Director of Public Prosecutions v Syahab

[2024] VCC 890

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-02317

DIRECTOR OF PUBLIC PROSECUTIONS

v

ABDULLAH SYAHAB

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JUDGE:	HIS HONOUR JUDGE TIWANA
WHERE HELD:	Melbourne
DATE OF HEARING:	3 June 2024
DATE OF SENTENCE:	19 June 2024
CASE MAY BE CITED AS:	DPP v Syahab
MEDIUM NEUTRAL CITATION:	[2024] VCC 890

REASONS FOR SENTENCE
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Subject:Criminal law – Sentence

Catchwords:              Rape by compelling sexual penetration – Sexual assault – Male offender working as a masseuse at a health clinic abused trust of two male clients – Similar offending occurring during two separate incidents over three-day period – Offending immediately reported to family and police – Offender denied offending in record of interview – Offender 27 years of age at the time, now 30 – Good work history – Married to Australian citizen – Prospect of deportation  – Onerous conditions in custody – Delay – Resolved after a sentence indication – Late plea of guilty – Some remorse – Positive character – Productive use of time in custody – No re-offending or outstanding matters – Good prospects of rehabilitation – Serious sexual offender provisions.

Legislation Cited:      Sentencing Act 1991 (Vic); Crimes Act 1958 (Vic).

Sentence:                  Total effective sentence of 3 years and 10 months’ imprisonment with a non-parole period of 2 years and 2 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr N Batten	Office of Public Prosecutions
For the Accused	Mr R de Kretser	Stary Norton Halphen

HIS HONOUR:

Introduction

1Abdullah Syahab, following a sentence indication hearing,[1] you have pleaded guilty to 3 charges of sexual assault[2] and one charge of rape by compelling sexual penetration.[3]

[1]On 3 March 2024.

[2]Charges 1, 3 and 4, contrary to s 40 of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.

[3]Charge 2, contrary to s 39(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.

2Rape by compelling sexual penetration carries a maximum penalty of 25 years’ imprisonment. Sexual assault carries a maximum penalty of 10 years’ imprisonment.

Circumstances of the offending

3An agreed prosecution opening was read out in Court.[4]

[4]Exhibit A.

4At the time of the offending, you were working as a professional masseuse at a health clinic in a western suburb of Melbourne. The four charges occurred in the course of you providing a massage service to two separate male customers on 10 March 2022 and 12 March 2022.

Charges 1 and 2

5Mr Grasso[5] attended the clinic on the afternoon of 10 March 2022. You spoke to him. He pointed to his hip and requested a hip massage. You led him into a massage booth. In your absence, Mr Grasso undressed and lay face down on the massage table. He was wearing his underwear, and he draped a towel over himself.

[5]A pseudonym.

6You massaged his back for about ten minutes and then asked him to roll over. He rolled onto his back. You then massaged his left leg, hip area and his quads. You put him into a frog position and massaged his adductor muscle which runs along the inside of the thigh up to the pubic bone. You started brushing Mr Grasso’s penis with the back of your hand. He thought it was an accident, but after about three times of this occurring he felt uncomfortable and put his left hand over his penis to cover it.[6]

[6]Uncharged conduct.

7You then massaged the anterior hip in the pelvic area (‘TFL’ muscle). You then pointed to the inguinal area between the pubis and hip pointer and said, ‘underwear off for that spot’.

8Mr Grasso began to pull his underwear down a little, making sure he was covered by the towel. You then pulled off his underwear. Mr Grasso made sure the towel was fully covering him. You began working on his right hip and TFL area. You again placed his legs into a frog position and began brushing his penis with your hand (charge 1 – sexual assault).

9Mr Grasso kept adjusting the towel and put his hands on his penis to cover it. You asked him to move his hands so that you could get into the TFL spot. He placed his hands on his stomach. You continued brushing your hand against his penis. He kept thinking it was accidental (continuation of charge 1).

10Mr Grasso then felt a weird feeling lasting some five to ten seconds on his penis. He looked down and saw your mouth over the shaft of his penis. He saw your head bobbing up and down. Your face mask was down around your chin. He observed saliva in the corners of your mouth (charge 2 – rape by compelling sexual penetration).

11Mr Grasso froze and lay there for about 20 to 30 seconds trying to comprehend what was happening. You stopped and left the booth. Mr Grasso got up and dressed. You returned with hot stones. He told you, ‘don’t worry about it’.

12He left the booth and paid $55 at the front counter and left.

13Mr Grasso, along with his sister, returned to the clinic. He told his sister that he had been sexually assaulted during the massage by the massage therapist flicking him and placing his mouth on his penis. His sister took a photograph of you. Later that same day, Mr Grasso and his sister went to the local police station and reported the incident.

