1. Under section 196(2)(a) of the National Law Mr Yu is reprimanded.
2. Under section 196(4)(a) of the National Law Mr Yu is disqualified from seeking registration as a registered health practitioner for a period of seven years from the date of the Tribunal's orders.
3. Under section 196(4)(b) of the National Law, Mr Yu is prohibited from providing health services, whether as an employee, contractor, manager, or volunteer, and whether remunerated or not, unless he is registered as a health practitioner. This includes, but is not limited to, a prohibition on providing a health service and/or using any title, that utilises or refers to the respondent's skills and knowledge gained as a medical practitioner.

1. The Medical Board of Australia (the Board) referred this matter to the Tribunal under the Health Practitioner Regulation National Law (Victoria) Act 2009 (National Law). The referral was dated 6 September 2023.
2. The referral contained allegations against Johnson Yu (Mr Yu) and was accompanied by a Notice of Allegations, dated 7 September 2023, with two specific allegations against Mr Yu.
3. The Tribunal held a hearing on 9 May 2025. At that hearing the Tribunal reserved its orders and decisions as to facts, findings, and determinations.
4. The Tribunal finds the facts alleged against Mr Yu proven, and that those facts constitute professional misconduct in relation to Allegation 1 and unprofessional conduct in relation to Allegation 2.
5. The Tribunal orders that Mr Yu be reprimanded; is disqualified from seeking registration as a registered health practitioner for a period of seven years from the date of the Tribunal's orders; and is prohibited from providing any health service, and using any title relating to health service, until he is registered as health practitioner under the National Law.
6. What follows are the Tribunal's reasons for those decisions. Unless otherwise indicated, all evidence referred to is in the Tribunal Book.

1. The Notice of Allegations is attached to these Reasons. In summary, Allegation 1 is that Mr Yu engaged in professional misconduct or unprofessional conduct in that between 6 August 2018 and 11 February 2021, he used a carriage service to access child pornography and/or child abuse material, and he possessed or controlled such material.
2. Allegation 2 is that Mr Yu engaged in professional misconduct or unprofessional conduct in that, he did not provide the Board with written notice of a relevant event within seven days of becoming aware of that event occurring, as required by section 130 of the National Law.

THE PARTIES' POSITIONS ON FACTS, FINDINGS AND DETERMINATIONS

1. The parties filed a 'Statement of Agreed and Disputed Facts, Findings and Determinations' in October 2024 (October Statement). This was superseded by a 'Statement of Agreed Facts and Findings' filed in November 2024 (November Statement). The October Statement is in the Tribunal Book. The November Statement was subsequently provided to the Tribunal. Both Statements have been agreed to by the Board and Mr Yu.
2. The October Statement indicated there was disagreement on some facts, principally in relation to facts and findings concerning Allegation 2. The October Statement contained general agreement about the facts and findings in relation to Allegation 1, and agreement about the determinations the parties sought from the Tribunal.
3. The November Statement shows the disagreement about the facts concerning Allegation 2 had not been resolved, but the parties agreed that the recommended finding for Allegation 2 was that it should be considered unprofessional conduct.
4. This meant the parties came to the hearing having agreed on findings and determinations they wished the Tribunal to make, and on the alleged facts concerning Allegation 1, but disagreeing on the facts alleged in relation to Allegation 2.
5. Where the parties provide an agreed statement, the principles applied by VCAT are well established, and succinctly summarised in Medical Board of Australia v Ong:[1]

The relevant principles for a Tribunal to apply in circumstances when there is an agreed statement of facts and findings, as in the present case, are that the Tribunal must be satisfied itself that the findings are appropriate and no agreement between the regulator and the practitioner can supplant that duty. However, any agreement between the parties is a highly relevant matter. Whether a person is legally represented may be an important consideration.

1. The Tribunal has carefully considered the evidence in the Tribunal Book, the October and November Statements, the written and oral submission from the Board, and the evidence given by Mr Yu. The development of the November Statement shows both parties have carefully considered their respective positions. Though Mr Yu was not legally represented at the hearing, he presented his case to the Tribunal in a calm, logical and reasoned manner.
2. In reaching our decision, we were satisfied that the agreed outcome in the November Statement was appropriate.

1. The Board was represented at the hearing by Ms F Holmes of Counsel. In addition to oral submissions from Ms Holmes, there was an Outline of Submissions filed with the Tribunal dated 21 March 2025.

