R v Bao

[2024] NSWDC 200

District Court

New South Wales

Medium Neutral Citation:

R v Bao [2024] NSWDC 200

Hearing dates:

12 September 2022 (Arraignment)
5 September 2023 – 14 September 2023 (Trial)
5 April 2024 (Sentence Hearing)
22 May 2024 (Remarks)

Date of orders:

22 May 2024

Decision date:

22 May 2024

Jurisdiction:

Criminal

Before:

Wilson SC DCJ

Decision:

Intensive Correction Order – 3 years with conditions

Catchwords:

Victim sexually assaulted by masseuse – sentence after trial – breach of trust – vulnerability

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Public Health Act 2010

Cases Cited:

Betts v R [2015] NSWCCA 39

Butters v R [2010] NSWCCA 1

Doolan v R [2006] NSWCCA 29

Jung v R [2017] NSWCCA 24

Kearsley v R [2017] NSWCCA 28

Luque v R [2017] NSWCCA 226

Mol v R [2017] NSWCCA 76

Munro v R [2006] NSWCCA 350

Panda v State of Western Australia [2017] WASCA 5

R v Arvind (unrep, 8/3/96, NSWCCA)

R v Daetz [2003] NSWCCA 216

R v Edwards (1996) 90 A Crim R 510

R v Harrison [2001] NSWCCA 79

R v Hooper [2004] NSWCCA 10

R v Johnson [2005] NSWCCA 186

R v McLean (unreported, CCA, 31 March 1989)

R v Stanbouli [2003] NSWCCA 355

R v Tadrosse (2006) 65 NSWLR 740

R v Wickham [2004] NSWCCA 193

R v Wilhelm [2010] NSWSC 378

Reeves v R [2013] NSWCCA 3

Reeves v The Queen (2013) 88 ALJR 215

Silvano v R [2008] NSWCCA 118

Stanley v DPP [2023] HCA 3

Suleman v R [2009] NSWCCA 70

Sumpton v R [2016] NSWCCA 162

Woodgate v R [2009] NSWCCA 137

Zheng v R [2023] NSWCCA 64

Texts Cited:

Criminal Sentencing Bench Book

Category:

Sentence

Parties:

Rex (Crown)
Dongyong Bao (Offender)

Representation:

Counsel:
Ms Kayt Hogan (Crown)
Mr Mark Dennis SC (Offender)
Solicitors:
Ms Abreha Kidane (Crown)
Mr Lucas Velvic (Crown)
Mr Jeff Chan (Offender)
Mr Daniel Petrushnko (Offender)

File Number(s):

2021/00053729

Publication restriction:

Non-publication order re identity of victim and any matter which may lead directly or indirectly to the identification of the victim, including the names of relatives.
Suppression order in respect of name of victim whose name will be anonymised.

JUDGMENT

CHARGES FOR SENTENCE

1. Dongyong Bao was born in November 1973 and is presently 50 years of age. He appears today to be sentenced in relation to four counts of sexually touch another person without consent in breach of s 61KC(a) of the Crimes Act 1900. The offence provision carries a maximum penalty of 5 years imprisonment. It does not carry a standard non-parole period.

2. Maximum penalties are guideposts for sentencing judges, representing the seriousness in which the community, through Parliament, views offending of this type.

DATE OF OFFENDING

3. The offending took place on 24 February 2021. The offender was subsequently arrested on 25 February 2021. He was granted bail on 26 February 2021, and has spent a total of 2 days in custody referable to these offences. On 12 September 2022 in the District Court at Sydney, the offender was arraigned and entered pleas of not guilty to four counts of sexually touch another person without consent, and two counts of sexual intercourse without consent. The jury trial commenced before me on 5 September 2023. On 14 September 2023, the jury returned unanimous verdicts in respect of all charges. Guilty verdicts were returned for all four counts of sexually touch another person without consent, being sequences 1, 2, 3 and 4 of the indictment, and not guilty verdicts were returned for both counts of sexual intercourse without consent, being sequences 5 and 6 of the indictment.

AGREED FACTS

4. Whilst it is the duty of the Trial Judge to find facts after trial, the parties have agreed upon facts for sentence. I have carefully examined the agreed facts and find them to be consistent with the evidence and the jury’s verdicts.

Background

5. The agreed facts are contained within exhibit A. The victim is ED and will be referred to as the victim. At the time of the offending, the victim was 26 years old, and the offender was 48 years old. The offender worked as a remedial massage therapist at Magic Hands Mona Vale. He was the owner of the business, and he also owned another massage parlour in Forster. For Christmas in 2020, the victim was given a gift voucher from her boyfriend’s mother for an aromatherapy massage at Magic Hands, to the value of $95. The victim had never had a massage before. On 23 February 2021, the victim telephoned Magic Hands and made a booking for the following day at 2pm.

Offending

6. At 1.50pm on 24 February 2021, the victim arrived and parked her car in the Woolworths car park next door to Magic Hands and walked into the massage parlour. Upon her arrival, the victim was directed to a small room directly behind reception. The victim was instructed to take off her clothing, aside from her underwear. The victim followed the instructions given to her, placing her clothes in a basket next to the massage table. The victim lay face down on the massage table. A short time later, the offender entered the room. The offender asked the victim what oil she would like for the massage. The victim requested coconut oil. The offender told the victim to relax and that he would be back. The offender left the room and returned with the oil. The victim lay face down on the table with her face in the table hole. The victim expected to be covered with a towel, but she was not.

7. The following facts relate to count 1. The offender started massaging the victim’s back and shoulders for about 5-10 minutes. As the offender was massaging her back, he stood with his legs placed either side of her head. The offender was leaning over the victim’s head, and the victim could feel his genitals on the back of her head. The victim began to feel really uncomfortable.

8. The following facts relate to count 2. Around 5-10 minutes later, the offender stopped and walked down the other end of the massage table. The offender used both hands to remove the victim’s underwear. The offender placed them in the basket with the rest of the victim’s clothes. The offender started to massage the victim’s buttocks and inner thighs. The victim said it was “[r]eally high up on my inner thighs, like very close to my vagina.” This continued for approximately 15 minutes. The offender told the victim to roll onto her back. The victim hesitated because she did not want to be fully nude in front of the offender and she was waiting for him to cover her with a towel. The offender turned her over by grabbing her right shoulder and turning it over to the table so that she was lying on her back.

