Director of Public Prosecutions v Kitayevich
[2025] VCC 701
•30 May 2025
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
CR-24-01161
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANATOLY KITAYEVICH |
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| JUDGE: | HIS HONOUR JUDGE TINNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 21 May 2025 |
| DATE OF SENTENCE: | 30 May 2025 |
| CASE MAY BE CITED AS: | DPP v Kitayevich |
| MEDIUM NEUTRAL CITATION: | [2025] VCC 701 |
REASONS FOR SENTENCE
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Catchwords: Sexual assault by professional masseur - 67 years of age at sentence - Vulnerable victim and breach of trust - No prior history - Late plea - Minimal remorse - Very poor health - Swift complaint but then unexplained delay of close to 2 years between police interview and laying of charges - Boulton v The Queen [2014] VSCA 342
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Wallace | Office of Public Prosecutions |
| For the Accused | Mr D. Grace KC | Emma Turnbull & Associates |
HIS HONOUR:
1Anatoly Kitayevich, you have pleaded guilty to a single charge of sexual assault.
2You are now 67 years of age and you have no criminal history whatsoever.
3This offence has a 10-year maximum prison term. It is an inherently serious offence and as was conceded by your counsel, Mr Grace, this was a serious example of it given the setting involved.
Facts
4The summary of prosecution opening for the plea dated 18 March 2025, which was marked as Exhibit A on the plea, sets out the agreed facts in this case. Mr Grace made it clear that they were agreed facts and so in those circumstances there is just no utility in my repeating all those agreed facts in my reasons for sentence.
5I will sentence pursuant to that agreed summary. The summary references the pretext call, this is the phone call where your victim spoke to you on the phone and that call was recorded and of course I will have regard to that as well. I have read that exchange. So I am going to give only a relatively brief summary and that is so that my sentence does not exist in a vacuum for anyone who happens to access these reasons when they come to be published. I make plain though just in case the victim has not had this explained to her, that I am going to anonymise my reasons, her name will be anonymised in my published reasons and no one can publish any information at all which might tend to identify her.
6By way then of very brief summary, you worked as a massage and natural therapist and you had done so for many years. You worked out of your home in Glenhuntly. You were 64 years old at the time though are 67 now. The victim was a young woman named Angela Carver.[1] She was 28 years of age at the time. She had been referred to you by a friend and she had seen you without incident on a number of occasions with acupuncture and massage but never with the use of any vibrating tool or implement.
[1] A pseudonym.
7She scheduled an appointment with you on 18 February 2022. It was for shoulder and neck pain and up to the point that you left the room leaving a claypot on her stomach, nothing untoward had taken place. Things took a very sinister turn upon your return to that room. You removed the acupuncture needles and you obtained then from a draw a vibrating implement. You used it initially on the top of her legs and hip. You moved it closer to her underwear and onto her vaginal area over her underwear. She thought at that stage that it just might have been accidental. You moved the tool back into that position over her genital region on top of her underwear. She jumped. You moved the tool off to her hip but then went back to that same area, this time keeping it on the area of her vagina over the underwear near her clitoral area for a short period. She pushed you away.
8She was in shock. She felt confused. She felt violated. She was scared. She had after all told you that she was there for neck and shoulder pain.
9The summary describes how the event finished. You went to the bookshelf and retrieved a book and showed her a picture of the vaginal area and tried to pass off what you had been doing as some therapeutic treatment. You were trying to justify yourself and were obviously trying to deter her from reporting this conduct. It was complete and utter nonsense as you well knew. You went on to tell her that she had a ‘beautiful body, a wonderful body’ and then asked her questions about her boyfriend and the break up and about sexual communication. You added something about finding an older man who knows what they are doing and how to pleasure her.
10You received $70 for the $90 service and told her as she left that she should pleasure herself as it would be good for her thyroid.
11She left. She was upset as she drove home, and she complained later that day to her boyfriend. She was in shock; she thought she had been in a safe space. She should have been, but she was not, because of you.
12The police were notified the very next day and the pretext call that I have described was conducted that same day. That was a most problematic call for you with a number of damaging admissions potentially to be implied. You were impliedly admitting the use of the device on her 'downstairs area'.
13You were arrested that night by the police who came to your home. You were interviewed and in relation to the allegations, you predominantly asserted your rights to make no comment interview. You pretended to be shocked by the allegation and not just that, damaged by it, saying that you did not want to treat women again given these allegations. That can easily be arranged.
14It was plain enough that you were asserting that there had been no impropriety at all and that you were a legitimate health professional, not just that, one with great skill, if not unique powers. You spoke to the no doubt flabbergasted police members of your great skills, telling them you could ‘make fire without touch’, you had the capacity to predict childbirth, you were just born with these skills. You said it was a bit like Beethoven who had a great skill creating music. Well, I have no idea if these skills exist or just your inflated view of them. What you did not admit is what you admit now by your plea and by your acceptance of the summary which has been placed before me; that on this day you were but a sleazy sex pest.
