Following a dispute of facts hearing the Tribunal made various factual findings in relation to the way in which the respondent accessed and stored CEM and the period of time over which the conduct occurred.

In this decision, the Tribunal considered the appropriate sanctions to impose on the respondent. Expert evidence was adduced as to the question of risk and insight.

• The respondent had been deliberately vague or untruthful about the extent duration and seriousness of his misconduct during the course of the criminal proceedings.
• The respondent has failed to take positive steps to seek therapy, to develop insight and to address his behaviour.
• The respondent's return to the use of adult pornography demonstrates a continuing and ongoing lack of insight as to the cause of his offending with CEM and his risk of resuming that behaviour. It is also demonstrative of his addiction to pornography and, combined with a failure to attend therapy, his lack of rehabilitation.
• There is no evidence before the Tribunal of the development of any genuine insight by the respondent about the cause of his misconduct, how serious it was, and its impact on others.
• In the context of imposing disciplinary action, there is no need to quantify the extent of the risk of future misconduct in order for the Tribunal to find that there is a risk to the public of further misconduct by this practitioner.
• The Tribunal is not satisfied that there are substantial protective factors in play to guard against the re-occurrence of the conduct especially with reference to the chronicity, duration, frequency and characterisation of the respondent's viewing of pornography

The Tribunal imposes a reprimand, cancels the respondent's registration as a medical practitioner, disqualifies the respondent from applying for registration for a period of 8 years commencing on 25 March 2021 and orders that he pay the complainant's costs of and incidental to these proceedings.

Administrative and Disciplinary - Health practitioner- Professional misconduct - Possession of child pornography - Relevant factors when imposing disciplinary action - Longstanding sexual interest in children - Lengthy period of possession and use of child pornography - Deliberate intent in obtaining CEM via the "dark web" - Volume and nature of the CEM -- Lack of insight - Lack of empathy for child victims - Degree of risk poses in future - Failure by respondent to demonstrate rehabilitation or reformation - Flaws in character render respondent unfit to practise - Orders imposed to protect the public and the integrity of the medical profession - Respondent reprimanded - Registration cancelled - Disqualification from applying for registration for 8 years

Health Practitioner Regulation National Law (South Australia) Act 2010 s 196

Child Sex Offenders Registration Act 2006

Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545

Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630

New South Wales Bar Association v Evatt (1968) 117 CLR

Health Care Complaints Commission v Do [2014] NSWCA 307

Health Care Complaints Commission v Litchfield [1997] NSWC 297

Ex Parte Tziniolis (1966) 67 SR (NSW) 448

Optometry Board of Australia v Bhoola [2021] SASC 51

Nursing and Midwifery Board of Australia v Pang [2018] VCAT 1221

Nursing and Midwifery Board of Australia v Brearley [2012] QCAT

Nursing and Midwifery Board of Australia v Hindley [2019] VR 22

Medical Board of Australia v Hock Lee [2019] SACAT 72

Pharmacist Board v Gordon [2010] QCAT 181

Medical Board of Australia v Voon [2018] VR 155

Lee v Health Care Complaints Commission [2012] NSWCA 80

Marin v Chiropractic Board of Australia [2020] SASCFC 74

1. The Medical Board of Australia referred a complaint concerning Dr Billy Li Yu to the Tribunal under s 196(1) of Schedule 2 of the Health Practitioner Regulation National Law (South Australia) Act 2010 (National Law).

2. The Board alleged that Dr Billy Yu (the practitioner) had engaged in "professional misconduct" within the meaning of the Act.

3. The conduct alleged was that Dr Yu had downloaded child exploitation material (CEM) from the "dark web" and had possessed and viewed that material over an extensive period of time. CEM is the legal term for the nature of the material; the public knows it as 'child pornography'.

4. Dr Yu had been convicted of possession of child exploitation material (basic offence) in March 2017. He was found in possession of 558 files comprising 481 image files, 60 videos and 17 system files containing CEM.

5. Dr Yu, who is now 35 years of age, remains on the register of medical practitioners. However, he has been subject to onerous conditions since the date of his arrest, namely that he must not consult, examine, prescribe for, see, advise, or treat any person under 18 years of age any may only practise as a medical practitioner from locations that have been approved by the Board. We understand that he has not practised medicine since the date of this arrest in November 2015.

6. A hearing was held in November 2019 to resolve a dispute on the facts about the length of time that Dr Yu had engaged in the conduct of accessing, downloading, viewing and storing CEM to establish the exact characteristics of the alleged conduct. The hearing was complex and involved two expert witnesses giving evidence to the Tribunal over a number of days regarding the forensic analysis of Dr Yu's computer and hard drive. Dr Yu elected not to give evidence in the fact-finding stage of the proceedings, which was clearly his right.[1]

7. In our reasons, dated 24 November 2020, the Tribunal made factual findings as to the duration of the conduct and found that Dr Yu's conduct in all of the circumstances amounts to professional misconduct as defined in s 5 of the National Law.

8. We found that Dr Yu had engaged in conduct that was substantially below the standard reasonably expected of a registered health practitioner and that, at the time of the conduct, he was not a fit and proper person to be registered.

9. Of relevance to our decision on sanction it is necessary to repeat here some of our main findings about the duration, nature or characteristics of the conduct.

• Involved criminal conduct for which he was convicted and sentenced to an immediate term of imprisonment (suspended) after pleading guilty. (The Tribunal's factual findings about the extent of the conduct departed from the facts upon which the Magistrate sentenced Dr Yu in the Magistrates Court). He is now a Class 2 offender on the Child Sex Offenders Registration Act 2006 until 2025.
• Involved the possession of 558 relevant CEM files, comprising 481 images files (photos and animations), 60 videos and 17 system files.

Of those, 238 image files and 20 videos contained Class1 CEM (involving child nudity but no sexual activity). These images and video files depicted children apparently aged between 14 and 17 years save for one video file which depicted a female who was assessed as being about 12 years of age.

53 image files and 33 video files were classified as category 4 CEM (involving sexual penetration in various forms involving children).

The CEM generally appeared to depict children apparently between the ages of fourteen and seventeen years of age, although there was one photo image of child who appeared to be 12 years of age.

