R v David Qin

[2008] NSWDC 41

Reported Decision: 7 DCLR (NSW) 108

District Court

CITATION:	R v David Qin [2008] NSWDC 41
HEARING DATE(S):	10 -19 December 2007 - Trial, 7 March 2008
JUDGMENT DATE:	27 March 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Goldring DCJ
DECISION:	On Count 1 the offender is discharged on condition he enter a s9 bond to be of good behaviour for a period of 5 years. On Count 2 the offender is sentenced to 10 months imprisonment, but suspended for its term upon entering a s12 bond to be of good behaviour.
CATCHWORDS:	Crminal law - Sentence - particular offences - indecent assault - sexual intercourse without consent - seriousness - Sentencing - effect of discharge under s10 Crimes (Sentencing Procedure) Act whether 'conviction' - effect of possibility of deportation - effect of limited capacity for English
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 (NSW)
CASES CITED:	R v Markuleski [2001] NSWCCA 290 R v Slack [2004] NSWCCA 128 R v Arvind (unreported) NSWCCA 8 March 1996 R v Azzi [2004] NSWCCA 398 R v Price [2005] NSWCCA 285 R v Frigiani [2007] NSWCCA 81 R v Shresthra (1991) 173 CLR 48 R v Mirzaee [2004] NSWCCA 315 R v Pastovsky (unreported) NSWCCA 28 June 1995 R v May [1999] NSWCCA 40 R v Dinsdale [2000] 202 CLR 321
PARTIES:	The Crown David Qin
FILE NUMBER(S):	07/11/0576
COUNSEL:	P. Aitken, solicitor advocate - Crown B. Murray - Offender
SOLICITORS:	NSW DPP Hurlestone Park Legal

.
SENTENCE

1 HIS HONOUR: David Qin was convicted after a jury found him guilty of two charges. The first was a charge of indecent assault, and the second, a charge of sexual intercourse without consent. The jury acquitted him of a further charge of indecent assault, which allegedly had been committed at the same time. The evidence of the complainant was the only evidence in support of all three charges.

2 The jury was given a direction in accordance with the decision of the Court of Criminal Appeal in Markuleski, but nevertheless rejected the complainant’s evidence in respect of the third charge. It is difficult to see how they could have done this while accepting the evidence in respect of the first two charges, as the complainant’s credit was the main issue in respect of all three charges. It may also be significant that the trial began in the last week of the court term before the Christmas vacation.

3 At the beginning of the trial, the Crown Prosecutor told the jury panel that he estimated that the trial would finish within the week. For a number of reasons, some of which were not attributable to either party, the trial ran three days longer than the estimated time given at the empanelling. Some jurors were clearly inconvenienced by the delay. I excused one juror for one afternoon so that she would be able to attend a function at her child’s school, and no evidence was taken during that period. However, other jurors also appeared to be concerned that the trial would extend into the holiday. The pressure of time may have influenced the jury to reach verdicts which may have been at least in some sense a compromise.

4 Another element of the jury’s verdict may give rise to concern. It is understandable that the legislature wished to abolish the common law requirements of corroboration of the evidence of the complainant in sexual assault cases. However, those legislative changes give rise to a real danger that the jury may accept fabricated evidence. In this case, the evidence of the complainant was the only evidence of the commission of the offences. The danger is accentuated when evidence is given by a witness, such as a professional actor, whose professional role is often to dissemble.

5 The complainant in this case is a professional actor. I am not suggesting in any way that, in her evidence, the complainant was dissembling. I did draw to the jury’s attention inconsistencies between her evidence and that of the witness, CB, as to when and where they cast their votes in the State election, which was held on the same day as the offences, on some other matters, particularly the nature of the voucher which entitled the bearer to a free massage by the offender or his partner, and on what happened to that voucher. Those inconsistencies, although not centrally relevant to the essential elements of either offence, might have suggested that the evidence of one or other of these witnesses may have been fabricated, and it could also be suggested the evidence of CB, at least, could be construed as having racist overtones. For those reasons I find that there was a real possibility that the verdict may be unsafe and unsatisfactory.

