Director of Public Prosecutions v Lee

[2016] VCC 1978

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-16-01439

DIRECTOR OF PUBLIC PROSECUTIONS

v

MALCOLM LEE

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	16 December 2016
CASE MAY BE CITED AS:	DPP v Lee
MEDIUM NEUTRAL CITATION:	[2016] VCC 1978

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms. M. Mahady	Office of Public Prosecutions
For the Accused	Mr. C. Walker

Pages 1 - 1

 

 

HIS HONOUR: 

1As at the end of March 2016, the victim in this matter was a vibrant 80 year old woman living independently.  Her daughter arranged a gift of a massage for her.  You, Malcolm Lee, were the selected masseur.  When the daughter spoke to you to organise the massage for her mother, she made it clear that her mother was 80 years old.  You reassured the daughter that you had the right experience to manage the massage of an 80 year old woman. 

2You were at the time, a masseur registered with the Massage Association of Australia.  You had 14 years of practical experience.  It would have been plain to you that the massage organised by a daughter for her 80 year old mother would be an orthodox massage.  That is, a massage performed in accordance with well-understood standards of proper massage therapy.  It simply would go without saying that this was not to be a massage where it would conceivable, let alone be permitted, for you to touch the victim in any sexual way whatsoever. Unfortunately for the victim, and for you, inappropriately touching her is exactly what you did. 

3On 1 April 2016, you took one towel to her house.  She lay on the massage table in her underpants.  Shortly after you started, your hands were moving towards her underpants.  You said to her, "Do you want to remove these?"  She did remove her underpants.  After 45 minutes, you asked her turn over.  You did not use a towel to cover her in any way.  She was naked and exposed.

4You had her move her legs to be the width of the table.  You then massaged the victim's legs going ever higher on her inner thighs.  You touched her labia and moved your hands to her vagina touching her on the clitoris.  Not surprisingly the victim felt anxious and in effect, paralysed by what you were doing.  Then to her utter shock, you inserted your finger into her vagina.  At this time, you used your other hand to place it on her right breast and vigorously rubbed it.  The victim then, in her words, had the courage to open her eyes, again in an utterly astonishing manoeuvre for a professional masseur, you were at that point, leaning over her with your face close to hers and then you proceeded to kiss her on the lips.  The massage then concluded.  What was said and not said immediately after, is a matter I will return to shortly. 

5What I have just described only has to be said for the incomprehensible depravity of what you did to be exposed.  Any right-minded member of our community would immediately be taken aback unable to understand how you could do such a thing to a vulnerable 80 year old woman in her own home, all within an hour or so of meeting her for the first time, while you were there for the purposes of providing a professional massage. 

6I will turn shortly to what you have said as to what you were thinking at the time.  However, you have pleaded guilty to one charge of rape and one charge of sexual assault, and done so at the earliest opportunity available to you.  Your plea of guilty means that I will impose a lower sentence than would otherwise have been the case, had you pleaded not guilty. 

7One aspect of your plea of guilty is that you have relieved the complainant of the added burden of embarrassment and anxiety likely to have been to the fore had she had to give evidence before a jury and been cross-examined.  That is no small matter in mitigation. 

8When I say "added burden" it is clear that the victim has suffered adversely because of what you did.  Her victim impact statement was measured and delivered to the court with dignity.  The victim expressed her deep shock and anger which have, over time, turned to sadness and depression.  Personal and bodily violation at your hands is all the worse for being in what she
well-treasured; the sanctity and safety of her own home.

9The initial nightmares that she had have abated thankfully.  After her serious car accident, she found that she had a sense of, to use her own words, "I want out of here."  That is a sentiment I take as foreign to her up to that point and it revealed to her that she had reached a concerning level of depression. 

10She has benefited, she says, from the work of counsellors, her GP, the companionship of her friends, and of course, the love and care from her family.  However, as she puts it, she still lives constantly with an unwelcome and
hard-to-shift knot in her stomach.  Her quality of life has diminished.  That is no small matter. 

11She does speak of a sense that having her say, as it were, in the victim impact statement, is something that is empowering.  I will say more of the important concept of victim rehabilitation shortly. 