Charges 3 and 4

14Two days later, on 12 March 2022, Mr Collins[7] attended the clinic. He booked a 40-minute massage to his neck, back, shoulders and arms. You invited him into a booth. Mr Collins took off his shirt and shoes and lay face down on the bed. You asked him if he wanted an oil massage. He said yes. You began by massaging his back. You asked him to unbutton and unzip his jeans so that you could get to the lower back. The upper body massage continued for some 20 minutes. You then offered to massage his legs at no additional cost. Mr Collins agreed. You left the room while he removed his jeans at your request. Mr Collins, now only wearing his underwear, lay back down on the massage table facing down and placed a towel over his buttock region.

[7]A pseudonym.

15You began massaging the back of the knee upwards towards the glutes using both hands. Your fingers went up under Mr Collins’ underwear. You grazed his testicles and penis with your fingers. Mr Collins tensed up and you said ‘sorry’. He thought it was an accident. You continued massaging the right hamstring going upwards and touching his penis and testicles and saying ‘sorry’.[8]

[8]Uncharged conduct.

16You did the same thing on the left side going underneath Mr Collins’ underwear and grazing his testicles and penis. You continued apologising for it and Mr Collins said, ‘no worries, it’s all good it’s fine’. He had assumed it was accidental.[9]

[9]Uncharged conduct.

17You asked Mr Collins if you wanted you to massage his glutes. He agreed. At your request, he took off his underwear but kept the towel draped over him.

18Mr Collins rolled onto his stomach. His legs were spread apart, and he felt that his testicles and penis were exposed. You began massaging his right glute muscle using both hands. With one of your hands, you rubbed the glute from the bum crease to the hip and with the other, you repeatedly rubbed the inner thigh in a circular motion grabbing Mr Collins’ penis on the way through (charge 3 - sexual assault).

19Mr Collins felt your hand around his penis massaging it. He flinched the first time, but you said nothing. You then switched to the left glute. Again, you used one of your hands to massage Mr Collins’ inner thigh and penis (charge 3 continuing).

20Mr Collins felt your hand on his left glute and felt a tingly feeling on the tip of his penis like the tip of a tongue. After a few seconds, he looked up over his shoulder and saw your head bob up from his buttock region. Your face mask was pulled down below your chin. You had licked his penis or used your tongue or mouth to make contact with it (charge 4 - sexual assault).

21You apologised to Mr Collins, saying ‘sorry… I read the situation wrong’. He replied, ‘no worries, it’s all good’ and put his head down. You continued to rub Mr Collins’ left glute and inner thigh, but without touching his penis. About 30 seconds later, Mr Collins felt your right hand above his left knee and your left hand on his left hip. You pushed him up on a 45-degree angle on his right side. He looked down and saw your face about five centimetres away from his penis.[10] He said ‘woah, woah, woah’. You stopped trying to roll Mr Collins over and said ‘sorry’. He replied ‘no worries’. You then left the booth.

[10]Uncharged conduct.

22Mr Collins put on his underwear. You returned with a bowl of hot stones and offered to place hot stones on his back, to which he agreed. Mr Collins lay back down on his stomach, and you ran hot stones over his back for a minute. You then asked him to sit up. You came up behind him and stretched out his shoulders and said ‘sorry about earlier, I could not control myself’.

23The massage ended and you left the booth. Mr Collins got dressed. He paid for the massage with a voucher and left. Mr Collins phoned his wife and told her what had happened. He met his wife and both of them returned to the clinic and confronted you. Later, they attended the police station and the incident was reported.

24DNA taken from the foreskin and shaft of Mr Grasso’s penis showed a mixed DNA profile with two contributors. This profile was explained as you being 100 billion times more likely to be a contributor.

25DNA taken from the scrotum of Mr Collins showed a mixed profile with three contributors. This profile was explained as you being 100 billion times more likely to be a contributor.

Arrest and interview

26You were arrested at the clinic on 15 March 2022. A record of interview was conducted with the assistance of an Indonesian interpreter. You admitted that you gave Mr Collins a massage on 12 March 2022 but denied any wrongdoing. You denied touching Mr Collins’ penis unless it was accidental. You denied licking Mr Collins’ penis.

27In respect of the offending relating to Mr Grasso, you agreed that you were working on 10 March 2022 but did not recall giving him a massage and denied the offending.

Impact of offending

28While there are no victim impact statements, your two victims were shocked at your conduct and no doubt would have been distressed. That is made by plain by their immediate complaints to family and to the police.