6 I must accept that the jury did, as directed, subject the evidence of the complainant to the special scrutiny that is always required when that evidence is the only evidence of one or more essential ingredients of an offence charged, which is the case here.

7 The facts that the jury must have found, as alleged by the complainant, were that the complainant lived in a flat in Neutral Bay with her then boyfriend, and another person, CB. Across the road from this flat was a Chinese massage clinic operated by Grace Au, who is the partner of the offender. The unchallenged evidence was that the offender did not own or manage the massage clinic, but he did work there as a masseur on weekends.

8 On the day when these offences were committed, the State election was being held. It was a Saturday and the offender was working in the massage clinic. The complainant’s boyfriend had given her a voucher for massage services worth forty dollars. It was not in dispute that the complainant had visited the massage clinics on several occasions before the events giving rise to these charges. She had received massages from both the offender and Ms Au, and in fact she told CB that she thought the offender was a better masseur.

9 On the morning in question, the complainant’s boyfriend was away from Sydney and she and CB went to vote in the State election. Her evidence was that they voted at a polling both near the Old Commodore Hotel, which is at the McMahon’s Point end of North Sydney. CB said that they voted at the public school in Ben Boyd Road, which is close to their flat and the massage clinic. Both agreed that they went to vote in the car and then returned to the flat. CB stayed there until the complainant returned from the massage clinic.

10 The complainant decided that she would use the voucher and have a massage. She went into the clinic and spoke to Ms Au. There was a conflict between the evidence of the complainant and that of Ms Au as to what actually passed between them. It is quite clear that the voucher was not actually produced at the time and that in fact the complainant had left it at her flat.

11 There was no dispute that the offender was assigned to perform the massage, but there was a dispute as to whether what the complainant wanted was a massage of her head, neck, shoulders and back, which was the complainant’s evidence, or whether it was a whole body massage with oil, which is the evidence of the offender and Ms Au. The offender clearly does not speak or understand English well and has difficulty communicating in English. In any event, the offender began to massage the complainant, starting at the neck, after she had undressed, except for her underpants. Ms Au left the massage clinic so that she could vote. Her evidence, supported by the bus tickets, was that she took a bus to the Sydney Town Hall, voted, and then returned by bus, arriving after the complainant had left.

12 While the offender was massaging her lower back, his evidence was that he rolled her underpants down so that he could massage her buttocks. His evidence is that he asked her several times if things were OK, and was not aware that she thought they were not. Her evidence was that he removed the underpants by taking them down to her thighs. It does not seem to be in dispute that at this stage he was applying quantities of massage oil to her body, nor is there any dispute that the complainant was lying face-down on the massage table.

13 In order to be satisfied beyond reasonable doubt of the elements of the two offences that the jury found proved, the jurors must have accepted the version of events given by the complainant about those two offences. This was that the offender started massaging with oil on the inside of the thighs and moved his hands up over the buttocks so that his fingers passed over the complainant’s anus. On the Crown case, this was the indecent assault.

14 Shortly afterwards the offender massaged the complainant’s thigh on the inside and moved his hands upwards on her body so that the tips of his fingers passed between the vaginal labia and over the clitoris, coming to rest on the buttock. The complainant said explicitly that there was no penetration of the vaginal canal. Nevertheless, these matters constituted the sexual intercourse without consent charge.

15 At this stage the complainant says she curled up into a ball, asked the offender to leave, which he did. She dressed and left the massage clinic.

16 There was considerable further evidence about what happened after these events, particularly what passed between CB and the complainant, on the one hand, and the offender and his partner on the other. It is clear that Ms Au made a telephone call to the complainant and later attempted to contact her in person, as she was aware that there had been some difference of opinion between the complainant and the offender. Her belief was that it was about the voucher, which in fact the complainant never gave to the offender or Ms Au, but which was recovered by the police after the complainant had reported the incident to them. This matter led to the offender and his partner making a complaint to North Sydney police. That evidence had no relevance to the actual elements of any offence alleged, but was relevant to issues of credit.

