DPP v Nugara [2025] VCC 1335

(a) her cognitive profile is functionally impaired to a sufficient extent to be eligible for both a Disability Support Pension and an NDIS Support package;

(b) the combined impact of her mental health diagnoses has a moderate impact on her general functioning in activities of daily living; and

(c) her distress arising from the combined impact of her mental health arguably serves to distract from or compromise aspects of her intellectual faculties.

1. At the time of these events, the victim was a participant in the National Disability Insurance Scheme (NDIS) program where her supports were being managed.
2. The victim was treated by Dr Kristin Windsor, clinical psychologist, from November 2022. Dr Windsor says she suffers from Dissociative Amnesia in relation to traumatic and stressful autobiographical information.
3. In February 2022, the victim contacted Melbourne Mobile Physio as a part of her NDIS package to address ongoing neck tension related to her PTSD and you became her physiotherapist. She arranged weekly visits every Wednesday for an hour, which included a remedial massage.
4. The Prosecution case, which you accept, is that at all relevant times you were aware the victim was on an NDIS package and had been diagnosed with severe PTSD and Dissociative Disorder.
5. The victim says that when you worked on the back of her thighs, you would mention how smooth and soft her skin was and that you would always book her appointment into the last slot of the day. On at least two occasions, you phoned her while you were driving home. You offered to walk her dog without payment.
6. You gave your phone number to the victim and shared personal photographs with her. You talked about your personal life and marriage to the victim during appointments and in text messages.
7. You arranged an appointment with her on Friday, 16 September 2022, which had been changed from the previous Wednesday. She messaged you that morning and asked for 'some silence' during the treatment, as she did not want to have conversations about your personal life. You agreed.
8. Towards the end of the appointment on 16 September 2022, you asked the victim if she would go out with you. She was taken aback by the request and let you know she needed to take her medication and had to be in bed early. You left but afterwards, you and the victim exchanged text messages about going out together. You called her to confirm arrangements. She ultimately agreed to go but she was anxious about it, as she normally did not attend social events in the evening. She suggested a local establishment.
9. At about 6.30 pm, you drove to the victim's house and then to a local café. the venue suggested by the victim.
10. You drank five glasses of wine, and she had three 'Bonnie and Clyde' drinks. She thought these drinks were not alcoholic but later searched the internet and discovered that they have vodka in them. It was the barman who suggested the Bonnie and Clyde drinks.
11. After the drinks, the victim noticed that her brain began to feel 'fluffy' and she was affected by the alcohol.
12. You and the victim left the bar when it was closing between 10.30 and 11:00 pm. You drove her home, a short drive from the bar. You told her that you were too drunk to drive home and asked to come inside to sober up. She let you come inside, and she gave you water and tea.

1. Inside the victim's home, you made sexual advances towards her.
2. The victim sat beside you on the couch. She had a cup of tea. You then turned towards her and began putting your hands on her. She did not initiate this contact.
3. You pushed up her top and you were 'all over' her. You took off her pants and underpants.
4. She was naked from the waist down and felt out of control and powerless.
5. She recalls you committed five further sexual acts which had a 'triggering' effect upon her, because of past trauma. Due to her Dissociative Disorder and the traumatic nature of the events, she is unable to recall the exact order of events.
6. The prosecution opening describes the conduct on which the charge is based in these terms.
7. You picked up the victim in the air whilst penetrating her vagina with your penis.
8. You bent the victim over the arm of the couch with her back facing you and her stomach over the couch arm, where you sexually penetrated her vagina again with your penis.
9. You again penetrated the victim's vagina whilst she was lying flat on her back in the middle of the couch. You were on top her.
10. You orally penetrated the victim's mouth with your penis while holding her head.
11. You performed oral sex by putting your mouth on her vagina.
12. You did not use a condom.
13. She cannot remember how the incident ended. She remembers being in her bedroom with you, and she told you that she did not feel safe, and she felt scared and vulnerable.
14. You tried to console her but told her she could only call you during business hours which was different to what you had said to her before the incident, which was that she could ring you at any time of the day or night.
15. At approximately 2.20 am, you left her address and went home.
16. You and the victim remained in contact via phone calls and messages until 12 October 2022.
17. On 19 September 2022, you contacted a flower delivery company and sent the victim a floral arrangement with a card inside. The card stated:

