Citation: R v Shen [2019] NSWDC 499
Court: District Court of New South Wales
Date: 5 April 2019
Judge: King SC DCJ
Background
The offender, a massage therapist with no prior criminal history, was sentenced following his plea of guilty to three counts of assault with an act of indecency under s 61L of the Crimes Act 1900. Each offence carries a maximum penalty of five years' imprisonment. The offences occurred during a single massage session on 5 June 2017 at a commercial massage parlour.
The victim, a regular client of the business, was subjected to three separate acts of indecency during the session: twice having her genitals rubbed while she lay face down, and once having her nipples manipulated after the offender removed a towel covering her chest. The victim did not consent to any of these acts and was left feeling shocked, confused, and violated.
The offender was arrested two days after the incident and denied any wrongdoing when interviewed. The matter was originally charged to include an offence of sexual intercourse without consent, which brought the proceedings into the District Court. That charge was ultimately removed from the indictment, and the offender pleaded guilty to the three remaining counts on 12 September 2018.
Legal Issues
- What discount from sentence was appropriate for the plea of guilty, given the timing of the plea and the procedural history of the matter?
- What was the objective seriousness of the three offences?
- What subjective factors were relevant to the sentencing exercise?
- What was the appropriate sentencing disposition, including whether full-time imprisonment was warranted?
- Whether the effective sentencing range should reflect the Local Court's two-year jurisdictional limit, given the offences would ordinarily have been dealt with there but for the more serious charge that was ultimately not pursued.
Decision
His Honour assessed the plea discount at 10%. The first offer to plead guilty to the three indecency counts came only on the Friday before the trial date, after the matter had been fully prepared for trial. The Court found that the plea was therefore belated, and the discount was set at the lower end of the range submitted by the Crown (10 to 15%).
On objective seriousness, the Court identified several aggravating features: the offending occurred on three occasions within a single session, the offender exploited a position of trust as a massage therapist, and he took advantage of the victim's vulnerable position. The victim's impact was significant, including ongoing anxiety and a sense of violation.
On subjective factors, the Court noted the offender's lack of criminal antecedents, relevant psychologist's evidence, and other personal circumstances. His Honour also observed that because the proceedings came to the District Court solely because of the sexual intercourse charge, which was ultimately no-billed, the effective sentencing range was more appropriately measured against the Local Court's two-year limit rather than the five-year District Court maximum.
Having regard to all of these considerations, including the concurrent nature of the sentences, the Court determined that a Community Corrections Order was appropriate rather than a term of full-time imprisonment.
Orders Made
- On each of the three counts, the offender was sentenced to a Community Corrections Order of three years, commencing 5 April 2019, with sentences to be served concurrently.
- The offender was ordered to perform 100 hours of community service for each offence, totalling 300 hours of community service.
- Corrective Services NSW was directed to refer the offender to a psychologist for a comprehensive dynamic risk assessment to determine suitability for a sex offender program; if found suitable, the offender was required to participate in any designated sex offender program within the three-year Community Corrections Order period.
- As an additional condition of the Community Corrections Order, the offender was required to continue treatment with his psychologist for such period as the psychologist considers appropriate within the three-year term.
- The offender was directed to report to the Burwood Community Corrections office on 8 April 2019 at 11am.
Key Takeaways
- A plea of guilty entered only on the Friday before a scheduled trial date, after the matter had been fully prepared for trial, will ordinarily attract a discount at the lower end of the available range. The District Court assessed 10% as appropriate in these circumstances.
- Where a more serious charge brings proceedings into the District Court but is ultimately withdrawn, the court may assess the effective sentencing range by reference to the Local Court's two-year jurisdictional limit, rather than the five-year maximum available in the District Court.
- Exploiting a position of trust, such as a professional therapeutic relationship, is a relevant aggravating factor when assessing the objective seriousness of indecency offences.
- A Community Corrections Order, including community service and participation in a sex offender assessment and program, can constitute a sufficient sentencing response for this class of offending where relevant subjective factors and the effective jurisdictional range are taken into account.
- His Honour took the opportunity to note, as a matter of anatomical accuracy, that agreed facts commonly misdescribe external genitalia as "the vagina," which is an entirely internal organ, and that courts and practitioners should use precise terminology.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 61L (assault with an act of indecency)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- R v Qin [2008] NSWCCA 189