17 There is a standard non-parole period for the count 2 offence. The prosecution do not suggest that it was appropriate to apply that on the facts of the case, but I must give reasons why it is totally inappropriate in this case. The facts which the jury must have found in relation to the charge of sexual intercourse without consent, must, on any view, fall not only in the lower range of seriousness of such an offence, but almost at the extreme lowest level of such seriousness. That is not to say that the distress caused to the complainant was not significant. She read to the court a statement in which she gave details of the psychological impact the events had upon her. Whether or not there was evidence upon which the jury might be properly satisfied of the offence, if her statement is accepted, she has suffered a great deal of upset as a result of the incident.

18 The degree of physical interference with her body was minimal. Both the offence of sexual intercourse without consent, and the indecent assault which was proved to the jury’s satisfaction, consisted of the passage of the offender’s fingers over, in the one case, the genital labia and clitoris of the complainant, and in the other case, over the anus. While the complainant’s distress is understandable, it cannot be said to be significant, relative to the distress suffered by victims of more serious sexual assaults. The prosecution did not suggest that it was sufficiently serious as to amount to an aggravating factor for the purpose of s 21A of the Crimes (Sentencing Procedure) Act, and in view of Slack [2004] NSWCCA 128, it could not do so.

19 When the current definition of sexual intercourse in the Crimes Act was changed to include penetration, and I emphasize the word “penetration”, of the anus or vagina of a person by a digit or a physical object other than a penis, as in this case, it is difficult to accept that the legislature really intended to include within the definition of sexual intercourse, conduct like that of the offender in this case. The language of the section equates the type of touching found here to violent penile penetration of the victim’s anus or vagina. The indecent assault charge in count 1 of the indictment alleged touching similar, if not identical in character, to the touching alleged in count 2. However, as the part of the victim’s body, which was touched in count 1, was the anus, the lack of penetration meant that the conduct could give rise only to a charge of indecent assault. Because there is authority that penetration to any degree of the genital labia, is sufficient to constitute penetration for the purpose of s 61H, it is not possible to say that on the facts alleged, if established, there would not be the offence charged in count 2.

20 It is paradoxical that because of the structure of the human body, similar conduct involving adjacent parts of the body with are different, although both sensitive and personal, could give rise to the allegation of two totally separate offences. Technically, it is clear that the facts, which the jury must have found in relation to the touching on the exterior of the vagina, constitutes “sexual intercourse” as defined in the Act.

21 The use of the language in the legislation means that I must distinguish, in terms of the sentence to be imposed, between the conduct that gives rise to the offence of indecent assault, and that which gives rise to the offence of sexual intercourse without consent, even though the actual conduct involved was virtually identical, and to do so flies in the face of common sense. The distress and invasion of bodily privacy in each case was also virtually identical.

22 I formally find that the offence of sexual intercourse without consent is far below the mid-range of seriousness for such offences, for the reasons that I have given, and therefore the standard non-parole period has little, if any, relevance to the sentence to be imposed. I emphasize that it is difficult to envisage any conduct, which, while constituting the offence, could be less serious.

23 I must, however, respect the wording of the statute, and this will be reflected in my decision that while the indecent assault offence does not, in the circumstances of this case warrant a custodial sentence at all, such a sentence must be imposed in relation to the sexual intercourse without consent, because of the nature of the offence created by that wording, despite the factual similarity of the circumstances giving rise to each offence.

24 The Crown says that in this case it is an aggravating factor that the complainant was particularly vulnerable and had placed the offender in a position of trust, which he abused. It is certainly true that she consented to be massaged, included being touched on her naked buttocks, but not to be touched on the anus or the external part of her genitals. It was not in dispute that the complainant voluntarily removed all her clothes, apart from her underpants. There was a factual dispute about how and to what extent the underpants were removed. It does not necessarily follow that the jury accepted the complainant’s account of the partial undressing, and I could not be satisfied beyond reasonable doubt that that version was entirely accurate.