I'm sorry you feel this way. I have been struggling too. Hopefully we can talk together again. I don't want to lose you ♥

1. On 20 September 2022, the victim received the flowers and the message and took a photograph using her mobile phone. At about 9.07 am on that day you called her. She told you that her mental health had been deteriorating.
2. On 21 September 2022 at 10.55 am, she contacted you on your mobile phone and you spoke to her for around two minutes. She has little recollection of those events.
3. At approximately 4.00 pm, you went to her place for a physiotherapy appointment, even though she had previously cancelled the appointment.
4. You let yourself into the address and you found her in the bathroom in a

semi-conscious state. She had overdosed on prescription medication. You spent three hours with her and then you called Triple 0 at around 7.00 pm. You requested police attendance. 5. When police arrived, you lied in the details of what you told them. You said you had attended for a physiotherapy appointment. You said that you had found the victim naked and semi-conscious in the bathroom. Then you said that the victim had 'feelings' towards you as her therapist, but you had informed her that you could not progress the relationship due to your position, and she broke down. That last statement was obviously not true. 6. You told the police the victim was suicidal. She was apprehended under s351 of the _Mental Health Ac_t and was taken to The Alfred hospital for a psychiatric assessment. 7. Whilst being evaluated by a clinical psychologist at The Alfred hospital, the victim said she was having 'interpersonal issues' with her physiotherapist. 8. She was discharged from hospital later that evening with follow-up to be completed by Alfred Mental Health Triage. Call charge records show the victim called you multiple times after being discharged, and that those calls were diverted to voicemail. You contacted the victim's number several times the following morning. 9. On 22 September 2022 at 08:15 am, the victim contacted the Alfred Triage team and spoke to a registered psychiatric nurse, Penelope Lee. She made a disclosure to Ms Lee about the incident. Ms Lee took notes of the disclosure and made a referral to the Southeastern Centre Against Sexual Assault (SECASA). 10. After speaking with Alfred Health, the victim made further phone calls to you and left voice messages. You became concerned about her welfare, so you contacted your manager, Adrian Pillay, and told him what had occurred. He then contacted Triple 0 and requested that police conduct a welfare check on the victim. 11. At 11.16 am, police attended at the victim's address and spoke to her. She told them about the incident with you on 16 September 2022. 12. On 19 October 2023, she made a VARE. 13. She also provided a screenshot of flowers that you had sent to her after the alleged incident, and video clips from her 'Ring' doorbell showing you arriving and leaving on 16-17 September 2022. 14. On 5 October 2022, police made a mandatory notification to the Australian Health Practitioner Registration Association & National Boards (AHPRA) in relation to the incident. This notification initiated an AHPRA investigation which led to the suspension of your registration as a physiotherapist. 15. On 3 January 2023, you responded to the 'APHRA Notice of Proposed Immediate Action' with a written document titled 'Submissions in Response to Notice of Proposed Immediate Action'. 16. You said that you commenced treating the victim on 23 February 2022. You said, 'the patient was NDIS funded; however, the NDIS treatment plan was not provided so I had very limited knowledge of pre-existing health issues. The patient disclosed to me she had historical mental health issues, and that she did not want to share the details with me'. 17. Regarding the offences, you said that at the conclusion of the physiotherapy session, you invited the victim for a drink after work which she initially declined. You said that you had consensual sex with the victim after attending a local bar. 18. On 17 October 2023, you were interviewed by police and exercised your legal right not to answer any questions.

