R v Fouad

District Court of NSW|2023-08-25|Before: Mr J

remarks on sentence

On 7 March 2023 the offender pleaded not guilty upon arraignment on an Indictment containing nine counts.
On 23 March 2023 the jury found the offender guilty on Counts 1 to 3 and Counts 5 to 9. Verdicts of not guilty were entered on Count 4 and the statutory alternative to that count.
The offender is therefore to be sentenced in respect of the following offences:- 1. Count 1 - aggravated indecent assault on PS, an offence pursuant to s61M(1) of the Crimes Act 1900. The maximum penalty prescribed for this offence is 7 years imprisonment with a standard non-parole period of 5 years. 1. Count 2 - aggravated indecent assault on HS, an offence pursuant to s61M(1) of the Crimes Act 1900. The maximum penalty prescribed for this offence is 7 years imprisonment with a standard non-parole period of 5 years. 1. Count 3 - aggravated indecent assault on HS, an offence pursuant to s61M(1) of the Crimes Act 1900. The maximum penalty prescribed for this offence is 7 years imprisonment with a standard non-parole period of 5 years. 1. Count 5 - aggravated sexual touching without consent (person under authority), an offence pursuant to s61KD(1)(a) of the Crimes Act 1900. The maximum penalty prescribed for this offence is 7 years imprisonment with a standard non-parole period of 5 years. 1. Count 6 - aggravated sexual touching without consent (person under authority), an offence pursuant to s61KD(1)(a) of the Crimes Act 1900. The maximum penalty prescribed for this offence is 7 years imprisonment with a standard non-parole period of 5 years. 1. Count 7 - aggravated sexual touching without consent (person under authority), an offence pursuant to s61KD(1)(a) of the Crimes Act 1900. The maximum penalty prescribed for this offence is 7 years imprisonment with a standard non-parole period of 5 years. 1. Count 8 - intentionally sexually touch a child above the age of 10 years and under the age of 16 years, an offence pursuant to s66KB(a) of the Crimes Act 1900. The maximum penalty prescribed for this offence is 10 years imprisonment. There is no standard non-parole period prescribed. 1. Count 9 - aggravated sexual touching without consent (person under authority), an offence pursuant to s61KD(1)(a) of the Crimes Act 1900. The maximum penalty prescribed for this offence is 7 years imprisonment with a standard non-parole period of 5 years.

The sentence hearing

The sentence hearing took place on 25 August 2023. The following is my summary of facts which may be derived from the jury verdicts in respect of each count and upon which the offender is to be sentenced:-
Count 1 concerned the victim PS. The evidence established that PS first consulted the offender about getting braces in early 2015 when she was 15 or 16 years of age. Initially one of her parents would attend her treatments at the dental practice that she attended at first every two weeks and later her visits became monthly. Eventually she became confident enough to go by herself.
On a particular occasion she went by herself. During the procedure she felt the offender's private part pressed against her thigh and he placed his hand on her breast. She described feeling a lot of pressure and felt that it was unnecessary pressure whilst he was working on her teeth. PS gave evidence that it first started a few months into her treatment and then in started happening on almost every visit. At first she thought it was an accident but when it started happening regularly she gave evidence that she did not think it was a mistake and she did not think that it was not intentional.
Count 1 was an occasion where she felt extremely uncomfortable. She was wearing denim shorts and was undergoing a lengthy procedure. During the procedure she could feel his private part pressed against her thigh and he was constantly placing his hand against her breast with pressure. The offender pressed his private part against her thigh for maybe 20 to 30 seconds, and it happened a few times in the one visit. The offender was wearing his dental scrubs and she described the feeling when he was pressing on the top part of her thigh as very warm and "almost like a slug but a warm slug" on her thigh. She manoeuvred herself to the left of the chair to move her thigh away from the offender.
Counts 2 and 3 concern the victim HS who attended the offender's surgery on 10 November 2016 for a root canal therapy. During the procedure she could feel the offender's groin area pressed against the top of her right arm and it felt "like a bulge like a sausage" pressed against her arm. She could not estimate the time that occurred for but said that it was a long time because of the pain she was suffering and him pressing against her arm. She did not say anything about it but eventually said she needed to get up and when she did so she observed the offender to move back and adjust an erection beneath his clothing.
Count 3 concerned the next occasion HS attended for root canal therapy on 16 November 2016. On this occasion during the procedure the offender's penis was pressing against her bare right arm between the elbow and shoulder. She could feel direct contact of his penis on her arm and his gown was lifted over her arm. It went on for around five minutes during which she could feel a bare sausage like skin rubbing against her arm. HS was in pain during the procedure and told the offender she had to get up. When she got up and went to the bathroom she observed him adjusting his erection beneath his clothes.
Counts 5 and 6 concerned DH who consulted the offender in 2019 for braces. She attended monthly and then fortnightly, for that treatment. Count 5 concerned an occasion in 2021 when she was 16 years old. During the procedure DH was in pain and crying and the offender said to her, "its not pain, its just pressure". During the procedure she felt something hard pressing against her head and this happened quite a few times. It was his erect penis. She felt very paralysed and scared because she was in a very vulnerable position and could not defend herself. Following the appointment she complained to her brother.
Count 6 concerned another occasion when she was supposed to take her brother with her to the appointment, but he could not attend. On this occasion the offender again pressed his crotch into her right arm for about 20 minutes. He was wearing pants. During the procedure he also placed his hand on her breasts.
Count 7 concerned MP who attended the offender's clinic on 5 June 2021. After two X-Rays she was advised that she required a procedure to remove her wisdom tooth to which she consented. Following extraction of the tooth the offender had to stitch her gum and during the procedure he was placing the dental tools on the top of her chest and massaging her left cheek.
The offender closed the door and removed his penis from his pants and covered it with his shirt. He was standing to her right side and reaching over to massage her cheek and she described him as making a sound like a moaning sound. Whilst he was massaging her jaw MP felt the offender's genital area rubbing against her head. She described it as a hard penis under his pants pressing against her head which went on for about 30 seconds to a minute. MP felt in shock and humiliated and then after 30 seconds it stopped and the offender left the room. When he returned he sat on the dentists chair bent forward with both arms between his legs.
Counts 8 and 9 concerned the victim TK who attended the offender's surgery in 2019 when she was 14 years of age for braces. TK gave evidence that the offender called her Habibi meaning "my love" and "bubba" in Arabic when she attended. He told her she had a nice face and could be a model for his business.
Count 8 concerned an occasion when she was lying supine in the dental chair with her head very close to his groin and thighs. She felt a thrusting motion against the back of her head which she described as, "it felt like he was erecting", meaning that his penis was getting hard. This went on for 3-4 minutes and she described it as a very subtle movement. This occurred in February 2021 when she was 15 years of age.
Count 9 concerned a second occasion when she was 16 years old and again was attending alone and laying supine in the dental chair. On this occasion she remembered sliding herself down on the chair so the offender would not be able to thrust against her again. She described her head being on his knees when he did the same thing but on this occasion it lasted for less than 3-4 minutes. His penis was touching the back of her head, but it didn't last as long because she kept trying to move herself down the seat.
The jury verdicts of guilty to Counts 1-3 and Counts 5-9 on the Indictment meant that the jury rejected the accused's denial of ever intentionally sexually touching any of the five complainants or doing so for sexual gratification. The jury also rejected his explanation that a combination of him suffering two medical conditions, (namely, deep veinous thrombosis ("DVT"), for which he was required to wear compression stockings, together with a lichen planus infection which he treated with anti-inflammatory cream), as well as the fact that during each treatment he wore a dental loupe being a head strap with lamp operated by a battery which was located on a belt around his waist, at the front of his body, which had caused the complainants or some of them to have a mistaken belief as to what in fact was in contact with them, as the battery itself became warm.

