Director of Public Prosecutions v Basile
[2023] VCC 822
•22 May 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR-22-00584
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LAWRENCE BASILE |
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JUDGE: | HIS HONOUR JUDGE MULLALY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 April 2023 and 8 May 2023 | |
DATE OF SENTENCE: | 22 May 2023 | |
CASE MAY BE CITED AS: | DPP v Basile | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 822 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Rape — Plea of Guilty — Massage Therapist – Aggravating Factors – Moral Culpability – General Deterrence – Unreasonable belief in consent – Mitigatory Factors – COVID-19 pandemic.
Legislation Cited: Sentencing Act 1991 (Vic) s 6AAA and s 11A.
Cases Cited:Director of Public Prosecutions v Alimadad Mokhtari [2020] VSCA 161; Clarke (a pseudonym) v DPP [2022] VSCA 89; Jurj v The Queen [2016] VSCA 57; Director of Public Prosecutions v Miftode [2015] VCC 686; Chenhall v The Queen [2021] VSCA 175; Worboyes v The Queen [2021] VSCA 169.
Sentence: 7 years imprisonment with a minimum non parole period of 4 years and 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Moore | Office of Public Prosecutions |
| For the Accused | Mr C. Pearson | Adrian Paull Criminal Lawyers |
HIS HONOUR:
1 Lawrence Basile, for some years you have operated as a massage therapist on the Bellarine Peninsula and earlier in Melbourne. In January 2021 the victim sought out a massage therapist for her and her partners significant musculoskeletal problems. She and her partner were new residents on the Bellarine having moved from Melbourne.
2 Through Facebook, you and she made arrangements for massages to occur in her house. Ultimately you provided massages to her and her male partner. in January 2021.
3 A further massage appointment was scheduled for 8 February 2021 at the victim’s house for both her and her partner. You set up your table as per usual and the victim was the first to be massaged.
4 Very shortly after the massage began you commenced to touch the victim quite differently to how the massages had been in the past. The victim was in shock as you touched her on her vagina eventually penetrating her vagina with your finger then fingers. It is clear this was not a fleeting touch, but continued during the massage, with you penetrating her vagina with one hand while massaging other parts of her body with your other hand. Your penetration occurred while she was on her stomach and again when she was on her back.
5 The victim was, as I said, in shock and, as is not uncommon in sexual assault, she simply froze. The victim only felt able to tell her partner the next day. He too was shocked, and supportive. The victim and he went to the police that afternoon. A pre-text telephone call was made, that is the victim rang you to raise this sexual assault with you and ask you why you thought that you could do to her what you had done.
6 In the pre-text call you did not dispute what you had done or that it was completely wrong. I will paraphrase important aspects of what was said in a relatively short conversation. The victim commenced with:
VICTIM: Hey Lawrence. How you doing?
MR BASILE: Not too good.
VICTIM: I'm just calling up to have a conversation with you, all right. What the fuck happened last night? What - what right gave - - -
MR BASILE: Look, I'm - I'm, yeah, very - I am –
VICTIM: What right gives you –
MR BASILE: - - extremely sorry, yeah.
VICTIM: What right gives you to put - to massage my vagina - - -
MR BASILE: Nuh, there's no right - no right at all, nuh.
VICTIM: - and put your fingers up my vagina?
MR BASILE: None, nuh, none - no right at all.
7 A few moments later the victim asked you to explain yourself, she said:
VICTIM: What were you thinking? Tell me, please tell me what you were thinking.
MR BASILE: Look, I – I – I wasn’t, that’s the – the whole thing. I was – I – I wasn’t.
VICTIM: What, did you fancy me or something?
MR BASILE: No, not at all. Look, I had prostate cancer 12 years ago, so I've got no feelings whatsoever. So there's nothing there that indicated that at - whatsoever, no.
…
VICTIM: Then what were you thinking last night, to - - -
MR BASILE: No, I - I wasn't, that's the whole thing.
8 The victim then in frustration concluded the conversation by saying:
VICTIM: Well, I've got my answer. I won't ever get closure from your stupid, filthy mind of yours and your dirty hands with it, and I had enough. At least I've got my answer: I won't get one. Thank you, Lawrence, bye.
9 You were arrested and interviewed a fortnight later on 23 February 2021 and gave answers in a record of Interview. You completely denied the allegation that you had penetrated the complainant. The police then played to you the pre-text call in which you admitted the penetration of her vagina. Confronted with this you maintained you had not penetrated the victim and what you said in the pre-text call was simply to try to end the call. Plainly those responses in your record of interview and your denials were outright lies, which do you no credit and impact on your credibility in providing through your lawyer another explanation for your offending. I will return to this shortly discussing what you now say was your state of mind at the time of your rape.
