Kearsley v Regina

Court of Criminal Appeal (NSW)|2017-03-07|Before: Macfarlan JA, Harrison J, Schmidt J, Priestley JA, Campbell JJ

Sentence

Mr Kearsley was sentenced to an aggregate sentence of 4 years and 3 months imprisonment with a non-parole period of 2 years and 3 months. Her Honour indicated the following sentences for each offence: Count 1 Administer intoxicating substance with intent Three years and six months imprisonment Count 2 Indecent assault Sixteen months imprisonment

Mr Kearsley's case on sentence

Mr Kearsley tendered a large amount of material in his sentencing proceedings. This included psychiatric reports from his treating psychiatrist Dr D'Angelo and a forensic psychiatrist Dr Westmore, a letter of apology to Ms Smith, 40 character references, correspondence relating to the consequences for him of the offending, certificates and other material documenting his work and work-related achievements, correspondence and research regarding the work pressures facing him at the time of the offences and material regarding actions taken by him after the offences. In addition, Patrice Hewitt, nursing co-director for cancer services at St George Hospital, and Dr Julia Maclean, a speech pathologist specialising in cancer care, gave supplementing evidence on sentence affirming Mr Kearsley's exemplary character. Mr Kearsley's daughter, Alana Rawson-Harris, also gave evidence about his invitation to her to join him on 22 November 2013 for dessert with Ms Smith and her inability to do so because of illness and exam pressures.
The Crown also tendered a report of Professor Greenberg which considered Mr Kearsley's mental condition and his risk of reoffending.
Mr Kearsley was 60 years old at the time of the offences and 63 years old at the time of sentence. He had been married to his wife for 13 years. He has two adult children from a previous marriage.
Mr Kearsley was brought up in a highly dysfunctional family environment characterised by conflict between his authoritarian father and an over protective mother. Despite his difficult family circumstances, he was dux of Gymea High School in 1970 and went on to study medicine at the University of Sydney where he was awarded the university medal in 1976. He specialised in radiation oncology and went on to be instrumental in the transformation, innovation and expansion of cancer care at St George Hospital where he was, until 2014, the Director of Radiation Oncology at the Cancer Care Centre.
Evidence of Mr Kearsley's good character in the form of references variously describe him as a dedicated, hard-working and self-sacrificing individual who has been an inspiration and mentor in his profession and who has approached his work with compassion and perseverance even in the face of ongoing under-resourcing. In his personal relationships he is described as generous, respectful and warm. The references make clear that the offences were a complete aberration and that Mr Kearsley is deeply remorseful for his conduct.
In the period leading up to the offences, Mr Kearsley was under extreme stress precipitated by under-resourcing at the Cancer Care Centre resulting in a very high patient load and distress felt by prospective patients about the inability of the Centre to provide care. His relationship with his wife became more distant and he was drinking to excess. Around this time his father's health also rapidly declined.
Dr D'Angelo explained the impact of this time on Mr Kearsley's mental health as follows: "Dr Kearsley recounted a significant alteration in his state of mind in the 18-24 months leading up to the offence. The history he gave is consistent with a major depressive disorder, with it being particularly severe in the six months prior to the offence. He was severely depressed in the mornings with a subsequently [sic] lifting of his mood around midday. He had persistent insomnia and early morning wakening. He experienced lethargy and a diminished sense of pleasure in the things that were usually important to him, namely work and writing. His cognitive capacities also declined, with impaired concentration and memory."
Her Honour referred to Dr D'Angelo's opinion that Mr Kearsley suffered from a major depressive disorder at the time of the offences. This opinion was largely corroborated in the reports of Dr Westmore and Professor Greenberg. Dr Westmore opined that Mr Kearsley has a history of pre-incident depression and Professor Greenberg was of the view that at the time of the offences he had an adjustment disorder with depressed and anxious mood. All three psychiatrists were also of the opinion that at the time of the offences Mr Kearsley had an alcohol use disorder.
It is also apparent that at the time of the offences Mr Kearsley was experiencing a psychological decline and that on the evening of 22 November he drank to excess and may have also used Ativan. While his precise motivation for the offences is not known, due to his lack of memory, it is probable that these factors explain why he acted in a way, to quote Dr D'Angelo, "that [was] completely incongruous with his usual attitudes, behaviour and values".
In 2014, after being confronted by Ms Smith and then the police, Mr Kearsley's mental condition worsened. Dr Westmore and Professor Greenberg were of the opinion that he was suffering from a severe adjustment disorder or major depressive disorder. He sought psychiatric treatment from Dr D'Angelo and attended on him twice weekly from 4 June 2014 until his incarceration. He also completed a nine week one-on-one ethics course at the St James Ethics Centre and stopped drinking alcohol.

Findings on sentence

In her careful remarks on sentence, her Honour made, or alternatively declined to make, the following significant findings.
Ms Smith suffered emotional and psychological harm as a consequence of Mr Kearsley's actions. Her Honour determined, however, that the harm was no more than that which might be expected from the commission of the offences in question.
Her Honour considered that Mr Kearsley did not lure Ms Smith to his home in order to commit these offences. His decision to do so was only formed after Ms Smith arrived at his apartment.
It was also her Honour's view that Mr Kearsley and Ms Smith were in a relationship of trust arising from their professional association and also because Ms Smith was a guest in Mr Kearsley's home.
Her Honour made no assessment of the seriousness of the administer intoxicating substance offence. However, her Honour found that the indecent assault offence was a serious example of its kind because it involved mouth to skin contact with Ms Smith's nipple.
Her Honour found that Mr Kearsley's psychiatric condition, together with his intoxication at the time of these offences, explained the context in which the offences took place. However, the link between Mr Kearsley's mental illness and the offences was said to be tenuous at best and general deterrence and denunciation "still had a part to play in the sentencing process".
In the period leading up to these offences, Mr Kearsley self-medicated with Ativan during the day and alcohol during the evening. On the evening in question he drank until he was highly intoxicated and possibly also took Ativan, which caused his loss of memory.
Her Honour considered that Mr Kearsley was genuinely remorseful for his actions and that he had demonstrated this by writing to Ms Smith apologising for what he did. He had also undertaken courses to help with the development of insight into his conduct, engaged in counselling and continued to abstain from alcohol.
Mr Kearsley was an extremely hard-working and dedicated medical professional, as well as a gifted teacher and mentor, and he gave a great deal of his time to raise money for patients suffering from cancer. The offences were completely out of character.
Her Honour was of the view that Mr Kearsley is unlikely to reoffend and had rehabilitated himself between the commission of the offences and the date of his sentence.
Mr Kearsley received a ten percent discount for his pleas of guilty, entered in the week that his trial was first listed.
Since the offences and charges, Mr Kearsley has suffered from a depressive illness. He has lost his profession and position of good standing in the community and has been the subject of adverse media publicity. This has had a detrimental effect upon his mental health.

