Baines v R

Court of Criminal Appeal (NSW)|2016-06-06|Before: Basten JA, Rothman J, Fagan J

Solicitors: Kapsis & Associates (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2012/207409 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 09 April 2015 Before: Baly DCJ File Number(s): 2012/207409

Judgment

BASTEN JA: Section 61L of the Crimes Act 1900 (NSW) makes it an offence punishable by up to five years imprisonment to assault a person, committing an act of indecency in the course of the assault. The applicant was convicted on 27 November 2014, following a trial by jury in the District Court, of 11 offences of indecent assault involving seven different women. Thereafter, he entered pleas of guilty to two further counts on a separate indictment.

Ground 1 - uncharged acts

The first ground of appeal alleged that the sentencing judge had taken into account "uncharged acts" as a factor increasing the objective seriousness of the offences. That was simply not so: what the judge said was that the applicant had embarked on a course of conduct, by reference to the 13 offences which were before her for sentence, involving conduct extending over some four years. It would, of course, be wrong in sentencing an offender for a specific offence to increase the penalty on account of other misconduct, whether separately charged or not. However, it is not an error to assess the seriousness of the specific offence by reference to surrounding circumstances, including other offending which is established beyond reasonable doubt.
There is a sense in which it is possible to characterise that use of other misconduct as denying leniency for an isolated instance of offending. However, it is not correct to say, as the applicant submitted, that other offending "cannot be taken into account on sentence unless the offender admits them or in order to rebut the offender's submission that the offence was an isolated incident". Nor are the statements of Spigelman CJ in R v JCW [1] inconsistent with that proposition. The contrary suggestion depends on reading a statement in the judgment out of context. Thus, at [55], Spigelman CJ stated: "The effect of the judgment of the Court of Appeal is that, absent an admission, the Court should not take into account commission of other offences when sentencing for particular offences charged. The position is otherwise, it appears, in the case of an admission."
To suggest that this proposition is inconsistent with taking into account matters proved beyond reasonable doubt at a trial involves reading a statement made in a particular factual context as if it contained a general principle applicable in other contexts when, as a matter of principle, that could not be right.

Ground 2 - charges capable of summary disposition

The second ground of appeal asserted that the Court failed to take into account the fact that the offences were capable of summary disposition.
There are numerous cases in this Court accepting that such a matter may be a factor to be taken into account in mitigation of sentence. In R v Doan, [2] Grove J noted that the prosecution had submitted that "these cases do not expose any reasoning underlying a principle that the availability of summary jurisdiction and lower ceiling of penalty should be a matter of mitigation." [3] Grove J accepted that the cases reveal that the circumstance "can, rather than should, be a matter of mitigation." He continued: "All offenders in the relevant situation would have lost the chance of being dealt with within the restrictions applicable in the summary court and for that reason that chance should not be ignored. The significance of the loss of that chance would undoubtedly vary from case to case and in some cases it would contribute to mitigation, in others, not."
How it contributes to mitigation is by no means clear. It may be assumed that the principle only operates in circumstances where it is the prosecutor who has elected to have the matter dealt with upon indictment, pursuant to s 260 of the Criminal Procedure Act 1986 (NSW). Thus, one may assume that the Director of Public Prosecutions has determined that the magistrate may not have sufficient sentencing options available and that the matter should, therefore, be dealt with in a higher court. No doubt the result of that election is to expose the offender to potentially more serous penalties. If, after hearing all the evidence (whether at trial or on a plea) the sentencing judge takes a different view, no doubt he or she will impose a penalty which might have been available in the Local Court. The question is whether, and if so why, the offender should then be entitled to a lower penalty than would otherwise have been appropriate. The best that can be said is that the offender has been exposed to a form of punishment by way of facing a potentially higher sentence. Whether that factor can significantly affect the sentence is by no means clear. Unless it could have a significant effect, the failure to consider it should not warrant a grant of leave to appeal.
The applicant noted a passage in Bonwick v R, [4] adopting a principle set out by Hall J in R v Palmer, [5] to the following effect: [6] "In my opinion, the principle to be derived from Palmer is a rule of law that is to be taken into account. It will have a greater influence in the sentencing as both the objective criminality falls below the mid-range, and as the subjective criminality of the offender assumes more significance: Crombie at [16]." [7]
It is doubtful whether there is "a rule of law"; if there is, it should be applied, not "taken into account". However, what was meant was that there is a factor to be taken into account with varying significance in different contexts. Again, the particular nature of the significance is not articulated, except to suggest that it concerns the subjective circumstances of the offender.
To approach the matter on the basis of a presumptive fetter on the exercise of the court's sentencing discretion implies a power to review the exercise of prosecutorial discretion in the selection of jurisdiction. As noted in the joint reasons in Magaming v The Queen, [8] "[i]t is well established that it is for the prosecuting authorities, not the courts, to decide who is to be prosecuted and for what offences." To which one might add, and in what court. The court should impose the appropriate sentence for the offence as proved, within the limits of the sentencing court's jurisdiction and discretion.

