The offender is a 70-year-old man who has never before been charged or convicted of a criminal offence. He comes before the Court to be sentenced for one count of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of 14 years imprisonment and a standard non-parole period of seven years imprisonment.
The offender was committed for trial on 5 June 2018. He pleaded guilty on 17 July 2019. Although not a plea of guilty at the first opportunity, there is some utilitarian value in the plea and I am satisfied that a reduction in sentence by 15 per cent is appropriate.
The plea of guilty also reflects remorse. The victim did not have to give evidence in a trial and was not subjected to cross-examination. In addition to the other evidence in the proceedings I am satisfied that the offender has demonstrated significant remorse. I will return to the subject of remorse in due course.
[2]
The Facts
The circumstances giving rise to the offence are set out in the statement of agreed facts. At the relevant time, the victim was 60 years old and the offender was 68 years old. The victim had suffered a neck injury as a result of a work accident. In December 2016, she became a member of the local amateur dragon boating club and was committed to attending training sessions. It was through the sessions that she met the offender. She also became friendly with Tracey Hillman and her partner Steve McCormack.
The victim learned that the offender was a trained massage therapist. In March 2017, she was unable to obtain an appointment to see her osteopath. Wendy Cooper suggested that the victim should make an appointment with the offender and an arrangement was made for the offender to give the victim a massage.
On 26 March 2017, the victim and the offender attended a training session at Callala Bay Sailing Club. At the conclusion of the session, the victim followed Mr McCormack to the offender's house. She went inside and accepted an offer to have a shower because she smelt of seaweed and was unable to shower at the sailing club. The offender and the victim drank tea on the patio and she was then shown to the massage room. There was a discussion about what clothing she should remove. Following that discussion, she removed all of her clothing. The offender explained to the victim that even though she was suffering pain to her neck it could be caused by something in her glutes.
As a result, she lay on her stomach placing a sarong over herself, and the offender massaged her glutes, briefly massaging her neck. While massaging her glutes, he commenced rubbing over the outside and inside of her legs. That rubbing became more regular and intense. The victim could feel the offender getting closer to her vaginal area. He inserted a couple of fingers into her vagina. He moved his fingers in and out. The victim froze and did not say anything out of fear. She felt pain in her vagina. She winced, but the offender continued to penetrate her vagina with his fingers. He then removed his fingers and a short time later reinserted his fingers in and out of the victim's vagina more vigorously. He then removed his fingers and told the victim to roll over onto her back. She complied. There was nothing covering her at that stage. The offender rubbed her chest. It was then that the victim told him to 'please stop'. He stopped and continued to massage the front of her body.
At the conclusion of the massage, he said that he would show her some exercises. Soon after she left.
The victim tried to contact Ms Hillman and Mr McCormack. They saw her later that day and observed that she was visibly upset. Complaint was made to the police in April 2017 and the offender was arrested in March 2018.
[3]
Objective Seriousness
The offender was a trained massage therapist and a member of Massage Australia, although it appears that his membership had lapsed in about 2014. The victim consulted him in his capacity as a massage therapist. Notwithstanding that the offender was not registered as a health provider, the relationship between masseur and customer is one of trust. The victim was naked and allowed herself to be in a position where the offender had control over the situation because he was providing professional therapy to her.
The offender breached that trust by committing the offence during the course of massaging the victim. This is a serious aggravating factor to which I have had regard in determining the objective seriousness of the offence.
I turn to consider the offender's state of mind at the relevant time. He reported to Dr Seidler, clinical and forensic psychologist, that he was confused about the victim's intentions prior to the offence and he believed that she might be interested in him sexually. While I do not accept that the victim conducted herself in a way that demonstrated a sexual interest in the offender, I am satisfied that he was confused about her intention and believed that she might have been interested in him and was consenting.
He had come to know the victim through the training sessions at the dragon boating club and they had spent time together attending those training sessions. As a result of their interactions, the offender formed the view, wrongly, that the victim was sexually interested in him. I proceed to sentence the offender on the basis that he did hold a genuine belief that the victim was consenting, but that there was no reasonable grounds for that belief.
There were two discrete acts of digital penetration perpetrated by the offender, although they were separated in time by seconds. The offending took place over a short duration, absent any force, intimidation or violence. While the absence of violence does not operate as a mitigating factor, the absence of coercion, intimidation and manipulation distinguishes this case from more serious offending.
The victim told the offender to stop, however, that was at a point in the massage when he was rubbing her chest rather than at the point he had digitally penetrated her. I accept that the victim was frozen with fear and shock and that was why she did not tell the offender to stop at the time he had digitally penetrated her. When she did tell the offender to stop, he immediately ceased rubbing her chest.
I am not satisfied that there was any planning or organisation involved. Rather, the offence was opportunistic. It was committed in circumstances where the offender honestly believed that the victim was consenting, although acknowledges by his plea of guilty that he had no reasonable grounds for that belief.
