Director of Public Prosecutions v Moharaminia

[2023] VCC 2287

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-02075

DIRECTOR OF PUBLIC PROSECUTIONS

v

MEHRSHAD MOHARAMINIA[1]

[1] These reasons have been anonymised to avoid identifying the victim of a sexual offence and redacted to comply with a current suppression order.

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JUDGE:

HER HONOUR JUDGE CARLIN

WHERE HELD:

Melbourne

DATE OF HEARING:

Trial: 10 August 2023 – 21 August 2023

Plea: 1 December 2023

DATE OF SENTENCE:

7 December 2023

CASE MAY BE CITED AS:

DPP v Moharaminia

MEDIUM NEUTRAL CITATION:

[2023] VCC 2287

REASONS FOR SENTENCE

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Subject:CRIMINAL LAW

Catchwords:              Rape, sexual assault, finding of guilt following trial, massage therapist, victim with limited English, childhood with violence and instability, lower end of spectrum of seriousness, limited prior convictions, delay, uncertain future.

Legislation Cited:      Sentencing Act 1991 (Vic), Migration Act 1958 (Cth)

Cases Cited:Director of Public Prosecutions v Alimadad Mokhtari [2020] VSCA 161 [41], Jurj v The Queen [2016] VSCA 57, Brown v the Queen [2019] VSCA 216, Director of Public Prosecutions v Tewksbury [2018] VSCA 38, DPP v Bales [2015] VSCA 261, Mush v The Queen [2019] VSCA 307, DPP v DDJ [2009] VSCA 115

Sentence:                  Total effective sentence of 6 years and 2 months imprisonment with a non-parole period of 3 years and 8 months imprisonment

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr M. Wilson for Trial Mr T. Crouch for Sentence	Office of Public Prosecutions
For the Accused	Ms S. Parsons for Trial Mr S. Tovey for Plea	Doogue & George

HER HONOUR:

1Mehrshad Moharaminia, on 21 August 2023, a jury of 12 people found you guilty by majority verdict of three charges of sexual assault (Charges 2, 7 and 9) and one charge of rape (Charge 8) and not guilty by unanimous verdict of two other charges of sexual assault and one charge of rape.  I had previously directed an acquittal in relation to two other charges of sexual assault.

2All charges stemmed from a single incident on 7 March 2019.  At about 2 pm that day you were working as a massage therapist at the Zen5 Chinese Massage and Acupuncture Clinic at the Emporium Shopping Centre in Melbourne when the complainant, Isabelle Yang[2] attended wanting a massage because of back pain.  Ms Yang was a 21 year old Chinese national with limited English.  She was in Australia studying and had never before been to Zen5. 

[2] A pseudonym.

3After speaking to your Chinese speaking female colleague Jessie, Ms Yang agreed to you giving her a 30 minute back oil massage, although 45 minutes was written in the appointment book.  Ms Yang followed you to a massage 'room' in the back of the shop.  Room may be overstating it, as it was really only an area containing a massage table separated from other areas within the shop by curtains. 

4Once there Ms Yang gestured to her lower back, and you indicated that she should remove her clothes and left the room.  Any verbal communication you had was in English.  Ms Yang took off her clothes except for her underwear and bra and lay face down on the massage table. You then returned to the room, unclipped her bra and placed a towel on her back between her waist and neck.  For the next 25 minutes or so you massaged Ms Yang from her legs up to her neck, including her buttocks, in a manner with which she felt comfortable, and I accept was legitimate. 

5Whilst Ms Yang was still face down you then, without asking her permission, pulled down her underpants about 40 centimetres and massaged her waist and upper buttocks.  About 10 minutes later you pulled her underpants down further to the end of her buttocks, again without permission, and proceeded to massage her buttocks, including by pulling her cheeks apart. 

6You then asked Ms Yang to turn over, which she did.  Her underpants were still down and her bra was still undone but in place.  As she felt exposed, Ms Yang grabbed a cloth and placed it on her abdomen and chest area.  You then began stretching her legs by grabbing one leg at a time and pulling on it.  This exercise dislodged Ms Yang's underwear so that it was only hooked on one leg.