The sentence hearing

After a delay in obtaining various reports, the sentence hearing took place on 25 August 2023. The Crown Sentence Summary became Exhibit A. It included the NSW Police Force report showing the offender had no criminal convictions and a Sentencing Assessment Report ("SAR") under the hand of S Caylioglu dated 24 May 2023. The author noted that the offender, who was born on 22 June 1967, came to Australia in 2000 from Egypt. He was married with two adult children and owned businesses in the dental industry. Under the heading "Attitudes" the offender denied his behaviour to hold any sexualised connotation. The author noted "he suggested his actions were a result of medical issues and suggested he was relieving discomfort."
The author noted he was currently suffering from anxiety and depression for which he was receiving treatment. Under the heading "Insight into impact of offending" the author noted that despite denying sexual gratification the offender acknowledged the impact on his patients and that his actions would have affected his patients' trust for the medical system as a whole.
The offender was assessed as a medium risk of reoffending and the author set out a supervision plan.
Annexed to the SAR was a Case Note Report from a Justice Health psychologist who assessed the offender's risk of sexual recidivism. The offender was assessed as an average risk of sexual reoffending based on the Static-99R risk assessment. It was noted that if sentenced to custody he would be ineligible for custody based sex offender programs due to his risk rating, but would instead be eligible for Alternative Intervention Pathways to address his criminogenic needs. If sentenced to the community he would be referred to the CSNSW Psychologist for risk assessment, management and treatment.
Exhibit A also included two Victim Impact Statements ("VIS") from HS and DH which were read in court on their behalf by Ms L Claydon. The VIS' are referred to below.

