Director of Public Prosecutions v Faralla
[2025] VCC 1270
•29 August 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-00741
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSEPH FARALLA |
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JUDGE: | HER HONOUR JUDGE ELLIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 July 2025 and 28 August 2025 | |
DATE OF SENTENCE: | 29 August 2025 | |
CASE MAY BE CITED AS: | DPP v Faralla | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1270 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Two charges of sexual assault – sexual touching during remedial massage – plea of guilty following resolution – profound victim impact – no prior criminal history – offender carries exacting caring responsibilities for elderly mother – offender experiencing various physical and mental health issues – Verdins Limb 5 applicable albeit not of considerable weight – family circumstances burdensome although not exceptional in a Markovic sense – muted expression of remorse – very strong prospects of rehabilitation offending opportunistic but comprises distinct incidents of touching – importance of general deterrence – consideration of current sentencing practices more difficult given charges of this type often dealt with summarily - imprisonment as disposition of last resort – non-custodial disposition open in all the circumstances
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic), Sex Offenders Registration Act 2004 (Vic).
Cases Cited:R v Verdins (2007) 16 VR 269; Markovic v The Queen (2010) 30 VR 589; Boulton v The Queen (2014) 46 VR 308.
Sentence: 3 year Community Correction Order
s 6AAA: 10 months’ imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Russell | Office of Public Prosecutions |
| For the Accused | Ms Z. Broughton | Stary Norton Halphen |
HER HONOUR:
1.Joseph Faralla, you have pleaded guilty to two charges of sexual assault contrary to s 40 of the Crimes Act 1958 (Vic). The maximum penalty for this offence is 10 years' imprisonment.
2.Charge 1 is a rolled-up charge comprising three separate instances of sexual assault.
Circumstances of Offending
3.The circumstances of your offending were set out in the Summary of Prosecution Opening tendered on the plea as Exhibit A.[1]
[1] The Director of Public Prosecutions, ‘The Director of Prosecutions vs Joseph Faralla: Summary of Prosecution Opening for Plea’ (14 May 2025) (‘SPO’).
4.At the time of the offending, you were 58 years old. You were a self-employed remedial masseur and operated under your own business trading as 'The Massage Doctor'.
5.On occasions, you would see clients at the 'The Healthy Life Clinic', located at 2/91 Dorset Road in Ferntree Gully.
6.The victim is Chloe Waters.[2] At the time of the offending, she was 27 years old.
[2] A pseudonym.
Background
7.In around late November to early December 2021, the victim contacted the Healthy Life Clinic to make an appointment for a remedial massage. She made an appointment to see you at 10.00 am on Saturday 4 December 2021.
8.On that date she went to the clinic and received her first massage with you.
9.The massage was observed by a fellow staff member as part of a training exercise. You massaged the victim’s legs and glutes. There was no sexual touching and nothing inappropriate about this first massage.
10.In February 2023, Ms Waters suffered a torn left hamstring, for which she received treatment from a physiotherapist.
11.In late February 2023, the victim decided to book another massage with you. Her calves were sore, and she had not had a massage in a long time. She called the clinic to book an appointment and requested you. The staff member she spoke with told her you were not working there at the time, but they would provide her phone number for you to call her.
12.In March 2023 you made contact with the victim, and she made a booking for a massage from you at the clinic at 11.00 am on 24 March 2023.
Offending
13.At about 10.50 am on 24 March 2023, Ms Waters arrived at the clinic. She met you at the front reception desk. You requested that the victim pay up front before the session commenced. She told you that she wanted to claim the massage on her private health insurance, and you said you would have to send her an invoice after the massage.
14.You went to the filing cabinet, obtained the victim’s records and confirmed her personal details with her.
15.You took the victim into a treatment room. She told you that she wanted you to work on her lower body, specifically her calves and feet. She told you about her hamstring tear and asked you to work around that because she was receiving treatment for it. You asked her if her upper body was 'fine' and she said that she only wanted her lower body done.
16.You left the room while she got undressed. She undressed down to a sports crop top and G-string. She lay face down on the massage table, with her head over the hole in the table. She placed a sheet over her body. While she was waiting, she heard you and a person she assumed was the owner of the clinic having some kind of argument outside the room, with raised voices, for a short while.