Special circumstances

Her Honour considered that Mr Kearsley was entitled to an adjustment of the statutory ratio because his sentence would be more onerous having regard to his age and mental condition.

Grounds of appeal

Mr Kearsley relies upon three grounds of appeal. They are as follows: 1. The learned sentencing judge did not properly assess the objective gravity of the offence of administer intoxicating substance with intent. 2. The learned sentencing judge did not consider, or erred in the application of, the principle of totality in determining the aggregate sentence. 3. The learned sentencing judge erred in her approach to the issue of extra-curial punishment.

Ground 1

Her Honour did not make any findings about the objective seriousness or gravity of the s 38 offence. Neither offence with which Mr Kearsley had been charged attracted a standard non-parole period, so it was unnecessary for her Honour to have made a finding as to precisely where they lay on the spectrum of offending. However, her Honour was still required explicitly to assess the objective gravity of each offence as an essential element of the sentencing process: Khoury v R [2011] NSWCCA 118 at [71]; R v Dodd (1991) 57 A Crim R 349; R v Van Ryn [2016] NSWCCA 1 at 129.
In R v Brown [2012] NSWCCA 199 Grove AJ (Macfarlan JA and McCallum J agreeing) said this at [17]: "[17] The facility for imposing an aggregate sentence does not extinguish the obligation to assess criminality for individual sentences: Section 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999; cf Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610. Whilst an indicative sentence recorded in accordance with s 53A(2) of the Crimes (Sentencing Procedure) Act is not in itself amenable to appeal under s 5(1)(c) of the Criminal Appeal Act, an erroneous approach in the indication of the sentence that would have been imposed for an individual offence may well reveal error in the aggregate sentence reached."
The Crown contended, while accepting that her Honour had failed expressly to refer to the objective seriousness of the offence, that her assessment could nevertheless "be gleaned from the remarks on sentence" having regard to the fact that she gave careful consideration to the nature of the offending conduct and the circumstances in which it occurred. The Crown submitted that the fact that her Honour undertook an assessment of the objective criminality of this offence was "implicit in [her] remarks on sentence".
While there is abundant authority that it is the substance and not the form of a sentencing judge's remarks that are important in this respect, it remains critical that upon a fair reading of the remarks the relevant assessment is clear. As Hoeben CJ at CL said in Delaney v R; R v Delaney [2013] NSWCCA 150 at [56]-[57]: "[56] While it is true that his Honour did not in terms assess the objective gravity of the offending, he did specifically refer to the factors which bore upon its objective seriousness. His Honour took account of the amount involved, the role of the appellant, the nature of the conduct and the period over which it took place. While it may have been preferable for his Honour to have made a specific assessment of the objective seriousness of the offending, he did implicitly do so. I am satisfied that the factors to which his Honour referred were relevant and important and were given proper weight in the sentencing process. While his Honour may not have expressly determined the objective criminality of the offences, he clearly took that into account. [57] It is well established that a sentencing judge's characterisation of the degree of objective seriousness of an offence is an evaluative judgment with which the Court will not interfere unless the finding was not open. The sentencing judge here had the benefit of hearing all of the evidence at the trial and seeing the appellant give evidence. While it is true that his Honour gave considerable weight to the appellant's subjective case, this was an approach well open to him, given the somewhat unusual circumstances of this case."
My difficulty in the present case is that I cannot personally discern what the Crown says is her Honour's unspoken assessment of the objective seriousness of the s 38 offence. It is not "implicit" in her remarks as far as I can determine, nor have I been able to "glean" her Honour's view of it from what she has said.
It is important to observe that her Honour's failure to make her opinion or assessment clear is not of merely passing moment. On the contrary in the present case, by reason of Mr Kearsley's powerful subjective circumstances, it is not possible to distil precisely or even generally how her Honour's view of the objective seriousness of the offence influenced the sentence at which she ultimately arrived. Presumably her Honour must have thought that it was objectively very serious, a conclusion that is obviously controversial in this appeal. Mr Kearsley has argued that he could have been sentenced to other than full time custody, either by suspending the sentence or allowing him to serve the sentence by way of intensive corrections order. The fact that her Honour arrived at a sentence that precluded that prospect tends to suggest that she considered Mr Kearsley's strong subjective case to have been overwhelmed by the seriousness of the offence. If that is a correct analysis, it seems to me in this case to be critical that her Honour should have dealt in terms with the objective gravity of the offence. It was insufficient to leave this to inference. Her Honour's failure to do so invalidated the sentencing exercise.