Documentary evidence relied on by the offender

The offender relied on a bundle of documents which became Exhibit 1.1 to 1.31. Exhibit 1.1 is a report from Dr T A Brighton, consultant haematologist dated 30 June 2023 regarding his treatment of the offender since 2001 when he presented with an unprovoked acute symptomatic pulmonary embolism and left leg DVT and was admitted to St George Hospital. He had a past history of unprovoked right leg DVT in 1992 when he was aged 27 years. He was treated with long term anticoagulation to prevent recurring vein thrombosis and was treated with warfarin until 2019. He suffered a further incident of right leg DVT in July 2010 which also required admission to hospital.
Dr Brighton expressed concern following his initial presentation for the potential development of post-thrombotic syndrome, given the offender's profession working long hours as a dentist was a significant risk factor for the development of venous insufficiency. He was advised to wear compression stockings; however he developed extensive varicose veins and bilateral venous insufficiency of both legs by 2007. By 2010 he had developed extensive bilateral varicosed veins and he undertook vein surgery in 2017. Around 2010 he also developed itching of the legs due to veinous eczema which symptoms relentlessly progressed over the years. He was diagnosed with secondary lichen planus in 2017-2018 which was treated with topical steroids. Dr Brighton described the symptoms as an "unremitting itch" and a severe symptom. Whilst he had not experienced recurrent vein thrombosis or anticoagulation now for 13 years, he would likely experience acute thrombosis if his therapy was to be interrupted for any reason. He is currently medicating on Apixaban 5 mg twice daily and Dr Brighton opined, "even 1 or 2 missed doses could potentially provoke recurrent acute thrombosis, including recurrent acute pulmonary embolism. Recurrent vein thrombosis has an acute case fatality rate of approximately 10%".
Dr Brighton further opined that the offender's physical condition is severely impaired and that he has continued to work long hours on his feet as a dentist is a testament to his dedication to his patients and his profession. He has a completely incompetent deep and superficial veinous system in both legs with chronic swelling, extensive varicose veins affecting the whole legs and severe veinous eczema with chronic severe unremitting itching, which he unconsciously itches. The affected areas are his legs, groin and scrotum. The only available treatments are topical creams, together with class II compression stockings which must be replaced every few months.
Dr Brighton further opined that the offender is at significant risk of skin ulceration and serious infection, putting him at risk of skin infection, cellulitis and septicaemia. Thus, Dr Brighton opined that he had significant concerns regarding the offender's ability to manage his medical conditions effectively in the event of a custodial sentence. Should any injury occur to his legs, he would need immediate medical assessment and ongoing medical support, i.e. dermatology, GP and psychological support to manage he unrelenting symptoms.
Exhibit 1.2 was a letter from Dr Y White dated 23 May 2023. Dr White is a psychiatrist who is treating the offender. She noted he had been suffering from recurrent depression since 2015 and has been on anti-depressants since 2020. She opined that if he received a custodial sentence his depression would worsen and he would be at risk of self-harm and possible suicide. She further opined that any break in his treatment would risk DVT, pulmonary emboli and death, and that he would not be able to deal with incarceration and would be a real suicide risk.
Exhibit 1.3 was a letter from the offender expressing his remorse and apologising to the victims stating, "I am sorry for their pain for any harm I caused to themselves and their families, such that an action of this nature had to be brought forward". The offender stated that he was despondent at the thought that he caused such distress to his patients and stated, "I admit to my unintentional touches as it was where mistakes were made. I take responsibility for my actions in my dental practice. I understand and am now aware of how I affected them and that the behaviour was unacceptable and has significantly impacted on them. I take full responsibility for my actions and am committed to making amends."
The offender went on to state that he could only imagine how frightening, painful and distressing it was for the victims. It had also impacted on him severely.
Exhibit 1.4 was a letter from the offender's wife who has known him since 2016 and described him as "morally upright". She advised that the offender supports a number of families and underprivileged people in Egypt, as well as assisting countless patients who lack the funds to pay for dental treatment. She also described the offender as having a constant pursuit of new academic endeavours.
Exhibit 1.5 was a letter from Ms G Eid, the offender's sister-in-law, who is a social worker and has known the offender for over twenty years. She described him as "diligent, ethical, simple and kind", who had supported her disabled husband and daughter financially. He had also supported children via a charitable organisation in Egypt.
Exhibit 1.6 was a letter from Mr E Fouad who is the offender's brother who lives in Canada. Mr Fouad referred to the offender's health problems which are "chronic, continuous and dangerous" and the fact that the offender works hard and helps his family financially.
Exhibit 1.7 was a letter from Ms J Imrie, a patient of the offender for approximately 19 years. She described him as "an extremely trustworthy and respectable person" and she always felt safe in his practice. She had recommended him to many female family members, friends and work colleagues and had never heard any complaints from them about the offender.
Exhibit 1.8 was a letter from Monsignor M Sousanian dated 18 August 2023. The author is the Patriarchal Vicar of the Armenian Catholic Church in Australia and New Zealand who had known the offender for over 11 years. During that time the offender had contributed greatly to the community, in particular by way of his leadership in refugee resettlement projects. He described the offender as "a person of integrity, honesty and compassion. He is always willing to lend a helping hand and has a heart for those who are less fortunate." He opined that the offender continues to make a positive contribution to society at every available opportunity.
Exhibit 1.9 was a letter from Dr E Ishak dated 19 August 2023 who had known the offender since 1985. He described the offender as his mentor and as a very successful dentist with a genuinely simple, kind nature who was always helping and supporting others. The author was aware of the offender's medical issues and the support he provided to his extended family.
Dr Ishak also described the concentration and discipline required in the practice of dentistry and the need to adjust one's posture to get closer to the patient to gain accessibility and visibility to the mouth.
Exhibit 1.10 was a reference from Father J Ishak dated 19 August 2023 who is the offender's parish priest. He had known the offender for over 33 years and stated that the offences contradict the character, values and morals that he knows and respects in the offender. He set out the extensive community work that the offender and his family are involved in. He stated he had "made immeasurable contributions to his neighbourhood". He was also aware that he had suffered severe medical conditions that had significantly affected the offender's health and work over a period of 22 years.