7You then, without asking for permission, began touching the area around Ms Yang's vagina which would normally be covered by triangular underpants.  Ms Yang felt strange but chose to believe that there was a therapeutic purpose and that you may have been massaging pressure points.  This conduct constitutes Charge 2, sexual assault.

8You then asked Ms Yang to move onto her left side, followed by her right side and massaged her tailbone in both positions.

9While Ms Yang was still lying on her right side and without asking, you began massaging the area between her anus and vagina, the perineum.  You touched the area for approximately five seconds.  Ms Yang felt strange but again chose to believe that there was a therapeutic purpose for what you were doing.  This conduct constitutes Charge 7, sexual assault.

10You then suddenly and without warning inserted your finger into Ms Yang's vagina.  She estimated it went in up to the first knuckle.  After your finger had been inside her vagina for about 1 to 2 seconds and whilst it was still inside her vagina, you grabbed Ms Yang's left breast which had become completely exposed, with your other hand. 

11At this point Ms Yang raised her head and said 'Hey' and you responded 'sorry, sorry' and immediately desisted in your sexual assault.  You then asked Ms Yang to turn face down, applied some oil and massaged her abdominal area briefly before saying the massage had finished and leaving the room.

12Ms Yang estimated your finger was in her vagina for approximately 5 seconds and that your hand was on her breast for approximately 2 to 3 seconds.  This conduct constitutes Charges 8, rape, and 9, sexual assault.

13Ms Yang quickly got dressed and met you in the reception area.  She paid for the massage with her credit card but also asked to speak to Jessie who was not then present.  Ms Yang then left the store with her friend who had accompanied her to the clinic and waited in the reception area the whole time.  While they were walking away, they saw Jessie and Ms Yang told her that you had touched her abnormally.  Ms Yang also told her friend what had happened and soon after they both went to the police station in Flinders Lane where Ms Yang reported the matter.  She was taken to the Royal Women's Hospital for a medical examination and provided a formal written statement the following day.

14You were arrested in the evening of 7 March 2019 and interviewed.  You denied sexually assaulting Ms Yang in any way.  In other words, you lied.

15After the jury found you guilty you were remanded in custody and have now spent 108 days not including today on remand.  A plea on your behalf was conducted before me on 1 December 2023 and it now falls to me to sentence you for your conduct.  Your counsel at the plea, Mr Tovey, properly conceded that nothing other than a term of imprisonment involving a head sentence and non‑parole period was within range.

16In arriving at an appropriate sentence, I am required by law to have regard to a variety of factors which I will outline in these sentencing remarks.[3]  Some tend towards leniency, and some point the other way.  No one factor automatically prevails over any other.  Rather, I must have regard to them all and give each the weight it deserves to arrive at a just sentence.

[3] Section 5(2) of the Sentencing Act 1991.

Your personal circumstances

17First, your personal circumstances.  These were outlined in defence written and oral submissions, and various character references tendered on your behalf.

18You are now 40 years old, and you were 35 years old at the time of the offending.  You are the oldest in a step‑sibship of four.

19Your childhood was marred by violence and instability.  You were the product of a casual relationship between your father and mother and as such were apparently neglected by your mother and mistreated by her family.  Your mother relinquished you to your father when you were two years old and thereafter you were raised by your father and your stepmother, whom you regard as your mother. 

20As a child your father, subjected you and your siblings to violent, degrading, and threatening behaviour.  If you failed to adequately comply with your father’s wishes you were liable to be punished.  For example, when you were nine years old your father pulled out your fingernails because you were not praying rigorously enough.  You left home when you were 17 to escape your father.

21Despite these difficulties you succeeded at school and completed an Advanced Diploma and then a Bachelor of Mechanical Engineering in your home country. You then went on to work in the gas and petroleum industry.

22Because of the troubles in your home country you and your siblings all travelled to Australia in 2011.  You were then 28 years old. 

