R v Liu
[2023] ACTSC 188
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Liu |
Citation: | [2023] ACTSC 188 |
Hearing Date: | 17 July 2023 |
Decision Date: | 18 July 2023 |
Before: | Mossop J |
Decision: | See [54]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – offender pleaded guilty to three charges of sexual intercourse without consent and five charges of act of indecency – offending occurred against six victims – whether offences committed for sexual gratification or whether the offender believed that he was providing a service to the victims – objective seriousness ranges from above the mid‑range to low-range – no criminal history – sentence of full-time imprisonment imposed |
Legislation Cited: | Crimes Act 1900 (ACT), ss 54(1), 60(1) Crimes (Sentencing) Act 2005 (ACT), s 53 |
Cases Cited: | R v Olbrich [1999] HCA 54; 199 CLR 270 |
Parties: | The Queen Weiqing Liu (Offender) |
Representation: | Counsel L Etheredge (DPP) K Ginges with K Lee (Offender) |
| Solicitors Director of Public Prosecutions Sydney Criminal Lawyers (Offender) | |
File Number: | SCC 37 of 2022 |
MOSSOP J:
Introduction
1․On 24 February 2023, the offender, Mr Weiqing Liu, pleaded guilty to the following charges:
(a)Count 1: Sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT) (CC2021/11084);
(b)Count 2: Act of indecency without consent, contrary to s 60(1) of the Crimes Act 1900 (ACT) (CC2021/11086);
(c)Count 3: Act of indecency without consent, contrary to s 60(1) of the Crimes Act 1900 (ACT) (CC2021/11079)
(d)Count 4: Sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT) (CC2021/10500);
(e)Count 5: Act of indecency without consent, contrary to s 60(1) of the Crimes Act 1900 (ACT) (CC2021/11082);
(f)Count 6: Act of indecency without consent, contrary to s 60(1) of the Crimes Act 1900 (ACT) (CC2021/11080);
(g)Count 7: Act of indecency without consent, contrary to s 60(1) of the Crimes Act 1900 (ACT) (CC2021/11076); and
(h)Count 8: Sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT) (CC2021/10499).
2․The offending involved six female victims, all of whom were clients of the offender in his capacity as a clinical therapist at The Capital Health Centre of Traditional Chinese Medicine in Phillip, ACT. He provided massages to clients of the centre.
3․The matter was committed to the Supreme Court for trial on 11 February 2022 and a trial date of 14 March 2023 was set down on 21 November 2022.
Facts
4․The clinic at which the offender worked was owned and managed by the cousin of the offender’s wife. The offender’s wife also worked at the clinic. The clinic offered massage and acupuncture services, and clients received treatment in a room containing several beds, each partitioned by curtains. The practice of the clinic was such that during treatment, clients would be alone with their treating masseur or masseuse.
5․The offending involved sexual acts committed upon female clients during the course of a massage. Each victim was semi-naked and lying on a massage table within one of the cubicles. While the Agreed Statement of Facts is quite detailed in relation to the circumstances of the offending and I accept that the facts are as they are set out, it is only necessary to refer to the facts in a summary way in these reasons. A number of the offences involved rolled up charges.
Count 1: KT
6․Between 30 August 2019 and December 2019, KT attended the clinic a couple times a week. She was treated by different staff. She was treated by the offender at least a dozen times.
7․On either 29 November 2019 or 3 December 2019, KT attended the clinic for a 30-minute massage followed by acupuncture. While lying on a massage table in a cubicle with only her underwear on and covered with a sheet, the offender indicated that he would be working on her hips that day.
8․During the course of the massage, he lifted her left leg over his arm. When he did this, the little finger of one hand was touching her underpants on her groin. He then moved to the right side and placed her right leg over his arm. He fumbled to get his fingers into KT’s underpants, placed two fingers on her clitoris and pressed against it. A third finger went into her vagina, up to the first joint. This is count 1, the offence of sexual intercourse without consent.