Ground 2

Mr Kearsley submitted that this was not a case where the offence ultimately committed as a result of Ms Smith's inebriated state was different to that intended as part of the s 38 offence or where the administration of the drug was potentially injurious standing alone: R v TA (2003) 57 NSWLR 444; [2003] NSWCCA 191 at [34]. Rather, the offences reflected a single course of criminal conduct involving a single victim such that it was open to her Honour to impose wholly concurrent sentences: Johnson v R (2004) 205 ALR 346; [2004] HCA 15 at [5]. Mr Kearsley argued as follows.
First, the offences were not completely separate and distinct as contemplated by her Honour during the sentencing hearing. This was a case where the identification of a single act common to both offences was not straightforward but where as a matter of common sense the offences involved overlapping elements: Pearce v R (1998) 194 CLR 610; [1998] HCA 57 at [42]; Priovolidis v R [2016] NSWCCA 20 at [40]-[47]. Both offences were committed with the intention of committing the same assault upon Ms Smith. It was the criminality of Mr Kearsley's intent indecently to assault Ms Smith that informed his guilt of the s 38 offence. Absent that, or any similar, intent, Mr Kearsley's conduct in causing Ms Smith to consume the intoxicating substance would only have exposed him to guilt for a different and less serious offence: see s 38A of the Crimes Act, which carries a maximum penalty of 2 years imprisonment and/or a fine.
Upon this analysis it follows that Mr Kearsley's intention indecently to assault Ms Smith made him guilty of the s 38 offence, so that his sentence for that offence was capable of reflecting the total criminality for both offences. Mr Kearsley contended that her Honour's failure to have regard to that fact effectively exposed him to double punishment in relation to the criminality of his intent.
Secondly, her Honour appeared to elevate the seriousness of the s 38 offence because Mr Kearsley carried through with his intention indecently to assault Ms Smith as her Honour's following remarks at page 7 suggest: "However, clearly at some reasonably early stage in the evening, [Mr Kearsley] decided to, and did, put the drug in [Ms Smith's] drink without her knowledge, intending to indecently assault her. That he went on to do so renders his conduct even more serious."
Mr Kearsley contended that it would be impermissible double counting for her Honour to have had additional regard to this matter by accumulating individual sentences on the basis that the offences involved separate criminality.
Thirdly, her Honour's indicative sentence for the indecent assault charge, having regard to Mr Kearsley's compelling subjective case, may well have attracted a non-custodial sentence, by reason of it being suspended or by the imposition of an intensive corrections order. Mr Kearsley argued that because one of the indicative sentences may not have attracted full time custody but for the other sentence, there was further support for the imposition of wholly concurrent sentences.
The Crown relied upon the well-known remarks of Howie J in Chayadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [17] to the effect that there is no general rule that determines whether sentences should be imposed concurrently or consecutively. As his Honour said, "[t]he issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence?"
Added to this are the comments by Bathurst CJ in Kerr v R [2016] NSWCCA 218 at [108] as follows: "[108] Questions of accumulation, concurrence and totality are matters which fall squarely within the discretion of the sentencing judge. An appellate Court will not interfere unless there appears to be an error of principle or if the sentence imposed is manifestly excessive (or inadequate)."
In my opinion it was clearly open to her Honour partially to accumulate the sentences for each offence. It is incorrect, as Mr Kearsley's submissions appear to do, to place exclusive emphasis upon the issue of intention in the s 38 offence. It also involved discrete physical acts of administering the intoxicating substance. That act or those acts are wholly independent of the physical acts associated with or forming the indecent assault charge. There was adequate scope for her Honour to treat these offences as involving some elements of idiosyncratic criminality that was not common to both offences. I am unable to say that her Honour's discretion miscarried in this respect.
I would dismiss this ground of appeal.

Ground 3

The third ground can be disposed of more easily. The concept of extra-curial punishment, for which an accused person may, in an appropriate case, be entitled to some consideration on sentence, cannot subsist in or arise from what might be thought of as the ordinary or natural consequences of a conviction. In the present case, Mr Kearsley clearly had a great deal to lose from a conviction for these offences. It is not in dispute that his successful career and good standing in the community have been irrevocably lost. The consequences for him are clearly devastating.
However, those consequences are not the superadded or unexpected result of something that is not reasonably associated with the fact of his conviction and sentence. The very expression "extra-curial" anticipates the existence or the possibility of some aspect of the imposition of a sentence that does not flow from the due administration of the judicial process.
In Kenny v R [2010] NSWCCA 6 at [48]-[50], Howie J said this: "[48] There was evidence in that case that the Legal Services Commissioner had initiated complaints against the respondent that, by reason of the conduct giving rise to the offences for which he was sentenced, the respondent was not a fit and proper person to hold a practicing certificate. The sentencing judge had acted on the basis that the charges would be pursued and the respondent would lose his profession as a solicitor. [49] Clearly that was a matter that could be taken into account as extra-curial punishment. My initial reaction was that public humiliation that arises from the commission of the offence should not alone give rise to a mitigation of sentence without more. However having regard to what Basten JA has written about this matter, the issue appears to be unresolved in the High Court and need not be determined for the purpose of disposing of this ground of appeal. Clearly there may be an exceptional case where it reaches such proportion that it has had some physical or psychological effect on the person so that it could be taken into account as additional punishment. That was in effect the position in Allpass. It was also the position in R v King [2009] NSWCCA 117 where media coverage of the respondent's sentence resulted in threats to him and made him a virtual prisoner in his own home. [50] In so far as in the present case his Honour was not prepared to take into account as a mitigating factor the public humiliation suffered by the applicant, I agree with that view. But even if it were wrong, the impact upon the sentence would be very slight."
In the present case her Honour has not specifically referred to Mr Kearsley's public humiliation in arriving at a proper sentence. Her Honour did take account of the fact that Mr Kearsley's loss of employment, loss of reputation and resultant opprobrium caused him psychological harm. However, Mr Kearsley maintains that she should have gone further and that she erroneously failed to proceed to relate the impact of her findings to the sentence that she imposed.
I consider that her Honour was correct in taking the approach that she took. Her Honour's remarks on sentence are replete with references to the very significant elements in Mr Kearsley's powerful subjective case. In contradistinction to the manner in which her Honour dealt with the objective seriousness of the s 38 offence, this is a situation where the importance and effect upon Mr Kearsley of what followed from his conviction and sentence can be adequately gleaned from her remarks as a whole and that they have been clearly and obviously, if on one view only implicitly, factored into the sentencing equation. I am not prepared to proceed upon the basis that a judge with her Honour's experience failed to accommodate all of the favourable aspects of Mr Kearsley's subjective case in her sentencing exercise.
I would dismiss this ground of appeal.