25 Any person who agrees to a full body massage consents to the masseur touching his or her buttocks; something that in other circumstances may amount to an act of indecency. To that extent the relationship between the parties is a relationship of trust.

26 I have been referred to a number of cases, including one involving a medical practitioner, and that is Arvind (unreported) decided by the Court of Criminal Appeal on 8 March 1996, where the practitioner received consent to carry out an internal examination, and a relationship of trust was found. In the case of Azzi [2004] NSWCCA 398, a hairdresser was found not to be in such a relationship of trust. The prosecution has preferred to me several other cases involving masseurs who committed sexual assaults of various types on clients, but none of these considered the nature of the relationship in specific terms.

27 In my view, the position of the doctor in Arvind resulted in a very high degree of trust, given the patient’s consent to internal examination. I would, however, regard the position of a masseur as not being in such a high degree of trust, particularly as here, when the massage is for physical pleasure, rather than for therapeutic or quasi-medical purposes, but because the work involves touching the naked body, the position requires more trust than does that of a hairdresser.

28 The other cases involving masseurs, to which I have been referred, really provide me with no assistance in this case.

29 It does follow, from the jury’s verdict, that they were satisfied beyond a reasonable doubt that the offender had abused the position which his occupation as a masseur gave.

30 The Crown also put forward at one stage as an aggravating factor, that the offender has a record of similar offences. The Crimes (Sentencing Procedure) Act s 21A(2)(d) refers to previous convictions, and the Crown, I think later conceded that there are no previous convictions. There is one previous offence. In 2000, a Local Court found that the offender had indecently assaulted a female in circumstances which, in my view, are somewhat distinguishable from those that the jury must have found in this case. However, what is significant is that in 2000, according to the court file, the matter went on appeal to the District Court as a not guilty appeal, and as a result, although the court found the offence proved, the conviction was, in effect, quashed, as no conviction was recorded and the offender was discharged on conditions.

31 I agree with what Simpson J said in Price [2005] NSWCCA 285 as follows, para (36):

“In my opinion there are good reasons for interpreting s 21A(2)(d) as proposed on behalf of the applicant, that is, strictly, and excluding reference to an offence in respect of which the offender had been given the benefit of a s 10 order from s 21A(2)(d). Firstly, s 21A(2)(d) is, in effect, a penal provision which ought to be construed strictly and beneficially to those against whom it operates. That is a conventional principal of statutory construction. Secondly, a s 10 order is intended expressly to permit an offender to retain the benefit of good character. To extend the meaning of “conviction”, in s 21A(2)(d) to include a finding of guilt for an offence in respect of which no conviction has been recorded, would be to defeat at least part of the object of s 10. The court has held that s 21A(2)(d) involves the application of the principles stated in Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465, see R v Wickham [2004] NSWCCA 193.”

32 The Crimes (Sentencing Procedure) Act s 21A(2)(d) requires that there be a conviction to establish that an offender has a record of previous similar offences. For the purpose of that section, where an offence is dealt with under s 10 of the Act, or previous legislation having the same effect, the fact that the offence is found to be proved is not relevant under that section unless a conviction is recorded, and here there is thus, no record of previous convictions.

33 From the material before me, it appears that the learned magistrate had found that the offender had, in 1999, touched the breasts of a young woman, who had been his customer in a hairdressing salon, while demonstrating massage techniques, in which she had expressed interest. The matter was contested and there was an appeal to this court, after which no conviction was recorded, and the offender was released on condition that he enter into a bond to be of good behaviour for a stipulated period. That period, and a further 12 or so years, expired without any further misconduct by the offender.

34 There is a real issue as to whether, where an offence is found to be proved, and the court determines not to record a conviction, once any conditions of the offender’s discharge are fulfilled, the offence should remain on the offender’s record at all.

