R v Wu [1999] VSCA 209

13. The offence in question was committed on 23 March 1998 at a special accommodation house where the complainant was a resident and the applicant an employee. The accommodation house in question is a supportive residential service for psychiatric patients who require 24-hour supervision and the applicant had been employed there since 15 December 1997. The applicant worked at the accommodation house each Thursday to Monday between the hours of 9 p.m. and 7.30 a.m. His duties included tending to the residents' needs such as providing them with hot and cold drinks, ensuring that they were in bed each night by 10 p.m., seeing that lights and televisions were turned off each night and generally sitting in an upstairs office where he could watch both corridors of the house. Once everything was quiet he was to make the required number of cigarettes for the following day (about 400). He was also to listen to see if any resident pressed the buzzer which was in each bedroom and, if there was an emergency, he had to call the emergency doctor, the owner of the establishment, the police or the ambulance or whatever the situation required. On occasions, he had to distribute medication to the residents and during the hours when he was working there was no other person on duty. The applicant was then the person in charge.

16. On 23 March 1998 the complainant entered the kitchen of the special accommodation house between 11.15 and 11.30 p.m. to make a sandwich. The applicant who was present in the kitchen approached the complainant and began kissing her. He then placed his right hand on the inside of her nightdress and began to caress her breasts. He then moved his hands downward, caressing her stomach. He then slid his hand into the front of the complainant's underpants and began touching her vagina. He penetrated her vagina with two or three fingers, causing the complainant to say that he was hurting her. The complainant alleged that the applicant told her he loved her, although the applicant was later to say in his interview that he told her only that he liked her. According to the complainant, she told him: "You better stop doing it or I'll do something". The applicant then desisted; he walked away and washed his hands and the complainant left the kitchen and went to bed. The complainant complained to her room-mate and to the owner of the establishment on the morning after the incident; the matter was reported to police and the applicant was interviewed through an interpreter. The applicant gave his version of what happened, saying that he touched the complainant's vagina because he believed that it would give her pleasure. He said he stopped immediately when she said "That's enough. No more". To that point, he thought that she was consenting.

19. It appears from the applicant's record of interview that this was not the first occasion on which he had touched the complainant. During the interview, the applicant said that he had kissed her on an earlier occasion, in the dining room. He said that on that occasion he had told the complainant she looked nice and placed his hand on her waist in a "dancing position". He said that the complainant had then leaned closer to him, placing her chin on his shoulder and he embraced her. He said that she then kissed him on the mouth. In the course of his record of interview he also said that he had touched the complainant on the breast on an occasion which was about a week before 23 March. The complainant had come to the kitchen for some food or a cigarette and he had touched her left breast on the outside of her clothing. He told, too, of another incident in which he had touched the complainant as he brushed past her in the hallway, although the date of that incident was not identified. This question was then put to the applicant in the course of his interview:

"OK so it is correct to say that in the last week we've had the dancing incident, this incident where you've touched her on the breast, the one where you've brushed past her in the hall and last night's incident? Is that correct?'

24. As for the complainant herself, the sentencing judge found as follows:

"[The complainant] has a long history of psychotic illness. According to her treating psychiatrist, she is treated with a range of medications, including regular injections of anti-psychotic medicine. He also says that while her intellectual functioning is not high, she has no evidence of intellectual disability. With that is to be compared the impression formed by the doctor who examined [the complainant] after [the applicant] had penetrated her, who states that in his opinion she appears to have an impaired intelligence, although not formally tested. Despite this, she appeared to have adequate comprehension.

I must, I think, prefer the evidence of her treating psychologist that she has no evidence of intellectual disability, but certainly from both her interview and statement and the observation by the treating doctor, I am forced to the conclusion that her intellect is indeed not good."

Of course, in this regard it must be remembered that the applicant's plea of guilty is to an offence involving "a person with impaired mental functioning", as the word "impaired" is defined in s.50.

30. The applicant was well aware that any sexual contact between him and any resident was forbidden. His employer, it seems, had made that clear. After rehearsing some of the questions and answers in the applicant's record of interview, the sentencing judge said this of the incident on 23 March:

"I am satisfied that on the occasion that brings you [the applicant] here you were endeavouring to caress [the complainant] to orgasm specifically by caressing her vagina. In the course of that performance some penetration of her by you occurred. I am satisfied that the act of penetration to which you have pleaded guilty was not a spontaneous aberration but the culmination of preceding sexual contact, that is, I am satisfied that it was premeditated. I am satisfied that a gross breach of trust and of your position was performed by you for your own gratification and perhaps to satisfy a curiosity concerning western women with whom you had had previously no sexual contact."