17.You entered the treatment room. You said, 'I’m going to work on your vagina today'. The victim was not sure if she had heard you correctly or not. She did not say anything.
18.You began to massage the complainant. She was still under the sheet. You applied pressure to her whole body from head to toe, starting with her upper body. This went for about five minutes.
19.You then said that women’s 'issues' start in the pelvic area, and that’s where they store their emotions and issues. You said, 'we need to clear the emotions'. You told her there was a lot of work to do on her body and that, 'a therapist wouldn’t treat you the way you are because there’s too much work to do'. You told her that it would be two hours minimum to treat her properly, and you could try to extend the session.
20.You took the sheet off her upper body and touched her neck, shoulders and base of the head. You asked if anything hurt. The victim said 'no'. She just wanted you to work on her calves like she had asked. You pulled the part of the sheet that was over her lower body and folded it up over her upper body, exposing her lower body. You massaged her calves and shins, using some kind of hot balm with a strong smell, such as Deep Heat or Tiger Balm.
21.You massaged up the victim’s legs in the direction of her bottom.
22.You continued to massage the victim. You massaged her calves and feet, before moving to her inner thighs, touching her vagina (which constitutes part of Charge1). You were pushing into the bone with your fingers near her groin, causing pain. Again, you told her to breathe through it. The victim was scared.
23.You began to stretch the victim’s legs whilst she was on her stomach. You asked her to lift her right leg. She did. You asked her to lift her left leg into the air. The victim was unable to do this due to her hamstring injury.
24.You said to Ms Waters 'let me help you'. You placed one hand directly over her vagina, cupping it in your hand (which constitutes part of Charge 1), and with your other hand lifted her left leg into the air. This caused strong pain to her injured hamstring. You then pulled her legs out horizontally. There was no sheet covering her lower body. You massaged her legs, causing considerable pain to her left hamstring, before putting her legs back flat on the table.
25.You were acting erratically, rushing around the room and going back and forth for more balm. You asked the victim if you could turn off the heater because she was making you 'hot and sweaty'. You made comments about the victim’s body, telling her that she had a 'good package going on down there' and that you could tell that she worked out. You asked if she was free to come back next Monday for a free massage and she said no.
26.You asked the victim to roll onto her back, which she did. You began to work on her calves and feet. You worked up the victim’s legs in the direction of her groin. You said, 'excuse the hands'. You told her that massage therapists were too afraid to go near the genitals.
27.You massaged the victim’s thighs and calves. You then moved your hands back to her vagina area.
28.You touched the top of the victim’s vagina, whilst patting it and pushing down on it with your hand. Again this constitutes part of Charge 1.
29.You dug your hand into the victim’s pelvis area. You massaged back up her legs.
30.You said to the victim that it was ‘time up’. You showed her how to treat herself. You told her that there were a lot of pressure points on her body and showed her a pressure point on her leg.
31.You then moved your hands to the victim’s chest area and pushed down on both of her breasts, just above her nipples, for about 15 seconds. You asked if it hurt, and she said yes. This conduct constitutes Charge 2.
32.The massage concluded. The victim dressed and you walked her out of the clinic. You told her to stay in contact and you said that 'we’ll text'. She did not say anything in response.
Complaint evidence
33.The victim left the clinic and drove home. When she arrived home, she washed her clothes and showered.
34.Later that afternoon she told her mother Louisa Waters[3] about what had occurred.
[3] A pseudonym.
35.At first the victim did not want to go to the police. She thought it was somehow her fault. She was embarrassed. She was scared that nobody would believe her.
36.Pausing there, what happened to Ms Waters is in no way her fault. She is not responsible for your behaviour and nor should she be embarrassed about your conduct. This is entirely on you, Mr Faralla, and the fact that you took advantage of her in circumstances where she was vulnerable.
37.That evening, the victim sent three text messages to a friend, which stated: 'I had a massage and he basically sexually assaulted me'. 'First five minutes "I’m going to work around your vagina”, 'I actually feel disgusting'.