• Was prolonged and sustained - Dr Yu had first accessed child pornography on the internet when he was a minor (in at least 2003), he had downloaded and saved CEM files on his computer from as early as 2 March 2010 until March 2012 and was downloading and viewing child exploitation material on the day before his arrest in November 2015. He was viewing CEM in the 'cloud' or online between at least October 2015 and November 2015.
• Demonstrated that Dr Yu had accessed CEM for at least a decade and had an active interest in accessing and downloading CEM for 5 years and 8 months, including a period of time when he was working as a medical practitioner.[2]
• Involved him revisiting and accessing downloaded files (photos and videos) of CEM in his library of stored CEM and viewing CEM online or off-site in "the cloud" for his personal sexual gratification up until the date prior to his arrest.
• Was deliberate, sophisticated, determined and covert - he had downloaded various computer applications and browsers for the purpose of anonymously and covertly searching the "dark web" to communicate with like-minded individuals sharing CEM in order to access and possess CEM and to conceal his illegal conduct.
• Demonstrated a significant determination and a persistence to acquire relevant computer browsers and applications in order to knowingly and actively engage in illegally accessing, possessing and viewing CEM online.
• Demonstrated an extensive prurient interest in children for his own sexual gratification - some of the CEM found in his possession was category 4 on the CETS scale, meaning it involved the sexual penetration of children by adult males and was sexually explicit, abusive and exploitative of children.
• Disregarded the interests of children and involved active participation in an activity that involved the abuse of children.
• Involved him being deliberately vague or untruthful about the extent and duration of his usage of CEM in the police record of interview, to the Magistrate at his sentencing hearing, to his counsel in the criminal proceedings, to his psychologist Mr Elmer and his psychiatrist Dr Begg. Given our factual findings, we found that Dr Yu had intentionally downplayed or minimised the extent of his involvement with CEM online.
• Demonstrated that at the time of the conduct he lacked the good character and integrity to practice as a professional in relation to children and vulnerable others.
• Would bring the medical profession into disrepute.
• Would be detrimental to the reputation of, and the public's trust in, the medical profession.

11. The matter was adjourned for some time to enable Dr Yu to obtain some psychological evidence relevant to disciplinary sanction.

12. A further hearing was held over two days in March 2021 to inform the question of disciplinary sanction. Dr Yu gave evidence on his own behalf. The respondent called a clinical psychologist, Dr Birgden, to give evidence primarily directed to the question of the risk of Dr Yu re-engaging with the conduct of viewing or downloading child pornography in the future, the risk of him progressing to "contact offending" and to consider the extent of his insight into the offending. Dr Birgden had conducted an assessment of Dr Yu following one consultation utilising various assessment tools.

13. In response the Board called forensic psychiatrist Dr Craig Raeside to provide an opinion about the question of risk and insight. Dr Raeside had not examined Dr Yu but had been provided with the professional reports, certain other relevant materials and the Tribunal's decision on the dispute of facts hearing.

14. The evidence we heard at the sanction hearing touched on opinions regarding the pathological characterisation of his conduct (whether it was addictive or not), Dr Yu's degree of insight into his misconduct, any steps that he has taken towards rehabilitation and the degree of risk that he might pose to the public in the future.

15. Our findings following the sanction hearing are relevant to whether Dr Yu remains unfit to practise medicine, and whether his registration should be cancelled, and he be disqualified from seeking re-registration for a period of time and, if so, for how long.

Purpose of disciplinary action, acceptance of sanctions and delay

16. In his final written submission Mr Dadds, for Dr Yu, has acknowledged that it would be appropriate for the Tribunal to reprimand Dr Yu, cancel his registration and disqualify him from applying for re-registration for a period.

17. Whilst acknowledging that Dr Yu "has work to do on the topic of insight and rehabilitation" Mr Dadds implored the Tribunal to "take a merciful approach to disqualification".

18. It is clear, however, that the purpose of a disciplinary sanction is not punitive but is protective of the public and of the maintenance of proper standards within the profession.[3] Any focus on the impact on the practitioner and considerations of "mercy" would demonstrate an incorrect approach by the Tribunal to sanction.

19. In New South Wales Bar Association v Evatt [4] the High Court found that the relevant conduct by a barrister demonstrated that the barrister was unfit to practise and stated:

The Supreme Court thought, moreover, that as the exercise of its disciplinary powers was, to some extent, a punishment for wrongdoing, mercy might be shown towards a young man who had not understood the error of his ways. The power of the court to discipline a barrister is, however, entirely protective, and, notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved.... The respondent's failure to understand the error of his ways of itself demonstrates his unfitness to belong to a profession where, in practice, the client must depend upon standards as well as the skill of his professional adviser. (Our emphasis)

20. Part of the object of imposing a disciplinary sanction which denounces the misconduct is to provide deterrence to the individual practitioner, but it is also to send a message about such conduct to the general body of practitioners, to maintain the confidence of the public in the profession and to protect the public.

21. It is important to remind ourselves in this matter that the focus of our approach to disciplinary sanction is not confined to the same considerations as those which a criminal court takes into account when considering the release of a sexual offender on a supervision order, or on a bond without supervision. For that reason, we approach the evidence of clinical psychologist Dr Birgden with caution and note that our focus is not exclusively on the practitioner and his risk of re-offending or re-engaging with the misconduct.

22. We agree with the Board's submission that simply focussing our attention on an attempted quantification of Dr Yu's risk of re-offending would lead us into an error in our approach to disciplinary sanction. The risk of his re-engaging with the activity of online viewing of CEM is merely one relevant issue for us to consider.

23. We agree with Mr Jacobi, counsel for the Board, in his written submission that:

10. The Tribunal's task is necessarily wider than the individual practitioner. It is concerned with the profession more generally and the confidence of the public in the profession which it must have in order to be able to function effectively and efficiently. It is also concerned with confidence in the regulatory system.

11. Even as to the individual practitioner, the exercise is concerned with future professional conduct not merely the chance of future criminal conduct. That is because the professional schemes impose a higher standard on professionals. They govern a wider range of behaviours and interests which are regulated because of the status and privilege of registration as a professional. The disciplinary task is therefore concerned with issues of professional suitability and the unique circumstances in which the public and children come into contact with professionals. That is why it is concerned with issues of character, including engagement in behaviour that involves an abuse of power and issues of honesty. That does include the potential to re-offend in his professional career in a professional context. (Our emphasis)

24. Accordingly, given that focus, the disciplinary action that is necessary to protect the public, maintain proper professional standards and maintain the public's confidence in the profession may have a greater detrimental effect on the practitioner than would be appropriate if punishment was the sole purpose of sanction.[5]

25. We are reminded that medical practitioners are placed in a position of considerable power in relation to patients, which includes being empowered by virtue of their position to have intimate physical contact with patients (often unsupervised) and to be privy to a patient's confidential medical and psychological information. That contact with patients regularly extends to the most vulnerable of patients, namely, children and those with mental incapacity.

26. Members of the public therefore expect medical practitioners to be to be trustworthy and hold high moral and ethical standards. Registration in this profession carries with it not just an expectation that the individual holds the academic qualifications to be a medical practitioner but is held out to be a person who is of the highest character, and who can be entrusted to provide care and treatment to all patients including children.[6]

27. The conduct in this case occurred outside of medical practice but impacts directly on the practitioner's suitability to work with patients, particularly children. The nature and extent, duration and characteristics of his misconduct, what this says about his character, and what he can establish as to the reformation of his character, go directly to the question of whether he is a fit and proper person to provide medical care and attention to the public, including to the most vulnerable members of society, namely children.

28. We note that over five years have now passed between the date of Dr Yu's arrest and the date of the disciplinary sanction hearing in the Tribunal. That passage of time elapsed during the course of the criminal court proceedings, the Board's subsequent investigation and laying of the complaint, and during the course of the Tribunal proceedings.

29. The authorities suggest that, in a disciplinary context, the lapse of time or any delay in investigating or prosecuting matters is of itself irrelevant, but what is relevant is what happens during any period of delay.[7] For example, a person who was not fit and proper to practise at the time that the conduct occurred may well be able to demonstrate that they are now fit and proper to practise. Issues such as a reformation of character and behaviour are relevant to sanction.

