Magistrates Court : Hao, L

CONSTABLE JULIE McCULLOUGH v LIN HAO

20 SEPTEMBER 2022

COMMENTS ON PASSING SENTENCE - HARTNETT JG

Mr Hao, you plead guilty to an assault with indecent intent contrary to s.35 (3) of the Police Offences Act 1935. Your plea of guilty is a mitigating factor.

The events which lead to the charge occurred on the 15 February 2022. During the sentencing hearing a factual dispute arose. I heard evidence as to the disputed facts and will need to make findings for sentencing purposes.

I turn firstly to the facts for sentence not in dispute.

On 15 February 2022 you were employed at Wellness Massage Studio as a masseuse. At about 5.30 pm a young woman attended the Wellness Massage Centre for a massage treatment. She was not known to you. You were allocated by your employer to provide the treatment. The victim went into a space allocated for massages, undressed removing all of her clothes apart from underpants and lay on the massage table on her front with a towel draped over her. The victim’s bare arms protruded beyond the massage table. The table had an internal face hole. The victim wanted a remedial massage focussing on her neck, back and shoulders.

As you entered the massage space you let the victim know you were in the room and commenced the massage. The victim was face forward with her face in the internal face hole when you placed your clothed testicles into her upturned hand. The victim did not say anything when you did this but moved her hand away. There is no typical way people may respond in such unexpected non-consensual touching. It is not unusual that victims are unable to verbalise unwillingness.

You then took the victim’s right arm forcefully and guided her hand across and onto your groin, pressing her hand into the area. You leant towards her stated “you can touch it if you like?” It is a reasonable inference that you had placed her hand onto your penis. The victim was not consenting. She was in shock and stated “no” and that the massage was over. You began apologising and offered to complete the massage for free. You started massaging her again, she told you to stop, and you again apologised.

The victim left the cubicle area and immediately reported the matter to police. Two women at Wellness Massage also provided statements as to their observations.

The dispute as to the factual basis for sentence arose during the plea in mitigation. Your counsel submitted in written submission that you should be sentenced on the following further factual events:

It was an accident that your groin brushed against the complainant’s arm as they extended beyond the table.
Immediately following this accidental brushing, you asked the complainant if she “liked that” and received the response “yes.”
You asked a further three (3) times and received the same response.
You then took the next step and committed the acts the subject of the charge.

Your counsel submitted that you mistakenly believed that there was consent to the acts and that you should be sentenced on this basis. It was submitted that you did not appreciate, but now do, that even if the complainant acknowledged her agreement to the initial accidental touching that did not extend to the conduct the subject of the charge unless she explicitly consented to that conduct. A mistaken belief is a relevant consideration to your moral culpability. It was submitted that the chance encounter progressed to the act rather than the charged act being viewed in isolation.

Prosecution disputed the factual foundation asserted and that you held a mistaken belief. In finding facts for sentencing purposes, I may only make findings of fact in favour of the defendant if they are proved on the balance of probabilities.

On 31 August 2022 I heard evidence as to the identified dispute. The defendant gave sworn evidence and was cross examined. The victim gave evidence and was cross examined.

The defendant’s evidence on oath was:

That the complainant had filled out a form wanting a remedial massage to her neck, back and shoulders.
That the complainant was face down on the table and he was on her left side
Her elbows over hung the table.
His body, specifically his groin, came into contact with her elbow 3 or 4 times
His groin was level with the table height.
Each time his groin touched her elbow he said, “do you like it?” to which he received a “yes” each time.
Each time it happened he was still massaging the victim when she said yes.
He said that he believed that she was agreeing to his groin area touching her elbow.

The defendant was cross examined. During which:

He accepted that when he massaged people, he would check with them to see if the pressure was too hard or too soft
He would check this usually when he started the massage.
He said that his body did not come into contact with people he was massaging very often but did on this occasion due to the way her elbows protruded from the table and because he had to protect his lower back.
He said she was face down when her elbow came into contact with his groin.
He said she did not turn her head when the contact occurred.
It was put to him that he spoke only twice during the massage. He responded it was more than two times.
It was put to him that he had asked her if the pressure was ok. He responded there was a possibility he had asked but he could not remember
He accepted that she could not see the contact, and she could not have seen.
It was put to him that when Ms. Downham said yes it was in response to a question about the pressure of the massage. He disagreed.
It was put to him that at no stage did he believe that Ms. Downham was agreeing to be touched by groin, he disagreed.