9․KT froze and did not say anything. The owner and manager, Mr Haisong Wang, entered the cubicle at the end of the massage and commenced acupuncture treatment which lasted for 30 minutes. When the offender re-entered the cubicle to remove the acupuncture needles, he asked KT “What did you say to Haisu [Mr Wang]?” KT said “Nothing”.
10․Although KT made two more appointments with the clinic she did not attend those appointments and never returned to the business.
Count 2: MK
11․In 2017, MK had attended the clinic. In November 2019, she recommenced attending the clinic for fertility treatment. She attended the clinic for treatment on 12 occasions between November 2019 and February 2020. The offender became her regular masseur. She would receive acupuncture treatment first, followed by a massage. On one occasion in February 2020, she was having a massage. She was wearing her underwear and possibly her blouse. At some point when she was lying face down, the offender was massaging the back of her leg. He spent a significant amount of time massaging her inner thigh and bikini line. The offender’s hand reached into her underwear and touched her vulva with his little finger and ring finger. His fingers touched and separated her labia. His fingers did not penetrate her vagina but did touch the inside of her labia. These acts constitute count 2, the act of indecency without consent. MK pulled her legs together quickly in response. She felt shocked and confused at what had occurred.
Counts 3 and 4: TI
12․TI attended the clinic on 20 February 2020 for treatment of an existing shoulder and hand injury. Mr Wang recommended a five-week treatment plan involving massage and acupuncture sessions twice a week. That afternoon she received a massage. She returned on 22 February 2020. While lying on the massage table she was wearing a green singlet and her underpants. During the course of the massage the offender occasionally touched the outside of her vagina through her underpants. This is count 3, the act of indecency.
13․On 25 February 2020, TI returned for her massage and acupuncture treatment. She was wearing a pink dress and her underwear. She was covered by a sheet. The offender massaged her right arm and then moved back up, close to her breast, which he then rubbed for approximately three or four minutes in a manner perceived by TI to be sexual. He then massaged down her lower back with the sheet between his hands and her skin. After he reached her toes, he stopped using the sheet and moved up to her thigh. He bent her knee so that her right hip was off the table, pushed her dress to the top of her buttock and moved his hand over her vagina on her underwear, rubbing the top of her vagina. He pulled her underwear up and used his fingers to rub the top of her vagina, pushing a finger into her vagina several times. The second time, he pushed two fingers into her vagina. He then went to the left side of the table and continued the massage. When the offender massaged her upper thigh, he touched the outside of her vagina and inserted his finger into her vagina again. TI did not know how to stop him and remained silent. At some point he put his finger inside her vagina a third time. TI pulled her legs tightly shut so her legs were straight down the table to stop him doing this again. The three occasions of digital penetration constitute count 4, sexual intercourse without consent. The offender completed the massage. Mr Wang subsequently gave TI acupuncture. TI made a complaint after the treatment was finished to Mr Wang. TI made a complaint to her husband that evening that the offender had put his fingers deep inside her vagina, up to the second finger joint. The next day (26 February 2020), she made a complaint to police.
14․Mr Wang had a discussion with the offender that day about what had occurred. His note of the conversation recorded that the offender asserted that there may have been some possible confusion on the part of the client and that he did not touch her breast or private parts.
15․On 28 February 2020, two police officers attended the clinic and spoke to Mr Wang who identified the offender as the masseur.
16․On 3 March 2020, TI received an email from the offender’s wife who also worked at the clinic. It suggested that there may have been some confusion because of the offender’s language limitation and that he had worked for a long time that day.
Count 5: DD
17․DD had attended the clinic for remedial massage and acupuncture since December 2016. In December 2020, she attended the clinic on five or six occasions. The offender was responsible for her treatment on a number of these occasions. On one occasion, during the massage, she was lying face down and she could feel the offender press his erect penis against her left upper-arm, near her elbow. She believed this was an accident and pulled her arm close enough so as not to embarrass the offender. On another occasion he did the same, pressing his erect penis against her left arm. This occurred a third time on 23 December 2020. The three occasions on which his erect penis was pressed against DD’s arm constitute count 5, an act of indecency.