Conclusions

In my opinion her Honour fell into error only to the extent that she failed to make clear what, in the circumstances, was her assessment of the objective gravity of the s 38 offence. That error was fundamental to the sentencing exercise. The sentence imposed upon Mr Kearsley should accordingly be set aside and he should be resentenced.

Resentence

In resentencing Mr Kearsley it is necessary to approach the task bearing in mind what has been said by the High Court in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42].
In my opinion the objective criminality of the s 38 offence is moderate. I agree with the view formed by her Honour that the Crown did not establish that Mr Kearsley planned the offence or that he lured Ms Smith to his home in order to commit it. On the evidence, that decision was only taken after she arrived and in the circumstances that prevailed at the time. I also take account of the fact that Ms Smith's level of intoxication, although for obvious reasons never the subject of scientific analysis, would appear not to have prevented her from comprehending the assault upon her or from forming the conscious decision to reject Mr Kearsley's further assault. Although the Crown is not required to establish any particular level or degree of intoxication as an element of the offence, it seems to me that it necessarily informs the objective seriousness of the offence committed in fact. In my view the objective seriousness of the offence would have been significantly increased if Mr Kearsley had administered an intoxicating substance of such characteristics or in such quantities as substantially to have deprived Ms Smith of her mental or physical faculties. I consider that the converse must also be true.
In expressing my opinion about the objective seriousness of the offence in the particular circumstances in this case, I would not wish to be taken as expressing the view that offences for which s 38 provides are not serious offences. On the contrary. So much is apparent from the maximum penalty set by Parliament for this offence. My assessment of the objective seriousness of Mr Kearsley's offence is no more and no less than a comparative analysis of that offence and other possible or hypothetical examples of it that I am required to undertake as part of the sentencing exercise.
I consider the s 61L offence to be a less serious offence but that the objective criminality of that offence is nevertheless low to moderate. It is important to bear in mind that the offence is one whose significant feature is indecency and that indecent assault contemplates a sexual connotation. In this case that connotation is directly referable to the area of Ms Smith's body that was kissed. That involved direct contact with the skin, as opposed to contact through clothing, which made the assault more serious. That is to be contrasted with genital or anal touching through clothing. Mr Kearsley's offence was less objectively serious than such an assault. It was furthermore significantly less serious than an offence that involved genital or anal contact upon the skin. In addition, Mr Kearsley's offence did not involve prolonged, persistent, repeated or repetitive touching. It was on the contrary apparently significantly confined to a short period. It did not continue in the face of protestations, but on the contrary quite properly ceased because of them.
I do not consider that this is a case in which principles of general deterrence are of particular significance. Mr Kearsley's psychological and psychiatric condition has already been referred to and is otherwise well documented. It renders this case of limited utility in serving as a vehicle for deterring others.
I consider that this is also not a case for specific deterrence. Associated with Mr Kearsley's good prospects for rehabilitation, which I would also find, is the effectively non-existent likelihood that Mr Kearsley would ever reoffend.
Mr Kearsley's subjective case is very strong. That case is more than adequately summarised in her Honour's remarks on sentence. It is uncontroversial and uncontested. I respectfully adopt her Honour's recitation and analysis of that aspect of the matters personal to Mr Kearsley. In particular I note his complete absence of any prior criminal record, his genuine expressions of remorse, his apology to Ms Smith and his record of significant public service as a hardworking and dedicated professional and a man who "has devoted his life to others". As her Honour remarked, the several testimonials tendered on his behalf make clear that these offences were completely out of character. Transcript of the oral evidence confirms her Honour's opinion that it was "equally compelling".
I accept that the offences were aggravated by the relationship between Mr Kearsley and Ms Smith generated by his position as a senior medical practitioner and her position as a junior medical practitioner seeking his professional guidance.
Mr Kearsley must receive a sentence that imposes a suitable punishment taking all of these factors into consideration. He is entitled to a discount of ten percent to reflect the utilitarian value of his pleas of guilty.
Section 5(1) of the Crimes (Sentencing Procedure) Act provides as follows: "5 Penalties of imprisonment (1) A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate."
Section 12 of the Crimes (Sentencing Procedure) Act is relevantly as follows: "12 Suspended sentences (1) A court that imposes a sentence of imprisonment on an offender (being a sentence for a term of not more than 2 years) may make an order: (a) suspending execution of the whole of the sentence for such period (not exceeding the term of the sentence) as the court may specify in the order, and (b) directing that the offender be released from custody on condition that the offender enters into a good behaviour bond for a term not exceeding the term of the sentence."
In my opinion this is not a case that warrants the imposition of a sentence that would require Mr Kearsley to serve any period in custody. I am aware that his original sentence had that effect and that he remains in custody at present. Even though I am satisfied that no penalty other than imprisonment is appropriate it is my opinion that any such sentence or sentences that I intend to impose should be wholly suspended. In my opinion, the imposition of a full-time custodial sentence for this offender, in the particular circumstances of this case, would be starkly disproportionate to the criminality of the offences in question, especially when factors such as retribution and deterrence, community protection, the unlikelihood of re-offending, the need for punishment, unquestioned prospects of rehabilitation, the requirement to be appropriately merciful and Mr Kearsley's entirely blemish-free record and impressive life of community service are all taken into account.
In my opinion Mr Kearsley should be resentenced as follows: 1. Grant leave to appeal against sentence. 2. Allow the appeal. 3. Set aside the sentence imposed in the District Court of New South Wales by her Honour Hock DCJ on 26 August 2016. 4. Order that the offender be resentenced as follows: 1. For the offence of indecent assault contrary to s 61L of the Crimes Act 1900 the offender is sentenced to a fixed term of imprisonment of 9 months commencing on 26 August 2016 and expiring on 25 May 2017. Suspend execution of the whole of the remainder of the sentence. Direct that the offender be released from custody forthwith on condition that within 14 days he enters into a good behaviour bond for the balance of the term of that sentence. 2. For the offence of administer intoxicating substance with intent contrary to s 38 of the Crimes Act 1900 the offender is sentenced to a fixed term of imprisonment of 18 months commencing on 26 November 2016 and expiring on 25 May 2018. Suspend execution of the whole of the remainder of the sentence. Direct that the offender be released from custody forthwith on condition that within 14 days he enters into a good behaviour bond for the balance of the term of that sentence.
SCHMIDT J: I also agree with Harrison J that the appeal must be upheld and with his Honour's reasons for dismissing grounds 2 and 3. As the Crown accepted at the hearing of the appeal, her Honour did not explain how she came to resolve what lay in issue between the parties as to the objective seriousness of Mr Kearsley's offending. In the result, ground 1 of the appeal must be upheld and Mr Kearsley sentenced afresh.
I also agree with Harrison J that the evidence established that no sentence other than a term of imprisonment was warranted, given all of the matters which had to be taken into account in arriving at the appropriate sentence for Mr Kearsley's offending. I do not, however, agree with the sentence which his Honour proposes. Rather, I agree with the sentence which Macfarlan JA has proposed.
On sentence, it was contended for Mr Kearsley that the objective seriousness of his offending was such that a non-custodial sentence ought to be imposed upon him, because of the absence of relevant aggravating factors; his powerful mitigating circumstances; Mr Kearsley's low level of objective criminality; and the evidence that his offending involved a momentary aberration. Those submissions were not pressed on appeal. Nor was the sentence argued to be manifestly excessive.
Amongst what was argued on the appeal was in relation to ground 2, that if Mr Kearsley had only been sentenced for the sexual assault offence, a non-custodial sentence could have been imposed upon him. That was a matter, it was urged, which would also have favoured entirely concurrent sentences being imposed upon him, in order to avoid double counting. Those submissions cannot be accepted, nor do I consider that a suspended sentence can be imposed upon Mr Kearsley, even given his strong subjective circumstances.
My reasons for those conclusions are as follows.

