By Sonia Hickey and Ugur Nedim
A judge in Downing Centre District Court has granted bail to a Sydney masseur after a jury found him guilty of sexually assaulting a female client.
Anthony Theodosiou pleaded not guilty to five counts of indecent assault and three of sexual assault at a Sutherland clinic in August 2015.
During the four-day trial, Mr Theodosiou admitted touching his client’s private parts but argued there was consent, as the woman said “mmm” whenever he asked if she was OK.
However, the Crown argued he concocted his story after grooming his client during previous appointments.
During her evidence, the woman acknowledged saying “mmm”, but said this was just her mumbling out of shock and fear.
A jury found Theodosiou guilty of six of the eight charges and, given the nature of the offences, Judge Andrew Haesler remarked that prison was “almost inevitable”.
Bail granted to get affairs in order
After the finding of guilty, Theodosiou’s criminal defence lawyer made an application for bail on the basis that his wife is due to give birth in five weeks, and he would need time to get his affairs in order.
Judge Haesler accepted those submissions and granted bail on strict conditions, before adjourning the case for a sentencing hearing on 28 April.
Sexual assault in NSW
Section 61I of the Crimes Act 1900 (NSW) contains the offence of ‘sexual assault’. The section provides that:
‘Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years.’
The offence is ‘strictly indictable’ which means it must be finalised in a higher court such as the District Court.
What is ‘sexual intercourse’?
‘Sexual intercourse’ is defined by section 61H as:
- sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by:
(i) any part of the body of another person, or
(ii) any object manipulated by another person,
except where the penetration is carried out for proper medical purposes, or
(b) sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or
(c) cunnilingus, or
(d) the continuation of sexual intercourse as defined in paragraph (a), (b) or (c).
What is consent?
Section 61HA (now superseded by section 61HE) defines consent in the context of several adult sexual assault offence in NSW.
Subsection 2 states that a person consents to sex if he or she ‘freely and voluntarily agrees to the sexual intercourse.’
Section 61HE(3) states that a person has sexual intercourse without consent if he or she:
- knows the other person does not consent,
- is reckless as to whether the other person consents, or
- has no reasonable grounds for believing that the other person consents.
Any steps taken to ascertain whether the other person consents will be relevant to any such determination. Self-induced intoxication is not a relevant consideration.
Section 61HE(4) says there is no consent where the complainant was:
- unconscious or asleep,
- under threats of force or terror, or
- being unlawfully detained.
Section 61HE(5) provides that a person cannot consent if they are under a mistaken belief:
- as to the identity of the other person,
- that the other person is married to them, or
- that the sexual intercourse is for health or hygienic purposes.
Subsection 6 says the following matters are relevant when determining whether a person consents:
- substantial intoxication,
- any intimidatory or coercive conduct, or threat of force, and
- any abuse of a position of authority or trust.
Consent is not a defence to having sexual intercourse with a person who is under the age of consent, which is normally 16 years of age.
It is also not a defence to having sexual intercourse with a person aged between 16 and 18 who is in a relationship of ‘special care’ eg a relationship between a teacher and their student, or a health professional and their patient.
Consent is also unavailable to those who have sexual intercourse with a person that has a ‘cognitive capacity’ and is under their responsibility.
The circumstances which may amount to a lack of consent are very broad in NSW, and those who are charged should contact a criminal defence lawyer before speaking with the police.