1. A summary of the facts presented to the Tribunal by the Board included the following details. Mr Yu was a registered medical practitioner between January 2014 and 4 March 2021. Between 8 April 2019 and 4 March 2021 he held specialist registration in general practice. After working for some time in the Northern Hospital Paediatric Unit, Mr Yu commenced work as a general practitioner in Epping.
2. On 11 February 2021 search warrants were executed at Mr Yu's home by officers of the Victoria Police and the Australian Federal Police, acting together and comprising the Joint Anti Child Exploitation Team (JACET).
3. While executing the search warrants, JACET located and seized an iPhone, a laptop computer, a hard drive and a computer tower (Devices), all belonging to Mr Yu.
4. A preliminary examination of one of the Devices revealed a sexually explicit video showing sexual activity between adult males and younger males. This material was pornographic and was described as child abuse material (CAM).
5. Mr Yu was arrested on 11 February 2021 and charged with:
   • using a carriage service to access CAM contrary to section 474.19(1)(a)(i) of the Criminal Code Act 1995 (Cth) (Criminal Code); and
   • possessing CAM and using a carriage service to access or obtain the material contrary to section 474.22A(1) of the Criminal Code (the February 2021 charges).
6. Each of these charges carry a maximum penalty of 15 years imprisonment on conviction. During the next seven days Mr Yu should have notified the Board of the fact he had been charged with these offences. He was obliged to do this under section 130 of the National Law. The laying of the charges was a 'relevant event' within the meaning of section 130. He did not do so. This obligation arose because of the length of potential prison sentences that could be imposed on him if he was convicted of those offences.
7. Digital forensic analysis of the Devices continued between 20 February 2021 and 12 March 2021.[2] This showed that Mr Yu:
   • accessed and saved CAM material onto the Devices;
   • made pornographic searches involving the term 'doctor/s' where each search resulted in pornography where a doctor is abusing a patient or a child;
   • installed or caused to be installed an online peer-to-peer file sharing platform called EMULE, used to download child pornography and CAM, and which made downloaded files accessible to and downloadable by other users of that platform;
   • shared approximately 70.58 gigabytes of CAM using the EMULE platform;
   • between 6 August 2018 and 7 August 2018, accessed 12 child pornography files;
   • between 3 February 2020 and 22 June 2020, accessed 95 files constituting CAM;
   • between 23 June 2020 and 27 January 2021, accessed 2,263 files constituting CAM;
   • on 11 February 2021, possessed a total of 2,243 CAM files; and
   • possessed a 170-page manual entitled 'How to practice Child Love (A Pedo's Guide)' which included an introduction which reads:

This is an education and a step-by-step guide for adults to engage and practice sexual relationships with underage children. The purpose of this guide is to teach adults how to safely and harmlessly practice sex with children, without hurting the child, by using advanced and well researched child psychology and pedagogy.

1. Further, on 27 April 2021, Mr Yu was charged with making available CAM using a carriage service contrary to section 474.22(1)(a)(iii) of the Criminal Code.
2. In March 2022 Mr Yu was indicted on three charges. These were:
   • using a carriage service to access child pornography (as it was then defined), over a two-day period in August 2018, contrary to s 474.19(1) (as it then was) of the Criminal Code (Charge 1);
   • using a carriage service to access CAM over seven months from June 2020 to January 2021, contrary to s 474.22(1) of the Criminal Code (Charge 2); and
   • possessing or controlling CAM obtained or accessed using a carriage service, contrary to s 474.22A(1) of the Criminal Code (Charge 3).
3. Under section 16BA of the Crimes Act 1914 (Cth), Mr Yu admitted an additional offence that he used a carriage service to access CAM, contrary to section 474.22(1) of the Criminal Code. The Court took this into account when imposing the sentence for the second charge, even though it did not constitute a separate charge. The offending for this offence occurred from about February 2020 to June 2020.[3]

1. Mr Yu appeared in the County Court of Victoria in October 2022 and pleaded guilty to the three offences listed above. He was legally represented.
2. The Court convicted Mr Yu of all three charges and sentenced him to a total effective sentence of two years and six months imprisonment. The Court ordered that he be released from imprisonment after 12 months, subject to him entering a recognisance of $5,000 and promising to be of good behaviour for three years and be under supervision and undergo a sex offender treatment program within two years.[4]

The Board's submissions on findings for Allegation 1

1. The Board said that the parties had agreed on characterisation of the facts and asked the Tribunal to find that Allegation 1 was professional misconduct and Allegation 2 was unprofessional conduct.
2. In support of this position, the Board argued among other things, that in respect of Allegation 1 Mr Yu had breached the two Codes of Conduct which applied to him over the years he had been in practice, namely the 2014 Code and the 2020 Code.
3. The Board said that in breaching the Codes Mr Yu's conduct fell below the standard reasonably expected of a practitioner of his, or any, level of experience.
4. The Board argued that his conduct satisfied both paragraphs (a) and (c) of the definition of professional misconduct.
5. The Board said Mr Yu's conduct as alleged in Allegation 1 showed he was not a fit and proper person to hold registration.

The Board's submissions on findings for Allegation 2

1. It was put by the Board that Mr Yu had breached the requirements of the 2020 Code which dealt with reporting obligations. The Board argued the 2020 Code required doctors to be aware of their reporting obligations, and to report matters to the Board when their reporting obligations required they do so.
2. On 11 February 2021, the Australian Health Practitioner Regulation Agency (Ahpra) received a notification from a Victoria Police officer that criminal charges had been laid against Mr Yu. The notification advised that the charges were about accessing and possessing child abuse material.
3. Mr Yu may have been aware of his reporting obligations, but he did not comply with them. The Board is prepared to accept that Mr Yu thought the police would report that he had been charged to Ahpra and this would be sufficient to discharge him of his reporting obligations. The notification in the Tribunal Book makes clear that police told Mr Yu that Ahpra would be notified. The Board argues the notification by the police did not discharge the obligations which rested on Mr Yu.