9. The following facts relate to count 3. The offender used oil on the victim’s breasts and abdomen and massaged her breasts and her abdomen for approximately 5-10 minutes. The offender was sweating droplets of sweat onto her body as he was doing this. The victim kept her eyes open whilst the offender was massaging her chest and abdomen. She noticed that the offender was staring at her vagina. The offender moved down to the victim’s thighs again, focusing on her inner thighs. The offender continued to try and spread her legs. The offender lifted one of the victim’s legs up at a time and placed it on his shoulder in order to massage her thigh. He lifted her right leg first and then her left leg. The offender spent about 5-10 minutes on each leg. The offender put both of the victim’s legs down and asked the victim to roll onto her side. The victim rolled onto her left side. The offender massaged her buttocks and put one hand between her thigh and used the other hand to massage. The victim was told to swap sides and he did that same thing again on the other side.

10. The following facts relate to count 4. The offender told the victim to sit on the edge of the massage table. The offender pressed his chest into her back and used one hand to hold her throat and the other to massage her breasts. The offender had a tight grip on her throat and the victim flinched at one point. When the victim flinched, the offender loosened his grip. The massage ultimately came to an end when the victim sat up abruptly and said, “thank you” in an attempt to say, “this is done”. The offender gave the victim a towel and some tissues. The victim got dressed and walked out of the room. The offender was waiting in the reception room. The offender asked the victim if she was feeling better. The victim did not respond. The victim used the gift card to pay for the massage. The offender said, “come back soon” and gave the victim his business card which read “Ken Bao”. The victim left the parlour.

Complaint

11. The victim immediately called her boyfriend, BS, at 3.04pm and made a complaint. After she spoke with BS, she called her friend CG. The victim also made a complaint to CG. A short time later, BS attended Magic Hands and spoke to the offender. BS said he told the offender he was going to the police, and when he said that the offender attempted to offer him money. BS then went to a nearby chemist. The victim called while he was in the chemist and BS told her what happened. As a result of the conversation, BS returned to Magic Hands to ask for a refund for the voucher. The offender gave him $100 in two $50 notes. The offender tried to give him more $50 notes, but BS declined. The $100 was eventually provided to the police.

12. At 3.41pm, the victim called BS’ mother, LS, also known as LB, and made a complaint. BS then attended Mona Vale Police Station to ask for advice. The victim did not go with him because she was hysterical. At 4.28pm, the victim spoke to BS’ stepsister, JM, who was a police officer. JM encouraged the victim to get a Sexual Assault Investigation Kit test. After this conversation, the victim called her brother, OD, and made another complaint about what had occurred. At about 6.00pm, the victim attended the Royal North Shore Hospital. While she was at the hospital, she called her mother and told her what happened. The victim also spoke to her sister, JC.

Arrest and ERISP

13. At 1am on 25 February 2021, police attended the offender’s residence. Detective Senior Constable Leigh Mason and the offender had the following conversation (exhibit A):

“Mason:    Someone has reported a matter to us. You are under arrest for a sexual assault that occurred today [sic] upon (the victim).

Offender:   Yes, yes, yes. I want to tell you what happened,

Mason:   You do not have to say or do anything, but whatever you say or do will be recorded and used in evidence. Do you understand that?

Offender:   Yes.

Mason:   Do you know what I am talking about?

Offender:   I do, but I don’t want to talk in the house. I need to explain.”

14. The offender was arrested and conveyed to Riverstone Police Station where he was offered the opportunity to participate in an electronically recorded interview. In the interview, the offender said (exhibit A):

“a.   that he had a diploma in remedial massage;

b.   the victim laid down on the table but didn’t put the towel over herself and he didn’t want to put it on her because of COVID-19;

c.   as he was using coconut oil, he realised that it might make her underwear dirty;

d.   he started to pull her underwear down and the victim said “you can take it off”;

e.   he took off her underwear and “all these things are very peaceful”;

f.   he asked her to turn over and she still didn’t use the towel to cover her;

g.   he didn’t think it was proper that she didn’t have a towel on so he used a towel to cover her tummy;

h.   that he had covered her breasts, but the victim pulled the towel down to expose her breasts;

i.   he asked her to sit up because she was too relaxed;

j.   when she left, he gave her a business card and told her she could call and make another booking if she needed another one;

k.   when the victim’s boyfriend came, he gave him a refund because he realised he did something wrong and that he should not have pulled down her underwear;

l.   that he massaged her breasts because there was too much oil but he didn’t use his palm;

m.   that he didn’t massage her breasts but touched them accidentally;

n.   he didn’t touch the victim’s vagina.”

SENTENCING ASSESSMENT REPORT

Family and Social Circumstances

15. The offender was assessed by Community Corrections for the purpose of the Sentencing Assessment Report on 14 November 2023. The offender’s relationship with his wife and children is positive, and discussions with the offender’s wife suggest that his immediate family continue to support him.

Education and Employment

16. The offender has been self-employed as a handyman since 2021 and is sub-contracting for a friend providing mainly residential property maintenance and handyman-type services.

Attitudes

17. With respect to his attitude towards the offending, the SAR indicates that he did not accept responsibility for his offending behaviour and described his offences as an accident and offered limited insight into his behaviour. He justified his offences stating he was under “extreme stress”, which caused a lapse in concentration which led to the offence occurring. The offender appeared to minimise his offending behaviour, blaming his Asperger’s Syndrome and ADHD for his diminished understanding of his actions.

Sex Offending

18. The offender has no criminal history or previously recorded incidents of anti-social behaviour, this being his first offence.

19. The SAR indicates that the offender was opportunistic, as the victim was not known to the offender and was a customer receiving a massage. A STATIC-99 was administered on 14 November 2023 and the offender was found to be in the “average” range of risk to commit a further sex offence. It was recommended in the SAR that should the offender receive a period of supervision, that he be referred to the Corrective Services NSW (CSNSW) psychologist to determine an appropriate treatment pathway.