38.Shortly after this, the victim called that friend on the phone. She started to cry as soon as her friend answered. She told him what you did to her and how you hurt her, and he told her she should go to the police.
39.The following day the victim noticed brown and purple bruises around her quads, about the size of a 50 cent coin.
40.Later that week, the victim told her sister what happened.
Police involvement
41.On 4 April 2023, Ms Waters reported the incident to police. On 11 April she made a statement and gave police her black coloured G-String, sketches of the Healthy Life Clinic, and the notes she had made about her interactions with you.
42.On 20 April 2023, the victim attended the police station and conducted a recorded ‘pre-text conversation’ with you, in which she called you to confront you about the offending while recording the conversation.
43.On this call, the victim said to the you 'I asked for my calves and feet to be done but you were around my vagina'. You replied 'Mmm note taken, yes, yes we did work in that area if I remember correctly. All intentions were good. I pray to God you don’t think that was for any other purpose'. Later, when interviewed by police, you falsely claimed that your initial reaction on this phone call to the allegation was to deny it.
44.Following the pre-text call, you sent a text message to the victim telling her that she did not have to pay for the 'treatment'.
45.You were arrested on Thursday 25 May 2023. In your police interview, you admitted to having provided a massage to Ms Waters on the relevant dates, however denied allegations that you touched her vagina. You admitted in this interview massaging the complainant’s chest area, despite acknowledging that she only asked you to work on her lower body.
Procedural History
46.A committal hearing was held in May 2024 in which the complainant was cross- examined. You were committed to stand trial on charges more serious than that to which you have pleaded guilty. The trial was listed to commence on 13 May 2025, and on the second day of trial, but prior to empanelment, the matter resolved.
47.Your plea of guilty is of considerable utilitarian value. You have spared the community the cost of a trial, demonstrated a willingness to facilitate the course of justice and importantly, you have spared the complainant from having to give evidence again. It is not an early plea, given the timing at which it was entered and given the fact that the complainant gave evidence at committal. However, I do note that the charges are different to those which would have been prosecuted at trial. I also take into account that since being charged, you have continued to work and support your elderly mother. You have complied with the conditions of bail and the delay, whilst largely of your own making, would have caused you stress. I take into account your plea of guilty.
Victim Impacts
48.I have received a powerful victim impact statements from the victim in this matter, Ms Waters, in addition to a statement from her mother, Louisa Waters. I have also received a psychological report for the victim, authored by Ms Puya Pazir.[4]
[4] Puya Mehman Pazir, ‘Initial Report – Recommendation for More Than Five Hours of Counselling’, 01 May 2024 (‘Pazir Report’).
49.Ms Waters’ statement describes the profound impact your offending has had on her. It is difficult to do the statement justice being conscious that it was not read aloud in court, but I have taken all aspects into account. In summary, in her statement, Ms Waters describes the emotional impact of the crime on her simply but powerfully. It has ‘destroyed’ her. She says there has not been a single day since your offending that she has ‘felt at peace'. She feels she was ‘robbed of the vibrant, happy years of (her) late 20s.’ and reflects on being a confident independent woman prior to this. She suffers ‘constant flashbacks and intrusive thoughts’, calling the ‘weight of what happened… inescapable.’ She feels ‘completely disconnected’ from her ‘body and from any sense of purpose', she has found the legal process ‘draining, isolating and retraumatising.’ She has described feelings of isolation following your crime, saying she ‘avoids social events’ and feels like she is ‘watching life go on around (her), but (she’s) not in it anymore.’
50.She has described the ongoing and crippling stress-related health conditions following your offending which has impacted her ability to participate in sport, which was previously a significant part of her identity and mental wellbeing. She experiences strong feelings of shame and lack of confidence. Furthermore, as your offending occurred in the context of a massage, her trauma means she no longer seeks regular massages for injury prevention and recovery.
51.The victim also describes feeling ‘financially crippled’ due to the offending. The medical and emotional difficulties stemming from this crime have ‘severely impacted’ her ability to work, and she describes ‘living pay cheque to pay cheque.’ She had to withdraw from her postgraduate study, and is now carrying a HECS debt. She feels that due to the crime, there have been so many things ‘(she) worked hard for that (were) stolen from (her). She sums up how the offending ‘continues to take from (her) every day’ and that she will ‘carry the weight of this experience with (her) for the rest of (her) life.’