Count 6: SD
18․SD attended the clinic for massages to treat pain in her shoulders, back, lower back and hips. On 10 occasions in 2021 she received a one-hour massage from the offender. On 5 June 2021 she was lying face down on the massage table dressed only in her bra and G‑string underwear. While massaging her right leg, the fingers of the offender’s left hand went under her underwear and onto her genitals. One finger moved directly to her clitoris and the offender commenced rubbing it. He then used two fingers to rub her clitoris. He rubbed it at least five times before she pulled her legs together to stop him. While massaging her left leg the offender used two fingers from his right hand to push through her underwear and touch her clitoris. She put her legs together to stop him. The massage continued until conclusion. She did not book another appointment. The touching of her clitoris while massaging her right and left legs constitutes count 6, an act of indecency.
Count 7 and 8: LS
19․LS attended the clinic to receive treatment for a neck injury. She first attended on 24 September 2021. She attended again on 1 October 2021. On 8 October 2021, during the course of massaging her right leg, the offender’s thumb “nudged the opening to her vagina fleetingly” outside her underwear. She thought it was an accident. However, the offender then did the same thing when massaging her left leg. These events constitute count 7 the act of indecency.
20․She attended again on 15 October 2021. When massaging her upper-right thigh he touched the top of her vagina over her underwear. He then put his finger under her underwear into LS’s vagina and wiggled it. He pulled his finger out and touched the outside of it as he did this. LS was in shock and lay frozen on the massage table. He did the same when he was massaging her left leg.
21․He then asked her to roll onto her back and he commenced rubbing his fingers on her forehead. She could feel the fluids from her vagina on her forehead and felt disgusted. He moved down to massage her stomach. He pulled her knees up and separated her legs. He moved one hand under her underwear, placed a finger in her vagina and wiggled it vigorously. He then removed it before inserting two fingers into her vagina and moving them vigorously backwards and forwards for about 30 seconds. LS was building up the courage to scream when he removed his fingers. She remained frozen in fear. The occasions of digital penetration of her vagina constitute count 8, sexual intercourse without consent.
22․LS sent a message to one of the owners of the business via LinkedIn the next day, outlining her complaint in broad terms.
23․Although not stated in the Agreed Statement of Facts, it appears that LS made a complaint to the police as they attended the premises on 21 October 2021 and enquired about the booking with LS on 15 October 2021. The offender was not at work. Police attended the offender’s residence and arrested him for sexual assault on TI and LS. He was granted bail the next day. KT, MK, DD and SD contacted police after hearing reports of the offender’s arrest.
Victim impact
24․Three victim impact statements were tendered. These victim impact statements recorded impacts upon the victims which were of the sort that are commonly experienced by offending of this type. The impacts included a loss of trust, difficulties with accepting physical contact, isolation, fear of meeting the offender, fear in public places, feelings of shame and embarrassment, impacts upon sleep and impacts on relations with members of their families. They also included the consequences of the late plea which included one of the victims having to rearrange her work and make disclosures of what had happened that she would not have had to if the plea been entered earlier. I have taken into account the victim impact statements given to the court. I have not drawn any inference about the harm suffered by a victim from the fact that a victim impact statement was not given to the court in relation to the offence: Crimes (Sentencing) Act 2005 (ACT) s 53.
Objective seriousness
25․The principal issue in contention at the sentencing hearing was whether or not the offending was sexually motivated (as the prosecution contended) or (as the offender contended) motivated by a misguided understanding that by providing sexual services he may improve his earning capacity and hence address the difficult financial circumstances he was facing. The submissions on behalf of the offender were put on the basis that an intention to provide sexual services to improve his income would reduce the seriousness of his offending. There are two difficulties with this submission. First, the pleas of guilty involve acceptance that the conduct was, at least, reckless as to the consent of the victims. Recklessness as to consent is inconsistent with a characterisation of the conduct as being a misguided business strategy being a mitigating factor. That is, he would be committing the acts knowing of the risk that they were non‑consensual in order to pursue the possibility that they were or would be treated as consensual in order to improve his financial prospects. Second, providing sexual services as a misguided business strategy would indicate that the offending was premeditated, in the sense of being a deliberate course of conduct engaged in for a financial reason. That might tend to make it more serious offending.