30. In this respect we refer to the following excerpt from the Full NSW Supreme Court in Litchfield:

The first matter referred to by the Tribunal was that the events were of "considerable antiquity". The oldest complaint dated back over 9 years and the others 4 years or more. Some 2 years and 6 months of this period was occupied with the criminal proceedings relating to LW. A further 1 year and 5 months elapsed between the initiation of proceedings in the Tribunal and its final orders. There was therefore no relevant delay in relation to the LW complaint but the delay since the 1987 incident was over 5 years.

In a case such as this the lapse of time takes on another aspect. The findings of the Tribunal establish that the doctor engaged in inappropriate sexual conduct with 3 female patients in 3 different practices at different times over a period of 5 years. The doctor denied that he had committed the conduct alleged and the proceedings were strongly defended. No explanation was offered which made it unlikely that the conduct would occur again.

Moreover, there was nothing to suggest that the doctor had become a changed person during the 4 years since the last of the incidents. The nature of his defence precluded any admission of guilt or expression of contrition. In these circumstances the long period between the first and last complaints was a factor which operated in favour of an order for removal. There was no claim that these incidents reflected "some isolated or passing departure from proper professional standards amounting to something less than proved unfitness". See NSW Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177 at 183.

In cases such as this, the Tribunal and this Court should not assume that the doctor has become a reformed person. As Walsh JA said in Ex Parte Tziniolis (1966) 67 SR (NSW) 448 at 461:

"Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that, some years later, he has established himself as a different man".

Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public, but also for the protection of the profession.

Lapse of time since the events giving rise to a complaint will be relevant in determining whether disciplinary proceedings can be fairly determined or should be stayed as an abuse of process. It may also be relevant in determining whether the doctor has undergone a reformation of character and behaviour, or whether the incidents can be viewed as isolated or passing departures from proper professional standards or attributed to youth or inexperience. Lapse of time appears to have no other relevance and the Tribunal erred in relying on it as they did. (Our emphasis)

31. Finally, in contrast to criminal proceedings, we note that the personal circumstances of the practitioner (age, illness, impact of sentence on the individual through loss of employment, or on his family etc.) are of relatively slight weight, unless the personal circumstances relate to issues such as reformation, insight or contrition.[8]

Findings on the factual issues relevant to sanction.

32. We found that Dr Yu's conduct amounts to conduct that is inconsistent with the practitioner being a fit and proper to be a registered medical practitioner.

33. We find that Dr Yu continues to be a person who is not a fit and proper person to hold registration in the profession.

34. We find that he remains a person of poor character and is not fit to remain registered as medical practitioner for the following reasons:

(a) Dishonesty by contradictory accounts and continued minimisation of conduct

35. We repeat our finding that Dr Yu had been deliberately vague or untruthful about the extent duration and seriousness of his misconduct during the course of the criminal proceedings.[9] Our findings in this respect have not been altered by the evidence we heard at the sanction hearing.

36. We found that, prior to and during the finalisation of the criminal proceedings, by his vague and conflicting accounts to the police, Mr Elmer, Dr Begg and (via counsel) to the Magistrate,[10] he had misrepresented the facts regarding the extent of his online illegal behaviour.

37. The Tribunal has found that he deliberately accessed CEM via the 'dark web' for 5 years and 8 months, not for the much shorter period ('in the year before his arrest' i.e. approximately 12-18 months) that was put to the Magistrate in sentencing submissions.[11]

38. The extent of the difference between the version of the duration of the offending as put to the court and our findings about his actual conduct cannot, in our view, be described as simple confusion or minor conduct minimisation. One version demonstrates a recent, less entrenched interest in CEM as opposed to our finding which demonstrates prolonged, entrenched and deliberate conduct. We consider that the extent of the difference between the two versions demonstrates a misrepresentation or distortion of the truth.

39. Accordingly, we do not accept the view expressed by Dr Birgden that Dr Yu's conduct minimisation is not about honesty or dishonesty but is a 'natural mechanism' that "people who've been found guilty ... somehow have to justify to themselves". [12]

40. We are not persuaded that this difference in the version of events was through confusion or a natural tendency of a criminal to downplay the extent of his conduct to himself.

41. In our view, this was entirely self-serving conduct by Dr Yu. It enabled him to achieve a lenient outcome in the criminal proceedings and to avoid a term of unsuspended imprisonment. We repeat our earlier factual findings that Dr Yu had intentionally downplayed or minimised the extent of his involvement with CEM online prior to the disciplinary sanction hearing.[13]

42. We agree with the Board's submission that this lack of frank acceptance of the extent of his involvement with CEM has continued during both stages of the disciplinary proceedings before the Tribunal.

43. It was only after the disciplinary complaint had been filed and on being confronted with the forensic computer evidence in the Tribunal proceedings that Dr Yu admitted (in the filed Response) that the conduct extended to an unspecified time 'prior to 2011'.

44. During the dispute of facts hearing Dr Yu disputed that conclusions could be drawn from Detective Marsland's evidence about the earliest dates of possession and usage.[14] After we published our findings on the facts, Dr Yu accepted that the conduct commenced in 2 March 2010.[15]

45. The admission in the filed response, and the subsequent acceptance (at the sanction hearing) of the fact of 2 March 2010 as being the earliest date of possession (following the hearing before us in November 2019),[16] reveals that the differing accounts of the dates of his possession and of his access to CEM given to Mr Elmer, Dr Begg and the Court were not provided through confusion but were, in our view, dishonest.

46. Only now does Dr Yu say that the Detective Marsland's spread sheet accords with his viewing, downloading and storage behaviour. [17]

47. We reject Dr Yu's explanation in the tendered affidavit during the sanction hearing about the pattern of his usage where it conflicts with the Tribunal's findings and regarding the reason for the contradictory dates given to Mr Elmer, Dr Begg and the Court.[18]

48. We also reject his evidence about the "innocent" explanations for the various computer applications and browsers on his computer.[19]

49. The Tribunal made clear findings about the inescapable inference that the various applications and the TOR browser were acquired and used by Dr Yu to primarily support his online illegal activity of accessing and downloading CEM, and to avoid detection. As we stated in our reasons,[20] there may well be uses for those applications other than for accessing CEM but by continuing to offer other "innocent" explanations, we find that Dr Yu continues to downplay and minimise his conduct and fails to frankly accept the extent of his criminal and unprofessional behaviour.

50. The Tribunal found that he deliberately set about to covertly access the dark web in order to access and download CEM. His conduct demonstrated that he persisted with this behaviour for years knowing it to be illegal and wrong. By continuing to qualify his online conduct at the sanction hearing it is clear to the Tribunal that Dr Yu is seemingly unable to frankly acknowledge to himself and to the Tribunal the nature and extent of the conduct. [21]

51. We agree with the Board's written submission that Dr Yu's account of his usage of CEM in his affidavit and during cross examination by Mr Jacobi was 'vague, lacked actual recall and smacked of re-construction based on the information in the police spreadsheet tendered during the Tribunal hearing'. We were unimpressed with Dr Yu's oral evidence about these matters.