15Back then to the chronology. Very regrettably, despite to that point the really swift flow of events, that is, an immediate complaint, a police report the very next day and arrest that very day with the formal interview conducted with you after that pretext call, the matter then completely stalled. You were not charged for close to two years, which occurred in January 2024 with a first listing in February of that year. There had been a handover of the matter to a stand-in informant, who relieved the first police informant who I understand had gone off on maternity leave, but beyond that there was really no explanation. The delay is completely unacceptable to you and of course to Ms Carver. You are in no way responsible for it. Nor is she. It should not have happened but I am not free to just ignore that when I come to sentence you. I am required to take it into account.
16So much then for what is only a brief summary of the summary. I sentence pursuant to the agreed summary marked as Exhibit A.
17You pleaded guilty after the matter had been listed for trial before me on 17 March. At that stage there were some sexual assault charges and a charge of rape. One of the sexual assaults was laid in the alternative. Mr Hammill who appeared for you on that day at one point stood up and told me the matter had ‘settled subject to an acceptable sentencing indication.’ That is no settlement at all. I was not too enthusiastic about giving a sentencing indication when I was the listed trial judge and when all was ready to proceed to trial, with witnesses who had no doubt been waiting such a long time, prepped and ready to go, less so given that Mr Hammill was submitting that what I should do is adjourn the matter off for a number of weeks so that he could obtain materials for me to consider on any sentence indication. So I was being asked to vacate a fixed trial date with no certainty at all that I would even give a sentence indication or that it would be accepted if I did, and even some vague mutterings about remitting any settled matter back to the Magistrates' Court. Further it was plain enough to me that there would never be any adequate impact material at the time of a sentence indication. The impact of a crime is a very significant matter for a court to consider.
18So, the case was adjourned overnight. I told Mr Hammill I would consider if I would even give an indication on what was then available the next day, but that I would certainly not be vacating the trial date and certainly not adjourning the matter for a sentence indication as it was listed before me for a trial. So it is fair to say that I was not making very positive noises at that stage. The fact is, any application for a sentence indication should have been made well before that date and certainly not on the day of the trial listing.
19I suggested to Mr Hammill that one could always do what had been done prior to the existence of these sentence indications; that is make an assessment of the materials and work out whether you wanted to settle the matter and plead or run a trial. The decision was yours, but it was going to happen the next day.
20Well, that next day I was told that the matter had been settled and you were arraigned on this plea indictment.
21You have known what you have done to this woman from the moment you acted in the way that you did. Yet she was cross-examined at the committal as was your right and the matter came the whole way to the very door of this Court and even then, you were on that first day, seemingly only prepared to plead guilty if you knew in advance what would happen to you.
22There is little by way of remorse in this case and that is so despite the ultimate decision that you have made to plead guilty. Mr Grace confirmed that there was no remorse on display in the pretext call or the interview or any other source to which I had access. His assessing you as having remorse is not really of any value to me. Well your guilty plea though of obvious value for reasons which I will spell out does not signify much remorse. It was a late, pragmatic settlement in a setting where right up to that moment, the complainant was to be challenged as to the truthfulness of her account or the suggestion of there being any inappropriate touching occurring in that room at all.
23I will sentence pursuant to the more detailed factual statement, which as I say, was marked as Exhibit A on the plea.
Impact
24There is an impact statement from Ms Carver. Your counsel whilst not objecting to the filing of that document argued that I should be cautious about giving it weight given the reference in the statement to the rape. There was no such direct reference. He was referring to the sixth line in that victim impact statement. The fact is this matter settled on 18 March. The victim is awake to the terms of that settlement. The impact that she feels is derived from the intimate touching and the breach of trust. It is not dependent on any aspect of penetration or skin on skin touching or anything like that. It is the complete breach of trust that you engaged in, that is a trusted professional touching her sexually, intimately, when she was in such a vulnerable state. It was a surprising submission given the concession made in the written outline by Mr Grace as to the very adverse impact felt by the victim (see paragraph 4).
25I reject the submission.
26I have read the victim impact statement again since the day of the Plea. I take into account that impact statement. Your conduct has had a devastating impact upon Ms Carver for the reasons she describes. She did not read out aloud that impact statement or want it read aloud so I will be circumspect in my detailing her account of that impact. Sometimes I go into much greater detail but not in a setting where someone has indicated they did not want it read out aloud. You have shattered her confidence. You have altered the way she feels about life. Your serious crime has had a profound impact upon her. I take that impact into account as I must.
Plea in Mitigation
27Your counsel, Mr Grace relied upon an outline of plea submissions dated 16 May 2025.
28There was a large bundle of character references and a number of certificates and diplomas. Though medical records had been filed, Mr Grace made it clear he only wanted three medical documents filed on the plea being the letter from Mr Cox dated 29 April with an addendum dated 16 May, as well as the letter from his practice manager and the copy of the scan referred to in those two letters. There was also the late filed further letter from Mr Cox dated 28 May dealing with the surgery dates, which I mentioned earlier this morning (marked as part of that same Exhibit 3).