52.In Ms Pazir’s report, she opines that Ms Waters meets the criteria for a ‘severe presentation of PTSD’ which presents as ‘considerable distress and significant impairment on her social and occupational functioning.’[5]
[5] Pazir Report (n 4) 5.
53.The victim’s mother, Ms Louisa Waters, describes feelings of ‘helplessness’ watching her daughter experience ‘extreme emotional and financial stress’ following your offending. She says she feels like a ‘complete failure as a parent’ and lives in a ‘state of constant sadness and anger’ watching her daughter be ‘so deeply sad,’ having ‘stopped living her life and growing as a person.’ She said it is a ‘daily struggle’ for the whole family, and refers to the financial impact stemming from paying for counselling bills for her daughter and installing security cameras at the front of their home.
54.I take the significant and serious effect that your offending has had on Ms Waters, and less directly but not less relevantly, the effect on her mother and family, into account.
Prior Criminal History
55.You come before the court with no prior criminal history, and you have been of good character.
Personal Circumstances
56.You were born in Melbourne in 1964 to parents who migrated from Sicily, and you are now aged 61 years. Your parents left their subsistence farming lifestyle and sold their land on one of the Aeolian Islands to move to Australia, settling in Glenroy. They set up their property with a considerable reliance on their own home grown produce. Your father worked at Ford in the plastics section. Your mother was dedicated to caring for you and your brother.
57.You grew up a supportive family unit and feel a strong sense of responsibility towards in particular your mother.
58.Your father passed away from cancer in 2016 at the age of 86. Since his death, you have been a devoted, live-in carer to your mother, who suffers from cancer. I will discuss the impact that this has had on you at a later point in the sentence.
59.Your first wife, who you married in your 20s, died following complications from a brain tumour. Her death devastated you and it took many years for you to recover. You have since remarried and you have been with your partner for over 20 years. She has children from a previous relationship. You and your wife currently do not reside together as you have been living with your mother to assist with her care. Meanwhile your wife has moved in with her daughter to assist her with the care of her 11-week-old baby and four-year-old child. Her daughter, who has prepared a character reference for you, has required this assistance post-birth.
60.Additionally, your wife has experienced depression and has struggled with a gambling addiction. This addiction led to her losing a considerable amount of money, almost $200,000, which you had to repay to those to whom she was indebted. In doing so, you were reportedly required to sell your home according to your stepdaughter. You also assist your wife, who does not drive, by transporting her to and from work.
Education and Employment
61.Turning to your education and employment history. You completed Year 12 in 1981 and did not experience any significant difficulties throughout your education.
62.You trained as a mechanical fitter and turner, holding a Certificate III in engineering.
63.You have worked as a train mechanic at Metro Trains for the last 25 years. I note that several of your now former colleagues have provided character references for you, outlining your positive contributions to your workplace and your reputation as a reliable, generous and thoughtful colleague and friend.
64.You also gained qualifications in massage therapy and worked as a non-remedial massage therapist for 30 years. You then obtained qualifications in remedial massage therapy.
65.Following the offending, you ceased practice as a massage therapist, and have also routinely had interim prohibition orders issued by the Health Complaints Commissioner, prohibiting you from practising.
66.You reportedly have no intention of returning to work as a massage therapist.
67.Your counsel has submitted that this be regarded as a form of extra-curial punishment given that you have lost employment due to your offending. The prosecution submits that where the asserted punishment has arisen from the offence being part of a person’s employment, loss of employment should not be considered extra-curial punishment, but rather a natural outcome of the offending. I do not regard your inability to continue to practice as a massage therapist as extra-curial punishment given that you used your role to carry out the offending.
68.Since the plea was first heard before me in late July, and as a result of media attention that your case received, your employment with Metro Trains has been terminated. Moreover, your colleagues, many of whom came to court or provided a reference in support of you, have been reprimanded for doing so. I acknowledge that this loss of employment will likely weigh heavily on you, both financially and emotionally. You were committed and dedicated to your role within Metro Trains and will miss the collegiality you enjoyed with the friends that you made there. You are said to have been an active member of the social club and frequently made purchases to assist other employees. I take into account this extra-curial punishment.