1. The Board submitted that Mr Yu had shown little insight or remorse into his conduct and its consequences.
2. The Board asked the Tribunal to consider several cases which it said were similar to the facts concerning Mr Yu. These included Paramedicine Board of Australia v TNS;[5] and Medical Board of Australia v McGavigan.[6]
3. Counsel for the Board made the point that in asking for a seven-year period of disqualification from medical registration, the Board had taken into account that Mr Yu had been out of practice since 2021.

1. Mr Yu represented himself.
2. Among other things, Mr Yu told the Tribunal that:
   • he was now 36 years of age;
   • he had been born in China;
   • he came to Australia with his parents when three years old;
   • he is the eldest of three children;
   • he attended two primary schools;
   • he left the first primary school (First School) at about year 4 level because the family moved to a different suburb;
   • he finished his primary schooling at the second primary school;
   • he completed his secondary education at an independent boys' school in Melbourne; and
   • he studied medicine at Melbourne University, graduating in 2013.
3. After he graduated from University, Mr Yu married in 2013. He and his wife have two children, two years apart in age. He remains married and after his release from prison he returned to the family home. The household consists of himself, his wife, their two young children and both his in-laws, who live with them.
4. Mr Yu told the Tribunal he had worked as an intern at the Northern Hospital and at the Austin for about two years. This was followed by 18 months of work as a locum. He was in the General Practitioner Pathway training program for two years. After he completed that program, he commenced work at the suburban practice where he continued to work until his arrest in February of 2021.
5. He is currently self-employed and working as a manual labourer doing painting and gardening. He is trying to find steadier employment. His wife works as a nurse.
6. He has a long-term hope of regaining his registration. He recognises if he can do this it will come with conditions. He said would like to work in aged care and recognises this would have to be under supervision.
7. He told the Tribunal of a history of being abused as a child when he was in primary school at the hands of an older boy who had been designated to be his 'buddy'. He remembers the abuse continuing over his preparatory and first grade years in the First School.
8. Mr Yu spoke about his mental health problems and the impact his charging, conviction and imprisonment had on his mental health. He told the Tribunal about:
   • daily visits from a CAT team (Crisis Assessment Team) when the charges were laid against him;
   • his treatment as an in-patient at Box Hill hospital;
   • the fact he had two visits with a forensic psychologist, Mr Newton, who provided written reports to the County Court and apparently gave evidence at the sentencing hearing; and
   • saw a treating psychologist, Ms Tracey Allen, in Highett - this had been over a period of about 18 months, for a total of 10 to 15 consultations.
9. After discharge from Box Hill hospital, he was treated by a Brief Intervention Team and allocated a mental health nurse practitioner. His contact with her continued until he went to prison. He spoke to her quite frequently, he believes more frequently than he spoke to Ms Allen. The nurse practitioner provided him with prescriptions for anti-depressant medication.
10. He continues to take anti-depressant medication. He had experienced many suicidal thoughts, and anxiety, and had suffered severely from very poor sleep. He said that he continues to need psychological therapy.
11. Mr Yu told the Tribunal of a report about him which he had not been allowed to read. He told the Tribunal the report had been read by his corrections officer and by officers from the Department of Families, Fairness and Housing. The Department undertook their own assessment of him and allowed him to resume contact with his children.
12. Mr Yu also spoke about his involvement in the Better Lives Program, undertaken while he was in custody. There is a letter in the Tribunal Book, written by an Advanced Case Manager, confirming that Mr Yu completed that program and attended all the appointments as required. He described this program as involving discussions about relationships and managing emotions. He said that on completion he was told he did not need to do any other programs.
13. He disagreed with the Board about the level of insight he has shown. He believes he has more insight into his offending and its consequences than the Board attributes to him.
14. In relation to the proposed period of disqualification from seeking registration, Mr Yu noted that four years had passed since he had ceased practising and asked that this be taken into consideration and be deducted from the total period of disqualification sought by the Board.
15. He said he is genuinely remorseful. He recognises his behaviour was completely unacceptable. He realises the people in the child abuse videos were affected by what was done to them. He knows they could have been affected in the same way he has been affected by abuse early in life.
16. Mr Yu also referred to the case of Medical Board of Australia v McGavigan,[7] which had been cited by the Board. He made the point that the respondent in that case had been disqualified from applying for registration for a period of ten years, but Mr Yu would be effectively disqualified for 11 years if the Tribunal agreed to a seven year period of disqualification for him.

1. The Tribunal has to decide whether the facts alleged against Mr Yu are proved. The onus of proving the facts rests with the Board.
2. The Board bears the burden of proof. The Tribunal must be 'comfortably satisfied' about the facts in issue. The Board must prove its case on the balance of probabilities. In disciplinary cases, the Tribunal applies the principles stated in Briginshaw v Briginshaw (Briginshaw).[8]
3. In Kyriackou v Law Institute of Victoria Ltd [2014] VSCA 322 (Kyriackou), the Court of Appeal noted that VCAT is not bound by the rules of evidence and so is not bound by section 140 of the Evidence Act 2008 (Vic) (concerning the standard of proof in civil proceedings) nor by the common law principles established by the High Court in Briginshaw. The Court of Appeal said however, that the Briginshaw principles 'reflect common sense notions of probability with respect to human conduct and it is entirely proper for [VCAT] to take them into account'.[9] Earlier, in Karakatsanis & Anor v Racing Victoria Limited [2013] VSCA 305 (Karakatsanis), the Court of Appeal said, in effect, that VCAT must act fairly on the basis of relevant evidence. The Court then stated that it was entirely proper for VCAT to require that it be 'comfortably satisfied' of the facts in issue.[10]
4. The Tribunal has examined the evidence presented to it about the facts by both parties and the material in the Tribunal Book. We had regard to the November Statement, which showed agreement about the facts in relation to Allegation 1, but disagreement about the facts in relation to Allegation 2.
5. The Tribunal is comfortably satisfied the facts alleged in relation to Allegation 1 are proved on the balance of probabilities.