29Mr Grace informed the court as to your personal and family background.
30He made submissions as to the absence of any criminal history and the fact that you had massaged tens of thousands of people over the years with no formal complaints. He made submissions as to your prospects of rehabilitation. He made submissions to the relative objective gravity of your offending as well as the sentencing purposes that come into play in this case. He focussed on your very poor health as attested to by Mr Cox.
31He relied upon the following matters in mitigation:
· Your late guilty plea;
· The unexplained lengthy delay in this matter;
· The presence of some contrition and remorse;
· The absence of any prior convictions or court outcomes whatsoever and many years of proven good character with service to the community on a voluntary basis on many occasions, particularly overseas;
· Your advanced age and serious health considerations with major and critical surgery required in the very near future;
· Though not raised directly, it was mentioned here today, implicitly he was arguing that if imprisoned, there would be an increased custodial burden arising from your various medical conditions.
32At one point he advanced an argument that your reputation had been damaged and I should take that into account. That submission was untenable. He retreated from it by stating that people who were your customers or who might be prospective customers would hear of the matter and be turned off you to some extent. Well, that is hardly surprising and it is not a matter I can give any real weight to at all. They probably should be turned off.
33At one point he sought to assert that the references to the victim having a good body and the like made by you in the course of this particular session had some sort of therapeutic role. That you knew she had some issues and you were in a way building her up. They are not the exact words that he employed on the plea but he took me to the committal cross-examination, where some questions were asked in a similar vein of the then complainant. The fact is, though you may have used such language previously as was conceded by Ms Carver in cross examination at the committal, here, it was in the aftermath of what was a focused sexual assault upon her. It was not therapeutic in any sense at all. You were using a vibrating device in her clitoral area. You were doing so without any consent. You admit by your plea it was deliberate and not therapeutic and was sexual in nature. That you would be concerned about her self-esteem and that you would be seeking to build it up in such a setting is of course sheer nonsense. I reject that submission. Those comments made on that day unmistakably linked up to the untoward and sleazy conduct engaged in by you on that day. Fancy suggesting she should pleasure herself to aid her thyroid. Fancy stating that she needs to find an older man who knows what they are doing to pleasure her. Those words just happen to have been uttered by the older man who has just been sexually touching her without her consent with the targeted use of a vibrating device. I completely reject any suggestion of your having any therapeutic goal in any of this conduct. In fact, you had no concern for her well-being at all on this day. None. You preyed upon her, using your occupation to do so.
34Whilst conceding this was serious criminal conduct involving a vulnerable victim with a sizable breach of trust, Mr Grace was arguing that it would be open to structure a suitably conditioned standalone community corrections order. That such an outcome was open and would achieve the various purposes of sentencing. He reminded me that the Crown did not challenge that such an outcome was open here. That the Director was not calling for a prison term but was calling for a stern community corrections order.
35I reminded Mr Grace that the Director is not the person imposing sentence here. I am. I am not bound by submissions made by either party as to sentence.
Prosecution
36The prosecution submitted that by your plea you were admitting the sexual element to the offending. Plainly, that is so. That it was not a single touching. They said there was a testing of the water and though a late plea, the prosecution conceded there was still obviously utility to it. They conceded, as they had to, that the delay was totally unacceptable and did not in any way fall at your feet and that in the course of the delay, you had lost both your parents and had remained out of trouble. The Crown argued you were in a position of trust and the victim was in a vulnerable position, that you used this to your advantage and that your culpability was high indeed. As foreshadowed by Mr Grace, the Director of Public Prosecutions was arguing that a stern community corrections order was within the range of available sentences open to the Court in this case.
Background
37Before dealing with the various submissions which were made, I want to turn to your background. I will do that quite briefly. There is a very detailed account of your background set out in paragraphs 6 to 17 of the submissions and there is just no purpose in my setting it all out in my reasons. I accept that background. It is quite a remarkable one really and it is plain that you call in aid your past good behaviour.
38You were born in Kiev in 1958 when it was part of the USSR. You were raised in that city with a younger brother and you completed high school in about 1976 and then you went on to serve in Afghanistan with the Russian army. Your parents migrated to Australia as did your brother. You lived in Kiev after your service in Afghanistan and married a local girl you had known for many years and together you had a daughter, Valerie, in 1980. You had commenced a physical education degree and graduated with a diploma in Chinese medicine in 1985. This was about a year before the Chernobyl disaster. You migrated to Australia to join your family. Your wife did not wish to leave and so you divorced in around 1987. You arrived in this country in about 1988 after a decent period in Italy. You initially had difficulties with recognition of your degrees and also had limited English and so that had you working menial jobs in Sydney, which is where you were then living. You learnt English and lived in that city with your family. You went on to coach in wrestling and you had significant success in that regard.