52. Our view of Dr Yu's minimisation of the extent of his usage of CEM is not altered by the fact of his earlier admission to police about first viewing CEM as a youth. He has repeatedly failed thereafter to own up to the extent to his behaviour.

53. We also find that Dr Yu has downplayed the explanation about the manner of his entry into viewing and accessing online child exploitation material. His initial accounts suggested that this was accidental. The Tribunal found that his conduct in accessing online CEM was dogged, determined and deliberate.

54. We observe that he told Dr Jules Begg in 2016 (and Mr Elmer) that he had 'come across' child pornography on the Internet 'by chance'.[22] Later, however, to Dr Birgden, he stated that he had come across references to CEM and the dark web on adult pornography sites and it "piqued his interest".

55. It may be the case that he was first aware of the availability of CEM by chance, but in our findings, we have entirely rejected the explanation that he accessed CEM on the dark web by chance. There is nothing in the version of the facts now offered by Dr Yu that alters our findings in this respect.

56. Dr Yu has provided three different explanations for his motivation to access CEM.

57. He told Dr Begg that he had accessed child pornography out of 'boredom'. That explanation was accepted by the Magistrate as a basis for sentencing in the criminal matter.

58. However, in his affidavit he stated that a motivation for accessing the CEM was through "loneliness" and that "I became attracted to CEM on the Dark Net. I was looking for new and more sexually arousing stimulation by viewing post pubescent females". [23]

59. Later in the same affidavit he states that he had accessed CEM to deal with "sleep problems" and to escape thoughts of work. He describes this as a "stress-boredom-CEM cycle".[24]

60. The explanation that he accessed child pornography during times of stress was provided to Dr Birgden. Yet that was an explanation that was specifically rejected when he consulted with Dr Begg. In fact, he told Dr Begg that:

'when he was stressed, he said he would usually have his mind occupied by the stress or undertake an activity to relieve the stress, so that he did not need to look at pornography.... He did not report any particular stressors in his life. His parents live interstate and he is aware of a pressure from them to excel. This is not a new stress.'[25]

61. It was also an explanation that was specifically rejected when he consulted with Mr Elmer. He repeated an explanation to Mr Elmer that he viewed CEM when bored. He specifically rejected stress as an explanation for his behaviour.[26]

62. Accordingly, we reject Dr Yu's assertion that "I have been fully frank about everything to everyone".[27] He was not fully frank about the cause of and extent of his offending to Dr Begg, Mr Elmer, to the Magistrate's Court (through counsel), or to the Tribunal.

63. The respondent called Dr Birgden who provided a report [28] and gave some evidence at the sanction hearing about conduct minimisation as a risk factor to re-offending by CEM-only offenders. Dr Birgden had conducted a risk assessment of Dr Yu utilising various assessment tools to assess issues relating to the risk of recidivism as a CEM offender or as a contact offender.[29]

64. Dr Birgden's assessment of Dr Yu was based on her access to certain materials, including the Tribunal's statement of reasons, and in large part on her acceptance of his answers to various questions posed during her assessment. She has stated that "as a risk factor, minimisation needs to be extreme, which again is not demonstrated by Dr Yu".[30]

65. We do not accept the factual basis for Dr Birgden's assessment of the extent of Dr Yu's minimisation of his conduct or her observation that the Tribunal's findings about his conduct minimisation were a mere 'concern'.[31]

66. As detailed above, the Tribunal would describe Dr Yu's conduct as demonstrating dishonesty and a significant degree of conduct minimisation. It also goes to our findings that he is a man of poor character. In our view his conduct minimisation is also demonstrative of a person who has failed, or is simply unable, to take responsibility for the extent of his criminal and professional misconduct.

67. We also agree with the Board's submission that Dr Yu's conduct in not revealing the true extent and duration of his usage of CEM in the Tribunal proceedings has been motivated by an attempt to advance an argument that he is suitable for continued registration in the medical profession.

68. We agree; we find that his conduct minimisation has also been self-serving in the disciplinary process.

69. Dr Yu was entitled to defend the disciplinary complaint and put the Board to proof, but by initially advancing a different version of the extent of his CEM usage from that advanced in the criminal proceedings [32] and by now admitting (in his filed affidavit BY2 at [65]) after the dispute of facts hearing that the earliest date of his possession of CEM was in fact in early 2010 (as found by the Tribunal), he cannot now hope to have the benefit of a submission that he has been 'fully frank and co-operative with everyone'.

the longer a behaviour has gone on, that affects the risk, and...if he's reporting that it only went on for a year or so, then that...obviously would affect the assessment of him and...whether he's simply...distorting the truth, or whether he, in his own mind, is minimising it...

Obviously, if he's been dishonest, that's an important factor that goes to his character. (Our emphasis)

71. We agree with Dr Raeside's opinion in this respect.

(b) Failure to take positive steps to seek therapy, to develop insight and to address his behaviour

72. Given that over five years have elapsed since he was arrested for the conduct detailed on the complaint, we are particularly unimpressed that, since ending his therapy sessions with Mr Elmer, Dr Yu has been unable to demonstrate any positive self-initiated steps towards developing insight or understanding about his aberrant behaviour.

73. Dr Begg had recommended in 2016 that Dr Yu seek psychological therapy.

74. Dr Yu then saw Mr Elmer on six occasions (although in the final session no therapy was conducted). Mr Elmer stated that Dr Yu ceased therapy as he was moving to Melbourne and "he seemed satisfied with his current insight" and "did not feel further therapy was warranted".[33]

75. Yet Mr Elmer had recommended in his reports dated 29 January 2017 and 30 January 2019 that Dr Yu should continue in therapy. Significantly, Mr Elmer's recommendation was based on an identified need for Dr Yu to "continue to develop insight into the nature and experience of adult intimacy and the needs and rights of children".[34]

76. There is no evidence of Dr Yu's attendance at therapy since consulting with Mr Elmer in late 2016 and early 2017.[35] In our view this demonstrates that there has been no attempt by Dr Yu to understand and remedy the motivation for his conduct, to understand the psychological explanation for his aberrant behaviour, or to develop a greater understanding about the impact of his offending on children. Given the passage of time since being sentenced and the opportunity he has had to engage in therapy this is of considerable concern to the Tribunal.

77. We note that Dr Yu continues to show apparent reluctance and a continued lack of insight about the need to seek further therapy, yet he will agree to it if it helps him to re-enter practice. At the sanction hearing at page 22 of the transcript in response to a question from Mr Dadds:

Q: If your re-entry to the medical profession were, in any way, contingent on therapy, what would be your attitude to therapy?

A: I would be very open to therapy, um - I guess, I'd do anything to be able to ... re-enter practice.

78. At page 121 of the transcript he stated in cross examination:

I don't think further therapy is required for me at this stage**.** But issues ...people around me identified ... issues, I am open to therapy.

79. In evidence before the Tribunal Dr Birgden and Dr Raeside both recommended that Dr Yu should engage in therapy.

80. Dr Yu now says, in his counsel's final written submission, that he is prepared to engage in therapy as recommended by Dr Birgden and Dr Raeside (who both gave evidence after he had completed his evidence).

