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District Court 22 May 2024

R v Bao

[2024] NSWDC 200

Sexual offences
VICTIM SEXUALLY ASSAULTED BY MASSEUSE SENTENCE AFTER TRIAL BREACH OF TRUST VULNERABILITY

Citation: R v Bao [2024] NSWDC 200
Court: District Court of New South Wales
Date: 22 May 2024
Judge: Wilson SC DCJ

Background

The offender, a 50-year-old remedial massage therapist, owned and operated a massage parlour in Mona Vale, NSW. The victim, a 26-year-old woman, attended for an aromatherapy massage on 24 February 2021 using a gift voucher. It was her first massage.

During the session, the offender committed a series of sexual touching offences against the victim while she lay on the massage table. The conduct included pressing his genitals against the back of her head, removing her underwear without consent, massaging her breasts and buttocks, and gripping her throat while pressing his chest against her back.

The offender was arrested the following day and participated in a recorded police interview. He stood trial in the District Court and was convicted by unanimous jury verdict on all four counts of sexual touching without consent. He was acquitted on two separate counts of sexual intercourse without consent.

  • What objective and subjective factors applied in determining the appropriate sentence for four counts of sexual touching without consent under s 61KC(a) of the Crimes Act 1900?
  • Whether an Intensive Correction Order (ICO) was available and appropriate, given the nature of the offences and the offender's personal circumstances.
  • Whether sexual touching without consent under s 61KC(a) constitutes a "prescribed sexual offence" that would preclude an ICO under s 67(1)(b) of the Crimes (Sentencing Procedure) Act 1999.
  • What weight to give to the offender's mental health conditions, cultural background, lack of prior criminal record, and the permanent prohibition order issued by the Health Care Complaints Commission (HCCC).

Decision

The court assessed the objective seriousness of the offending as significant. Aggravating factors included the breach of trust inherent in the therapist-client relationship, the victim's particular vulnerability as a first-time client who was partially undressed and could not easily leave, and the sustained nature of the offending across multiple discrete acts during the one session. The offender had exploited a position of professional responsibility over the victim.

On subjective factors, the court noted the offender's lack of prior criminal record, his age, and diagnosed mental health conditions. However, the offender showed no remorse and maintained his innocence throughout. His post-offence conduct, including attempting to offer money to the victim's partner after the assault was reported, was treated as an aggravating circumstance.

The court turned to the question of whether an ICO was available. It confirmed that an offence under s 61KC(a) of the Crimes Act 1900 does not fall within the statutory definition of a "prescribed sexual offence" under s 67(2) of the Crimes (Sentencing Procedure) Act 1999, and was therefore not excluded from an ICO. Applying the mandatory community safety consideration under s 66 of the Crimes (Sentencing Procedure) Act 1999, the court found that an ICO with supervision would better address the offender's risk of reoffending than full-time imprisonment, particularly given his mental health issues. The HCCC's permanent prohibition on the offender working as a massage therapist also supported this assessment.

An aggregate sentence of three years imprisonment to be served by way of an ICO was imposed, with home detention for the first 12 months. The court noted it would have found special circumstances and reduced the non-parole period had a full-time custodial sentence been imposed, given this would have been the offender's first time in custody and the added burden his mental health conditions would place on that experience.

Orders Made

  • Convicted on four counts of sexual touching without consent under s 61KC(a) of the Crimes Act 1900 (sequences 1 to 4).
  • Aggregate head sentence of 3 years imprisonment to be served by way of an Intensive Correction Order (ICO), commencing 22 May 2024 and expiring 21 May 2027.
  • Standard ICO conditions: no further offences; submission to supervision by a Community Corrections officer.
  • Additional conditions:
  • Home detention for 12 months, from 22 May 2024 to 21 May 2025.
  • Treatment and rehabilitation condition, with active engagement in any supervision plan directed by Community Corrections.
  • Prohibition on massaging any person for the duration of the order.
  • Prohibition on acting as a massage therapist or providing any health service to any person for the duration of the order.
  • Offender directed to contact Blacktown Community Corrections by telephone by 4pm on the date of sentence.

Key Takeaways

  • An offence of sexual touching without consent under s 61KC(a) of the Crimes Act 1900 is not a "prescribed sexual offence" for the purposes of s 67(2) of the Crimes (Sentencing Procedure) Act 1999, meaning an ICO is not statutorily excluded as a sentencing option.

  • A professional therapist-client relationship can constitute a material aggravating factor in sexual offending, particularly where the victim's undressed state and constrained circumstances heighten vulnerability.

  • Under s 66 of the Crimes (Sentencing Procedure) Act 1999, community safety is a mandatory consideration when an ICO is in contemplation; the court must assess whether the order or full-time detention is more likely to reduce the risk of reoffending.

  • A permanent occupational prohibition imposed by a regulatory body such as the HCCC, while not a sentencing outcome, is a relevant consideration when assessing community safety in the ICO analysis.

  • Post-offence conduct, such as attempting to offer money to a victim's partner to prevent a police report, may be treated as an aggravating factor at sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61KC(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 66, 67, 68
- Public Health Act 2010 (NSW)

Cases
- Betts v R [2015] NSWCCA 39
- Butters v R [2010] NSWCCA 1
- Doolan v R [2006] NSWCCA 29
- Jung v R [2017] NSWCCA 24
- Kearsley v R [2017] NSWCCA 28
- Luque v R [2017] NSWCCA 226
- Mol v R [2017] NSWCCA 76
- Munro v R [2006] NSWCCA 350
- Panda v State of Western Australia [2017] WASCA 5
- R v Arvind (unrep, 8/3/96, NSWCCA)
- R v Daetz [2003] NSWCCA 216
- R v Edwards (1996) 90 A Crim R 510
- R v Harrison [2001] NSWCCA 79
- R v Hooper [2004] NSWCCA 10
- R v Johnson [2005] NSWCCA 186
- R v McLean (unreported, CCA, 31 March 1989)
- R v Stanbouli [2003] NSWCCA 355
- R v Tadrosse (2006) 65 NSWLR 740
- R v Wickham [2004] NSWCCA 193
- R v Wilhelm [2010] NSWSC 378