Exhibit 1.11 was a letter from Mr S Georgy and Ms A Shohdy, who first met the offender in 1996 when their family and the offender had emigrated from Egypt to New Zealand. Their families have remained close and he was described as "an extremely trustworthy, kind and respectful man".
Exhibit 1.12 was a letter from Ms L Mina dated 18 August 2023 who has known the offender since 2001. She described him as having "excellent moral character", and the offending did not fit his character. He was described as a highly successful dentist with a genuinely good heart who was always willing to lend a hand and support others in the community. She was aware of his medical conditions and the treatment he had undertaken and the financial support he had provided to his extended family.
Exhibit 1.13 was a letter from B Ghobrial dated 20 August 2023 who had known the offender for over 15 years and described the offences as "a completely uncharacteristic aberration". He described the offender as "an upstanding member of the Coptic community and a person of good character". He noted his charitable work and his ongoing chronic medical conditions.
Exhibit 1.14 was a letter from Father P Balamon dated 20 August 2023 who had known the offender since 1998, as his family's dentist. The offences contradicted the morals and principles that he shared with the offender. He also stated that as a patient of the offender he was a competent and caring professional.
Exhibit 1.15 was a letter from Mr M Luu dated 27 April 2023 who had known the offender since he was 17 years old. He described the offender as a highly skilled and knowledgeable dentist who always put the wellbeing of his patients first. The author stated that he had never witnessed the offender engage in any behaviour that could be considered inappropriate or disrespectful towards women and children. He was described as "a compassionate and empathetic person who was always looking for ways to help others, and his charitable efforts have touched the lives of many people in our community." He described the offender as a person of impeccable character.
Exhibit 1.16 was a letter from N Kirolos dated 21 August 2023 who had known the offender for 13 years as his family dentist. He was also studying dentistry and the offender had mentored him, providing the opportunity for him to "overshadow him" in the offender's clinic. He described the offender as displaying "a significant amount of professionalism, respect, kindness and excellent communication skills." He further described him as a role model.
Exhibit 1.17 was a letter from M Nessim dated 21 August 2023. She first met the offender in 1997 in New Zealand and their families became close. She expressed that she was genuinely shocked by his convictions which were in stark contrast to the personality and character she had come to know.
Exhibit 1.18 was a letter from Ms M Matta dated 21 August 2023. She knew the offender growing up in Egypt and studied dentistry, although she was five years younger than the offender. She worked for him as a dental nurse from 2008 to 2010 and she described him as being "honest, straight forward, loving and kind." She stated that he always treated his patients with respect and never used inappropriate language or behaviour.
Exhibit 1.19 was a letter from Ms N Ellis dated 21 August 2023 who was a patient of the offender's for the last 10 years. She described him as providing excellent professional dental care for her whole family and had always found him to be an "honest, trustworthy and compassionate man".
Exhibit 1.20 was a letter from Mr and Mrs J Bower dated 21 August 2023 who have been patients of the offender for over 15 years. When made aware of the offences they described themselves as "incredulous, as to their content, as Sam always impressed us with his extremely high standards of his profession, his ethics, empathy and moral outlook."
Exhibit 1.21 was a letter from Dr A Baby who had worked as a dental assistant at the offender's clinic in 2016. When she qualified as a dentist, she started work at the Dental Centre in 2018 and had worked there ever since. She described the offender as a highly skilled and compassionate dentist who provided the highest level of care. The offences were in direct opposition to the character that governed her daily life with him.
Exhibit 1.22 was a letter from V Yousif dated 21 August 2023. She had first worked for the offender as a dental assistant in 2009 and they had become close friends. She described the offending as totally out of character for him.
Exhibit 1.23 was a letter from Ms S Saweres dated 21 August 2023. She stated that the offender was her family dentist for over five years and that she had complete trust in him. She had recommended him to others as an individual of "complete integrity and good morals".
Exhibit 1.24 was a letter from Mr L Hayes dated 20 August 2023. He had known the offender for ten years as his family dentist. He described the offender as being "caring, kind and trustworthy" and he had never experienced any inappropriate behaviour. He described the offender as "an outstanding dental professional and his character is trustworthy, reliable, extremely hard working and respectful."
Exhibit 1.25 was a letter from Ms S Chahine dated 26 April 2023. She had been a patient of the offender since 2019 and had major dental work carried out by him. She stated that he always conducted himself appropriately and she had complete confidence in him.
Exhibit 1.26 was a letter from Dr D Ishak who has known the offender for over 15 years as a member of his church. He described him as being of "excellent character, honest, sincere, faithful and a man of principle". The charges were not in keeping with the person he had known for all those years.
Exhibit 1.27 was a letter from Dr S Samuel dated 19 August 2023 who has known the offender for over 20 years as his personal dentist and close family friend. Dr Samuel described him as honest, supportive, a responsible dentist and a caring person. He described him as "a standout. He is passionate, trustworthy, smart, considerate and supportive individual who always generously lends a hand to friends in difficulty."
Exhibit 1.28 was a letter from B Youkhanis dated 19 August 2023. She worked as a dental assistant for the offender for 9 years and described him as "honest and trustworthy." He was also very hard working and the offences were out of character for him.
Exhibit 1.29 was a letter from M Genday dated 19 August 2023 who had known the offender for over 24 years as his accountant. He described him as an excellent dentist with "a trustworthy, reliable, incredibly hard working and respectful character."
Exhibit 1.30 was a letter from Dr M Ishak dated 19 August 2023 who described the offender as a man of great integrity. He had always been respectful, kind and caring towards him and everyone around him. He described the offender's dedication to his work and his patients as "unwavering".
Exhibit 1.31 was a letter from Ms L Mark confirming that the offender had been a member of the Coptic Orphans since 2018 and that two young people assigned to his care in Egypt depended on him for their needs. He had provided monthly support for them over the last five years.

