R v Horsfall - [2023] NSWDC 269

District Court

New South Wales

Medium Neutral Citation: R v Horsfall [2023] NSWDC 269
Hearing dates: 7 February 2023 – 9 February 2023
13 February 2023 – 14 February 2023
Date of orders: 23 June 2023
Decision date: 23 June 2023
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision:
The offender is sentenced to 10 years imprisonment with a non-parole period of 6 years and 6 months.

Catchwords:
CRIME — Sexual offences — Sexual Touching — Sexual Intercourse — Masseur — offences committed at massage parlour
CRIME — Sexual offences — Aggravated sexual assault — Victim with Multiple Sclerosis — Masseuse
SENTENCING — Mitigating factors — Plea of guilty — Guilty pleas for offences at massage parlour

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Barbaro v Queen; Zirilli v Queen [2014] HCA 2; (2014) 253 CLR 58
Jiang v R [2010] NSWCCA 277
Jung v R [2017] NSWCCA 24
R v Andries Dijkstra [2019] NSWDC 776
R v Arvind NSWCCA, 8 March 1996, unreported
R v Azzi [2004] NSWCCA 398
R v Berg [2004] NSWCCA 300
R v Douglas [2021] NSWDC 646
R v Ibrahim [2021] NSWCCA 296
R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82
R v Qin [2008] NSWDC 41
R v Qin; Qin v Regina [2008] NSWCCA 189
R v Shen [2019] NSWDC 499
R v Williams [2002] NSWCCA 458
Regina v Berg [2004] NSWCCA 300
RO v R [2013] NSWCCA 162
RP v R [2013] NSWCCA 192
Salmond v R [2010] NSWCCA 141
Stewart v R [2012] NSWCCA 183
The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550

Category: Sentence
Parties: Rex (Crown)
Mark Anthony Horsfall (Offender)
Representation:
Counsel:
N Keay (Crown)
R Baldeo (Offender)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
First Choice Legal (Offender)

File Number(s): 2021/79421

INDEX

REMARKS ON SENTENCE

BACKGROUND
PLEAS OF GUILTY TO 7 COUNTS
PLEAS OF NOT GUILTY TO 4 COUNTS
OFFENCES FOR SENTENCE
FACTS
First Victim
Second Victim
Third Victim
Fourth Victim
Fifth Victim
Sixth Victim
Seventh Victim

VICTIM IMPACT STATEMENTS
OBJECTIVE SERIOUSNESS
SUBJECTIVE FACTORS
AGGRAVATING FACTORS
MITIGATING FACTORS
COMPARATIVE CASES
CONSIDERATION

Remarks on sentence

Mark Anthony Horsfall appears for sentence with respect to 11 counts of sexual assault against seven different complainants.
Each of the complainants became a victim of Horsfall’s offending with respect to prescribed sexual offences as defined. Accordingly, there is a statutory non-publication restriction with respect to any identification of each of the complainants (s 578(2) of the Crimes Act 1900).
The published version of this judgment will use pseudonyms for the names of each of the complainants.

BACKGROUND

The offender was originally arrested and charged with respect to one complainant on 21 March 2021. He thereafter remained in custody, bail refused, until released on bail by a magistrate on 14 October 2021.
As will become clear when I outline the facts, the offender was working as a masseur in the Gerringong area, and most of the victims of his unrequested physical assaults had been clients of the massage parlour at which he was working.
In circumstances to which I will refer in more detail in due course, one of the victims of his unwarranted advances beyond the legitimate massage for which he had been retained, Anne Sparrow, complained to Police on 20 March 2021. The offender was arrested and charged on 21 March 2021 and first appeared in the Local Court with respect to the complaints made by that initial complainant on 22 March 2021.
The fact of the offender’s arrest and subsequent charging received a deal of media publicity in the Illawarra region and was also the subject of numerous posts on social media, in particular in a number of Facebook groups.
As a consequence of this broadcasting of his arrest and the surrounding publicity, numerous additional complainants came forward to Police and further charges were laid with respect to each of them.
On 16 February 2022 the offender was committed for trial to Wollongong District Court.
An indictment was presented to the District Court which originally contained 34 counts.
In August 2022 Judge Haesler SC gave leave to the prosecution to file an alternative indictment which contained a reduced number of 19 counts in relation to seven complainants.
Each of those counts alleged either intentional sexual touching or sexual intercourse without consent.
The trial was originally listed to commence on 10 October 2022.
The Crown served Coincidence and Tendency Notices seeking that the evidence of each charged act be admissible as circumstantial evidence in proof of each of the other charged acts.
It was also proposed to call three witnesses who were not complainants but who would be able to give evidence of uncharged acts. The evidence of those additional witnesses was said to be relevant to the alleged tendency of the accused to exceed the bounds of a legitimate massage.
The defence, on the other hand, opposed a joint trial and made application for severance of three of the complainants to be tried separately from the remaining four complainants. The complainants, as they were at that stage, in respect of whom separate trials were sought, were Ms Anne Sparrow, Ms Janette Holmes and Ms Roberta Day.
On 17 August 2022 Haesler SC DCJ ruled that the tendency and coincidence evidence sought to be relied upon by the Crown was relevant and admissible, including the uncharged acts. The application for separate trials with respect to the three identified complainants was refused.
Prior to the date fixed for trial, 10 October 2022, defence counsel became seriously unwell. By Notice of Motion heard on 6 October 2022 the trial date was vacated.
A fresh trial date was allocated on 30 January 2023.
Shortly before the January 2023 trial date, a yet further application for an adjournment on the basis of the continuing illness of defence counsel was advised to the Court.
However, alternative counsel was subsequently able to be retained, albeit only at the “eleventh hour”, and as a consequence, the start of the trial was delayed until 6 February 2023.
During the period of the delay, discussions between newly-retained counsel for the accused, Mr Baldeo, and the Crown Prosecutor, led to a partial resolution of the matters proposed for trial.

PLEAS OF GUILTY TO 7 COUNTS

On 6 February 2023 a reduced indictment containing seven counts relating to five of the original complainants was presented. The offender pleaded guilty to each of those counts. The timing of these pleas of guilty entitles the offender to a 5% discount on the sentences to be imposed for those offences.
The Court was advised that a jury would still be required with respect to the two remaining complainants.
A non-publication order was made with respect to the entering of the guilty pleas to the seven-count indictment (‘Plea Indictment’) and agreement was reached between the accused and the Crown with respect to proposed admissions of fact regarding the five complainants which would be presented by way of formal admissions before the jury in the trial of the two remaining complainants.

PLEAS OF NOT GUILTY TO 4 COUNTS

On 7 February 2023 a second indictment was presented containing four counts relating to the two remaining complainants (‘Trial Indictment’). An application that the trial proceed by way of judge-alone was opposed by the Crown. The application was declined and a jury was empanelled.
Pleas of not guilty were entered and the trial proceeded.

OFFENCES FOR SENTENCE

On 14 February 2023 the jury returned verdicts of guilty with respect to the four counts before them.
Against the above background, the offender now appears for sentence with respect to a total of 11 counts relating to the seven different victims.
Six counts of intentional sexual touching relate to six separate complainants. Such offending contravenes s 61KC(a) of the Crimes Act 1900. The maximum penalty for such an offence is imprisonment for five years.
The offender also appears for sentence with respect to four offences of sexual intercourse without consent contrary to the provisions of s 61I of the Crimes Act 1900. The maximum penalty applicable to these offences is 14 years imprisonment. There is a standard non-parole period of seven years. Those four offences relate to acts of intercourse with three different victims.
A further act of sexual intercourse without consent, in circumstances of aggravation, was charged with respect to one complainant. Sexual intercourse without consent in circumstances of aggravation contravenes s 61J of the Crimes Act 1900 and carries a maximum penalty of 20 years imprisonment. There is a standard non-parole period of 10 years.
Eight counts from the originally filed indictment were subsequently withdrawn.

FACTS

A proper picture of the offender and his predatory sexual conduct is to be gleaned by an overview of his offending in the chronological sequence and context in which it arose.
The offender is currently 62 years of age, having been born on 5 June 1961.
In 2020 when he was 59 years of age the offender was employed as a professional masseur at a Chinese massage parlour in Gerringong on the New South Wales South Coast. He lived in a house at Culburra Beach, some 50 kms further south.
In addition to working at the business establishment of the massage parlour, the offender provided massages to friends and acquaintances on a casual basis at either their homes or at his own residence.
All of his criminal offending occurred during a period of approximately five months between November 2020 and March 2021.