26․On the other hand, if the offending was sexually motivated then it might be simply opportunistic, albeit repeated. It is not obvious that this would necessarily be a more serious form of offending. Clearly the existence of a sexual motivation would be relevant to the prospects of rehabilitation, but that is a matter I address below.
27․Bearing in mind the respective onuses of proof as described in R v Olbrich [1999] HCA 54; 199 CLR 270 at [27]:
(a)I am not satisfied beyond reasonable doubt that the offending was sexually motivated; and
(b)I am not satisfied on the balance of probabilities that the offending was engaged in under a mistaken belief that it was consensual or as a means of improving the offender’s financial circumstances.
28․That leaves the motivation or the combination of motivations for the offending uncertain.
29․The reasons why I am not satisfied that the offending was engaged in under a mistaken belief that it was consensual or as a means of improving his financial circumstances are:
(a)it is inconsistent with the response of some of the victims to the offending conduct, for example, closing their legs so as to prevent him from continuing and the absence of any indication that the victims consented;
(b)it is inconsistent with the making of a complaint by TI and his discussion of that complaint with Mr Wang;
(c)evidence was not given on oath by the offender of his belief in this rationale and the offender has previously given self-serving explanations of his conduct to Mr Wang and to the police; and
(d)there is a motivation on his part to explain his conduct in this way, even if not true, because it would be a more acceptable rationale to explain his conduct to his wife and relatives.
30․So far as the counts of sexual intercourse are concerned, each incident was relatively brief and involved digital penetration. There was no violence or coercion. Each victim was in a vulnerable situation and was required to place trust in the offender. Of these charges, count 8 is the more serious, then count 4 and then count 1. Count 8 is in the mid-range of objective seriousness, counts 4 and 1 are below that.
31․In relation to the acts of indecency, they all occurred in an environment where the victims were required to and did place their trust in the offender. All of the incidents were brief and involved no coercion or threats of violence. The degree of physical contact and the part of the body involved indicates that count 6 is the most serious example of this offence. It is above the mid-range of objective seriousness. After that comes count 2. It is in the mid-range of objective seriousness. It is only less serious than count 6 because the extent of touching is less well-described. Counts 3 and 7 involve touching of the genital area through the underwear. They are in the low to medium range of objective seriousness. Count 5 involves a number of occasions of pressing his erect penis into the victim’s arm. Having regard to the repetition this is still in the low to medium range of objective seriousness.
Subjective circumstances
32․The subjective circumstances of the offender are described in a pre-sentence report dated 7 July 2023, in a report from a psychologist Mr Sam Borenstein dated 5 July 2023, a letter from his wife dated 12 July 2023 and a letter from the offender himself dated 12 July 2023.
33․The offender is 34 years old. He was born in China. His parents and his older sister remain in China. His parents are farmers. Shortly prior to the sentencing hearing, his father was involved in a serious car accident. The offender had a poor and difficult upbringing but without any history of trauma abuse or domestic violence. He studied Traditional Chinese Medicine. He met his wife in 2012 who was studying the same. They married in 2014 and migrated to Australia in 2015. His only other relative in Canberra is a female cousin. His wife does not have any family in Australia. He and his wife have a one-and-a-half year old daughter. He has lived with his wife and daughter in a house in Wright which is in the process of being sold in order to pay legal bills. He worked in Traditional Chinese Medicine in China. Up until his arrest he worked as a masseur. After that he has been self-employed, running a handyman business, working seven days a week in order to support his family.
34․Although his wife worked as an acupuncturist at the same business as the offender, after the birth of their daughter she has not worked outside the home. He provides financial support to his parents in China. He has no history of alcohol or illicit substance use. He has an unidentified health issue with his nose which is said to require surgery.
35․The letter from his wife attests to his hard work before being charged and since being charged in order to support his family. She attests that he is a good father. She states that her father died of a heart attack in October 2022 after hearing about the charges against the offender. The evidence was not sufficient to indicate a causal relationship. The letter also attests to her lack of support within Australia and the significant financial burdens that she will face if he is incarcerated.