35 In this case, now, the prosecution, quite rightly, does not suggest that the previous offence is an aggravating factor, but it says it is relevant, relying on Frigiani [2007] NSWCCA 81 where Howie J, with whom Simpson and Barr JJ agreed, after quoting the passage from Price that I quoted above, said - this is para (23):

“Neither this passage nor the reasons of her Honour elsewhere in the judgment gives the slightest support for the submission that a court is prohibited from taking into account prior conduct that has been dealt with under s 10.”

Para (24):

“It is clear that the prior matter was relevant in two ways.”

and I omit the consideration of the first matter because it does not apply here. Para (25):

“Secondly, the fact that the applicant had assaulted his wife was relevant to show that the offence for which he was being sentenced was not an aberration. For this purpose, it was enough that the applicant had been found guilty of that conduct even though no conviction had been recorded against him. In part, the first paragraph of the remarks quoted above reflect this fact.”

36 The touching of a customer in a way that was indecent in 1999, does not necessarily suggest that the offender has a tendency to behave in such a way, or even that conduct giving rise to his conviction in this case was not “aberrant”, to use Howie J’s words. Juries are often warned that the fact that a person has behaved in a certain way in the past does not necessarily mean that they have a tendency to behave that way constantly. It may be that this offender may have engaged in the past in inappropriate touching, but for reasons that I set out, I have no factual basis for so finding.

37 In this case, I have more serious reservations about the assistance I can derive from the 2000 proceedings. There was clearly a contested hearing in the Local Court and from the court file, a Mandarin interpreter appears to have been present throughout the Local Court hearing. When the matter came to this court, the court file gives no indication that an interpreter was present or even ordered. It is clear from the remarks of the learned magistrate which have been tendered by the Prosecutor in these proceedings, that the learned magistrate treated the case as one where it was the word of the complainant against that of the accused.

38 It is possible that the accused’s lack of ability to communicate in English may well have been a factor affecting the findings. From the court file, the matter proceeded as a not guilty appeal to the District Court. As I say, there is no indication on the court file that it was dealt with as an appeal against severity only. His Honour Shadbolt DCJ allowed the appeal, directed that no conviction be recorded, and released the offender on a s 10 bond.

39 It is not possible for me to have his Honour’s reasons as the tapes are destroyed automatically after five years. It is not for me therefore to speculate as to his Honour’s reasons. The court file does contain written submissions of counsel for the appellant, which shows some areas where the facts were contested. In the circumstances, I am not prepared to treat the magistrate’s decision as evidence, even for the limited purpose to which Howie J referred in Frigiani, because I could not be satisfied beyond a reasonable doubt of any of the facts which may have been the basis of Shadbolt DCJ’s decision. The police facts are certainly not evidence of what they state and the presence of counsel’s submissions show that these were contested. It is impossible for me to know what the facts as found by Shadbolt DCJ were, and it may well have been that his findings differed significantly from those of the learned magistrate. It cannot be said that the offender in this case could in any way be taken to have admitted the facts as found by the learned magistrate.

40 The 1999 offence probably had a more significant effect on the conduct of the trial. The offender and his counsel did not put to the complainant that she had fabricated her version of events, or even that that version was untrue. This may have been a forensic decision made by counsel for the defence, on the basis that if he had raised the issue with the complainant, it would have been open to the Crown to place evidence of the 1999 matter before the jury, or at least to the possibility that the Crown Prosecutor may have been able to cross-examine the offender about this matter. This may clearly have given rise to the possibility of prejudice, and possibly unfair prejudice to the accused in the conduct of the trial.

41 The offender is clearly a highly skilled and formally qualified masseur. Not only has he had experience in China in the area of remedial massage before he came to Australia, but he has also obtained a formal qualification after a course of study in Australia. He earned his living, or at least a significant part of it, as a masseur. Although the evidence before me is that since the date of this offence, while he has been on bail, he told the probation service that he has not been in receipt of regular income, and has been working without pay on weekends at the clinic. In my view, he should not be prevented from making a living, provided there is some safeguard to the community that he not re-offend in similar ways. In this case also, the complainant has said in her statement that it is distasteful for her to see him continuing to work, which happens while she continues to live in her apartment and he continues to work in the massage clinic.

