a four-year course.  Your ambition is to become a Chartered Accountant and eventually open your own practice.

49You displayed a good work ethic from a young age.  You helped your parents in their restaurant from the age of seven.  Between the age of 13 and 15 you undertook voluntary work with St John’s Ambulance.  You have had various other jobs including at another Chinese restaurant, as a pharmacy retail assistant, in a catering company, and assisting with public events and helping new students at your University, which you do voluntarily.  You are understandably worried about the effect of these court proceedings on your ability to pursue your accounting career in the future, although you have made no enquiries about it. 

50You have had one significant relationship of approximately 15 months.  You remain on good terms with your former partner who also provided a character reference for you on your plea.

51You told Ms Matthews that you were suicidal in the month after your arrest, but were no longer.  She assessed you as suffering from mild to moderate levels of depression. 

52You are in good physical health and are not on any medication. 

Your character and risk of reoffending

53You have no prior convictions.  You are a conscientious and diligent student and a hard worker outside of your studies.  A total of eight character references were tendered on your plea.  They were from friends, family members and your ex-partner.  All spoke very highly of you.  They considered this offending to be out of character for the person they knew and spoke of your shame, regret and remorse for what you had done.  They overwhelmingly portrayed you as kind, considerate and decent.  Moreover, your ex-partner and one other female friend indicated you were respectful of women.

54Ms Matthews described you as now having insight into the wrongfulness of your offending.  She did not consider there was any need for you to undergo a sex offender program.  I accept Ms Matthews’ conclusion as to your risk of further sexual offending, that is, virtually none.  I also accept that your risk of further offending, in general, is virtually none.

55Whilst I doubt your referees have read your exchanges with Liana, I do accept their opinions.  I am satisfied that outside of this episode in your life you are a person of good character with a promising future.  I regard your prospects of rehabilitation as excellent.    

Purposes of Sentencing

56In addition to specifying matters to which I must have regard in arriving at an appropriate sentence, the Sentencing Act 1991 prescribes the purposes, indeed the only purposes, for which a sentence may be imposed.  These are just punishment, deterrence, rehabilitation, denunciation, and protection of the community.  I am obliged not to impose a more severe sentence than is necessary to achieve those sentencing purposes.  A custodial sentence must only be imposed as a last resort.

57In the case of sexual offences against children the principles of general deterrence, denunciation and just punishment are extremely important.  It is necessary that people who might be minded to commit the type of offence that you did are deterred from doing so in the knowledge that if caught they will receive condign punishment. 

58On the other hand, the law also recognises the paramount importance of promoting the rehabilitation of young offenders, such as you.  Not only is this because young people have the greatest potential to rehabilitate, but also because it is by their rehabilitation that society will be best protected.  Further, it is generally acknowledged that a period of incarceration in an adult prison will most likely have a detrimental effect on a young person’s prospects of rehabilitation. However, it also settled law that the importance of rehabilitation in the sentencing equation declines as the seriousness of the offence increases. 

59In my view the objective seriousness of your offending is not such as to significantly detract from the need to promote your rehabilitation. 

60Further, I do not consider there is a need for my sentence to specifically deter you from reoffending. 

61The central question for me is whether to impose a custodial sentence or not, as I am sure you are acutely aware.  In the intervening period between plea and sentence I had you assessed for both a community corrections order and Youth Justice Centre and you were found suitable for both.  You told the Youth Justice worker that you believed you did not know Liana’s age until after your first act of sexual intercourse.That was the first time you made such a claim and it is not the way the case has been presented by Mr Tiwana on your behalf.  In my view it was an attempt to minimise your culpability and I do not accept it.Nevertheless, it does not change my view of the appropriate disposition. 

62It is clear that a community corrections order has a punitive element and that it can, in appropriate cases, achieve all the sentencing purposes, including denunciation and general deterrence whilst promoting rehabilitation. The suitability of properly conditioned community corrections orders of lengthy duration for serious offences was only recently affirmed by our Court of Appeal.[12] 

[12] Borg v The Queen [2020] VSCA 191.

63Notwithstanding you have committed a serious offence for which the standard sentence is six years, having regard to the objective gravity of your conduct and your powerful mitigating factors, I have concluded that in your case all the relevant sentencing purposes can be met by the imposition of a community corrections order.

64During your community corrections assessment you expressed concern about co-managing the obligations of the order and your studies and part time employment.  The Corrections officer advised you that flexibility would be afforded you with appointment times, but that the order would be a priority.  You should be under no misapprehension about that.  By placing you on a corrections order I am giving you an opportunity to avoid a custodial sentence.  It is not a soft option. To satisfy all the sentencing purposes the order needs to be punitive as well as rehabilitative.  Although the Office of Corrections have currently suspended their community work program I am going to order that you complete a considerable number of hours.  Because of the length of the order there should be no difficulty in you doing that once the work program is restarted. For the benefit of Corrections Victoria I want to make it clear that is my intention that you complete the community work hours once that program recommences.  Even if that means you do not start the work component of your order for another year or even longer, you are still to complete the number of hours I have ordered in that shortened time. 