Ground 3 - manifest excess

A finding that the sentence imposed was manifestly excessive must turn on three broad factors, namely that: 1. the absence of physical or emotional coercion, suggesting some degree of ambivalence on the part of the victims, was inconsistent with a finding of objective seriousness above the middle of the range for such offending, and 2. an assessment of the victim impact statements did not demonstrate clear and immediate adverse effects on the complainants; and 3. the indicative sentences for each offence (basically two year fixed terms) were excessive, indicating error in the final sentence.
With respect to the first point, the difficulties inherent in intervening with respect to the assessment of objective seriousness of the offending are well understood. As explained by Spigelman CJ in Mulato v Regina [9] the Court is (and should be) slow to set aside such a finding, given the evaluative nature of the exercise and the need to assess a range of factors which may be susceptible of significantly differing views. Those difficulties are at their height in circumstances where there has been a trial in which the sentencing judge has been able to assess the evidence of the complainants and the offender in the witness box. Nor are those difficulties diminished where, as in the present case, this Court has not even had the benefit of the transcript of the trial, although the benefit of a transcript may be quite limited.
It is not possible to identify any specific error in the careful judgment given by the sentencing judge. The challenge is to the evaluative judgments involved therein. Detailed written submissions were presented for the offender in the sentencing proceedings. They were thorough, extending to 80 pages. They included extracts from the cross-examination of the complainants. To a significant extent, they sought to excuse as trivial or inconsequential, the offences for which the offender had been convicted. For example, it was said that certain objective features were common to all offences and all complainants, namely: [10] "The complainant did not convey, indicate, display or show signs of any form of disapproval or non-consent during or immediately after the massage: (1) No words were spoken indicating disapproval or non-consent. (2) No bodily actions were performed indicating disapproval or non-consent. (3) No concerns were raised. (4) No objections were raised. (5) No complaints were made."
More examples of conduct which did not take place were set out in subsequent paragraphs. With respect to the offender, 12 possible aggravating features were identified, which were absent.
With respect to the second point, the three victim impact statements had to be viewed in the context of the evidence of the complainants. It appears that the evidence of the complainants (of which this Court has only glimpses) supported the victim impact statements in demonstrating that, despite being mature women, the complainants were significantly affected by the conduct, were confused and uncertain as to what had been done to them and had experienced significant adverse psychological consequences.
Further, it was not in doubt that what happened was an abuse of a professional relationship in which the offender persuaded each of the complainants either to take off her clothes, including underwear, or to let him take them off. The sentencing judge said: [11] "In relation to all of the offences I find that the offender committed the offences for his own sexual gratification. This is the only finding I can make, given the jury's verdicts. I find that he did have the tendency attributed to him by the Crown, namely the tendency to touch the breasts and genitals of his female patients. I am not, however, sentencing him for having such a tendency. I am sentencing for each of the offences."
She described the offences as involving an abuse of trust. She also described the three victim impact statements as each, "a powerful expression of how the offences have affected these particular victims. The victims describe feeling that what the offender did was their own fault, feeling violated, humiliated, feeling embarrassed and feeling a sense of fear that they would not be believed. … What comes out strongly in the victim impact statements is the deep loss of trust that each woman suffered at having been taken advantage of by the offender." [12]
The trial judge also concluded that the offender had "little insight into the significance of his breach of trust and the consequences of it upon the victims." [13] Again, the finding was open to the judge and there is no basis for this Court to interfere with it.
Turning to the third point (the indicative sentences), there was a degree of arbitrariness in the sentences proposed by the sentencing judge. Those sentences were not imposed (the actual sentence was an aggregate sentence) and an appeal does not lie against those indications. Their relevance is that they may suggest error in the assessment of the aggregate sentence.
A matter apparent from the indicative sentences is the weight placed upon the fact that these offences were not isolated, but constituted a course of conduct. The fact that there was a course of conduct was significant in two respects. First, it limited the degree of leniency which might have been accorded in respect of individual acts. Secondly, it demonstrated a significant element of premeditation and planning. Each of these factors will warrant a more serious penalty than would otherwise have been imposed; nevertheless, that fact should not overwhelm the need to take account of the likely effects of the conduct on the individual victims, so as to identify an appropriate sentence for each offence.
However, the care with which the sentencing judge addressed each separate offence does not demonstrate error in this regard. The conclusions of the sentencing judge with respect to objective severity were expressed in the following terms: [14] "When it comes to indecent assaults upon adults, objective gravity is informed obviously by, the nature of the touching, where on the body the touching took place, the duration of it and the surrounding circumstances. I find that the offences are not in the lowest range, but fall into the middle of the range of seriousness. All of the touching took place directly onto the breast and not through clothing or other drapery and, as I have already stated, I do not accept that any offence was fleeting or momentary. Significantly, each offence occurred as part of a course of conduct that extended over a number of years. I have outlined each of the acts that constitute each of the 11 offences. I will sentence the offender for each act taking into account the surrounding circumstances, because the surrounding circumstances do bear, in my view, upon the seriousness of the acts. I must be careful, however, not to infringe the principle in De Simoni, where such act gives rise to another offence, as it clearly does, in many respects, here. I take those other acts into consideration as establishing that none of the indecent acts were committed in isolation, and that applies both in relation to the whole of the course of conduct, that is, toward all the victims, but it also applies in relation to the course of conduct engaged in by the offender toward each particular victim."
The sentencing judge also placed what she described as "paramount importance" with respect to each offence on the fact that the offender abused his position of trust, which constituted an aggravating factor under s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Against these background circumstances and considerations, the challenge to the sentence as manifestly excessive depended on two contentions. The first was that the indicative sentences failed to distinguish satisfactorily between the circumstances of counts 1-11. The second reason was that, in relation to individual offences, the sentencing judge noted in several instances that there was more than one aspect of the massage which was alleged by the prosecution to be an act of indecency. In each case, the judge sentenced on the basis of a touching of the victim's breast. The fact that there was other conduct which might have been taken into account but was not, taken together with the relatively short time involved in each assault of that kind, demonstrated, the applicant submitted, that the assessment of the middle range of objective gravity was unreasonable.
These considerations do not, however, apply to the more serious offending dealt with on the second indictment. Sucking the victim's nipples and masturbating her, again, on the finding of the judge, for his own sexual gratification, was, as the sentencing judge concluded, the most serious of the offences. It was also the most recent of the offending. The sentencing judge allowed a 10% discount for the late guilty plea, but indicated an individual sentence of two years and six months, involving a pre-discount starting point which was 55.5% of the maximum sentence.
That offence alone would have warranted a non-parole period of 18 months, given the context in which it occurred. Even if only 12 months of that sentence were to be non-concurrent, the remaining 12 offences, accepting a degree of accumulation within them, carried a non-parole period of 24 months (giving a total of three years). To accumulate each sentence by a period of two months of mandatory custody suggests that the indicative sentences do not truly reflect the seriousness of each offence. That exercise, however, would not permit this Court to conclude that the aggregate non-parole period of three years imprisonment was manifestly excessive.
The strongest factors favouring the applicant were his prior good character and the fact that he had not previously been convicted of any offence, let alone one involving a sentence of imprisonment. These were factors which militated against a significant custodial sentence. On the other hand, they would have weighed more heavily in his favour had there been an isolated offence, rather than an extensive course of conduct.
Forms of non-consensual sexual gratification are highly variable. Some are more intrusive than others, and some have graver consequences for their victims than others. However, the sentencing judge was not in error in concluding that each of the offences, taken in context, warranted a custodial sentence. To suggest that some did but others did not would be to draw invidious distinctions between the conduct with respect to particular complainants and the effect on those complainants in circumstances where this Court does not have before it the full material which was available to the sentencing judge. Such a course would run the risk of interference on a false basis.
If the period of mandatory custody were not excessive, nor could the overall sentence be so described. If twelve months were to be notionally attributed solely to the most serious offence, the notional period attributable solely to each of the other offences would be four months.
Although the indicative sentences may not be supportable, because there cannot be an appeal in respect of the indicative sentences, it is not necessary to indicate what sentences this Court would have considered appropriate. The application for leave should be granted, but the appeal must be dismissed.
ROTHMAN J: I have had the advantage of reading, in draft, the reasons for judgment of Fagan J and the orders that his Honour proposes. I generally agree with the analysis of the comparable sentences and judgments that his Honour has set out in his reasons.
I agree with the analysis of grounds 1 and 2 of the appeal and that they must fail. Ground 2 requires some further comment.