Personal circumstances

29You were 27 years of age at the time of the offending. You are now 30. You were born in Tebet, Jakarta and have one older sister. You grew up with your mother and sister in a religious Muslim family. Unfortunately, your father passed away in a construction accident some two weeks following your birth.

30You completed high school and describe yourself as a good student. You commenced university, studying Japanese but were unable to complete your degree as a result of leaving Jakarta.

31I was told that at the age of 12, you were molested by an uncle.[11] You disclosed this to your family and were prevented from going out with friends.

[11]See [17] of Exhibit 1.

32When you were 17 years old, your then boyfriend disclosed your sexuality to your mother. Your mother fell ill, and you were blamed by the extended family for her poor health. You were told to leave and not return. You fled to Bali, where you had no family or community support. You began working washing dishes to support yourself.

33You were then trained by a friend in massage. You worked at a spa and eventually started your own massage business.

34At the age of 18, you were the victim of a hit and run incident in Jakarta. You were a passenger on a scooter when you were struck by a car travelling on the freeway. You suffered injuries which included multiple fractures. You were in a coma for seven weeks and remained in hospital for four months. I was told that you required surgery and extensive physiotherapy to recover. You still struggle with some pain in your back and ribs as a result of the accident.

35In September 2019, you met Mr Johnson who was on holiday in Bali. In late 2021, you immigrated to Australia on a partner visa and have lived with Mr Johnson ever since. In January 2023, you and Mr Johnson got married.

36Your mother is aware of your marriage but does not accept it.

37Since March 2022, you have been working in a service operations role in a supermarket. That employment ended following your remand in custody on 3 March 2024.

Gravity of the offending and sentencing purposes

38There is no doubt that the offences for which you fall to be sentenced are inherently serious.

39Customers attend massage clinics expecting a professional massage. Your two victims aged 27 and 25, sought a massage to assist them in alleviating their physical ailments. Having removed their clothes, they lay on the massage table in a vulnerable state. Your offending involved a gross breach of their trust in you.

40Having offended against the first victim on 10 March 2022, you did not learn, and went on to offend again against a second person only two days later.

41General deterrence and denunciation must be given emphasis in the sentencing exercise. Those who provide a massage service must understand that breaching professional boundaries by committing sexual offending will be met by terms of imprisonment. Given your relative youth and lack of a criminal history, I also bear in mind your rehabilitation.

Defence submissions

42I have had regard to the following material tendered on your plea:

(i)Submissions in support of sentence indication dated 27 February 2024.[12]

(ii)A letter from Dr Rajaguru dated 21 February 2024.[13]

(iii)Six references from four individuals, including two from your husband.[14]

(iv)Remand history.[15]

[12]Exhibit 1.

[13]Exhibit 2.

[14]Exhibit 3.

[15]Exhibit 4.

43Your counsel, Mr de Kretser, appropriately conceded that a term of imprisonment involving a non-parole period would follow. He invited the court to take into account in particular your pleas of guilty following the sentence indication, lack of prior criminal history, the prospect of deportation, the difficulties that you have faced in custody and delay. He also dealt with the objective gravity of the offending, acknowledging the significant breach of trust and the vulnerabilities of your victims. He pointed to a lack of certain aggravating factors.

Plea of guilty and remorse

44You are entitled to credit for your pleas of guilty. I accept that an effort was made to resolve the matter just prior to the commencement of the committal hearing. However, that offer did not acknowledge the penetrative act in relation to Mr Grasso. At the time you made the offer, while there was a charge of rape by compelling penetration, the fact of penetration occurring was not clear in Mr Grasso’s police statement. Mr Grasso later confirmed that there was actual penetration in a second statement. By pleading guilty, you have facilitated the course of justice and have taken responsibility for your actions. You have saved the community the time and expense of a trial. Both victims have been spared the distressing experience of having to give evidence again.

45I am prepared to accept that your late pleas of guilty along with expressions of contrition by you to your referees, demonstrate some remorse. 

Character

46You have no prior convictions in Australia or Indonesia. There are no subsequent or pending matters. You have enjoyed a solid work history commencing in Bali and continuing in Australia. I have had regard to the observations of the referees who speak highly of you.

Onerous conditions in custody

47At the sentence indication hearing and prior to your remand in custody, Mr de Kretser submitted that by virtue of your relative youthfulness, small stature, cultural background and sexual orientation, your time in custody would be particularly onerous.

48I remanded you in custody after you had accepted the indication and were arraigned on 3 March 2024. Mr de Kretser’s submission has proved to be right. I have had regard to the two recent references from Mr Johnson and Ms Murch.