12The victim's daughter also made a victim impact statement.  It is understandable that she would have what is in truth an unjustifiable sense of guilt for organising for you to be a masseur.  I am sure she knows in the sense of logic that she is not in any way to blame, but emotions play such a part in matters such as this, especially when the victim was her much-loved mother.  You, Mr Lee, have, by your actions, made the victim's daughter feel under this dark cloud of responsibility.

13It is to be hoped that some comfort can be gained in this formal court process where I can, on behalf of the whole community, make it clear to you and to her, that you alone, Mr Lee, are responsible for your dreadful conduct.  The daughter of the victim is simply blameless.

14As a senior judge, much wiser than I, spoke of some years ago, the courts in ensuring that the sentencing process and sentence itself, the court should play a role in the social rehabilitation of victims and their families.  By the courts now listening more closely to the effect of crimes on victims, healing can begin or continue.  It is hoped, as the victim said, that the making of the victim impact statement empowers and helps not just her, but it is hoped that it helps her daughter in respect to this issue of feeling guilty.

15It should be noted, also, that the victim's daughter feels deeply upset at seeing her mother's spirit and joy diminished.  She is saddened to see her mother now as more fragile.  I will, as I must, take into account the victim impact statements and the effect of your crimes on the victim and her daughter in an appropriate and measured way. 

16An important statutory duty I have is to assess the gravity of your offending and the moral culpability involved.  It is clear from all the circumstances that this was dreadful offending.  It was an abhorrent violation of a vulnerable, elderly woman.  As noted, right-minded members of our community would simply be bewildered that you could do what you did. 

17The gravity of what you did, in my assessment, is established by a number of overlapping factors, being (1) Your most incomprehensible violation of the personal integrity of an elderly woman who allowed you into her house to provide professional services; (2) The comprehensive breach of trust involved; (3) The exploitation of the obvious vulnerability of the elderly victim, a matter you had assured the victim's daughter, you would manage sensitively and appropriately; (4) The fact that the violation occurred in the sanctity of her home which has diminished her sense of safety; (5) The adverse impact on the victim is also factor that adds to the gravity; (6) You raped and sexually assaulted the victim when the opportunity arose.  This was not something planned in advance.  That, in my view, is plain; (7) You did not resort to threats or, importantly, gratuitous humiliation or degradation.

18Before moving to the question of your moral culpability, I need to speak of my analysis and resolution of the issue of what you later said was your state of mind when you were doing what you did. 

19Your counsel submitted that your asserted state of mind was a matter that lowered the gravity of the crime and lowered your moral culpability and did so, to an extent that along with the other mitigatory matters, allowed for a sentence other than one involving incarceration.

20Your counsel relied on a number of pieces of evidence where you, on facing the allegations, responded by asserting that you believed the victim was, in fact, consenting.  You went on to acknowledge that this was a mistaken belief, a
misreading of the circumstances, but nevertheless it was, as you asserted, your state of mind at the time.  The prosecution rejected this explanation as post facto rationalisation and that your explanation, in fact, beggared belief. 

21Your counsel acknowledged that given the amendments to the law in respect of rape and sexual offending, and in particular, the amendments to the law in relation to an accused's state of mind, that it was plain that your state of mind, as you asserted, was unreasonable, and thus, the prosecution could and would prove the element of the offences beyond reasonable doubt.  

22Accordingly, you pleaded guilty admitting the elements and you do not gainsay your plea by raising this issue as to your subjective belief as to the victim's consent.

23What falls for me to consider and resolve is, if I am satisfied that the evidence does not negative that you held such a belief, then, so the argument goes, I would reduce or see as reduced, the seriousness of the crime and your moral culpability. 

24I have, in that analysis, taken a best view of things for you, in the sense that I have placed the burden on the prosecution to negative this assertion of a genuine, but unreasonable belief.  I see my task as being one of drawing an inference as to a state of mind, a matter routinely asked of juries in criminal trials.  Thus, I apply all the directions of law that are required of a jury in those circumstances.

25So, accordingly, I have considered all that was said and done, and not said at the time, and what was said and done before, between you and the victim and you and the daughter of the victim in organising the massage.  I will consider all that happened after the incident, including the pretext calls, the record of interview, and what you said to the experienced medico-legal psychologist, Mr  Joblin.  

26I will, or have considered all the arguments of both counsel, as to the proper interpretation of the evidence.  I will only eliminate an asserted inference if the evidence persuades me that it is not reasonable or if it is fanciful, and the only reason or inference that is left is the one the prosecution contends for. 