First Victim

The first victim was Whitney Thomas. She was one of the victims in respect of whom the offender pleaded guilty to a single count of intentional sexual touching without consent when the plea indictment was presented on 6 February 2023.
She was a 42-year-old client that attended the Body Resort Chinese Massage premises. She attended the massage parlour on 4 November 2020. The offender spoke with her prior to the massage about his personal life and dating. He also discussed what was described as the “lymphatic massage technique” which involved massaging around the arms and around the groin.
The victim was asked to remove her clothing, except for her underwear, and to lie face down on the massage table. In the course of the massage the offender rubbed his hands very high along the victim’s groin and right thigh. His hands repeatedly brushed across her underwear on the outside of her vagina. He repeated these actions whilst massaging her left thigh and groin area.
The repeated brushing of the offender’s hands on the outside of her underwear and vagina made the victim feel uncomfortable. However, she did not say anything and kept telling herself it was normal.
The offender then proceeded to massage the upper portion of the victim’s body. He used massage oil commencing with massaging over her stomach before rubbing oil on her chest. He rubbed under her armpits and under the side of her breast. He used both hands to rub from the outside of her breast to her nipples. When her towel moved exposing her breast, the offender said: “If you’ve seen one you’ve seen them all.”
The victim made a statement to Police the following morning, 5 November 2020.
The offender was interviewed by Police on 9 November 2020, at which time he admitted massaging Ms Thomas, but denied indecently touching her. At that time, the victim did not feel able to give evidence in court and the investigation was suspended.
As will become apparent, after Police were contacted by another victim, Ms Anne Sparrow in March 2021, charges with respect to the offender’s conduct with Whitney Thomas were then laid.
The offender’s plea of guilty to one count contrary to s 61KC(a) derived from the narrative of Agreed Facts which have been tendered as part of Exhibit 1 on sentence. The single count is, effectively, a rolled-up count based upon the agreed narrative of the offender’s interaction with Ms Thomas.
On the same day that Whitney Thomas first attended Police and provided a statement regarding what had occurred on 4 November 2020, namely the following day, 5 November 2020, the offender was at work at the massage parlour at Gerringong.

Second Victim

A 67-year-old client, Julie Legge, had been visiting a friend in Gerringong and had first attended the massage parlour on 2 November 2020. A massage over a period of approximately one and a half hours had taken place on that date with particular attention given to cramping which Ms Legge experienced in one of her knees. Nothing untoward happened during the course of that massage and Ms Legge was given a loyalty card for future attendances.
On 3 November 2020 the offender telephoned Ms Legge asking if she had enjoyed the massage. In the course of that conversation he told Ms Legge that she had blocked lymph nodes which would be assisted by another massage.
Ms Legge subsequently attended for another massage on the afternoon of 5 November 2020. Ms Legge undressed except for her underpants and lay on the massage table face down. The offender placed a towel over the victim. He pulled her underwear into a “G-string” style and started massaging her bottom cheeks one at a time. He then continued to work down the back of her legs. Ms Legge was “taken aback” when this was occurring. However she did not make any comment as she was unsure if it was proper or not.
The offender then asked her to roll onto her back and as she did so he put a towel up so that she could do so in privacy. He then massaged the top of her chest around the outside of her breasts and then proceeded to massage her arms. Ms Legge had her eyes closed and felt the offender kiss her right hand.
The offender then pulled the towel down exposing Ms Legge’s breasts. He proceeded to massage her breasts. He then massaged down to the front of her thighs and moved her right leg so that her legs were apart. He then massaged into her groin area and next to her vagina. He performed a similar manoeuvre on her groin next to her vagina on the left side.
This sexual touching has been placed on a Form 1.
The offender then began massaging Ms Legge’s stomach area and moved down to the front of her pelvic and pubic area. He then pulled her underwear down and started rubbing her clitoris with one finger for a couple of seconds. Ms Legge reacted and “either jumped or slapped his hand away.”
The offender responded by putting his finger to his mouth which Ms Legge interpreted as an indication to be quiet.
The offender then walked around to the front of the table and bent down and kissed Ms Legge on the lips. In the course of kissing her he stuck his tongue down her throat. She pushed him away and he repeated the gesture of putting his finger to his lips to be quiet.
Ms Legge got dressed and left the premises after paying for the massage. She did not tell anyone about the assaults until seeing a Facebook post following the arrest of the offender in March 2021.
The sexual touching of her clitoris after pulling her underwear down is the basis for Count 2 of the indictment to which he pleaded guilty on 6 February 2023.

Third Victim

The third victim chronologically was Janette Holmes. The allegation with respect to an aggravated offence of sexual intercourse without consent was the subject of a plea of not guilty. The circumstance of aggravation was that the victim had a serious physical disability, namely she suffered from Multiple Sclerosis .
Ms Holmes had been a flatmate with a number of persons including the offender in around 2013 or 2014. They were sharing accommodation in the Shoalhaven area together with another female.
Ms Holmes and the offender initially had what she described as a platonic relationship which, in due course, graduated to what she described as “friends with benefits”. She explained that this was a casual sexual relationship. They lived in the same premises for some six to eight months and in due course she moved onto a new relationship with a new partner. However, in about 2014, after moving back to Queensland where she previously had lived, she remained as a casual friend with the offender.
It would appear that they continued to have occasional casual sex on occasions of her returning to the South Coast to visit her parents. At some stage the relationship and friendship faded substantially and they then had little, if any, contact for some years.
After having had no contact for perhaps five years, in 2019 they reconnected through Facebook. According to the evidence of Ms Holmes at trial, which I accept, they resumed a friendly and non-sexual relationship from some time in about 2019.
In April 2020 Ms Holmes’s father, who resided in the Nowra area, passed away. The funeral was held in May 2020 and Ms Holmes came down from Queensland for the funeral. The offender picked her up from the airport at Albion Park and dropped her at her mother’s place in Culburra.
During the period that Ms Holmes had been back in Queensland she had been diagnosed with Multiple Sclerosis . She described in her evidence a medical belief that she had been suffering from it for about 10 years following an earlier mis-diagnosis of anorexia.
By the time she was revisiting the South Coast in 2020 she needed to utilise either a walker or a wheelchair for mobility. She described an inability to use the left-hand side of her body.
Her limited mobility in 2020 was described by her, at the time of the trial in 2023, as follows:

“I’m worse now. In 2020 I could stand in what’s called a transfer. I could stand for my wheelchair, sort of do a pivot, and sit down. I couldn’t step and walk.”

She described in 2020 having to utilise a four-wheel walker which could convert to a wheelchair.
Against the background of their personal friendship, following the period in which Ms Holmes was back on the South Coast around Christmas 2020, arrangements were made for the offender to drive her back to the airport at Albion Park for her return to Queensland. In the time leading up to that day, Ms Holmes asked for a massage because she thought it would be beneficial to loosen her muscles which were really stiff as a consequence of her Multiple Sclerosis .
On 6 January 2021, the day before she was due to fly back to Queensland, the offender came to her mother’s place where, it was common ground, he gave her a massage whilst she lay on an ottoman in the back room of her mother’s home. What happened beyond a legitimate massage to her neck, shoulders and back was the subject of the allegation which was contested at trial before the jury.
Ms Holmes gave evidence that in the course of the first part of the massage the offender told her that she had a lot of knots in her shoulders. She described that the massage then continued. She said:

“He proceeded to massage my bottom, inner thighs. When he got to my right inner thigh, that’s when he inserted his – his finger inside me. I jolted and said “don’t” and tried to sit up. The massage ceased. He sucked his finger and said, “that’s yummy”. He walked off, went up, sat with Mum at the table, had a coffee. I don’t know who made the coffee. I was still trying to get my top on, transferred back onto my wheelchair and went up to the table.”

She said that he didn’t stay too long after that. She explained in more detail that he had put his fingers inside her vagina. She said that she felt violated because he had told her beforehand that it would be a professional massage and she trusted him.
In cross-examination, counsel for the offender, Mr Baldeo, read to Ms Holmes portions of her Police statement. With respect to the agreement by the offender to give her a massage, she had recited him having told her: “It will be a professional massage. I don’t do the touching thing anymore.” Ms Holmes had replied “good” and had accepted the offer of a massage. It was put to her in the course of cross-examination that other than the massage to her neck, shoulders and back, nothing had happened. She denied that suggestion.

The offender himself gave evidence to the effect that nothing sexual had occurred.
The count in the indictment at trial with respect to Ms Holmes was of sexual intercourse without consent in circumstances of aggravation, namely that Janette Holmes had a serious physical disability. As indicated earlier, such an offence contravenes s 61J(1) and carries a maximum penalty of 20 years imprisonment. There is a standard non-parole period of 10 years.
The verdict of guilty returned by the jury clearly represents a rejection of the evidence by the accused and an acceptance of the evidence given by Ms Holmes beyond reasonable doubt. I similarly am satisfied of the description of the events given by Ms Holmes.

Fourth Victim

The next victim chronologically was Jennifer McGregor. Ms McGregor was 46 years of age and attended the Chinese massage parlour on 9 February 2021 seeking a massage for her neck, head and back. She was directed to one of the rooms and instructed to remove her clothes to her underwear and to lie face down on the massage table. The victim complied and placed a towel over her back.
The offender came into the room and after asking her what part of her body she wanted massaged, he squeezed oil onto his hands and commenced massaging her neck and shoulders. As he did so he said: “I love a woman with tattoos.”
In due course the offender commenced to massage Ms McGregor’s lower back and pulled her underwear down exposing her bottom. He said words to the effect of: “You have a yummy bottom.”
He then started massaging the cheeks of her backside with both hands. He said: “Oh you’re very tight here, you don’t realise how tight these muscles can get and the benefits of releasing them.”
The massage then progressed to the victim’s legs. The offender moved her legs apart and told her: “I’ve gotta go right up under here to release the muscles in the legs.”
As he continued to massage the top part of her left leg, his hand touched her labia. He repeated the actions on the upper part of her right leg. He then apologised to the victim saying: “Sorry I have to get close in there.”
After the massage was finished the offender again apologised in similar terms.
The victim subsequently saw a Facebook post in relation to the offender and went to the Police and provided a statement. The sexual touching formed the basis for Count 3 in the plea indictment.