81. Unfortunately, we find Dr Yu's statement now, through counsel, to be disingenuous and to constitute an attempt to avoid a severe disciplinary sanction.

82. We are not convinced that Dr Yu genuinely seeks to develop insight into his conduct, rehabilitation for his behaviour, or an understanding about the impact of his conduct on the rights and welfare of children.

(c) Addiction to pornography and return to viewing of adult pornography

83. We accept the opinion of Mr Elmer (who had an opportunity over five therapy sessions to engage with Dr Yu) that Dr Yu's conduct is indicative of habitual or addictive behaviour. Mr Elmer described this in his report, dated 30 January 2019, as the "long term habitual nature of Dr Yu's reliance on pornography" and commented on "the power of its addictive cycle".[36]

84. Mr Elmer worked with Dr Yu to demonstrate an understanding that the use of adult pornography maintained the habit and that "an essential part of therapy was that Dr Yu would cease viewing all pornographic material". He stated that "Dr Yu reported that he had ceased to view pornographic material after the first few sessions of therapy."[37] We also note that this was a mitigating factor which played a part in the Magistrate's approach to sentence.

85. In his report dated 30/01/19 Mr Elmer stated that:

Evidence of rehabilitation would be to confirm that he is no longer viewing pornographic material or Child Exploitation Material. During our therapeutic sessions, Dr Yu had explored his need to view pornographic material and agreed that it was essentially an isolating experience that reinforced his avoidance of natural intimacy. Dr Yu reported on 13/01/2019 that he had abstained from viewing all pornographic material. (Our emphasis)

86. However, Dr Yu now admits that, after a period of abstinence, he has recently returned to viewing adult pornography with the knowledge of his wife.[38]

87. The Board called Dr Raeside, an experienced forensic consultant psychiatrist (who had the opportunity to consider most of the relevant information about this matter) to provide an opinion about Dr Yu's conduct in this matter relevant to sanction. Dr Raeside has not examined Dr Yu but had access to the relevant materials, including the Board's statement of reasons and the various tendered professional reports.

88. We were impressed with Dr Raeside's experience and his opinion evidence in this matter. We accept his opinion that Dr Yu's behaviour demonstrates an addiction to pornography. We note that Mr Elmer reached a similar view after seeing Dr Yu over many sessions.

89. We observe that Dr Birgden did not describe Dr Yu's conduct as 'addictive'. She preferred to describe the conduct as merely 'habitual' and did not consider the evidence demonstrated 'hours and hours of viewing of child pornography'[39]. To a great extent her opinion was reliant on the information that Dr Yu had provided to her.

90. We reject the premise for Dr Birgden's opinion in this respect.

91. We note that when arrested Dr Yu was in possession of a substantial collection of stored child pornography including 60 videos of CEM, some of which he had possessed for five years and 8 months. We made findings about his access to the CEM in our initial statement of reasons.[40]

92. We found it to be inconsistent with his admitted interest in CEM (and illogical) to suggest that, having gone to the trouble of downloading CEM via the dark web he was not revisiting and accessing his library of CEM. We also found that he was viewing CEM online. We do not accept Dr Yu's various accounts of the extent of his conduct and have found him to minimise the extent of his viewing of CEM.

93. The evidence before us establishes to our satisfaction that he engaged in 'hours and hours and hours' of viewing of CEM over many years. We prefer the opinions of Dr Raeside and Mr Elmer about the characterisation of Dr Yu's behaviour.

94. Dr Raeside commented on the pattern of Dr Yu's conduct in moving from the viewing of adult pornography to the viewing of CEM. He described the pattern of Dr Yu's behaviour as "addiction to stimulation". [41]

95. Dr Raeside conceded in cross examination that the conduct was not 'out of control type of addiction'[42] but (accepting Dr Yu's evidence about this) indicated that it was consistent with:

the addiction model when he describes it in his own affidavit - seeking out more material, more, you know, highly stimulating, arousing activities. The fact that he has periods in which he reports he didn't engage in ... then that may suggest, for various reasons, he's stopped to his credit. He's controlled it - whatever, but I think the underlying addiction is still there, just like any other substance or behaviour. It may wax and wane.

96. Dr Raeside noted that the duration of use is also relevant to understanding the extent of the addiction and the risk of resumption of that behaviour.

It's not like he used it for a month or used it for a year and then got caught. So, the longer one engages in addictive behaviour, first of all, the harder it is ...and the higher risk of resumption... the longer it's been going on.[43]

97. Dr Yu's resumption of the use of adult pornography and his lack of insight about this is, in the opinion of Dr Raeside, a matter that gives rise to concern about the risk of future conduct relating to the viewing of CEM.

It's a very high-risk type of behaviour to engage in...ultimately, it leads to a relapse. ... I would say, (it is) ominous ...he would've learned in therapy to avoid adult material.[44]

98. The panel members are equally troubled by the fact that Dr Yu has returned to viewing adult pornography (as mentioned in his affidavit and in evidence) given his past behaviour and the advice of his therapist, Mr Elmer. This was a particular focus of Mr Elmer's most recent report and the meeting he had with Dr Yu on 13/01/19.

99. We do not take any comfort in the fact that Dr Yu has told his wife about his return to the viewing of adult pornography and the fact that it is legal as stated by Dr Birgden.[45]

100. Mr Elmer had identified that Dr Yu's viewing of adult pornography was a pathway to his reoffending given that he appeared to have developed an addiction to the use of pornography. Dr Yu was advised in 2016 and again in 2019 that it would be appropriate to resist the urge to view adult pornography.

101. However, Dr Yu does not seem to consider there to be anything wrong with his return to viewing adult pornography; he clearly does not accept (or recall) the concerns raised by Mr Elmer in 2016/2017 and 2019 regarding issues relating to addiction and the pathway back to the viewing of child pornography.[46] This is the case even though he told Mr Elmer in 2017 and 2019 that he had ceased viewing adult pornography.

102. We find that Dr Yu's return to the use of adult pornography demonstrates a continuing and ongoing lack of insight into his viewing behaviour as one of the causes of his offending with CEM. It is also demonstrative of his addiction to pornography and, combined with a failure to attend therapy, his lack of rehabilitation.

(d) Lack of insight - lack of empathy for victims

103. The Tribunal members were unimpressed with Dr Yu's evidence as to his level of insight about the true extent of his conduct, the reasons for its wrongfulness in the eyes of the law and of society, the impact on children and the steps he needs to take to remedy his behaviour.

104. Dr Yu's counsel has acknowledged in his final written submission that Dr Yu 'has some work to do in this area.' This is an appropriate concession given how poorly Dr Yu presented in evidence. However, we find the concession to amount to a significant understatement about Dr Yu's lack of insight.

105. We find that there is no evidence before us of the development of any genuine insight by Dr Yu about the cause of his misconduct, how serious it was, and the impact on others.

106. Regrettably, we did not believe Dr Yu's hollow expressions of remorse, or that he has any understanding about the impact of his behaviour on children. He was almost completely unable to articulate this when asked by his own counsel to acknowledge the extent of his conduct. It is important to set out the evidence of this exchange in full:

MR DADDS: So, you certainly gained an understanding about why you were engaged in child exploitation material?