27I will also keep in mind, the words of the experienced and enlarge Bench of the Court of Appeal in the matter of R v Storey in which it was said that the task of a sentencing judge was to consider what a person did, and if possible, why they did it, as well as who they are.

28Of course, the issue of precisely why a person did what they did, may remain elusive, unclear or inexplicable.  It may be that explanations provided later are rationalisations because facing up to the reality is psychologically excruciatingly difficult and full of shame.

29If I may commence with, in my view, a very important piece of evidence as to what was said and not said immediately after the massage. 

30Immediately, after the massage, that is shortly after the penetration the victim's vagina and the sexual assault by kiss, the victim, in what I take to be her polite and dignified way, and using her words, remaining as calm as she could, she said the following to you; "Thank you for what was quite a massage.  Much more intimate than I expected and somewhere along the way, some boundaries were crossed." 

31This was plainly said, not in an aggressive or over-emotionally charged way, but on any view, it called for some response.  You, in your record of interview, said that you thought she said the massage was more intimate than she thought, but was glad no boundaries were crossed.  You maintained to the police that the first you understood that she was saying that boundaries were crossed, was when her daughter rang and made it clear to you in the pretext call. 

32I find your answers in your record of interview, at 393 to 394, unbelievable and I do not accept that you heard the opposite of what the victim said as to boundaries being crossed. 

33In my view, your lack of response, at all, even to what you wrongly believed was said, does not make sense.  In my analysis, I accept, as you now do, that the victim did confront you immediately afterwards about boundaries being crossed, and your silence in those circumstances, is telling. 

34Your later answers were, in my view, post facto rationalisations, so as you could justify your conduct to yourself and to attempt to ameliorate the situation to your accusers in the pretext calls and record of interview. 

35In my view, the acts you did just were so obviously ones involving much more than what you said; that is, that her silence persuaded you that she was consenting.  Your vigorous simultaneous rubbing of her breast at the time of penetrating her vagina and, most tellingly, kissing her on the lips as you had come to believe you were more like friends, is revealing. 

36As you began, in your record of interview, you said that this explanation, this misinterpretation will sound crazy.  That, in my view, is a proper description because it was.  It was a preposterous explanation.  All the circumstances reveal to me that you did not believe that she was consenting. 

37Further, it was days later, in the pretext calls, and the record of interview, that you raised this explanation that your conduct can be explained because you believed she was consenting. 

38In the pretext call, your response to the obvious question which, from the victim's daughter - p.12 or 49 of the depositions - she said:  "So I mean why did you think that was okay?"  You said, "I don't.  I don't.  It wasn't okay.  I crossed boundaries and I'm sorry.  I don't know.  I can't, I can't, it's just - at the moment it seemed like - I don't know, I just can't say anything.  I've never done it before, and it just seemed like, I thought, I really thought she was enjoying it and that she was a nice person, or I just, you know, it's more like it wasn't a massage, it was more like that we were friend's sort of thing." 

39Later when again the obvious point was being made that you cannot just assume because a person does not explicitly say, "Don’t touch my vagina or touch me sexually in this massage", that you could assume to do so is okay and with consent. 

40Your response to that was - at p.17, the pretext call, 54 of the depositions - "I know, I know what you are saying, and it's true.  I'm really, really sorry, I can't believe I did it, to be honest."  That is, you, yourself, were astonished and disbelieving that you did what you did. 

41All of this was restated in the record of interview and again to Mr Joblin, the very experienced forensic psychologist who, in my reading of his report, has aspects of scepticism.  

42As I hope I have made clear, I have considered all relevant evidence, not only that that I have just quoted, and I have considered the arguments put by both counsel. 

43I consider that the explanation as to your state of mind as fanciful, and simply and easily rejected, and I do so.  You could not, and did not believe that the victim was consenting.  Rather, you touched her in the ways that you wanted to, because you wanted to.  Simple as that.  You were not expecting, or perhaps not hoping that any later questioning would arise, but rather, the silence of the victim on the massage table would continue.  When it did not, your explanations that you put forward were preposterous. 

44Thus, the seriousness of the offending is not diminished by your later asserted explanation as to your state of mind.  I should make it clear it is not made worse because of that, but it is not ameliorated. 