Fifth Victim

The next victim was Ms Roberta Day. Ms Day resided in the Nowra region and first came into contact with the offender through knowing mutual contacts on Facebook. A friendship developed through communications on social media.
Ms Day had a number of previous injuries from a violent domestic relationship which had led to problems with her neck. She also suffered from scoliosis and arthritis. She became aware that the offender was a masseur and in the course of conversations he offered to give her a massage.
After initially declining the offer she in due course made arrangements with him to have a massage at his house in Culburra. Although she had previously spoken with him on the phone, the day she went for the massage, 9 March 2021, was the first time she had seen him in person.
Ms Day went to the address that he provided, accompanied by her ten-year-old son. The offender’s mother was present at the house and arrangements were made for the offender’s mother to watch a movie together with Ms Day’s young son.
The victim herself was taken into a room which was set up like a massage parlour with a massage table, towels, and pictures on the wall.
She was told to disrobe and lie on the table which she did. She undressed completely and lay on the table, face down, with a towel over her buttocks area. The offender got oils and commenced massaging her back and shoulders. He told her that she had really nice soft skin and proceeded to massage down her back to her legs.
The offender removed the towel and said: “Nice arse.” He told her that it looked “yummy.” The offender massaged down her thighs and into her “inner legs”. As he was massaging Ms Day he had her legs apart and said to her: “She’s winking at me.”
She described his fingers then caressing the inside of her vagina. She told the jury: “He put his fingers inside me”. She described specifically that there were two fingers inserted.
She said she just lay there and “Let him do what he needed to be done so it was over and done with.” She said that she didn’t say anything.
The offender then rolled Ms Day onto her back and massaged from her shoulders down to her breasts. As he touched her breasts he asked her did she like them being bitten. He then started kissing her breasts at which stage she said: “No I don’t, I don’t like it at all.”
He stopped kissing her breasts and moved down to the end of the massage table. He then pushed her legs apart and put his head between her legs and his tongue in her vagina. She said that she felt terrible and did not know what to say or do. She said that she just lay there and “let him do it.” Ms Day said that she made an excuse about needing to take her son home and shortly afterwards left his premises.
Ms Day subsequently heard from the offender who messaged her saying: “Didn’t expect that to happen”. They continued to message each other and in due course he offered to take her to a restaurant for lunch. She agreed to have lunch with him but insisted she did not want a relationship with him. She just wanted friendship. The offender kept sending her messages until ultimately she sent a message to him saying: "Enough. Back off.”
In due course she became aware of the news story about the offender’s arrest following which she contacted Police herself and provided a statement.
Three counts were preferred in the indictment that proceeded to trial. Counts 2 and 4 in that indictment alleged sexual intercourse without consent relating to the digital penetration and the oral sex. Count 3 related to intentional sexual touching.
At trial, the essence of the offender’s defence was that nothing had occurred which was not consensual. The offender ran a positive defence case in which he gave evidence of effectively being sexually seduced by Ms Day. It is unnecessary to recount the detail given by him in evidence. It suffices to observe that the jury clearly rejected his account.
I am satisfied that the jury accepted the account given by Ms Day beyond reasonable doubt, as do I.

Sixth Victim

The next victim was Francis Dealer who was 27 years of age. On 18 March 2021 she made an appointment at the Chinese massage parlour for a one-hour massage. The offender introduced himself and after she was taken to a massage room he asked her to remove her clothing except for her underwear and to lie face down on the massage table. The offender asked what areas she would like massaged and she told him about an injury to her neck. The offender massaged her neck and shoulders and progressed to massaging her left buttock and hip. In the course of the massage he asked Ms Dealer if she had a boyfriend.
In the course of further conversation while the massage continued, the victim said: “Lucky us”. The offender replied: “Oh, I thought you said ‘lucky ass’.” He simultaneously slapped the victim’s bottom with both hands and said: “I was going to say, ‘well ya do’.”
The offender spread Ms Dealer’s legs in a V-shape which she described feeling as if half her vagina was exposed. He had folded the towel on her left leg. He massaged her upper thigh up to the front of her groin rubbing the side of her pubic bone. He kept grazing her vagina with his forearm and told her that it helped with nerves and other muscles.
The offender manipulated her legs into what was described as a “butterfly position” leaving the victim feeling that her vagina was more exposed. He told her: “You’re really tight”. In due course the massage was completed.
After leaving the massage parlour Ms Dealer felt uncomfortable about what had occurred and later that night she told a friend about what had happened. Her friend contacted another friend who was in fact a detective at Wollongong Police.
Following the publicity about the offender’s arrest, Ms Dealer went to the Police on 26 March and provided a statement. A single count of sexual touching was Count 4 in the plea indictment.

Seventh Victim

The last victim was Anne Sparrow. She was 42 years of age and attended the massage parlour on four occasions. There was no complaint about the first two visits. On what I infer was the third visit, on 12 March 2021, she was massaged by the offender during an hour-long massage. During the course of that massage he massaged the side of her breasts and down the centre of her chest between her breasts. Ms Sparrow had not requested a massage in those areas, however, the rest of the massage was normal.
The day after the sexual touching of Ms Dealer on 18 March 2021, namely 19 March 2021 Ms Sparrow attended for a further appointment. The offender ushered her into the massage room and told her: “You know the drill.” He then closed the curtain to allow her to get undressed. She removed her clothes except for her underwear.
The offender returned and massaged her back for approximately an hour. Ms Sparrow on this occasion had booked a two-hour appointment. After massaging her back the offender told her that if she wanted massages at her home she just needed to get his number. He said: “We can start in the spa with some champagne”. The offender then started massaging her inner thigh. He pulled her underwear into a G-string style and told her: “It’s lovely”.
He commenced massaging the side of her torso and touched the side of her underpants and asked her to take them off. Ms Sparrow said that she was “stunned” by the comment and said that her underpants would be ‘right’ and he could work around them.
The offender continued to massage various parts of her body before leaning over and kissing the victim on the lips. She described that she could not move and was frozen in a state of shock. After continuing the massage, a short while later he again kissed her with his mouth open. She turned her head to one side and said “No”. The offender then pulled the towel from her breasts, exposing them, and said: “yummy”.
He leant in towards her and said: “Yeah, they are you know, yummy”. The offender then whispered “yummy” into her ear. He proceeded to massage around her pubic area at the top of her thigh next to her vagina. He pulled her underwear into a G-string at the front and told her: “It’s cute. That’s cute.” He pushed on her pubic area and on her labia throughout the course of the massage. Ms Sparrow said she felt “frozen”.
The sexual touching as described formed the basis of Count 5 in the plea indictment.
As the massage continued the offender started touching the victim’s clitoris before digitally penetrating her vagina. While digitally penetrating her with one hand he sucked on her nipple and also rubbed her nipple with his other hand. He then took his fingers out of her vagina and pulled her underwear down. He then placed his whole mouth over her vagina and performed cunnilingus as well as re-inserting his fingers into her vagina.
He rubbed oil onto her clitoris and continued to insert his fingers into her vagina and continued to perform oral sex. He then removed her underwear completely and lifted her feet one at a time into what she described as a “frog leg position” with her knees facing outwards. He then continued to perform cunnilingus and digitally penetrated her again. She felt pain as he continuously reinserted his fingers into her vagina and rubbed her clitoris.
He continued the massage and at one stage kissed the inside of her palm and intertwined his fingers with hers. He then started kissing the outside of her hand. Her eyes started welling up with tears. He then leant over her face and she felt his lips brush hers. He asked her if she was now feeling relaxed and told her to be careful when she sat up as she would probably be light-headed.
After the massage was completed and Ms Sparrow had left the parlour she contacted a friend by telephone. Her friend came and collected her from Gerringong and took her to Wollongong hospital for a Sexual Assault Investigation Kit to be performed. Swabs were taken and DNA matching the offender’s profile was in due course ascertained to be present. Police attended Wollongong Hospital and subsequently took a statement from Ms Sparrow.
The offender was arrested the following day on 21 March 2020.
In the course of a recorded interview he told Police that he had sexual intercourse with Ms Sparrow but claimed that it had been consensual.
These are the factual matters which were either agreed with respect to the guilty pleas or which, consistent with the verdicts of the jury, I find proven, and upon which I proceed to sentence the offender.