Mental Health

20. The offender expressed feelings of depression and anxiety around the time of the offences but had not been diagnosed with any mental health issues prior to the offending. He advised that he has engaged with a psychologist for treatment. Community Corrections contacted the offender’s psychologist who disclosed he was being treated for adjustment disorder, anxiety, depressed mood, and major depressive disorder, and had attended 8 sessions at the time the SAR was written. His psychiatrist confirmed diagnoses of Asperger’s syndrome and ADHD. “He went on to apportion blame for his offending on these diagnoses and explained that they contributed to his lack of insight into his behaviour.”

Insight into Impact of Offending

21. The offender had no insight into the impact of his offending on the victim and he explained he was “not sure” as to the extent of the impact of his offences on the victim as she did not exhibit any signs of distress at the time.

Willingness and Ability to Undertake Intervention and Community Service Work

22. The offender expressed a willingness and ability to undertake intervention to address his offending behaviour and ongoing mental health issues. He also expressed a willingness and ability to undertake community service work, so long as it aligns with his work schedule.

Response to Supervision

23. The offender has not been subject to supervision by Community Corrections previously, and his engagement during the assessment process was described as satisfactory.

Risk of Reoffending

24. Community Corrections assessed the offender at a T2/Medium risk of reoffending according to the Level of Service Inventory – Revised (LSI-R).

25. If the Court were to impose a supervised order, the offender will be required to have contact with Community Corrections every fortnight. The supervision plan is to refer the offender to the CSNSW psychologist for further assessment and to determine a suitable treatment pathway and participate in behaviour change discussions to address his offending behaviour. Consultation and communication between Community Corrections and his treating psychologist is recommended to monitor engagement and responsiveness, and regular contact with the police will be necessary to canvas for any adverse contact or complaints given the nature of his employment.

26. It is recommended that the offender be ordered to engage with a psychologist to treat his sex offending. He has been assessed as suitable to undertake community service work. Community Corrections can provide the equivalent of up to 21 hours of work per month.

27. At the Sentence Hearing, I ordered that Community Corrections provide a further SAR assessing the suitability of the offender for a home detention condition. That report was subsequently prepared and is dated 17 May 2024. It confirms the offender’s accommodation as suitable for home detention. It confirms that the offender lives with his wife and young children and outlines that Community Corrections has not identified any risks associated with a home detention condition. Consistent with the previous SAR, it indicates that the offender will be supervised at the T2/Medium supervision level and will be required to have contact with a Community Corrections Officer every 2 weeks. It confirms the supervision plan on the previous SAR will be implemented, and that the offender is suitable for home detention.

Remorse, Rehabilitation and Risk of Reoffending

28. Prior to the sentence hearing on 5 April 2024, the offender continued to deny the offences, and showed no remorse, insight, or contrition.

29. At the sentence hearing on 5 April 2024, the offender gave oral evidence, with the assistance of a Chinese-Mandarin interpreter. During his evidence, he acknowledged his guilt for the first time since the offending (Tcpt, 5 April 2024, p 11(17-39)):

“Q. When you were interviewed by the police you denied that you’d done these things?

A. WITNESS: Yes I deny.

Q. When you came to court you pleaded not guilty and there was a trial because you continued to deny these things?

A. WITNESS: I denied.

Q. When you spoke to the people who wrote the sentencing assessment report you also denied these things?

A. WITNESS: I denied, I did.

Q. Do you now admit these things?

A. WITNESS: Yes.

Q. Do you accept responsibility for your behaviour?

A. WITNESS: I accept.

Q. Are you sorry for what you did?

A. WITNESS: I feel very sorry.

Q. I’m sorry?

A. WITNESS: I feel sorry.”

30. The offender offered an explanation for denying his guilt (Tcpt, 5 April 2024, p 11(41) – p 12(7)):

“Q. Why have you spent so long not telling the truth to the police, not telling the truth by pleading not guilty, not telling the truth to the people who wrote the sentence assessment report. Why did you not tell the truth from the start?

A. WITNESS: Because I was scared before.

Q. You were scared?

A. WITNESS: Scared.

Q. What were you scared of?

A. WITNESS: Because my wife she is really good to me. I didn’t want my wife to know that I did all these things so my family could have be collapsed.”

31. The offender also showed insight into the impact of his offending for the first time (Tcpt, 5 April 2024, p 12(25-38)):

“Q. Are you only saying these things today to avoid going to gaol?

A. WITNESS: Actually, when I heard there’s a victim impact statement, I feel she really got impacted. I didn’t want anyone because of me, the normal life’s affected so I feel sorry now.

Q. Are you saying that before hearing that you didn’t realise that sexually touching a person without their consent would traumatise them?

A. WITNESS: I actually enter, when the story happened, she didn’t appear uncomfortable, that’s made a mistake, I thought it not a very bad impact but now I heard her voice, I realised it’s a really bad impact.

Q. But you still seem to be saying that that’s the only reason that your actions were bad?

A. WITNESS: I admit things is not good, not good."

32. The offender was an impressive witness. He demonstrated remorse and insight into the impact of his offending. He indicated that he would tell his wife of his offending behaviour following the sentence hearing. An Affidavit of his wife dated 16 April 2024, to which I will later make reference, confirms that his wife is now aware of his guilt in respect of the offending.

STATUTORY AGGRAVATING FACTORS

33. Section 21A(2) of the Crimes (Sentencing Procedure) Act 1999, hereinafter CSP Act, sets out the aggravating factors to be taken into account in determining the appropriate sentence for an offence.

34. The Crown submitted that the victim was vulnerable and the offender abused a position of trust. It was noted that the victim had attended for a massage and was only wearing underwear during sequence 1 of the offending, and thereafter by virtue of the offender removing her underwear, was nude and not covered with a towel for sequences 2, 3 and 4. It was conceded on behalf of the offender that the offender abused a position of trust in relation to the victim as he was engaged to provide massage services to the victim.