A charge that may be dealt with summarily in the Local Court and also on indictment is either brought appropriately in the District Court or it is not. If the application of sentencing principles to achieve the purposes of sentencing result in the imposition of a sentence beyond the jurisdiction of the Local Court, then the matter is plainly appropriate for the District Court. It is unclear what regard should be had to the fact that a like offence, warranting a lesser sentence, could have been brought in the Local Court. I reiterate my comments in Stamford v R: [15] "[50] A court may have regard on sentence, in a matter dealt with by the court on indictment, to the fact that the matter could have been dealt with by way of summary disposal: R v Sandford (1994) 72 A Crim R 160 at 195. The obverse is also true; a court may choose, for good reason, not to have regard to that fact. In this instance the prosecuting authority chose to have the matter dealt with in the District Court. The exercise of that power was correct and cannot be the subject of criticism. So much is conceded by the applicant. The criminality of the offence in question was too serious to be dealt with by the Local Court. In those circumstances, the sentencing judge is required to deal with the matter in accordance with ordinary principle. The sentencing judge is required to have regard to any standard non-parole period, the maximum sentence that may be imposed and the general principles applicable either under the common law or statute to the fixing of the sentence. The jurisdictional limit for a sentence, if the matter were to have been processed in the Local Court, is not a constraining element (or any element) in those circumstances: R v Crombie [1999] NSWCCA 297 at [14]-[16]; R v El Masri [2005] NSWCCA 167 at [29], [30]. This ground of appeal fails." [16]
Statistics, if used as a limit on, or definition of, the range available for a sentence become a self-fulfilling limitation, unrelated to the guideposts of maximum sentence and any standard non-parole period.
The reasons for judgment of Fagan J set out the summary of offences and the conduct giving rise to them, as a consequence of which it is unnecessary for a description of the offences or the conduct to be repeated. Thus, I can more briefly outline the basis upon which, with great respect, I disagree with his Honour's proposed orders.
First, to those unaware of the process, sentencing involves the somewhat counterintuitive process by which a sentencing judge is required to determine the relative seriousness of offending conduct. That comparative process of evaluation is a process that examines the range of conduct covered by the offence in question and measures the conduct in which an offender has engaged relative to the range of conduct that is involved in offences covered by the provision. Thus, one reserves the maximum sentence for that class of cases that involves conduct of the worst category covered by the criminal provision. Further, one measures the conduct before the Court for sentencing against the range between the worst category of conduct and that which is in the lowest category of conduct covered by the offence. In so doing, the Court is neither condoning the conduct nor excusing it.
His Honour, Fagan J, has assessed the conduct of brushing across the nipple as one of the least serious offences covered by the provision under which the applicant was charged. With that proposition and analysis, I agree. I agree with that proposition because, compared to the prolonged massaging of the breast, while naked, or the touching or massaging of genitalia, it is far less serious. That does not mean that the offence is not a serious one; the legislature, in fixing the maximum sentence, has so prescribed and the courts consider it as one.
There are two aspects on which comment is required. First, the fact that the victims voluntarily submitted themselves, naked, to the touch of the applicant requires comment. In my view, such a statement does not adequately represent the particular circumstances of these offences. Nor can it be, in the circumstances, an ameliorating factor.
Each of the women was not "naked" in the sense to which that term was sought to be used to seek to ameliorate the seriousness of the conduct. Some of them had their clothing removed. All of them had a towel covering their body and giving them, what they would have reasonably thought, was a protection to their sense of modesty. The towel was removed for other than therapeutic reasons. It was not necessary or appropriate from a professional standpoint.
Secondly, the seriousness of the offence was sought to be addressed separately from the professional relationship. In my view the professional relationship between masseur and client is at the core of the offences in this case.
If a person attends on a professional, whether or not the person needs to be naked for that attendance, there is no warrant for treating a sexual assault or act of indecency any less severely. The person, being the client, is entitled to have her or his problem addressed professionally and without being subject to indecent assault or an act of indecency. This aspect, namely the professional relationship between the applicant and the victims, renders the objective seriousness of the conduct far worse than it would have been, if there were no professional relationship between them.
The next aspect of the assessment of the objective seriousness relates to the damage to the victims. In my view it is inappropriate to take account of the particular damage to one victim who had been the subject of sexual abuse earlier in her life. On the other hand, it is inappropriate to take account to any significant degree that many of the victims (but not all of them) returned for further massages. It must be said that the return of some of the victims for further massages is a disconcerting aspect of the charges preferred. However, in my view, it is inappropriate, in the absence of an appeal against conviction, to discuss the effect of such subsequent conduct, except to the extent that his Honour Fagan J has, in that it speaks more clearly as to the perceived damage and effect on the victims than most other evidence would.
However, taking into account the particular damage to a particular victim has dangers. While the Court is required, if appropriate, to receive and consider a victim impact statement, such a statement should refer only to the effect on the victim of the offence with which the offender has been charged. [17] More importantly, a sentencing judge should, in my opinion, take account of the effects of the offence on the victim only to the extent that it is a usual, probable or expected effect. [18]
In that regard, I would suggest that the long-lasting traumatic effect of unwanted sexual conduct, be it an act of indecency, indecent assault or worse, is a usual and expected result of the conduct. However, even though the courts are aware that sexual abuse on women is a far more common incident than has ever previously been thought, it is, unless there were knowledge on the part of the offender, inappropriate to take into account the effect due to a combination of the offence with which the offender is charged together with earlier abuse that may have been perpetrated by another.
I turn then to the seriousness of the offences and the sentence that was imposed. There can be no appeal against the indicative sentences, whether excessive or lenient. The only appeal that is able to be lodged is against a sentence imposed. In the case of an aggregate sentence, it is the aggregate sentence that is the subject of appeal and not the indicative sentences that may lead to it.
Nevertheless, if the indicative sentences are manifestly excessive (or inadequate) it may disclose the reason that an aggregate sentence is in such category (or more readily lead to such a conclusion).
I do not agree with the categorisation that the brushing of the nipples was "an extension of degree" to the touching of a naked body. In my view, the non-therapeutic touching has a qualitative difference to therapeutic touching that is required or appropriate and to which the victims submitted. Further, I do not consider that, in assessing the objective seriousness of the offences, it was error to move directly from the nature of the touching to the number of offences that have been charged and the course of conduct over a significant period.
Further, I accept that the offences with which the applicant was convicted vary in seriousness, in a way not reflected in the different indicative sentences. [19] However, we are dealing with indicative sentences and the Court ought not to lose sight of the circumstances of sentencing for a number of similar offences that the judge has concluded will be reflected in an aggregate sentence.
Next, I do not share any disbelief in the proposition that a person may be unwillingly sexually aroused sufficiently to reach orgasm and, nevertheless, feel sufficiently intimidated, regardless of age, not to complain to the perpetrator about an unwanted, uninvited and unsolicited sexual contact.
There is no reason to suggest that her Honour's comment in sentencing the applicant that he had "little insight into the significance of his breach of trust and the consequence of it upon his victims" is incorrect. Most sexual assault or acts of indecency relate to the exercise of control and power, rather than sexual attraction. Nevertheless, there are no reported instances of massages of this kind being provided by the applicant to male clients.
Ultimately, like Fagan J, I take the view that the sentencing judge's indicative sentences are heavy, if considered individually and without regard to the number of offences and victims. However, I do not consider that the excessiveness of the indicative penalties reveals the excessiveness of the aggregate term.
The maximum sentence that may be imposed for this offence, under s 61L of the Crimes Act 1900, is five years' imprisonment. There are 13 such offences on eight different victims. Some of the offences are not a mere brushing of the nipple; the offences include the fondling and sucking of the nipple and the massaging of the clitoris and genital area. For the reasons that the brushing of the nipple may be, without more, the least serious touching, the other conduct is in a far more serious category.
Given the conduct over an extended period, the number of offences and the number of victims, I do not consider that the aggregate sentence imposed is manifestly excessive, in that it does not, by the result, disclose an otherwise unidentifiable error of the kind that would allow intervention with a discretionary exercise such as sentencing.
I would grant leave to appeal and dismiss the appeal.
Since the drafting of the foregoing, I have had the advantage of reading the draft reasons of Basten JA. I agree with those reasons and the orders proposed in them.
FAGAN J: The applicant seeks leave to appeal against his sentence for 13 counts of indecent assault contrary to s 61L Crimes Act 1900 (NSW). Sentence was imposed by her Honour Judge Baly SC in the District Court following guilty verdicts returned by a jury in respect of 11 counts. Pleas of guilty were subsequently entered to two additional counts on a separate indictment.
The offences occurred between 1 October 2008 and 31 March 2012 when the applicant was aged between 54 and 58 years. He worked part-time as a masseur at a gymnasium which operated at two separate locations during the charge period. There were 8 female complainants whose ages ranged from 33 to 57 years at the time of the offences against them respectively. All complainants were customers of the applicant whom he indecently assaulted while performing therapeutic massage. The extent of the indecent assaults for which he was sentenced was limited to touching the breasts in relation to all but one of the complainants. In respect of the eighth complainant the particulars on one count were that the applicant sucked one of her nipples and on a further count that he touched her genitals in a manner more fully described at [97].
The maximum penalty for each offence is 5 years imprisonment. Her Honour imposed an aggregate sentence pursuant to s 53A Crimes (Sentencing Procedure) Act 1999 (NSW) comprising a non-parole period of 3 years and a balance of term of 2 years. The non-parole period commenced on 9 April 2015. The applicant will be eligible for release on parole from 8 April 2018. To the date of the hearing of his application for leave in this Court on 6 June 2016 he had served just short of 14 months of full-time custody.
In connection with fixing the abovementioned aggregate sentence her Honour nominated indicative sentences on each of the first 11 counts of 2 years imprisonment. For the twelfth count (sucking the nipples of the eighth complainant) her Honour's indicative sentence was 2 years (after allowing a 10% discount for the late plea of guilty, implying a starting point of over 2 years and 3 months). For the thirteenth count (touching the genitals of the eighth complainant) the indicative sentence was 2 years and 6 months (again with a 10% discount, implying a starting point of over 2 years and 9 months).