Medical & Mental Health History
69.Your counsel has tendered a number of medical reports outlining physical and mental health difficulties that have plagued you over the last several years.
70.Dr Mark Rizkallah confirms that you suffered a stroke within a week of being charged with this offending, on 31 May 2023. You remained in hospital for 10 days, and continue to have ongoing headaches, fatigue and concentration issues.
71.Additionally, you are treated for chronic sinus disease, asthma and severe sleep apnoea.
72.In April of this year, you had a neuroendocrine tumour removed.
73.You had minimal mental health involvement prior to this offending, however, have sought proactive assistance for stress that has arisen due to your loss of employment and these legal proceedings.
74.Mr Patrick Newton writes in the psychological report tendered on your behalf that you have symptoms of depression, including sadness, shame, poor self-esteem and sleep disturbance among others. He notes that these symptoms are so significant that they warrant a diagnosis of an adjustment disorder with mixed anxiety and depressed mood. He attributes this largely as a response to your prosecution and the shame associated with your behaviour. The suggestion that you have let your family down and sullied your reputation professionally weighs heavily upon you.
75.You have recently commenced ongoing treatment for your depression and anxiety for which you are rated as extremely severe, and your stress levels are said to be severe. Your counsellor Erica Patrick notes that you are currently experiencing significant psychological distress, with symptoms of PTSD, severe anxiety and impaired emotional regulation, and that ongoing therapy is recommended. It is not clear what the basis for her diagnosis of PTSD is. You are reportedly prescribed 100mg of Zoloft to assist with your symptoms.
76.Ms Broughton submits that limb 5 of the of the principles set out in R v Verdins are enlivened here.[6] The prosecution submits that whilst the diagnosis is accepted, there is no evidence from Ms Patrick as to the effect that the custodial environment would have on those conditions or whether you would experience an increased burden.
[6] R v Verdins (2007) 16 VR 269.
77.I note that Patrick Newton opines that in cases like yours where there are multiple stressors, the stressful situation is delayed or where access to supports is limited, there is an elevated risk that the sufferer’s mental state may deteriorate. Whilst not dealing directly with whether or not you would likely find imprisonment more burdensome as a result of these conditions, ultimately, I accept that given your diagnosed mental health conditions, it is likely that the burden of imprisonment would be greater on you than somebody without those mental health conditions. However, I do not give it considerable weight.
Hardship
78.
Since the death of your father, you have been a devoted carer to your now
96-year-old mother. You experience a strong sense of duty towards her, given what you perceive as a need to repay her for all the support and dedication she has shown you throughout your life. Your mother has experienced poor health in recent years, suffering from non-Hodgkin's lymphoma, arthritis and cancer. You moved in with your mother so as to be able to assist with her care. You prepare all of her meals, manage her medications and take her to appointments, including immune-infusions every six weeks.
79.Your colleagues at Metro Trains speak of your dedication to your mother. During the day you would be at home attending to her needs before working nightshift. It would not be unusual for you reportedly to receive a phone call in the middle of the night whilst at work, from Mrs Faralla needing emotional support.
80.
Medical material from the Royal Melbourne Hospital indicates that she was recently hospitalised, and it appears that within a day of her discharge was
re-admitted to hospital after many hours waiting in an ambulance. She is currently being treated for pneumonia at Epworth Hospital where she is expected to remain for 3 – 5 days. She may require a blood transfusion due to low haemoglobin levels.
81.I have received statutory declarations from yourself, your brother and mother to the effect that you are the only one who can properly care for Mrs Faralla as your brother does not have the capacity to do so. This is compounded by your wife’s inability to assist in circumstances where she is already occupied helping her daughter with the care of young children.
82.To that end, your counsel has submitted that given your mother’s frailty, the high level of care that she requires, and the fact that only you are in a position to provide for her, in combination with your other family duties, amounts to exceptional circumstances such that the court should exercise mercy. Your mother’s, and to a lesser extent your wife’s, reliance upon you, together in combination is said to be exceptional.