VICTIM IMPACT STATEMENTS

Victim Impact Statements were provided to the Court by four of the seven complainants.
The first extensive Victim Impact Statement was read to the Court by Anne Sparrow in person. She was the last of the offender’s victims in time and the first to go to the Police.
Her Victim Impact Statement was lengthy, comprising five typed pages. It forms part of the Crown sentence bundle (Exhibit 1) and I do not repeat it in full in these Remarks. Ms Sparrow said that the words which she shared in the statement “do no justice to the depth of the pain and suffering” that she continues to experience “on a daily basis”.
She described having started her own business at the start of 2020 which she said had proved to be a “thriving and lucrative enterprise.” She described that everything was going so well in her life and that her ability to support her children that she eventually decided to devote some time towards her own self-care.
She had experienced back and neck pain on and off for much of her adult life and it was against that background that she went to the Body Resort Chinese Massage Shop for help in that regard.
She described feeling vulnerable and exposed in a space that was meant to be safe when she was assaulted by the offender. She described being “frozen in fear” and unable to protect herself.
She said that she had never felt more powerless and afraid. She said that she continued to live with the trauma every day since that time. She described the impact that the psychological effect upon her had on her family and others close to her. She described her guilt at feeling blame on herself when the truth was that it was the offender who in her words “deserves to be hated and blamed”.
Ms Sparrow described difficulties in her everyday life including an inability to continue with her business. She described having lost her business, her income, her financial security, and almost having lost her home. She said that now, as a consequence, she is unemployed and unemployable, and is a single mother relying on government benefits.
She said that she needed twice weekly psychiatric sessions to help her try to find a way out of what she described as “the nightmare you turned my life into”. She said that she struggled to have anyone touch her and that she cannot imagine a future where she could ever be in an intimate relationship.
This brief summary of the five typed pages of the Victim Impact Statement do not fully enlighten a reader of these Remarks as to the extent of her feelings and her expressions regarding the effect of the offending on her. Her physical and emotional distress in reading the statement to the Court was manifest.
The Court must approach such a level of profound effect upon a victim with a degree of caution. Whilst one accepts at face value the description of the need for psychiatric treatment, it is the fact that no report from the treating psychiatrist has been provided to the Court. In this regard see the remarks of Wood CJ at CL in Regina v Berg [2004] NSWCCA 300 at [48] – [49].
A similar need for caution was expressed by Price J in RP v R [2013] NSWCCA 192 at [25] – [30].
The second Victim Impact Statement read to the Court by the victim herself was Roberta Day who appeared via audio visual link. Ms Day described the offender having preyed on her vulnerabilities and betrayed her. She described the offender having deceived her and lied. She said that she had been left emotionally, mentally and physically affected by someone who had said: “trust me, I’d never hurt you.”
She described how the emotional impact of what had occurred had in her words “almost destroyed her”. She said that she trusted the offender on his word when he assured her that he was professional. She said that she now cannot handle anything to do with massage or physical touching.
She said that he had destroyed a place that she used to loved to go to. She said that she is now too afraid to trust or allow any male near her. She said that she turned to alcohol and as a consequence had ultimately lost her licence, her car, and her last sense of independence.
A Victim Impact Statement from Jennifer McGregor was read out by the Crown Prosecutor. Ms McGregor said that since the commission of the offences she had been diagnosed with Severe Acute Depression Syndrome. She described her lack of self-confidence and having issues with trusting people. She said that her emotions had caused reactions and stress. She described the stress of the offending and the subsequent court process had caused her to have Irritable Bowel Syndrome.
She described feeling guilty for not having come forward sooner, which, had she done so, may have saved some of the victims of the offender. She described the effect of the relationship on her husband. She said that she freezes if she is touched by people. She said that she felt constant fatigue from not being able to sleep. She described an inability to function properly and said that she has struggled in continuing to run her own business and work with people.
She described the downturn in her business because of an inability to face clients.
The last Victim Impact Statement read to the Court was similarly read by the learned Crown Prosecutor. It was a statement from Ms Janette Holmes who was the victim who suffered from Multiple Sclerosis . She explained in cogent terms her need to utilise allied health professionals for assistance in mobilising and dealing with her ongoing symptoms of Multiple Sclerosis . She described that all of her in-house and external physiotherapists and exercise physiotherapists are males.
She said that she needs their assistance in exercising and also relieving the muscle tension which she suffers and that such relief involves touching her. Her occupational therapist is also a male. He is required to do in-house visits and to touch her calves and thighs to ensure that her muscles are engaging.
She described the offending committed upon her having created difficulties in her utilising these services. She said that she has been affected such that she questions the professionalism of all of the various male allied health professionals involved in treating her. She described that during sessions with the male therapists she now feels the need to have a support worker with her at all times. She said that this incurs additional costs but is invaluable in providing her with some peace of mind.
Notwithstanding the presence of a support worker, she said that after each therapy or treatment, she has a feeling of being violated and needs to have a shower. She described feeling betrayed by the offender who was supposed to be someone that she could trust because he knew about the diagnosis and the physical limits it imposed on her.
These powerful Victim Impact Statements might be perceived as amounting to “substantial” harm pursuant to s 21A(2)(g) of the Crimes (Sentencing Procedure) Act.

However, I have borne in mind the caution required, in accordance with the expressions of principle in the cases to which I have referred to above. I have also taken into account the absence of psychiatric or psychological opinion evidence and the inability to form any concluded view about the possibility of multi-factorial considerations.
The absence of additional evidence provides an additional basis for appropriate reservation in this regard. (See: RO v R [2013] NSWCCA 162 per Hoben CJ at CL at [90] – [92]). There is no doubt that serious sexual assaults can be expected to have serious adverse psychological consequences. The requirement that circumstances of aggravation must be proved beyond reasonable doubt underscores the care which must be taken to avoid double counting (See Stewart v R [2012] NSWCCA 183 at [61]).
There is no question that the effects of the crimes committed on the present victims have been severe and long-lasting. As with so many cases before the Court, the offending has led to significant psychological issues. The Victim Impact Statements which have been read to the Court speak clearly and eloquently of these types of consequences. The victims, however, must understand and accept that the level of self-shame that some of them have referred to is misplaced, and the only person who should feel shame is the offender, Mark Horsfall.
For abundant clarity, whilst I accept the Victim Impact Statements and take them into account, I do not further take them into account as aggravating factors with respect to s 21A (2)(g) of the Crimes (Sentencing Procedure) Act.

OBJECTIVE SERIOUSNESS

A relevant step in the determination of an appropriate sentence is an assessment of the objective seriousness of the offending. In the charges involving a standard non-parole period this is a necessary and required step.
As would be apparent from the narrative of the facts, the offending covers a range of differing conduct from sexual touching without consent carrying a maximum penalty of five years up to sexual intercourse without consent carrying a 14 year maximum with a 7 year standard non-parole period, and to the single count of aggravated sexual intercourse with Ms Holmes, carrying a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years.
An assessment of objective seriousness requires a consideration of where in a range or spectrum for the particular type of offending the factual offending in the instant matter falls.
I propose to deal with the offences in the chronological sequence in which they occurred. I will refer to the numerical counts by reference to the trial indictment or the plea indictment.
Count 1 in the plea indictment concerned sexual touching of Whitney Thomas. This involved touching as described in detail earlier which included repeated brushing of the offender’s hands on the outside of the victim’s underwear and vagina. The offender also massaged her breast and nipples.
The objective seriousness of this offending falls within the low-range.
Count 2 in the plea indictment related to the victim, Julie Legge. The initial touching which comprised rubbing her breasts and massaging her groin have been placed on a Form 1. The offending on the indictment involved rubbing her clitoris after pulling her underwear down. This is more serious offending than Ms Thomas and would fall further towards the upper end of the low-range.
The third victim chronologically was Ms Holmes. This offending was Count 1 on the trial indictment. Her suffering from Multiple Sclerosis and the effect upon her musculature was the reason for her requesting a massage. That physical disability provides the circumstance of aggravation resulting in an offence under s 61J, rather than s 61I of the Crimes Act.
The abuse of trust which is implicit in the relationship between a masseur and any of his clients was exacerbated with Ms Holmes as a consequence of their past friendship, his knowledge of her physical condition, and his assurances that it was to be a professional relationship.
The victim was implicitly in her own home when the assault occurred, albeit she was temporarily residing with her mother.
The defence written submissions urged the assessment of this offending to be in the low range of offending for an offence of this kind. In the context of their prior romantic relationship, and I must interpolate it was a sexual relationship and not a romantic relationship, it was submitted that the Court should find that the offender honestly believed that she was consenting, although the plea recognises that there were no reasonable grounds for that belief. The Crown submits that the text messages prior to the massage made it clear that there was no consent to sexual activity as did her immediate reaction.
In the Crown’s submission the offender accepted in the course of cross-examination in the trial that he knew that Janette Holmes had no sexual interest in him at all and that the massage was to be “purely professional”.
I am satisfied beyond reasonable doubt that he knew she was not consenting.
In the Crown’s submission the offender took advantage of a physically vulnerable friend for his own sexual gratification. In the Crown’s submission while there may be more serious examples, the particular offending should be assessed as falling at or just below the mid-range of offending of this type.
I agree with the Crown’s submission.
The next offence chronologically was Count 3 in the plea indictment relating to Jennifer McGregor. That involved sexual touching by massaging the top part of her legs and repeatedly touching her labia.
This offending, although serious sexual offending, falls in the lower range of objective seriousness.
The next offences related to Roberta Day and were counts 2, 3, and 4 in the trial indictment.
Count 2 was of digital penetration of her vagina with two fingers. Count 3 related to kissing her breasts and Count 4 related to the act of cunnilingus which followed during the same massage.
In assessing the objective seriousness of the offending, both parties have provided written submissions regarding belief of consent or lack thereof. The trial was contested upon the basis that the sexual activity described by Ms Day was consensual. The defence case, in fact, went substantially further than “willing” consent, and gave a description of the commencement of sexual activity and its subsequent conduct which, if true, sought to portray the victim as the seducer.
Such a portrayal was manifestly rejected by the jury.
The Crown went to the jury on the basis of the offender assaulting the victim with knowledge that she was not consenting. The Crown put to the jury in submissions that Ms Day had given clear evidence of sexual touching and sexual intercourse without consent “and in circumstances where you would readily conclude he knew that she was not consenting.” (TT 190)
No submissions were put to the jury by the defence at trial regarding any question of recklessness or the unreasonableness of a belief that the victim was consenting.
The directions given to the jury by me were clear and categorical.
With respect to sexual intercourse the jury were told first that they needed to be satisfied that the sexual intercourse as described occurred; secondly, that it was without the consent of the complainant; and thirdly, that the accused knew that the complainant was not consenting.
In such circumstances, and consistent with the verdict of the jury, I am satisfied that the offending occurred without consent, to the knowledge of the offender.
The defence submission was that the objective seriousness of the three offences relating to Ms Day fell within the low range. The Crown’s submission was that with regard to the offending, each of the matters should be assessed as falling within the mid-range of objective seriousness for offences of this type.
With respect to the digital penetration I find that it falls within the mid-range, although to the extent that such a description implies an actual range, it falls towards the lower end of such a mid-range.
The kissing of the breasts falls, in my view, below the mid-range, although not to the lowest end of the low-range.
The act of cunnilingus and the description given of it including penetration with the tongue would similarly fall towards the lower end of the mid-range.
The sixth victim was Francis Dealer. The offending against her was in Count 4 of the plea indictment. The sexual touching without consent involved grazing her vagina with his forearm. In the defence submission the Court should find that the offender had acted recklessly in the sense that he thought the victim was consenting although there was no reasonable grounds for such a belief. Similar submissions were made with respect to the earlier victims of sexual touching. In circumstances where the jury were clearly directed that with respect to the sexual touching on the various counts, it needed “to be established to have been done without consent and knowing that the person was not consenting”, (Summing Up, p 11) I reject that submission.
However, the nature of the sexual touching with respect to this count falls below the mid-range of objective seriousness.
The last series of offences involved the seventh victim, Ms Sparrow. Count 5 on the plea indictment of sexual touching related to massaging around her pubic area next to her vagina and pushing on her labia throughout the course of the massage.
This sexual touching was more serious than that endured by Ms Thomas but would still be assessed within the low-range.
Count 6 and Count 7 related to the repeated digital penetration and the oral sex which in the course of the ongoing assault occurred both simultaneously and in combination. These ongoing assaults were submitted by the offender to have occurred in circumstances where the offender honestly believed, although on unreasonable grounds, that the victim was a willing participant.
For the reasons articulated earlier, I categorically reject that submission.
Flowing from that submission the defence submission was that the objective seriousness of this offending fell within the low-range. On a consideration of all of the surrounding the circumstances the Crown submits that these counts of sexual intercourse without consent fall towards the upper end of the mid-range of offences of this type.
Whilst recognising that the categorisation within an identifiable range is not an actuarial process, I agree with the Crown’s categorisation. In my assessment, these matters fell well within an identifiable mid-range. They were repeated and persistent with a victim who was frozen with fear throughout the event.