Objective facts of the offences

In relation to several of the counts the Crown alleged and led evidence from the relevant complainant of multiple alternative acts of indecency. For example in relation to Count 1 the Crown alleged: "First, the offender's hand skimming the victim's vagina, secondly, touching by the offender's hands of the victim's pubic area, or thirdly, touching the victim's breast during the 'toe to finger' massage". (RoS p 2)
The jury's verdict of course did not identify which of the alternatives they had found proved beyond reasonable doubt. They had to be unanimous as to at least one of the three (in the example of Count 1). This was similarly the position in relation to Counts 2, 3, 5 and 9 (two alternatives of touching relied upon for each count) and Count 6 (three alternatives).
Her Honour decided to sentence on the basis that the indecent assault in each count where the Crown had put alternative particulars was constituted by touching the complainant's breasts. In part this course was adopted because "[t]he Crown Prosecutor put to the jury that the strongest of these factual alternatives was the breast touching during the finger to toe massage" (RoS p 3). Her Honour found the alternative particulars of each such count proved beyond reasonable doubt but her descriptions of them in the Remarks on Sentence indicate that the alternatives involved either no contact or minimal and insubstantial contact. For example, "skimming the victim's vagina", "touching the victim's pubic area", "running of the hands over the vaginal area" and moving a complainant's knee and leg in a manner to expose her vagina to the view of the applicant but without touching. Her Honour evidently considered the touching of breasts to be the most serious particular in cases where alternatives were also proved.
The dates of the respective offences as pleaded in the indictment and as nominated by the complainants in their evidence were in most cases uncertain. For some counts the dates were specified only to the extent of having occurred within a range of, in some cases, a few months and in other cases longer, up to nearly 2 years. The time intervals nominated for charges and complainants overlapped. Uncertainty about the dates is no doubt attributable to long delay before complaint was made in relation to most of the instances.
The relative seriousness of each count and of the course of offending overall is best appreciated by considering the counts in groups by complainant, in the sequence in which they are pleaded in the indictment. That is broadly the chronological order of relevant events. The appeal papers do not include the trial transcript. For some of the factual detail I have relied upon summaries and references to evidence appearing in written submissions on sentence which were provided to the learned sentencing judge.

Complainant A - Counts 1 and 2 (October '08 - June '09) and Count 3 (February '10 - December '11)

Complainant A was aged about 40 years at that time of the first two counts and 41 or 42 at the time of the third. The relevant touching was the same in each of Counts 1, 2 and 3. The applicant performed a "toe to finger massage" which involved continuous movement of one finger over the complainant's body without stopping or grabbing and without concentrating on any part of the body. This was done repeatedly during each toe to finger massage. In the course of this procedure the applicant traced one finger in a line along the outer side of the complainant's breast.
In the complainant's evidence at trial she said the applicant "always spoke nicely", was "polite", "friendly", "pleasant" and never "intimidatory". Her Honour found: "the touching of the breast was a like touching on each occasion, … it occurred at the end only of the massages, … it was not for a lengthy period of time, … it occupied part only of the total finger exercise, … there was no greater concentration on the breast than any other part of the body, and no prodding, squeezing, groping or massaging the breasts, … at all times the offender was polite pleasant and friendly and the victim did gain some health benefits from the offender's massages." (RoS p 7)
After the event which is the subject of Count 1 Complainant A did not protest to the applicant or to the owner of the gymnasium (with whom she had frequent contact) concerning the manner in which she had been touched. She returned for further massages expecting that they would include the same actions as part of the toe to finger massage. Immediately after the massage which is the subject of Count 3 she joined the applicant for conversation over a cup of coffee at a nearby café. She returned on a subsequent occasion for another massage in which she was touched in a similar fashion, as she expected. This last instance was not charged.
Her Honour found: "As to the fact that [Complainant A] did not complain, and returned for massages … it is clear to me that she, as well as many of the other victims, felt that what the offender did was not right, however, she went back to see him again. For a number of reasons including; that she did not want to upset the offender or offend him, the fact that he was an otherwise pleasant person, the impact of what others said about him, which was positive, a certain mistrust of her own feeling that all was not right and the fact that he was effective in relieving the pain and was pleasant and friendly and not violent, and she felt that no one would believe her if she did complain. She went back on at least one occasion because she hoped that he would have improved. … [a]t this point … her reaction was brought about by the trust that she had in the offender. He gained her trust and then grossly abused that trust." (RoS pp 5 - 6)
Her Honour took into account a victim impact statement in which this complainant said that she had been sexually abused as a child. She did not give details of that earlier experience. Complainant A said in this statement she felt uneasy about the way she was massaged but "thought that I had done something wrong". She did not tell her husband or anyone else because she was afraid and embarrassed and thought she would not be believed. Her Honour gave weight to this material as evidence of the degree of harm suffered by the complainant. The learned judge found this and the victim impact statements of two other complainants to be: "a powerful expression of how the offences have affected these particular victims. The victims described feeling that what the offender did was their own fault, feeling violated, humiliated, feeling embarrassed and feeling a sense of fear that they would not be believed. Initial feelings of not being supported changed when each later learned that other women had experienced similar offending. What comes out strongly in the victim impact statements is the deep loss of trust that each woman suffered having been taken advantage of by the offender." (RoS p 24)
Her Honour dismissed the circumstance of Complainant A having returned to receive further massages as having no significance: "It was put that the victim, having returned for further massage in light of her knowledge of what might take place, renders the offences somehow less serious. I do not accept that contention. Rather, in my view, it reflects a lack of confidence by the victim in accepting her own feelings that it was not right and that came about because the offender had gained her trust." (RoS p 7)
The complainant was a mature woman. The applicant was not in a position of authority, control or influence over her. The fact that she returned repeatedly was necessarily relevant to the seriousness of the offending. First, it demonstrated a limit to the degree of upset or distress which could be taken to have been caused by the indecent touching. Refraining from immediate complaint might well not have been a reliable indicator of limited mental reaction to such an incident. But voluntarily returning for further massages, in the absence of any evidence that continued submission to the applicant's services was medically or otherwise necessary, was strongly indicative of the limited degree to which the complainant was upset by the indecent touching of her breasts. Secondly, the fact of no complaint having been made and of the complainant having returned for subsequent massages would have been a counter indication to the applicant of any distress that his touching had caused. The second and third counts could therefore not be viewed as exacerbated upon the basis of the applicant having perceived that his conduct was distressing to the complainant.
Her Honour rejected the proposition that touching of the nature involved in Counts 1, 2 and 3 (and in Counts 4 to 11) was at the lowest level of seriousness for indecent assault (RoS p 19). Instead it was held that they fell "into the middle range of seriousness".
In this I consider that her Honour erred. Putting to one side for the moment the aggravating circumstances of the applicant having abused his position as a service provider and of these counts having been part of a large number of offences against several complainants over a long course of conduct, the physical acts of touching the breasts of Complainant A with one finger were at the lowest level of seriousness. Such contact was less intrusive and less overtly sexual and indecent than would be, for example the touching of the genitals. The touching was in each case superficial, without impact or physical pressure or hurt. It was not accompanied by force, threat of force or restraint.
The "toe to finger massage" involved the complainant lying completely naked on a massage bed. When she first lay down she wore a G-string which the offender removed. It was not alleged that that occurred without consent. In this form of massage the offender ran his finger, with the undisputed consent of Complainant A, generally over almost the entirety of her body including over erogenous zones such as the buttocks and thighs. (The complainant also consented to more conventional massage in which her body was touched, generally, by way of rubbing or kneading).
At RoS p 19 her Honour treated the fact that the "touching took place directly onto the breast and not through clothing or other drapery" as contributing to the objective seriousness of the offences. This consideration would be of greater significance in a case of an offender reaching under clothing, for example in an office or social setting or on public transport. Assessment of the seriousness of these three indecent assaults must take into account that Complainant A did consent to extensive touching of her body whilst lying unclothed on a massage bed. The offence was constituted by an extension of degree, from the permitted and consensual touching of the client's thighs, buttocks, lower back, abdomen, waist, chest and neck to the unauthorised touching of the breasts.
Her Honour accepted expert evidence to the effect that touching the breasts was never warranted on therapeutic grounds as part of the "toe to finger" style of massage. It is not apparent to me, in the absence from the appeal books of any evidence on the subject, what therapeutic value there may have been in any part of this procedure, including the stroking of the masseur's finger over the other parts of the body referred to above, all of which would be to some degree sensitive with respect to sexual arousal. The toe to finger treatment does not appear to have involved any action which would stimulate blood flow, ease the working of joints or free muscle tension. The entire procedure, as described, seems to have been capable of doing no more than inducing a pleasant sensation in the skin.
The non-consensual extension from touching the rest of the body, generally, to touching the breasts is significantly different from, for example, a medical practitioner indecently touching a female patient's breasts during a purported examination of another part of the body for the limited medical purpose of investigating a particular complaint or symptom. The touching of the breasts in each of Counts 1, 2 and 3 took place in a context where otherwise general touching the body was expected and consented to for the purpose, apparently, of its sensory effect.