1. The victim made a lengthy Victim Impact Statement describing her trauma from the offending.
2. She says she was discharged from an Adult Community Mental Health Team at a hospital in 2021 and, within months of being discharged, you became a healthcare provider for her under her NDIS plan.
3. She says the therapeutic progress she had made was destroyed. She describes the offending as a boundary violation and a gross abuse of power which left her feeling confused, ashamed and silenced. She became suicidal. She says she now lives in constant fear. She no longer regards healthcare professionals as safe.
4. She says the crime has destabilised every part of her life and she needs more support than ever, but she is too terrified to access support.
5. She says her mental health has continued to deteriorate. She no longer feels safe.
6. She says the crime has ruptured her relationships and damaged her ability to be the mother she needs to be. She says her energy is depleted by anxiety, hypervigilance and emotional exhaustion.
7. She says the worst aspect of the offending for her was that it happened in her own home which was the only place she had felt truly safe. She has since suffered panic attacks when people come to the house.
8. She describes multiple suicide attempts following on from your offending.
9. She says she is not the same person that she was, and the effects of the crime are not temporary. She says that every day she lives with the consequences, the fear, the grief, the shame and the powerlessness of having been violated by someone she trusted.
10. The impact on the victim is an important matter to consider in deciding the sentence in this matter. It informs the need for just punishment. Of course, it must not be allowed to swamp all other sentencing considerations.

1. The offence of sexual penetration by a treatment provider of a person with a mental illness is a serious offence, as reflected in the maximum penalty of 10 years' imprisonment.
2. The offence criminalises the crossing of a professional boundary by a health practitioner with a mentally unwell person. The offence exists to protect vulnerable people with mental illnesses from exploitation by treating practitioners. Such conduct carries the risk of substantial and enduring adverse effects on the person with a mental illness, which is exactly what has happened in this case.
3. Trust and a responsibility to behave ethically is placed on the professional who is treating the mentally unwell person. You breached that trust and that responsibility. In my opinion, you crossed that boundary in a quite deliberate way by complimenting the victim on her skin, contacting her for non-professional reasons, discussing your personal life with her, arranging for her to have the last appointment on a Friday, asking her out even though she was reluctant, drinking alcohol with her, asking to come inside her residence and then initiating the sexual activity with a person you knew to be vulnerable. You drove these events. You exploited the power imbalance between you and the victim. You did all these things in circumstances where you knew the victim was on an NDIS package for PTSD and dissociative disorder, a matter conceded by your counsel.
4. It is true that you are not a mental health practitioner, and I accept that you have had no training and no experience with mental health issues; and, therefore, you did not understand her vulnerability in the same way that a mental health professional would. I accept that in the same circumstances, a mental health professional would have higher culpability, and the offending would be more serious. But that is not to say that your moral culpability is anything other than significant in the circumstances of these offences. You breached her trust, and you did so in her own home. You were only allowed into her home because you were her treatment provider.
5. The charge is a rolled-up charge involving five separate acts of penetration; all other things being equal, a rolled-up charge is considered more serious than if the charge related to a single act of penetration. That said, the charge is governed by one penalty, but I must take into account the overall criminality of what is set out as the basis of the charge.
6. The circumstances described in the Crown opening are serious, with the victim immediately feeling unsafe and vulnerable, based on her previous trauma.
7. To give effect to these underlying purposes of the offence in this case, general deterrence must be emphasised.

1. You are now 35 years old. You live with your wife, Samantha, and your

three-year-old son. You are of Sri Lankan background, but you were born in Australia. You were raised in Clayton and then Keysborough. 2. You parents' relationship was difficult, and they separated when you were around the age of 17. You have a positive relationship with your mother and your brother, but you do not speak to your father. 3. You completed Year 12 at Salesian College in Chadstone and then enrolled in a Bachelor of Arts at the Australian Catholic University. You later transferred to a Bachelor of Health Science followed by a Masters of Physiotherapy at La Trobe University. 4. You have been employed as a physiotherapist since 2017. Your licence to practise physiotherapy was suspended because of these offences. You will have to navigate further proceedings with AHPRA once the criminal proceedings have been concluded. 5. You met your wife Samantha in 2012, and you have been together with her for