MR DADDS: Did you gain any understanding about the impact of your conduct?

DR YU: Yes, absolutely. In fact, (inaudible). I didn't think about the impacts of my actions, um, but, again, talking through with professionals, um, really helped me understand (inaudible).

MR DADDS: And what is your understanding about that?

Um, I guess - it is, um - (inaudible) - it's - it is quite negative for the children impacted by it, um - who have been exploited. Um, I guess, I think, in the past, I just put them as separate, um, that they weren't, um, children, and - but now, I guess, it's - it is - yeah, I have consideration of, um, adults exploiting the children, um, to make is, um - (inaudible), um, so, maybe, um, materials, and I guess I could - also considered that, um, I didn't consider the impacts of (inaudible) children when they - after they grow up, um, and how it could impact their lives further on down the track. One decision that they didn't make, ah, and - yeah.

MR DADDS: And does that, in any way, influence your attitude to engaging in viewing or accessing child exploitation material in the future?

DR YU: Yep. It's definitely, um, (inaudible), um, negative life, um. I don't - so, it's something that, now I know, um, I won't - now I know the (inaudible), I won't, um, engage in the future.

107. We observe that Dr Yu appeared nervous, was probably embarrassed and may have had difficulty expressing himself due to the circumstances and his reserved nature (and perhaps due to cultural considerations), but that does not explain his almost complete failure to articulate his remorse for his conduct, or his failure to understand its impact on victims.

108. When asked to give an account to the Tribunal about the impact of his behaviour on children he was still unable to give a meaningful explanation. He offered the following[47]

MEMBER MCENTEE: Can you talk about how you understand that the children come to be in the child exploitation, in the photos and the videos that you watched?

DR YU: Um, some of them are, there is an adult or another child pressuring the children to take off their clothes (inaudible). Some are, I guess, children willing to do it themselves for likes and views on social media and then there is the sort of, the more dark side of things where an adult is pressuring children to engage in sexual abuse and -

109. We were concerned at Dr Yu's apparent continued lack of understanding that the children depicted in the CEM obtained from the dark web were real children being sexually abused for the profit and prurient sexual interests of adults in the real world. He displayed no empathy for the children involved in the production of CEM.

110. His accounts to both Dr Begg and Mr Elmer do not disclose any recognition or articulation of the significance of the conduct for the victims and the impacts upon them. Mr Elmer expressed the view that, at the time of his first session in 2016, the practitioner "did not have insight into the fact that viewing child pornography disregarded the rights of children in that they could not consent to acting in the roles in which they were filmed". [48]

111. Mr Elmer went on to state that: "During treatment he came to realise how the child actors are being abused and the role his viewing of these images plays in maintaining the abuse. When he gained insight into this reality Dr Yu became visibly distressed." [49]

112. However, the Tribunal did not witness any level of insight or empathy during the course of his evidence and indeed this lack of insight was apparent to Dr Birgden during her recent assessment of Dr Yu.

113. Dr Birgden reported, when addressing the issue of lack of concern for others, "Upon this interview, Dr Yu commented that: "Registering with websites promotes the creation of sustaining content so pressures more boys and girls to produce the content" and that "You don't want [it to be] normalised which is why it's in the Dark Web." She observed that "this response sounded somewhat superficial with the impression that the full extent of the harm was not fully comprehended."

114. Dr Yu explained his confusion that, prior to engaging in therapy with Mr Elmer, he had viewed the children portrayed in CEM as not real people but 'actors'. His exchanges with Tribunal Members Rugless and McEntee at p164 and 165 of the Transcript on 25 March 2021 revealed an alarming lack of empathy or understanding about the consequences for the child victims of his offending.

115. Our impression of Dr Yu in this respect is entirely consistent with the following observation of Dr Raeside: It is necessary to set his evidence out in full:[50]

That was one of the major concerns in the material I read was his lack of insight into both the causes and the nature of the behaviour in which he was engaging. I think Mr Elmer spent some time...trying to address that, from what he says in his reports. The concern, of course, is when we're talking about an intelligent medical practitioner, you would hope that he had some insight [into] his behaviour - that the children are being abused and exploited, and it didn't require several sessions of therapy before he started to gain some insight, if that was the case. [T]he concern would be for him to have an intellectual understanding now, only, or has he truly got an empathic...emotional understanding about this? Obviously, that's important, because if you - if the people involved aren't simply objects of your desire, they're daughters and sisters and - of various people, then your behaviour usually changes towards it. And, of course, the nature of adult pornography, as well as child pornography, is to try to objectify people - they aren't real people...

And further in response to questions from Mr Jacobi:

Does it concern you that, four years after the offending was dealt with (inaudible), that, when an account is asked to be given, it doesn't demonstrate that deeper level of empathy?

Yes. It concerns me. And, I should say - I mean, this is common in many risk assessments. ...(inaudible) this to sound too cynical, but you would expect that he would say the right things by that stage, and, even if he didn't really have - didn't believe that he would have enough awareness that he would say the right things when being assessed, um, or recall the right things,... and the way, which has been reported by Dr Birgden, is sort of, as she said, somewhat superficial responses, ...so, I often factor that in when assessing people that ...they have at least (an) understanding (inaudible) (of what) should be said, and if they don't, then that's a concern.

116. Dr Astrid Birgden, clinical psychologist, conducted an assessment of Dr Yu and provided a report. Her area of expertise is to assess CEM offenders and to conduct a risk assessment, utilising various tools, usually to provide reports about whether there is a need for a criminal court to make short-term control or supervision orders in relation to sexual offenders.

117. We were impressed with Dr Birgden's expertise in this area; however, the Tribunal's focus in this matter is not solely on recidivism in a criminal context, but on issues relevant to the imposition of a disciplinary sanction.

118. Dr Birgden assessed Dr Yu against various risk factors and provided an opinion as to the extent of his insight, the perceived minimisation of his conduct and the likelihood of his sexually re-offending by accessing CEM in the future or through 'contact offending'.

119. All of the professionals (including Dr Raeside) opined that, once caught, charged and sentenced, the studies indicated that CEM-only offenders were a low risk of re-offending.[51]

120. Mr Elmer described him in 2019 as a "very low risk of re-offending".

121. However, we do not accept some of the factual basis for the conclusion advanced by Dr Birgden or Mr Elmer to demonstrate how low his risk of reoffending is relative to other CEM-only offenders.

122. Some of the 'pro-social orientation' or protective factors noted by Dr Birgden (and Mr Elmer) for supporting a view that Dr Yu as a CEM-only offender is a low risk of re-offending (like other CEM-only offenders) and less likely to become a contact offender were:

• the support of his partner and his family
• the absence of prior allegations/criminal conduct/convictions for contact or violent offences
• the fact of detection of his offending and the imposition of a criminal sanction being the 'driver for reformation'
• self-regulation and empathy skills
• the duration of 'paedophilic/hebephilic attraction' or 'sexually deviant attraction'.

123. Dr Birgden noted that a longer duration of 'paedophilic' or 'hebephilic attraction' was not necessarily significant as a risk factor because any duration of CEM use that exceeds two years is scored as a risk factor on the "CASIC" tool.