Complainant B - Count 4 (January '09 - December '09)

Count 4 was of a single indecent assault against Complainant B committed during 2009. Complainant B was approximately 37 years old at the time. During the course of a massage, with the complainant lying naked on her back, the applicant "ran two fingers from her toes to her shoulders including over her breast and nipple" (RoS pp 7 - 8). This was another "toe to finger massage" of the type described in connection with Counts 1, 2 and 3. There was no victim impact statement from this complainant. She made no immediate complaint (RoS p 8). After the event she continued to attend the gymnasium regularly, participated in classes with the applicant, chatted to him "in a friendly way" and, three months after the incident referred to in Count 4, had another massage from him. She continued to see him for massages in February and March 2010, limited to the legs.
Her Honour said with respect to this count: "I do not accept the submission that the offence is at the lowest level of seriousness for an indecent assault. This was touching on the naked breast and nipple and I do not find that it was fleeting or momentary. None of the offences can be looked at in isolation as the defence would have me do. That would be artificial. It is true of course that I must sentence for each offence in accordance with the decision of Pearce, but I cannot ignore the fact that the offences are part of a course of conduct that occurred over a period of years. That is the approach I must take when I come to consider the overlap of the offending in terms of the application of totality and the question of accumulation."(RoS p 9)
I respectfully consider that her Honour erred in failing to recognise that in terms of physical contact the touching involved in this charge, as with that in Counts 1, 2, 3 and the other counts up to number 11, was very much at the lower end of the range of physical conduct which may infringe s 61L. That is for the same reasons as given at [68] - [79] in relation to Counts 1, 2 and 3.
The persistent pattern of offending and the number of complainants certainly warranted a more serious characterisation of the applicant's total criminality and the imposition of more severe individual and total penalties than would have been appropriate to one or two isolated occurrences. But at this point in her Honour's judgment she did not acknowledge that the individual act of indecency was of itself relatively slight. In the passage quoted at [81] above the learned judge moved straight to the consideration of multiplicity of charges and the entire course of conduct without separate recognition of the countervailing and mitigating factor of relatively minimal physical intrusion. It was minimal in context, relative to the extensive touching of the complainant's naked body to which she consented.

Complainant C - Counts 5, 6, 7 (July '09 - December '09; 15 February '10; 13 August '11)

Complainant C was aged between 43 and 45 years at the time of the offences concerning her. Each of Counts 5 and 6 involved the applicant running his finger across her breasts a number of times, including across or very close to her nipples. Count 7 concerned him putting oil across her breasts using one finger. Again this non-consensual touching was part of a "toe to finger massage" administered whilst the complainant was completely naked. There was no issue that extensive touching of the body, including many sensitive areas, was by consent.
Complainant C found the applicant at all times polite pleasant and friendly. She considered that she had a friendship with him which continued throughout the period in which the offending massages were given. She had an additional massage in between that which gave rise to Count 6 and that with which Count 7 is concerned. She had two further massages after the one particularised in Count 7.
As with Complainant A in relation to Counts 1, 2 and 3, her Honour expressly did not accept that this complainant's repeated attendances upon the applicant, her continued friendship with him and the absence of complaint to him or to anyone else about him, at the time, in any way lessened the seriousness of the offending (RoS p 13). However those matters had the same significance for Complainant C as did similar circumstances with respect to Complainant A: see [73].
The learned judge found that the touching of Complainant C's breasts "was not fleeting" and rejected the submission that it was at the lowest end of the scale of seriousness for breaches of s 61L. I consider that her Honour was in error in this, confining consideration of relative seriousness for the moment to an analysis of the purely physical acts. These counts were of minimal objective seriousness, in isolation, for the reasons I have given above in relation to Counts 1 to 4.

Complainant D - Count 8 (January '10 - March '10)

Complainant D was aged 57 years. Count 8 was constituted by the applicant massaging her breasts and nipples with the flats of his hands in a circular motion. She also made no complaint at the time and returned for further massages. Her Honour found this "irrelevant when it comes to the sentencing exercise". I consider that to have been an erroneous exclusion from consideration of a matter which was relevant to determining the degree of upset caused to this complainant, for reasons similar to those given in relation to the other complainants considered above.
Complainant D did not submit to being massaged fully naked. She had a towel over her upper body. While she was lying on her back it covered her from her chest to below the waist. The offender performed a massage for sciatic and hip pain. This included leg stretching. He then volunteered a "relaxation massage" in which the complainant reluctantly acquiesced. During this latter procedure he moved his hands under the towel and massaged her breasts using oil. This was a more serious act of indecency than the finger touching of Counts 1 to 7. It was more prolonged, it involved enduring contact and it was entirely different in character from any form of touching to which the complainant had consented as part of the overall massage she was receiving.

Complainant E - Count 9 (23 March '10)

Complainant E was 34 years old when she received a "zone therapy" massage from the applicant. As described by her Honour at RoS p 15 this appears to have been the same as the toe to finger therapy: "he stroked the victim's toes to her shoulder and he went over her breasts getting closer to her nipple each time". The complainant was naked apart from her underpants during this "zone therapy". Whilst recognising that there was no squeezing, prodding, groping or any form of verbal pressure or verbal or physical intimidation accompanying the improper contact, her Honour found that "the touching of the breast in the circumstances here is not of low seriousness". As with the other counts already considered, that was in my opinion an erroneous assessment. This complainant did not return for any subsequent massage.

Complainant F - Count 10 (January '11 - March '11))

Complainant F, aged 33 years at the time, received a "toe to finger massage" from the applicant within the first three months of 2011. She wore only a G-string during the procedure. In the course of the massage the applicant touched her breasts, five times on each side. He "went closer and closer to her nipple each time. He did not touch her nipple, but was very, very close to it" (RoS p 16). This complainant also acknowledged the politeness of the applicant at all times. Again her Honour did not accept "that the offence falls into the lowest end of any scale of seriousness" but in my opinion she should have done. The complainant described to the gymnasium manager, about one week later, what had occurred.

Complainant G - Count 11 (15 September '11)

Complainant G was aged 36 years when she had a "deep relaxation" massage in September 2011, during which "the sides of her breasts were stroked … [and] the last stroke went over her nipple". There was, as with all counts, a finding that this was not in "the lowest end of any scale of seriousness". Complainant G's victim impact statement was one of the three referred to at [16]. She recounted that she had not returned to the applicant after the incident but she did not talk to anybody, including her husband, about it.
The victim impact statement is primarily concerned with the apprehension and anxiety that Complainant G has felt in relation to giving evidence. It does not record any significant mental upset directly from the experience of the minor indecent contact (as I would characterise it) at the hands of the applicant. Complainant G only acknowledged to any other person that she had experienced this indecent act when her closest girlfriend inquired why she had never returned to the applicant. When the complainant referred indirectly to the indecent assault upon her, the girlfriend stated that she knew of others who had had similar experiences and that she intended to report the matter to police. So far as the victim impact statement shows, that was the beginning of any emotional distress that Complainant G has felt about the matter.
This statement could not support the finding made by her Honour as quoted at [16], yet that finding is expressed generally with respect to all three victim impact statements received. Her Honour misapprehended the gravamen of Complainant G's impact statement.