1. The November Statement makes clear that Mr Yu wants the Tribunal to find that because Ahpra received notification from Victoria Police that he had been criminally charged, he did not have to separately notify Ahpra he had been criminally charged.
2. Section 130 of the National Law relevantly states:

(1) A registered health practitioner... must, within 7 days after becoming aware that a relevant event has occurred in relation to the practitioner..., give the National Board established for the practitioner's... health profession written notice of the event.

...

(3) In this section -

relevant event, in relation to a registered health practitioner, means -

(a) the practitioner is charged with-

...

(ii) an offence punishable by 12 months imprisonment or more, whether in a participating jurisdiction or elsewhere;...

1. When the charges were laid against Mr Yu, each of which carried maximum penalties of up to 15 years imprisonment, a relevant event had occurred, under section 130 of the National Law.
2. The effect of section 130 is to create an obligation on a health practitioner to notify the Board of the happening of an event so that the Board is aware of the event. The obligation on the health practitioner is mandatory. Even if the Board became aware of the relevant event through some other means, as happened in this instance, that does not absolve the health practitioner of the obligation to notify the Board of the relevant event.
3. The Tribunal is comfortably satisfied the facts alleged against Mr Yu in relation to Allegation 2 are proved on the balance of probabilities.

1. The Tribunal must next decide how to characterise those facts according to the law.
2. Section 5 of the National Law contains a definition of professional misconduct and a definition of unprofessional conduct. They are as follows:

unprofessional conduct, of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers ...

...

professional misconduct, of a registered health practitioner, includes -

(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

1. The evidence shows Mr Yu was charged, pleaded guilty, was convicted and sentenced to imprisonment for serious criminal charges. The nature of the charges is detailed in the particulars of the Notice of Allegations.
2. The Tribunal is satisfied that:
   • Mr Yu was a registered medical practitioner from 6 January 2014 to 4 March 2021;
   • on 11 February 2021 a joint Federal and Victoria Police operation resulted in the seizure of electronic devices belonging to Mr Yu;
   • analysis of those devices showed Mr Yu accessed and saved child abuse material on those devices;
   • he searched for pornography involving the term 'doctor/s';
   • he used an online peer-to-peer platform for downloading and sharing child pornography and child abuse material;
   • Mr Yu accessed 12 child pornography files between 6 and 7 August 2018;
   • he accessed 95 files containing child abuse material between 3 February and 22 June 2020;
   • he accessed 2,263 files containing child abuse material between 23 June 2020 and 27 January 2021;
   • he possessed a total of 2,243 child abuse material files when arrested on 11 February 2021; and
   • Mr Yu possessed a 170-page manual which described itself as being a guide for adults engaging in sexual relationships with underage children.
3. This forms part of the conduct particularised in relation to Allegation 1.
4. In relation to paragraph (a) of the definition of professional misconduct, the Tribunal has no doubt that the conduct engaged in by Mr Yu is substantially below the standard reasonably expected of a registered medical practitioner of an equivalent level of training and experience. Indeed, no matter what level of training or experience a medical practitioner possessed, if they engaged in this type of conduct, it would be substantially below reasonable expectations.
5. Mr Yu's conduct was extremely harmful to the children depicted in the images. It is conduct that perpetuates and commercialises that harm through the purchase of CAM. In the context of general practice, where the practitioner treats children, no right-minded colleague, parent, or community member would consider it acceptable that the doctor treating a child also accesses and possesses CAM.
6. In relation to paragraph (c) of the definition of professional misconduct, we note the term 'fit and proper', while not defined in the National Law, relevantly allows for a wide range of matters to be considered. A decision-maker needs to make a value judgement and in doing so must assess the seriousness or otherwise of the particular conduct.[11 ]
7. Mr Yu's conduct in connection with the practice of his profession is entirely inconsistent with him being a fit and proper person to hold registration as a medical practitioner. The conduct is criminal conduct, and the offending was a serious example of accessing CAM, where Mr Yu's moral culpability was high. The conduct was deliberate and ongoing for a number of years. It is inconceivable that a medical practitioner who accessed CAM on multiple occasions and was convicted of offences related to the access to and possession of CAM, would be a suitable person to continue to practice as a medical practitioner.
8. It does not matter that Mr Yu's misconduct did not occur in his professional practice. That it occurred at all is inconsistent with him being a fit and proper person to hold registration in the medical profession. For Mr Yu, his misconduct came to light because of criminal proceedings against him. But even in the absence of the criminal proceedings, the Tribunal would still find his misconduct to professional misconduct.
9. The Tribunal is satisfied that Allegation 1 constitutes professional misconduct as defined in paragraphs (a) and (c) of the definition of that term in section 5 of the National Law.