35. The following has been extracted from the Criminal Sentencing Bench Book (CSBB) at [11-160]:

“It is clear both from the language of s 21A(2) and the decided cases that the section was not intended to extend the concept of breach of trust beyond the common law as it was understood at the time that the section was created: Suleman v R [2009] NSWCCA 70 at [26], approving R v Wickham [2004] NSWCCA 193 and R v Johnson [2005] NSWCCA 186. See also Mol v R [2017] NSWCCA 76 at [107]. For a relationship of trust to exist, there must have been a special relationship between the victim and offender at the time of the offending “which transcends the usual duty of care arising between persons in the community in their everyday contact or their business and social dealings”: Suleman v R at [22]. Examples of such special relationships are parent and child, doctor and patient, priest and penitent and teacher and student: at [23]–[24]. In R v Stanbouli [2003] NSWCCA 355, Hulme J, with whom Spigelman CJ agreed, elaborated on the concept at [34]:

The cases where, traditionally, breach of trust has been regarded as exacerbating criminality are where it is the victim of the offence who has imposed that trust — an employer defrauded by his employee, a solicitor who appropriates trust funds to his own use — or where the criminality involves a breach of that which the offender was engaged or undertook to do, eg a teacher or baby-sitter who indecently deals with the subject of his or her charge. Another example is afforded by the case of R v McLean (unreported, CCA, 31 March 1989) where a customs officer employed in the investigations section of the department had conspired to import heroin and cannabis. The offence there was in direct contravention of what the offender had been employed to do.

A breach of trust is heightened substantially where a registered health practitioner commits offences of indecent assault against his patients in the course of treatment: Jung v R [2017] NSWCCA 24 at [60]; and, see Kearsley v R [2017] NSWCCA 28 at [15] where the offence was committed against a person the offender mentored. Additional considerations apply when a registered health professional commits sexual offences against patients: general and personal deterrence are important elements of the sentence: Jung v R at [63]; R v Arvind (unrep, 8/3/96, NSWCCA); see also Panda v State of Western Australia [2017] WASCA 5 at [126]. Nothing said by the High Court in Reeves v The Queen (2013) 88 ALJR 215, which overturned Reeves v R [2013] NSWCCA 3 at [205] where the principles in R v Arvind were applied, affects the application of the principles in R v Arvind to this case: Jung v R at [64].”

36. The offender had been engaged to provide an aromatherapy massage to the victim, and in the context of his engagement abused the victim’s trust. At the Sentence Hearing, the Crown submitted, and it was accepted by Counsel for the offender, that the abuse of trust rises to an aggravating level. I therefore find abuse of a position of trust an aggravating factor pursuant to s 21A(2)(k) of the CSP Act.

37. With respect to vulnerability of the victim, the following has been extracted from the CSBB at [11-170]:

“Section 21A(2)(l) provides that it is an aggravating feature of an offence if:

the victim was vulnerable, for example, because the victim was very young or very old or had a disability, because of the geographical isolation of the victim or because of the victim’s occupation (such as a taxi driver, bus driver or other public transport worker, bank teller or service station attendant).

Section 21A(2)(l) is concerned with the vulnerability of a particular class of victim who need to be especially protected because they are vulnerable to criminal offences: R v Tadrosse (2006) 65 NSWLR 740 at [24]–[26]. It is the fact of a victim’s vulnerability which aggravates the offence: Sumpton v R [2016] NSWCCA 162 at [147]. In R v Tadrosse, the court held that the judge erred in applying the section to fraud victims on the basis that persons generally in the community would be vulnerable to a proficient fraudster armed with forged documents. The provision is concerned with the weakness of a particular class of victim, not the threat posed by a class of offender: R v Tadrosse at [26].

The court has subsequently reiterated the need for the victim to be part of a certain class of persons who need to be especially protected: Doolan v R [2006] NSWCCA 29 at [25]–[26]; Betts v R [2015] NSWCCA 39 at [29]. The fact that a victim is unarmed and unable to protect himself is not the sort of vulnerability that s 21A(2)(l) is concerned with: at [28]. Where a victim is not armed in a like manner to the assailant, this does not ordinarily mean that the victim is vulnerable: Morris v R [2007] NSWCCA 127 at [15].”

38. I note that the victim was vulnerable by reason of the fact that she was only wearing underwear at the beginning of the massage and was rendered naked by virtue of the offender’s conduct. She was also lying on the massage table with the offender standing over her. I find the vulnerability of the victim to be an aggravating factor pursuant to s 21A(2)(l) of the CSP Act.

STATUTORY MITIGATING FACTORS

39. Section 21A(3) of the CSP Act sets out the mitigating factors to be taken into account in determining the appropriate sentence for an offence.

40. It was submitted on behalf of the offender that the offending behaviour was not part of a planned or organised criminal activity, as the victim arrived only shortly before the commencement of the massage and had not previously attended that business, and that the offending behaviour was spontaneous in nature. I accept that submission and make a finding pursuant to s 21A(3)(b) of the CSP Act in favour of the offender.

41. I note the offender does not have any record of previous convictions which entitles him to some leniency. I therefore accept this as a mitigating factor pursuant to s 21A(3)(e) of the CSP Act.

42. The offender was a person of good character prior to the offending pursuant to s 21A(3)(f) of the CSP Act. I do not give that much weight in the sentencing exercise as it was by reason of his good character that he was able to engage in the business of performing massages on members of the community.

43. It was submitted on behalf of the offender that the offender’s self-reporting to the Health Care Complaints Commission (HCCC) was relevant in assessing the risk of reoffending. It was submitted that the offending behaviour was opportunistic in nature, and by way of a Permanent Prohibition Order banning him from providing massage services, the offender will not find himself in the circumstances again. I find this a mitigating factor pursuant to s 21A(3)(g) of the CSP Act, that is that the offender is unlikely to reoffend. I make that finding notwithstanding the conclusion reached in the Sentencing Assessment Report.

44. I also find that, by reason of his recent insight into his offending and acceptance of responsibility, together with engagement in counselling, that he has good prospects of rehabilitation under s 21A(3)(h) of the CSP Act.

SUBJECTIVE CASE

45. Exhibit 1 contains a psychologist report by Mr Sam Borenstein, a letter by treating psychologist Ms Jianqiu Xu, a letter by treating psychiatrist Dr Zhuang (Zan) Miao, a letter from the HCCC, and four reference letters from the offender’s business partner, wife, brother, and friend respectively.

