R v Shen

[2019] NSWDC 499

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Shen [2019] NSWDC 499
Hearing dates:	14 February 2019
Decision date:	05 April 2019
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	Convicted on each count. Sentenced in each case to a Community Corrections Order for 3 years to commence today, and to be served concurrently. In respect of each offence, I order that the offender perform 100 hours of Community Service.(Total: 300 hours) I request that Community Corrections NSW refer the offender to a CS NSW psychologist to undertake a dynamic risk assessment to assess whether he is suitable for a sex offender program. If he is found suitable, the offender is to participate in any program as directed. The offender is to continue with treatment from his current psychologist Mr Gerald Au for such period within the terms of the CCO as Mr Au deems necessary. The offender is to report to Burwood Community Corrections office at 11 a.m. on Monday 8/4/19.
Catchwords:	CRIMINAL – Sentence – 3 offences of assault with an act of indecency – massage therapist – no criminal antecedents – discount for plea - subjective matters
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v Qin [2008] NSWCCA 189
Category:	Sentence
Parties:	Regina SHEN, Zhenchong
Representation:	Counsel: Mr B Clark Mr H Dhanji SC Solicitors: Crown: Mr A Fiorenza Defence: Mr J Lu SHL and Associates Lawyers
File Number(s):	2017/171654
Publication restriction:	NPO in re the name of the complainant or anything that might tend to identify her.

Judgment

1. HIS HONOUR: In this matter, Zhenchong Shen appears for sentence in respect of three offences, each being an offence of assault with an act of indecency, contrary to s 61L of the Crimes Act 1900. In respect of each offence there is a maximum penalty of five years’ imprisonment. There is no relevant standard non-parole period.

2. The facts are agreed and are as follows, although I will endeavour to omit some of the unnecessary detail.

3. The offender was a massage therapist working in a commercial business for approximately three years. The victim was aged 37 years and had been attending the particular business on a continuing basis for about four years. She received massages from a variety of persons at that business. On 5 June 2017, she attended the parlour at 6.20pm; there were then no other persons in the parlour. She entered a cubicle and undressed, leaving only her underpants on. She lay face down on the massage table with her face through the hole in the table. The offender attended and asked if she was ready. He entered the cubicle, placed a towel on her back and tucked the towel into her underwear. She requested a one hour massage.

4. He commenced the massage and she initially fell asleep for a short period. He later removed the towel which had been tucked into her underwear and removed her underwear which she thought was very odd. She was feeling a little groggy at the time, having just woken up and was wondering if the offender was doing a different massage that required more access to the thighs. The offender covered the victim’s right leg and buttock and then bent her left leg so that her left foot was against her right calf and commenced massaging her meridian (an acupressure point). Standing on the victim’s left side, the offender started massaging her inner thigh, inching up towards her groin, and then started massaging her groin area. The offender then rubbed his hand up and down the outside of the victim’s genitalia. He did this about ten times. (Count 1)

5. [I note the agreed facts refer to “the vagina”, which is in fact an entirely internal organ, and if he had massaged the vagina he would have been committing an act of sexual intercourse. It constantly surprises me that the facts provided to the Court describe the genitalia as the vagina. Unfortunately many medical practitioners have the same wrong habit.]

6. He stopped and commenced massaging the rest of her leg down to her feet. The victim felt confused and tense and did not know what to say or how to react. The offender then moved the towel to cover her left leg and positioned her right leg against the left like before, and again started to massage her right meridian, inching towards her groin. He then started massaging the groin area while standing on her right side, running his hand up and down her genitals on the outside. He rubbed her genitals vigorously for a couple of seconds. (Count 2)

7. The victim was in shock and did not know what she was meant to do. He then massaged the rest of her right leg normally. He then covered both of the victim’s legs and buttocks with a towel and left the cubicle. The victim heard him washing his hands before he returned to the cubicle and told the victim to turn over. She rolled onto her back with a towel covering her chest and a towel covering her legs and stomach.