1. The Tribunal is also satisfied that Allegation 2 constitutes unprofessional conduct.
2. As discussed above, we are satisfied that the charges laid against Mr Yu in February 2021 were 'relevant events' as described in section 130. As such, they should have been reported to the Board by Mr Yu. The fact they were reported by police but not by Mr Yu means he breached the obligations imposed on him by section 130.
3. The Tribunal finds this conduct is of a lesser standard than that which might reasonably be expected of a health practitioner by the public or the practitioner's professional peers. This is unprofessional conduct.

1. Given our findings of professional misconduct and unprofessional conduct under section 196(1) of the National Law, we now consider our determinations.
2. As Mr Yu does not currently hold registration, the determinations can relevantly include:
   • a reprimand;
   • the imposition of a fine;
   • disqualifying Mr Yu from applying for registration for a specified period of time; and/or
   • prohibiting Mr Yu from providing any health service and using a title associated with the provision of a health service for a stated period.[12]
3. The recent decision of VCAT in Osteopathy Board of Australia v Reid [13] provides a good summary of the relevant matters to be considered when making determinations under the National Law. As noted in that decision:
   • VCAT's primary role is to protect the public rather than to punish health practitioners who engage in professional misconduct or unprofessional conduct. Determinations also assist to maintain proper ethical and professional standards to protect the public and the profession in the sense of maintaining stature and integrity in the eyes of the public. VCAT is required, in appropriate cases, to make determinations which will deter the individual health practitioner from engaging in the same or like conduct again and/or which serve as a warning to other health practitioners that engaging in the conduct will bring serious consequences - the latter is known as general deterrence.
   • In some cases, specific deterrence is of lesser importance because a practitioner has been rehabilitated, is retired or has otherwise agreed not to practice again. Despite that, general deterrence may call for the imposition of a determination which acts as a warning to other members of the profession that like conduct may lead to significant consequences.
   • It is understood that although determinations are not intended to be punitive, they can have that effect on individual practitioners.
   • Personal matters such as shame, personal ordeal, and financial difficulty are of little relevance except as far as they contribute to the specific deterrence of the practitioner.
   • The assessment of the ongoing risk posed by the practitioner should be central to the imposition of a determination. The degree to which the practitioner has acquired insight into his or her conduct is relevant to the assessment of the continuing risk posed by the practitioner. Insight can include an understanding of the nature of the conduct, an acceptance that the conduct was wrong, an appreciation of why the practitioner engaged in that conduct, empathy with the consequences, and/or a willingness to take measures to identify risk factors and to do that which is necessary to avoid further transgressions.
   • Any form of official censure is of consequence. A reprimand should not be considered a 'slap over the wrist': it puts the public and the relevant profession on notice that the practitioner has failed to meet the standards of the profession and is a means by which VCAT admonishes the practitioner for their proven conduct.
   • An agreement between the parties, particularly as to determinations under the National Law, is a highly relevant matter for VCAT's consideration. It remains, however, VCAT's duty to determine these matters and no agreement between a regulator and the professional person under review can supplant that duty. Nevertheless, departure from an agreed position ought not take place without a clear reason.
4. Mr Yu does not hold registration because he voluntarily surrendered his registration under the following circumstances. The Board considered taking immediate action to suspend Mr Yu's registration in March 2021. When he was told what the Board proposed doing, he voluntarily surrendered his registration. He has not practised since that time.
5. There are some factors which the Tribunal regards as being favourable to Mr Yu when we consider the determinations to be applied to him. These include:
   • that he co-operated with the JACET investigation from the outset;
   • his early guilty plea to the charges on which he was indicted; and
   • his expressions of remorse for his actions at the Tribunal hearing.
6. There are other factors the Tribunal has considered when deciding whether he should be disqualified from applying for registration and, if disqualified, for what period of time. These include the time he has already been out of practice, and the nature of how that time was spent. He voluntarily surrendered his medical registration in March 2021, but he was in prison from October 2022 and was released in about September 2023. He could not have practiced for the time he was in prison.
7. Mr Yu did not present any objective and independent evidence to the Tribunal of his recent or current physical or mental health. He told the Tribunal he was continuing to take anti-depressant medication. He spoke of the benefits he received from counselling. He relied on an undated letter from his case manager at the Community Correctional Services Centre he attended as part of his early release program under the County Court sentencing orders. The letter confirms he completed a 'Better Lives Program' while in custody.[14] This is in the Tribunal Book.
8. The lack of information Mr Yu provided to the Tribunal meant we had to rely on material in the Tribunal Book which had been prepared for and used in the County Court trial to help us perform our function under the National Law.
9. The Tribunal Book contains the Reasons for Sentence of the sentencing judge.[15] The sentencing judge refers, among other things, to:
   • Mr Yu's good character apart from the offending;
   • his intelligence;
   • his capacity for sustained study and work; and
   • the absence of any other criminal convictions.
10. The sentencing judge refers to evidence from a forensic psychologist, Mr Newton, who was of the view that Mr Yu showed limited insight into the impact his offending had on the child victims whose images were accessed and stored for sexual gratification.[16]
11. The sentencing judge accepted that Mr Yu had been diagnosed with a moderate level of depression which continues despite intensive treatment. It was noted that he had probably been suffering from this condition for many years, beginning in his early 20's. The judge also accepted expert evidence that imprisonment would have a significant impact on his mental health.
12. The expert evidence relied on by the Court included that Mr Yu posed a low risk of reoffending unless significant aggravating factors are present. The Tribunal has taken these things into consideration when deciding on our determinations.