Ground 1

As the Crown submitted, the aggregate sentence which her Honour imposed reflected the conclusions which she had reached about the objective seriousness of Mr Kearsley's offending. But it also reflected the conclusions which were reached on the other considerations which had to be taken into account when her Honour undertook the instinctive synthesis discussed in Markarian v The Queen. They included not only his moral culpability for his offending, but also the evidence as to Mr Kearsley's subjective circumstances, matters such as the application of the principle of totality and questions of deterrence.
Given what was in issue on sentence as to the objective seriousness of Mr Kearsley's offending and his moral culpability for that offending, her Honour not only had to reveal her conclusions, she also had to explain the basis on which those issues were resolved.
Her Honour concluded that Mr Kearsley's assault was "a serious example of its kind", because it involved skin to mouth contact. No finding as to the seriousness of the administer drug offence was made. Nor did her Honour reveal the basis of the conclusions reached as to Mr Kearsley's moral culpability for that offending, other than observations made in the context of general deterrence. Her Honour then said that while his intoxication and psychiatric conditions explained Mr Kearsley's conduct, they did not excuse it, as the causal link between his psychiatric conditions and surreptitiously putting a drug in the victim's drink and indecently assaulting her were tenuous, at best. In the result, it was concluded that general deterrence and denunciation still had a role to play on his sentence.
Assessment of the objective seriousness of offending is a critical component of every sentencing exercise: R v Campbell [2014] NSWCCA 102 at [27]. It involves consideration being given to where in the range of conduct covered by the offence the offender's conduct falls: Baumer v The Queen (1988) 166 CLR 51 at 57.
This was also a case where the principles discussed in Director of Public Prosecutions (Cth) v De La Rosa arose to be considered. There it was observed at [177]: "Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, eg, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40] - [48]; Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333 at [43] - [51]; R v Harb [2001] NSWCCA 249 at [35] - [45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33] - [36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14]-[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner: ● Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28]. ● It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 - 51; Israil at [22]; Pearson at [42]; Henry at [28]. ● It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28]. ● It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192]. ● Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24]."
I agree with Harrison J that objectively, Mr Kearsley's indecent assault was of low to moderate seriousness and his administer drug offence of moderate seriousness, given both the acts involved; the circumstances in which the offences were committed during the same course of criminality; and the effect of the drug which he had administered to his victim and ingested himself. Had the drug had more serious effects than it did, these would unquestionably have been much more serious offences than they were. Had Mr Kearsley not desisted as he did, when the victim asked him to stop his assault, that offence would also have been much more serious than it was.
In determining the appropriate sentence for these offences the objective seriousness of the administer drug offence, which applies to a very broad range of conduct and attracts a maximum penalty fixed at a "high catch-all level" must be assessed: Markarian at [30]. In the case of the indecent assault offence, where it lay on the spectrum or scale of seriousness of such offending has to be considered: Ibbs v The Queen (1987) 163 CLR 447. Not all offences of indecent assault will result in a custodial sentence: R v O'Sullivan (Court of Criminal Appeal (NSW); Priestley JA, Enderby and Campbell JJ; 20 October 1989, unrep).
The administer drug offence was, as her Honour found, the more serious offence. But even so, neither offence fell at the highest end of such offending, as the Crown contended on sentence, nor the lowest, as was then contended for Mr Kearsley.
The Crown's case on sentence was that both offences were very serious because of the trusted relationship which existed between Dr Kearsley and his victim; his exploitation of her vulnerability, when he planned to meet her at his home; the elaborate plan he had pursued to set up a romantic dinner with her, in order to pursue his pre-existing sexual interest in her; his determination that evening to obtain sexual gratification by assaulting her when she was incapacitated; the drug administered had left her unable to protest; that its effect was such that she had suffered memory loss and had been left to speculate for the rest of her life about what had happened to her; and that the event had left her with serious impacts, for which she had sought psychological treatment.
As to moral culpability the Crown contended that there was no causal connection between Mr Kearsley's illness and his offences, that being revealed by his ability to understand the implications of his actions; to make reasonable judgments; and his control, when he made elaborate plans for the romantic dinner where he prepared to seduce the victim and to commit the offences.
As her Honour concluded, many of these submissions were not open on the evidence.
For Mr Kearsley it was contended that the objective criminality of both of his offences was low because they were committed without premeditation or planning, as the administer drug offence involved a single tablet administered in wine that both Mr Kearsley and the victim drank. There were no relevant aggravating factors and it was relevant to an assessment of his moral culpability that the offences were committed when Mr Kearsley was psychologically compromised by his mental illness, for which he was self medicating to such an extent that he had acted in a way completely incongruous to his usual attitudes, behaviour and values.
As to moral culpability it was argued that the evidence did not permit the conclusion that the necessary intent had been formed before the dinner, or that his illness impinged upon his moral culpability for his offences, as well as diminishing the need for a general deterrence.
Her Honour accepted many of these submissions, but not all of them.
