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District Court 23 June 2023

R v Horsfall

[2023] NSWDC 269

Sexual offences

Citation: R v Horsfall [2023] NSWDC 269
Court: District Court of New South Wales
Date: 23 June 2023
Judge(s): Sutherland SC DCJ

Background

The offender, a 62-year-old professional masseur, worked at a Chinese massage parlour in Gerringong on the NSW South Coast during 2020 and into 2021. He also provided massages to friends and acquaintances at private residences. Over approximately five months between November 2020 and March 2021, he committed sexual offences against seven separate clients during massage sessions.

The investigation began after one complainant reported the offending to police in March 2021. Media coverage of the arrest, including social media posts in local Facebook groups, prompted six further complainants to come forward. The original indictment contained 34 counts; this was ultimately reduced to 19 counts across seven complainants, and then resolved through a combination of guilty pleas and jury verdicts.

The offender faced sentence on 11 counts in total: six counts of intentional sexual touching without consent (one per complainant, across six victims) and five counts of sexual intercourse without consent (four standard, one aggravated, relating to three victims). The aggravated offence involved a complainant with multiple sclerosis.

  • What sentences were appropriate for each of the 11 counts, having regard to the objective seriousness of each offence and the standard non-parole periods where applicable?
  • What discount should apply to counts resolved by guilty plea, given the late timing of the pleas?
  • How should the principle of totality be applied when sentencing for 11 offences spanning seven victims across two separate indictments?
  • What weight should be given to aggravating and mitigating subjective factors, including the offender's age and time spent on remand or subject to bail conditions?

Decision

The District Court assessed each offence in turn, taking into account the objective seriousness of the conduct and relevant subjective factors. The sentencing judge noted the predatory nature of the offending: the offender exploited a position of professional trust, targeting clients who had attended for legitimate therapeutic massage. All offending occurred within a defined five-month period.

For the seven counts resolved by guilty plea (entered on 6 February 2023, immediately before the scheduled trial date), the court applied a 5% discount to the indicative sentences. This reflected the lateness of the pleas, which entitled the offender to a modest rather than a full discount. The four counts resolved by jury verdict attracted no discount.

The aggravated sexual intercourse offence, involving a complainant with multiple sclerosis, attracted the most serious indicative sentence: six years imprisonment with a four-year non-parole period. The remaining sexual intercourse offences drew indicative sentences of between four years and four years nine months. The sexual touching offences attracted indicative sentences ranging from 12 to 18 months.

Applying the totality principle to avoid an overwhelming aggregate, the court imposed a single aggregate head sentence of 10 years imprisonment with a non-parole period of six years and six months. The court credited the offender with approximately eight months for time already served (combining remand time and a period on bail with substantial restrictions), backdating the sentence accordingly.

Orders Made

  • Aggregate head sentence of 10 years imprisonment.
  • Non-parole period of 6 years and 6 months.
  • Sentence backdated to 15 July 2022 (reflecting 8 months credit for pre-sentence custody and restrictive bail conditions).
  • Non-parole period to expire 14 January 2029.
  • Additional (parole) term to expire 14 July 2032.
  • Indicative sentences imposed on each of the 11 counts as set out in the remarks on sentence.
  • Statutory non-publication orders with respect to complainant identities.

Key Takeaways

  • A guilty plea entered on the eve of trial, rather than at the earliest opportunity, attracted only a 5% sentencing discount under the Crimes (Sentencing Procedure) Act 1999, reflecting the limited utilitarian value of such a late plea.
  • Where an offender is sentenced on multiple counts spanning numerous victims, the totality principle requires the court to structure concurrent and cumulative terms so that the aggregate sentence is not disproportionate to the overall criminality, rather than simply summing each indicative term.
  • The District Court treated the exploitation of a professional massage context as a significant feature of objective seriousness, characterising the conduct as predatory abuse of a position of trust.
  • Pre-sentence custody served on remand, and periods on bail subject to substantial restrictions on liberty, are both capable of being credited against the head sentence at the court's discretion.
  • The presence of a victim's serious medical condition (multiple sclerosis) constituted an aggravating circumstance under s 61J of the Crimes Act 1900, elevating one count of sexual intercourse without consent to the aggravated form carrying a maximum of 20 years and a standard non-parole period of 10 years.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 61I, 61J, 61KC(a), 578(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- 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
- 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