39You enrolled in various courses involving Chinese massage, medicine and philosophy and obtained a number of certificates and visited China twice. Your former wife surfaced in about 1991 and needed some assistance. You facilitated her and your daughter Valerie's move to Australia. That ex-wife died in 1995 and tragically your daughter Valerie died by suicide or so I am told. The newspaper article filed on the plea seems to have quotes from you suggesting otherwise, but nothing at all hangs on that. She has died in tragic circumstances one way or the other.
40There is reference in the materials to your travels to India and the volunteer work that you did in West Bengal. You have returned to provide volunteer service and helped many people free of charge. In recognition of this, there is evidence before me of an invitation extended to you to the Dalai Lama's birthday.
41You practised in Sydney in Chinese medicine and massage and moved to Melbourne in 2011 to provide assistance to your father who was at that stage ill. You met your now wife in 2012; you told the police that she was one of your patients, that you have been together since.
42Your father died in early 2022 and your mother in 2023.
43You are in very poor health and you have a number of major, pressing issues. They are to an extent summarised in Mr Grace's written submissions in paragraphs 15-16. I am not going to descend to the full detail of that medial material placed before me. The letter from Mr Cox also provides a very good summary. You have had serious deterioration in your health over a number of years with many serious conditions and major surgeries. You foolishly discontinued any scanning or ongoing treatment against the strong advice of your medical practitioners. Though you saw Mr Cox in April 2024, that really was the position from about August 2023, until very recently indeed. That was despite the fact that those conditions were in a critical need of treatment and surgery. The aortic aneurism was of a size where it posed really significant risks of rupture and death. Of course, that has not improved. It has got worse. In the shadow of this court case, you have rethought your position in relation to your medical predicament and the letters placed before me are relied upon as demonstrating the deterioration in your condition and the critical nature of the proposed surgery. Though of course it was foolish to put the health issue off to the side for as long as you have, that is just the reality; you are in critical need of surgery. The late filed letter sets out the proposed schedule of procedures, three of them occurring later this year should you be in a position to undertake those procedures.
44I will not descend to an audit of the very many character references (marked as Exhibit 2). There are many of them. A large number of those are from satisfied patients, male and female alike. I interpose, Ms Carver, prior to this last disastrous visit, might have written such a reference. None the less, the reality is you have practised for very many years, you have treated tens of thousands of patients with nothing known against you.
45It is true then you are of prior good character and you now call in aid that positive trait. It is not just the absence of a prior criminal history. There is the positive evidence placed before me as to good character including having worked voluntarily. This was all put forward as demonstrating that this was a complete aberration and no doubt that is true. What remains entirely unexplained to me is why you have seen fit to act in this way. It was predatory, serious, sexual misconduct, in a setting involving a grave breach of trust with a vulnerable patient. Yet it happened.
Guilty Plea
46I turn then to some of the other the matters that have been raised in mitigation on your behalf. Firstly, there is your guilty plea. It was not being suggested it was an early plea. Plainly it was not and though there were the other charges, they all pertained to the acts in that room and they catered for penetrative and non-penetrative sexual touching. Hence the alternative nature of the indictment charge. You denied any improper conduct altogether. The application for a sentence indication on the first day of the trial should not have been made and was a misuse of that sort of application but that was not your doing. The fact is though, it was indicative of a man who was not prepared to admit responsibility unless he knew that there was a favourable outcome in the bag. I did not oblige. As late as that plea was, it still involved an acceptance by you of responsibility for this wrongdoing. Late acceptance is better than none.
47So you have admitted responsibility for your offending by pleading guilty.
48As a result of your plea, the time and the cost and the effort of the actual trial up in this court has been avoided. No witnesses have been required to give evidence at trial. Regrettably, Ms Carver was cross-examined in the Magistrates' Court but at least she has been spared that experience before the jury.
49You have facilitated the course of justice.
50I am required to and do take these various matters into account in mitigation.
Remorse
51I have mentioned already my conclusion as to remorse. I am not satisfied on the balance of probabilities that there is much true remorse or contrition here, given the way the matter was proceeding, the issues in dispute, the way it settled and the timing of that settlement. As I said, Mr Grace asserts that there was remorse and contrition and I asked him to take me to any evidence of that fact. Well he took me to your plea. I have dealt with that. It was a late plea, in my view, very much a pragmatic plea made by you.
52Not every guilty plea is indicative of remorse. Some are. Some are not. His written submissions asserted that you sincerely regret the pain and suffering that you have caused the complainant, which was never intended by you but ought to have been foreseen. Well none of that is evidence before me but as it has been asserted on your behalf, how on earth could you not intend to cause what you caused given your act and the setting of that act? Beyond your guilty plea, there is nothing before me hinting at or indicating the presence of any remorse. Nothing in the formal interview with police, or the pretext call, and no statement made to a psychologist. Your saying things to Mr Grace is not evidence before me indicating the presence of remorse. I have the stance you took with the community corrections order assessment officer. There really was no remorse on display there, just a lack of insight, a lack of empathy, and a healthy dose of self-pity and that assessment was only last week. I am prepared to find the existence of some very minimal remorse in this case arising from your late acceptance of responsibility and I do take that into account in your favour.
