A man who sexually assaulted another man has avoided jail because the female judge thought prison would be too difficult for him to deal with.

Not only that but the judge, who is meant to rely on facts, evidence and truth, referred to the male sex offender with female pronouns.

Thawat Prommachan, 32, a Thai immigrant who has worked as a chef in prominent Melbourne restaurants pursued another male and sexually assaulted him.

In January of 2024, Prommachan contacted a man through the social media app Grindr — used for meet ups between members of the gay and queer community — and asked if he wanted a massage.

The victim declined several times before weeks later agreeing to a therapeutic, nonsexual massage, the Victorian County Court heard.

At 4.12pm on February 25, 2024, Prommachan met the victim at his South Yarra apartment. Inside, the 30-year-old man lay face down on a towel wearing Speedos before they were “pulled halfway down his buttocks” and then “all the way off, causing him to freeze”, the court heard.

In sentencing remarks seen by news.com.au, Judge Kate Hawkins said the victim “was clear when verbalising his lack of consent”, repeatedly said “no” and was “trying to hold back tears” as the sexual assault was carried out.

At one point, he looked up from the bed and “observed that you were fully naked”, Judge Hawkins said.

Some details of the sexual assault are too graphic to share, but the court heard he said “no” and “no, no thanks” approximately five times before Prommachan stopped, went to the bathroom and packed up her belongings.

Note the “her” referred to here is a male. It is deceptive and not backed by truth.

This male sex offender was found guilty and could have faced up to 10 years in prison. But he played the “get out of jail free card” and it worked.

The judge took pity on him and instead of imprisonment she slapped him with a pathetic Community Corrections Order and a requirement to carry out 250 hours of unpaid community work.

Judge Hawkins accepted that “transgender and gender diverse prisoners are particularly vulnerable to harm and abuse in prison due to the heightened risk of sexual or physical assault”.

“It is appropriate to take account of the fact that prison is more onerous for transgender prisoners in determining the appropriate sentence,” she said.

At the time of her offending, Prommachan identified as a “gay man, repressed and only partially and secretly expressing your female identity”.

“You are now in a much more stable place, happy in the person you have become, since your offending,” Judge Hawkins said.

It is beyond belief that a man who sexually assaulted another man avoided prison because he made the false claim he is now a woman. No human can change sex. It is even more bewildering that a judge accepted this evidence.