Jung v R

1. Following complaints to police by several patients, the Applicant was arrested and charged on 13 June 2014 and was granted conditional bail. He remained on bail until 23 February 2016 when he entered custody and the sentence was backdated to this date.

The Grounds of Appeal

1. By Notice of Application for Leave to Appeal filed on 22 September 2016, the Applicant relies upon the following grounds of appeal: 1. Ground 1 - his Honour erred in not finding that the Applicant's mental illness contributed to the commission of the offences and mitigated his moral culpability. 2. Ground 2 - the sentence is manifestly excessive.

The Applicant's Subjective Circumstances

1. The Applicant was 35 years old at the time of the offences and 36 years old at the time of sentence.
2. The Applicant had no prior criminal history.
3. The Applicant was born in Seoul, South Korea. He came to Australia in July 2006.
4. The Applicant married in 2011 and there are two children of the marriage, born in 2012 and 2014.
5. The Applicant undertook studies in physiotherapy in South Korea and was employed as a physiotherapist at the Seoul National University Hospital for a year before coming to Australia in 2006. The Applicant pursued further studies in Australia and graduated with a Bachelor of Physiotherapy from Curtin University in Western Australia in December 2009.
6. The Applicant commenced working at the Ocean Beach Physiotherapy Practice at Umina Beach in December 2009, and he continued working there until his arrest in June 2014.
7. In 2013, the Applicant enrolled in a Masters Degree in Manual Therapy at the University of Western Sydney.
8. Following his arrest in June 2014, the Applicant's registration as a physiotherapist was suspended. The Applicant took a six-month break and then commenced to work as a casual cleaner from December 2014 until January 2016.
9. The Applicant purchased a house in the Gosford area in May 2012 and that property was sold in September 2014.
10. Before he went into custody, the Applicant was living in rented accommodation with his family.
11. The Applicant gave evidence at the sentencing hearing. In addition, a letter of apology from the Applicant dated 15 February 2016 was tendered on sentence, together with a letter from the Applicant's wife also dated 15 February 2016.
12. A report of Ms Jung Sook Kim, psychologist, dated 14 February 2016 was tendered at the sentencing hearing. The Applicant first consulted Ms Kim on 5 February 2016. I will return to aspects of Ms Kim's report when considering the first ground of appeal.

Victim Impact Statements

1. Five patients who were the victims of the Applicant's offending made victim impact statements which were before the sentencing Judge. The victim impact statements made clear the substantial breach of trust by the Applicant concerning each of his victims, who trusted him to provide professional treatment to them, but instead was abused for the purpose of his own sexual gratification.
2. The anxiety created in patients, who are dealt with in this way, is clear from the victim impact statements including, amongst other things, a desire to avoid treatment in the future by male physiotherapists. Apart from matters of this type, a number of the victims required treatment and counselling themselves to deal with the consequences of the Applicant's offending.
3. The victim impact statements provide eloquent support for the consequences of the breach of trust committed by the Applicant on every occasion that he indecently assaulted his female patients.

Some Findings of the Sentencing Judge

1. After outlining the facts of the offences, the sentencing Judge allowed a 25% discount for the Applicant's early plea of guilty to Count 1 on the first indictment (the seventh offence) and a 10% discount for the Applicant's late pleas of guilty with respect to the other counts.
2. In considering the gravity of the offences, the sentencing Judge observed that the Applicant had seriously abused the trust placed in him as a health professional by his patients. His Honour noted the vulnerability of the patients and the fact that the Applicant exploited each of them for the purpose of self-gratification so that personal and general deterrence were to be applied on sentence.
3. His Honour made findings that the offending against each patient constituted "objectively grave behaviour" involving "skin to skin contact", and with the conduct not being in any way related to therapeutic treatment but for the Applicant's own sexual gratification.
4. The sentencing Judge had regard to the victim impact statements which had been made by the patients.
5. With respect to the Applicant's subjective circumstances, his Honour took into account the Applicant's prior good character, while noting that it had significantly less weight on sentence for offences of this type.
6. A finding was made that the Applicant had shown some contrition. His Honour found that the Applicant had reasonable prospects of rehabilitation.
7. The sentencing Judge considered the report of Ms Kim, psychologist, and noted that the Applicant was said to have suffered from depression and anxiety. It was noted that counsel for the Applicant had contended that the Applicant's mental condition had contributed to the commission of the offences in a material way and that his moral culpability ought be reduced. The Crown had submitted that the Court would not be so satisfied on the evidence. The sentencing Judge expressed the following finding (ROS18): "In my view on balance I am not satisfied that the offender's mental problems contributed in a material way to his offending. I am satisfied on balance that the fact that he is now suffering from major depressive disorder at a severe level is a matter that I ought take into account in relation to moderating the sentence in relation to the third dot point in DPP v De La Rosa."
8. The sentencing Judge noted an argument that the Applicant's loss of registration as a physiotherapist, and his inability to be employed in that profession, constituted a form of extra curial punishment. His Honour did not accept that this constituted a significant mitigating factor, although it could be taken into account to an extent on sentence.
9. His Honour turned to issues of totality, accumulation and concurrency before concluding that partial accumulation was necessary in the matter.
10. His Honour made a finding that there were special circumstances based upon the fact that there would be a level of notional partial accumulation in determining the aggregate sentence.