23Unfortunately your qualifications from your home country did not translate to Australia.  In 2017 whilst living in Brisbane with your sister, you began a relationship with a Chinese woman who introduced you to Chinese medicine and remedial massage.  You qualified as a remedial massage therapist in that same year and moved from Brisbane to Melbourne where you started work at Zen5.  Six months later you became the manager of Zen5.

24In 2019, after you were charged you left Zen5 and established your own remedial massage business, Body and Motion Massage, in Greensborough.  You ran this business until your remand.

25You are not currently in a relationship and do not have any children.

26You remain close to your siblings, two of whom supported you in court alongside your stepmother.  Your siblings are all Australian citizens and your mother is a permanent resident.

Objective Gravity of your offending and moral culpability

27Two factors of central importance in determining any sentence are the objective gravity of the offending and the moral culpability of the offender.

28Rape is an inherently serious offence.  It is a deeply personal crime which at the very least involves the violation of a person's body and right to sexual and physical autonomy.  The maximum penalty of 25 years' imprisonment unambiguously reflects the seriousness with which Parliament regards the crime, as does the fact the offence is now subject to various specific sentencing provisions which operate to constrain the sentencing discretion and promote harsher penalties. [4]

[4] Rape is a Category 1 offence as defined in section 3(1)(d) of the Sentencing Act 1991, which pursuant to 5(2G) of that Act must be punished by a custodial order not in combination with a community corrections order.   Further, it has a standard sentence of 10 years imprisonment. 

29Parliament aside, our Court of Appeal has also often and repeatedly affirmed the seriousness of the offence.  In 2020 in a case called Mokhtari it said:

'The very act of rape is inherently serious, simply by virtue of the invasion of the victim's bodily integrity without consent.  It is, quite simply, an act of violence, whether or not accompanied by other violent conduct.  The violation is physical, emotional and psychological.  It follows that, aggravating features apart, all acts of non-consensual penetration are objectively serious, irrespective of the form and the extent of the penetration.'[5]

[5] Director of Public Prosecutions v Alimadad Mokhtari [2020] VSCA 161 at [41].

30Although not as intrinsically serious, the offence of sexual assault is also a serious crime as is reflected by its maximum penalty of 10 years.

31Your offending is aggravated by the fact that you were in a position of trust in relation to Ms Yang who was vulnerable not only because of her state of undress but also because she was a young woman from another country with very limited English.  It was the trust that Ms Yang placed in you that enabled your offending.  At various times whilst she was lying virtually naked on the massage table, she wondered what you were doing, but as she explained, she chose to believe in you, wrongly, as it turned out. 

32There is nothing to suggest you formulated the intention to sexually assault Ms Yang prior to commencing the massage, but nor could it be said that your offending was entirely spontaneous or impulsive.  You were, I am satisfied, testing the waters.  That is, after about 25 or so minutes of legitimate massage you decided to see what you could get away with and you continued crossing the boundary of what was legitimate until finally Ms Yang complained.  It is true that at that point you immediately desisted and that is to your credit.  However, it must be said that given the confines of the clinic there was little else you could do.

33Notwithstanding the seriousness of what you did, I accept both counsel's submissions that your offending falls towards the lower end of the spectrum of seriousness for offending of this type, in other words it is less than a mid‑range example.  To be clear, I am not saying it is not serious and nor does the absence of certain aggravating features detract from the gravity of what you did.[6]  Rather, there is obviously a wide spectrum of seriousness within any offence and your offences are no exception. 

[6] See Jurj v The Queen [2016] VSCA 57 at [80] as to relevant factors in assessing offence gravity.

34In terms of your moral culpability, there can be no reason for your actions other than to obtain sexual gratification at the expense of another person.  You knowingly exploited the trust Ms Yang placed in you to perform a legitimate massage to satisfy your own desires without regard for her wishes.  This was selfish, entitled behaviour and reflects extremely poorly on you.

35The abuse and trauma you experienced in your formative years does not explain what you did.  Further, you have managed to succeed in spite of it.  Nevertheless, I accept that your background does reduce your culpability to a modest extent.  What happened to you in your youth was out of your control and inevitably shaped the person you are as an adult.  What you did to Ms Yang was reprehensible but in accordance with the High Court case of Bugmy you are not to be judged as harshly as a person who was brought up in a loving, secure, and stable environment and without the disadvantages you suffered. 

