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District Court 27 March 2008

R v David Qin

[2008] NSWDC 41

Sexual offences
CRMINAL LAW SENTENCE PARTICULAR OFFENCES INDECENT ASSAULT SEXUAL INTERCOURSE WITHOUT CONSENT SERIOUSNESS

Citation: R v David Qin [2008] NSWDC 41
Court: NSW District Court
Date: 27 March 2008
Judge(s): Goldring DCJ

Background

The offender, a Chinese-born masseur with limited English, was convicted by a jury of two offences arising from a massage session at a Neutral Bay clinic: indecent assault (Count 1) and sexual intercourse without consent (Count 2). The jury also acquitted him of a third charge, also of indecent assault, said to have been committed in the same session.

The complainant was the only witness who gave evidence going to the essential elements of both offences. During the massage, the offender made contact with the complainant's anus (the indecent assault) and then briefly made contact with the complainant's labia and clitoris (the sexual intercourse without consent). The complainant explicitly stated there was no penetration of the vaginal canal.

Goldring DCJ expressed reservations about the reliability of the verdicts, noting the jury appeared to have been under time pressure due to the trial overrunning its estimated length during the final week before the Christmas vacation. His Honour also flagged that the partial acquittal on materially similar facts, combined with inconsistencies in evidence from the complainant's witnesses, raised a real possibility the verdict may have been unsafe or unsatisfactory.

  • Whether the indecent assault (Count 1) warranted a discharge under s10 of the Crimes (Sentencing Procedure) Act 1999 and what the effect of such a discharge is on "conviction"
  • Whether the sexual intercourse without consent (Count 2) could attract a non-custodial or suspended sentence, given Court of Criminal Appeal authority indicating full-time custody is generally required for such offences
  • What weight, if any, the sentencing court should give to the possibility of deportation as a consequence of sentence
  • What weight, if any, the offender's limited English-language capacity should be given at sentence

Decision

On Count 1 (indecent assault), Goldring DCJ treated the case as exceptional and dealt with the matter under s10 of the Crimes (Sentencing Procedure) Act 1999, discharging the offender on a good behaviour bond. His Honour noted that a s10 discharge does not constitute a "conviction" within the ordinary legal meaning of that term for most purposes, a distinction with practical significance given the offender's immigration status.

On Count 2 (sexual intercourse without consent), His Honour acknowledged binding Court of Criminal Appeal authority to the effect that full-time custodial sentences are ordinarily required for this class of offence. However, he found the facts sufficiently exceptional to justify departure from that general approach, relying on the narrow exception recognised in the Court of Criminal Appeal's decision in R v May and the High Court's observations in R v Dinsdale. He imposed a sentence of 10 months imprisonment, but directed it be suspended for its full term.

Regarding deportation risk, the court accepted this as a relevant mitigating factor. An offender facing deportation may experience imprisonment more harshly than a citizen would, and the prospect of removal from Australia was treated as an additional punitive consequence beyond the sentence itself.

The offender's limited English was also taken into account. Because no suitable rehabilitation course existed that could accommodate his language difficulties, the court did not impose a supervision condition on either bond.

Orders Made

  • Count 1 (Indecent Assault): Offender discharged under s10 on condition he enter a good behaviour bond under s9 for 5 years, with conditions including: good behaviour; appearance in court if called upon; notification of any change of residential address; and a prohibition on working as a masseur (paid or unpaid) at the Neutral Bay massage clinic for the term of the bond.
  • Count 2 (Sexual Intercourse Without Consent): Sentenced to 10 months imprisonment, suspended for its full term upon entering into a good behaviour bond.

Key Takeaways

  • A discharge under s10 of the Crimes (Sentencing Procedure) Act 1999 does not constitute a "conviction" for most purposes, a distinction that can carry significant practical consequences, including in the immigration context.
  • Court of Criminal Appeal authority generally requires full-time custodial sentences for sexual intercourse without consent, but the District Court found this case sufficiently exceptional to justify a suspended sentence of 10 months, applying the limited exception acknowledged in R v May and R v Dinsdale.
  • The risk of deportation following a custodial sentence is a recognised mitigating factor at sentencing in NSW, on the basis that imprisonment may bear more heavily on a non-citizen who also faces removal from the country.
  • Where no suitable rehabilitation or counselling program exists to accommodate an offender's language difficulties, the absence of a supervision condition on a bond is capable of being justified on that basis.
  • Concerns about potential jury compromise, time pressure, and partial acquittals on substantially similar evidence can inform a sentencing judge's assessment of the seriousness of the conduct and the appropriate sentence, even where the verdicts themselves must be accepted.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10, 12
- Crimes Act 1900 (NSW)

Cases
- R v Markuleski [2001] NSWCCA 290
- R v Slack [2004] NSWCCA 128
- R v Arvind (unreported, NSWCCA, 8 March 1996)
- R v Azzi [2004] NSWCCA 398
- R v Price [2005] NSWCCA 285
- R v Frigiani [2007] NSWCCA 81
- R v Shresthra (1991) 173 CLR 48
- R v Mirzaee [2004] NSWCCA 315
- R v Pastovsky (unreported, NSWCCA, 28 June 1995)
- R v May [1999] NSWCCA 40
- R v Dinsdale [2000] 202 CLR 321