10 As part of my statutory obligations, I must assess the gravity of your crimes and your moral culpability.
11 Before turning to your example of this crime of rape, it must be noted that our Parliament has made clear in a number of ways the seriousness of the crime of rape. The first is by fixing the maximum term of 25 years imprisonment, which is the longest maximum term other than life imprisonment. Second, Parliament has in recent years categorised the offence of rape as one where a sentence of imprisonment must be imposed. Third, Parliament has included rape in the standard sentencing regime meaning that the midrange of rape offending as assessed by reference to the objective circumstances, has a standard sentence which is fixed at 10 years. I will say more of standard sentencing later in my reasons.
12 So plainly the crime you committed is a very serious one. It involved the violation of the victim’s bodily integrity. It is a violation of what is deeply personal, that is an individual’s sexual autonomy, It is a violation of a person’s right to choose and consent to sexual activity at a time and with a person of their choice. As is well understood this crime can cause deep and enduring, even lifelong, harm.
13 As the Court of Appeal said in Director of Public Prosecutions v Mokhtari:
The very act of rape is inherently serious, simply by virtue of the invasion of the victim’s bodily integrity without consent. It is, quite simply, an act of violence, whether or not accompanied by other violent conduct. The violation is physical, emotional and psychological. It follows that, aggravating features apart, all acts of non-consensual penetration are objectively serious, irrespective of the form and the extent of the penetration.[1]
[1]Director of Public Prosecutions v Alimadad Mokhtari [2020] VSCA 161, [41].
14Further, as the Court of Appeal stated in the recent case of Clarke (a pseudonym) v DPP:
…the crime of rape ‘covers a very wide spectrum of different activities carried out in a wide variety of circumstances of differing degrees of objective gravity.[2]
[2]Clarke (a pseudonym) v DPP [2022] VSCA 89, [28].
15It is therefore important to deal with the actual facts and circumstances of your rape of the victim. In this regard, the absence of features that would, if they were present, be aggravating does not operate to mitigate your offending. So, looking at the circumstances of your crime, what stands out as the most serious aspects are as follow.
16Firstly, your comprehensive and brazen breach of trust. The victim engaged you solely for physical treatment for her injuries. She trusted that you would respect her bodily integrity. Having a massage is for many people a necessary treatment for physical problems and it can also be a relaxing way to deal with stress in one’s life. However a massage creates added vulnerabilities as the massage therapist necessarily touches the person being treated when that person is near or actually naked. Plainly in those circumstances there is a high level of trust. Put simply there are forbidden boundaries that every massage therapist knows they cannot cross.
17 Obviously, it is beyond comprehension, that a massage therapist would penetrate a woman’s vagina in the course of a massage that is to treat physical ailments. So, for you to exploit the situation of a victim’s vulnerability during a massage and digitally penetrate her as she lay on the table is a particularly serious example of the crime of rape.
18 In this case, an added feature is that she was violated in her own home where she had invited you to perform legitimate massage. She was entitled to feel safe in her own home.
19 Your violation of her was not, as I have said, some fleeting touch, it was protracted within the confines of a 30 minute massage.
20 Your counsel pointed out that this was spontaneous criminality and there were no features of premeditation or grooming of the victim. That is the case but I re-iterate that the absence of some feature that if present would make it a more serious example does not mitigate, it merely highlights what was in fact done. Of course, there can be and are more serious examples of the crime of rape. The Court of Appeal in Jurj,[3] and Miftode,[4] broadly identified features of the crime of rape that make a particular example of the crime more serious. In my assessment of the gravity of your crime I have considered all aspects of that authority and most importantly all features of this crime.
[3]Jurj v The Queen [2016] VSCA 57.
[4]Director of Public Prosecutions v Miftode [2015] VCC 686.
21 I consider your offending was a particularly serious example of the crime of rape. I do not accept your Counsels submissions that this was a crime that in relative terms was a “low level example of serious criminal offending”.
22 I also consider that the effect of your crime beyond the impact on the victim is that the trust that all in the community have of those who offer massage services is diminished. There is a risk that your criminality lowers even the trust that is held in legitimate, well trained, and regulated professional massage therapists.