8. The offender was standing at the top of the victim’s head; the victim’s eyes were closed so that she was not looking at the offender. The offender then removed the towel covering the victim’s chest so that her breasts were exposed. That was not a legitimate part of the massage. The offender commenced massaging the victim’s upper chest normally. He then moved his hands to the victim’s breasts and started playing with her nipples. He did this for about 15 to 20 seconds. (Count 3)

9. The offender then kissed the victim on the forehead, she opened her eyes and moved and he said, “Sorry, sorry”. She grabbed a towel to cover herself, the offender helped her to cover herself, the victim then closed her eyes and the offender then continued the massage of her legs. Whereas she would normally separate her legs to allow the masseuse to completely massage her thighs, this time she kept her legs together and a hand over the towel covering. The offender endeavoured to massage her groin area again but the victim kept her hand on the towel to prevent him. She twisted her body away from him and he continued to massage her right leg, then moved to her left leg. He then started massaging her left thigh and started to move towards her groin. Her hand held the towel in place and she made a noise indicating she did not want him to do it. He continued to massage the rest of her leg. He then started massaging the victim’s stomach with the towel on. She felt him trying to move the towel down trying to access her groin area. Her left arm covered her chest and her right hand was keeping the towel in place covering her pelvis. The offender resumed massaging the victim’s chest and armpit area. The victim pulled both hands up to cover her chest. She felt him inching towards her breasts. The offender picked up the victim’s hands and started massaging them. He then moved to her neck, forehead and brow before declaring the massage was finished.

10. She waited until he had left the cubicle before she got up and got changed. She exited the cubicle but did not speak to him. She paid for the massage without looking at the offender and then left. She felt anxious, unsettled, confused, upset and violated. She messaged a friend and provided some detail about the incident, and at his suggestion and some little time later she attended a police station and made complaint.

11. On 7 June 2017, police attended the massage parlour and arrested the offender. When interviewed he denied any wrongdoing. He was, as a result, in custody for two days from 7 June 2017 to 8 June 2017.

12. When discussing this matter before I omitted, to return to a topic that I said I would return to, which was the amount of the discount for the utility of the plea. The Crown submissions were that a discount in the range of 10-15% would be appropriate. I note that the plea of guilty was referred to on the Crown Sentence Summary as having been entered on 12 September 2018. Provided with the information on the Crown Sentence Summary that it was an amended indictment, I concluded that there must have been a more serious offence which had been alleged which caused all of the matters to come to this Court. Accordingly, I had checked the progress of the matter since the offender was charged. He was committed for trial from the Sydney Downing Centre Local Court on 24 October 2017. It was listed for arraignment at the Downing Centre on 3 November 2017, at which time the records demonstrate that there was one offence of sexual intercourse without consent and three acts of indecency.

13. When it came before the Court on 3 November 2017, there was apparently no appearance by either party, and it was listed for trial on 10 September 2018. It came before North DCJ on 10 September 2018, when it was adjourned to the following day, 11 September, and on that day it was adjourned again by his Honour to 12 September and listed for arraignment. Accordingly, between the 10th and 12th there were discussions between the parties which resulted in the Crown removing from the indictment the sole count that ensured that the matters came to this Court.

14. On 12 September 2018, a plea of guilty was entered to the amended indictment before Williams DCJ and the matter came before me for sentence initially on 14 February 2019.

Does anyone have any complaint that any of the dates that I have referred to or the nature of the original charges is wrong?

FIORENZA: Not for our part, your Honour.

DHANJI: No, your Honour.

HIS HONOUR: Mr Crown, was there any offer to plead guilty to the indecent assault charges from the time that he was committed for trial, or before committal, as in fact a complete disposal of the charges?

FIORENZA: The first plea offer from defence came the Friday before the trial date.