The objective seriousness of this offence can be distinguished from sexual assaults which involve persistent sexual misconduct in circumstances where the offender knows the victim was not consenting. I am satisfied that this offence falls well below the middle of the range of objective seriousness for this offence category. In making that finding it is not my intention to suggest that the offence is not serious. Clearly, it is.
Notwithstanding my assessment of objective seriousness, the victim was subjected to an invasive sexual act without her consent. I have regard to the contents of her victim impact statement. Although the harm suffered is not such as to constitute an aggravating factor, I do acknowledge that she was placed in fear and experienced shock as a result of this experience.
I do not find that the offence falls at the lowest possible end of the range of objective seriousness because there was a breach of trust having regard to the nature of the relationship between masseur and customer. Considerations of general deterrence, denunciation and holding the offender to account are relevant to a determination of the appropriate penalty. Specific deterrence carries little, if any, weight in this case. The offender has no prior criminal record and has led an unblemished life. He is a person of good character.
The Crown in written submissions contends that good character is of no assistance to the offender. In support of that contention the Crown relies upon the decision in Jung v R [2017] NSWCCA 24. However, that case involved a sexual assault committed by a registered physiotherapist. The applicant was of good character and it was a condition of his registration under the Health Practitioner Regulation National Law (NSW) that he be a suitable person to hold registration as a physiotherapist. That is, that he was a fit and proper person and a person of good character.
The offender in this case is not a registered health professional. He was a member of Massage Australia. There is no evidence before me as to the requirements necessary for membership. The application form includes a question as to whether the applicant has a criminal record, however that is as high as the prosecution puts it.
I am not satisfied on the evidence before me that his good character assisted him in the commission of the offence. This was not a case where the prosecution has established that the opportunity to offend arose as a result of a position he held which was facilitated by his good character.
The offender is now 70 years old. I repeat, he has led an unblemished life. At the age of 70 he finds himself before the Court to be sentenced for an offence committed as a result of a serious and inexcusable error of judgment.
Having regard to the fact that the offender is assessed as a very low risk of re-offending, the protection of the community insofar as incapacitation is concerned is not a relevant consideration.
The offence carries a standard non-parole period of seven years' imprisonment. I remind myself that the standard non-parole period is neither the starting point nor the end point in arriving at an appropriate sentence. Instead, I am required to take into account all of the matters relevant to the sentencing exercise, including but not limited to the purposes of sentencing, the objective seriousness of the offence and the subjective case of the offender.
The standard non-parole period, together with the maximum penalty, are legislative guideposts to which I have had regard. However, I decline to impose the standard non-parole period in this case and will substantially depart from it. I do so because I find that the objective seriousness of the offence falls well below the middle of the range. The offender has pleaded guilty and demonstrated genuine remorse in my view. He is a person of good character and has excellent prospects of rehabilitation. I will expand on these reasons in due course.
[4]
Subjective Circumstances
The offender was 68 years old at the time of the offending and is now 70. He has no prior criminal history. The offence was committed in March 2017 and he was arrested in March 2018. He has not reoffended since the commission of this offence.
A psychological report prepared by Dr Seidler sets out the offender's subjective case. He was born and raised in Holland. He was reasonably settled in his local area and his basic needs were met. He did not experience a childhood of poverty or social disadvantage.
His relationship with his mother was not positive. He described her as generally cold, nasty and critical. By contrast he had a close relationship with his father. Both of his parents are now deceased.
The offender left home at the age of 21 and has been living independently ever since. He came to Australia in 1997 with his then wife. After leaving school, he completed his trade education in mechanical engineering and also completed study to qualify as a draftsman. He found it difficult to secure work as his qualifications were not recognised in Australia. He secured some handyman work casually before deciding to qualify in remedial massage. He is currently retired.
He described the quality of his peer connections as generally being positive and has had long term friendship both in Australia and in Holland. He has been involved in three intimate relationships. He has two children from his first marriage, a son aged 45 and a daughter aged 49. He has four grandchildren and he maintains a positive relationship with his children and his grandchildren.
The offender met his second wife in Holland. That relationship ended and, subsequently, in 2002 he entered a further relationship which lasted some 15 years.
As set out above, the offender recorded that he had been confused about the victim's intent prior to the offence, and he thought that she might have been sexually interested in him. He acknowledged, however, that he was confused and experienced distorted thinking, assuming that the victim was consenting. It appears that this offence occurred in a context when he was experiencing relationship difficulties at the time as a function of various stressors impacting on the couple, including caring for his partner's elderly mother.
Following the offence, he has experienced a decline in his mental health consistent with an adjustment disorder with mixed mood. He has developed a tendency to isolate himself and withdraw from others. He attempted self‑harm in 2018. Emergency services were called and he was taken to hospital.
I accept that he is distressed and anxious about his situation. I also find that he is ashamed of his behaviour and is genuinely contrite.
