By Paul Gregoire and Ugur Nedim
A jury found Hoe Fatt Lee guilty of three counts of sexual intercourse without consent, as under section 61I of the NSW Crimes Act 1900, which provides that a person who has sexual intercourse with another person without consent, consent without admission, is liable to up to 14 years imprisonment.
On 26 September 2014, District Court Judge David Frearson imposed an aggregate sentence of 11 years imprisonment on Mr Lee, with a non-parole period of 7 years and 6 months. At the time of sentencing, Mr Lee was 60-years-old, and will be 70 at the expiration of the full term.
Each of the sexual assault offences involved Mr Lee performing fellatio on a young man. He’d picked the men up in a public place, and they were incapacitated due to their level of inebriation.
In delivering his sentence, Judge Frearson noted that had separate sentences been imposed for each offence, then the first and third counts would each have warranted 8 years imprisonment, with a non-parole period of 5 years and 4 months. In His Honour’s view, the appropriate sentence for the second count was 7 years and 9 months, with a non-parole period of 5 years and 2 months.
The judge said he was careful not to sentence a man of Lee’s age to an unduly severe overall sentence.
Mr Lee appealed his sentence in the NSW Court of Criminal Appeal (NSWCCA), which heard seven separate appeal grounds on 6 April last year. These included that the sentence was manifestly excessive and judge’s evaluation of the object gravity of the crime as mid-range was inappropriate.
The sexual assaults
Mr Lee was charged with the assaults on the strength of a “cold case” DNA match. The three offences were committed against different men, but had similar features.
Each man was extremely intoxicated. Mr Lee had met the men at Central railway station and offered them a lift home. He then drove the men to a secluded place and performed fellatio on them.
A university student was celebrating his mid-semester break in April 2009. At 1am, the man was at Central station vomiting, when Mr Lee approached and offered him a lift home. When he was eventually dropped off at his home, the student found his fly undone, and that his penis was in significant pain.
A Swedish electrician on a working holiday was at a bar near Central station in December 2010. He went into the bathroom and, the next thing he knew, he was in the backseat of a car with Mr Lee “going down” on him.
Another tourist had been drinking at The Rocks back in February 2012. He recalled sitting up against a wall at Central station, only to find himself in the back of a car with Mr Lee performing oral sex on him.
A repeat offender
Lee had a criminal record for offences committed in 1989. He was convicted of three acts of indecency with a person under the age of 16, one count of stalking and one of aggravated indecent assault.
Lee had repeatedly approached a 13-year-old boy in a park on his way to school. On the initial interaction, he showed the boy pornographic magazines. On a subsequent occasion, he produced condoms, and on a third, he put his arm around the boy and touched his groin.
When the matter was reported to police, the boy was placed under surveillance and when Lee approached him again, he was arrested. Lee claimed at the time that he did not realise it was an offence to show the boy the pornographic material, or the contraception.
Evaluation of mid-range offending stands
Justice John Basten of the NSWCCA acknowledged the difficulty in determining whether Judge Frearson had made an error when classifying the offending behaviour as mid-range, because such as evaluation is “quintessentially” undertaken by the sentencing judge.
He noted the trial judge was in a far better position to make this decision, as the evidence of the witnesses and the accused were presented during the trial and not the during the NSWCCA proceedings.
There were two other factors that could have been mitigating. The first was that the oral sex was somehow “less culpable than penetrative sex.” But, his Honour found that different “kinds of sexual intercourse should not be abstractly ranked in hierarchical order.”
The second was that although the victims were intoxicated, Lee had not been responsible for getting them into these states. However, “while these factors carry some weight,” Mr Basten remarked, they were insufficient reason to reject the characterisation of the offences as mid-range.
It wasn’t manifestly excessive
In determining whether Mr Lee’s sentence was manifestly excessive, the court considered the sentencing statistics recorded by the Judicial Commission of NSW between April 2008 and March 2016.
Of the 133 cases involving non-parole periods for non-consecutive terms, only six offenders received longer sentences.
However, Justice Lucy McCallum outlined that this line of argument was erroneous because the statistics compared aggregate sentences with those imposed for individual offences.
Her Honour further pointed out that if you compared the sentences for the individual offences in Lee’s case, then they were entirely within “the range of those recorded in the statistics.”
Mr Lee’s lawyers brought up the fact that “Hey Dad star Robert Hughes, who was convicted of 10 charges with complainants aged between 7 and 15,” had received a lighter sentence.
But Justice McCallum said this comparison was “unhelpful,” as Hughes’ offending behaviour was of “a different nature giving rise to different charges with different, lower maximum penalties and was determined under a different, more lenient sentencing regime.”
A tough sentence was warranted
Justice McCallum rejected all of the grounds of appeal, which included that the sentencing judge had made an error in stating his behaviour was “systematic and calculated,” and that the judge had placed insufficient weight on the offender’s risk of re-offending and lack of remorse.
Her Honour found that in light of the Judicial Commission statistics, the aggregate sentence was “stern,” but she “had not been persuaded it was excessive.”
The appeal was therefore dismissed.
