The authorities that guide a District Court Judge in Brisbane to deal with the criminal law offence under s 352(1) of the Criminal Code of Indecent Assault when committed by a masseuse should be used to guide the range of sentencing. Recently the District Court in its criminal law jurisdiction in Brisbane dealt with the criminal offence of indecent assault in the context of a masseuse that had been found guilty of indecent assault by a jury after two trials for rape and indecent assault. At both trials the jury had been unable to make a finding of guilt for the rape, and only on the second trial was the finding of guilt delivered for the sexual indecent assault. The assault occurred when the defendant was massaging her while he was completing a massage inside a massage spa. While it is easy for a masseuse to avoid touching a patient in a sexual way, inadvertent touching can occur. The jury found the defendant guilty. In Brisbane there must be many instances of inadvertent touching that do not constitute a criminal law offence. At the end of a criminal law trial, as happened her in Brisbane, the judge that ran the trial imposes the sentence. It must be a difficult thing for a judge to separate in their mind the things that the defendant was not found guilty of by the jury, and only sentence on the thing/s that they were. A judge is expected to be objective and put the things of their mind that they may have believed themselves.
Comparative Cases for Indecent Assault for Sentencing in Brisbane Criminal Law Registry
The offending for which he was found guilty fell within recognised cases where masseuses have committed similar offences against mature clients.
In the case of R v Owen  QCA 171 in the Court of Appeal Criminal Law jurisdiction, McMurdo P was discussing a case where the offender Owen, a masseuse, had been found not guilty of rape and two additional counts of sexual assault, but convicted of the third. He was initially sentenced to 9 months. On appeal it was suspended after 25 days, being the time he had served in custody. The Court of Appeal, per McMurdo P found that imposing a term of imprisonment was in range. However, in apparently not considering partly or fully suspending the sentence, the primary judge unnecessarily fettered his discretion.
The count on which Owen was convicted involved the offender providing the massage at the complainant’s home. The offending behavior was that he “then put his hands on her hips, puckered his lips and bent over her. She felt his lips brush her pubic hair but he did not touch her skin” . There was no early plea. It was recognized that it was a significant breach of trust. A nine-month sentence was imposed. In that case the complainant was being treated alone in her home by the defendant, placing her in a particularly vulnerable position . The fact that she was an adult woman of worldly experience was relevant, although she had never had a massage before .
In the case of R v Coram  QCA 313 criminal law jurisdiction, Jerrard JA discussed an offender, a naturopath and massage therapist, who had offended against a client who was a professional chiropractor. The two had been discussing joint business together, but this was unrelated to the services provided. She came to his clinic, where he massaged her. He was found not guilty on two counts of indecently assaulting her, during the same incident. The indecent assault he was found guilty of was that he allowed his hands to touch her labia through her legs. The court made no comment about the suitability of the fact that a fine of $2000 had been imposed as the penalty for this count, and this sentence had not been appealed by the Crown. It is submitted that massaging the buttocks and allowing the fingers to pass between the cheeks and touch the outside of the genitalia is more serious than the offending before the Court.
In the case of R v Rawlins (DC 1142 of 2016 Mackay) criminal law jurisdiction, Reid J dealt with an offender that plead guilty to one count of sexual assault against a 42 year old complainant that had engaged him to perform a massage at her own house. The offender was 68 years of age. He’d had a long career working in unrelated fields, before deciding as an older man to train in Chinese massage. He operated in Mackay. The complainant was at her house at night, where the offender brought his massage table for the massage. She was living alone. She was wearing underwear. She was considered to have life experience, but to be vulnerable due to the above circumstances.
During the course of the massage he indicated sexual interest in her. He commented on her body, and how fit she was. He then massaged her breasts and her nipples, for about three seconds each. She felt invaded and froze. She turned over on his request, and he used a vibrating wand to massage her inner thighs, and pushed the wand against her vaginal area, near to her clitoris, through her underpants, softly at first and then pushing hard. At this point she objected saying, “That’s not a massage. What are you doing?”. Following that the offending stopped. A period of 6 months wholly suspended was imposed for an operational period of two years.
In the case of the defendant being sentenced by the Brisbane District Court in its criminal law jurisdiction, a sentence of 9 months was imposed, partly suspended after 3 months. The Crown were attempting to persuade the sentencing Judge that a penalty above Owen should be imposed, however the judge was persuaded not to go beyond Owen.