Her Honour's conclusion that the offences were not premeditated, in the sense that the victim had been lured to Mr Kearsley's apartment, so that he could commit these crimes at a romantic dinner, was not challenged on appeal. She also found that this had been a social arrangement between professionals, during which the victim had the opportunity to discuss her career. Those conclusions rested on the email inviting the victim to dinner, where Mr Kearsley had specifically mentioned that his wife was overseas; evidence that his daughter had been invited to the dinner, but did not attend because she was unwell; that she had attended such dinners before; and that she also knew the victim.
Her Honour concluded, however, that reasonably early in the evening, Mr Kearsley had decided to put the drug into the victim's drink, without her knowledge, intending to indecently assault her. That rendered the assault offence more serious, as did the fact that in addition to their professional relationship, she was a guest in his home, entitled to trust him as she did. These conclusions were also not challenged.
In her victim impact statement, the victim explained the psychological harm she had suffered, which her Honour concluded had not been more than would be expected by the commission of such serious offences.
Her Honour's unchallenged finding was that on the psychiatric evidence, Mr Kearsley did not have a memory of his offending because of excess alcohol consumption and possible ingestion of the drug. It was an agreed fact, however, that the drug had been administered to the wine which both he and the victim were drinking.
Her Honour also found that there was compelling evidence that Mr Kearsley had been a man who had devoted his whole life to others and that he had been an extremely hardworking and dedicated professional, with a heavy workload, which caused him significant stress, as well as a gifted teacher and mentor to medical students. Her Honour also accepted that his offending was contrary to everything that he believed in.
Her Honour explained the evidence of the increasing levels of daytime anxiety Mr Kearsley had been experiencing; his increased daily alcohol consumption to the point of intoxication on most nights; as well as self-medication with the drug he administered to the victim. He also had a history of depression and was diagnosed to be suffering from an adjustment disorder at the time of his offending. Since his offending, he had developed a major depressive disorder, from which he continues to suffer even now, which had been contributed to by the inevitable consequences of his criminal actions on his professional standing in the community.
Her Honour did not explain what account was taken of the psychiatric illness which Mr Kearsley was undoubtedly suffering at the time of his impulsive and opportunistic offending, in assessing his moral culpability. On the evidence, consistently with the approach discussed in De La Rosa, his moral culpability for his offending was less than it would have been, had he committed his offences at a time when he was not suffering from the psychiatric illness he was diagnosed to be suffering.
While his illness did not excuse Mr Kearsley's offending, the evidence did establish that it contributed to it in a substantial way, that offending being as it was, entirely out of character with this 60 year old doctor's entire life and character, to that point.
That general deterrence must still play some role in the sentence imposed upon Mr Kearsley must, nevertheless, be accepted. After all, his illness was not such as to have prevented Mr Kearsley, a man of considerable intellect and capacity, from still functioning at a high level in the other aspects of his busy life. As a doctor it must also be inferred that he well understood the risks of his voluntary ingestion of drugs and alcohol.
In my view these considerations must lead to a lower sentence than that which was imposed on Mr Kearsley.

Sentence

On this resentence, account must also be taken of the unchallenged matters revealed in the affidavit of Mr Kearsley's solicitor, to which a further report from his treating psychiatrist was annexed. He continues to suffer from a serious mental illness, for which he is less well treated in custody. As her Honour foresaw, these matters and the consequences of his age, have made his sentence more onerous than it would otherwise have been. There was also evidence that his treatment in custody has been even more onerous than was otherwise expected, for reasons which it is not necessary here to discuss further.
Mr Kearsley's powerful subjective case was not challenged on appeal. Her Honour found that his plea was reflective of his acceptance of responsibility and a willingness to facilitate the course of justice. She also took into account the remorse he had expressed and the extensive psychiatric treatment he had pursued, as well as the ethics courses he undertook, in order to gain insight into his behaviour. Despite the doubts expressed by the victim in her statement, her Honour also found that Mr Kearsley was genuinely remorseful; that he was unlikely to re-offend; and that he had essentially rehabilitated himself by the time of sentencing.
The conclusion that despite all of these considerations, no penalty other than imprisonment was appropriate, even though the duration of the assault was short and Mr Kearsley desisted when the victim resisted, flows from the nature of his acts, committed after Mr Kearsley had deliberately drugged his victim, in circumstances which involved a serious abuse of the relationship of trust which existed between them and which gave him the opportunity to take advantage of his victim, an opportunity which he deliberately pursued.
The view I have reached that Mr Kearsley's sentence cannot be suspended rests on the conclusion that despite his strong subjective case, the nature of his offending was such that justice requires that a non-parole period, reflecting the minimum period of actual incarceration that he must spend in full-time custody having regard to all the elements of punishment, must be imposed upon him: see Muldrock v The Queen (2011) at [57] and Power v The Queen (1974) 131 CLR 623 at 628-629.
I consider that when the objective seriousness of Mr Kearsley's offending is considered with his moral culpability for his offences and in light of his strong subjective case, together with questions of deterrence, totality and the other relevant considerations I have discussed, Mr Kearsley must be sentenced to the aggregate sentence which Macfarlan JA has arrived at. I agree with his Honour's explanation of how that sentence was arrived at and also with the orders which his Honour proposes.