Increased burden/health
53If imprisoned, it is plain that there would be an increased burden posed by the medical conditions that you labour under. I must take that into account.
54I see no need to set out all the medical material before me.
55I take into account that medical material as disclosing the serious nature of your medical conditions and the urgent need for them to be addressed surgically. That is so despite the quite extraordinary approach you took for around 18 months. Plainly you should have heeded the advice of your doctors and kept up the surveillance, the monitoring, treatment and indeed surgery. You did not. But this was not some cunning ploy hatched by you connected up with securing a better outcome in a court case. The court case did not even exist in the early stages when you ‘put your head in the sand.’ These conditions exist as a matter of fact. There is just no question about that. They are life threatening and I must take them into account. Of course I work on the theory, and I have discussed this with Mr Grace earlier today, that the standard of medical care available in prison through Justice Health and its connection with various hospitals would be sufficient to deal with any of your health issues. You might not have access to Mr Cox in that setting and there might be a lag in the speed of the treatment, but to some extent that is speculative.
Rehabilitation
56I turn then to your prospects of rehabilitation.
57You have no prior criminal history, and of course I do not ignore that fact. You are 67 years of age and you have otherwise been of good behaviour and you do now call in aid your past good character.
58Notwithstanding all the references in your favour and the absence of any prior convictions or matters arising subsequently, or even any allegations of impropriety, notwithstanding the services that you have provided over the many years, some of them unpaid, I have your actual conduct. It was deliberate, outrageous sexual conduct targeting a vulnerable woman who trusted you and was paying for your services. You dressed it up as therapy when you knew it was no such thing, trying to allay her suspicions and to protect your own position by pulling out the book from the shelf.
59This was really serious offending. How could you not foresee large impact in that setting? She was a trusting patient. You have made a calculated decision on that day to offend, and seriously so. Why? There is complete silence on that score. There is no expert material. There is no risk assessment. There is virtually no insight or remorse from you. You obviously felt some degree of attraction to her. You were not sexually assaulting her for her benefit. You were deliberately touching her sexually and in a setting where you well knew that she was not consenting to any sexual touching. That she was your patient. You have used your occupation and the trust vested in you by a patient to seriously offend against them. Why? Why then? Well again there is just silence on that score. So what then does the future hold? As I say, I have no risk assessment. There is no reduction in your culpability. You were not disinhibited by drugs or alcohol or acting in some reduced state of culpability arising from a mental illness or from some cognitive deficit. You were acting as a charlatan on this day. You knew exactly what you were doing and how wrong it was and then you tried to deflect any untoward impact upon you by this nonsense with the book and the rubbish about the thyroid. If you practise again, and there really is no suggestion that you will not, who is to say whatever came over you on that day back in 2022 will not occur again? You should never be permitted to treat a female patient ever again and yet as I understand it, there is no coverage of your particular field by the health regulation agency. Mr Hammill told me that on the day that I varied your bail.
60You have been charged, you have been brought before the court and it is argued by Mr Grace that that process has been traumatic and has led to a significant deterrent effect already. That you have feelings of shame and embarrassment and loss of standing and these things will go some way to deterring you in the future.
61There has been no shame of any note that I can see. There should be, but there is not. Up until the resolution of the matter, you were no doubt denying to all and sundry any impropriety at all. Then you pleaded and as I have found, you have done so without much by way of remorse. You are supported by family and friends, but I could see the attitude of some of them to the proceedings as they shook their heads in disagreement with the summary that was placed before the court. That was not your action, by the way, but these are your supporters.
62There is still a worrying lack of insight and empathy on your part and a very healthy focus on your own position and not that of the victim. It is very difficult for me to quantify the risk that you pose in the future but easy enough for me to know that any ongoing role as a masseur in any private setting with any female would obviously involve some risk.
63Ultimately though, when I consider all the matters before me, I am prepared to find that there are very favourable prospects of rehabilitation in this case. I would have made stronger findings had there been in existence true remorse and genuine regret for this conduct and the impact brought about by your conduct on your trusted patient, but that simply does not exist here.
Delay
64I have mentioned the delay; it is a major matter in my task. Each limb is engaged in this case. You have had the matter hanging over your head quite needlessly. There was a delay of almost two years between being interviewed and being charged. That delay is completely unacceptable to all concerned. It should not have taken place and of course you are in no way responsible for it. The issues with leave and staffing, they just do not really explain the delay but even if they did, it really would not remove the mitigatory effect of the delay here. I am required to take into account the additional penalty posed by having the matter waiting in the wings for as long as it has, waiting really for the axe to fall after the interview, and also of course the absence of any further offending in the currency of that lengthy delay since 2022 when you were interviewed.