23 There was some discussion at your plea as to examples of massage therapists raping clients, including some media reports about this very topic in the days between the plea hearings. As I stated I have not drawn any conclusions as to an increased prevalence of this type of rape and have not factored in those sorts of considerations into the fixing of the sentence. Such matters are for the Director of Public Prosecutions to pursue based on evidence and ultimately for the Court of Appeal.
24 The seriousness of this example of rape calls for denunciation and punishment, but also the circumstances mean significant weight has to be given to general deterrence. This is to ensure all those providing massage therapy services or any clinical treatment, understand that if they exploit a situation for their own perverse sexual gratification, then they will face very stern punishment. The expectations, professional standards and the trust that the community have in treating clinicians and massage therapists must be re-enforced by the courts when criminal conduct is shown in a massage or like form of treatment.
25 As to your moral culpability – it is plain you should have known from the outset that to digitally penetrate the victim was seriously wrong. You should have, but you did not, refrain from exploiting the circumstances for your own perverse gratification.
26 Your counsel submitted that there were aspects of your conduct or the circumstance that meant that your moral culpability should be seen as at the lowest level. As best I understood his submission it was that you somehow formed a belief that the victim was consenting to being penetrated, but you now acknowledge your belief was unreasonable. Ultimately, he based his submissions on what he said was the evidence in the depositional materials and to some extent to what you said to the psychologist engaged for the purposes of the plea. You did not give evidence on the plea but nothing adverse in respect of my reasoning on this issue or any other aspect of the sentencing flows from you remaining silent in the plea hearing.
27 First, it was put that, the victim did not make her lack of consent known at the time that the offence was committed by objecting to the penetration, and as a consequence you had a belief she was consenting, although you now understand that the belief was unreasonable.
28 Such a submission does not explain why you penetrated her in the first place. It beggars’ belief you thought she was consenting at the outset. Her completely understandable reaction of shock, then freezing, such that she was simply unable to respond, is not a feature that somehow lowers moral culpability. Consent is not to be seen as somehow the default position until a victim voices or shows that she is not consenting. A victim is not expected to scream and fight, and until she does so, her consent is inferred. The reform of our sexual assault laws makes this clear. Your counsel was clear that what he said was not to be seen as suggesting your purported belief was anything but unreasonable.
29 In all the circumstances, I do not find this first point made by your counsel a basis for any reduction in your moral culpability. In essence, your behaviour was from the outset plainly wrong, and to say in effect that she did not protest makes this a less serious crime or your moral culpability lower, is not a sustainable argument.
30 Your counsel also relied on what you said in the pretext call. I have reread the entire transcript. I have quoted it at length in these reasons including the words your counsel particularly relied upon. In my view, at no point in that pretext call do you put or say that you had an authentic belief that somehow she was consenting, and that by the time of the pretext call you accept you unreasonably misread the circumstances. What you said in the pretext call is you had no right to do what you did, that it was wrong, and in the end you do not know why you did what you did, you can’t explain it. While this plainly frustrated the victim, in my view, your response in the pretext call does not support your counsel’s submission as to your having a genuine but unreasonable belief, far from it. The pretext call establishes that you knew what you did was wrong and you have no explanation or you were unable to articulate to the victim your reason for violating her. At no point do you put to her that you thought she was consenting, but that you now see that you had misread the situation. It is not part of your immediate response to the allegation. I do not accept the explanation you gave in your record of interview that you were placating the victim so as to end the telephone call. That aspect of your record of interview like your denials of penetration are in my view false.
31 Your claim through your counsel that you had a genuine but unreasonable belief in consent is not established by the pretext call, nor does what you said to the psychologist. A plain reading of the pretext call is that you knew what you did was wrong and importantly you knew you had no right to do it.
32 The prosecution submitted that nothing in the material referred to by the defence got close to establishing that you had a genuine but mistaken and unreasonable belief in consent. The prosecution contended that there was no basis for seeing your moral culpability as anything but high.
33 In the end I am not persuaded on the balance of probabilities that there is any mitigatory value in your now asserted unreasonable belief in the victim consenting to your penetrating her vagina as you did. In fact, I am of the view, to the higher standard of beyond reasonable doubt, that you did not have such a belief at the relevant time.
34 The effect of such findings is to see your moral culpability as not lowered as your counsel submitted, but rather it remains high.