15. HIS HONOUR: I can see Mr Clark is nodding and that’s accepted. Alright. So it’s a belated plea in relation to the assault with act of indecency charges, and of course the original asserted act of sexual intercourse is irrelevant because it has been removed or no billed.

16. In those circumstances, in my view, the offer to plead to the three counts of assault with an act of indecency was belated, and not until such time as the matter had been prepared fully for trial, and in those circumstances, I assess the appropriate discount for the plea of guilty as being in the order of 10%.

17. I accept that the following matters are relevant to the objective seriousness of the offences:

• That the offender on three occasions indecently assaulted the victim during a single massage.

• He acted when she apparently fell asleep during the massage by removing her underwear without her consent.

• He rubbed the victim on the genitalia on two separate occasions and the rubbing was substantial, at least on the first of those two occasions, and vigorous on the second.

• He continued the assault on her when he was not aware that she had woken up, and continued the assault by placing his hands on her breasts and playing with her nipples.

18. I accept that the facts demonstrate that it is likely that the assaults would have continued in the absence of the complainant’s conduct to protect herself and her efforts to stop him.

19. I accept that she was in a vulnerable state, having placed her confidence the hands of a therapeutic practitioner. In my view, although I accept that the act of massaging the breasts is slightly less serious than the two acts of rubbing the genitals, I however accept that each of the 3 acts is an act of indecent assault which falls within the mid-range of objective seriousness.

20. I accept as to s 21A that there is an abuse of trust or authority in relation to the victim as referred to in R v Qin [2008] NSWCCA 189, where it was held that a relationship between a masseur and a customer was one of trust. That is s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999.

21. Having already indicated that I have concluded that a discount of 10% for the utility of the plea of guilty alone is appropriate, I would apply that discount.

22. I have already, prior to giving my reasons on sentence, discussed most of the relevant factors. I will to some extent repeat them but I will also rely on what I have previously said.

23. I note that I accept that the offending had a significant impact on the complainant, but that that impact on the basis of the Victim Impact Statement does not go beyond what could be expected as the ordinary and expected consequence of conduct such as this.

24. I accept that the offences were opportunistic and that there was no significant force involved. I do not accept that the offender was reckless as to lack of consent. In my view the offender, as a professional masseur, knew that his client was not consenting to his conduct.

25. I note that he has no previous criminal history and is now some 40 years of age. A number of references have been provided to the Court, including from his sister, Qing Shen, his doctor, Dr Dan Wang, dated 20 November 2018, a fellow masseur, Ms Liu, dated 10 September 2018, a further masseur, being Ms Xin, dated 10 September 2018, as well as a letter to the Court from Andrew Schofield, a Major with the Salvation Army, dated 23 January 2019, a number of certificates from the Salvation Army in relation to his attendance and completion of the Positive Lifestyle program and a certificate of appreciation, dated 26/1/2019, an unsigned letter from Dr Cooper of 15 December 2018, he being a doctor from the Sydney Local Health District Endocrinology Out Patient Clinic in relation to a diagnosis of the offender suffering from adrenal adenoma and being prescribed with the relevant medications, and some other relevant health summary sheets as to the various medications provided for the offender. I note that they indicate that he has had a number of medical problems that have been treated in the past and that he also suffers from diabetes. In my view, however, there is nothing particularly significant in relation to his medical history which would affect the sentence outcome.

26. In addition, documentation has been provided indicating that the offender is in receipt of a Carer payment as he is the provider of care for his 73 year old mother, who is suffering from severe arthritis with poor mobility, hypotension, macular degeneration and gastroesophageal reflux disease. I have prior to today taken into account all of that material, including the statistics provided by Mr Clark on the last occasion.