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: 22 March 2017

2012] NSWCCA 130 R v Stoupe [2015] NSWCCA 175 R v TA (2003) 57 NSWLR 444; [2003] NSWCCA 191 R v Van Ryn [2016] NSWCCA 1 Category: Principal judgment Parties: John Henry Kearsley (Applicant) Crown (Respondent) Representation: Counsel: T Game SC with C O'Neill (Applicant) N Adams (Respondent)

Judgment

MACFARLAN JA: I have had the advantage of reading the judgment of Harrison J in draft. I agree with his Honour's conclusions that the first proposed ground of appeal should be upheld and the second and third grounds rejected. It follows, as his Honour holds, that leave to appeal should be granted, the appeal allowed and the sentence imposed in the District Court set aside. For the reasons that follow, I have however reached a different conclusion concerning resentencing. I turn therefore to that task.
As to the objective seriousness of the two offences, I agree with Harrison J that, for the reasons his Honour gives, the objective criminality of the s 38 offence was moderate and that of the s 61L offence was low to moderate. I emphasise however, as his Honour does, that the offences were nevertheless serious. I also emphasise that the victim of the offences was a junior member of the profession of which Mr Kearsley was a much esteemed senior member. There was thus a marked disparity in their positions. Moreover, Mr Kearsley had in the past adopted an informal mentoring role in relation to the victim. He had arranged the dinner with the victim on 22 November 2013 for the purpose of discussing the victim's career advancement, including the possibility of Mr Kearsley or another senior doctor at his hospital mentoring her in a more formal fashion.
Harrison J describes Mr Kearsley's subjective case. It is undoubtedly very strong. He has rendered extraordinary service to the medical profession and, through it, to the community at large. A wealth of testimonials and other documents evidence his service and, until the aberration that resulted in the subject offences, his exemplary behaviour. Harrison J has also referred to the medical evidence concerning Mr Kearsley's mental health at the time of the subject offences (see [41] and [45] below). Dr D'Angelo described Mr Kearsley's history as being consistent with a major depressive disorder. Reports of the other two experts contained opinions that Mr Kearsley suffered a depressive condition. I note however that the sentencing judge did not find that Mr Kearsley's commission of the subject offences was causally related, at least not in any material sense, to his psychiatric condition. Her Honour stated that the link between that condition and the offences was "at best tenuous" (p 11).
In Director of Public Prosecutions v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177], McClellan CJ at CL (as his Honour then was) identified a number of different ways in which an offender's mental illness, intellectual handicap or other mental problems may be relevant to sentencing. The first was that "[w]here the state of a person's mental health contributes to the commission of the offence in a material way; the offender's moral culpability may be reduced". This is inapplicable in the present case as the sentencing judge held that there was no material causal link between Mr Kearsley's psychiatric condition and the offence. This finding was not directly challenged on appeal, although Mr Kearsley relied upon her Honour's further finding that his condition "explain[ed] the context in which these offences occurred" (p 10) to submit that "but for his severe depression in conjunction with (and precipitative of) gross intoxication, he would not have committed the offences" (written submissions [54]). In my view the full import of this submission is not supported by her Honour's limited finding to which it referred. Nevertheless the finding justifies the conclusion that Mr Kearsley's moral culpability for his conduct was to a limited extent reduced by the existence of his mental condition.
Secondly, an offender's mental condition may render him or her "an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed" (ibid; see also Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [53]-[54]).
In R v Engert (1995) 84 A Crim R 67 at 71, Gleeson CJ stated that an offender's mental condition could result in the reduction of a sentence even where it was not causally connected with the offence. His Honour however referred in this context only to "considerations of rehabilitation or the need for treatment outside the prison system" as leading to this conclusion; not to a diminished significance of general deterrence. In his concurring judgment, Allen J spoke more broadly, stating: "Even in a case where an offender has a mental disability which is unrelated to the commission of the crime the sympathy which his condition must attract in the eyes of others in the community generally may be such that to sentence him with full weight given to general deterrence might have no impact at all upon others. Human sympathy would say: 'Well, you would not expect him to get the same sentence as someone else'" (at 72).
Subsequent decisions of this Court are consistent with Allen J's views (Iskander v R [2013] NSWCCA 235 at [30]; R v Omar [2015] NSWCCA 67 at [50] and Phanekham v R [2015] NSWCCA 295 at [24]).
As a result, Mr Kearsley's mental condition should be taken into account when considering the issue of general deterrence on his resentencing. To my mind, it is however of only limited significance in this respect as, to apply the approach of Allen J in Engert to the present case, ordinary members of the community would not in my view expect a person suffering from a depressive condition of the kind from which Mr Kearsley suffered (but which did not play any significant causative role in his or her offending) to receive a significantly lower sentence for offences of the type in question than would otherwise be the case. General deterrence therefore remains of significance in resentencing Mr Kearsley.
Thirdly, an offender's mental illness may mean that a custodial sentence may weigh more heavily on the person. This is a relevant consideration in Mr Kearsley's resentencing. Other respects identified in De La Rosa at [177] in which an offender's mental condition may be relevant to sentencing were not contended to be relevant in the present case.
When undertaking the requisite "instinctive synthesis" in sentencing, the purposes of sentencing identified in s 3A of the Crimes (Sentencing Procedure) Act 1999 must be borne in mind (see Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [50] and following, approved in Muldrock at [26], as to the need for an instinctive synthesis when sentencing). Performance of this task may require the balancing of "many different and conflicting features" (Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [59]).