Report of Psychologist Mr Sam Borenstein

46. Mr Borenstein interviewed and assessed the offender by AVL on 28 September 2023. The offender had been working as a masseuse for 12 years and was the part-owner of Magic Hands at Mona Vale. Neither he nor his business partner offered services other than massages. He was working six days a week, between eight and nine hours per day. The Mona Vale business was 50 kilometres from his residence, and his commute was 1.5-2 hours each day. At the time of the offending, he was “always stressed. The work is very stressful.” He had difficulties with communication and suffered with sleep disturbance in the form of middle insomnia. In respect of communication difficulties, he said “I always had that problem at work, and even at home with my wife. I think my way, and my wife thinks different. I was very stressful, I had back to back customers.” He described rigidity and lacked flexibility in the way he approached people and work. He said “when I’m cooking at home, I do things my way, and no-one can change my mind. My wife told me I have problems.”

47. Following his arrest, the offender was referred to Dr Zhuang (Zan) Miao, psychiatrist at Ramsay Clinic Northside in St Leonards. The report details that his wife thought he had symptoms of ADHD and Autism Spectrum Disorder (ASD). He was prescribed Ritalin for his ADHD, and Lexapro and Mirtazapine for anxiety and depression and sleep disturbance. The offender disclosed that he had been treated by psychologist Ms Jianqiu Xu, who opined that the offender suffers with Adjustment Disorder with Anxiety and Depressed Mood, and a Major Depressive Disorder, Recurrent, Severe without Psychotic Features. Ms Xu opined that the symptoms of anxiety and depression are a result of his current legal proceedings. At the time of the report, the offender remained in ongoing treatment with his psychiatrist Dr Miao and his psychologist Ms Xu.

48. The report details that since his arrest, the offender works as a handyman five days per week. He no longer consumes alcohol since being advised by his psychiatrist not to while taking his prescription medication, and that prior to being prescribed this medication, was consuming no more than two beers per day. He confirmed that he does not take any illicit substances, smoke tobacco or gamble. He was taking his prescribed medications and felt their benefits. He confirmed symptoms of ADHD, such as constant fidgeting and a propensity to be impulsive, and symptoms of ASD such as inappropriate social interaction and difficulty communicating. He described his marriage as stable, with occasional arguments regarding his difficulties with communication. Mr Borenstein, with the permission of the offender, spoke with the offender’s wife who said “[h]e has difficulty managing stress, and sometimes his emotions explode and then quickly disappears, he’s not like other people. It’s not normal. He’s always been that way.” She also confirmed that the offender is sensitive to light. When asked about sexual relating with his wife, the offender replied “not much. I work long days and 100 kilometres round trip to work.” The offender said he struggled with low libido for many years.

49. The offender was born in China and has a younger brother by four years who is married with three sons. The offender is married and has two sons aged 17 and 6. The offender’s father is 75, he worked for the Chinese government and is now retired. The offender’s mother is 74, she worked as an accountant and is also now retired. The offender’s wife is 46 and works in home duties. With respect to his childhood, the offender says he did not have much communication with his father as he was always working and was closer to his mother. There is no history of trauma, abuse or domestic violence, and no history of sexual abuse. The offender described his childhood health as satisfactory, and he got on well enough with his brother, which continues to be the case. He completed primary and high school education in China and completed a Bachelor of Commerce at Beijing University. He struggled to make friends throughout primary, high school and university, which Mr Borenstein says is consistent with the diagnosis of ASD. He said he was never diagnosed with any mental health issues prior to consulting his current treating psychiatrist, Dr Miao.

50. The offender demanded routine and structure during childhood and would spend time by himself working on individual projects. He had difficulty maintaining attention in class and focused on projects of interest such as mathematics, which Mr Borenstein says is consistent with the combined diagnoses of ASD and ADHD. After university, the offender worked in marketing for six years in China. He met his wife in China, and they were married before coming to Australia at the end of 2002. He learned English in China, arriving on a student visa, and completed a course of Information Systems through the Faculty of Commerce at Macquarie University. He worked in shoe repairs for five years before becoming a masseuse. He learned how to massage in China and was provided further training by his partner. He described a normal and uneventful psychosexual development. He was rarely exposed to pornography, more accessible since coming to Australia, and he denied using it on a regular basis. He denies sexual paraphilias such as paedophilia, voyeurism, frotteurism, or an interest in sadomasochism.

51. Mr Borenstein observed that the offender appeared anxious and agitated during the assessment, was cooperative and his English was deemed sufficient to undertake an assessment. His mood was depressed and affect reactive. He responded to questions promptly without obvious attempt at misrepresentation or impression management, and showed no indication of serious psychiatric disorder, such as psychosis, or perceptual disturbance, such as delusions. He also observed the offender to present as cognitively intact.

52. Mr Borenstein states his assessment of the offender according to the Depression Anxiety Stress Scale (DASS 21) confirmed those results obtained by Ms Xu, in that the offender presents with extremely severe symptoms of depression and anxiety, and severe symptoms of stress. Mr Borenstein stated that the clinical history of the offender does not predict the offending behaviour, for which the offender continues to plead innocence. Mr Borenstein’s opinion was that the offender was well engaged in relevant psychiatric and psychological treatments. I note that in relation to the psychologist report by Mr Borenstein, the offender does not rely on the expert’s opinion as to the risk of reoffending.

Letter of Treating Psychologist Ms Jianqiu Xu

53. The letter of clinical psychologist Ms Jianqiu Xu of 24 September 2023 confirms that the offender was initially assessed on 27 July 2022 and engaged in eight treatment sessions from 3 August 2022 to 24 September 2023. I note a significant gap in the treatment sessions of approximately one year, between 7 September 2022 and 18 September 2023. Ms Xu noted a deterioration in his condition between the initial assessment on 27 July 2022 to 18 September 2023. According to the DASS 21 scale, the offender’s condition deteriorated from mild to extremely severe for depression, normal to extremely severe for anxiety, and moderate to severe for stress. Ms Xu stated his current symptoms of psychological distress and description of his current stressors are associated with a diagnosis of Adjustment Disorder with Anxiety and Depressed Mood, and a Major Depressive Disorder, Recurrent, Severe without Psychotic Features. Ms Xu formulated the opinion that:

“Over the past approximately two and a half years, during his involvement in legal proceedings, Mr Bao has faced a cumulative set of stressors. These stressors likely triggered anxiety-related symptoms and disrupted his usual mood stability, resulting in a stress-related Adjustment Disorder. It appears Mr. Bao lacked effective coping mechanisms to manage his increasing anxiety and mood instability. Consequently, my professional opinion is that Mr Bao developed a secondary Major Depressive Disorder, in which anxiety was a prominent feature.”