124. Mr Elmer's opinion about future risk was reliant on: Dr Yu's insight into the causes and outcomes of his offending behaviour; post-traumatic and punitive experience with being charged and suspended from practice; his supportive partner, his resolution of being worthy of respect and the inappropriateness of his offending behaviour; his ceasing viewing all pornographic material; the frequency and duration of viewing and the variance of items viewed.

125. The professional risk assessments are based to a degree on Dr Yu's responses to various questions and the acceptance of the truth of those responses. We agree with the Board's submission that the Tribunal is in as good, or a better position, than Dr Birgden and Mr Elmer to make an assessment now as to whether Dr Yu has been candid, honest and genuine in his responses to their various assessments and whether there are any 'protective factors' in play.

126. We have had the benefit of having closely considered all of the evidence about the extent of his misconduct and have observed the practitioner give oral evidence in the Tribunal at length.

127. We agree with the submission of the Board that there is no sufficient evidence before us in order for us to have any comfort about the existence of some of the alleged protective factors relied upon by Dr Birgden and Mr Elmer in their assessments.

128. Mr Elmer described Dr Yu as an "engaged and insightful client". Our findings are to the contrary.

129. Both practitioner's placed emphasis on the support of Dr Yu's partner as providing protection against future offending. However, much of the illegal conduct in this matter occurred whilst he was in a relationship with his wife. We note with some concern that his wife's family are unaware of his criminal conviction, or of these proceedings, and we agree with the Board's submission that when the fact of these proceedings become known there may, regrettably, be some impact on his relationship with his wife, her family and with his friends (especially those of his friends with children).

130. He has returned to viewing adult pornography whilst in a relationship with his wife.

131. We take no comfort in the fact that he has no prior convictions/no prior offending given the context of his behaviour of seeking, accessing and possessing CEM over at least 5 years and 8 months (with evidence of CEM viewing extending over a decade when he was a minor). The fact that he was arrested once and charged once does not detract from the seriousness of the continuing course of his misconduct.

132. The weight to be attached to the fact of the detection of his criminal conduct and the imposition of a penalty as a protective factor is low in our view against the background of our findings of his continuing lack of insight, non-engagement with therapy, and lack of expressed remorse or empathy for the victims of his misconduct. There is no evidence that the arrest and conviction has been a "driver for reformation". Accordingly, we do not consider that factor can be relied upon as a protective factor.

133. We note with concern that Dr Yu scored "some problem" in Dr Birgden's assessment in the areas of lack of concern for others, deviant sexual interest, sex as coping and intimacy deficits.

134. We have already set out the Tribunal's findings about the lack of Dr Yu's insight and our view as to the extent of his conduct minimisation.

135. For the reasons set out above, we do not accept Dr Birgden's assessment that he has "some" lack of concern for the victims involved in the production of CEM. We observed during his evidence a lack of victim awareness, lack of empathy and a failure to perceive harm to the children portrayed in CEM. We find that his lack of concern for the child victims of CEM is more significant than that observed by Dr Birgden.

136. Whilst Dr Birgden was not concerned about the duration of use of CEM as a risk factor, Mr Elmer did see duration of usage as a risk factor. We have found that the duration of Dr Yu's 'hebephilic' interest or attraction is extensive (over a decade of admitted viewing online and 5 years and 8 months of active access to and possession of CEM). We prefer Dr Raeside's opinion about the extent of prolonged, persistent usage as flagging a concern.[52]

137. Finally, we agree with the Board that, in the context of imposing disciplinary sanction, there is no need to quantify the extent of the risk of future misconduct in order for the Tribunal to find that there is a risk to the public of further misconduct by this practitioner. The fact of any risk of a medical practitioner returning to the viewing of child exploitation material, or of pursuing his sexual interest in children in some other way, is significant in the context of his registration as a medical professional.

138. In summary, we are not satisfied that there are substantial 'protective factors' in play (as suggested by Dr Birgden and Mr Elmer) to guard against the re-occurrence of his behaviour. We rely on our findings about the chronicity, duration, frequency and characterisation of Dr Yu's viewing of pornography.

139. We find that Dr Yu continues to demonstrate behaviour consistent with an addiction to pornography, no insight into the motivation for his conduct, no real remorse for his behaviour (as opposed to its consequences for him and his career), no desire to seek to explore the reasons for his accessing CEM on the dark web, and an inability to articulate the impact on the child victims of his behaviour, or to empathise with them.

140. We are troubled about his failure over the past five years to seek any therapy, the lack of any insight about his behaviour and his lack of any compassion or empathy for the victims of his conduct.

141. The practitioner has not demonstrated that he has taken any steps to date to seek to rehabilitate, nor can we be satisfied that he has any genuine inclination to redress his behaviour.

142. It is our view that Dr Yu remains a risk of returning to the viewing of CEM. We find that any risk (whether that be assessed as 'low' or otherwise) of re-engaging with the viewing of CEM is an unacceptable risk to the patients of a medical practitioner and to maintaining the standards of the profession.

143. These matters are directly relevant to Dr Yu's character and his current lack of fitness and propriety to practise as a medical practitioner.

144. It is clear that the practitioner's conduct is reprehensible and requires a severe disciplinary response, both to protect the public from a person who is unfit to practise and to bring home to the respondent and others the seriousness of this type of professional misconduct.

145. The practitioner has demonstrated significant character failings, a lack of insight, no empathy for his victims and has not been able to establish a reformation of character, or of any recent attempt to seek rehabilitation. He is a registrable child sex offender and will remain on that register until 2025.

146. The public must be assured that the professional misconduct demonstrated in this matter will not be tolerated from medical practitioners, that vulnerable persons will be protected, and that standards will be upheld.

147. Given our findings, Dr Yu should be reprimanded. Dr Yu accepts this outcome. We impose a reprimand.

148. Given the serious departure from professional standards of behaviour and the nature of the misconduct, and as we have found that Dr Yu is not fit and proper to continue in practice, there is no doubt that his registration should be cancelled.

149. Dr Yu accepts this outcome. We cancel Dr Yu's registration as a medical practitioner effective immediately.

150. Further, as also accepted by his own counsel's submission, there is no question that Dr Yu must be disqualified for a period before seeking re-registration.

151. The remaining question for the Tribunal is the length of time that we should impose as the period of disqualification.

152. Dr Yu's counsel pleads for a 'merciful approach' and a period at the lower end of the range. We repeat our observations about considerations of mercy in a protective jurisdiction.[53]

153. The Board's counsel invites a "significant period of disqualification" of "around 4 years". In recommending a period of "about 4 years" it appears that the Board was mindful of similar disciplinary sanctions imposed by other Tribunals and courts in Australia for conduct involving medical practitioners accessing or possessing child exploitation material.