SUBJECTIVE FACTORS

Although the offender gave evidence in the trial, other than telling the jury his age, no evidence was led regarding his subjective circumstances.
He has not given evidence on the sentence proceedings.
A report from a consultant psychologist, Mr Tim Holmes-Munro was tendered during the sentence proceedings (Exhibit 2). That report provides some background of the offender.
He was born in Dubbo in June 1961. Accordingly, he is now 62 years of age. He was the oldest child in the family and has four younger sisters. His mother is now 83 years of age and at the time of his arrest he was her sole carer.
His parents had separated during his adult life. His father, who is now 85, lives on the North Coast of NSW. When he was younger his father worked as a butcher and was subsequently employed at a wrecking yard. After his parents were separated the offender was estranged from his father for a number of years. They have now reconciled,
Presumably the family moved from Dubbo at some stage as the offender describes being raised in the Mt Druitt area. He attended a number of public schools and completed year 10 at the Dunheved High School. He left school in about 1976. He described to the psychologist a consistent work history from that time onwards. After working in a number of factories he joined the Royal Australian Navy at the age of 18.
He remained in that service for approximately 12 years before being discharged as an Able Seaman in about 1992.
He had married at the age of 19. The marriage lasted for a decade before they separated and divorced. His wife had been 12 months younger than he was and they had two daughters who are now aged 42 and 41. He told Mr Holmes-Munro that his first wife had died about 15 years ago.
He was estranged from both daughters for many years but said that he had recently reconnected with his younger child.
Shortly after the breakup of his first marriage and leaving the Navy in 1992 he remarried in about 1993. His second wife was several years younger and in due course they had a daughter. She is now 29. The marriage continued for about 8 years before his second wife left him and evidently partnered with his closest friend from the Navy.
He described these circumstances to the psychologist as: “she got the seven year itch”. The offender was about 40 years of age at about the time of the breakdown of this second marriage. He told the consultant psychologist that he had had a number of relationships subsequently but had been unable to commit because of what he described as “Others infidelity.” He denied the use of illicit drugs or any difficulties with alcohol.
The psychological report made reference to a number of ongoing health problems said to be referable to the offender’s hips and his eyesight. It is said that he is on a range of medication. However, Mr Holmes-Munro had not sighted any medical documentation referable to these considerations.
He also told the psychologist that he had experienced recurring symptoms of depression which had been impacted by the findings of the Court.
He described having initially trained as a “masseuse”, which without embarking on a pedantic description of the gender distinction from the original French being maintained in English, saying that he started doing it in about 1979 “as a hobby”. He described having been offered a position in Gerringong at the business which had first opened in about September 2020.
I should observe in passing that there is no information as to formal qualifications or employment as a masseur prior to September 2020. I note that the first offending with which this Court was concerned occurred in early November 2020.
The offender described to the psychologist a spectrum of symptoms which were opined as reflecting a “moderate Depressive Disorder”. The symptoms described included feelings of sadness, a sense of pessimism, anhedonia, expectations of punishment, in addition to agitation and some irritability. The psychologist administered the Beck Depression Inventory which is a self-reporting questionnaire.
The results from this testing confirmed Mr Holmes-Munro’s clinical impression that the symptoms were referable to a moderate and recurring Depressive Disorder according to the DSM-V criteria.
Accepting the account by the offender and the circumstance that there was no prior history of sexual offending, Mr Holmes-Munro expressed the belief that “with support, supervision and treatment, his forensic prognosis is positive.”
The consultant psychologist noted that Mr Horsfall maintained his innocence in relation to the finding of the Court which I interpret to relate to the trial matters. The consequence of this circumstance was that he would not be eligible for consideration for any treatment for sexual offending whilst in custody.
A past criminal history was included in the Crown tender bundle. It reveals a charge of assault being dismissed without conviction in 1984 when he was 23 years of age. He had two further minor summary matters which involved a charge of malicious damage in 1988 in respect of which he received a fine. A subsequent charge of common assault in 1989 resulted in a good behaviour bond. There are in fact no prior offences of sexual offending.

AGGRAVATING FACTORS

S 21A of the Crimes (Sentencing Procedure) Act 1999 sets out aggravating factors that are required to be taken into account when determining an appropriate sentence for an offence.
All of the offences involved the abuse of a position of trust. The Courts have consistently recognised that the situation where a female disrobes for the purpose of receiving a therapeutic massage obviously leaves her in a position of physical vulnerability. The reposing of a level of trust in the massage therapist is implicit and clear. The abuse of such trust is an abuse of the trust thus reposed.
The offending clearly involved multiple victims which is a discrete aggravating factor pursuant to the legislative provisions.
The only other aggravating factor identified in the present matter was the aggravated sexual offence committed in the home of Ms Holmes’s mother where she was temporarily residing.

MITIGATING FACTORS

The offender does not have any significant record of previous convictions.
He entered pleas of guilty with respect to offences committed against five of the complainants. Whilst not to be double-counted, he will be entitled to a 5% discount with respect to those sentences arising from the timing of the plea.
The pleas of guilty provide some evidence of contrition and remorse. However the remorse relating to those matters is limited, in my view, and I am not satisfied that there is a full acceptance of responsibility for his actions, nor any acknowledgement of the injury, loss and damage caused emotionally and psychologically to those victims.
With respect to the matters on the trial indictment he has expressed no remorse and indeed does not accept the verdicts of the jury.
It is appropriate to observe that the presentation of Agreed Facts regarding the five complainants in respect of whom guilty pleas had been entered facilitated the administration of justice and undoubtedly reduced the length of the trial which would otherwise have been required.