35 I note in this regard and generally as to your character, that initially your counsel put forward that you were properly trained, appropriately registered and had operated professionally without complaint for many years. The point being made was that this conduct must be seen as a one-off serious falling short by you, of what is expected of massage therapists. I make it clear that I accept you have no earlier complaints about your conduct in giving massage. I asked your counsel to provide evidence of his submissions, based no doubt on, instructions, that you were properly trained and registered as a massage therapist. The evidence secured was again your instructions that you had done a Certificate IV course run by the Massage Association of Australia in 2015, and that initially you were registered with the Association of Massage Therapists from 2015 until 2018. Accordingly at the time of the offending you were no longer registered. It is important to note there is no requirement of registration in order to practice as a massage therapist in Victoria.
36 The massage industry is surprisingly unregulated. That is not a matter that impacts on your sentence – but your case is another example of why this branch of clinical therapy should be more regulated, so as to ensure professional standards are met, and patients, like the victim, are hopefully less likely to be sexually assaulted.
37 Another factor that has relevance but only slight weight with respect to your moral culpability is that you have an old finding of guilt in 1993 for committing an indecent act with a child under 16. You were fined without conviction in the Magistrate’s Court. I will return to this matter when discussing your personal circumstances and generally your character. With regard to the issue of your moral culpability, past crimes can be relevant, although I emphasize from outset you are not to be re-punished for past conduct.[5] Rather, as has been well established by long authority, past offending can impact adversely on moral culpability. The closer in time and the similarity between the offending would increase the weight of this consideration. So in your case your prior matter is old now 30 years ago. What I know of the offending was what you told the psychologist, that you were playing with your partners daughter and neither she or her mother wanted to make a complaint but the matter was before the Courts because the school reported it to the police. It is hard to say much at all about the nature of the offending save that you committed a sexual act with a child.
[5]Veen (No 2) [1988] HCA 14; 164 CLR 465; also see: Lim v The Queen [2019] VSCA 182, [33]- [56].
38 As I indicated, this prior matter has little impact on your moral culpability, which is high as a simple consequence of what you did on 8 February 2021.
39 The impact of your crime on the victim is hard to precisely gauge as she in effect requested that her victim impact statement (‘VIS’) not play a role in the sentencing process. A VIS document filed by the prosecution was not tendered and I have paid no regard to it as requested by the victim. That said her words in the pretext call and her statement allow for the obvious inference of harm caused to her at some level.
40 As to your personal circumstances you are now 68 years old.
41 As I have discussed, in 1993 you were found guilty of committing an indecent act with a child under 16. The child was your then partner’s daughter. A magistrate sentenced you by imposing a fine without conviction. This prior matter is relevant as to your character, given the nature of that offence and this offence being sexual offending. However, I take into account it is now 30 years ago and the penalty imposed by the magistrate was moderate.
42 Good character can and does mitigate. You are not able to call on the full measure of mitigation on the basis of good character, thus, in your case your old, but relevant prior matter is of some, but limit relevance in the sentencing synthesis. There are other aspects of your life as I will discuss that establish that you are hard working and but for that matter in 1993 have lead a law-abiding life until this offending.
43 You were born in regional Victoria and raised there until you were about 13 when your family moved to Melbourne. Your upbringing was supportive. Your family were close. You have 2 siblings, and you remain close to them.
44 You had 3 significant relationships and have two adult children who are supportive of you. The last of your relationships has morphed into an ongoing friendship.
45 You completed school to year 10 before taking up a cabinet making apprenticeship. You worked in this profession for some years before moving into retail sales of hi-fi equipment. You worked in this area including operating your own business for many years. You retired from this line of work in 2009 as a consequence of diagnosis and treatment for prostate cancer. You are currently in remission. It was after your treatment that you did the course and commenced operating as a massage therapist first in Melbourne and then when you moved to the Geelong area.
46 You have no issues with alcohol or illicit drugs. Your mental health is reasonably stable. You are medicated for a range of health issues being Type two diabetes, high blood pressure and high cholesterol. You have sleep apnoea treated with a machine at night. It was not put by your Counsel that prison will be more onerous as a consequence of your health issues, as it was accepted these are not uncommon features of those who are imprisoned, especially those at your age and further the prison authorities do have a duty to ensure you are properly treated.
47 I take into account you are now 68 and a sentence of imprisonment will have its difficulties for you and absorb a number of years that remain to you. It was not put that you were in the category of an elderly offenders who may not live beyond a sentence imposed for serious offending.[6]
[6]R v RLP [2009] VSCA 271; 213 A Crim R 461, [32]-[39]
48 You presented to the psychologist Mr Simmonds, engaged by your lawyers for the purposes of the plea, as understandably having an adjustment reaction to your legal predicament mainly evidenced by low mood. Mr Simmonds considered that so long as you did not return to being a massage therapist, you were a low risk of re-offending. Soon after this incident you stated that you would give massage therapy away and you have not resumed working as a massage therapist while on bail. Of course, as I have said this industry is unregulated and there is nothing that would prevent you from resuming as a massage therapist after you are released from jail. However, I accept that do not intend to ever work giving massages again and you will be much older by the time you are released from prison. Your risk of further sexual offending is low.