27. There is a further report dated 17 February 2019 from Lieutenant Wang of the Salvation Army. It indicates that the offender has been volunteering at Bankstown Salvation Offices on Wednesdays and attending Sunday church regularly each week. He is said to have helped with various tasks, including with food preparation for the homeless and people experiencing crisis. He has assisted with serving food and cleaning up and helping with other general cleaning duties, sorting and distributing gifts during the Salvation Christmas 2018 program, providing assistance to, in particular, the homeless at Christmas, as well as vulnerable persons and the church community. He is said to have helped many people who come to the Salvation Army seeking assistance. During his time assisting the Salvation Army, Mr Wang has found him to be reliable and trustworthy, punctual and to complete his tasks to a high standard. He was able to work unsupervised and cooperated well with those around him. He was hard working and always willing to accept assigned tasks. His assistance was said to be highly desired and appreciated.

28. In addition, there is a further report from Mr Au, being a psychologist who commenced treating Mr Shen on 30 September 2018. He was apparently initially referred by his GP, Dr Wang, as a result of feeling depressed and stressed as a result of being charged in relation to these matters. He is said to have expressed remorse and to feel ashamed of himself, and wished to apologise to the victim. He was said to be motivated to attend treatment on a regular basis. His first session was on 30 September 2018, and he has as of 5 April 2019 attended six sessions of treatment, with the last being on 3 March 2019.

29. He apparently came to Sydney in 2007 to join his mother and elder sister who were already living here. He married in 2009 to his long-time girlfriend in China but divorced in 2011, his wife finding it difficult to adjust to Australian life and returning to China. He has remained single since that time. He has few interests and hobbies, and a small circle of male and female friends. Although he has lived in Sydney for more than 12 years, his English is poor, which is obviously a barrier to his engaging in wider social interactions and activities.

30. He has limited interests and his social life does not have adequate opportunities to develop close relationships with the opposite sex, which is an area clearly in relation to which he has troubles. He has since joined the church and attended bible classes, and as I referred to, he is now held in high regard by the officer of the Salvation Army as a result of his participation in their activities. He has also, I understand, been attending English classes provided by the church to reduce his communication barriers with others in the community.

31. By 24 February 2019, which was when he last consulted Mr Au, his anxiety and depression had returned to a normal level. It is opined by Mr Au that treatment and his own efforts have produced, “positive improvement of his mental health, his social behaviours and interactions and his overall well-being”.

32. Before the Court is a Sentence Assessment Report by David Playwright, dated 4 April 2019, and an additional Sentencing Assessment Report in re consultation/psychology from a Mr or Mrs Hong, being a psychologist with Corrective Services New South Wales Department of Justice.

33. I note that the offender, prior to committing the offences, had been employed as a massage therapist for approximately three years since 2007 without incident.

34. As previously referred to, he has no criminal history. He expressed embarrassment and shame to the pre-sentence officer and he was assessed by Ms Hong as being a below average risk of re-offending relative to other male sex offenders, based on actuarial risk factors. He is said to have recognised the emotional and psychological harm his actions may have had on the victim, and expressed a willingness, which I take to have been in fact demonstrated, and ability to undertake forensic psychological intervention to address his offending sexual behaviour. He is said to have been willing and able to undertake Community Service, and that assessment was made taking into account the information provided by him as to his medical issues.

35. He was assessed as T2/low risk of re-offending according to the Level of Service Inventory (revised).

36. A supervision plan is referred to, being that he would be referred to a Corrective Services NSW psychologist to conduct a comprehensive dynamic risk assessment of his risk of re-offending and whether he is suitable for sex offender programs. No other condition was recommended as a part of supervision. He was assessed as being suitable to undertake Community Service work.

37. Taking all of that material into account, I accept that the offender is, despite the belated plea, genuinely remorseful and contrite and a person with good prospects of rehabilitation, provided he receives the assistance in the community that has been referred to from Mr Au, as well as any supervision he is directed to comply with by Community Corrections.

