Director of Public Prosecutions v Joseph [2001] VSCA 151

15. After hearing a plea in mitigation of penalty, the sentencing judge imposed sentences as follows:

Count 1 - Two years' imprisonment. Count 2 - One year's imprisonment. Count 3 - One year's imprisonment Count 4 - Three years' imprisonment. Count 5 - One years' imprisonment. Count 6 - One years' imprisonment. Count 7 - Two years' imprisonment. Count 8 - Two years' imprisonment. Count 9 - Two years' imprisonment. Count 10 - One year's imprisonment. Count 11 - Two years' imprisonment.

His Honour directed that the sentences were to be served concurrently. This resulted in the imposition of an effective term of imprisonment of three years, the service of the whole of which was suspended for a period of three years.

20. The Director of Public Prosecutions has appealed to this Court against the effective sentence, pursuant to the provisions of s.567A of the Crimes Act 1958, on two grounds, namely:

"1. Whilst the sentence imposed in respect of each count of indecent assault was within the permissible range, the sentencing judge erred in failing to order a degree of cumulation between any of the counts and the resulting concurrency of the sentences - (a) failed to adequately reflect that the offending conduct was committed over a lengthy period; (b) failed to adequately reflect that the offending conduct was committed upon 11 separate occasions; (c) failed to adequately reflect the offending conduct was committed upon 8 complainants; and (d) failed to adequately reflect that the offending conduct was discrete in nature in respect of each count and that the offending conduct did not form part of a single or continuous criminal episode or transaction. 2. In fixing various terms of imprisonment in respect of each count of indecent assault and ordering the suspension of the whole of the total effective sentence for a period of 3 years, the sentencing judge: (a) failed to adequately reflect the gravity of each of the offences generally and the offending conduct in its totality; (b) failed to adequately reflect the aggravating features of the offending conduct, in particular - (i) the gross breach of trust; (ii) the nature and period of the offending; (iii) the vulnerability of each of the complainants; (iv) that the offending persisted after complaints were made; (v) that the offending persisted after undertakings were given in respect of future dealings with female patients; (vi) that the offending persisted after the commencement of treatment and counselling; and (vii) that the offending extended to including a complainant acting as an appointed chaperone; (c) failed to take into account or sufficiently to take into account the aspects of general and specific deterrence; and (d) gave too much weight to factors going to mitigation."

24. The respondent was born in Iraq on 21 May 1968. He grew up in Kirkuk, a city in the north of the country where his father worked as a truck driver. The family were Assyrian Christians and belonged to a minority group in a Muslim country. The applicant excelled academically and gained entrance to medical school in 1985 at the age of 17 years. His final year of this course was disrupted by the outbreak of the Gulf War, during which academic teaching was suspended, and he returned to his home in Kirkuk. The sentencing judge accepted that he was subject to many horrifying experiences during the war and the subsequent period of fighting between Kurdish rebels that invaded the city and the Government forces which eventually drove them out. These groups exacted terrible vengeance against the followers of their opponents and the whole population was at considerable risk of death.

27. When stability was restored, the respondent resumed his studies and upon completion worked as a medical officer for two years. A directive was then issued under which civilian doctors were required to mutilate the ears of army deserters. The respondent believed that he would be killed by the regime if he did not comply with this directive or possibly murdered by the families of the victims if he did. In consequence he fled with his wife and illegally entered Turkey where they lived in jeopardy until they were granted refugee status 14 months later. They migrated to Australia, arriving in February 1996. Shortly after his arrival in this country, the respondent commenced studies in order to secure the necessary registration to practise as a medical practitioner. This involved a written examination set by the Australian Medical Council which he passed in October 1996. Shortly afterwards he secured employment at the Latrobe Valley Hospital commencing in March 1997. He also obtained work at clinics located in that general area at Rosedale and Hazelwood.

30. His offending started approximately two weeks after the commencement of his employment at the hospital

34. According to the summary of evidence provided to us for the purpose of this appeal, count 1 on the presentment was a count representative of five like assaults. On 3 April 1997, the patient attended at the emergency department of the Latrobe Regional Hospital with an acute asthma attack. When the complainant indicated chest pain, the respondent touched the centre of her chest before moving his hand to the right and placing it on her breast. He patted the patient's legs a couple of times and then, closing the curtains, placed his stethoscope over her right breast, knocking her nipple on the way past. Later on the same morning, the respondent again examined the complainant and this time, not using a stethoscope, simply placed his right hand on her right breast whilst using his left hand to feel her stomach. He then moved his left hand lower down her stomach to the top of her vagina which he then stroked. Picking up the complainant's hand, he pulled it through the side bars of the bed and "rubbed it on his front region, his groin". At this point the complainant challenged him whereupon he released both hands, pinched the side of her cheek and left.