This last was a passing reference to the applicant's sexual history. From the report of the forensic psychologist it appears from what he was told by the applicant that the applicant, who was a married man with a hitherto unblemished character and who in China had been in a responsible position with considerable social respect, had none the less, though some years ago now, had extramarital contacts of a sexual nature. He told the psychologist that, though he had engaged in this sort of behaviour previously, it had not been unlawful. But in the light of what the applicant told the psychologist and his behaviour with the complainant on this occasion, the judge said, when sentencing, that he was not prepared to conclude that the applicant did not "continue to pose a risk".

35. On the question of gaol or no gaol, the sentencing judge said this:

"It was argued by Mr Steward [counsel for the applicant] in what was an eloquent and at times moving plea on your behalf that gaol will be very hard for you, given your background. You did not, he said, take advantage of someone who was feeble-minded and all things considered, your breach of trust was at the lower end of the scale. With that submission I cannot agree. Laws such as the one you broke are there to protect the helpless. Those who break them to gratify their aberrant sexual urges commit a serious offence, made more so when that offending is facilitated by a cynical violation of trust."

39. Before us counsel for the applicant made a number of criticisms of the judge's sentencing remarks, some of which are mentioned specifically in the grounds taken in the notice of application. Thus he contended that the word "premeditated" as used by the judge had been wrong and that the offending had not been "premeditated" in any relevant sense. In context, however, I think that the judge clearly meant no more than that the applicant's misconduct on 23 March was "the culmination of preceding sexual conduct". The judge said as much and that was not error in itself.

42. At least in the outline of argument, counsel submitted also that there was no basis in the evidence for the judge's concluding that the misconduct on 23 March was intended to "satisfy a curiosity concerning western women with whom you had had previously no sexual contact". In the record of interview this lack of contact was frankly conceded, but the rest was, I agree, somewhat speculative on the judge's part. However, the judge gave it only passing reference, prefacing his remark with "perhaps", and I do not think it was significant to his sentencing.

45. More importantly, perhaps, counsel submitted that the judge fell into error when sentencing on the basis that the applicant posed a risk of re-offending. All the evidence, he said, pointed the other way: there had been no suggestion of any previous offending in the applicant's sexual history, whether in China or in Australia; nothing in the psychologist's report lent support to the judge's view; and both the psychologist and the judge found the applicant remorseful. Counsel relied, too, upon what was said in R. v. Pickard [1998] VSCA 50 (an unreported decision of the Court of Appeal on 28 September 1998). In the joint judgment of Winneke, P. and Charles, J.A., it is said in substance that if there is a dispute about the risk of re-offending and the judge needs to resolve it and resolves it adversely to the interests of the accused, then that must be to the degree of satisfaction consistent with the standard of which the majority spoke in R. v. Storey [1998] 1 V.R.359 at 371.

48. There is, I think, more than one answer to this submission in so far as it depended upon what was said in Pickard. First, I am not at all clear that the judge saw the risk of the applicant's offending again as an aggravating circumstance. Rather, what he said was this:

"I cannot conclude, in the light of what you told Mr Joblin, that answer and your behaviour with the complainant, that you do not continue to pose a risk [that is, a risk of re-offending]."

To say that seems to me to be the converse of the situation considered in Pickard. The mere commission of the crime in question will ordinarily require the judge to turn his mind to specific deterrence and in this case the judge was saying only that that consideration had not been shown to be altogether irrelevant.

53. Nor, in my view, was there any relevant "dispute" in this case, such as was mentioned in Pickard. During the plea, counsel for the applicant had invited the judge to "clearly find and accept that this man is most unlikely ever to re-offend". The judge promptly demurred to this invitation, saying: "All I am saying to you is I would not be prepared to assume it will not happen again. I don't know. It might not." To this counsel said: "I understand and accept what Your Honour says", immediately adding that the applicant was too intelligent to put himself in this position again. Counsel then went to another point.