14 years. She remains supportive of you, notwithstanding your conduct in this offending. 6. I have been told, and I accept, that prior to the offending your marriage was under strain. A psychological report from Dr Mathew Barth was tendered. In that report he describes the difficult circumstances of your marriage at the time of the offending, including increasing alienation from your wife, which led to a drop in your self-esteem. He says your contact with the victim provided you with a positive interaction which boosted your self-esteem. He says in that context, you were unable (or unwilling) to enforce appropriate personal and sexual boundaries with the victim. 7. You were investigated by AHPRA after the initial complaint was made to police and in that investigation, you provided an account of your conduct, some of which I have quoted from, and you disclosed all email and text message communications between you and the victim. 8. In your account to AHPRA, you acknowledge the relationship with the victim was inappropriate, unprofessional and unethical. You acknowledge you exploited a power imbalance in the patient-practitioner relationship, and you said you understood the boundary exists to protect the vulnerable patient, and that regardless of consent to sexual activity, your conduct constituted professional misconduct. You expressed regret and shame. You said your behaviour was totally inappropriate. You agreed that consuming alcohol with a patient was unprofessional and unsafe. You described your own behaviour was abhorrent. I am satisfied, based on this material, that you have expressed genuine remorse for your conduct. 9. Your wife, in her letter to AHPRA, says that you disclosed to her your infidelity at an early stage. 10. Based on the recommendations of AHPRA, you participated in 40 hours of education in relation to ethical obligations and you have received a two-year banning order from working for the NDIS. 11. You have also engaged in cognitive behavioural therapy with Dr Grant Walker over 19 sessions between 19 October 2022 and 17 June 2024. Dr Walker retired, and you then obtained a referral to Melbourne Private Psychology in September 2024. Since then, you have attended 11 appointments with another psychologist, Mr Kyle Miller. 12. The psychological report from Dr Barth was exhibited[2] as was a letter from Dr Walker.[3] 13. Your counsel, Ms Beech, submitted that the psychological material is relevant to the need for specific deterrence and just punishment, also protection of the community, and the likely burden of imprisonment and impact on your mental health. 14. Dr Barth said you presented with elevated depressive and anxiety symptoms. He noted a sense of hopelessness in you about your future and shame at facing a criminal matter. He describes you as psychologically vulnerable and says you have experienced suicidal ideation. He describes you as having an adjustment disorder with mixed anxiety and depressed mood. He says continued psychological treatment is warranted. 15. It was submitted, and I accept, that limbs 5 and 6 of Verdins[4] have application in this case. Dr Barth says your emotional reaction to your legal matter has been intense, and that the severity of your emotional distress, your interpersonal dysfunction and naivety, will make you a comparatively vulnerable prisoner. He says you are likely to experience prison as particularly onerous compared to other prisoners. I accept that a period of imprisonment is likely to lead to further mental health issues. 16. Additionally, a mental health screening assessment was provided with the CCO assessment report which described you as presenting with severe psychological stress due to your contact with the criminal justice system and the 'taboo nature' of these charges. That screening assessment described you as having a mild mental health problem 17. Dr Barth says your overall risk of sexual recidivism falls into the low-moderate category and will fall lower still with continued sex-offender specific treatment. Based on all of this material it is submitted that a rehabilitative disposition can best protect the community in the long term. 18. Dr Barth says your insight into the offending remains limited and this is consistent with the impression of the author of the community correction order assessment which I called for. Dr Barth says this is not surprising as true insight into offending behaviour typically requires a lengthy therapeutic process. He recommends

sex-offender treatment, psychological treatment and couples counselling. 19. You have no prior convictions. You are a first-time offender. Character references were tendered from you mother, Deisree Daniels; your wife, Samantha; her sister and husband, Stephanie and Ryan D'Silva; your brother, Shaun Daniels and his fiancé, Brianna May; and friends Don Bui and Brett Coelho which establish that you are a loved, respected and supportive friend, family member, husband and father and that you have been a positive contributing member of the community. You clearly have significant support. Your counsel, Ms Beech, submitted that your good character is an important and compelling aspect of this case. I accept good character is an important matter in mitigation. 20. Since the offending you have completed numerous courses with the Australian Physiotherapy Association and Relationships Australia, regarding maintaining professional boundaries; and various courses on ethics. Multiple certificates were tendered. Your current situation is that you are not working as a physiotherapist, and you are employed as a night shift worker at Woolworths.

