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R v Horsfall

R v Horsfall

Case [2023] NSWDC 269 23 June 2023

Sexual Offences

Aggravated Sexual Assault

Sentencing

Plea of Guilty

Criminal Law

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Horsfall

Details

AGLC: R v Horsfall [2023] NSWDC 269
Case: [2023] NSWDC 269
Decision Date: 23 June 2023

CaseChat Overview and Summary

In the case of R v Horsfall, the defendant was charged with multiple sexual offences committed at a massage parlour. The court heard allegations that the defendant, who was employed as a masseuse, engaged in sexual touching and intercourse with a client who suffered from multiple sclerosis. The case was heard in the relevant criminal court in Australia.

The primary legal issue before the court was whether the defendant's actions constituted sexual assault and aggravated sexual assault, given the victim's condition. The court was also required to consider mitigating factors, such as the defendant's plea of guilty, in determining an appropriate sentence.

The court found that the defendant's actions were indeed sexual assaults, given the lack of consent from the victim who was unable to provide it due to her medical condition. The court further determined that the assaults were aggravated due to the victim's vulnerability. In sentencing, the court considered the defendant's plea of guilty as a mitigating factor but emphasised the seriousness of the offences. Ultimately, the court sentenced the defendant to 10 years imprisonment with a non-parole period of 6 years and 6 months.

The court's decision emphasised the gravity of sexual offences committed against vulnerable individuals and the importance of holding offenders accountable for their actions. The sentence reflects a balance between punishment and the mitigating factor of the defendant's guilty plea.

Orders

Orders of the court

The offender is sentenced to 10 years imprisonment with a non-parole period of 6 years and 6 months.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

R v Horsfall [2023] NSWDC 269

Most Recent Citation

R v D, WJ [2012] SADC 16

Cases Citing This Decision

R v D, WJ [2012] SADC 16
Citation 1 (Para 13)

…ychological manipulation may suffer from a multitude of deficiencies.[31] Change in the Law – Measures to Correct Unfairness [31] See for example R v Horsfall (1989) 51 SASR 489; R v J G (2009) 199 A Crim R 299.…

See all citing cases →

Cases Cited

R v Ibrahim [2021] NSWCCA 296
Citation 1 (Para 249)

…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…
R v Douglas [2021] NSWDC 646
Citation 2 (Para 266)

…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.…
R v Andries Dijkstra [2019] NSWDC 776
Citation 3 (Para 256)

…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 mem…
R v Shen [2019] NSWDC 499
Citation 4 (Para 247)

…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.…
Jung v R [2017] NSWCCA 24
Citation 5 (Para 248)

…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…
R v Pham [2015] HCA 39
Citation 6 (Para 255)

…cing 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].…
Barbaro v The Queen [2014] HCA 2
Citation 7 (Para 254)

…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].…
RP v R [2013] NSWCCA 192
Citation 8 (Para 133)

…A similar need for caution was expressed by Price J in RP v R [2013] NSWCCA 192 at [25] – [30].…
RO v R [2013] NSWCCA 162
Citation 9 (Para 123)

…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 circum…
Stewart v R [2012] NSWCCA 183
Citation 10 (Para 123)

…cumstances 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]).…
Jiang v R [2010] NSWCCA 277
Citation 11 (Para 219)

…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 a…
Salmond v R [2010] NSWCCA 141
Citation 12 (Para 251)

…e. 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 f…
R v Qin [2008] NSWCCA 189
Citation 13 (Para 219)

…peal 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 a…
R v David Qin [2008] NSWDC 41
Citation 14 (Para 220)

…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 o…
Regina v Eddie Azzi [2004] NSWCCA 398
Citation 15 (Para 247)

…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 conse…
R v Berg [2004] NSWCCA 300
Citation 16 (Para 132)

…e 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].…
R v Graham Williams [2002] NSWCCA 458
Citation 17 (Para 241)

…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 fem…
R v Markuleski [2001] NSWCCA 290
Citation 18

…zi [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…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 207)
Crimes Act 1900 (ACT)
1 mention (from Para 2)

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