COMPARATIVE CASES

The Court is extremely conscious of the limited utility of both statistical comparisons and the use of so-called comparable cases.
However, the statistics maintained by the NSW Judicial Commission, although repeatedly described as a “blunt instrument” are of some utility in indicating the breadth of the range of past sentences in cases regarding offences committed under the same legislative provisions. I have had regard to them for such limited purpose.
Appellate opinions regarding the utility of comparable cases varies widely. I have endeavoured in the cases which I have examined to look for cases which may bear some general similarity with the present factual circumstances. These include decisions regarding the abuse of trust by a masseur or massage therapist (qualified and unqualified), and similar abuse of trust cases relating to providers of cosmetic services such as a hairdresser and other cases where a level of confidence is reposed by a patient or client in a medical or allied health practitioner. I have also perused numerous cases to which I do not make specific reference regarding sentences under similar legislative provisions but I have not sought to set out the details of them in these remarks.
Jiang v R [2010] NSWCCA 277 concerned a masseur who was convicted after trial of one count of indecent assault contrary to s 61L of the Crimes Act 1900 and two counts of sexual intercourse without consent contrary to s 61I. The factual circumstances related to a single complainant who had attended massage premises at Bondi Beach. The offender was a masseur and was asked to conduct a whole-body massage.
In the course of the massage the offender massaged each of the complainant’s breasts and in particular her nipples. As the massage continued he applied pressure to her inner thighs and whilst touching her clitoris began to suck her right nipple. Those acts constituted the count of indecent assault and the first count of sexual intercourse without consent.

The complainant pushed the offender’s head and hand away but did not say anything. The massage continued “as if nothing had happened”. He subsequently put a finger at the entrance to her vagina. This act constituted the second count of sexual intercourse without consent. The matter proceeded as a defended trial and other than a concession that he had accidentally touched her “private part” he denied the specific acts relied upon by the Crown with respect to each of the counts.
The sentencing judge, King SC DCJ assessed the objective seriousness “as falling into the low range”. His Honour held that this finding justified “a significant departure from the standard non-parole period.” The standard non-parole period was seven years while the maximum penalty was 14 years.
An sentence of six months for the indecent assault was directed to be served concurrently with sentences of two years with a non-parole period of 18 months for each of the two counts of sexual intercourse without consent.
An appeal against the severity of this sentence rested upon the proposition that the sentencing judge ought to have been guided by the decision of R v Qin [2008] NSWCCA 189 in which the objective seriousness had been assessed at being at “almost the extreme lowest level of seriousness”. That submission failed and the appeal against sentence was dismissed.
The matter of R v Qin [2008] NSWDC 41 was a sentence in the District Court following trial. The late Judge Goldring clearly had considerable reservations both as to the jury verdicts of guilty and to the extended interpretation of the definition of sexual intercourse. The offender had been convicted by a jury of one count of indecent assault and a second offence of sexual intercourse without consent. However, the jury had acquitted the offender of a further charge of indecent assault which had allegedly been committed at the same time.
Notwithstanding that the jury had been given a Markuleski direction, they had rejected the complainant’s evidence with respect to the third charge, one of convicting him of the first and second charges. His Honour observed: “it is difficult to see how they could have done this while accepting the evidence in respect of the first two charges, as the complainant’s credit was the main issue with respect to all three charges.” The sentencing judge expressed reservations regarding the way the trial had been conducted immediately before the Christmas vacation.
His Honour observed various jurors being clearly inconvenienced from the trial running longer than the estimate. The sentencing judge observed: “However, other jurors also appeared to be concerned that the trial would extend into the holiday. The pressure of time may have influenced the jury to reach verdicts which may have been at least in some sense a compromise.” His Honour also expressed a further concern that the abolition of the common law requirement of corroboration for the evidence of a complainant in sexual assault cases gave rise to a real danger that a jury may accept fabricated evidence.
In the trial which had proceeded the evidence of the complainant was the only evidence of the commission of the offences. The danger of fabricated evidence being accepted was described by his Honour as being accentuated when evidence was given by a witness, such as a professional actor, “whose professional role is often to dissemble.” Goldring DCJ then observed that the complainant was a professional actor but said that he was not suggesting in any way that she had been dissembling.
The learned sentencing judge then dealt with the detail of the evidence led at trial and in particular inconsistencies between the evidence of the complainant and another witness at the trial. In his Honour’s view those identified inconsistencies might have suggested that the evidence of one or other of these witnesses may have been fabricated and as a consequence he found “that there was a real possibility that the verdict may be unsafe and unsatisfactory”.
The sentencing judge went further in his implicit criticism of the outcome of the trial. The offender had been employed as a masseur at a Chinese massage clinic and worked in the clinic on weekends.
The indecent assault was said to have occurred while the offender was massaging with oil on the inside of the complainant’s thighs. He was described as moving his hands up and over the buttocks so that his fingers passed over the complainant’s anus. This action constituted the indecent assault.
Shortly afterwards, the massage continued on the inside of her thigh during which the tips of his fingers passed between the vaginal labia, and over the clitoris, coming to rest on the buttock. The complainant said explicitly that there was no penetration of the vaginal canal.
The sentencing judge dealt in detail with the definition of sexual intercourse in the Crimes Act which had been changed to include penetration. His Honour said:

“19 When the current definition of sexual intercourse in the Crimes Act was changed to include penetration, and I emphasize the word “penetration”, of the anus or vagina of a person by a digit or a physical object other than a penis, as in this case, it is difficult to accept that the legislature really intended to include within the definition of sexual intercourse, conduct like that of the offender in this case. The language of the section equates the type of touching found here to violent penile penetration of the victim’s anus or vagina. The indecent assault charge in count 1 of the indictment alleged touching similar, if not identical in character, to the touching alleged in count 2. However, as the part of the victim’s body, which was touched in count 1, was the anus, the lack of penetration meant that the conduct could give rise only to a charge of indecent assault. Because there is authority that penetration to any degree of the genital labia, is sufficient to constitute penetration for the purpose of s 61H, it is not possible to say that on the facts alleged, if established, there would not be the offence charged in count 2.
20 It is paradoxical that because of the structure of the human body, similar conduct involving adjacent parts of the body with are different, although both sensitive and personal, could give rise to the allegation of two totally separate offences. Technically, it is clear that the facts, which the jury must have found in relation to the touching on the exterior of the vagina, constitutes “sexual intercourse” as defined in the Act.”

In light with his Honour’s view of the allegation which had been found proven he described the charge of sexual intercourse without consent as falling “not only in the lower range of seriousness of such an offence, but almost at the extreme lower level of such seriousness.” In the course of his remarks on sentence his Honour said as follows:

“21 The use of the language in the legislation means that I must distinguish, in terms of the sentence to be imposed, between the conduct that gives rise to the offence of indecent assault, and that which gives rise to the offence of sexual intercourse without consent, even though the actual conduct involved was virtually identical, and to do so flies in the face of common sense. The distress and invasion of bodily privacy in each case was also virtually identical.
22 I formally find that the offence of sexual intercourse without consent is far below the mid-range of seriousness for such offences, for the reasons that I have given, and therefore the standard non-parole period has little, if any, relevance to the sentence to be imposed. I emphasize that it is difficult to envisage any conduct, which, while constituting the offence, could be less serious.”