13. Mr Yu pleaded guilty to serious criminal offences in the County Court. As detailed above, these offences related to child abuse and pornographic material.
14. He served a sentence of imprisonment and abided by conditions of his early release. Specifically, the Court imposed an effective total sentence of two years and six months imprisonment. Other penalties were detailed above.
15. The Tribunal is mindful that as a consequence of his conviction, the Court ordered him to be registered as a serious sex offender under the Sex Offender Registration Act 2004 (Vic).
16. His criminal conduct also breached the professional Codes of Conduct which apply to medical practitioners.
17. Mr Yu's misconduct is extremely serious because it is criminal. Its gravity is compounded when we note that some of the pornographic and child abuse material involved supposed doctor-patient relationships. This is extremely disturbing because Mr Yu was a practicing doctor. At the very least, this misconduct must be denounced for the discredit it brings upon the medical profession. Other members of the medical profession and the public need to know that this type of misconduct is wholly unacceptable and can render a person unfit to be a medical practitioner. A significant period of disqualification is required for the purposes of both general and specific deterrence.
18. The Tribunal was referred to several previous decisions involving health practitioners using carriage services to access pornography and child abuse materials, to assist us in determining an appropriate period of disqualification. We will only refer to one of these cases, as it is comparable and was referred to by Mr Yu.
19. In Medical Board of Australia v McGavigan (McGavigan),[17] which was referred to above, the practitioner pleaded guilty to charges of using a carriage service to access child abuse material and similar charges. The practitioner possessed a greater quantity of child abuse material than was possessed by Mr Yu. The practitioner was:
    • reprimanded by the Tribunal;
    • disqualified from applying for registration for ten years; and
    • was prohibited from providing any health service and from using any title associated with providing a health service until he was re-registered.
20. When addressing the Tribunal, Mr Yu submitted that, in comparison with that decision, he would have effectively been disqualified for 11 years if the Tribunal adopted the suggestion by the Board to disqualify him for seven years, because of the four years that had lapsed between his voluntary surrender of his registration and the hearing in the Tribunal.
21. In this instance, the convictions, the sentence of imprisonment, and the continuing supervision under the County Court orders, all serve the recognised principles of general deterrence.
22. The Board submitted that the suggested determinations in the November Statement as to a seven-year period of disqualification took into account the time out of practice for Mr Yu after he surrendered his registration. The Board said there was a distinction between specific and general deterrence in this regard. The extra time out of practice since surrendering his registration may be significant for considerations of specific deterrence but general deterrence requires a higher period of disqualification.[18] The Tribunal agrees with the Board's submission in this regard. Indeed, Mr Yu agreed with and signed the November Statement containing this period of disqualification.
23. The Tribunal notes Mr Yu's possession of the child abuse manual referred to above indicates a need for increased deterrence, both specific and general, in this instance, and distinguishes this case from the McGavigan case. Possession of the manual highlights the need for the Tribunal to give paramount consideration to the need for protection of the public.
24. In addition to the factors operating by way of general deterrence, Mr Yu also suffers the personal shame and indignity caused by his own misconduct. In practical terms there has been an impact on his marriage, his life as a parent, and obviously a severe degradation of his status in the eyes of those close to him. There have been other consequences which create hardship for Mr Yu and his family, such as loss of income, perhaps for the rest of his life. This operates as part of specific deterrence for Mr Yu.
25. In other words, the criminal law processes have, in one sense, operated as elements of deterrence, for both general and specific purposes.
26. The Tribunal, however, is concerned with more than deterrence, and does not seek to impose punishment. The Tribunal must give paramount consideration to the protection of the public and the preservation of public confidence in the safety of services provided by medical practitioners.[19]
27. By his conduct, Mr Yu has shown it is necessary for the Tribunal to take action to protect the public from the activities in which he previously engaged. We are concerned by his incomplete insight into the effect of his misconduct.
28. Mr Yu's misconduct enabled the exploitation of people who were vulnerable because of their youth. His personal history, as he recounted to the Tribunal, may explain what he saw as the origins of his behaviour, but no matter how bad his own childhood experiences were, they do not excuse his behaviour as an adult, particularly when that behaviour leads to the commission of serious crimes.
29. The fact Mr Yu's behaviour was criminal behaviour led to his conviction and imprisonment. Additionally, he carries the label of being a registered sex offender for the rest of his life.
30. All of these are heavy burdens to bear. They have already impacted and will continue to impact his life.
31. Because he was a member of the medical profession and was subject to the National Law at the time of his offending, there are additional consequences that arise under the National Law.
32. As the parties propose in the November Statement, Mr Yu is prohibited from providing health services under section 196(4)(b) of the National Law. This prohibition applies to Mr Yu as an employee, contractor, manager, or volunteer, and whether remunerated or not, unless he is registered as a health practitioner. This includes, but is not limited to, a prohibition on providing a health service and/or using any title, that utilises or refers to the respondent's skills and knowledge gained as a medical practitioner.
33. Given the significant and serious criminal conduct, which breaches the trust the community would have in any health practitioner, a significant and ongoing risk exists if Mr Yu were to provide any other health services to children or to any other persons.
34. The period of the prohibition should be until such time that he is returned to the register as a registered health practitioner. Such a requirement best serves the main guiding principle of the national registration and accreditation scheme that the protection of the public is paramount.[20] It also ensures that health services can only be provided by Mr Yu after a further assessment by the Board of his suitability to hold registration.
35. The Tribunal will not impose separate determinations for Allegation 2. The findings in relation to Allegation 1 and the effect of the disqualification are sufficient in this instance.