Impact of your offending

36I am required to take into account the impact of your offending on your victims and their personal circumstances. [7] 

[7] Section 5(2)(daa), (da) and (db).

37Ms Yang's victim impact statement was tendered and read aloud by the prosecutor at the plea.

38It is obvious that your offending has affected Ms Yang profoundly.  After she returned to China she was diagnosed with anxiety and treated as a mental health outpatient at her local hospital between 24 July 2019 and July 2020.  She still suffers from anxiety and still takes anti-anxiety medication at a huge cost.  She spoke of her inability to work and study which has reduced her income, and said she finds it difficult to eat and communicate in a normal way.  Her anxiety prevents her from doing activities such as going out to dinner, being in a crowded place such as a cinema or jogging as she gets flustered.  She also said that normal physical contact with males makes her feel sick.

Current Sentencing Practices

39I am required to have regard to current sentencing practices.  Since 1 February 2018, rape has been a standard sentence offence under the Sentencing Act 1991 with the standard sentence for an offence of mid-range objective seriousness set at 10 years with a presumed minimum non-parole period of 60 per cent. [8]

[8] Sections 5A and 11A of the Sentencing Act 1991 (Vic). The percentage increases if the total effective sentence is more than 20 years.

40The methodology for sentencing standard sentence offences is not that I engage in a two-step process of first assessing the objective seriousness of your offence compared to some hypothetical mid-range offence and then work up or down depending on your personal circumstances or other factors.  Rather, I must take into account the standard sentence and the default non‑parole period in the same way as I take into account the maximum penalty, and indeed all other relevant sentencing factors to arrive at an appropriate sentence by a process known as instinctive synthesis. [9]

[9] Brown v the Queen [2019] VSCA 216.

41The reason for looking at current sentencing practices is to promote consistency of approach in sentencing, particularly the application of relevant sentencing principles.  Whilst no two cases are ever truly the same, and other sentences are not precedents to be applied or distinguished, sentences imposed in comparable cases may provide a convenient yardstick against which to measure any sentence proposed in the instant case.  In the case of offences subject to the standard sentencing regime such as yours, the consideration of other sentences must be confined to other sentences imposed under that regime, that is, sentences imposed for offences committed after 1 February 2018. [10] 

[10] Sentencing Act 1991 (Vic) s 5B(2)(b).

42The prosecutor provided details of five cases involving standard sentence digital rapes which had been considered by the Court of Appeal.  In those cases the sentence imposed or confirmed on appeal ranged from 3 years to 8 years.  There is no need for me recite the details.  Suffice to say, none of them were really comparable cases.  Further, the courts have made it clear that offence gravity is to be determined by the whole of the circumstances rather than the type of penetration. [11] 

[11] For example, Director of Public Prosecutions v Tewksbury [2018] VSCA 38 at [67].

43Subsequent to the plea I brought to the attention of the parties a sentence imposed in this court which is directly comparable in that it involved a massage therapist who digitally penetrated his client, albeit for a much longer period than you did, and also in her own home.  The offender in that case, DPP v Basile, was 68 years old, pleaded guilty during the pandemic and had one 30 year old prior for sexual offending which the judge considered to be of limited relevance.  He was sentenced to 7 years with a non‑parole period of 4 years and 6 months.

44Of course, one case does not a sentencing practice make and nor is it binding on me.  I have also been informed that the sentence is subject to an application for leave to appeal.  Still, I have had regard to that case as well as the other cases to which I was referred, cognisant that ultimately my duty is to impose a just and appropriate sentence on you in the unique circumstances of this case. 

Your character and risk of reoffending

45Turning to your character and risk of reoffending.  You have one prior matter of a dishonesty nature for which you received a non-conviction recognisance with which you complied.  That was in 2013 and is of limited relevance. You have no outstanding matters and I understand there have been no other complaints made against you. 

46Your counsel submitted that you have strong prospects of rehabilitation.