Ground 1 - Suggested Error in Approach to the Applicant's Mental Condition Submissions of Parties

1. Mr Pierce, counsel for the Applicant, submitted that the sentencing Judge had erred in his approach to the psychological evidence and that this was borne out by the fact that adequate reasons had not been given for his Honour's conclusion in this respect.
2. The Crown submitted that no error had been demonstrated in this regard with the sentencing Judge's reasons being sufficient and with the finding being understandable when regard was had to all the evidence on sentence, including the Applicant's own evidence. Decision
3. As mentioned earlier, the Applicant first saw the psychologist, Ms Kim, on 5 February 2016 with a further consultation taking place five days later before the report was written on 14 February 2016. The psychologist took a history and undertook some psychometric testing.
4. Ms Kim purported to diagnose mental disorders according to the Diagnostic and Statistical Manual of Mental Disorders ("DSM-5"), in the form of an adjustment disorder with mixed anxiety and depressed mood at a severe level, and major depressive disorder at a severe level. The report indicated that these conditions existed in February 2016, shortly prior to the Applicant being sentenced.
5. Ms Kim purported, as well, to express an opinion concerning the condition of the Applicant at the time of the commission of the offences in June 2014, stating: "It was evident that Mr Jung was tired and fatigued from excessive work. He was also depressed and very irrational during the time leading up to his arrest in June 2014."
6. The Crown did not object to the tender of the psychological report at the sentencing hearing. However, it was made clear that the Crown challenged some of the opinions expressed by the psychologist.
7. The Applicant was cross-examined by the Crown at the sentencing hearing, and he did not assert that the reason he had committed these offences was because he was tired and fatigued. When asked if there was anything which contributed to the Applicant committing these offences, he said "No, there's no excuse about it" (T12, 23 February 2016). When asked by the Crown how suggested depression had affected him, the Applicant said "I don't know, I didn't have any social life, because there is not many Korean people around there so I was just to stay at home" (T13, 23 February 2016). He admitted directly that the reason that he had committed the offences was because he was sexually attracted to his female patients (T14, 23 February 2016). He also agreed that he was aware, at the time of the offences, that he would lose his registration as a physiotherapist as a consequence of his commission of the offences (T17, 23 February 2016).
8. This Court has expressed concern where a psychologist, and not a psychiatrist, purports to diagnose the existence of a mental illness: WW v R [2012] NSWCCA 165 at [58]-[60]; Lam v R [2015] NSWCCA 143 at [78]-[82], [90].
9. Given that no objection was taken to the psychological report at first instance, it formed part of the evidence before the sentencing Judge to be given such weight as it deserved. A fair reading of the report rather suggests that the Applicant, at the time of the commission of the offences, was a somewhat driven professional person who worked very hard. Although his wife had given birth to their second child in May 2014, the Applicant's mother was living with them and was able to assist the family with practical aspects arising from that development.
10. The fact that there had been no allegation of indecent assault made against the Applicant before April 2014 does not provide assistance to him in support of this ground. The direct evidence concerning the Applicant's thought processes at the time of the offences came from the Applicant himself (see [40] above). There was something of a disconnect between his own evidence and what was said by Ms Kim in her report.
11. That the Applicant was depressed and otherwise adversely affected following his arrest and charging on 13 June 2014 is hardly surprising, especially when, by February 2016, he faced imprisonment for his offences.
12. To the extent that the Applicant sought to derive some support on this ground by reference to the decision of this Court in Hartman v R [2011] NSWCCA 261; 87 ACSR 52 (an insider trading case), that reliance is misplaced. Nothing said in Hartman v R with respect to the relevance of a mental condition on sentence assists the Applicant in this case.
13. In my view, it was open to the sentencing Judge to make the finding which he did that there was no causal link between any suggested mental problem which the Applicant had and the commission of the offences. It is clear that his Honour accepted the Crown submission in this respect, with the Crown's submission being based upon the Applicant's own evidence at the sentencing hearing. It has not been demonstrated that his Honour fell into error in this regard.
14. Beyond that, the Applicant received the benefit of a favourable finding arising from the psychologist's report by reference to what was said in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at 43 [177] concerning a custodial sentence weighing more heavily on him because of his mental condition at the time when sentence was passed.
15. I reject the first ground of appeal.