1. The Tribunal has decided to reprimand Mr Yu. A reprimand is a serious professional condemnation of misconduct by Mr Yu. It serves as a public denunciation of his misconduct.
2. The Tribunal has decided to disqualify Mr Yu from seeking registration as a health practitioner for a period of seven years. It is necessary for there to be a lengthy disqualification to show the community and other members of the medical profession the extent to which Mr Yu's misconduct is wholly unacceptable, and that the Tribunal will do what must be done to protect people from such misconduct.
3. Further, the Tribunal has decided to prohibit Mr Yu from providing any health service and using any title relating to a health service, until he is registered a as health practitioner under the National Law. This is necessary to further protect the public from any possible misconduct by Mr Yu.

The allegations in respect of Dr Johnson Yu (Dr Yu) referred to the Victorian Civil and Administrative Tribunal (Tribunal) by the Medical Board of Australia (Board) pursuant to section 193(1)(a)(i) of the Health Practitioner Regulation National Law (National Law) are:

(i) professional misconduct within the meaning of paragraphs (a) and/or (b) and/or (c) of the definition of professional misconduct in section 5 of the National Law; and/or

(ii) unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law,

in that, between 6 August 2018 and 11 February 2021, he used a carriage service to access child pornography/abuse material (CAM) and possessed or controlled CAM**.**

• 1.1 Between 6 January 2014 and 4 March 2021, Dr Yu held registration as a medical practitioner under the National Law.
• 1.2 Between 8 April 2019 and 4 March 2021, Dr Yu held specialist registration in general practice under the National Law.
• 1.3 On 11 February 2021:

a) the Joint Anti Child Exploitation Team (JACET), comprised of Victoria Police and Federal Police, executed search warrants at the home address of Dr Yu; > > b) during the execution of the search warrants, JACET located and seized an iPhone, a laptop, a hard drive, and a computer tower (together, the Devices), all of which belonged to Dr Yu; > > c) a preliminary examination of one of the Devices revealed a video titled 'Doctors and 14-year-old boys' which depicted various prepubescent males being masturbated by adult males; and > > d) Dr Yu was placed under arrest, conveyed to Mill Park Police Station and charged with the following: > > 1. between 24 May 2019 and 27 January 2021 Dr Yu used a carriage service to access CAM contrary to s 474.19(1)(a)(i) of the Criminal Code Act 1995 (Cth) (Criminal Code); and > 2. on 11 February 2021, Dr Yu possessed CAM and used a carriage service to access or obtain the material contrary to s 474.22A(1) of the Criminal Code (together, the February 2021 Charges).

• 1.4 Between on or about 20 February 2021 and on or about 12 March 2021, the Devices were forensically analysed which revealed that Dr Yu:

a) accessed and saved CAM material onto the Devices; > > b) made pornographic searches involving the term 'doctor/s'; > > c) installed or caused to be installed an online peer-to-peer file sharing platform, used to download child pornography and CAM and which made downloaded files accessible to and downloadable by other users of that platform; > > d) between 6 August 2018 and 7 August 2018, accessed 12 child pornography files; > > e) between 3 February 2020 and 22 June 2020, accessed 95 files constituting CAM; > > f) between 23 June 2020 and 27 January 2021, accessed 2,263 files constituting CAM; > > g) on 11 February 2021, possessed a total of 2,243 CAM files; and > > h) possessed a 170 page manual entitled 'How to practice Child Love (A Pedo's Guide)' which included an introduction which reads 'This is an education and a step-by-step guide for adults to engage and practice sexual relationships with underage children. The purpose of this guide is to teach adults how to safely and harmlessly practice sex with children, without hurting the child, by using advanced and well researched child psychology and pedagogy'.

a) between 24 May 2019 and 27 January 2021, Dr Yu made available material, using a carriage service, the material being CAM contrary to s 474.22(1)(a)(iii) of the Criminal Code.

• 1.6 On or about 4 March 2022, Dr Yu was indicted on the following charges:

a) between 6 and 7 August 2018, Dr Yu did use a carriage service to access child pornography (as it was then defined in legislation), contrary to s 474.19(1) (as it then was) of the Criminal Code (Charge 1); > > b) between 23 June 2020 and 27 January 2021, Dr Yu did use a carriage service to access CAM, contrary to s 474.22(1) of the Criminal Code (Charge 2); and > > c) on 11 February 2021, Dr Yu possessed or controlled CAM obtained or accessed using a carriage service, contrary to s 474.22A(1) of the Criminal Code (Charge 3).