47I received seven character references from your family and former colleagues, specifically your sister, your mother, your friend Kish Jude, your former colleagues Dr Magdy Eskander, Anthony Gung and David Natoli, and your patient Farhad Bahrami.  All authors of the references were aware of the findings of guilt.

48They describe you as hardworking, professional, and friendly with a strong sense of commitment to your family.  They speak of your respectful and considerate nature and say that the offending is a shock and out of character.  It is clear from these letters that you have ongoing support from your family, friends, and colleagues, many of whom attended court for your plea.

49I would have more confidence in your future prospects if you had admitted your wrongdoing, provided an explanation for it and expressed remorse. Instead Ms Yang was cross‑examined at the committal and also at trial.

50That said, given your age, the fact that this is isolated offending and the supports you have in the community if you are allowed to remain in Australia, I consider your prospects to be reasonable to good. 

Other mitigating factors

51I now turn to some other mitigating factors.  Since you ran a trial, you do not get the benefit of a discount in your sentence for pleading guilty.  You are not punished for running a trial, you simply do not get a discount you would have got if you had pleaded guilty.  However, there are some other matters which do operate to mitigate your sentence.

52The first, is delay.

53There has been a delay of more than 4 years since the offending occurred, largely because of the effects of the pandemic but also because of the legalities of ensuring Ms Yang could give evidence from China.  In that time you have not only had the worry of this matter hanging over your head, you have also, to your credit, not committed any other offences. I note that you have continued as a massage therapist.

54The second mitigating factor is your uncertain future.

55The sentence I impose, being more than 12 months, will trigger the mandatory cancellation provisions of the Migration Act 1958 and therefore give rise to the prospect of your deportation.

56Deportation would be an additional hardship for you as you have established yourself here, as has your family.  You would lose the opportunity of settling permanently in Australia and staying close to all your family, not to mention having to start again in another country, which may be a strange country to you.  I accept that deportation would amount to a form of extra curial punishment and that the worry about your uncertain future will make your time in custody harder.  Both of those things are mitigating factors.

57Mr Tovey also raised the prospect that a stand‑off between the immigration authorities and the Adult Parole Board of the type described in the case of Hague[12], might result in you serving more of your head sentence than would otherwise be the case.  I am not persuaded that that is a matter I should consider.  There has been no evidence before me about current practices in that regard and nor is there any evidence before me about your mental health.  As the Court of Appeal in Hague noted, allowing for the fact you may have to serve every day of your sentence appears to run foul of the prohibition in s5(2AA)(a) of the Sentencing Act against taking into account executive action.  Further, any suggestion that that possibility might increase your custodial burden is essentially redundant given the much more significant concern of your potential deportation.

[12] citation

58Thirdly, although it was not specifically argued, I take into account that your cultural background and limited English may mean that you will feel more isolated in prison than someone born in Australia or fluent in English.

Purposes of Sentencing

59I am obliged not to impose a more severe sentence than is necessary to achieve the sentencing purposes of just punishment, deterrence, rehabilitation, denunciation, and protection of the community. 

60Generally, a custodial sentence must only be imposed as a last resort, and then be the absolute minimum required.  Further, when there are multiple charges such as here, the total effective sentence must not offend the principle of totality, meaning you must not be punished any more than is proportionate and appropriate to your overall criminality. 

61In your case those general sentencing principles are qualified by some specific provisions applicable to you.

62First, as I have already explained rape is a special category of offence which requires the imposition of a custodial sentence[13].  Secondly, it has a standard sentence of 25 years.

[13] Not being one in combination with a community corrections order, section 5(2G) Sentencing Act 1991.

63Thirdly, given that I will be imposing terms of imprisonment on Charges 2 and 7, once I come to sentence you on Charges 8 and 9, you will be a serious sexual offender.  That means in respect of the sentences on those charges I will be required to consider protection of the community as the principle sentencing purpose and will be entitled to impose a disproportionate sentence to achieve that purpose.  Finally, your status as a serious sexual offender gives rise to a statutory presumption of cumulation of the individual sentences.  The more serious the overall offending the more that presumption will operate to moderate the principle of totality. [14]

[14] DPP v Bales [2015] VSCA 261 at [38] and Mush v The Queen [2019] VSCA 307 [89] to [91].

