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CDPP v Yu [2022] VCC1685

The offender was sentenced following pleas of guilty to 1 count of using a carriage service to access child pornography and 1 count of using a carriage service to access child abuse material contrary to the Commonwealth Criminal Code. Additional carriage service offence taken into account pursuant to s 16BA.

Nature and Circumstances: The number of images and high number of children recorded clearly demonstrates that all of the charges are of a high level of seriousness. Although there is no evidence that the offender accessed or possessed any of the images for the purposes of sale or further distribution, the peer-to-peer platform they used did permit others to access and distribute the materials the offender downloaded. Offending reflects a course of conduct and must be seen against a 20-year history of paraphilic sexual deviance.

Contrition: Guilty plea is evidence of remorse and is to be given qualified weight. Although offender gave a full and frank account of their lengthy history of accessing and deriving sexual gratification from viewing child abuse material and recounted their shame and self-loathing for doing so, forensic psychologist is of the view that the offender’s remorse and regret are primarily still associated with the impact on themselves, their career, wife and children. Forensic psychologist’s opinion is that the offender still has limited insight into the impact of their offending on the child victims whose images they accessed and stored.

Delay: There has been some delay in sentencing. Offender’s plea hearing was originally listed for early April this year. That was less than a year after being charged, which is still relatively brief, but delay is an ordeal for anybody awaiting sentence. Hearing date was vacated as offender was at acute risk of self-harm. A further delay was then occasioned by the need to await clarification from the Court of Appeal as to the approach to family hardship when sentencing for Commonwealth offences. Offender’s path from plea to sentence was protracted. Additional matters arose which required a further adjournment to allow the offender’s legal advisers to seek and present to the court further evidence. It is accepted that all of these matters in relation to the offender’s mental health and need to gather further evidence are properly described as matters beyond the offender’s control and has made the entire period more distressing and onerous for the offender.

Mental Condition: Since being charged the offender has experienced a depressive episode which, despite intensive treatment, persists at what has been assessed as a moderate level or degree of intensity. Since the offender’s early 20s, they have experienced a number of depressive episodes and now properly attract a diagnosis of depressive disorder. Offender’s history reveals dislocation and social and cultural isolation following their family’s arrival from China, exposure to family violence and sexualised attention at primary school. Psychologists agreed that offender has poor social skills, a history of depressive mood disorder, prominent traits of avoidant personality and have developed a range of long-term, well-entrenched maladaptive behaviours as a result. Fifth and sixth Verdins limbs are clearly enlivened. It is accepted that offender’s depressive symptoms are still being experienced at a moderate degree of intensity and that imprisonment is likely to weigh more heavily on them than a person not suffering from depression.

Family Hardship: Offender’s children are only 3 and 5. Offender’s younger daughter has been diagnosed with global developmental delay (speech and social) and selective mutism. Offender has been actively involved in their younger daughter’s care which has been an important factor in their own recovery. Offender’s parents-in-law have continued to remain in the home and provide assistance with the children and their care but have their own health needs and limited English which limits what they can do. Offender’s family has come to rely on the offender to assist not only with their children, but also in assisting the health of their parents-in-law.

Rehabilitation: Offender’s prospects of rehabilitation, whilst at one level good and promising, at another level must be regarded as guarded. Offender has a long established, well entrenched and disturbingly deviant paraphilic sexual disorder. Forensic psychologist’s assessment of the offender posing a moderate risk of recidivism to sexual offending, which is markedly higher than the general cohort of non-contact child sex offenders, is accepted. Despite the genuineness of the offender’s willingness to engage, it is clear they are not well enough yet to embark on treatment.

Offender sentenced to 2 years and 6 months imprisonment, to be released after 12 months on recognisance and to be of good behaviour for 3 years with conditions.
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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