Ground 2 - Claim that the Aggregate Sentence was Manifestly Excessive Submissions of Parties

1. Mr Pierce submitted that the aggregate sentence imposed in this case was manifestly excessive. He addressed by reference to what he submitted was the relatively short period over which the offences were committed, the Applicant's prior good character, the contents of the psychologist's report and other factors which, in his submission, ought lead to a conclusion that the sentence imposed was manifestly excessive. He argued that some of the indicative sentences appear to be excessive and that this feature supported an overall argument that the aggregate sentence was manifestly excessive.
2. Counsel for the Applicant sought to support this argument by reference to the dissenting judgment of Fagan J in Baines v R [2016] NSWCCA 132, and the cases referred to by his Honour in that decision.
3. The Crown submitted that the aggregate sentence imposed was open to the sentencing Judge and that the claim of manifest excess ought be rejected. Decision
4. To succeed on this ground of appeal, the Applicant must establish that the sentence was unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25].
5. The Applicant committed 12 separate offences against six different victims over a period of about seven weeks between 23 April 2014 and 12 June 2014. Ten of these offences were prosecuted separately with two other offences to be taken into account on a Form 1 under s.33 Crimes (Sentencing Procedure) Act 1999.
6. Prompt complaints were made to police by a number of the patients and the Applicant was arrested on 13 June 2014. It may be inferred that it was the Applicant's arrest and charging which brought this course of conduct to an end. This is not a case where the Applicant desisted from this conduct for any significant period of time before he was arrested and charged.
7. This was not an isolated offence, where it suddenly dawned upon the Applicant that what he was doing was criminal and constituted professional misconduct with him then refraining from that behaviour. Rather, as the Applicant admitted in evidence, he was well aware on each occasion that what he was doing was wrong, and that it was not permitted in the proper practice of the profession of physiotherapy. Despite this, the Applicant committed repeated indecent assault offences against different victims. Indeed, an examination of the offences (at [6] above) points to an escalation in the Applicant's offending conduct so that, by 11 and 12 June 2014, his acts were accompanied by highly inappropriate statements made by him to a patient.
8. The fact that the Applicant was of good character before he committed the first offence provided no real assistance to him. It was a condition of his registration under the Health Practitioner Regulation National Law (NSW) that he be a suitable person to hold registration as a physiotherapist. To be a "suitable person for registration", it was necessary that the Applicant be a fit and proper person and a person of good character (these being overlapping concepts) as well as a person with the necessary competence and technical skills: Health Care Complaints Commission v Brush [2015] NSWCATOD 120 at [68]-[73].
9. It was because the Applicant was considered to be a person of good character, and a fit and proper person, that he held the privilege of registration as a physiotherapist which placed him in a position where he had professional access to patients and was expected to treat each of them properly, responsibly and with respect.
10. The Applicant's patients were entitled to assume that he was a person of good character and a fit and proper person, who could be trusted in touching them for the purpose of treatment. The Applicant's prior good character enabled him to be in a position where he could offend against his patients: R v Kennedy [2000] NSWCCA 527 at [21]; R v Gent [2005] NSWCCA 370; 162 A Crim R 29 at 40-43 [48]-[61].
11. The fact that, under the guise of treatment, the Applicant abused the trust of his patients in committing these offences was a significant aggravating factor on sentence: s.21A(2)(k) Crimes (Sentencing Procedure) Act 1999.
12. This Court has observed that s.61L offences, which had been committed in the context of a relationship between a masseur and his client, were aggravated by the breach of trust inherent in that relationship: R v Qin [2008] NSWCCA 189 at [36], [49]. A breach of trust is heightened substantially in the Applicant's case, where a registered health practitioner commits offences of indecent assault against his patients in the course of treatment.
13. The Applicant derives no assistance from the decision in Baines v R. Firstly, that case involved offences committed by a masseur at a gymnasium against female clients. Different considerations apply in a case such as the present, where the offender is a registered health practitioner who is authorised by the State to provide professional health services to members of the public. Further, the majority in Baines v R (Basten JA and Rothman J) determined to dismiss the appeal. Fagan J was in the minority in that case. Although consideration in that case of other decisions where indecent assault offences were committed by masseurs against clients may be of some general use, the clear distinction between a masseur and a registered physiotherapist must be kept in mind.