After a detailed analysis of a number of principles which I do not need to advert to presently, his Honour found that the facts of the case would not have justified a conviction for rape at common law. However, notwithstanding that observation his Honour determined that he was required to impose a custodial sentence with respect to the charge of sexual intercourse without consent.
However, he found that the facts of the case were exceptional and in the circumstances there did not need to be a full time custodial sentence.
His Honour proceeded to fix a s 9 bond for the indecent assault and a suspended sentence, or s 12 bond, for ten months with respect to the sexual intercourse. The s 9 bond was for a period of five years.
The matter went to the Court of Criminal Appeal by way of a conviction appeal by the offender and a Crown appeal against the inadequacy of sentence. (R v Qin; Qin v Regina [2008] NSWCCA 189).
Grove J, with whom McClellan CJ at CL and Blanch J agreed, held that the finding of the sentencing judge that seriousness was “almost (emphasis added) at the extreme lowest level” was not demonstrated to be wrong or outside an exercise of the Judge’s discretion.
It is appropriate to observe that while the matter of Jiang bore a number of similarities with the facts in Qin, as R A Hulme J opined in Jiang: “reference to a single case does not provide a reason to conclude that the sentence in the present case was manifestly excessive.”
An earlier decision with respect to a masseur is R v Williams [2002] NSWCCA 458. That was an appeal from a sentence imposed by Judge Price (as his Honour then was) in the District Court at Broken Hill in 2000. The offender was a professional masseur. He was charged with two offences with respect to a 15-year-old female which were an aggravated sexual assault contrary to s 61M of the Crimes Act and a count of aggravated sexual intercourse without consent contrary to s 61J. The maximum penalties were respectively 7 years for the s 61M offence and 20 years with respect to the aggravated sexual intercourse. The physical act was the offender licking the child’s vagina for several seconds.
The remaining 12 counts in the indictment related to adult complainants. The judgment in the Court of Criminal Appeal does not reveal how many separate complainants were involved with those counts. Four of the counts were of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900. This carried a maximum penalty of 14 years. The factual particulars included 3 occasions of digital penetration of the vagina and one incident of cunnilingus. Eight counts were of indecent assault contrary to s 61L. These carried a maximum penalty of five years and involved incidents of indecent touching during the course of massage therapy.
A sentence of three years nine months with a non-parole period of two years was imposed with respect to the aggravated sexual intercourse against the fifteen-year-old. This sentence reflected a discount of 25% for the plea of guilty. It can readily be ascertained that the starting point before the discount was five years as a head sentence. Each of the sexual intercourse charges with respect to adult complainants resulted in head sentences of three years and two months. The various counts relating to indecent assaults each resulted in head sentences of fourteen months. The ultimate effective sentence was five years and two months with a non-parole period of three years. The notional head sentence, accepting a 25% discount, must have been a period of approximately 6 years and 10 months.
The sentencing judge had characterised the offence committed upon the 15-year-old complainant as one involving a serious breach of trust. His Honour adverted to the circumstance that the child had usually been accompanied to massage sessions, which were being held for cosmetic reasons, by her mother. However her mother was not with her on the occasion of the offence. His Honour found that the complainant’s mother had placed trust in him that he would act in a professional manner towards her daughter.
The challenge to the alleged severity of the sentence was confined to the sentence for this particular count and it was submitted that the sentencing judge must have erred in his assessment of the objective seriousness of the offence because it was brief and of a superficial nature.
In the Court of Criminal Appeal, Bell J (as her Honour then was) held that the offence, involving as it did the licking of the complainant’s vagina, was a serious offence. Her Honour observed: “It is not an answer to say that the conduct was of relatively short duration and that it did not involve penetration of her vagina. It was a significant interference with the bodily integrity of a fifteen-year-old child.” Bell J, with whom Wood CJ at CL and Dowd J agreed, considered that the sentence of three years and nine months with a non-parole period of two years for the specific count was “well within the range of the sentencing judge’s discretion.”
Other cases involving offending conduct by a massage therapist or masseur include R v Shen [2019] NSWDC 499. Shen involved three counts of assault with an act of indecency contrary to s 61L of the Crimes Act. Such offences carried a maximum penalty of five years imprisonment.
The victim had been attending the massage premises for about four years.
On the date of the offending conduct she had attended the parlour in the early evening when there were no other persons present. The first count related to the offender massaging the inside of the victim’s inner thigh and massaging her groin area. He was described as running his hand up and down the side of her genitalia about 10 times. This constituted Count 1. He continued the massage with the opposite leg and again rubbed up and down her genitals on the outside. The victim was in shock and did not know what to do.
After telling her to roll over onto her back he removed the towel which was covering the victim’s chest and commenced a normal massage of her upper chest before moving his hands to her breasts and playing with her nipples for about 15 to 20 seconds.
He then kissed her on the forehead and said “sorry, sorry.” At the conclusion of the massage she paid and left the parlour. The sentencing judge described her as feeling anxious, unsettled, confused, upset and, violated. The matter had originally been committed for trial and had included an allegation of sexual intercourse without consent. The plea to the indecent assaults and the withdrawal of the allegation of sexual intercourse occurred shortly before the trial date. The sentencing judge applied a discount of 10%. With respect to a submission Dhanji SC (as his Honour then was) that the court would accept that the offender was reckless as to lack of consent, his Honour Judge King SC said at [24]: “…I do not accept that the offender was reckless as to lack of consent. In my view, the offender, as a professional masseur, knew that his client was not consenting to his conduct.”
A report from a psychologist and also from the Salvation Army where the offender had been volunteering subsequent to his offending indicated that the offender was remorseful and ashamed. He wished to apologise for the victim and had been motivated to attend psychological treatment on a regular basis. It should be noted that senior counsel for the offender, and also the solicitor appearing for the Crown, had submitted that the s 5 threshold was crossed and that no sentence other than imprisonment was appropriate. However, both parties, including the Crown accepted that a sentence involving an Intensive Corrections Order would be in an appropriate range.
Notwithstanding that the sentencing judge assessed the offending as falling within a mid-range of objective seriousness, the learned judge also indicated that he had formed a view that an appropriate sentence, given the significant efforts made at rehabilitation, would warrant release on a Community Correction Order.
His Honour said at [41] “I realise that the submissions made by the parties may make my decision a difficult one to maintain elsewhere. However it is incumbent on me to provide the penalty that I think is appropriate, even though I accept that the guidance provided by the parties has not been inappropriate” (sic). The sentence which was imposed was 300 hours of community service. His Honour further noted, as he termed it “for the sake of the criminal appeal” that each of the matters was capable of being dealt with by the Local Court and could have been remitted to the Local Court once the act of sexual intercourse was withdrawn.
I am constrained to observe that the extreme leniency reflected in this sentence is of little assistance or guidance with respect to the very different facts in the present matter.
A further sentence matter at first instance involving sexual misconduct as a consequence of a breach of trust by a masseur, or massage therapist, is to be found in R v Andries Dijkstra [2019] NSWDC 776. That was again a matter involving a single complainant. The victim was a 60-year-old female and the offender was 68 years of age. They were both members of the local amateur Dragon Boat club and attended training sessions as part of participation in that sport. The victim became aware that the offender was a trained massage therapist. She had previously suffered a neck injury as a result of a work accident.
Arrangements were made for the offender to give her a massage following one of the club’s training sessions. They had previously spent time together attending training sessions and would appear to have developed a friendship.
She went to his home where a massage took place in a room set up for that purpose. In the course of the massage, the offender inserted a number of fingers into her vagina which he proceeded to move in and out. The victim froze and did not say anything out of fear. She felt pain in her vagina and winced. He continued to penetrate her vagina with his fingers. In due course he removed them but a short time later reinserted his fingers in and out of her vagina more vigorously.
After telling her to roll onto her back he commenced to rub her chest. She then told him to “please stop.”
The offender pleaded guilty, after being committed for trial, to one count of sexual intercourse without consent contrary to the provisions of section 61I of the Crimes Act. He received a discount of 15%.
The sentencing judge, Judge Yehia SC (as her Honour then was) found that the breach of trust arising from the relationship between a masseur and customer was a serious aggravating factor.
However, evidence was adduced that as a consequence of time which the offender and the victim had spent together following the club training sessions and their interactions, he had erroneously formed a belief that she might be interested in him sexually. Her Honour accepted that evidence and proceeded to sentence the offender on the basis that he did hold a genuine belief that the victim was consenting, but that there were no reasonable grounds for that belief.
The sentencing judge assessed the objective seriousness of the offending as falling well below the middle of the range.
Given the age of the offender, who was 70 at the time of sentence, her Honour found that specific deterrence carried little weight. The offender had expressed remorse and had suffered a substantial decline in his mental health following the offence. He was ashamed and embarrassed and had attempted self-harm for which he had been hospitalised. The sentencing judge found that he had demonstrated very significant remorse, had excellent prospects of rehabilitation, and was unlikely to reoffend.
After the 15% discount he was sentenced to a term of imprisonment of 2 years 4 months with a non-parole period of 10 months. This reflects a notional starting point of approximately 2 years and 9 months.
A more recent example of multiple complainants and offences arising in the course of purportedly administering a massage is to be found in R v Douglas [2021] NSWDC 646.