The Crown submissions

The Crown relied on a detailed written outline of submissions in which it submitted that the gravity of the sexual offences was magnified by the circumstances in that it involved a breach of trust in each case with a patient reposed in a medical practitioner referring to R v Arvind (unreported) NSWCCA, 8 March 1996 per Grove J at [6]. Each of the counts (with the exception of Count 8) carried a maximum penalty of 7 years imprisonment and a standard non-parole period of 5 years. Count 8 carried a maximum penalty of 10 years imprisonment. The Crown noted that the victims had only consented to dental procedures and that the offending appeared to be opportunistic. All of the counts involved the offender pressing his groin area against the victims through his clothing, except for Count 3 which involved skin on skin contact with the offender's penis and the victim's arm. In relation to Count 7, the offender could be seen in the CCTV footage removing his penis from his pants, however it appeared that his dental apron was between his genitals and the victims head during the offence.
The Crown submitted that all the offences fell below the mid-range for offences of this type, but could not be said to fall at the lowest end of the range.
The Crown noted that the author of the Case Note Report assessed the offender as being an average risk of sexual reoffending based on the Static-99R. Potential dynamic risk factors included impaired problem solving and a sexual pre-occupation. Proximity to the victim was identified as an acute dynamic risk factor.
The Crown noted that if sentenced to fulltime custody the offender would be ineligible for custody based sex offender programs due to his risk rating.
The Crown submitted that given the offender's attitude and insight into the offending the Court would not make any positive findings of remorse. Given that he had no criminal record he was entitled to a finding of good character. The Crown submitted the Court would closely consider the weight afforded to the offender's good character as it was predominantly his good standing and his profession which allowed him to offend in the way that he did.
The Crown submitted that the following aggravating factors applied pursuant to s 21A(2) of the CSPA:- 1. Abuse of position of trust pursuant to s 21A(2)(k). The Crown submitted Count 8 is aggravated by the fact that the accused was in a position of trust being the victim's dentist. In relation to the remaining offences, the elements of each offence already contained an aggravation of under authority and that should not be double counted as an abuse of position of trust. 1. The victims were vulnerable pursuant to s 21A(2)(l) The Crown submitted that patients are extremely vulnerable in medical situations, however this was already partially accounted for in the aggravation of being "under authority".
The Crown submitted that the following mitigating factors applied pursuant to s 21A(3) of the CSPA:- 1. The offending was not part of a planned or organised criminal activity pursuant so s 21A(3)(b). 2. The offender does not have any criminal record pursuant to s 21A(3)(e). 3. The offender was a person of good character pursuant to s 21A(3)(f). 4. The offender is unlikely to reoffend pursuant to s 21A(3)(g). It was noted that the findings of guilt meant that he would be unlikely to be permitted to register and practise as a dentist again.
The Crown noted that a finding of special circumstances could be made on the basis of the age of the offender, the fact that it was his first time in custody and the medical conditions suffered by him.
The Crown submitted that the purposes of sentencing meant particular emphasis should be placed on general and specific deterrence and the fact of their being multiple victims must lead to some accumulation to reflect the distinct criminality of the offences.
The Crown submitted that the s 5 threshold has been crossed and no penalty other than fulltime imprisonment was appropriate. An ICO is not available in relation to Count 8 as the victim was a child at the time of the offence.
In his oral submissions, the Crown conceded that the offender's good character was not in dispute, but relying on R v Ibrahim [2021] NSWCCA 296 at [2], submitted that it was necessary to bear in mind that prior good character was a requisite for registration as a dentist, which placed the respondent in a position where he had professional access to the victims who were entitled to expect that he would treat them "properly, responsibly and with respect".
The Crown further submitted that it accepted the offender's medical conditions, noting there had been no recurrence of his DVT for a period of 13 years. Although his medical conditions were dependent on a regime of treatment in relation to the eczema and varicose veins, these were conditions that could be managed by Justice Health in custody. Further, the provision of antidepressants referred to in Exhibit 1.2 could be managed in a custodial sentence so as to mitigate the risk of suicide.
With respect to the offender's expression of remorse in Exhibit 1.3, the Crown submitted that it amounted to a form of remorse only given that he was maintaining his innocence. It was therefore a matter of weight to be taken into account and not remorse in its true sense as a mitigating factor.
The Crown noted the treatment plan referred to in the SAR and also the reference in the Case Note Report that the offender would be ineligible for custody based sex offender programs. The Crown submitted that the purposes of sentencing contained in s 3A of the CSPA meant that a community based order would not provide adequate punishment here given the need for denunciation and also taking into account the harm caused to the victims. The Crown rehearsed it's submission that the s 5 threshold had been crossed.