45As to your moral culpability, it is and remains high.  You are a professional masseur and you knew what was expected and allowed and you brazenly went far beyond that as to violate, by rape, an elderly woman.  The rejection of your explanation has the effect that your moral culpability remains high.  It is not made worse, but it remains high.  I will return briefly to this issue when I  deal with your remorse and prospects for the future. 

46As to your personal circumstances, you are now a 56 year old man.  Your upbringing was largely unremarkable.  As I perceive it, you were one of six children raised initially in the United Kingdom and then in the Keysborough area.  Your sisters, like you, now live in Lakes Entrance and it seems like you are members of Jehovah's Witnesses Church.  I raise this because your offending has resulted in your being ostracised from that church community and thus, your sisters. 

47You left school at 15.  You found aspects of the social side of school hard because of your stutter.  After school, you worked in a bakery, then factories, driving and as a window cleaner.  You became unwell, with chronic fatigue-type disability.  This saw you reduced to a day of window-cleaning a week.  This remained your regime, it seems, for a decade or more.  You then embarked on an on-line course in massage therapy.  You passed the requirements and established a massage practice in Lakes Entrance.  You have worked as a masseur for 14 years.  Your work history generally is to your credit. 

48You met your wife when you were both young, or both teenagers.  You have two daughters.  You have separated from your wife since this matter came to light, though a daughter and your wife attended court to support you, and have done so again today. 

49As mentioned, you have been ostracised from your church.  Essentially, you are now isolated.  That said, I had an impressive character reference from your friend, Mr Kidd.  His view seems accurate to me that this criminal conduct was out of character and you are much-chastened and shamed by what has befallen you. 

50Your embarrassment at how degraded you became in committing this offence and the consequences of the criminal proceedings, are likely to ensure that you will not be back before the courts again.

51I also find that you apologies and remorse expressed in your record of interview also fortify me in considering that this is out of character and you are unlikely to be back before the courts. 

52As I said, you made speedy admissions.  Though, as I have concluded, your maintenance that you believed the victim was consenting, does diminish the frankness of your interviews, but importantly, you did not shirk the wrongfulness of your conduct and its impact on the victim.  You were immediately apologetic and have remained so.  Your remorse is a little hard to gauge in light of what you say about your belief in consent, however, in my view, you are genuinely concerned for the victim and you well-know, and acknowledge now, how wrong your conduct was.  I am prepared to give significant weight in your favour because of your remorse.

53As to your rehabilitation, your counsel argued that your prospects were excellent.  In my view, you are likely to resume your lawful ways, but your maintenance of this position that you believed the victim was consenting in all the circumstances, does cast some shadow over things. 

54However, on balance, given the absence of any prior matters and your previous good character, it seems, as I said, likely you will return to proper, decent behaviour in the future. 

55In this, I am fortified by the opinions of Mr Joblin that you do not suffer from any psycho-sexual disorder and I accept his opinion.  I also accept his opinion you are not a man of significant psychological strength or self-confidence. 

56I am mindful that prisons are harsh communities, and your stutter and lack of psychological strength will mean prison will be hard.  Your depression, which was described, is not of a level such as to establish it as a matter of mitigation.  You will be likely treated with medication as it the case currently in the community. 

57Because of your crime, and in particular the age of the victim, you are likely to be placed in protection in prison, although I cannot be sure of that.  But, in the end, I am persuaded some modification of penalty should be given, because of this fact.

58The sentencing purposes that are prominent in this case, are denunciation of your dreadful offending.  This denunciation must not merely be by words of condemnation, but also have a practical aspect of punishment, because you violated and hurt a vulnerable elderly woman and you must now face the consequences of your opportunistic sexual crimes.

59What must be made apparent to you and the community, is that the courts in reasserting proper morality and standards that were breached by your behaviour, that the courts will do this in a balanced approach to punishment; one that is proportionate, but nonetheless is firm. 

60Also, I must send the uncompromising message of deterrence to all, especially those who operate as masseurs, where clients are vulnerable.  The message of crystal clarity is this; that if you cross the line and sexually violate clients, you will face significant terms of imprisonment.  The community expects nothing less.

61Your rehabilitation is a sentencing purpose and it must be facilitated, though as I have said, you are likely to resume your lawful ways after your experience of this first, but serious, breach of the law.