General remarks
65I turn then to make some general remarks about the nature of your offending. I have to consider the nature and the gravity of the offending. Look, I have already in these reasons spelt out the serious aspects of this instance of sexual assault. These matters were accepted by Mr Grace. You were in a position of trust. Your victim was in a most vulnerable state, trusting you to do your job. Paying you to do it. This was not some minor error or some small misjudgement. It was targeted conduct committed by you in a setting where there was just no reduced culpability at all. So your culpability is high indeed here. There was an aspect of premeditation. I am not talking about prior to the actual day itself or anything like that, but in the sense that you obtained the vibrating device when you went back into that room, something never used before and then applied it in the manner described, testing the waters as you did so.
66A charge of sexual assault will never involve an act of actual penetration. That would be embraced by a quite different charge. A charge of sexual assault can be constituted by a pat on the bottom on the outside of the clothes in a crowded room or on a bus or a train. Here you had a trusting patient, one who had disrobed at your request to permit you to treat her. One who was completely vulnerable. She was alone in that room with a professional she trusted. She was then sexually assaulted by you with that vibrating device being held on the clitoral area over her clothes by a trusted health professional. Thereafter of course, you tried to remove yourself from suspicion and detection by the absurd explanation. It was a quite studied performance actually, not something just happening in the moment. You have gone to the bookshelf. You were trying to avoid detection and any report of that conduct. Touching her in the way that you did was not in any way motivated by any concern for your patient or her wellbeing. It was all about you. It was motivated by sexual thoughts on your behalf, as your actions and words make clear. It was a sexual assault committed by you with no relationship to your occupation or the condition that brought that patient onto your massage table, and quite unsurprisingly in such a setting as that, it has had a very large impact indeed.
67It is a really serious example of sexual assault for these reasons, as was conceded by Mr Grace in his excellent plea conducted on your behalf.
68This offence carries a maximum of 10 years' imprisonment. I must pay regard to that maximum sentence. This offence has led to very very significant impact. I must take into account the impact of your crime.
69Mr Grace spoke of the seriousness of the crime, conceding the various features of aggravation but balanced up as they have to be against other considerations including the many matters raised in mitigation on your behalf.
70Sentencing always involves the balancing of a number of purposes or principles. I have to take into account your prospects of rehabilitation. I believe there are very favourable prospects here. I have mentioned that already.
71I have to punish you. Well of course I do. I must do that justly and proportionately.
72I must also denounce your conduct. That is an important sentencing purpose in this sort of case. You really should be thoroughly ashamed of yourself. I am far from convinced that you are.
73I must consider the need for specific deterrence; that is the need to deter you from committing offences in the future. I cannot ignore that purpose. No doubt it would be given far greater weight if you had a relevant criminal history, but you do not. However, the setting of this crime, the serious breach of trust involved, the absence of any genuine contrition and the possibility of continued practice as a masseur requires me to assign some weight to deterring you in the future.
74Then there is general deterrence. That principle looms large in my sentencing task. Mr Grace correctly concedes it has a significant role to play.
75I must set out to deter others from doing what you did. Regrettably, it is not unheard of for a masseur or allied health professional to misuse their position and to sexually assault a patient. It is not easy to detect. There are two people in a room, behind closed doors. There would be some who would not even necessarily know that they have been offended against given the trusted bond in place, sometimes a past engagement with the same person with no acts of previous impropriety and then the suspect act coming out of the blue. Something that might appear to be ambiguous. Something that might be thought to be accidental. It is a confusing setting and there might even be a feeling of being stupid to have permitted the conduct without rebuke or complaint. It all comes back to the bond of trust that exists and these things are all on display in this case. Uncertainty, confusion, shock. Here, had Ms Carver taken you at your word with your absurd explanation and the showing of the diagram from the bookshelf, or even if she thought that that was a remote possibility, the matter may have never been reported. She may simply have voted with her feet and never returned.
76Those who may be tempted in the future to do what you did, must understand that there is the real risk of arrest, prosecution and the imposition of a stern sentence when brought before the court. I have to try to deter others from doing what you did.
77Then there is community protection. Well plainly I cannot just ignore it. It is one of the purposes of sentencing. Equally plainly though, it would attract far greater weight if you had relevant criminal history or if I had reached a less favourable view as to your prospects of rehabilitation.
78Each of those purposes must be adequately reflected in my sentencing task.
Current sentencing practice
79I have also got to pay regard to current sentencing practices, though that is not a single controlling factor. It is just one of the many matters that I must have regard to.
80I have looked at the Sentencing Advisory Council online statistics for this crime.
81I have looked also at some of the material held at the Judicial College of Victoria Sentencing Manual, which has overviews of sexual assault sentences dealt with in the Court of Appeal as well as sentences imposed at first instance in this court.