The offender's submissions

Counsel for the offender also relied on a detailed written outline of submissions. It was submitted that the following matters were relevant to the assessment of objective seriousness of each of the offences:- 1. "The nature of the touching. Save for Count 3, the contact or touching was not one of skin on skin, there being a barrier of clothing between the offender and the patient; 2. That the touching was of relatively limited duration; 3. The sexual misconduct can be appropriately characterised as opportunistic. 4. That it is acknowledged that save for Count 8, an element of each offence was that the named patient was under the authority of the offender at the relevant time. In respect of Count 8, notwithstanding the offence does not contain this element, it is accepted that it would the court would (on the facts) to similarly assess the offending as being committed in a similar context (sic). 5. That there were five separate victims. 6. The period of time over which the offending spanned. It is noted that the offending is continuous. There appears to be a break in the indictment periods between 2016 and 2021; 7. The age disparity between offender and victim; and 8. The vulnerability of the patient victim."
Counsel also acknowledged that the assessment of objective seriousness was to be carried out on the basis of facts derived from the evidence at trial accepted by the jury in full of each witness in respect of the offender either placing or pressing his penis or groin against the head or on the area of the arm of the various victims.
It was submitted that in respect of Counts 1, 2 and 5 to 9, the criminality was to be assessed against a wide spectrum of conduct caught by the respective legislation and that the maximum penalties prescribed contemplated criminal conduct far more serious than that engaged in by the offender. It was conceded that the offending would be regarded as serious, however it was submitted that the objective seriousness for each of those counts fell below the mid-range.
In respect of Count 3, the offender accepted that the skin-on-skin contact, between the offender's penis and the victim's arm, elevated the objective seriousness above that of the other counts. It would still fall slightly below the mid-range.
Counsel submitted that the offender's good character could be taken into account as a mitigating factor and that this was not a case where the offender used his lack of convictions and good character to obtain access to the victims in order to commit the offences.
Counsel referred to the significant subjective case of the offender who was now 56 years old. He had otherwise led an exemplary life both in respect of his professional career and in support of his family and his contribution to the community. It was submitted that the court would accept that his offending was out of character based on the numerous testimonials provided to that effect.
On the question of remorse, counsel acknowledged that the offender's remorse expressed in Exhibit 1.3 was made in the context of him maintaining his innocence in respect of each count. Notwithstanding that the Court could take into account the offender's (albeit limited) regret and insight into his conduct.
Counsel also referred to the assessment of the offender in the SAR as a medium risk of reoffending and the opinion of Ms Barton that he was assessed as an average risk of sexual reoffending. Notwithstanding the offender's lack of clear remorse, it was submitted this his prospects of rehabilitation are reasonable to good.
Counsel acknowledged the importance of deterrence in sentencing in relation to child sexual offences, as well as the denunciation. It was submitted given his age, professional standing and reputation, the very fact of his conviction and sentence would be sufficient deterrence to him specifically, and more generally, as well as providing a very public denunciation of his conduct.
Counsel acknowledged the terms of s 5(1) and submitted that it reflects the accepted principle that imprisonment is a sentence of last resort.
Counsel invited the Court to take into account the time the offender spent on strict conditional bail prior to his trial. It was submitted that that provides a tangible indication that the offender has the capacity to abide by conditions imposed by the court.
Counsel submitted that the purposes of sentencing as set out in s 3A of the Act would be adequately achieved by the imposition of a lengthy Community Corrections Order with appropriate conditions, instead of imposing a sentence of imprisonment. If a custodial order was made, the offender's medical conditions would make his time in custody more onerous and would be the basis of a finding of special circumstances.
In his oral submissions, counsel submitted that the VIS' of HS and DH read in court should not be taken into account as an aggravating factor on sentence. Rather, the statements outlined what would be regarded as the normal consequences to victims of this type of offending.
Counsel submitted that the opinions of Dr White in Exhibit 1.2 would be accepted as the Crown did not require that witness for cross-examination.
Counsel rehearsed his submissions in relation to the good character of the offender to submit that his lack of convictions and good character did not assist him to carry out the offending. Rather it was agreed that the offending was opportunistic, so that no question of the offender deliberately using his good character to gain access to the victims could arise.
Counsel rehearsed his submissions in relation to the offender's remorse and submitted that he had demonstrated sufficient insight into his conduct to demonstrate genuine regret for his offending conduct. In the context in which this offending occurred it is unlikely to be repeated.
Counsel rehearsed his submissions relating to the assessment of objective seriousness of the offending, recognising that Count 3 was the most serious offending, but still slightly below mid-range.
Counsel highlighted the significant subjective case brought on behalf of the offender who was viewed very highly indeed by his family, community and patients. His offending had brought shame on an otherwise exemplary and good life and was entirely out of character according to the testimonials in Exhibit 1. Having regard to his character, the Court would find that he had reasonable to good prospects of rehabilitation.
Counsel concluded by rehearsing his submissions in relation to s 5 of the CSPA. It was submitted that the very fact of conviction and sentence here would fulfill the purposes of sentencing, as set out in s 3A of the CSPA and meet the need for deterrence and public denunciation. It was submitted the community would be better served by a non-custodial sentence and the Court would be reassured that he would comply with any conditions, given his compliance with strict bail conditions prior to trial.