The victim’s evidence on oath was:

that the only verbal interactions with the defendant during the massage were – when he entered the room, when he asked if the pressure was ok and then when he grabbed her arm and said “you can touch it if you like.”

The victim was cross examined. During which:

It was put to her that during the massage his body pressed against her elbow. She responded that he was constantly touching her with his pelvis.
She denied that on 3 or 4 occasions when his body was against her elbow, he said do you like it;
She said that the only response she gave was in response to a question as to the pressure being ok.

The evidence will be considered in the context of the undisputed facts. The chronology of the events the defendant sought to prove was not led from him, however it was submitted that the events occurred immediately before the defendant placed his clothed testicles in the victim’s hand.

In assessing a witness, I bear in mind of course that I may accept some but not all of a witness’s evidence, that a witness may be mistaken or lying about some part of their evidence but no other parts. It is not all or nothing.

Mr Stevens submitted that I ought to accept the defendant’s evidence because it was a credible account, that it was unchallenged in cross examination and that it makes logical sense in light of the words used when the particularised conduct occurred.

I have considered Mr Stevens’ submissions carefully including as to whether his evidence as to “do you like it” was unchallenged. It is true that it was not put explicitly to him that those words were not said but it was by implication. In cross examination it was put that there were only two conversations, one being about pressure and that the only affirmative response given by the victim was to a question about pressure. He rejected both suggestions. Even if his evidence as to the words were unchallenged, a court would need to be satisfied that it is believable account. I do not believe his account. The defendant was a masseuse, he was carrying out a remedial massage in the course of his employment on a stranger. It is unbelievable in these circumstances following his groin accidentally brushing her elbow that it would cause him to say “did you like” to her at all. It is unbelievable that if such a question was asked that the client would think it related to the elbow touch, as opposed to the massage he was carrying out. It was unclear why, when this accidental touch occurred, he didn’t simply move her arm to avoid contact, given the way he portrayed her arms in the witness box. It is simply unbelievable that in a remedial massage he would ask her if she liked a sexual touching to her elbow. His evidence that he recalled these three conversations specifically but not whether he had asked her about the pressure impacted on his credibility.

The victim’s evidence conflicted with the defendants. Her evidence was that there was no such question asked or answer given. I have considered whether she was mistaken as to what was said during the massage. She was clear and emphatic in her denials. She was, although face forward, attentive to what was going on. The circumstances are such that I am satisfied that she was not mistaken. I accept the truthfulness of what she said in the witness box. She presented was a credible witness.

Considering all the evidence, I am not satisfied to the requisite degree that you asked or said anything to the victim when your groin came into contact with her bare elbow.

Your evidence established that you viewed the elbow contact, which I accept may have been accidental initially, as a sexual touching. I am satisfied that following a lack of physical resistance to it, you were encouraged to act in the way set out in the undisputed facts. You invented the subject exchange with the victim to cover the fact that you did not honestly believe that she was consenting. You must have appreciated that she may not be consenting but acted despite that risk for your own gratification. This conclusion is supported by you being prepared to forcefully move her arm to your groin. The words used by you after are to my mind equally applicable with these circumstances.

You will be sentenced on a basis consistent with those findings and the undisputed facts.

You are 34 years of age. You have no prior convictions. This is a mitigating factor in your favour. I have a reference from a long-term friend who speaks highly of you. I accept you are person of otherwise good character.

You were born in China. Your home life was stable, and you remain close to your parents and sister. You had a good work history in China.

In 2014 your sister came to Australia and later obtained permanent residency. In 2018 you and your parents came to Australia to visit your sister. Following that visit you all decided to immigrate to Australia. You closed your business and moved to Australia. Your parents reside in Melbourne under a parent visa. They are each over 72 years of age. You came to Australia on a student visa but are not currently studying. You obtained a massage certificate in Australia. You have commenced the process of obtaining a work visa as the first step in obtaining a permanent residence visa. You continue to work as a masseuse.