64Even without those specific provisions your offending clearly warrants a significant term of imprisonment.  The prosecution have not submitted that a disproportionate sentence is necessary and I am satisfied having regard to my assessment of your risk of reoffending, that I have enough sentencing discretion to achieve the purpose of community protection in your case without imposing one.[15] Similarly, I consider that the balancing of the presumption of cumulation and the principle of totality requires that I not order full cumulation of each sentence, particularly taking into account the proximity in time of each offence and indeed Charges 8 and 9 overlap. Indeed, I consider I need to order substantial concurrency of sentences in order to avoid a wholly disproportionate sentence. Therefore, pursuant to s6E of the Sentencing Act 1991, I 'otherwise direct' to give effect to my orders for cumulation and concurrency.

[15] DPP v DDJ [2009] VSCA 115 at [29].

65The sentence I impose must have the effect of denouncing your conduct and deterring other like-minded individuals who occupy positions of trust, such as massage therapists, from abusing that trust.  Conduct such as yours not only impacts the individual victim, it tends to undermine public trust in people performing such services and in that way affects the whole community.  I accept that your childhood disadvantage warrants some moderation of general deterrence, but only to a modest extent.  The principle of specific deterrence has some, but not a large role to play in your case.  Of course my sentence must also be just and take into account the mitigating factors I have already outlined in detail. 

66I am obliged to say how my sentence on Charge 8 relates to the standard sentence of 10 years.  In instinctively synthesising all relevant matters, in my view a sentence below the standard sentence is warranted.  To allow for your prospects of rehabilitation, I consider it appropriate not to exceed the presumed minimum non‑parole period of 60 per cent of the head sentence. 

Sentence

67Mr Moharaminia, will you stand up please? 

68Weighing up the competing considerations as best I can, you are convicted on each charge and sentenced to terms of imprisonment as follows.

69On Charge 2 which is the sexual assault comprising touching the area near Ms Yang's vagina, 1 year.

70On Charge 7, sexual assault comprising touching the perineum, 1 year.

71On Charge 8, rape comprising digital penetration of Ms Yang's vagina, 5 years and 6 months.

72On Charge 9, sexual assault comprising touching her breast, 1 year.

73The sentence I impose on Charge 8 is the base sentence.

74I direct that 4 months of the sentence on Charge 2 and 4 months of the sentence on Charge 9 be cumulative with each other and on the base sentence of 5 years and 6 months. 

75I direct that the sentence on Charge 7 be wholly concurrent. 

76That means the total effective sentence is 6 years and 2 months' imprisonment or 74 months and I set a non‑parole period of 3 years and 8 months' imprisonment.

77I declare you have served 108 days pre-sentence detention not including today.

Other relevant orders

78I also declare that pursuant to s6F you were sentenced as a serious sexual offender in respect of Charges 8 and 9.

79I also make it clear that I make no order, there having been no application before me, under the Sex Offenders Registration Act 2004.

80Mr Moharaminia, do you understand that sentence?  And you understand it is up to the Adult Parole Board if you are released at the end of your non‑parole period.

Charge	Offence	Maximum	Sentence	Cumulation
2	Sexual assault comprising touching the area near Ms Yang’s vagina	10	1 year (12 months)	4 months
7	Sexual assault comprising touching the perineum	10	1 year (12 months)	Nil.
8	Rape comprising digital penetration of Ms Yang’s vagina	25	5 years 6 months (66 months)	base
9	Sexual assault comprising touching her breast	10	1 year (12 months)	4 months
Total Effective Sentence:		6 years and 2 months’ imprisonment (74 months)
Non-Parole Period:		3 years’ 8 months imprisonment
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:		108 days
Other relevant orders: ·      Pursuant to s 6F, sentenced as a Serious Sexual Offender in respect of charges 8 and 9 ·      No order made under the Sex Offenders Registration Act 2004

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