The first purpose of sentencing stated in s 3A is "to ensure that the offender is adequately punished for the offence". This reflects the common law principle that "there must be a reasonable proportionality between the sentence passed and the circumstances of the crime committed" (R v Scott [2005] NSWCCA 152 at [15]). Also of relevance to the present case are the purposes stated in s 3A of preventing crime "by deterring the offender and other persons from committing similar offences", making the offender "accountable for his or her actions", denouncing the conduct of the offender and recognising the harm done to the victim of the crime and to the community.
In arriving at an appropriate sentence, all the circumstances of the case must be considered, including both the objective and subjective factors.
In addition to the subjective considerations to which I have referred above, I take account of the sentencing judge's findings that Mr Kearsley is genuinely remorseful for his actions, has undertaken courses to help him obtain insight into his conduct, is unlikely to re-offend and has rehabilitated himself. As well, it is relevant that he has lost his profession, his position of good standing in the community, and has been the subject of adverse media publicity. Further, an affidavit of his solicitor deposes to the exceptional difficulties Mr Kearsley has encountered in custody, at least in part due to his being an older person of a professional background.
As this Court has however indicated on a number of occasions, subjective considerations must not be allowed to cause inadequate weight to be given to the objective circumstances of the case (Dodd v The Queen (1991) 57 A Crim R 349 at 354; R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130 at [83]; R v Stoupe [2015] NSWCCA 175 at [103]).
In a case such as the present where the subjective considerations are so strong, sight must therefore not be lost of the objective seriousness of the subject offending. As I have indicated, that constituted the commission of serious criminal offences involving a senior member of the medical profession drugging a junior colleague for the purpose of committing an indecent assault, which was then perpetrated. The offending involved a serious breach of the trust that the victim had reposed in Mr Kearsley. The seriousness of offences committed under the relevant sections is confirmed by the legislative prescription of a maximum penalty of 25 years for the s 38(a) offence and 5 years for the s 61L offence; although I recognise that there is a wide variety of conduct that will constitute offences against these sections, often much more serious than that of Mr Kearsley. Whilst the sentencing judge found that the victim suffered no more harm than "that which would be expected by the commission of such serious offences" (p 6), that harm was severe indeed, as confirmed by the victim's Victim Impact Statement.
Having considered all other alternatives, my view is that in the present case no penalty other than imprisonment is appropriate (s 5(1) Crimes (Sentencing Procedure) Act). Such a penalty is necessary to satisfy the sentencing objectives of adequate punishment, general deterrence and denunciation of the offender's conduct. Mr Kearsley's strong subjective case does not require a contrary conclusion, although it does operate to significantly moderate the extent of the penalty of imprisonment.
For the same reasons, I do not consider that the sentence to be imposed on Mr Kearsley should be suspended. Whilst a suspended sentence is a form of imprisonment, the offender is not in custody whilst the suspension is operative. Such an outcome here would not achieve the objectives of sentencing to which I have referred.
In resentencing it is appropriate to allow Mr Kearsley the 10 percent discount that the sentencing judge allowed for the utilitarian value of his guilty pleas. It would also be appropriate, for the reasons given by Harrison J in rejecting proposed ground of appeal two, that there be significant concurrency if separate sentences were to be imposed for the two offences, although the sentences would not be wholly concurrent. Further, a finding of special circumstances should be made in relation to fixing the non-parole period applicable to the aggregate sentence that I propose be imposed in respect of the two offences (s 44(2) Crimes (Sentencing Procedure) Act). These circumstances are Mr Kearsley's mental condition (which the evidence shows has worsened during his time in custody), the fact that it is his first time in custody and that he is aged 64 or 65. As the sentencing judge found, these circumstances justify fixing the balance of the proposed term of imprisonment to exceed one-third of the proposed non-parole period.
In conformity with s 53A of the Crimes (Sentencing Procedure) Act I record that I propose an aggregate sentence of imprisonment rather than separate sentences in respect of Mr Kearsley's two offences. The sentences that would have been imposed but for the imposition of an aggregate sentence are 15 months imprisonment in respect of the count 1 offence (s 38(a) of the Crimes Act 1900 (NSW)) and 6 months imprisonment in respect of the count 2 offence (s 61L of the Crimes Act). The aggregate sentence and the indicative sentences are arrived at after allowing the 10 percent discount for Mr Kearsley's guilty pleas, to which I have referred above.
For these reasons, I propose the following orders: 1. Grant leave to appeal. 2. Allow the appeal. 3. Set aside the sentence imposed on Mr Kearsley in the District Court on 26 August 2016. 4. Sentence Mr Kearsley to an aggregate term of imprisonment of 18 months commencing on 26 August 2016, with a non-parole period of 9 months. 5. Order that Mr Kearsley be released on parole on 26 May 2017, being the day that he will be eligible for release on parole.
HARRISON J: John Henry Kearsley seeks leave to appeal against the severity of the sentence imposed upon him by her Honour Hock DCJ on 26 August 2016. Mr Kearsley pleaded guilty on 15 October 2015 to one count of administering an intoxicating substance to another person with intent to commit an indictable offence contrary to s 38 of the Crimes Act and one count of indecent assault contrary to s 61L of the Act. These offences carry maximum penalties of 25 years and 5 years respectively with no standard non-parole period.

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