In 2020 you met your now fiancé, and you live together in New Town. It is her intention to ultimately apply for permanent residency.

You regret and are ashamed of what you did. You appreciate that your actions may well have caused great harm to the victim. It was evident that your unlawful conduct has caused and continues to cause distress to the victim given what I observed in the witness box.

It was asserted in your plea that you had consulted with a psychiatrist, read books, and taken other steps to reconcile your conduct. Although no report from a suitably qualified expert was tendered.

You provided a letter of apology, a copy of which was sent to Police Prosecutions on 21 July 2022 to pass on to the complainant. A copy was tendered during sentencing submissions. This has mitigating weight in the sentencing process.

I accept that you assisted the investigation, desisted when confronted by the victim. There was an absence of some of the aggravating features after the unlawful act.

I accept that there are a number of mitigating factors that weigh in your favour.

Your counsel submits that I ought not record a conviction and proceed pursuant to s.7 (f), (g) or (h) of the Sentencing Act. It is submitted that s.58 (e) of the Sentencing Act is relevant to your circumstances.

Section 9 of the Sentencing Act sets out a non-exhaustive list of matters which must be considered in the exercise of the discretion whether or not to record a conviction including.

(a) The nature and circumstances of the offence; and

(b) The offender's antecedents and character; and

Your offence involved a breach of trust. The victim trusted you to act properly towards her when you performed your occupation. You breached that trust when the victim was vulnerable for your own sexual gratification. She was entitled to be safe from such behaviour when attending for a massage. There is a need for the sentence imposed to act as a deterrent to those who may act to abuse the trust placed in them by virtue of their similar occupation. It is not a minor or trivial matter. A conviction in part serves to vindicate the victim.

I take into account your lack of prior convictions and previous good character. Your counsel submits that a conviction will impact your wellbeing, or employment prospects in so far as it will make it much more difficult for you to satisfy the Commonwealth that you are good character, sufficient to retain your visa or successfully obtain future visas or permanent residency. I will take into account that you are concerned as to the impact a conviction may have on your permanent residency application. It is hard to assess the potentiality of its impact and the consequences that you indicate could flow. Of course, residence in this country pursuant to a visa involves an extension of the community’s trust that you will obey the law and avoid offending. Committing these offences breaches that trust.

It was further submitted by defence counsel that a conviction would lead to a significant reduction in your prospects for employment in the future, if not making it impossible for you to obtain employment. You are still employed as a massage therapist. Of course, not recording a conviction is capable of considerable effect in the community. Persons who might have an interest in knowing the truth in such matters include potential employers, insurers, and various government departments. When considering whether to record a conviction, a court must weigh up the public interest, and the need for an official record to be made of the commission of the offence, against the beneficial nature to the offender of a conviction not being recorded. In my view given the nature of the offence and your occupation at the time, the public interest requires a conviction be recorded.

Assault with indecent intent is a class 1 offence under the Community Protection (Offender Reporting) Act. The Court must make an order directing the defendant’s name be placed on the Register unless satisfied that the defendant does not pose a risk of committing a reportable offence in the future. Your counsel submits that you do not pose a risk of committing a reportable offence in the future on the basis that you are a mature man without prior convictions, are otherwise of prior good character, have an appreciation of the offending and its consequence and know that you could be deported. Of course, as to that last aspect, you risked that when you committed this offence and that was not a deterrent.

Having considered all the circumstances I am not satisfied that you do not pose a risk of committing a reportable offence in the future for a number of reasons including that I have no explanation as to why you acted in the brazen and risky way you did on this day when many of the protective factors relied on existed at the time you offended. Accordingly, I will make an order.

Taking into account all the circumstances, Mr Hao, you are convicted and fined $2500.

I make an order directing that the Registrar cause your name to be placed on the Community Protection Offender Register and that you comply with the reporting obligations under the Community Protection (Offender Reporting) Act 2005 for a period of two years.

Burnie

Devonport

Hobart

Launceston