Complainant H - Count 12 (February '12)

Complainant H was 50 years old when she attended the applicant for a massage of her legs in February 2012. She had received 30 or 40 massages from him over previous years, from about 2008. The complainant and the applicant were friends. They had some social contact away from the gymnasium. As this massage was intended by the complainant to be only to her legs, she initially kept her bra and underpants on. However the offender asked her to remove them.
After massaging the complainant's legs whilst she was face down on the bed, the applicant asked her to turn over. He then performed toe to finger stroking of her body, as earlier described in relation to other counts. This included stroking over the naked breast. The complainant had experienced this before and apparently consented to it on this occasion. It is not the subject of a charge. The particular of Count 12 (as I shall refer to it, being the first count on the second indictment) is that the applicant sucked both the complainant's nipples at the conclusion of the toe to finger stroking. This was a significantly more serious act of indecency than the light touching which has been referred to in the earlier counts (other than 8). However the description of events which immediately followed indicates that it did not cause the complainant significant affront or upset.
The particulars of Count 13 (numbered 2(b) on the second indictment) are recounted by her Honour at RoS pp 21 - 22 as follows: "… he moved his hand down to her pubic region and began massaging her genital area in a circular fashion. He rubbed the tip of her clitoris. … [Complainant H] did not expect this and she did not want it. However, she was unable to say or do anything to stop it. She felt a sensation of sexual climax approaching and mentally was trying to stop it, but she felt frozen, physically. The offender pinched her nose which stopped her from breathing, and then [Complainant H] climaxed."
No issue was raised, either at first instance or in this Court, as to whether it is credible that Complainant H, a mature, sexually experienced married woman, was able to be sufficiently sexually aroused to reach orgasm by being masturbated against her will, unrestrained and whilst wishing to arrest the progress of the sexual pleasure which the applicant's actions were producing. The complainant was not tested in cross-examination about this account because the applicant pleaded guilty to the charge and thereby admitted the described event as factual.
In view of the applicant's plea and non contest regarding the circumstances of Count 13 his sentence for it has to be considered taking the above description of the incident at face value. The relative seriousness of any indecent physical touching must be evaluated with due regard to the effect of it upon the complainant. According to her Honour's description the physical touching of Count 13 did not cause injury, pain or psychological hurt but, in the words of the RoS, "climax" - immediately following which the complainant sat up on the massage bed and discussed with the applicant that she had not previously been sexually stimulated in that manner by anyone except her husband. She then paid the applicant for the massage and went with him to have a cup of coffee and some conversation in a nearby cafe. The complainant and her husband spent a social evening with the applicant and his wife within a week or two afterwards.
Complainant H's victim impact statement speaks of persistent intrusive thoughts about "the sexual assault", on the face of it referring to the particulars of both Counts 12 and 13. It also refers to "unwanted experiences from my childhood (experiences with a grandfather)" which are not elaborated. The statement says that reflection upon the events of these two counts "makes me feel sick, what a fool, an idiot, naive and stupid, to be coerced and placed in that situation". It refers to the applicant as "someone I trusted [who] has taken advantage of me and sexually assaulted me". The statement goes on to describe marital tensions caused by revelation of these events, stress concerning the expectation of having to give evidence and loss of friendships at the gymnasium.
From this victim impact statement it is difficult to identify evidence of unpleasant thoughts or memories which the complainant may claim to have had of the event itself (which might be regarded as psychological sequelae) and to disentangle these from regret and embarrassment which would understandably have been caused by revelation of the events to her husband and, perhaps, to a wider circle of acquaintances. Her Honour did not recognise this mixed character of the victim impact statement of Complainant H: see the passage of the Remarks on Sentence quoted at [71].

Subjective circumstances of the applicant

Her Honour's findings as to the applicant's subjective circumstances appear at RoS pp 24 - 27. He was aged 60 when he was sentenced. He was raised in a stable and caring environment and had positive relationships with both of his parents, now deceased, and with one older sister who died during his trial. Her Honour recognised that he was still grieving for the loss of his sister at the date on which she passed sentence. He had been married for 38 years up to that date. His marriage has been a happy one producing three children now adults. The applicant has three grandchildren.
The applicant's wife and family remained supportive of him when he was before her Honour for sentence. They spoke of him as a good man involved in community activities and charities. It was established to her Honour's satisfaction that he was well regarded in the community, respected and trusted amongst his peers. Written references were provided to the learned sentencing judge describing him as, amongst other things, "an upright, honest and reliable citizen and a person of great integrity".
The applicant had worked for Telecom for most of his adult years. In 2009 he was semi-retired and, having obtained diplomas in massage therapy and in anatomy and physiology, he commenced to work part time as a masseur. He had been casually employed in that capacity at the time of the offences but had ceased practice by the date of sentence.
Reports tendered to her Honour showed that the applicant took full responsibility for the offences and that he was "saddened by the impact that his actions have had on the victims". However he denied that he sought or obtained sexual gratification from the commission of the offences. Her Honour rejected this and made a finding that he appeared "to have little insight into the significance of his breach of trust and the consequences of it upon victims". Notwithstanding the reported expressions of his regret her Honour said that whilst she considered his prospects of rehabilitation were good this view was "not based upon any remorse or regret or insight demonstrated by the offender, because there has been none".

Her Honour's sentence decision

Her Honour took account of the number of offences and the period of years over which they were committed. She rightly held that the sentence for each had to take into account that every one was part of a whole course of conduct. The number of complainants was correctly regarded as calling for some degree of accumulation. The offences were treated by her Honour as aggravated by the circumstance of having been committed in breach of a position of trust. With respect it was valid to take account of that circumstance. However given the nature of the procedure which the applicant was carrying out with the consent of each complainant, apparently primarily for pleasant stimulation of skin sensations over the naked body (see [78] and [79]), the abuse of trust was of a different order from that which would be involved in, for example, a doctor inappropriately touching a part of a patient's body completely unrelated to any relevant medical examination.
Although it is the aggregate sentence which is to be considered under appeal ground 3 ("The sentence imposed was, in all the circumstances, manifestly excessive"), her Honour's indicative penalties reveal the excessiveness of the aggregate term which she derived. Two years full-time imprisonment for each instance of touching a woman's breasts in the circumstances of Counts 1 - 11 is in my opinion manifestly grossly excessive. Counts 1 - 7 and 9 - 11 were very low on the scale of seriousness, upon the purely objective considerations of the nature and circumstances of physical contact and the lack of significant harm caused. Count 8 was more serious than the others but still low in the range. Counts 12 and 13 involved more significantly indecent conduct than Counts 1 - 7 and 9 - 11 but the lack of distress, intrusion or hurt apparently felt by the complainant is offsetting to the degree of seriousness.
The aggravating features of breach of trust and of repetition in a prolonged course of conduct are not capable of elevating each count to a level of criminality which would warrant a term of two years full-time imprisonment in each case, as indicated by her Honour. Nor were those features capable of aggravating the whole series of minor, nonviolent, superficial acts of indecency into a combined episode of criminality which would justify 5 years of imprisonment with a 3 year non-parole period, for an offender with this man's character and antecedents. This conclusion follows from the matters considered in the balance of these reasons.