37. Count 2 was an assault on 18 May 1998. This time the victim was a student nurse who was accompanying the respondent in order to examine a patient's ear. She asked if she could have a look at the ear and as she leaned forward to do so the respondent placed his hand on her bottom and left it there until she broke contact by moving away.

40. Count 3 involved a young woman in her twenties, a mother of two, who had been attending the Hazelwood Health Centre for some years. On 9 September 1998, she saw the respondent, when attending with her five year old son who was asked to wait outside. She was seeing the doctor because she suffered from anxiety attacks after being raped in New South Wales some years earlier. The respondent started talking to her about this history, asking about whether she had a boyfriend, whether she was sexually active and so on. Throughout this conversation, the respondent was rubbing her leg: "He rubbed my upper thigh ... inside and out, on top and around the inside of the inner thigh ...", according to the complainant. This made her feel uncomfortable. She became so nervous that she made an excuse and left the consultation room. It seems reasonable to infer that this conduct on the part of the respondent would have been extremely distressing for the complainant and might well have aggravated her underlying state of anxiety.

43. Count 4 involved another patient who had a home visit from the respondent on 31 October 1998. She was suffering from tonsillitis and after examining her the respondent commenced to massage her neck and shoulders. Although the complainant said that she did not like this, the respondent continued massaging her down her back, moving her underpants out of the way as he massaged her buttocks, whilst moaning and groaning. He then attempted to reach between her legs on to her vagina but at this point the complainant pulled up her tracksuit pants.

46. Count 5 is representative of two assaults. On 3 December 1998, a patient attended the Hazelwood Health Centre after suffering glandular fever and for the purpose of receiving the results of a blood test. Unable to see her regular doctor, she saw the respondent. He said that he wanted to perform a neurological examination and "pin pricked" her body as she lay on the examination table. She was then instructed to roll on to her back and keep her eyes closed. The respondent tested the strength in her arms while her skirt was up around her waist and the sheet was down around her ankles. He then tested the strength in her legs, but used his right hand to raise the legs while his left hand rested on her groin, with his fingers curled down between her legs. She began to tremble with concern about this behaviour and, as she was trembling, the respondent commenced stroking the inside of her thighs, travelling to the top of her thighs and into the crease of her groin.

49. The next complainant was the subject of counts 6, 7 and 10. On 4 December 1998 she attended the Rosedale Clinic, presenting with possible asthma. She was asked to remove her shirt and, while examining her with a stethoscope, the respondent fondled her left breast. (This was count 6).

52. On 11 December 1998, the same complainant again visited the Rosedale Clinic as she was experiencing pains in her lower back and hip area. This time, as she lay on the examination table, the respondent placed her right leg over his shoulder as he examined her and touched her vagina with his fingers. She told him that he was hurting her, and so he ceased, went and got a glove and returned to the examination bed, placing her right leg over his shoulder before again touching her vagina with his fingers. This gave rise to count 7, representative of the two assaults.

55. On 29 December 1998 (count 10) the same complainant returned to the Rosedale Clinic, presenting with the possibility that she might be pregnant. Again she was told to lie on the examination table while the respondent felt her stomach. At the same time the respondent pressed his groin hard up against her legs in such a way that she could feel his erection. He asked her to remove her pants and she refused, whereupon the respondent turned away and ejaculated into some tissues.

58. Counts 8 and 9 involved another patient who attended at the Hazelwood Health Centre. On 15 December 1998 she attended to get the results of some x-rays. She was told that the x-rays were normal, but she complained to the respondent of some soreness down her right side. When she was on the examination table, the respondent started massaging her neck and left shoulder. Her t-shirt was removed and he probed with his fingers around her hip. He then slid his hand down her underpants, firmly pressing with his fingers in a circular motion until his fingers were on her clitoris and moving in a circular motion. The complainant told the respondent she had no pain at all in that area, but she had to repeat this before he removed his hand and went to his desk (count 8).

61. Count 9 was representative of three assaults on 21 December 1998 when the complainant returned to have a smear test done. The respondent put on gloves and started pressing on her vagina, asking if it hurt. He then started pressing on the lower edge of the entrance to her vagina and touched her anus. He then stood behind her and asked her to move her right leg. At this point the complainant "froze", noticing that the respondent's breathing had become heavier and faster. She then heard the sound of a zipper being undone as the respondent moved away and pulled the curtain around the examination table. Hearing what sounded like tissues being pulled out of a box, she thought that the respondent was masturbating.