82Statistics have inherent limitations. That sort of material will never identify the matters in aggravation and mitigation in a given case. It is no part of my job to sentence as per the median or the average sentences disclosed, they are just statistical terms, and those sorts of things pay no regard to any individual features of mitigation or aggravation.
83Nor is any other case where another person has been sentenced somehow a sentencing precedent for me to follow. There is no such thing as one correct sentence. There is instead a range of sentences available to a court.
84Mr Grace argued that despite the serious nature of this offence, that it would be open to me to deal with you by way of a community corrections order. That you ought not spend a single day in prison. He referred to the well-known case of Boulton[2]. The Director of Public Prosecutions of this State through Ms Wallace who was briefed, submitted that a stern community corrections order did fall within the range of available sentences in this case. That such an outcome would fall within the exercise of my sentencing discretion here.
[2] Boulton v The Queen [2014] VSCA 342
85I do not ignore any submission made to me by either side but as I said earlier, I am not bound by any submission made by either of the parties as to sentence. I have to exercise my sentencing discretion.
86A court must never impose a sentence more severe than that which is required to achieve the sentencing purposes. Prison is genuinely a disposition of last resort. If I believed a suitably conditioned community corrections order could achieve all the purposes of sentencing then I would be obliged to proceed in such a fashion. I have had you assessed for your suitability for a community corrections order. I told you the other day that you should take no comfort from my calling for that report. That one option open to me was a prison sentence followed by release onto a community corrections order.
87I have received back the assessment outcome report. You are judged to be suitable for such an order. It is not an impressive report. It comments on your lack of insight and lack of empathy.
88I have considered that report. I have considered all the other material placed before me by both sides including the impact statement.
89By the barest of margins, I have decided that I can release you onto such an order and that I can actually do so without also sending you to prison. So let me make it very clear to you and to others, as I do not want this decision thrust back into my face or the face of any other judge in any other case, but for the delay and your very serious health issues, I would be sending you to prison today. In fact, I will go further. Without the delay and even in the face of your very poor health, you would be going to prison today. It is those two matters in combination with the other matters in mitigation, which by the barest of margins persuades me that a suitably conditioned stand-alone community corrections order in combination with a fine is actually open to me in the sound exercise of my discretion.
90Breach this community corrections order at your peril.
91So what I intend to do is this. I intend to convict you and fine you the sum of $5,000. I am also going to place you on a community corrections order.
92I can only place you on an order if you consent to it. So I need to explain the terms of the order. Then what I will do is I will ask you if you do consent, I will let Mr Grace come down and have a discussion with you.
93I want you to understand this order. I want you to understand what it involves as well as the consequences of breaching it. You really must not be sitting there thinking that you will get a second chance if you are foolish enough to breach this order. This is your chance. I am extending it to you now.
94Let me then deal with my intended order.
95So as I say, aside from the fine that I have mentioned, I intend to convict you and place you on a three year community corrections order commencing today.
96These orders have mandatory terms that apply to everyone who gets one of them. They have been explained to you and as I understand it, you understand those mandatory terms but still I want to explain them to you broadly. They will be on the document itself. I do not want there to be any misunderstanding.
Mandatory Terms
97The first of them is you must attend at the Dandenong Community Correction Services within two clear working days of this order.
98The mandatory terms are that you must not commit another offence for which you could be imprisoned during the time this order is in force. That means virtually any offence. Virtually every offence these days is punishable by a term of imprisonment. You have got to stay out of trouble. You must not commit any crimes. That should not present any issue for you. You have not committed crimes throughout your life. This crime stands apart.
99You have to report to and receive visits from the Community Corrections officer who will be appointed. You have got to let them know within two clear working days of any change of address or job.
100You must not leave Victoria without first getting permission to do so.
101You must obey all their lawful instructions.
102So they are the mandatory terms. Breach any of those, you breach the order.
103Then there are the tailored terms, tailored to the particular purposes of sentencing required in this case.
Tailored terms
104There is going to be some unpaid work. It will be less than it otherwise would have been. You must perform 150 hours of unpaid community work over the period of this order. Now I recognise there is going to be difficulty in the short term, in terms of any sort of physical work but it is a lengthy order, there will be plenty of time to do the work. When you can get it done, get it done, all right. Get it done as soon as you can on the order.
105Then there will be supervision. You are going to be under the supervision of a Community Corrections officer for the period of this order.
106You must also participate in programs or courses that address factors relating to the offending as directed by the Regional Manager, including assessment and participation in a specialised offender advice and treatment services program that is referred to.
Special Condition
107There is going to be a further special condition on this order. You are to listen to this very carefully. You must not provide any professional or therapeutic service whatsoever to any female patient in the currency of this order. That includes any massage, remedial massage, massage therapy, acupressure, acupuncture, chi balancing, Chinese medicine or any counselling, consultation, or any allied health or therapeutic service whatsoever.
108So they are the full suite of terms and conditions.