Comparison with other sentences under s 61L

The indecent assaults committed in the cases considered in the following paragraphs appear to have been more serious than any of the offences for which the applicant was sentenced (viewed individually), yet the penalties imposed were either markedly lower than the 2 years imprisonment per count (and more for Counts 12 and 13) indicated by her Honour or (in one case) were of a similar order for graver offending. In an endeavour to achieve consistency a point of commencement is to compare the facts of the individual charges in the present case with facts considered in other sentencing decisions, including subjective circumstances of the offenders respectively. It will be necessary thereafter to consider whether the applicant's repetition of offences against several complainants over more than three years elevates the seriousness of his offending overall to the level where it would justify the sentence determined by her Honour.
Whether the whole course of conduct could justify individual sentences of the order indicated by her Honour is an intermediate matter to be considered. The quantification of indicative sentences was a step in the reasoning which led to the aggregate sentence. In this case it was a step which reveals that the determination of the aggregate miscarried because her Honour made an exaggerated assessment of the seriousness of the individual instances and of the punishment appropriate to them respectively.
In considering the other sentence decisions which I find comparable I bear in mind that caution must be exercised when having regard to a relatively small sample: Qing An v Regina [2007] NSWCCA 53 at [98]. On the other hand, the wider the group of comparatives adopted the more they will tend to include cases with features markedly different from those of the present appeal. Whatever the difficulties of reviewing other decisions and of making allowance for inevitable differences between them and the instant case, the task must be undertaken. Principles stated in Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 demand that the Court should strive for consistency. There is no way of achieving this other than by comparing the case before the Court with other decisions. Recourse to statistics provides no meaningful comparison capable of substantiating consistency. Statistics do not individualise the cases from which they are drawn, do not reveal the number and strength of points of similarity and do not permit recognition of or allowance for points of difference.
In R v Qin; Qin v Regina [2008] NSWCCA 189 the female complainant was receiving a massage of her leg muscles from the offender, a male masseur, when he ran his finger over her anus (giving rise to the first count, of indecent assault) and then parted her labia with his finger and touched her clitoris (the second count, of sexual intercourse without consent contrary to s 61I). The complainant was immediately significantly upset and fled from the massage premises. After being found guilty at trial a 5 year bond under s 9 Crimes (Sentencing Procedure) Act 1999 was imposed for the first count. On the second, which carried a 14 year maximum, a 10 month sentence of imprisonment was wholly suspended.
The Crown's appeal against inadequacy was dismissed. The sentencing judge had referred to the "minimal degree of physical interference involved" and concluded that the second count fell "almost at the extreme lowest level" of seriousness for a contravention of s 61I. This Court considered these findings were "within the ambit of the sound exercise of his Honour's function". The offender had against him an earlier finding of guilt of an offence of indecent assault dating from 2000. The first of the offences in R v Qin was in my opinion of a level of seriousness comparable with Counts 1 to 12 against the present applicant, taking each of them in isolation. The second count dealt with in R v Qin was more serious than Count 13 in the present case and was charged under a section with a higher maximum.
In Salmond v R [2010] NSWCCA 141 the female complainant received a massage from the offender to relieve chronic backache, shoulder and neck pain, migraine and tension headaches. The offender was convicted (after two trials) of one count of indecent assault constituted by brushing his hand against her clitoris and one count of sexual assault contrary to s 61I. Particulars of the latter were that he spread the complainant's thighs apart and pushed his finger in and out of her vagina a few times. The complainant pushed his hand away and told him to stop. She was shaken and distressed by the occurrence and made immediate complaint to a friend, before attending a police station to report the matter shortly afterwards.
The offender was almost 50 years old and of otherwise good character. He was sentenced in the District Court to a fixed term of imprisonment of 2 years for the indecent assault. Neither the conviction nor the sentence for this offence was appealed. This Court dismissed an appeal against a concurrent sentence of 2 years non-parole period and a balance of term of 2½ years for the s 61I sexual assault.
The indecent assault in Jiang v R [2010] NSWCCA 277 consisted of the offender sucking the nipples of the complainant during a massage. Two counts of sexual assault contrary to s 61I were also proved, one constituted by touching the clitoris and the other by digital penetration. The complainant had pushed the offender's head and hand away when each of the assaults occurred. She met with a male friend shortly after the massage and "collapsed crying", describing the sexual abuse as "really, really bad". The male friend accompanied her to report the events to police the same day. The sentence imposed for the indecent assault contrary to s 61L was a fixed term of 6 months, concurrent with two sentences (also concurrent as between themselves) of 18 months non-parole period and 6 months balance of term for each of the two s 61I sexual assaults.
This Court rejected the offender's severity appeal, which was confined to the terms imposed for the s 61I counts. Reliance was placed upon the lower sentences which had been imposed in R v Qin for a comparable offence against that section. The Court was not asked to consider the appropriateness of the 6 month term for the indecent assault. Notably, the sentences passed for the two s 61I sexual assaults were less severe than the indicative sentences nominated by her Honour in the present case for each of Counts 1 - 11, of touching the complainants' breasts in contravention of s 61L.
The applicant's counsel drew to the Court's attention some sentencing decisions concerning aggravated indecent assaults charged under s 61M. No assistance is gained by consideration of these citations because the factor of the victim being under 16 years where s 61M is charged precludes meaningful comparison. Some other cases cited on behalf of the applicant wherein only sexual assaults contrary to s 61L were proved are likewise not comparable.
Consideration of sentencing decisions under s 61L for offences committed in settings other than that of a masseur abusing his position show that significantly more invasive, aggressive and violent assaults than any of those perpetrated by the applicant have attracted sentences lower than or similar to the 2 year fixed terms which her Honour indicated here. In Aktar v R [2015] NSWCCA 123 the offender was a 28 year old man with no prior convictions. He refused to leave the complainant's home when asked. He picked her up from where she was sitting, laid her on a sofa, pinned her down with the weight of his body, kissed and licked her and touched her breasts - all against her physical resistance. When the complainant sought to free herself and run from him the offender carried her to a bedroom, placed himself on top of her on a bed and removed her upper clothing. He kissed and fondled her breasts. This was the subject of a s 61L charge taken into account on a Form 1.
The first substantive s 61L count was charged on facts that the offender forced the victim's hand onto his penis whilst she was on the bed and rubbed it against her exposed chest. When the complainant tried to get up the offender pushed her back and again kissed and licked her upper body. This gave rise to the second substantive count under s 61L.
After allowing a 10% discount for pleas of guilty the sentencing judge imposed on non-parole period of 9 months with a balance of term of 12 months for the first count (taking into account the Form 1 offence). On the second count a 6 month non-parole period was ordered with a balance of term of 7 months. Commencement dates were fixed to make the non-parole periods fully cumulative. But for the 10% discount the sentences would have been 10 months with a balance of term of 13 months on the first count and 6½ months with a balance of term of 7½ on the second, giving an overall sentence of 1 year 4½ months non-parole period with a balance of term of 13 months.
The offences in Aktar v R were aggravated by being committed in the complainant's home. The offender had been asked to leave and he was repeatedly asked to stop during what became a protracted course of indecently and forcibly assaulting the complainant. Leave to appeal against severity of the sentences was refused.
In Sharma v R [2010] NSWCCA 338 the offender was a bus driver. He picked up the complainant, who suffered moderate intellectual disability, as a passenger. After all other passengers had alighted along his route, the offender drove the complainant to a park, locked the doors of the bus and indecently assaulted her. One count was laid under s 61L and another also under that section was included on a Form 1. The particulars were that the offender put his hand under the complainant's clothing and touched her breasts, masturbated in front of her, repeatedly put his hands inside her pants and touched her vagina, pulled her pants down and put his face against her vagina and kissed her there. All of this was done against the complainant's protests and physical resistance.
After allowing a 15% discount for a late plea a non-parole period of 2 years was imposed with a balance of term of 1 year and nearly 5 months. But for the discount the non-parole period would have been 2 years and 4 months and the balance of term would have been about 1 year and 8 months. The sentence was not disturbed on a severity appeal. The offender was otherwise of good character.
I have considered Jalloh v R [2009] NSWCCA 295 wherein concurrent sentences of 12 months non-parole period and 18 months balance of term were imposed for two serious s 61L offences perpetrated against a vulnerable and defenceless complainant who was lapsing in and out of consciousness due to intoxication. The subjective circumstances of the offender were compelling although this was offset by the fact that his offences were committed whilst on bail and were against a highly vulnerable victim. The presence of these additional factors, not present in the applicant's case now before the Court, renders the decision not suitable for comparison for consistency.
Both Aktar v R and Sharma v R concerned very significantly more serious indecent assaults than any of those perpetrated by the applicant. In R v Qin, Salmond v R and Jiang v R the s 61L offences were more serious than those in the present case. The s 61I offences were very much more serious and, of course, charged under a section carrying a higher maximum penalty. The s 61L offence in Jiang v R concerned sucking the complainant's nipples (as in Counts 8 and 12 against the applicant) but it was coupled with two much more serious offences committed at the same time and causing a degree of fright, distress and affront which did not arise from the conduct of the applicant here.