42 The offender in this case was born and raised in China. He has been in Australia since 1990, that is for a considerable part of his life. He has an adult daughter in Australia. He has been in a permanent relationship with his partner Grace for some years. At the beginning of last year he applied for Australian citizenship and was told that his application had been approved, subject to some routine formalities.

43 His conviction for these offences places the questions of his residential and citizenship status in some doubt. The offences may lead the government authorities finally not to approve his application for citizenship. Whether or not that happens, if a sentence of imprisonment of twelve months or more is imposed, that will awaken a discretion in the Commonwealth Minister to consider deporting him and cancelling any visa that he may currently hold.

44 It is often said that the possibility of deportation is not a factor that can amount to special circumstances for the purpose of the sentencing legislation. On a careful reading of the relevant authorities, I find this is not the case. The leading case, Shresthra (1991) 173 CLR 48 was a case decided on appeal from a sentence where the judge refused, under the relevant sentencing legislation in South Australia, to declare that the offender was eligible for parole during the course of his sentence. The High Court found that offenders who are aliens, or for that matter persons from different states, should be treated so far as is possible, equally and certainly should not be treated differently from residents of that State for that reason.

45 As I understand that case, the ratio decidendi was that if all the other circumstances of the case would lead the judge to order that an offender was eligible for release on parole at the end of a specified period, the fact that he was likely to be deported on completion of the non-parole period was not a factor that should affect the length or structure of the sentence. There is considerable dicta in this case which suggests that where the purpose of setting a parole (or non-parole) period is to allow or facilitate the rehabilitation of the offender and the deportation of the offender would frustrate any supervision, because the authorities could not supervise a person outside the territorial limits of Australia, the purpose of parole would be frustrated. That, however, is not as I read it, the central principle in the decision.

46 Even if what was said in Shresthra was true of the sentencing legislation as it then stood in South Australia, it would not be true because of the requirements of the Crimes (Sentencing Procedure) Act in this State. In Mirzaee [2004] NSWCCA 315, the Court of Criminal Appeal considered Shresthra and Kirby J said at para (20):

“The applicant contended and the Crown acknowledged, that it was erroneous to take account of the prospect of deportation in determining the non-parole period. In The Queen v Shresthra [1991] 173 CLR 48, Deane, Dawson and Toohey JJ said this at 71:

‘This country has a direct and significant interest in the wellbeing and rehabilitation of all who are detained within its gaols, whether or not their origins, ties or future prospects lie in this or some other country. It also has a responsibility, both moral and under international treaty, to treat all who are subjected to criminal proceedings in its courts or imprisonment in its gaols, humanely and without discrimination, based on national or ethnic origins.
To deny foreign offenders of the kind in question the opportunity for the amelioration of their situation and the incentive for reform and rehabilitation, which the parole system offers, is not to differentiate by reference to degrees of criminality or prospects of rehabilitation. It is to discriminate against prisoners of that class because of their origins, their place of residence and their family ties, the footnotes are omitted’.

21. Where an offender would otherwise qualify for a finding of special circumstances because it is recognised that he or she would benefit from a longer than usual period of supervision, then such a finding should be made. The sentencing judge should not refrain from such a finding because it is believed likely that the offender may be deported at the end of the non-parole period and that supervision would not be provided in Australia”.

47 This passage, in my view, is authority for two propositions. The first is that Shresthra is not authority for the proposition that a sentencing court should not consider the possibility that an offender faces deportation as the result of the imposition of the sentence. I wholeheartedly concur with that view. It defies reason to suggest that deportation, or even the threat of deportation is not, if technically not an additional punishment, at least something which increases the seriousness of the consequences of a sentence that is imposed.