54. The proposed treatment plan by Ms Xu “adopts a comprehensive approach that combines Cognitive Therapy, Mindfulness Training and Problem-Solving Skills. The primary focus of the sessions is on developing enhanced coping strategies and effective emotion regulation techniques.” The recommendation by Ms Xu was that “Mr Bao continues with ongoing psychological intervention to better manage his symptoms of depression and anxiety. In my professional judgment, if Mr Bao participates in the recommended treatment sessions, there is a high likelihood of recovery over time.”

Letter of Treating Psychiatrist Dr Zhuang (Zan) Miao

55. The letter of Dr Zhuang (Zan) Miao of 28 September 2023 indicates that the offender has been under Dr Miao’s care since May 2021.

“Impression:

-    Adult ADHD

-    Alcohol use disorder

-    Traits of Asperger syndrome

-    Comorbid depressive and anxiety symptoms secondary to above conditions and psychosocial stressors.”

56. The letter also confirms a prescription of Ritalin 10mg orally twice daily, Lexapro 20mg orally in the morning, and Mirtazapine 15mg orally at night.

Mental Health Issues

57. The offender does not rely on any causal connection between his mental health issues and the offending behaviour. In MFI 2, counsel for the offender conceded that it is open to infer from the psychologist report and letters from his treating psychiatrist and psychologist, that the psychological difficulties the offender is experiencing are as a result of the legal proceedings. There is a dissonance between the offender’s use of alcohol as reported to Mr Borenstein and that reported to Dr Miao. I note the offender does not rely on any alcohol use issue in mitigation of penalty, not that it would operate in that way in any event. In the circumstances, I decline to find the mental health of the offender a factor in mitigation, however I have considered it in his subjective case.

58. I accept the submission by the Crown that stress suffered by the offender cannot in any way excuse the offending. The Crown objects to the apparent diagnoses by the offender’s wife in Mr Borenstein’s psychology report as there is no evidence of any qualification to make such diagnoses. It is unclear from Dr Miao’s letter how often he has treated the offender, limiting the statement in Mr Borenstein’s report that the offender was “well engaged in relevant treatments”.

Letter from HCCC

59. The letter from the HCCC of 29 September 2023 confirms the offender’s self-notification reporting of his convictions, and the HCCC’s referral of this matter to the Commission’s Investigation Branch.

60. At the sentence hearing on 5 April 2024, I ordered that the offender notify his consent to a Permanent Prohibition Rrder with the HCCC before today’s listing. I refer to a letter dated 17 April 2024 from the solicitor for the offender to the HCCC advising that the offender consents to the making of a Permanent Prohibition Order regarding his practice as a massage therapist or providing any health services, either in paid employment or voluntarily, to any member of the public.

Extra-Curial Punishment

61. It was submitted on behalf of the offender that the offender’s self-notification reporting to the HCCC constitutes extra-curial punishment, as any breach of the Permanent Prohibition Rrder attracts a maximum penalty of 550 penalty units or three years imprisonment, or both, pursuant to s 102(3) of the Public Health Act 2010. The offender also transferred his part of the Magic Hands massage business to his business partner without the payment of any consideration. Counsel for the offender conceded that a precise valuation of the massage business is difficult, however I accept that the goodwill of the business had at least some financial value, which the offender has permanently lost.

61. The following has been extracted from the Criminal Sentencing Bench Book (CSBB) at [10-520]:

“A court can take into account “extra-curial punishment”, that is, “loss or detriment imposed on an offender by persons other than the sentencing court, for the purpose of punishing the offender for his [or her] offence or at least by reason of the offender having committed the offence”: Silvano v R [2008] NSWCCA 118 at [29]. It is “punishment that is inflicted upon an offender otherwise than by a court of law”: R v Wilhelm [2010] NSWSC 378 per Howie J at [21]. The court in Silvano v R at [26]–[33] collected several authorities on the subject. The weight to be given to any extra-curial punishment will depend on all the circumstances of the case and in some cases, extra-judicial punishment attracts little or no weight: R v Daetz [2003] NSWCCA 216 at [62].”

63. In the circumstances, having considered the matter, I will give some limited weight to the extra-curial punishment of the offender in the sentencing exercise.

Reference Letters

64. A letter of the offender’s business partner, Runli Liang, dated 30 September 2023 confirms that Ms Liang worked alongside the offender for twelve years. It confirms that the offender has transferred the Magic Hands massage business to Ms Liang at no cost, and the offender has not worked or returned to the massage business since his arrest. Ms Liang receives an additional $600 per week as a result of the transfer.

65. The next reference letter is from the offender’s wife, Yujie Zhao, dated 4 October 2023. It states that she is aware of the convictions of four counts of sexual touching. She has been married to the offender for 21 years and they have a stable relationship. They have two sons aged 17 and 6. Both children are close with their father. Their youngest son has been diagnosed with hearing disabilities and requires ongoing specialist medical care. The offender’s parents rely on the offender to provide accommodation, food, and other necessities as they do not speak English. The offender’s wife works one day per week, and they rely on the income of the offender to pay their mortgage of $830 per fortnight as well as the offender’s parents’ mortgage of $780 per fortnight. The letter states that the offender and his wife started renting a two-bedroom residence when they moved to Australia until they purchased their home. Troublingly, in the letter the offender’s wife refers to the offending as, “the big complaint.” This suggests no acknowledgement of the offending. The offender’s wife says she will face financial hardship as well as pressure looking after their two children if the offender is sentenced to imprisonment. She says she has been diagnosed with diabetes and has been hospitalised twice for pneumonia and pancreatitis. I note there is no other evidence of those diagnoses or hospitalisations. At the sentence hearing, the offender gave evidence that only his brother and his friend were aware of the offending. I ordered that Community Corrections obtain on attending the house of the offender for the purpose of conducting a home detention suitability assessment confirmation from the offender’s wife that she has been informed of his offending.

66. I refer to the Affidavit of the offender’s wife, Yujie Zhao, of 16 April 2024. The Affidavit confirms that the offender informed her of his guilt in respect of the offending via telephone on the afternoon of 5 April 2024 after the Sentence Hearing. The Affidavit confirms that the offender and his wife spoke about his offending that night when he arrived home from Court, and that she is willing to continue their relationship as long as he is determined to work towards positive change.