36․As discussed earlier in these reasons, he explained to the author of the pre-sentence report and to a psychologist that he believed that the sexual touching of the victims involved the provision of an extra service which would lead to more patients and greater income. In his interview with Mr Borenstein he denied any sexual motivation but accepted that his reasoning and logic that his conduct would lead to further referrals was bizarre.
37․Mr Borenstein described the offender as emotionally immature, naïve and lacking worldliness. He also indicated that the offender repeatedly expressed guilt, remorse and contrition. He is concerned about the possibility of incarceration and fears the impact on his wife and daughter. Mr Borenstein suggests that he would benefit from consulting a Chinese speaking psychologist, preferably an older male, to address the obvious gaps in his emotional and psychosexual development.
38․In his letter to the court the offender describes his devotion to his wife and daughter and his work to support them. He describes being “helpless, anxious and petrified” because he does not know how his wife and child will be able to live when he is in prison. He reflects upon the circumstances of the victims of his offending:
Putting my feet in the other party’s shoes, I can see, if my wife, or my daughter, is wrongfully violated, I will never ever forgive the perpetrator! The more I am now feeling the pain the victims suffered, the more I hate my own stupidity. I apologize to all the victims and I apologize for the abominable notoriety that tarnished my workplace.
39․In a letter to the victims he says:
At the foremost I want to say my apologies to you. I feel deeply sorry for the harm and distress brought to you by my action. I do sincerely apologise to you, and I like to ask for your forgiveness.
…
Now, I make this undertaking that I will thoroughly reflect upon and rectify my wrongdoing. I will also proactively seek knowledge of law. Never again will I conduct such wrongdoing and hurt others out of ignorance.
Finally, I once again want to sincerely apologize to you and wish to ask for your forgiveness and understanding.
40․He is assessed by the author of the pre-sentence report as having a low risk of general reoffending and an average risk of sexual reoffending.
41․He is assessed as suitable for community service work condition and for an intensive correction order.
Criminal history
42․The offender has no criminal history.
Plea of guilty
43․The pleas of guilty were entered on 23 February 2023. The trial was due to start on 14 March 2023. Thus, the plea was a late one but had very significant utilitarian value because it meant that the victims of the offending did not need to give evidence. A reduction in sentence of between 10 and 15 percent is appropriate.
Time in custody
44․The offender spent two days in custody attributable to these offences.
Consideration
45․The offending occurred against six different women over a 23-month period. Each involved a breach of trust as the women were receiving therapeutic massage treatment from him and were in a position of vulnerability. Amongst the purposes of sentencing, general deterrence of sexual offending in such circumstances must be a significant consideration.
46․I do not accept the prosecution submission that little weight should be placed upon the offender’s prior good character because “it is his good character that enabled him to [practise] in the field and have access to these women”. It is not a case in which any registration was required which involved the establishment of good character such as might be the case with a registered physiotherapist or a doctor. I consider that this is not a case in which the court is precluded from placing weight upon offender’s good character.
47․As indicated above, it is not possible to reach a conclusion about the motivation for the offending. It is, however, very clear that the offender is highly motivated to support his wife and give his daughter a better life. The offending and the consequences of it have upset the plans for the future that he and his wife had been working towards. There is a significant prospect that he will be deported following completion of his period of full-time detention. I accept that he is very remorseful for his conduct and unlikely to reoffend.
48․The case is one in which the purposes of sentencing very clearly pull in different directions. In my view, the evidence indicates that the offender is at a low risk of reoffending. The consequences of his offending will be to destroy his anticipated future with his wife and daughter. I accept that he is genuinely remorseful in relation to the conduct that he engaged in and also deeply regrets the consequences of that conduct for his wife and daughter. Notwithstanding the good subjective case, it is necessary to give significant weight to the need to denounce the conduct, the need for general deterrence and the need to recognise the harm done by his offending to the victims and to the community.