Determination

S 3A of the CSPA sets out the purposes of sentencing as follows:- "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community".
It was not in dispute that the objective seriousness of each of the eight offences fell below the mid-range for an offence of its type. Notwithstanding that each offence involved a breach of trust reposed in the offender as a dentist providing dental treatment, all of the offending was opportunistic in nature, which is entirely different to offending that involves systematic abuse of patients - see R v Ibrahim at [43].
Count 1 involved the victim PS undergoing a lengthy procedure in the dental chair, during which she could feel the offender's private part pressed against her thigh for between twenty and thirty seconds and it happened a few times. She had to manoeuvre herself on the chair to move her thigh away from the offender. Given the short duration and the circumstances, this fell toward the bottom of the range for an offence pursuant to s 61M(1) of the Crimes Act, which section applies to a broad range of criminal activity amounting to aggravated indecent assault.
Count 2 concerned the victim HS who was undergoing root canal therapy, during which she could feel the offender's groin area pressed against the top of her right arm. She could not estimate the time during which this occurred but said that this was a long time and when she got up, she observed the offender move back and adjust an erection beneath his clothing. In all of the circumstances this was objectively serious offending in the middle of the low range for an offence pursuant to s 61M(1) of the Crimes Act.
Count 3 concerned the next occasion on which HS attended for root canal therapy. On this occasion, whilst in the dental chair, she could feel the offender's penis in direct contact with her bare arm between the elbow and shoulder which went on for about 5 minutes. She told the offender she was in pain and had to get up, and when she did so she observed him to be adjusting an erection beneath his clothes. Given that there was skin on skin contact, this was objectively serious offending in the upper part of the low range for an offence pursuant to s 61M(1) of the Crimes Act.
Count 5 concerned the victim DH who was 16 years old when she was undergoing a dental procedure and in pain. She felt something hard pressing against her head quite a few times and it was the offender's erect penis. She felt very vulnerable at the time. This was also serious offending falling in the middle of the low range for an offence pursuant to s 61KD(1)(a), which offence is applicable to a wide range of criminal conduct amounting to aggravated sexual touching without consent.
Count 6 also involved the victim DH who was undergoing a dental procedure when the offender pressed his crotch into her right arm for about 20 minutes. During the procedure he was wearing scrubs and he also placed his hand on her breasts. In all of the circumstances this amounted to serious offending in the middle of the low range pursuant to s 61KD(1)(a) of the Crimes Act.
Count 7 concerned the victim MP who had undergone a procedure involving the extraction of a wisdom tooth. Following the extraction the offender had closed the door to the surgery and removed his penis from his pants and covered it with his shirt. He was standing to her right side reaching over to massage her left cheek and whilst doing so was making what sounded like a moaning sound. At the same time MP could feel the offender's genital area rubbing against her head and what she described as a hard penis. It went on for 30 seconds to a minute, following which the offender left the room. This was objectively serious offending above the middle of the low range for an offence pursuant to s 61KD(1)(a) of the Crimes Act.
Count 8 involved the victim TK who was 14 when she commenced treatment for the application of braces to her teeth. She was lying supine in the dental chair with her head very close to the offender's groin and thighs. She felt a thrusting motion against the back of her head, which she described as feeling like his penis getting hard. This went on for three or four minutes and she described it as a very subtle movement. This was serious offending in the middle of the low range of objective seriousness for an offence pursuant to s 66KB(a) of the Crimes Act, which does apply to a wide range of criminal conduct amounting to intentionally touching a child above the age of 10 years and under the age of 16 years.
Count 9 also concerned the victim TK when she was 16 years old and again lying supine in the dental chair. On this occasion she described him as doing the same thing, that lasted for less than three to four minutes. She remembered sliding herself down the chair so that he was unable to touch the back of her head with his penis. This was also objectively serious offending, in the middle of the low range for an offence pursuant to s 61KD(1)(a) of the Crimes Act 1900.
It was an aggravating factor in respect of Count 8 that the offender abused a position of trust as a dental health provider pursuant to s 21A(2)(k) of the CSPA. I have not double counted this in respect of the balance of the offences as the elements of each offence already contained an aggravation of being under authority.
A further aggravating factor pursuant to s 21A(2)(l) was that each of the victims were vulnerable, given that they were being given treatment. Notwithstanding that, I have been careful not to double count the aggravation of being under authority.
I find all of the offences were opportunistic and the following mitigating factors apply pursuant to s 21A(3):- 1. The offending was not part of a planned or organised criminal activity pursuant so s 21(3)(b). 2. The offender does not have any criminal record pursuant to s 21A(3)(e). 3. The offender was a person of good character pursuant to s 21A(3)(f). 4. The offender is unlikely to reoffend pursuant to s 21A(3)(g). It was noted that the findings of guilt meant that he would be unlikely to be permitted to register and practise as a dentist again. I will refer to the offender's lack of criminal convictions and good character below.
General deterrence is important in sentencing for sexual offending against children, whether it be by way of aggravated indecent assault, aggravated sexual touching or intentional sexual touching, as outlined above. A clear message must be sent to the community that Parliament has prescribed lengthy periods of imprisonment as maximum penalties for such child sexual offending and that the courts will impose condign punishment in appropriate cases. Specific deterrence is also important in the sentencing process as the offender must understand the seriousness of his conduct and the serious consequences of any repeated offending.
I accept that in his letter of apology the offender, who pleaded not guilty to the charges on the Indictment and maintains his innocence, has expressed limited remorse and insight into his offending by expressing his regret for its impact on the victims. In Brzozowski v R [2023] NSWCCA 129, the Court of Criminal Appeal held that acceptance of responsibility and remorse are distinct concepts and at [56] Rothman J stated, "there is a significant difference in principle between regret for the consequences of conduct and contrition for the conduct… remorse is contrition or shame at the commission of the offence, not its consequences." Given the limited remorse here, whilst I take it into account, it is not to be given much weight in the sentencing process.