109You have not had one of these orders before of course, you are a newcomer to the court. Most of these orders are breached by people who do not take the opportunity to actually comply, they have drug and alcohol issues, they have serious mental health issues, they have been offending for many years, for decades sometimes, they breach them by the commission of crimes. Or in a setting where they do not do that, they breach them by just not turning up, by going missing, by going interstate, by not turning up for supervision, by not turning up for the unpaid work. Do not be one of those people that goes missing. If you do not turn up, if you do not comply, you will breach this order.
110I have got no idea what directions they are going to give you in terms of the unpaid work. What I do know is, whatever they tell you to do, you just do, all right?
111If there is a particular reason why you cannot attend for a particular program under the order, a particular attendance, get on the phone, let them know. Do not do what other people do and that is to put your head in the sand in the way you have for your medical condition and just go missing. If you do that you will be breached. This order should not be difficult for you to comply with. You are not someone labouring under mental health issues. You are not someone who has had substance use issues. You are not a person who has been offending routinely over the course of their life. That is not the nature of the person before the court at all.
112So this order should be an order you should be able to comply with. But if you cannot, if you do not comply with it, if you were to commit any offence in the currency of the order, any offence punishable by a term of imprisonment, you will breach it. If you were to not comply with the particular mandatory terms or any of the specific conditions you will breach it. What happens if you breach it? Well breaching one of these orders itself is a criminal offence. It is punishable by a three month term of imprisonment. That is not the real sting. The real sting is this. If you breach this order you get brought back to this court for breach proceedings. It will be this court. It will be this judge. We deal with our own breaches. In that setting do not work on the theory that you come along on another occasion and say 'look, I'll have another order please' or 'give me another chance on that order'. Do not work on that theory.
113I do not know how you felt when you came to court the other day during the plea. You would not have known necessarily whether you would be going home that day or not, or whether you would be going to prison. I do not know how you felt last night or coming to court today, because nothing was guaranteed, nothing. I do not know whether you may have thought you might be going to prison today. You are not, all right, but you breach this order and you will be back in that dock, and all of those uncertainties will be there for you but in a setting where I would then have to re-sentence you. Because the most common order made by a judge when one of these orders is breached, there are only a very limited number of options open and the most common option taken by the courts is to cancel the order, which sounds attractive, but if I cancel the order I then have to re-sentence you, and if I re-sentence you, you should work on the theory that you will go to prison.
114Of course I cannot say exactly what I would do. What I would do is I would come onto the Bench, I would listen to anything that was said on your behalf and make judgements about what I needed to do. I would need to assess the performance on the order. I would need to assess the nature and the gravity of the breach and work out then the extent to which you had complied because I have got to take into account the extent of compliance. But as I say, you are best to work on the hypothesis that if you breach this order you will be in that dock and you should expect that you will be sent to prison, all right? Do not work on the theory that you would be sent to prison for a short sharp sentence with another community corrections order coming your way. Do not work on that theory. Do not put yourself in that position.
115Let me just see if there is any further explanation. I have gone through a bit of detail, Mr Grace. I will have the order come down to you so you can actually see the way it is formally set out. Perhaps you will need to go down and have a word to your client. I will have it come down to you first. If each of you would look at that, make sure it fits the bill. All right, go down and see if he consents.
116MR GRACE: He agrees to the terms of the order, Your Honour.
117HIS HONOUR: Thank you. Please stand up then, Mr Kitayevich.
118Do you confirm then that you have consented to this community corrections order?
119OFFENDER: Yes, Your Honour.
120HIS HONOUR: You have signed this order with the words 'I understand the effect and the conditions of this order and I consent to it being made'. And that is true?
121OFFENDER: Yes, Your Honour.
122HIS HONOUR: Thank you. Just have a seat then please. You will get a copy of that obviously.
Disposal order
123There is also an application for a disposal order made pursuant to the provisions of s78 of the Confiscations Act. There is no issue taken with the making of this order. I am satisfied the conditions set out within that Act are satisfied. I order pursuant to those provisions the forfeiture to the State of the property referred to in the schedule. I direct that it be handled and dealt with in the manner contemplated by the signed order which I have announced in an abbreviated fashion.
Section 6AAA
124Finally, I have taken into account your guilty plea as I have indicated. If you had pleaded not guilty and been found guilty of this offence by a jury, I would have sent you to prison. I would have convicted and sentenced you to two years eight months' imprisonment. I would have fixed a non-parole period of 21 months. That statement is to be entered into the records of the court.
125Let me just see if there are any other matters that I need to deal with. So I have pronounced the fine with conviction. I have pronounced the community corrections order. Are there any other matters I need to deal with, Mr Grace or Ms Wallace?
126MS WALLACE: No, Your Honour.
127MR GRACE: Not that I'm aware of, Your Honour.
128HIS HONOUR: No, all right. Thanks very much for your assistance, each of you. So there will be a copy of that order for your client.
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