14. To the extent that the Applicant's submission asserted that the offences in Baines v R were worse than those in the present case, the argument overlooks the obvious difference between a masseur and a registered health professional.
15. Additional considerations apply when a registered health professional commits sexual offences against patients. In the context of a sentence appeal with respect to a medical practitioner who had committed sexual offences against a female patient during treatment, Grove J (Hunt CJ at CL and Barr AJ agreeing) said in R v Arvind (NSWCCA, 8 March 1996, unreported): "The gravity of the sexual offences committed by the Appellant was magnified by the circumstance that there was involved a breach of trust which the patient reposed in a medical practitioner. The Court should enunciate that criminal interference with the bodies of persons seeking health care will be met with stern retribution. The present case exemplifies the extreme vulnerability of patients and taking advantage of that situation for self gratification attracts general and personal deterrent elements into [an] appropriate sentence."
16. The decision in R v Arvind was applied by this Court in Reeves v R; R v Reeves [2013] NSWCCA 34 at [205]. Although that decision was overturned by the High Court of Australia, the Court's reliance on R v Arvind remained undisturbed as an appropriate example of the principle to be applied where a health practitioner commits a sexual offence against a patient. Nothing said in the judgment of the High Court of Australia (Reeves v The Queen [2013] HCA 57; 88 ALJR 215), or by this Court on remittal of the Crown appeal (R v Reeves [2014] NSWCCA 154; 243 A Crim R 559), affects the application of the principles in R v Arvind to the present case.
17. Similar sentiments have been expressed recently by the Court of Appeal of Western Australia in a case of sexual abuse by a medical practitioner of his patients. In Panda v State of Western Australia [2017] WASCA 5, Buss P (Mazza and Mitchell JJA agreeing) said at [126]: "The objective facts and circumstances of the offending, in the context of her Honour's unchallenged findings of fact, justified her Honour's characterisation of the offending as involving a 'serious breach of trust'. The seriousness of the 'breach of trust' was underscored by the vulnerability of the complainants and the predatory nature of the appellant's conduct. The complainants were entitled to expect from the appellant, as a person who practised a highly respected and honourable profession dedicated to the diagnosis, treatment and relief of physical and mental illness and associated suffering, a punctilious standard of personal behaviour. The appellant failed abjectly and repeatedly in the observance of his fundamental ethical responsibilities. His moral compass was ignored or abandoned."
18. Similar considerations apply when a member of the physiotherapy profession commits repeated criminal acts against patients which involved, as well, gross breaches of his ethical obligations.
19. To the extent that the Applicant's submission in support of this ground sought to challenge a number of the indicative sentences, it is necessary to keep in mind that the appeal lies against the aggregate sentence only, although indicative sentences may be a guide as to whether error is revealed in the aggregate sentence: JM v R [2014] NSWCCA 297 at [40]. To the extent that this submission is open to the Applicant, I record my view that none of the indicative sentences bespeak error in this case so as to bolster an argument that the aggregate sentence is manifestly excessive. As the sentencing Judge found, each offence involved "skin to skin contact". These were serious indecent assault offences.
20. It was necessary that the aggregate sentence reflect a level of notional accumulation as there were six separate victims of the Applicant's offences: R v Gommeson [2014] NSWCCA 159; 243 A Crim R 534 at 553 [108]-[109].
21. The sentencing Judge had regard to the objective gravity of the Applicant's offences and his subjective circumstances, together with all other factors relevant to the sentencing decision, including the need for general deterrence. The aggregate sentence passed in this case was open to the sentencing Judge. It was, in my view, a moderate sentencing response in all the circumstances of the case.
22. The claim of manifest excess should be rejected.

Conclusion

1. The Applicant has not made good either of his grounds of appeal.
2. I propose that leave to appeal be granted, but that the appeal be dismissed.
3. LATHAM J: I agree with Johnson J.

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