Psychometric testing revealed very high levels of symptomatic distress and functional impairment at the present time, most substantially related to anxiety and depression. He is assessed as a 'very low risk' of re-offending, and there is no evidence that he presents with a generalised proclivity to sexual abuse. His assessed level of risk is too low for him to engage in any treatment programs offered by Corrective Services New South Wales.
Dr Seidler opines that the offender does not require any form of intervention to ameliorate his risk of re-offending.
I accept that the offender is ashamed and embarrassed about his conduct. He interpreted the situation incorrectly, believing that the victim was sexually interested in him. He acknowledges that he was wrong in that belief and that it was not reasonable given the circumstances. I am satisfied that the offender has demonstrated a significant degree of remorse. This is a case where he could have pleaded not guilty and put the prosecution to proof in respect of the necessary element of knowledge. He did not do so. He acknowledges that he had no reasonable grounds for his honestly held belief. That he has done so is a genuine recognition of his wrongdoing and the harm that he has caused to the victim.
In addition, he has expressed remorse in his letter to the Court. His referees confirm that this conduct is completely out of character. The offender is described as an honest and trustworthy man who goes out of his way to help others. Those who have used his services as a masseur have always found him to be respectful and professional. There is no doubt that the offender is a person of prior good character. The referees confirm that the offender is deeply and genuinely remorseful. I find that he has excellent prospects of rehabilitation and is unlikely to reoffend.
I accept that he did genuinely believe that the victim was sexually interested in him but that he had no reasonable grounds for that belief. To be clear, I am not of the view that the victim conducted herself in such a way as to mislead the offender or make him believe that she was sexually interested in him. However, I do accept that he honestly held that belief. His plea of guilty demonstrates an acknowledgment on his part that there was no reasonable ground for that belief.
[5]
The Section 5 Threshold
Mr Doig submits that I would proceed by way of a Community Corrections Order. He submits that a Community Corrections Order is
promoted as a non‑custodial alternative to full-time imprisonment to enable offenders to receive supervision, to tackle the offending behaviour and to be held accountable.
No authority has been produced in support of the contention that a Community Corrections Order is a form of imprisonment alternative to full-time custody. The Crown submits that, having regard to the nature and seriousness of the offending, the only appropriate penalty is one of full-time imprisonment.
The maintenance of a broad sentencing discretion is essential to ensure that all of the wide variations of circumstances of an offence and an offender are taken into account. That sentencing discretion continues to operate notwithstanding an applicable standard non‑parole period. Furthermore, it has been pointed out on more than one occasion that there is no single correct sentence. General principles must be adjusted to the individual case if justice is to be achieved. To see the sentencing process as involving no more than a stern punishment for each offender is not merely simplistic - it damages the public interest. If a sentencing process does not achieve justice, it should be put aside. If justice is not individual, it is nothing.
However, that broad sentencing discretion is now curtailed in cases, such as this, involving prescribed sexual offences. Where a judge forms the view - having considered all possible alternatives - that no penalty other than imprisonment is appropriate, a suspended sentence is no longer available. Further, an Intensive Corrections Order cannot be imposed for prescribed sexual offences. Essentially, if a determination is made that a penalty of imprisonment is appropriate, there is no option but full-time imprisonment.
Having regard to the objective seriousness of the offence, and in particular the breach of trust, I am satisfied that no penalty other than imprisonment is appropriate. It follows that I have no option in this case but to impose a term of full-time imprisonment. However, in determining the length of the term of imprisonment I have had regard to the following:
1. The offence falls well below the middle of the range of objective seriousness for this offence category;
2. The offender has demonstrated very significant remorse. The expression of that remorse is reflected in his plea of guilty which has obviated the need for the victim to give evidence;
3. He is a person of prior good character and has excellent prospects of rehabilitation and is unlikely to reoffend;
4. Specific deterrence carries little, if any, weight having regard to his prior good character;
5. A reduction in sentence by 15 per cent is appropriate to reflect the utilitarian value of the plea of guilty.
I find special circumstances warranting a substantial variation of the statutory ratio. I make that finding because the offender does have excellent prospects of rehabilitation which will be further enhanced by a lengthy period on parole. I have had regard to the more onerous conditions of custody having regard to his age. I also take into account that this is the first time he is to serve a custodial sentence.
Accordingly, the offender is convicted. Taking into account a discount of 15 per cent for the plea of guilty and a finding of special circumstances, I impose a sentence of imprisonment consisting of a non-parole period of 10 months, commencing on 17 December 2019 and expiring on 16 October 2020, with a balance of term of 1 year 6 months. The total term of imprisonment is 2 years 4 months. The offender is eligible for release to parole at the expiration of the non-parole period subject to the guidance and supervision of Community Corrections for as long as they deem necessary.
[6]
Amendments
14 January 2020 - Correction of typographical error para [43].
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Decision last updated: 14 January 2020