56. In all the circumstances I do not see Pickard as relevant. The gravamen of counsel's complaint on this score was that the judge had erred in finding a need for specific deterrence, or, more accurately, such a need for specific deterrence as would justify an immediate custodial sentence. But that error was not shown to have been made; for specific deterrence was only one of a number of sentencing considerations brought to account. As applicant's counsel frankly conceded to us, specific deterrence was plainly to play some part. In short, I cannot find on this score that what his Honour said was such specific error as would justify our intervention. In part at least that is because of the nature of the applicant's offending. It seems to me that, by its very nature, a crime of this kind will ordinarily call for condign punishment, and that must mean a very real risk of an immediate custodial sentence.

59. In this case it is true that there were a number of factors that went in mitigation, on each of which applicant's counsel relied before us. Among these he mentioned that the offence involved only brief digital penetration of a clothed victim, ceasing immediately upon the complainant's request; that the offence was preceded by no coercion, manipulation or planning; that the offence was committed by the applicant believing the complainant had consented; that the offence was followed by no cajoling or pressure to be silent; that the relationship between the applicant and the complainant provided only the context of the offence, but "was not deployed instrumentally by the applicant to achieve a pre-planned aim"; that the applicant was remorseful and co-operated with the police; that he pleaded guilty at the first opportunity and had no prior criminal history; that the applicant had no relevant psychological difficulty or predisposition, having no history of sexual involvement with the mentally impaired or disadvantaged; that the applicant had been a useful member of the community until the offence; that he had endured a delay of 15 months before plea and sentence and that by reason of age and situation he might be expected to suffer prison more harshly than most others. Perhaps some of these, as stated in the argument, tended to overstate the case for the applicant; for instance, the relative positions of applicant and complainant might, I think, have been more significant to the offending than the foregoing suggests. Nonetheless, all of these factors, or at least the substance of them, made a powerful base for the plea in mitigation which was made below and I have no doubt that the sentencing judge had regard to all of what was put to him. But the offence itself remained a grave one, involving, as the sentencing judge said, a very serious breach of trust.

62. On the night in question the applicant was the person in charge; he was the one who, so far as the complainant was concerned, was "in authority" or akin to one in authority. She on the other hand was mentally impaired, as must be accepted from the applicant's plea. As such she was particularly vulnerable. Like its counterpart s.52, s.51 was plainly enacted to provide a measure of protection for those unfortunate enough to need it, and in s.51 Parliament has specifically proscribed any act of sexual penetration (no matter how brief) and any indecent act (as defined) between one supplying services, like the applicant, and one who receives them, like the complainant; and Parliament has fixed 10 years' imprisonment as the maximum penalty. True it is that the sexual aspect of the applicant's misconduct does not, perhaps, fall at the gravest end of the spectrum; one can imagine, unfortunately, worse cases, so far as the sexual component is concerned. But the breach of trust that was involved is another matter, and it is for that, as much as for the sexual penetration itself, that the applicant must be sentenced.

65. It was put to us that this was not a "bad case" of an offence under s.51 and that the judge was wrong to so characterise it. I do not accept that that is what the judge meant when he referred to a gross breach of trust. He was referring then only to the breach of trust itself and in its context that was, it seems to me, serious or grave. The applicant was, after all, in charge on the night in question. He was the very person who, it might be said, was employed to provide for the residents a measure of protection; yet it was he who offended and he who initiated the offending. The judge declined to accept counsel's submission that the breach of trust was at the lower end of the scale, and, despite the argument now put to us that his Honour erred in so doing, I cannot find error.

68. Finally, counsel's submission came down to this: that, given the factors going in mitigation - and I have mentioned them already - the sentence imposed was manifestly excessive. Again I cannot agree. On one view it might be thought to be a heavy sentence for what was a relatively fleeting sexual encounter if, as was put to us, the penetration was brief and the applicant desisted when required to do so. But, as I have attempted to stress, there are other considerations operating here and in the end, after giving careful consideration to counsel's argument, I think that the sentence was reasonably open to the sentencing judge given the circumstances of the offending and the personal circumstances of the offender.

71. I find no need in this case to set out seriatim the several grounds of appeal, which were amended when a further ground was added on 26 November last. Indeed, one of the grounds was not pursued in argument. In what I have said I have now dealt with all those that were argued. In short, the applicant has not established, in my opinion, any specific error in the sentencing process below, nor has he shown that the sentence imposed was manifestly excessive.

74. It follows that in my opinion the application should be dismissed.