Application of principles to assessment of seriousness

In Einfeld v Regina [2010] NSWCCA 87; (2010) 200 A Crim R 1 Basten JA (with whom Hulme and Latham JJ agreed) said at [146]: "… a course of unlawful conduct may well give rise to a number of possible charges. If the prosecution proceeds on one count only, it does not follow that the surrounding conduct cannot be taken into account in sentencing. The surrounding conduct cannot give rise to a more serious offence, but it can demonstrate the degree of seriousness with which the charged offence should be viewed." See also Lago v R [2015] NSWCCA 296 at [49].
In R v J.R.D. [2007] NSWCCA 55 Howie J explained the significance of taking into account other charged offences as bearing upon the relative seriousness of any individual count, as follows: "[29] … Clearly it may be a fact or circumstance relevant to the commission of a particular offence that, at or about the time when that offence was committed, the offender committed other offences. It would be relevant, for example, to a finding whether the particular offence was an isolated 'fall from grace' or whether it was merely an instance of a course of criminal conduct in which the offender was involved at the relevant time. [30] So in sentencing the respondent for any one offence it was highly relevant that all of the offences and the matters on the Form 1 were committed in a period of about four months and that each offence represented a different aspect of the respondent's overall criminality in that period."
That consideration has some bearing in this case although the multiple counts were all individually opportunistic and reflective of a tendency on the part of the applicant rather than any concerted criminal enterprise or system. A course of offending may also make it appropriate to impose higher penalties for offences later in time, where there appears a persistent repetition of the commission of like offences with a mounting and/or accelerating level of criminality: Regina v Swadling [2004] NSWCCA 421 at [61] - [68]; R v Bavadra [2000] NSWCCA 292 at [37]; Qing An v Regina at [75].
In Mulato v Regina [2006] NSWCCA 282 Spigelman CJ made this statement: "[37] Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour."
Giving full weight to this principle I nevertheless conclude that her Honour erred in refusing to treat the applicant's offences as at the very low end of the range of seriousness for breaches of s 61L. I reach this conclusion having also taken into account the number of offences, the number of complainants, the period of offending and the fact of the applicant having misused his position as a masseur. Making proper allowance for the aggravating factors of repetition and misuse of a position of trust, at the end of the analysis these offences were still a series of minor touchings.

Grounds of appeal

Ground 1 of the appeal for which leave is sought is that the sentencing judge "erred in taking into account the Applicant's uncharged acts as a factor which increased the objective seriousness of the offences". This ground is not made out. Her Honour had regard to all of the alleged particulars of each indecent assault. In the event, she sentenced upon the basis of the touching of the complainants' breasts. In so far as her Honour recited in the Remarks on Sentence other particulars of indecency and may have taken into account those which she found proved beyond reasonable doubt, these cannot properly be characterised as "uncharged acts". They had been alleged by the Crown in the alternative and evidence of them had been led.
Ground 2 is that her Honour erroneously omitted "to take into account the fact that the offences were capable of summary disposition". I consider the circumstance that these charges could all have been dealt with in the Local Court was of no significance to the determination of appropriate sentences in this case. Criminal liability was in issue. It turned upon acceptance or otherwise of the evidence of several female complainants and to some extent upon assessment of the legitimate bounds of massage technique. It was within the discretionary judgment of the Director of Public Prosecutions to elect that these issues be tried by jury.
Ground 3 is that the sentence imposed was "in all the circumstances, manifestly excessive". That is the ground which I find sustained.
Taking into account all of the principles and the objective and subjective factors bearing upon the case, I consider that an appropriate individual penalty for each of Counts 1, 2, 4, 5 and 6 is, in each case, a bond under s 9 Crimes (Sentencing Procedure) Act 1999, to be of good behaviour for 3 years. These offences all occurred over a period of a little more than one year between late 2008 and February 2010.
Count 8 occurred in early 2010 and was more serious in the nature of the physical contact. It warrants a sentence of imprisonment for 1 month. Counts 3, 7 and 9 - 13 occurred later, between early 2010 and early 2012. These seven counts were against six separate complainants. The applicant's persistence in this type of offending through this latter period warrants penalties of 1 month's imprisonment for Count 3 then for each of the remaining offences 2 months full-time custody for each count. The terms for Counts 12 and 13 in my view should properly be served concurrently to reflect that they were offences perpetrated on one occasion against one complainant. Otherwise the short terms of imprisonment for these latter offences should be wholly cumulative, giving rise to a total effective term of 12 months.

Proposed orders

I propose that the orders of the Court should be: 1. Leave to appeal granted. 2. Quash the sentences imposed by Baly DCJ on 9 April 2015. 3. In lieu thereof Garry Baines is sentenced on the counts in the indictment dated 5 November 2015 as follows: 1. In respect of Counts 1, 2, 4, 5 and 6 the offender is to enter into a bond pursuant to s 9 Crimes (Sentencing Procedure) Act 1999 to be of good behaviour for 3 years commencing 9 April 2015. 2. On Count 8 a term of imprisonment of 1 month commencing 9 April 2015 and expiring 8 May 2015. 3. On Count 3 a term of imprisonment of 1 month commencing 9 May 2015 and expiring 8 June 2015. 4. On Count 7 a term of imprisonment of 2 months commencing 9 June 2015 and expiring 8 August 2015. 5. On Count 9 a term of imprisonment of 2 months commencing 9 August 2015 and expiring 8 October 2015. 6. On Count 10 a term of imprisonment of 2 months commencing 9 October 2015 and expiring 8 December 2015. 7. On Count 11 a term of imprisonment of 2 months commencing 9 December 2015 and expiring 8 February 2016. 8. On Count 12 a term of imprisonment of 2 months commencing 9 February 2016 and expiring 8 April 2016. 9. On Count 13 a term of imprisonment of 2 months commencing 9 February 2016 and expiring 8 April 2016. 1. The offender is entitled to be released forthwith.

Endnotes

[2000] NSWCCA 209; 112 A Crim R 466.
(2000) 50 NSWLR 115; [2000] NSWCCA 317.
Doan at [42].
[2010] NSWCCA 177 at [43] and [48].
[2005] NSWCCA 349 at [15].
Bonwick at [48].
See R v Crombie [1999] NSWCCA 297 at [16].
(2013) 252 CLR 381; [2013] HCA 40 at [20].
[2006] NSWCCA 282 at [37].
Offender's submissions on sentence, 5 March 2015, pp 5-6.
Judgment on sentence, p 23.
Judgment on sentence, p 24.
Judgment on sentence, p 25.
Judgment on sentence, pp 19-20.
[2007] NSWCCA 73 (McClellan CJ at CL and RS Hulme J agreeing) at [50].
See also R v Abboud [2005] NSWCCA 251 at [42], [43]; Zreika v R [2012] NSWCCA 44 at [138]-[142]
R v MA [2001] NSWCCA 30; (2001) 8 Crim LN 23 [1270].
RP v R [2013] NSWCCA 192.
Pearce v The Queen [1998] HCA 57; 194 CLR 610

Amendments 04 July 2016 - Before: Fagan J at [58] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 July 2016

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