The offender operated a horse stud farm on a remote property midway between Bathurst and Goulburn in New South Wales. A variety of overseas workers stayed on the farm providing voluntary farm work, organised pursuant to a number of volunteer programs, in exchange for free food and accommodation.
The offender was 68 years of age at the time of sentence. Over a period of years he had a rotating sequence of volunteer young women who stayed and worked on the farm for varying periods between several weeks and several months.
A pattern emerged with a number of the young women who volunteered to work on the farm whereby the offender effectively inveigled them to receive a massage from him on the purported basis that it would either relieve muscle ache from the labouring on the farm, or in order to rectify an alleged physical problem which he had observed in either the way they walked or because of a claimed observation by him of a problem with some part of the body such as their hips.
The offending conduct came to light after an 18-year-old German backpacker reported her experiences at the farm to NSW Police in October 2019. She described having been sexually assaulted during the preceding weeks in the course of the offender having administered a massage to her. The offending had commenced with sexual touching and had progressed to digital penetration. It had occurred on a number of occasions in the course of his administering a massage. She variously described feeling frozen when the incidents have occurred and believing she had little choice but to cooperate given her isolated position on the remote property.
The subsequent Police investigation revealed an initial victim who had been similarly assaulted whilst working as a volunteer at the farm in 2014. That complainant was 27 years of age and had been studying English whilst on a working holiday visa from Japan. 3 counts of indecent assault under section 61L of the Crimes Act 1900 related to this first complainant.
The second complainant in time was an 18-year-old German backpacker volunteer on the farm in September 2016. The massages were initially therapeutic, but on one occasion, in the course of the massage, the offender inserted his thumb into her vagina and one of his fingers into her anus. She was shocked and froze. After putting his thumb into her vagina he then licked her vagina and inserted his tongue in and out.
These incidents gave rise to 3 counts of sexual intercourse without consent.
The third complainant volunteered to work on the farm as she was hoping to eventually obtain work as a veterinary nurse. She was 18 years of age and stayed for some weeks in May 2019 she did suffer from a back problem which the offender offered to help relieve by providing a massage. The massage of her inner thighs was very close to her genitalia and lead to one count of sexual touching without consent.
The fourth complainant was a 21-year-old from Germany who worked on the farm in July 2019. The offender gave her a massage on the purported basis that he had observed something wrong with her hip. This similarly led to a count of sexual touching without consent.
The fifth complainant, who made the complaint to police, was 18 years of age and had arrived at the farm in September 2019. As I described earlier the offending against her involved four counts of sexual touching without consent and one count of sexual intercourse without consent based on digital penetration.
The offender was convicted after trial with respect to three counts of indecent assault and six counts of sexual touching, the maximum penalty for each being five years imprisonment. He was also convicted of four counts of sexual intercourse without consent which carried a 14-year term with a standard non-parole period of 7 years.
The sentencing judge, Bourke SC DCJ, gave indicative sentences of 3 years for each of the counts involving digital penetration and 18 months for the majority of the indecent assaults or sexual touching offences. His Honour imposed an aggregate sentence of 9 years with a non-parole period of 6 years.
Without undertaking such a detailed analysis in these Remarks, I also make note of R v Azzi [2004] NSWCCA 398 which concerned a hairdresser who had sexually assaulted 4 clients who had come to his hair salon for haircuts or hair treatment. He pleaded guilty to one charge of attempted sexual intercourse without consent and 4 charges of indecent assault. Some matters were placed on a Form 1. An aggregate sentence was imposed, after discount for the plea, of 6 years with a non- parole period of 4 years. An appeal against severity was dismissed.
A further case involving an abuse of trust to which I have had regard is Jung v R [2017] NSWCCA 24. Jung was a physiotherapist who committed a series of indecent assaults against six of his female patients during the course of treatment in 2014. He pleaded guilty to 10 offences of indecent assault contrary to s 61L of the Crimes Act which carried a maximum penalty of five years imprisonment. A sentence of five years with a non-parole period of three years and six months was imposed. The Court of Criminal Appeal dismissed an appeal against severity. The majority of the offences in that matter involved touching the patients breasts where there was no professional justification for that to occur.
A further case involving a different type of practitioner was R v Ibrahim [2021] NSWCCA 296. Ibrahim was a pharmacist and fraudulently persuaded a female client at the pharmacy that he needed to conduct a physical examination in circumstances where she was requesting the “morning after” pill. Ibrahim pleaded guilty to a single offence of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900. Judge ML Williams SC imposed a sentence of two years with a non-parole period of 15 months.
A crown appeal against the inadequacy of this sentence was described by the Court of Criminal Appeal as lenient however after considering the significant remorse of the offender who the sentencing judge found had “excellent prospects of rehabilitation” which had been demonstrated by his participation in charitable works and the extra curial punishment in his loss of his licence to act as a pharmacist and, in conjunction with the reserve required to be exercised on a Crown appeal, the appeal was dismissed.
The judgment of Dhanji J, with whom Johnson J and Lonergan J both agreed referred to numerous cases relied upon by the Crown in support of their appeal against the inadequacy of the sentence. His Honour referred to a variety of other cases involving digital penetration which are set out in his judgment at [79]. They included Salmond v R [2010] NSWCCA 141 in which a massage therapist failed in an appeal against the severity of a sentence of four years, six months with a non-parole period of two years for digitally penetrating a client in the course of a massage. Salmond was a matter which had gone to trial.
Before leaving Ibrahim I should note that Justice Dhanji found that the single and opportunistic nature of the offending, while undoubtedly serious, was different. That involved an offender who used a medical practice to systematically abuse patients. In that regard his Honour was referring to Jung which involved multiple offences committed by a physiotherapist against multiple complainants. His Honour also made reference to the case of Ibrahim being different to an offender who deliberately targets an ongoing patient with vulnerabilities of which he is aware. His Honour was there referring to R v Arvind NSWCCA, 8 March 1996, unreported.
I have undertaken a detailed examination of cases which bear some similarity to the circumstances of the offending in the present matter.
I should note that although I have undertaken a detailed analysis of various cases which might seem to be broadly comparable, the present matter is not to be decided by comparison with some other specific case or cases. No two cases are the same and care must be taken in having regard to sentences imposed in other cases. See Barbaro v Queen; Zirilli v Queen [2014] HCA 2; (2014) 253 CLR 58 at [41] – [42].
Nonetheless, some sense of an appropriate sentencing range may be obtained by reference to the sentences which have been imposed in other matters bearing factors of similarity: see The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 at [26].

CONSIDERATION

I am satisfied, in relation to each of the offences, that no penalty other than full time imprisonment is appropriate.
I have regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 which include the need for adequate punishment; the need for deterrence, both of this offender specifically and others generally; the need for protection of the community; the requirement of making the offender accountable and to denounce his conduct, to recognise the harm done to the victims, and, of course, to promote rehabilitation in his case.
I propose to proceed by way of the imposition of an aggregate sentence. It is necessary however that I indicate the individual indicative sentences for each of the offences which represent the sentences which I would have imposed in each case if they were being dealt with separately.
With respect to the sentences in which Parliament has prescribed a standard non-parole period it is necessary that the indicative sentence also reflects the non-parole period which I would have imposed if I had been dealing with that offence separately.
The non-parole period with respect to a sentence is the minimum period which the Court thinks appropriate that the offender should serve in actual imprisonment. The legislated ratio to some extent between the ultimate head sentence and the non-parole period is 75%. I propose to vary that ratio as a consequence of a finding of special circumstances. Those special circumstances include the fact that this is the first time that the offender has been sentenced to a term of imprisonment. I also take into account in that respect his age, and in my view, the need for a more extended period of supervision upon his release.
I should note however, that the aggregate sentence which I will impose is not simply an addition of the totals in the indicative sentences. The Court has had regard to the principle of totality and has also given consideration to questions of concurrency and accumulation so as to avoid imposing an overwhelming sentence.
The indicative sentences are as follows:

Count 1 in the plea indictment – Sexual Touching of Whitney Thomas, allowing for a 5% discount, 14 months.

Count 2 in the plea indictment – Sexual Touching of Julie Legge, allowing a 5% discount but taking into account the matter on the Form 1, 18 months.

Count 1 of the trial indictment – Aggravated sexual intercourse of Janette Holmes 6 years with a 4 year non-parole period.

Count 3 in the plea indictment – Sexual touching of Jennifer McGregor allowing a 5% discount 17 months

Count 2 of the trial indictment – Sexual intercourse of Roberta Day 4 years with 2 years 8 months non-parole period.

Count 3 of the trial indictment – Sexual touching of Roberta Day 12 months.

Count 4 of the trial indictment – sexual intercourse of Roberta Day 4 years with 2 years 8 months non parole period

Count 4 of the plea indictment – sexual touching of Francis Dealer after 5% 14 months

Count 5 of the plea indictment – sexual touching of Anne Sparrow. After a 5% discount 17 months.

Count 6 of the plea indictment – sexual intercourse of Anne Sparrow after 5% discount 4 years 9 months with 3 years 2 months non-parole

Count 7 of the plea indictment – sexual intercourse of Anne Sparrow after 5% discount 4 years 9 months with 3 years 2 months non-parole.

There will accordingly be an aggregate head sentence of 10 years with a non-parole period of 6 years and 6 months.
I propose to round the time he was in custody to a period of 6 months and to allow a period of two months to represent the restrictions on his liberty during which he was on bail with substantial restrictions on his liberty.
The effect of that is that the sentence which I have imposed should be backdated by a period of 8 months from 14 February 2023. Accordingly, the sentence will commence on 15 July 2022. The non-parole period will expire on 14 January 2029. The additional term will expire on 14 July 2032.

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Decision last updated: 20 July 2023

Medium Neutral Citation:	R v Horsfall [2023] NSWDC 269
Hearing dates:	7 February 2023 – 9 February 2023 13 February 2023 – 14 February 2023
Date of orders:	23 June 2023
Decision date:	23 June 2023
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	The offender is sentenced to 10 years imprisonment with a non-parole period of 6 years and 6 months.
Catchwords:	CRIME — Sexual offences — Sexual Touching — Sexual Intercourse — Masseur — offences committed at massage parlour CRIME — Sexual offences — Aggravated sexual assault — Victim with Multiple Sclerosis — Masseuse SENTENCING — Mitigating factors — Plea of guilty — Guilty pleas for offences at massage parlour
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	*Barbaro v Queen; Zirilli v Queen* [2014] HCA 2; (2014) 253 CLR 58 *Jiang v R* [2010] NSWCCA 277 *Jung v R* [2017] NSWCCA 24 *R v Andries Dijkstra* [2019] NSWDC 776 *R v Arvind* NSWCCA, 8 March 1996, unreported *R v Azzi* [2004] NSWCCA 398 *R v Berg* [2004] NSWCCA 300 *R v Douglas* [2021] NSWDC 646 *R v Ibrahim* [2021] NSWCCA 296 *R v Markuleski* [2001] NSWCCA 290; (2001) 52 NSWLR 82 *R v Qin* [2008] NSWDC 41 *R v Qin; Qin v Regina* [2008] NSWCCA 189 *R v Shen* [2019] NSWDC 499 *R v Williams* [2002] NSWCCA 458 *Regina v Berg* [2004] NSWCCA 300 *RO v R* [2013] NSWCCA 162 *RP v R* [2013] NSWCCA 192 *Salmond v R* [2010] NSWCCA 141 *Stewart v R* [2012] NSWCCA 183 *The Queen v Pham* [2015] HCA 39; (2015) 256 CLR 550
Category:	Sentence
Parties:	Rex (Crown) Mark Anthony Horsfall (Offender)
Representation:	Counsel: N Keay (Crown) R Baldeo (Offender) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) First Choice Legal (Offender)
File Number(s):	2021/79421