83.Alternatively, Ms Broughton submits that your inability to support your elderly mother during your incarceration would cause you considerable distress and stress, which would make prison more burdensome for you.
84.The prosecution submits that these familial obligations, whilst relevant, do not amount to exceptional circumstances applying Markovic v The Queen.[7] In that case, the Court of Appeal confirmed the common law position that, unless the circumstances are shown to be exceptional, family hardship is to be disregarded as a sentencing consideration. Accordingly, hardship is only relevant as a factor in mitigation where it is highly exceptional, or the exceptional case where the plea for mercy is seen as irresistible. The circumstances must be such as to rise above the general hardship commonly suffered by families of those imprisoned.
[7] (2010) 30 VR 589.
85.I have given the question of your family hardship careful consideration. I am not satisfied that these circumstances are exceptional. The hardship to your family should you be incarcerated is a sad but somewhat unremarkable consequence of your conviction, albeit that your role as a caregiver is clearly very significant. I accept that you have played a central role in your mother's care, though I note that she has been able to be by herself of an evening and ultimately, if need be, other supports could be implemented to assist with her care, such as those within the community or if need be, your brother. Whilst she may prefer your care, and whilst understandably you feel a sense of responsibility to be the person who provides that care, this is not of such necessity as to give rise to exceptional circumstances, even in combination with your commitments to your wife.
86.However, in line with Markovic, I do accept that your anguish at being unable to care for and support your family, in particular your mother and your partner, will make the experience of a custodial sentence more burdensome.
Character references
87.I take into account the various character references that have been tendered on your behalf by your family, friends and former colleagues. You are variously described as a man of integrity, responsibility and compassion. You are said to have been widely regarded within your community as someone who can be relied upon for support and guidance. You are described as generous and kind, devoted to your family and well liked and highly regarded by your peers. Your behaviour is described as very out of character. I accept that this is so.
Remorse
88.Your counsel submits that the shame you feel for your behaviour, as described by Mr Newton in his psychological report, is indicative of remorse. This is also said to be reflected in your guilty plea.
89.Your referees speak of your remorse but how this has been conveyed to them is unclear. Ms Broughton submits that this is in part to do with your poor communication skills, but that you are genuinely remorseful, and you are committed to embracing education to help you change.
90.Mr Newton also states that you show limited insight into your behaviour, and your negative feelings surrounding this matter are largely associated with the impact that it has had on you, rather than any remorse for how you have acted towards the victim.
91.In Mr Newton's report, he refers to the fact that you stated that you and the victim are ‘in the same boat’, ignoring the fact that the offending and therefore the punishment are all related to your choice to sexually assault the victim. Furthermore, when commenting about the ability of Ms Waters to make a victim impact statement, you complained that nobody has checked in to see how you are feeling. This demonstrates a clear lack of accountability and reticence to take responsibility for your actions. Again, you are the perpetrator of this offending, and you are therefore not in the same position as the victim, who was vulnerable and had her trust breached by you when you chose to sexually assault her. Again, she is not in any way responsible for the offending that you inflicted upon her and the violation of her body at a time when she was seeking treatment.
92.In addition, you continue to minimise your offending, by asserting to Mr Newton that it was not intended to be sexual and was rather a result of you going ‘above and beyond’ what was requested of you as a massage practitioner.
93.Mr Russell submits that this perspective is somewhat incompatible with your plea of guilty to the charges in the matter, given that there is a requisite intention element as part of the offending.
94.The prosecution describes your remorse ‘at best’ as muted.
95.I note that when discussing your offending with Corrections, you stated that you had lost track of what you were doing and that the offending occurred in the moment. You reported that you were very sorry for the offending and are willing to take responsibility for your actions. This is an improvement on your earlier account of your conduct, though suggesting it occurred in the moment ultimately ignores that there were multiple instances of touching throughout the consultation.
96.Overall, you appear to lack some insight into your offending and the impact that it has had on the victim, though you now acknowledge your wrongdoing suggests some increased awareness. Ultimately, I agree with the prosecution’s characterisation of your remorse being muted at best.
