SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  The applicant, Godfrey Mewton Graham Owen, pleaded not guilty on 26 November 2007 to one count of rape and three counts of sexual assault.  On 27 November 2007 he was acquitted on the first count of rape and the first two counts of sexual assault, but convicted on the third count of sexual assault.  He was sentenced to imprisonment for nine months.  He initially appealed against his conviction and applied for leave to appeal against his sentence.  He has since abandoned his appeal against conviction.  He was granted bail pending appeal in December 2007 after serving 25 days in custody.

[2] Mr Owen was a massage therapist.  He had previously massaged the complainant's husband who engaged him to give the complainant a massage.  The complainant was about 37 years old, the mother of three children and was about four or four and a half months pregnant with her fourth child.  The massage took place at about 9 am on 7 December 2006 in the complainant's home.  Her two school age children had left for school and her husband had taken their third child, aged about nine months, with him so that the complainant's massage would be uninterrupted. 

[3] The complainant gave evidence that during the course of the massage Mr Owen cupped his hands around her breasts and pulled on them (count 2 – indecent assault).  He rubbed her vagina with his finger and parted the labia (count 3 – indecent assault) and then put two fingers into her vagina and moved them in and out two or three times (count 1 – rape).  He was found not guilty on these three counts.  The complainant gave evidence that he then put his hands on her hips, puckered his lips and bent over her.  She felt his lips brush her pubic hair but he did not touch her skin (count 4 – indecent assault). 

[4] On 11 December 2006 the complainant telephoned Mr Owen.  The phone call was recorded by Gympie police.  She said she wanted to discuss what happened the other day and that she was "not very comfortable about it".  He apologised.  He said it was his mistake and he thought she wanted him to keep going; when she said she was starting to really enjoy the massage he took it the wrong way.  He apologised on a number of occasions.  He offered to refund her husband's payment for the massage.  He continued to apologise, stating that he was "extremely sorry".

[5] Mr Owen was interviewed by police on 13 December 2006.  He gave the police a detailed description of how he conducted the massage but denied the inappropriate conduct of which the complainant gave evidence.  After he had massaged her inner thigh on one leg she put her hand there and said, "I'm starting to really enjoy that for all the wrong reasons".  He apprehended that she meant she was becoming aroused.  He was a bit surprised.  He moved straight away and down the leg.  He was not sexually aroused.  He completed the massage.  A male friend of the complainant arrived, by which time he was already packing his equipment.  He left shortly afterwards.

[6] The applicant had no prior convictions.  A number of references were tendered on his behalf which supported the submission that the offence was out of character.  He was 47 years old at sentence.  He was married with four children aged 12, 10, 9 and 7.  He had worked as a massage therapist for 17 years.  Additionally, he ran the family farm at Imbil.  He and his wife care for his disabled elderly mother.  He is the only driver in the household; his mother, wife and children depend on him for transport.  He is active in the local school's parents and citizens association and the Rural Fire Brigade. 

[7] The judge found in his sentencing remarks that:

"… the acquittals on counts 1 to 3 seem to me to be consistent with the jury concluding that they accepted [the complainant] as a witness of truth, but not being satisfied beyond a reasonable doubt that the Crown had excluded the operation of honest and reasonable mistake of fact in relation to those counts.

That is in my view … consistent particularly with the redirections the jury sought in relation to that particular evidence, and particularly relevant is her statement that after the incident in count 1 of which you have been acquitted, she said, "No, stop," and pushed your hands away."

[8] The learned sentencing judge additionally noted the following matters.  Mr Owen did not have the mitigating benefit of the remorse shown by an early plea of guilty.  The complainant had been cross-examined three times and although no victim impact statement had been placed before the court, it was clearly an unpleasant experience for her.  The single offence of which Mr Owen was convicted was an isolated incident and completely out of character; he succumbed during the course of the massage to sexual feelings.  The jury's verdict was consistent with them accepting what Mr Owen told the complainant in the pretext telephone call and with them rejecting his exculpatory version given to police.  The offence was a significant breach of trust.  His Honour added:

"… the Court of Appeal [has] referred on many occasions to the importance of imposing sentences that send a message to people like a masseuse, physiotherapist and other people, who because of their professional status and because of the nature of their work, have access to people in quite vulnerable situations."

[9] His Honour then referred to the relevant mitigating factors and ultimately determined that he should impose a sentence of nine months imprisonment.

[10]  As the learned primary judge recognised, the complainant was vulnerable because she was being treated by Mr Owen, a massage therapist, alone in her home wearing only underpants and with the partial covering of a towel.  Mr Owen betrayed the trust placed in him by the complainant.  She was, however, an adult woman with some worldly experience: cf R v Fereiro.[1]  Although she had not had a massage before, she was the mother of three children.  The offence did not involve any force or violence.  The applicant succumbed to sexual feelings during the massage.  There is no suggestion he had done such a thing before.  After he committed this offence, and the complainant finally persuaded him that she was not consenting to his advances, he desisted.  In the prextext phone call a few days later when she again made very clear her unhappiness about his actions, he was unequivocally apologetic. 

[11]  Whilst deterrence was an important factor in sentencing Mr Owen,[2] his Honour does not seem to have appreciated that this could be achieved without a period of actual detention.  The tendered references demonstrate that he is a man of otherwise good reputation in the local Gympie community.  He supports his wife and their four children and his aged mother.  The publicity surrounding Mr Owen's court appearances and subsequent conviction and sentence in open court must have been humiliating for him and, indeed, for his innocent family.  This has, of course, detrimentally affected his massage business.  The recording of a conviction was necessary and this, too, provides a substantial deterrent to someone like Mr Owen because of its inevitable ramifications.  A fully or partially suspended sentence was capable of being a very real deterrent punishment both to him personally and to others who might behave in such a manner.  In apparently not giving genuine consideration to fully or partially suspending the nine month sentence of imprisonment, a sentence which would still have satisfied the requirements of general and personal deterrence in the circumstances, his Honour unnecessarily fettered his sentencing discretion. 

[12]  The application for leave to appeal should be granted, the sentence imposed at first instance set aside, and this Court should re-exercise the sentencing discretion.

[13]  The serious aspects of this offence required the recording of a conviction and a term of imprisonment.  The sentence of nine months imprisonment imposed by the primary judge was within the appropriate range although it could have been fully or partially suspended.  Mr Owen has now spent 25 days in custody.  Balancing the competing considerations, the most appropriate sentence to now impose is that imposed originally by the learned primary judge but that term of imprisonment should be suspended after 25 days with an operational period of nine months.

Orders:

1. The application for leave to appeal against sentence is granted.

2. The appeal is allowed.

3. The sentence imposed at first instance is varied by ordering that it be suspended after serving 25 days imprisonment with an operational period of nine months.

[14]  MACKENZIE AJA:  I agree with the reasons of the President and with the orders she proposes.

[15]  DAUBNEY J:  I concur.