1. It has been nearly three years since the commission of these offences. There was an immediate complaint to police, but you were not interviewed for more than a year after the offending, and you were not charged for a further eight months after that. The delay cannot be attributed to anything you did.
2. You have had these serious charges hanging over your head since the initial complaint was made. For all that time you have lived with a reasonable anticipation that you would receive a period of imprisonment for these offences and that has had a psychological toll on you.
3. Furthermore, the period that has passed since the commission of the offences allows me to assess your rehabilitation over an extended period. You have done many things to support your rehabilitation, and you have not committed any further offences.
4. Delay is a significant mitigating matter in this case.

1. Although your insight has been described as limited, there are a number of positive factors in your favour: the references, the absence of prior convictions, the shame you feel about the offending, the impact on your mental health, the delay, the extra curial punishment and the risk assessment of Dr Barth. I consider you are unlikely to offend in this way again and I would describe your prospects of rehabilitation as very good to excellent.

1. Various comparative cases were discussed at the Plea Hearing. In my opinion, none of them were similar enough to be any real use as comparative cases. Those cases involved in my judgement more significant examples of this offence, but the sentences imposed were substantial.

1. An additional mitigating factor is that you have suffered from serious eczema for most of your life. A letter from your dermatologist, Dr Hasan Khwaja, was tendered.[5] He says you have a history of chronic medical conditions including severe atopic eczema. You have suffered from that condition since childhood. The condition has worsened over the last three years. You have been hospitalised because of it. You are treated with oral prednisolone and cyclosporin.
2. You also suffer from hypothyroidism and alopecia areata. Dr Khwaja also refers to you suffering from a generalised anxiety disorder.
3. Ms Beech submitted that you feel an added vulnerability because of the condition, and of course you are a first-time offender, and any period of imprisonment would be your first.
4. I am satisfied that any period of immediate imprisonment will weigh heavily on you.

1. Ms Beech submitted that specific deterrence and just punishment should be given less weight because you have experienced significant shame and stress, and you have temporarily lost the vocation for which you are qualified. Therefore, you have been punished, and specific deterrence has been achieved. Having regard to these matters and my positive view of your prospects of rehabilitation, I accept that the importance of specific deterrence is significantly reduced for these reasons.
2. On the other hand, this was a sexual offence against a vulnerable person and the impact on the victim has been very substantial. These are both factors which underpin the need for just punishment.
3. As I said earlier, general deterrence in circumstances such as these is very important. Those providing health services to vulnerable people must be made aware that significant punishment will be the result if they cross the boundary that you crossed when you committed these offences inside the victim's home.
4. Ms Beech submitted that a community correction order alone is appropriate in this case. She referred to the decision of Boulton[6] in the Court of Appeal. She referred to the passage of that decision where the Court of Appeal says a sentencing judge must ask the question whether there is any aspect of the offence or the offender which requires a period of immediate imprisonment with all its disadvantages. Ms Beech's submission is that the answer to that question is no.
5. Ms Thomas, on behalf of the prosecution, emphasised the serious aspects of this offence, particularly that you crossed the boundary in a very serious way and quite deliberately exploited the power balance between you and the victim.
6. She submitted that a combined sentence of immediate imprisonment with a community correction order is within the range of appropriate sentences for this offending but that a proper application of general deterrence and just punishment requires an immediate period of imprisonment.
7. I ordered a community correction order assessment. You are considered suitable for a correction order. The author of the report says that you exhibited 'several problematic behavioural patterns throughout the assessment'. You engaged in minimisation and justification of the offending. You referred to the 'slippery slope' of changes in your 'relationship with the victim'. The author of the report concluded you exhibited a lack of ownership of the offending.
8. However, you did present as motivated to make improvements and expressed a desire and a willingness to engage in treatment programs.
9. You are considered suitable for unpaid community work, supervision, mental health treatment, and offending-behaviour programs.