154. We are mindful that other decisions regarding similar disciplinary action are of some guidance, but we should be careful, when determining the appropriate sanction in this matter, to consider the specific conduct of the respondent in the circumstances of this case.[54]

155. In a disciplinary regime we are not bound to follow the approach set out in other Tribunal cases for medical practitioners engaging in a similar type of conduct; it is important to recognise that each case turns on its facts and that the predominant consideration is the protection of the public.[55]

156. We have considered the disciplinary sanction imposed by various other Tribunals and SACAT in the following matters referred to us by the Board: Nursing and Midwifery Board of Australia v Pang [2018] VCAT 1221, Nursing and Midwifery Board of Australia v Brearley [2012] QCAT, Nursing and Midwifery Board of Australia v Hindley [2019] VR 22, Medical Board of Australia v Hock Lee [2019] SACAT 72, Pharmacist Board v Gordon [2010] QCAT 181. We have also considered the outcome in Medical Board of Australia v Voon [2018] VR 155.

157. They are all matters where the professional person was disciplined following conviction for accessing and possessing child pornography. Some of the matters involved practitioners whose behaviour had escalated to "up-skirting", grooming behaviour, or "loitering" around children. In one case the practitioner was on a 'paedophile restraining order'.

158. However, none of the other cases have the aggravating features of a longstanding sexual interest in children and lengthy possession and use of child pornography, involving deliberate intent in obtaining it via the "dark web". That, and the sheer volume and nature of the CEM found in the practitioner's possession, sets this matter apart factually from the other cases referred to above.

159. The other significantly concerning features of this matter are our findings about Dr Yu's lack of empathy for the child victims of his offending, his conduct minimisation (which we have found to be dishonest), his lack of insight or reformation (including by returning to the viewing of adult pornography despite the recommendations of his therapist) and his failure to attend therapy or recognise his need for therapy.

160. We are most concerned about a medical practitioner who does not appear to have the emotional intelligence to empathise with the child victims of his conduct, or the ability to reflect on or comprehend the impact of the abuse perpetuated on the vulnerable children involved in the production of child pornography. He remains a risk to the public.

161. In all of the circumstances, we consider that a period of disqualification of eight years, commencing on 25 March 2021, is the minimum period of disqualification that is required to reflect the gravity of the conduct, the respondent's continuing unfitness to practice, the need to protect the public and the integrity and standards of the medical profession.

162. Given the aggravating aspects of this matter we would have imposed a longer period, but we acknowledge that Dr Yu has effectively not been able to work since the day of his arrest in November 2015.

163. We recognise that this is a significant period of disqualification and (given his age and the need for re-training) may mean that the practitioner will not return to the practice of medicine. We have set out our findings at length in order to emphasise the aggravating and distinguishing aspects of this matter.

164. We are mindful that at the end of that period the practitioner may apply for re-registration and, at that time, he will need to establish his fitness to practice. The authorities suggest that a period of disqualification should be imposed to allow for that to occur and, accordingly, it might be argued that if the period of disqualification is too long it will not allow for that opportunity.

165. However, in reflecting on the length of the disqualification in this matter we are mindful of the comments of the Full Court of the SA Supreme Court in Marin v Chiropractic Board of Australia[56]:

However, there are specific considerations to which a Tribunal must have regard in fixing a period of disqualification, which are informed by the material received in the disciplinary proceedings which may not be revealed on an application for readmission to a health profession. An order of disqualification must 'bring home to the practitioner the seriousness of the practitioner's departure from professional standards'.[5] A Tribunal which finds professional misconduct and must fix the period of disqualification is best placed to make the assessment of the period necessary to achieve that purpose.

I accept that there is an overlap between the length of disqualification to be imposed for the purposes of enforcing professional standards and an evaluation of the suitability of the practitioner at a future time, but in assessing the suitability of an applicant it would duplicate the function of the Tribunal, and twice vex the disqualified practitioner, if a National Board were to ask itself whether an applicant, whose period of disqualification has ended, has been unregistered for a sufficient period of time to have learnt his or her lesson, and thereby to have become a suitable person for registration.

The Tribunal is responsible for professional discipline; its orders should be effectively final and not interim measures. A National Board should not have the function of second guessing the sanctions it imposes.

In any event, the Tribunal must also impose a period of disqualification which emphasises to other members of the profession that unprofessional conduct will be visited with significant sanctions.[5] Even though that consideration has some analogy with general deterrence,[5] its purpose is to maintain public confidence in the system of regulation of registered practitioners. If those wider considerations were absent, and if the Tribunal were to confine itself to a subjective assessment of when the particular practitioner is likely to have changed his or her ways, relatively shorter periods of disqualification might be imposed.

After a period of disqualification fixed by the Tribunal has expired, the function of a National Board, when considering an application for registration, is not to revisit the wider considerations evaluated by the Tribunal, but to assess how the applicant has responded to the sanctions and the steps he or she has taken to address and correct the root causes of his or her misconduct.

166. Considering those comments, we find that an 8-year period of disqualification is necessary in the circumstances of this matter to bring home the seriousness of the departure from professional standards demonstrated by the practitioner, to protect the public and to maintain the standards of the profession.

167. We do not consider that any lesser period would be appropriate in this matter.

168. We trust that the practitioner will immediately seek the psychological therapy recommended by the various professionals who have given evidence in this matter and that he will also seek counselling support.

169. Finally, we order that the practitioner pay the Board's costs of and incidental to the proceedings, to be agreed, or fixed by the Tribunal in default of agreement.

[2] When arrested he was working as a medical practitioner in the emergency department of the Royal Adelaide Hospital.

[3] Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545, 554 (Doyle CJ); Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630, 637 (the Court); New South Wales Bar Association v Evatt (1968) 117 CLR; Health Care Complaints Commission v Do [2014] NSWCA 307.

[5] Craig v Medical Board of South Australia supra.

[6] Richter v Walton (17/7/93) unreported.

[7] HCCC v Litchfield [1997] NSWC 297 (Litchfield); Ex Parte Tziniolis (1966) 67 SR (NSW) 448.

[8] Health Care Complaints Commission v Litchfield ibid; New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177; Optometry Board of Australia v Bhoola [2021] SASC 51

[9] Statement of Reasons MBA v YU [292].

[10] In the Magistrate's reasons: "On the last occasion in court, you stated through your counsel that it started in 2014; before your arrest of course in November 2015". The magistrate accepted Dr Yu had been "as accurate as you can be about this and I sentence you on the basis of the shorter estimate".

[14] We agree with the Board's submission that the dispute was not just confined to the earliest date being 2007.

[19] BY2 [45 - 51] and in evidence T 25 March 2021 p 152.

[29] We note that the Tribunal's focus is much broader than assessing Dr Yu's risk of re-offending. Our focus in on a character assessment, consideration of the public interest and the maintenance of the standards of the profession.

[35] Although Dr Yu saw Mr Elmer for the purpose of the provision of an additional report regarding sanction

[41] Page 103, 104 - 106 transcript - see also MB9 page 1.

[46] Or the Magistrate's comments about this in his sentencing remarks.

[51] The descriptor "low risk of reoffending" on the various assessment tools refer to an assessment of about a 3% chance of recidivism within a 6-year period.

[53] Reasons as to disciplinary action [14 and 15].

[54] Lee v Health Care Complaints Commission [2012] NSWCA 80.

[55] Marin v Chiropractic Board of Australia [2020] SASCFC 74, Kourakis CJ at [79].

[56] [2020] SASCFC 74 [70-74].