Prospects of rehabilitation
97.Despite a lack of insight, Mr Newton considers that you present a low risk of recidivism of further sexual offending. Your sexual adjustment is considered normal but gaps in your understanding of consent have been identified. To that end, education and treatment surrounding this would be beneficial and you have reportedly expressed an intrinsic motivation to undertake this through individual counselling. Corrections too have assessed you as being a low risk of re-offending.
98.The fact that you have engaged in ongoing counselling is encouraging and bodes well for your prospects of rehabilitation.
99.Given that you have no prior criminal history, no substance abuse issues, a strong work history and extensive family supports, not to mention a strong commitment to the care of your mother, I consider that your prospects of rehabilitation are very strong. They would be further enhanced with greater understanding of the impact of your offending.
Nature and Gravity of Offending
100.Turning to the nature and gravity of the offending. Sexual assault covers a wide spectrum of different activities carried out in a wide variety of circumstances in differing degrees of objective gravity.
101.Your sexual assaults of Ms Waters amount to a gross breach of trust. There is a degree of vulnerability when a patient attends a massage therapist. Often consultations take place in the privacy of a therapist’s room. Those attending for a consultation with a health professional such as a massage therapist, are entitled to expect that any contact will be conducted legitimately. In your role, you were required and permitted to touch clients, often for lengthy periods in circumstances where they have little control over the situation.
102.You exploited your position as a massage therapist and took advantage of the victim who was vulnerable, in a state of considerable undress, and alone with you in a consulting room, where she had sought treatment for a hamstring injury.
103.The parts of her body touched were intimate, her vagina and breasts, albeit that it was over her clothing. It is difficult to quantify the duration of the touching throughout the course of the appointment. The touching occurred at various points of this consultation. Given that there are three instances that make up Charge 1, and that there are two charges, it cannot be said the touching was fleeting or momentary. At the very least, there were separate and discrete instances of touching, thus subjecting the victim to repeated violations. You had time to reflect between each instance of touching but chose to deliberately violate Ms Waters’ person in each instance.
104.I accept that the offending was opportunistic, however given that you informed
Ms Waters at the beginning of the treatment that you were going to work on her vagina, this suggests some element of forethought of sexual touching that would ensue. It amounts to some degree of premeditation. Perhaps you were indirectly seeing if you could get away with it. It is not clear, but in any event, you did go on to touch her vagina, as you had foreshadowed.105.Charge 1 is a rolled-up charge. When sentencing on a rolled-up charge, the court must consider all of the circumstances of the offence and the totality of harm described in the charge. While I may consider all of the relevant circumstances of a rolled-up charge, the plea must still be treated as entered to a single formal charge and this applies with respect to Charge 1.
Relevant sentencing factors
106.The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In determining an appropriate sentence, I must have regard to these sentencing principles, and I am required, pursuant to the Sentencing Act 1991 (Vic), to take into account various factors when formulating an appropriate sentence, including the gravity of the offending, your culpability, the effect on the victim and your personal circumstances as well as the maximum penalties applicable.
107.The sentence I pass must balance the interests of the community in denouncing criminal conduct with the community's interests in seeking to ensure that, as far as possible, you are rehabilitated. I am to have regard to the principles of parsimony, and I do so.
General and specific deterrence
108.General deterrence is an important sentencing consideration here. Other members of the community and indeed health professionals entrusted with the care of patients, must understand that sexual touching of patients will not be tolerated. There is a need to protect the community from those who carry out the sort of offences for which you have pleaded guilty. Just punishment and denunciation must also be given primary consideration. I do indeed denounce your conduct.
109.Your counsel submits that specific deterrence is less relevant a consideration. Given your lack of prior criminal history, previous good character and that you have endured not only the loss of your employment but, as your counsel submits, an entire sense of identity, I am inclined to agree. As you are experiencing, there are indeed consequences for your actions. However, specific deterrence is not irrelevant.
110.The prosecution has brought to my attention a number of cases containing relevant principles for sentencing for sexual assault. I have also been provided with cases said to be comparable, involving breaches by health professionals in the context of a therapeutic consultation. I note that a number of the cases relied upon by the prosecution also involved more substantive and serious charges such as rape.