62Your counsel argued that all the sentencing purposes, once all the matters in mitigation are synthesised, that a just and appropriate sentence was a Community Corrections Order.  He said such a penalty could punish and rehabilitate simultaneously.

63He relied upon the important decision of Boulton v R, which established sentencing landscape in this State had changed, and that offending that may previously have seen imprisonment, could be properly punished by a Community Corrections Order or a combined imprisonment and Community Correction Order. 

64That said, my view of Boulton itself, and other cases of the Court of Appeal since that time that had referred to Boulton, and in the recent High Court decision of Kilic, those decisions have reminded sentencing judges of the importance in the process of synthesising to consider the gravity of the offending, its impact on the victims and on the community. 

65The sentencing process must not lose sight of the role the courts played in reasserting proper values when confronted with criminal acts that undermine what proper and decent people consider to be proper behaviour and standards.

66The reclaiming or the rehabilitation of an offender is, and remains important, however there are circumstances where a man in his 50s, who has never offended before, must face the full consequences of his criminal conduct.  Grave as it always is, I have come to the firm conclusion that the only just and appropriate punishment is a period of imprisonment and one longer than would allow any combined Community Corrections order and gaol. 

67Having said that, I have taken into account the matters put in mitigation.  I have not given them just mere lip-service because of what is the gravity of the offending involving sexual assault on an elderly lady.  I have considered all the mitigatory matters and given them appropriate weight. 

68The sentencing purposes I have referred to, in my view, could not be satisfactorily achieved by anything other than a sentence involving incarceration.  In that respect, I have satisfied, in my view, the provisions of the Sentencing Act requiring me to consider, in practical terms, that gaol is the sentence of last resort.  

69There are two offences, but I do not consider there any is need for cumulation, given all the almost simultaneous nature of the two acts.  I have considered what justice requires, as the minimum term of incarceration when calculating a minimum term.  There are no fixed formulas and I expect you will quickly settle and resume lawful behaviour when you are released.  However, if and when you might be released on parole, is for others, not me. 

70Can you please stand, Mr Lee. 

71For committing the crime of rape, you are sentenced to three years and nine months. 

72For committing the crime of sexual assault, you are sentenced to 14 days imprisonment.  As I said, there will be no order for cumulation.  These two sentences of imprisonment are concurrent. 

73I fix a minimum non-parole period of two years and six months.  Had you pleaded not guilty to these matter and been found guilty of them, I would have imposed a penalty of five years and 9 months, with a minimum term of four years and six months. 

74You have already served two days since you were arraigned again and the plea was made.  Those two days having been reckoned, I will declare that they are part of the sentence that I have just imposed.  I will ensure that this declaration is entered into the records of the court so that the prison authorities are left in no doubt that you have already served two days of the sentence that I have imposed. 

75The prosecution seeks one further order be made, and that is, that you provide a forensic sample.  That is, a scraping from your moth so that your DNA can be put onto a data base.  I have considered that application and I intend to grant it.  I do so on the basis of the seriousness of the circumstances of your offending warrant such an order, and also, that the granting of the order is in the public interest.  You have to understand that at the time the authorities come to get the sample from you, that if you do not cooperate, they can use reasonable force to enable the procedure to be conducted.  The way through it, of course, Mr Lee, is to cooperate.  I will just sign that order.  You can be seated. 

76Is there anything further Ms Mahady and Mr Walker?

77MS MAHADY:  No, Your Honour.

78MR WALKER:  No, Your Honour.

79HIS HONOUR:  Thank you Mr Lee.  As I explained to you on the last occasion, to your family, that it is not the place that you can spend any time with your family.  I am sure that you would behave, but not everyone will, so we have one rule and that is that you go off to prison with the security people now and while I remain on the Bench.  Thank you. 

80Nothing further?

81MS MAHADY:  No, Your Honour.

82HIS HONOUR:  Ms Mahady, thank you very much for all your work throughout this very productive circuit.  Of course, to all your instructors, who have been very helpful to my staff, to the security people, the court staff here and the VGRS transcribers, we are very grateful. 

83MS MAHADY:  Thanks Your Honour.

84HIS HONOUR:  Have a good Christmas break.

85MS MAHADY:  Thank you, Your Honour. 

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