49․The submissions for the offender were directed at achieving a sentence structure that involved the suspension of the sentence of imprisonment after a period rather than the setting of a non-parole period. This was put on the basis that there may well be impediments to achieving a grant of parole arising from his difficulties with the English language and any requirement that he complete a sex offender’s course prior to a grant of parole or from the lack of stable accommodation being available to him in order to facilitate a grant of parole. I accept that given his strong subjective case and the potential difficulties that might arise in relation to a grant of parole, this is a case in which the suspension of the sentence after a period in custody is an appropriate disposition.
50․Although there were six different victims and no connection between the offending against the separate victims other than the context of therapeutic massage, a significant degree of concurrency has been retained so as to achieve an overall appropriate sentence.
51․The sentences that will be imposed are summarised in the following table:
Count Starting point Sentence Cumulation 1 18 15 months 22 days 2 11 9 months 19 days 4 months 4 20 17 months 15 days 6 months 3 4 3 months 15 days 1 month 5 4 3 months 15 days 1 month 6 12 10 months 15 days 5 months 8 24 21 months 8 months 7 4 3 months 15 days 1 month 41 months 22 days 52․The total sentence is three years, five months and 22 days. The sentence will be suspended after the offender has served 16 months’ imprisonment, subject to a good behaviour order which will require him to perform 200 hours of community service. While the 16-month period is substantially below the usual range for a non-parole period, I consider that it is an appropriate term required to meet the purposes of sentencing in this case having regard to the subjective circumstances of the offender and the requirement to perform community service during the period of the good behaviour order.
53․The sentence will be backdated to take account of the two days spent in custody.
Orders
54․The orders of the Court are as follows:
1.On count 1, the charge of engaging in sexual intercourse without consent contrary to s 54(1) of the Crimes Act 1900 (ACT) (CC2021/11084), the offender is convicted and sentenced to imprisonment for 15 months and 22 days starting on 16 July 2023 and ending on 6 November 2024.
2.On count 2, the charge of committing an act of indecency without consent, contrary to s 60(1) of the Crimes Act 1900 (ACT) (CC2021/11086), the offender is convicted and sentenced to imprisonment for nine months and 19 days starting on 16 May 2024 and ending on 6 March 2025.
3.On count 4, the charge of engaging in sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT) (CC2021/10500), the offender is convicted and sentenced to imprisonment for 17 months and 15 days starting on 23 March 2024 and ending on 6 September 2025.
4.On count 3, the charge of committing an act of indecency without consent, contrary to s 60(1) of the Crimes Act 1900 (ACT) (CC2021/11079), the offender is convicted and sentenced to imprisonment for three months and 15 days starting on 22 June 2025 and ending on 6 October 2025.
5.On count 5, the charge of committing an act of indecency without consent, contrary to s 60(1) of the Crimes Act 1900 (ACT) (CC2021/11082), the offender is convicted and sentenced to imprisonment for three months and 15 days starting on 23 July 2025 and ending on 6 November 2025.
6.On count 6, the charge of committing an act of indecency without consent, contrary to s 60(1) of the Crimes Act 1900 (ACT) (CC2021/11080), the offender is convicted and sentenced to imprisonment for 10 months and 15 days starting on 23 May 2025 and ending on 6 April 2026.
7.On count 8, the charge of engaging in sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT) (CC2021/10499), the offender is convicted and sentenced to imprisonment for 21 months starting on 7 March 2025 and ending on 6 December 2026.
8.On count 7, the charge of committing an act of indecency without consent, contrary to s 60(1) of the Crimes Act 1900 (ACT) (CC2021/11076), the offender is convicted and sentenced to imprisonment for three months and 15 days starting on 23 September 2026 and ending on 6 January 2027.
9.The sentence is suspended after the offender has served 16 months’ imprisonment upon entering into an undertaking to comply with his good behaviour obligations for a period of 26 months with the following additional conditions:
i.that during the period of the undertaking or such lesser period as determined by the Director-General he be on probation subject to the supervision of the Director-General and obey all reasonable directions of the Director-General;
ii.that during the period of the undertaking he perform 200 hours of community service.
| I certify that the preceding fifty-four [54] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop Associate: Date: 24 August 2023 |
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