38. I note in respect of this matter that Mr Clark, barrister, appeared for the offender on 14 February 2019, and that his short submission at that time was consistent with a concession that the s 5 threshold had been passed, but that the matter could be appropriately dealt with by way of an ICO order. I note today that the offender has had the benefit of senior counsel, Mr Dhanji, appearing, who similarly made such a concession in oral submissions today, although I note that in the written submissions provided by Mr Dhanji SC and Mr Clark, at para 7 under the heading ‘Resolution’, says:

“In the event that the Court determines that the threshold in s 5 of the Crimes (Sentencing Procedure) Act 1990 has been crossed it is submitted that:

any sentence of imprisonment can be served by way of an Intensive Corrections Order; and any aggregate sentence would not be more than 12 months.”

39. The Crown, from the outset, in relation to the written submissions provided on 14 February 2019, has submitted that the s 5 threshold has been passed and no sentence other than imprisonment is appropriate, although the Crown, Mr Fiorenza, has today accepted that an Intensive Correction Order is within the appropriate range. As I indicated, before embarking on these reasons, which have been delivered somewhat in haste because of the other matters that are before me today, having given the matter careful consideration between 14 February 2019 and today, and having taken into account all the additional material that has been provided, I have come to a view more favourable to the offender that has been posited as appropriate initially by either of the parties.

40. Having raised that issue, I note Mr Dhanji SC has in effect withdrawn the concession that the matter requires a fulltime period of imprisonment which can be dealt with by way of an Intensive Correction Order.

41. As I previously indicated, I am of the view that the appropriate sentence in this matter is a Community Correction Order, which would see the offender able to continue to obtain assistance in the community in relation to any potentially ongoing problem. I accept that he has made significant efforts to rehabilitate himself in the community in the interim period. I realise that the submissions made by the parties may make my decision a difficult one to maintain elsewhere. However it is incumbent on me to provide the penalty that I think is appropriate, even though I accept that the guidance provided by the parties has not been inappropriate.

42. Taking all of those matters into account, and noting that although I have said there is a small difference in seriousness between the two acts of genital rubbing and the act of breast rubbing, I am of the view, this being three acts all occurring on the one occasion, that it is appropriate to impose concurrent sentences.

43. In each case the offender is sentenced to a Community Corrections Order of three years to date from today. I order that in relation to each of the three offences, he perform 100 hours of Community Service, giving a total Community Service Order of 300 hours. Further, I order that Corrective Services New South Wales refer him to a psychologist to conduct a comprehensive dynamic risk assessment and determine whether he is suitable for a sex offender program. If held suitable, he is to participate in any sex offender program as designated by Community Corrections within the period of the three-year Community Correction Order.

44. I should further note for the sake of the Court of Criminal Appeal that each of these offences was capable of being dealt with in the Local Court in the absence of an election by the prosecution, and could in fact have been remitted to the Local Court once it was resolved that the act of sexual intercourse would not be continued with. Accordingly, the reality in relation to this matter is, in my view, that the effective appropriate maximum sentence for each of the offences was two years, rather than the maximum of five years as it is in this jurisdiction.

There are, no doubt, many things that I have omitted to say. Is there anything significant that either of you believe should be added?

DHANJI: Only this, your Honour, insofar as your Honour has used the language that “effective maximum in the Local Court”, no doubt your Honour is referring to “effective” in terms of it being a limitation, rather than a maximum of that.

HIS HONOUR: Yes. It was with that in mind, Mr Dhanji. Mr Crown?

FIORENZA: No, your Honour. I just wanted to ask whether your Honour would consider making it a condition of his CCO that he continues treatment with his psychologist.

HIS HONOUR: Yes.

45. I will also make it condition of his Community Correction Order that he continue with treatment with his psychologist, Mr Au, at least for such period as Mr Au finds appropriate within the period of the Community Correction Order of three years. For the purpose of the Community Correction Orders, he is to report to the Burwood Community Corrections office on 8 April 2019 at 11am.

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Amendments

16 September 2019 - Change to Coversheet to include Defence solicitor and firm

16 September 2019 - Spelling error corrected on coversheet

Decision last updated: 16 September 2019