67. The third reference letter is written by the offender’s younger brother, Qiuming Bao, dated 4 October 2023. It states that the offender’s parents live 3 minutes’ drive from the offender and “[t]hey rely on the children to provide accommodation, food and other necessity [sic] as they do not speak English”.

68. The fourth reference letter dated 4 October 2023 is written by a friend of the offender’s, Cheng Qian. Cheng met the offender at university in China in 1992 and they have been friends since. Cheng attended the offender’s trial. The offender has been working for Cheng in kitchen and bathroom renovating since he was charged in 2021. Cheng states that the offender does bathroom and kitchen demolitions, assembles furniture, and completes installation jobs independently. He can also plaster, waterproof and tile under instructions.

Hardship to Others

69. In respect of the sentencing consideration of hardship to others, I refer to the CSBB at [10-490]:

“In R v Edwards (1996) 90 A Crim R 510, Gleeson CJ said at 515:

There is nothing unusual about a situation in which the sentencing of an offender to a term of imprisonment would impose hardship upon some other person. Indeed, as senior counsel for the respondent acknowledged in argument, it may be taken that sending a person to prison will more often than not cause hardship, sometimes serious hardship, and sometimes extreme hardship, to another person. It requires no imagination to understand why this is so. Sentencing judges and magistrates are routinely obliged, in the course of their duties, to sentence offenders who may be breadwinners of families, carers, paid or unpaid, of the disabled, parents of children, protectors of persons who are weak or vulnerable, employers upon whom workers depend for their livelihood, and many others, in a variety of circumstances bound to result in hardship to third parties if such an offender is sentenced to a term of full-time imprisonment.”

70. Counsel for the offender conceded that the hardship to others does not rise to the level of exceptional circumstances. I note that the offender’s wife does not indicate the type of assistance she requires from the offender for her health conditions, and it is unclear when the two hospitalisations occurred. With respect to the offender’s parents, the Crown says the reference letter from the offender’s brother suggests that the offender’s parents rely on both of their children for support, not only the offender. In the circumstances, I decline to find that the hardship to others rises to the level of exceptional circumstances and therefore does not rise to the level of constituting a discrete basis for mitigation of penalty.

71. In respect of untested self-serving statements, the CSBB states at [1-490]:

“The fact that the rules of evidence are rarely invoked and that hearsay evidence is routinely admitted does not mean the court is not required to critically assess the weight of the evidence before it. The Court of Criminal Appeal has said repeatedly that while hearsay evidence of statements made by offenders to doctors, psychologists, psychiatrists and parole officers in reports is admissible on sentence, very considerable caution should be exercised in relying on such statements when the prisoner does not give any evidence and the matters are in dispute: R v Harrison [2001] NSWCCA 79 at [32]; R v Hooper [2004] NSWCCA 10 at [49]; Munro v R [2006] NSWCCA 350 at [17]–[19]; Woodgate v R [2009] NSWCCA 137 at [19]; Butters v R [2010] NSWCCA 1 at [18].”

72. Further, it states at the same reference:

“However, notwithstanding the caution that should be taken to untested self-serving statements by an offender to an expert witness, such as a psychiatrist, when there is evidence from the expert about the offender’s mental state, it may be wrong to take an unduly restrictive approach to such evidence, particularly when it may be supported by other evidence in the case: Luque v R [2017] NSWCCA 226 at [71]–[84].”

73. In the circumstances, I exercise very considerable caution in relying upon the untested self-serving statements of the offender.

OBJECTIVE SERIOUSNESS

74. I have had regard to the parties’ submissions in relation to objective seriousness. I note written submissions on behalf of the Crown and the offender are set out in respect of each sequence in MFI 1 and 2 respectively.

75. In respect of sequence 1, massaging the victim with his genitals pressed against her head, it was submitted on behalf of the Crown that the objective seriousness falls at the lower end of the range, but not at the lowest end. The offending lasted 5-10 minutes, it involved the genitals of the offender pressing against the victim’s head, though the offender was clothed. The victim was only wearing underwear but remained face down at this stage. It was submitted on behalf of the offender that the objective seriousness falls at the lower end. I find the objective seriousness falls at the low range.

76. In respect of sequence 2, removing the victim’s underwear, causing her to be naked, and rubbing her upper inner thighs and buttocks, it was submitted on behalf of the Crown and the offender that the objective seriousness falls below the mid-range. The offending lasted approximately 15 minutes, and by virtue of the fact the offender removed her underwear, she was fully nude. The offending involved skin on skin contact. I accept the submissions and find the objective seriousness falls below the mid-range.

77. In respect of sequence 3, massaging the breasts of the victim, it was submitted on behalf of the Crown and the offender that the objective seriousness falls just below the mid-range. The Crown submitted that this sequence represents a real escalation in the offending. The victim was fully nude and was forced onto her back by the offender, making her vulnerable. The offender massaged her breasts for 5-10 minutes and was dripping sweat onto her body while staring at her vagina. The offending involved skin on skin contact. I accept the submissions and find the objective seriousness falls just below the mid-range.

78. In respect of sequence 4, massaging breasts while holding the victim’s throat, it was submitted on behalf of the Crown and the offender that the objective seriousness falls at the mid-range. The Crown submitted that this sequence represents a further escalation in the offending. The offender applied force to the victim’s throat while massaging her breasts. The offender pressed his chest into the victim’s back at this time. The offending involved skin on skin contact. I accept the submissions and find the objective seriousness falls at the mid-range.

IMPACT ON VICTIM

79. At the trial, the victim gave evidence of being visibly uncomfortable and having tears in her eyes during the incident (Tcpt, 5 September 2023, p 19(12-21)). She described feeling embarrassed, scared, disgusting and terrified during the incident (Tcpt, 5 September 2023, p 20(16-18)).

80. At the sentence hearing on 5 April 2024, a victim impact statement of the victim dated 23 November 2023 was read by Ms Sandra Crow of Victims and Witnesses of Crime Court Support.