• 1.7 Dr Yu also admitted the following additional offence pursuant to section 16BA of the Crimes Act 1914 (Cth):

a) between 3 February 2020 and 22 June 2020, Dr Yu did use a carriage service to access CAM, contrary to s 474.22(1) of the Criminal Code (Schedule Offence).

• 1.8 On or about 5 October 2022 and on having entered a plea of guilty, the County Court of Victoria at Melbourne:

a) convicted Dr Yu of Charges 1, 2 and 3; > > b) sentenced Dr Yu to a total effective sentence of 2 years and 6 months imprisonment which took into account the Schedule Offence; > > c) ordered that pursuant to section 20(1)(b) of the Crimes Act 1914 (Cth), Dr Yu be released after serving 12 months imprisonment upon recognisance of $5,000 and to comply with conditions, including but not limited to, that he: > > 1. be of good behaviour for three years; > 2. be subject to supervision of a probation officer for two years; > 3. undertake treatment or rehabilitation programs that the probation office directs; and > 4. attend, undertake and complete the Sex Offender's Program within two years; and > > d) ordered that pursuant to section 34 of the Sex Offenders Registration Act 2004 (Vic) the length of the reporting period is Life.

• 1.9 Between 6 August 2018 and 30 September 2020, Dr Yu was required to act in accordance with 'Good medical practice: a code of conduct for doctors in Australia' (Pre- 2020 Code of Conduct).
• 1.10 Between 30 September 2020 and 4 March 2021, Dr Yu was required to act in accordance with 'Good medical practice: a code of conduct for doctors in Australia' (2020 Code of Conduct).
• 1.11 By engaging in the above conduct before 30 September 2020, Dr Yu breached, or acted inconsistently with, the following sections of the Pre-2020 Code of Conduct:

a) 1.4 Professional values and qualities of doctors: which involves doctors displaying qualities such as integrity, truthfulness, dependability and compassion; and > > b) 8.1 Professional behaviour: which involves displaying a standard of behaviour that warrants the trust and respect of the community.

• 1.12 By engaging in the above conduct after 30 September 2020, Dr Yu breached, or acted inconsistently with, the following sections of the Code of Conduct:

a) 2.1 Professional values and qualities of doctors: which involves doctors displaying qualities such as integrity, truthfulness, dependability and compassion; and

b) 10.1 Professional behaviour: which involves displaying a standard of behaviour that warrants the trust and respect of the community.

(i) professional misconduct within the meaning of paragraphs (a) and/or (b) and/or (c) of the definition of professional misconduct in section 5 of the National Law; and/or

(ii) unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law;

in that he did not, as required by section 130 of the National Law, provide the Board with written notice of a relevant event within seven days of becoming aware of that event occurring.

• 2.1 The Board refers to and repeats the particulars at 1.1 to 1.3 above.
• 2.2 Under s 130 of the National Law, a registered health practitioner must, within seven days after becoming aware that a 'relevant event' has occurred in relation to the practitioner, give the Board written notice of the event.
• 2.3 A 'relevant event' includes where the practitioner is charged, whether in a participating jurisdiction or elsewhere, with an offence punishable by 12 months imprisonment or more (s 130(3)(a)(i)).
• 2.4 Each of the two February 2021 Charges are relevant events, being offences punishable by 12 months imprisonment or more.
• 2.5 At no stage during the following seven day period did Dr Yu notify the Board under section 130 of either of the February 2021 charges.
• 2.6 Between 30 September 2020 and 4 March 2021, Dr Yu was required to act in accordance with the 2020 Code of Conduct.
• 2.7 By engaging in the above conduct, Dr Yu breached, or acted inconsistently with the following sections of the 2020 Code of Conduct:

a) 10.3 Reporting obligations: which records that Doctors have statutory obligations under the National Law to report matters to the Board and to be aware of those reporting requirements.

[1] (Review and Regulation) [2024] VCAT 242 at [31], citations omitted.

[2] Evidence of the analysis of the Devices is in the Tribunal Book (TB) at pages 46-77,107-112 and 745-747.

[3] For the purposes of these reasons, it is noted that, in broad terms, section 16BA of the Crimes Act 1914 (Cth) allows a sentencing court to consider when passing sentence the accused person's admissions about other offences where they have not been convicted of those offences.

[4] CDPP v Yu [2022] VCC 1685.

[5] (Review and Regulation) [2024] VCAT 1133.

[6] [2023] SACAT 65.

[7] [2023] SACAT 65.

[8] [1938] HCA 34; (1938) 60 CLR 336.

1. [11 ]See Psychology Board of Australia v Griersmith (Review and Regulation) [2019] VCAT 52 at [67].

[12] Section 196(4) of the National Law.

[13] (Review and Regulation) [2024] VCAT 731.

[17] [2023] SACAT 65.

[18] Outline of the Board's Submission at [46] and [47].

[19] Section 3A(1) of the National Law.

[20] Section 3A(1)(a) of the National Law.