48 The second proposition for which I take Mirzaee to be authority, is that an offender who has difficulty with language and culture, faces a more difficult time in prison than one who has grown up in the Australian version of an English speaking culture. This is a proposition which the offender’s counsel in this case urged upon me, relying on an earlier decision of the Court of Criminal Appeal, Pastovsky, a decision on 28 June 1995. That principle is undoubtedly correct.

49 The Prosecutor drew my attention to the passage in May [1999] NSWCCA 40, where Abadee J, speaking for the court, said this:

“10. It is also appropriate for me to observe that in the instant case, there is nothing to indicate, at least on the face of the sentencing reason for judgment, that the Crown had drawn the sentencing judge’s attention to the decision in Hartikainen . This is a matter that I regard as being of some moment. It is clear that it would be unusual if a conviction under s 61(I) did not ordinarily result in a sentence of full time imprisonment. See R v Crisologo (1997) 99 A Crim R 178.
It is important however to note the use of the word ‘ordinarily’, since it accepts that there may be exceptional cases where a full time imprisonment sentence is not required. For example, in the United Kingdom in R v Billam [1986] 1 WLR 349, Lord Lane CJ, when restating the principles guiding judges in the sentencing for rape or attempted rape said at 350:

‘The court emphasised in R v Robert (Hugh) [1982] 1 WLR 133 that rape is always a serious crime which calls for an immediate custodial sentence other than in wholly exceptional circumstances .’ (My emphasis)

11. The point to be made is this. That clearly, there may be exceptional circumstances which when found to exist will warrant a sentence other than a full time custodial sentence. The only part of Lord Lane’s decision that I would perhaps have some reservation about, is the use of the qualifying word ‘wholly’. Next, it is important in my view, that the sentence imposed should act as a public deterrent in relation to the offence of the kind we are dealing with. The need to impose public deterrent sentences is referred to in R v Rushby [1977] 1 NSWLR 594. See also R v WHS , CCA 20 March 1995 unreported.”

50 For reasons that I have already outlined, because the offender has been convicted of the more serious offence, namely sexual intercourse without consent, I have determined that I must impose a custodial sentence on that charge. That is so, notwithstanding the facts of the case would not have justified a conviction for rape at common law, the situation which was encompassed by the remarks of the English judges whose rulings were being applied in May, so that the principles may not strictly apply here. Nevertheless, I acknowledge that May was a case involving the same section as this case involves, and that the ruling of the Court of Criminal Appeal is binding on me.

51 However, I do find the facts of this case exceptional, and the only reason that I do not deal with this matter under s 9, as I do the indecent assault matter, is that the count 2 offence is one of sexual intercourse without consent. In the circumstances, I have determined that there need not be a full time custodial sentence. As I have said, the circumstances of this case bring it within the scope of the exception to which Aberdee J referred. I have also considered what the High Court said in Dinsdale [2000] 202 CLR 321. I propose to direct that there be a sentence of imprisonment, but it should be suspended for its term.

52 You are sentenced on count 2 to imprisonment for ten months, but I direct that that sentence be suspended for its term upon you entering into a bond to be of good behaviour. In respect of count 1, you have been convicted of that offence, but I direct that you be discharged, provided you enter into a bond to be of good behaviour for a period of five years, and there will be a condition to that bond; there will be a number of conditions.

53 The conditions will be that you be of good behaviour; that you appear in court if called upon to do so; that you advise the registrar of this court in writing of any change in your residential address; and that you not work as a masseur, either on a paid or unpaid basis, in the massage clinic operated by Grace Au in Ben Boyd Road, Neutral Bay, for the term of that bond. I am imposing that condition because of what the complainant said in her impact statement. I am not imposing a condition of supervision, because in the probation and parole service report, it indicates that there is no course of counselling that is available which would cater for a person whose language and communication difficulties are such as those which you encounter.

54 The suspended sentence means that you do not go to gaol now. But if within the next ten months you commit any serious offence, you will be brought back to court and the court will have no option but to send you to gaol full time.

**********