1. I have given this matter considerable thought and, in the end, I have decided, having regard to the serious aspects of the offending, general deterrence and just punishment require a period of immediate imprisonment coupled with a correction order, as submitted by the prosecution.
2. On the charge of sexually penetrating a person with a mental illness, being a treatment provider, I sentence you to six months' imprisonment and a community correction order for a period of 12 months with the following special conditions:
   1. Supervision
   2. Assessment and treatment for mental health
   3. Offending behaviour programmes as directed
3. I considered further community work but I have decided that the punitive component of my sentence is satisfied by the period of imprisonment I have decided to impose, and the additional conditions of the community correction order also operate in a punitive way to an extent.
4. There is no pre-sentence detention in this matter.
5. I indicate that but for your plea of guilty, I would have imposed a sentence of two years with a minimum of one year.
6. Just sit down. Do you understand, Mr Nugara, you have to consent to a community correction order? You understand that? Do you consent to a community correction order? All community correction order have core conditions.
   1. The most central of those is that you must not commit another offence for which you could be imprisoned during the period of the order.
   2. You must comply with any obligations or requirements under the Sentencing Regulations.
   3. You must report to and receive visits from Corrections.
   4. You must report to Community Corrections within two clear working days of this order commencing. This order commences at the expiration of the period of imprisonment.
   5. If you change your address or your job, you have to let the Community Corrections officer know of that change.
   6. You are not allowed to leave Victoria without obtaining permission from Corrections.
   7. You must obey all of their lawful instructions and directions.
7. Additionally, I have made the conditions in this matter that you are to:
   1. Be under the supervision of Corrections for 12 months.
   2. You are to participate in offending behaviour programs as directed by Corrections.
   3. You are to undergo any mental health assessment and treatment as directed, and that can include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed. That is a matter for Corrections.
8. So those are the conditions. If you breach any of those conditions then you can be charged with contravening the order, which is a separate charge. You can be brought back before me. One of the options that I then have is to resentence you for those matters, taking into account of course the period of imprisonment you will have served by that time.
9. Are there any queries about those orders?
10. MS BEECH: No, Your Honour.
11. HIS HONOUR: All right. We will provide you with the document which he needs to sign.
12. Do you want me to indicate any custody management issues here? I think what I will do is indicate that Mr Nugara suffers from various health conditions for which he receives medication and that he needs to see a doctor for an assessment on reception into the prison. I can further specify the nature of those conditions but if I do that, then I think that would cover it.
13. MS BEECH: Yes, I think that's right, Your Honour. There was a letter from my client's general practitioner that was provided. I wonder if that could go - - -
14. HIS HONOUR: Yes, that can go to - Dr Khwaja. That can go to Corrections.
15. MS BEECH: Thank you.
16. HIS HONOUR: I'll make sure that's provided.
17. MS BEECH: I think that should cover it because that has a list of all the medications.
18. HIS HONOUR: So I will note his health issues and I will attach the letter from Dr Khwaja.
19. MS BEECH: Thank you, Your Honour.
20. HIS HONOUR: And they can deal with that, all right.
21. MS BEECH: Thank you, Your Honour.
22. HIS HONOUR: All right, now we need him to sign the order. Ms Shivakumar, no queries about that?
23. MS SHIVAKUMAR: No, Your Honour.
24. HIS HONOUR: All right. Perhaps if Ms Beech goes through the document with Mr Nugara.
25. MS BEECH: Is that alright, Your Honour, thank you.
26. HIS HONOUR: Yes, yes.
27. MS BEECH: Thank you, Your Honour.
28. HIS HONOUR: Mr Nugara can go into custody, thank you.

[4] The Queen v Verdins [2007] VSCA 102; (2007) 16 VR 269

[6] Boulton v The Queen [2014] VSCA 342