64. Count 11 arose out of conduct on 30 August 1999 and was representative of five assaults. The victim this time was an 18 year old girl employed by the Hazelwood Health Centre to act as a chaperone to the respondent after complaints of sexual assault had been levelled against him. She started employment on 23 August and was informed by the principal doctor that the Medical Practitioners Board had ordered the respondent have a chaperone. Her duties were merely to be present while the respondent saw female patients. On 30 August, the respondent asked her to make up some paper games to help pass the time between patients. They commenced to play these games, sitting next to the examination table. The respondent then started to caress and rub her leg proceeding up her leg from ankle to the inner thigh. She indicated some discomfort, but they were interrupted by the next patient arriving. When again there was a gap between patients, the respondent started rubbing her thigh and when she tried to move his hand away he grabbed her hand and pushed it on to his groin. She then feigned a coughing fit and went to get water. When she returned the respondent approached her from behind and placed his hands over her breasts and started massaging them, kissing her neck. Again this was interrupted when a patient arrived. At the end of the patient consultation, the respondent sat next to her, pointing at her breasts and touching them. He also took hold of her leg and started rubbing it, up to the inner thigh. Later that night the complainant spoke of what happened to her mother and to others and declined to work any longer at the Hazelwood Health Centre. On 1 September, the complainant's mother spoke with the respondent who admitted that she had done nothing wrong and said that he was attracted to her.

67. Thus the indecent assaults occurred in April 1997, May 1998, September, October and December 1998 and August 1999. They represent gross breaches of trust and, in the main, plainly warranted significant punishment by a term of imprisonment.

71. Although a number of complaints have been advanced in the grounds of appeal, essentially they constitute particulars of a contention that the effective sentence imposed upon the respondent was manifestly inadequate in the circumstances. More specifically, it has been asserted that, although the individual sentences were within the permissible range, neither the total term imposed nor the suspension of service of the whole of it reflected the seriousness of the conduct in which the respondent engaged or attributed appropriate significance to the principle of deterrence, accepting that full weight should be attributed to the factors militating in favour of mitigation.

74. None of the grounds, save 2(c), asserts that the sentencing judge failed to have any regard at all to a relevant sentencing principle or circumstance, and all address the weight which it is claimed was given to the separate matters mentioned. With respect to ground 2(c), Mr McArdle, who appeared on behalf of the Director, indicated in discussion that his argument was again directed to the weight attributed to general and specific deterrence as sentencing considerations in the circumstances.

77. It is, I think, necessary to refer only very briefly to the principles upon which this Court must operate when considering a Crown appeal against sentence as they are well established. As Winneke, P. stated[1]:

"The Court does not interfere with a sentence merely because it thinks that it is less than it would itself have imposed; rather it only intervenes when material error in reasoning is discovered, or such inadequacy is indicative of error or departure from principle: R. v. Dodd [2]" "The sentencing discretion of judges is not to be unduly circumscribed through the intervention of appellate courts and it must be borne in mind that Crown appeals are regarded as constituting a departure from traditional standards in the administration of criminal justice."

81. In the present matter, the conduct in which the respondent engaged involved the commission of a number of discrete offences committed against eight victims and over a period of approximately 15 months. With respect to offences committed against the victims who were patients, it hardly needs to be emphasised that medical practitioners are, by reason of their profession, regularly required to discuss matters of a deeply personal nature with their patients and to conduct intimate physical examinations of them. Abuse of the trust reposed in them when engaged in these activities by the commission of the kind of offences involved in the present case must be regarded very seriously. The offences committed against the other two victims, a trainee nurse and an unqualified young person who had been engaged as a chaperone, also involved the abuse of his position. The principle of general deterrence will generally assume considerable importance as a sentencing consideration in such cases.

84. The individual sentences and his Honour's remarks indicate that he was mindful of these considerations. It is also evident that he formed the view that some part of the responsibility for the respondent's conduct had to be borne by those responsible for his registration and employment as a medical practitioner without, it was considered, any proper assessment of his fitness to pursue that profession in this community having been made. The judge was clearly disturbed by the evidence on this aspect and attributed considerable significance to the related evidence given with respect to the effect upon the respondent of the terrible experiences that he had undergone. The respondent's unfortunate history, mental state, his cultural background and understandings were, of course, relevant to the assessment of appropriate sentences in a number of ways. They bore upon his personal culpability, the significance of general and specific deterrence as sentencing considerations and the respondent's prospects of rehabilitation.