49 You have, since your arrest, lived on the age pension with a friend you were once in a relationship with. You remain friends with her. You intend on your release to resume a quiet and law abiding life. Your prospects of doing so are good.
50 Your plea of guilty is important. You relieved the victim of having to give evidence at a trial, but I note that there was a committal where the victim and her partner were cross-examined. The utilitarian benefit to be given to you must be augmented because your plea has come while the criminal justice system is still suffering the consequences of the pandemic. The Court of Appeal in Worboyes,[7] and Chenhall,[8] made clear is that the benefit must be palpable to an accused and further, that others who are guilty are encouraged to plead guilty by the imposition of lower sentences. This was said to be a proper response by the Courts to the crisis in the criminal justice system caused by the pandemic.
[7]Worboyes v The Queen [2021] VSCA 169; 96 MVR 344.
[8]Chenhall v The Queen [2021] VSCA 175.
51 Your plea of guilty is an expression of remorse. I have no doubt you deeply regret what you did. You cannot explain why you did what you did.
52 As I have said in my analysis of the gravity of your offending and your moral culpability, the sentencing purposes of public denunciation, and general deterrence are matters of particular weight in the sentencing syntheses. I do not ignore your prospects of rehabilitation and the mitigatory matters raised by your counsel or referred to in my reasons thus far. However, those matters must yield to the other sentencing purposes. The community expects sentences imposed in these circumstances will be stern enough to articulate the utter intolerance that all in our community have of this dreadful crime of rape committed in the circumstances of a brazen breach of trust by a massage therapist on a vulnerable patient. Further there must be a message of crystal clarity understood by anyone who operates as a massage therapist that if you violate a patient, you will be sent to prison for lengthy periods of time.
53 As I have mentioned rape is a standard sentence offence with a standard sentence fixed of 10 years imprisonment. This operates as a legislative guidepost, as does the maximum term of 25 years imprisonment. The legislation states that the standard sentence is for the middle range of seriousness taking into account only the objective factors affecting the relative gravity of the offending. The well understood sentencing methodology of an instinctive synthesis of all matters relevant to the offending and the offender is not displaced by the standard sentencing regime. It is one factor and I have had regard to the fact this is a standard sentence offence. I have assessed carefully the seriousness of the offence according to the proscriptions of the Act and also considered the other factors as referred to in my reasons, such as the added weight to be given to your plea and all your personal circumstances.
54 Having undertaken the task required by the statute, including the task of instinctive synthesis of all matters, I have come to the conclusion that the sentence I will shortly announce must be lower than the standard sentence. It remains, as I have said, a serious crime with a dreadful breach of trust and with high moral culpability, however there was no additional violence to forcing your will over the victim. In my view the just and appropriate sentence is one lower than the standard sentence.
55 In that regard, the further statutory requirement is to fix a non-parole period of no less than 60 percent of the head sentence unless it is in the interest of justice to do otherwise.[9] While the appellate Courts have often said there are no fixed percentage, here in this case I see nothing that would make it in the interest of justice to impose a non-parole period less than 60% of the head sentence. The minimum term is what justice requires you to serve in prison. I also keep well in mind you may have to serve every day of the sentence I imposed and release on parole is for others, not the Court.
[9]Sentencing Act 1991 (Vic), s 11A.
56 Another aspect of the standard sentencing regime is that when considering current sentencing practices I must only have regard to other standard sentences and not to sentences imposed before the standard sentence regime commenced. In this respect, I have examined appellate cases and some first instance sentences but as stated at the outset this crime can be committed in a wide variety of circumstances and as a consequence no other sentence operates as a precedent. Individualised sentencing is very much to the fore.
57 Doing the best I can with respect to the charge of rape you are sentenced to 7 years imprisonment and I fix a minimum non parole period of 4 years and 6 months before you are eligible for parole.
58 You have already served 14 days in custody. That number of days having been reckoned, I now declare that it is part of the sentence that I have just imposed.
59 Should you have pleaded not guilty to this offence and been found guilty of them I would have imposed a sentence of 9 years 6 months with a minimum non-parole period of 6 years 9 months.[10]
[10]Sentencing Act 1991 (Vic), s 6AAA.
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