81. It is clear that the offending has caused the victim ongoing psychological distress, which she says has manifested as PTSD. I do not intend to go into great detail, save to observe that situations such as being in an Uber with a male driver and attending doctor’s appointments with male healthcare providers cause her to feel anxious and uneasy. This fear has impacted her ability to move on from the incident as she is reluctant to seek medical care. The victim has since relocated overseas and says that her home in Sydney served as a constant reminder of the incident.

SECTION 5 THRESHOLD

82. It was submitted on behalf of the Crown that the s 5 threshold has been crossed and that no alternative sentence other than one of imprisonment is appropriate. On behalf of the offender, it was submitted that in relation to sequences 3 and 4 that the s 5 threshold has been crossed, but that in relation to sequence 1 the s 5 threshold had not been crossed, and that judicial minds may reasonably differ in respect of sequence 2.

83. Having regard to the facts as I have recited them and my findings as to the objective seriousness, I find that all counts crossed the section 5 threshold and that no form of punishment other than one of imprisonment is reasonable or appropriate in the circumstances.

PURPOSES OF SENTENCING

84. Section 3A of the CSP Act sets out the purposes for which a sentence may be imposed. Aside from the fundamental obligation ensuring adequate punishment, the purposes for sentence which are prominent in cases such as these are deterrence, denunciation and the recognition of the considerable harm done to the victim and caused to the community by offending of this type. I take those factors into consideration.

INDICATIVE TERMS

85. I intend to sentence the offender to an aggregate term of imprisonment. Before doing so, I must provide indicative terms for each sequence. In respect of sequence 1, I provide an indicative term of 6 months imprisonment. In respect of sequence 2, I provide an indicative term of 12 months imprisonment. In respect of sequence 3, I provide an indicative term of 18 months imprisonment. In respect of sequence 4, I provide an indicative term of 20 months imprisonment.

TOTALITY, CONCURRENCY AND ACCUMULATION

86. Before moving on to conviction and sentence, I make the following observations concerning totality, concurrency, and accumulation. Were I to simply accumulate the indicative terms, the sentence would be unduly harsh. Given the offending occurred in the course of a single episode, I consider that a high degree of concurrency is appropriate, that is that the penalty for some of the offences can encapsulate the criminality of others. The overall sentence must be one which is just and appropriate.

87. The Crown submitted that whilst the offending represents a course of conduct, there were escalating levels of criminality which may lead to the conclusion that some degree of concurrency is warranted. On behalf of the offender, it was submitted that it is open for the Court to impose a significant degree of concurrency with respect to each individual offence for which the s 5 threshold is crossed.

88. In the circumstances, I intend to impose a significant degree of concurrency, with a total aggregate head sentence of 3 years imprisonment.

AVAILABILITY OF AN ICO

89. Pursuant to s 7(1) of the CSP Act, a court that has sentenced an offender to imprisonment in respect of one or more offences may make an ICO directing that the sentence be served by way of intensive correction order in the community.

90. Section 68(2) of the CSP Act stipulates that an ICO may be made in respect of an aggregate sentence of imprisonment so far as the duration of the term of the aggregate sentence does not exceed 3 years.

91. Section 67(1)(b) of the CSP Act provides that an ICO must not be made in respect of a sentence of imprisonment for a prescribed sexual offence. The definition of a prescribed sexual offence is provided in s 67(2) of the CSP Act. I note an offence of sexual touching without consent in breach of s 61KC(a) of the Crimes Act does not fall within that definition and is therefore not a prescribed sexual offence.

92. Turning to s 66(1) of the CSP Act, community safety is a mandatory consideration when determining whether to impose an ICO. When considering community safety, the sentencing court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender’s risk of reoffending: s 66(2) of the CSP Act. Under s 66(3) of the CSP Act I am also required to consider the purposes of sentencing in s 3A to which I have already made reference. The CSBB states at [3-362]:

“When considering community safety, the court must assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender’s risk of re-offending: s 66(2). The sentencing court is to assess the possible impacts of an ICO or full-time imprisonment on the offender’s risk of reoffending; to look forward to the future possible impacts of an ICO or full-time imprisonment: Stanley v DPP at [72]; also see Zheng v R at [285].”

93. I find the offender’s risk of reoffending in addition to his mental health issues will be best addressed by way of an ICO in the community with supervision. In assessing community safety, the permanent prohibition order by the HCCC prevents the offender from acting as a massage therapist. With reference to the purposes of sentencing, there is no evidence to indicate that the offender is not a suitable vehicle for general and specific deterrence.

SPECIAL CIRCUMSTANCES

94. Had I not directed an ICO, I would have found special circumstances exist given that this would have been the offender’s first time in custody and that it would have been more onerous due to his mental health conditions. I would have imposed a non-parole period of 18 months.

SENTENCE

95. Mr Bao, you are convicted of the following offences:

1. sexual touching without consent in breach of s 61KC(a) of the Crimes Act 1900 [sequence 1];

2. sexual touching without consent in breach of s 61KC(a) of the Crimes Act 1900 [sequence 2];

3. sexual touching without consent in breach of s 61KC(a) of the Crimes Act 1900 [sequence 3];

4. sexual touching without consent in breach of s 61KC(a) of the Crimes Act 1900 [sequence 4].

96. In respect of the convictions, I impose a total aggregate head sentence of 3 years imprisonment to be served by way of an ICO in the community commencing today 22 May 2024 and expiring 21 May 2027.

97. The standard conditions of the order are as follows:

1. you must not commit any offence; and

2. you must submit to supervision by a Community Corrections officer.

98. I impose the following additional conditions:

1. home detention for a period of 12 months commencing today 22 May 2024 and expiring 21 May 2025;

2. a treatment and rehabilitation condition requiring you to be supervised by Community Corrections and to engage positively in whatever supervision plan is recommended to you by a Community Corrections officer for the duration of the order. I note the proposed treatment plan at pages 3 and 4 of the SAR dated 14 November 2023;

3. you must not massage any person for the duration of the order; and

4. you must not act as a massage therapist and not provide any health service on any basis to any person for the duration of the order.

99. Do you acknowledge that if you breach any of those conditions the ICO may be revoked and you could be in custody for up to 3 years?

100. I direct the offender to contact Blacktown Community Corrections initially by telephone by 4pm today and notify them of this order and provide them with a copy of the report of Mr Borenstein and the letters of Ms Xu and Dr Miao.

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Decision last updated: 04 June 2024