111.Your counsel has also provided me with a table of comparable cases which I have read along with the cases therein. There are many cases which have resulted in non-custodial dispositions. It is somewhat difficult to analyse the sentencing practices given that this type of charge is often heard in the Magistrates’ Court. I have also been provided with sentencing statistics for sexual assault.
112.Ultimately, current sentencing practices are but one of the considerations in sentencing, but not the controlling factor.
Sentencing submissions
113.The prosecution submits that having regard to the gravity of the offending and all relevant sentencing factors, that an appropriate disposition would be a term of imprisonment combined with a community correction order.
114.It is submitted on your behalf that a community correction order alone would achieve the objectives of sentencing having regard to the various matters in mitigation. This would enable you to be rehabilitated within the community, undergo treatment and rehabilitation whilst contributing to society.
115.I have had you assessed for a community correction order and you were considered suitable.
116.Your counsel has confirmed there is no pre-sentence detention to be considered in this matter.
Imprisonment of Last Resort
117.As I have already said your offending was serious and there is a real need for the court to denounce your conduct, pay regard to just punishment and have regard to general deterrence. The question is whether I should impose a term of imprisonment in combination with the community correction order.
118.The starting point is that the law says that a court must always regard imprisonment as a disposition of last resort and may consider, even in cases of serious offences, that a community correction order is a punitive disposition which is capable of addressing all relevant sentencing considerations. As the Court of Appeal noted in Boulton v The Queen,[8] a community correction order may be imposed and suitable in such cases which might previously have attracted a medium term of imprisonment.
[8] (2014) 46 VR 308.
119.I have considered all of the submissions carefully. Balanced against the gravity of the offending and the impact on Ms Waters, there are a number of matters in mitigation, which I have already discussed including your previous good character, lack of prior criminal history, plea of guilty, strong prospects of rehabilitation and personal circumstances including your caring responsibilities albeit that I do not consider those to be exceptional.
120.Overall, having considered all of the material before me, I have concluded that ultimately, the community is best served in this case by having you sentenced in a way that does not involve immediate imprisonment having regard to all of the matters that I have noted. Accordingly, I intend to sentence you to a lengthy community correction order with a number of conditions.
Sentence
121.On Charges 1 and 2, you are convicted and sentenced to undertake a community correction order. The duration of the order will be three years.
122.There are a number of conditions attached to the order:
(a) You must be under the supervision of Corrections for two years.
(b) You must perform 350 hours of unpaid community work.
(c) You must undergo treatment and rehabilitation as directed with respect to your mental health.
(d) You must undergo treatment and rehabilitation with respect to programs designed to reduce your risk of re-offending.
123.I am going to allow those 150 hours of rehabilitation count towards the unpaid community work that I have ordered here.
124.There are also a number of core conditions which attach to all community correction orders.
(a) You must not commit any other offence punishable by imprisonment during the three-year period.
(b) You must comply with any and all obligations and requirements of Corrections.
(c) You must report to and receive visits from Corrections;
(d) You must report to your local Community Corrections Centre, which I believe is in Broadmeadows, within two clear working days from today. I would strongly recommend that you do so today.
(e) You must let a Community Corrections officer know within two working days of a change of address or job.
(f) You must not leave Victoria without first getting permission.
(g) you must obey all lawful instructions from Corrections.
Consequences of breach
Now, shortly you are going to be asked to sign some paperwork to indicate that you understand the conditions that I have imposed and that you agree to abide by them. If you do not comply with these conditions, if for instance you were to commit any further offences punishable by a term of imprisonment, if you were to not comply with the conditions including the unpaid community work or treatment and rehabilitation component, then it is likely that this matter would be brought back before me on a breach, and I would need to resentence you.
I note that the prosecution has not made an application for a discretionary sex offender registration under the Sex Offenders Registration Act 2004 (Vic).
S 6AAA
Now had you taken this matter to trial and been found guilty of these charges, then I Indicate pursuant to s 6AAA of the Sentencing Act 1991 that in this instance, but for your plea of guilty, I would have sentenced you to 10 months' imprisonment.
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