49Mr Johnson states that you were immediately targeted by inmates because of your size, faith and sexuality. You have been bullied and physically assaulted. Your personal food items have been stolen from you on a frequent basis. Despite you being a strict Muslim, you have been threatened and prevented by other inmates of Islamic faith from offering prayers in the mosque due to your sexuality. You were particularly distressed as you were unable to attend the mosque and offer daily prayers during the holy month of Ramadan. Since 8 March 2024, you have been in a protection unit. On 3 April 2024, you were moved to a new protection unit which houses older inmates and things have improved.

50Your mother who remains in Indonesia, suffers from a rare autoimmune disease, and recently underwent surgery to have one of her kidney’s removed. The health of your mother and the inability of being able to visit her is also making your time in custody more difficult.

51You have been seeing a psychologist and have been prescribed anti-depressant medication.

52Despite the difficulties you have faced and the ongoing anxiety, you are utilising your time in custody productively. You work six days a week on a full-time basis preparing meals for the inmates. You attend the gym and participate in breathing and meditation classes. You have enrolled in courses, including an English as a second language course.

53Mr Johnson visits you every Saturday. Ms Murch also visits you. I was told that you have been able to have audio visual contact with your mother.

Deportation

54Mr de Kretser also relied upon the fact that your partner visa will be cancelled. I accept that the prospect of deportation from a country where you hoped for a happy and settled future with Mr Johnson and supportive friends will weigh more heavily upon you as you serve your sentence. This is particularly so in circumstances where the fact of your sexuality is known, and you hold genuine concerns as to your treatment by the Indonesian authorities given you have sexually offended against two male persons. While you had only arrived in Australia towards the end of 2021, you quickly adjusted to your new life. You and Mr Johnson got married in January 2023. You had been working throughout your time here until your remand in custody. I accept that the lost opportunity to remain in Australia is an additional punishment.

Delay

55While the delay in the finalisation of your matter is not significant, I accept that since your arrest on 15 March 2022, you have continued being productive and working full time for two years until your remand in custody. You have not re-offended and there are no matters outstanding. Although there is no psychological material before me, in light of your progress on bail, your lack of prior history, no substance use issues, your current support in Australia and the salutary impact of custody in onerous conditions, I am prepared to accept that your prospects of rehabilitation are good. I accept that the matter has been hanging over your head in circumstances of potential deportation, causing you anxiety. I note that Dr Rajaguru prescribed you with anti-anxiety medication.

Serious Sexual Offender Provisions

56Pursuant to s 6B of the Sentencing Act 1991, upon conviction and being sentenced to a term of imprisonment on Charges 1 and 3, you fall to be sentenced as a serious sexual offender on Charge 4. Pursuant to s 6D of that Act, in determining the length of any sentence on Charge 4, I must regard community protection as the principal purpose for which the sentence is imposed.[16]

[16]Plainly, a disproportionate sentence is not necessary to achieve the protection of the community.

57Pursuant to s 6E of the Sentencing Act, there is a presumption of cumulation with regards to sentencing for serious sexual offender offences. However, I must bear in mind the overarching principle of totality. I must ensure that the totality principal is applied in a manner that does not undermine the legislative policy inherent in s 6E of the Sentencing Act. 

58In relation to Charge 4, pursuant to s 6F(1) of the Sentencing Act, you are sentenced as a serious sexual offender and I order that this fact be entered into the records of the Court.

Sentencing

59Having had regard to all relevant matters and circumstances, Mr Syahab, you are convicted and sentenced as follows.

·        On Charge 1, sexual assault, you are sentenced to 9 months’ imprisonment.

·        On Charge 2, rape by compelling sexual penetration, you are sentenced to 3 years’ imprisonment.

·        On Charge 3, sexual assault, you are sentenced to 9 months’ imprisonment.

·        On Charge 4, sexual assault, you are sentenced to 18 months’ imprisonment.

60The sentence on Charge 2 will be the base sentence. I direct that 2 months of the sentences on Charges 1 and 3, and 6 months of the sentence on Charge 4 be served cumulatively upon each other and the base sentence on Charge 2.

61This makes a total effective sentence of 3 years and 10 months’ imprisonment. 

62I direct that you serve a non-parole period of 2 years and 2 months’ imprisonment.

Pre-sentence detention

63Pursuant to s 18 of the Sentencing Act, the period of 107 days of pre-sentence detention, not including today’s date, is hereby declared as having already been served in respect of this sentence, and I order that such declaration and its details be entered in the Court’s records.

Section 6AAA declaration

64Pursuant to s 6AAA of the Sentencing Act, I indicate that had you pleaded not guilty and been convicted of these four charges, you would have been sentenced to a term of 4 years and 10 months’ imprisonment with a non-parole period of 3 years and 3 months.