87. Unfortunately the emphasis placed upon these considerations was such that his Honour fell into error in at least two respects. First, although the separate offences varied substantially in seriousness, little attempt appears to have been made by him to discriminate between them. Some of the sentences were, in my view, clearly manifestly excessive whilst others were arguably so. For example reprehensible as the conduct encompassed by Count 4 was, it did not, in the specific circumstances, merit the imposition of a sentence of imprisonment for three years. Nor can the offensive act encompassed by count 2 be seen to have required imprisonment for a year.

90. Second, as earlier mentioned, the appellant has argued before this Court that the proper exercise of sentencing discretion required the judge to make some order for cumulation. The offences, it was pointed out, were committed against a number of victims, on separate occasions, were discrete in nature and the period of offending was lengthy. I am of opinion that there is substantial force in this contention.

93. I should add that the fact that the prosecutor in the court below did not advance submissions concerning the making of an order for cumulation, would not relieve a sentencing judge of the obligation to deal with this aspect nor could the failure of the prosecution to present such submissions be properly regarded as implying an acceptance that no order for cumulation should be made.

96. Accordingly, I am of the opinion that the appeal should be allowed and the respondent re-sentenced for the purpose of correcting these errors. Nevertheless, it must be borne in mind that re-sentencing is proposed in the context of a Crown appeal to which special considerations based upon the notion of double jeopardy apply and must result in a lesser sentence than that which would otherwise be regarded as appropriate.

99. I propose that the sentences imposed in the Court below be set aside and that the following sentences be substituted:

113. Although the notice of appeal raises the question of the adequacy of the total effective period of imprisonment imposed, it became reasonably clear in the course of discussion that the argument of the appellant was directed primarily to the order for suspension of the whole of the period. Thus appellant's counsel did not press the contention that any of the individual sentences was manifestly inadequate; indeed, as will be apparent from the foregoing, I regard the sentences, in some respects, as excessive. Orders for cumulation were none the less required, as I have already said: but again the Crown did not press the contention that a sentence of 3 years' imprisonment, as a total effective sentence, should be regarded as manifestly inadequate in all of the circumstances. I agree.

116. Accordingly, I think it appropriate to make the following orders for cumulation.

Three months of the sentences imposed on counts 1, 4, 7, 9, 10 and 11 be served cumulatively on each other and upon the sentence imposed on count 8. That would create an effective sentence of imprisonment of three years.

120. The much more difficult aspect of this appeal is the order for total suspension. I have said already that the breaches of trust were serious ones and called for significant sentences by way of terms of imprisonment. In my opinion the order that the sentences imposed should be wholly suspended was extremely lenient given not only that there were grave breaches of trust but that the respondent persisted in his misconduct over a period of time and despite warnings. However, there were many matters, some of an extraordinary nature, going in his favour by way of mitigation.

123. In many ways, this was a most unusual case. His experiences during the Gulf War were in themselves horrifying and doubtless the respondent had great difficulty adjusting to the very different social environment he found in Australia. In addition, as the judge observed, he seems to have been thrust into positions of responsibility almost immediately upon being authorised to practice and, at the end of the day, he has lost the right to practise, at least for the time being. For a married man with dependent children, the loss of his right to practise is a severe punishment, but he is no longer in a position where he can offend in this way again. Furthermore, lengthy evidence was given by Dr. Rosemary Schwarz, the respondent's treating psychiatrist, and confirmed by the opinion of Professor Graeme Burrows that the respondent was suffering from post traumatic stress disorder with delayed onset, a condition which both regarded as contributing substantially to his offending behaviour. Professor Burrows' opinion was that, under the intensive therapy the respondent has since received, he now has true understanding and remorse and guilt for what had happened and will be fully rehabilitated. That evidence was all accepted by the sentencing judge. Finally, he was sentenced more than six months ago and it is a serious thing, on a Crown appeal, to send a man to gaol when he has so far been left at large in the community.

126. The question whether the sentences imposed ought to be wholly suspended is something which has occasioned me a good deal of anxious consideration but, on balance, bearing in mind what was said by way in mitigation below and bearing in mind too that this is a Crown appeal, while not losing sight of the seriousness of the offending I have concluded that on balance the order for total suspension should be confirmed. The sentences imposed should be suspended for a period of three years, as ordered below.

[1] D.P.P. v. Whiteside and Deber [2000] VSCA 142; [2000] 1 V.R. 331 at 336.

[2] (1991) 57 A.Crim.R. 349 at 351 per Gleeson, C.J., Lee, C.J. at CL and Hunt, J.