Sentence

65Mr Yuen, if you could stand up please.

66On the charge of sexual penetration of a child under 16, I convict and sentence you to a community corrections order.  The order will last for three years. 

67You are to report to the Pakenham Community Correctional Centre within two working days.  Because of COVID-19 that will be by telephone. 

68As well as the mandatory conditions, and those mandatory conditions include that you not commit another offence, you must not leave Victoria without first getting permission to do so, you must obey all lawful instructions from and directions of the Secretary and there are other mandatory conditions as well, but as well as those, I have imposed some special conditions and they are as follows:

69You are to be under the supervision of a Corrections officer for the duration of the order;

70You are to perform 350 hours of unpaid community work over the period of the order;

71You are to undertake any offending behaviour programs as directed.  In that regard you will be assessed by the Forensic Intervention Service and you may be required to complete the Sex Offender Program. 

72I direct that all of the hours that you satisfactorily undertake in any programs are to be counted towards the 350 hours of unpaid community work. 

73Your counsel will explain that order in more detail.  You must make sure that you comply with that order because breach of the order is an offence in itself and in addition you are liable to be re-sentenced for the original offences.  If you breach the order re-sentencing you on the original offences is a real option and in that event you face the very real prospect of receiving a term of imprisonment.  By that time Youth Justice Centre will almost certainly not be available to you.

74I direct the Youth Justice Report be provided to Corrections Victoria for their assistance in administering the Community Corrections Order. 

Section 6AAA 

75If you had not pleaded not guilty to the charge and been found guilty by a jury, I would have sentenced you to three years' imprisonment with a non-parole period of two years. 

Sex Offender Registration

76As far as the sex offender registration is concerned you have committed one class one offence.  That means you will be a registered sex offender for
15 years unless I order otherwise, which I can only do in limited circumstances. You have applied for a registration exemption order which is not opposed by the police. As I indicated during the plea hearing I will grant that application as I am satisfied the criteria in s.11B(1) of the Sex Offenders Registration Act 2004 are met and it is appropriate to do so.

77Mr Yuen, do you understand the sentence that I have imposed?

78OFFENDER:  I do.

79HER HONOUR:  Do you understand the importance of complying with the corrections order?

80OFFENDER:  I do, Your Honour.

81HER HONOUR:  Are there any other matters that I need to attend to as far as counsel are concerned?

82MS JAMES:  No, Your Honour.

83MR TIWANA:  Your Honour, I think it is implicit in Your Honour's sentencing reasons but I simply refer to the fact that as part of the reasons the court must refer to the standard sentence and explain how the sentence imposed relates to that standard sentence.

84HER HONOUR:  Yes, you are right.  As you say it is implicit.  In my view it is appropriate to depart from the standard sentence for the reasons that I have said, the powerful mitigating factors, the objective seriousness of the offences as I have assessed it and the lower level of moral culpability and that is why I have imposed a corrections order rather than a term of imprisonment and have departed from the standard sentence.

85MR TIWANA:  Thank you, Your Honour.

86MS JAMES:  As the court pleases.

87HER HONOUR:  Just before I sign this there are a couple of other things.  Just to put everything on the record I will mark as additional exhibits even though in a sense they have been encapsulated in later exhibits but nevertheless the email from the prosecution dated 27 August 2020 in relation to the Doran discount that will be Exhibit D.  The email from the prosecution dated 2 September 2020 will be Exhibit E.  The further prosecution submissions will be Exhibit F and the further submissions in response to the matters raised by the prosecution will be Exhibit 5.

88One other matter is that the court has a schools program whereby students will come into observe court proceedings and normally they would actually come into court, but because of COVID-19 obviously that is not happening. Nevertheless, the court is still participating in the schools program and the way that is happening is by allowing students to observe hearings.  It is a matter for the school as to whether they think this type of hearing is an appropriate hearing given that it does contain some sexual aspects and some graphic language.  However, I do not particularly see any reason as to why it should not be otherwise available to them to view. So unless counsel have anything they want to say about that I was just really foreshadowing that it is possible that the plea of this matter and the sentence will be viewed by school students.

89MR TIWANA:  Yes, Your Honour, I have nothing to say in respect of that.

90HER HONOUR:  Ms James, I take it you do not have anything to say?

91MS JAMES:  Your Honour, there is no comment from the prosecution on that matter.

92HER HONOUR:  Thank you.  I have signed the corrections order so if that could be taken over to Mr Yuen?  That concludes the proceedings so Mr Yuen can be released from the dock and can I again thank counsel for their assistance in this matter and we will adjourn the court.

93MR TIWANA:  Thank you, Your Honour.

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