Having regard to the abundance of evidence speaking to the exemplary character of the offender in the testimonials outlined above from family, senior members of his church, staff members and patients, the offender's good character, and his lack of previous convictions does weigh heavily in the sentencing process. I take into account his contribution to his community, not only as a provider of dental services but also his support both physical and financial to various charitable causes and I accept the various opinions expressed that the offending was entirely out of character for him. This is to be given significant weight in the sentencing process, together with the long history of medical ailments, including development of DVTs with the requirement to wear compression bandages, as well as the development of a lichen planus infection, affecting his legs and groin with an unrelenting itch. I also accept that these conditions, together with the onset of his depressive symptoms, are ongoing, life threatening in respect of the DVT, and require ongoing daily treatment with the potential for significant detriment to the offender in the event that such treatment should be unavailable to him.
I take into account the maximum penalties for each of the offences, namely 7 years imprisonment with a standard non-parole period of 5 years for Counts 1, 2, 3, 5, 6, 7, and 9 and the maximum penalty of 10 years imprisonment for Count 8. The maximum penalties and standard non-parole periods prescribed by Parliament indicate the seriousness with which Parliament views such criminal offending and are guideposts in the sentencing process. Given my findings as to the objective seriousness of the offending in Counts 1, 2, 3, 5, 6, 7 and 9 being below mid-range, the standard non-parole period of 5 years imprisonment does not apply.
Notwithstanding that the offender has been assessed as an average risk of sexual recidivism the fact of his conviction and sentence will mean that he will be unable to re-register as a dentist, that his position in the community has been publicly shamed and given his lack of access to potential victims, I would assess his risk of recidivism as being low. I would also assess his prospects of rehabilitation, notwithstanding that he has maintained his innocence, to be reasonable given his age and high level of education.
The VIS' read in court on behalf of two of the victims were both poignant examples of the impact of sexual offending on children and young people, which the Court has recognised may be profound and endure for extended periods, and sometimes for the extent of their life. I have taken into account the VIS', but as they are not supported by medical evidence, I have not taken them into account so as to aggravate the seriousness of the offender's criminal conduct.
As outlined above, the offender's good character is a significant mitigating matter to be taken into account given that the offender has made a positive contribution to society. I find that it was no doubt a prerequisite for registration as a dentist, but did not of itself provide him with access to the victims in what could only be described as opportunistic offending. Like the Court in R v Ibrahim, I find that in the context of the offender's background and life story, this offending is difficult to understand (see [68]). There the Court said:- "The results of the conduct were predictable. Had the respondent paused to consider his actions, he would surely have realised the likely reaction and what he was putting at stake. It is difficult to accept that (to the extent he thought about it at all), the respondent thought he might get away with such conduct."
I am mindful, as held in Kearsley v R [2017] NSWCCA 28, that subjective considerations must not be allowed to cause inadequate weight to be given to the objective seriousness of the offending. However here, where the objective seriousness in respect of each offence is within the low range, appropriate weight must be given to the significant subjective case brought on behalf of the offender. That includes his prior exemplary character, lack of previous convictions, contribution to his community, as well as his medical and psychological conditions. I accept the evidence that establishes his need for constant daily medication and treatment, the serious consequences if such treatment is not provided in a custodial sentence, and Dr White's opinion that in a custodial setting he would be at risk of self-harm and possible suicide. In Geraghty v R [2023] NSWCCA 47 at [106], in finding that illness and poor health can mitigate both the type and length of a sentence the Court said: "When illness or poor health is relied on as a basis for mitigating the type and length of a sentence, there are two relevant principles in play. The first is that the weight to be given to illness or poor health is to be assessed in light of "all the circumstances of the case, and an appropriate balance has to be maintained between the criminality of the offender and any damage to health or shortening of life": R v Achurch. [95] The second was identified by King CJ in R v Smith: [96] "The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill-health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his [or her] state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health."" See also Can v R [2023] NSWCCA 179 at [62]. Given the constellation of medical and psychological conditions suffered by the offender I find that imprisonment would be a greater burden on him, and would give rise to a serious risk of having a gravely adverse effect on his health, given his need for constant daily treatment and medication needs. I therefore take this into account as a mitigating factor.
Taken individually, none of the offences cross the threshold in s 5 of the CSPA warranting a sentence of imprisonment. I have taken into account that there are five separate victims and that the offending occurred over a period of years, however each offence was of very short duration and only Count 3 involved skin on skin contact. All of the offending was opportunistic and the combination of all of the offences does not warrant a finding here that, having considered all possible alternatives, no penalty other than imprisonment is appropriate pursuant to s 5 of the CSPA. This is a case where the recording of a conviction (while inevitable) is a significant part of the punishment imposed. As stated by Dhanji J in R v Ibrahim at [65]:- "…apart from the disapprobation inherent in the recording of a conviction generally, the conviction in this case represented the loss of what the respondent had built by way of his good character."
I have taken into account the offender's compliance with strict bail conditions since his arrest, which provides some reassurance that the offender will comply with conditions imposed in respect of a community-based sentence. I am satisfied here that the fact of the conviction for the 8 offences and a community-based sentence with stringent conditions will, in this case, satisfy the purposes of sentencing set out in s 3A of the CSPA, particularly denunciation and punishment, recognising the harm done to the victims.
I therefore propose to sentence the offender in respect of each of the offences as follows:- 1. Count 1 - aggravated indecent assault on PS, an offence pursuant to s61M(1) of the Crimes Act 1900. The offender is convicted and is to serve a Community Corrections Order pursuant to s 8 of the CSPA for a term of 12 months. 2. Count 2 - aggravated indecent assault on HS, an offence pursuant to s61M(1) of the Crimes Act 1900. The offender is convicted and is to serve a Community Corrections Order pursuant to s 8 of the CSPA for a term of 18 months. 3. Count 3 - aggravated indecent assault on HS, an offence pursuant to s61M(1) of the Crimes Act 1900. The offender is convicted and is to serve a Community Corrections Order pursuant to s 8 of the CSPA for a term of 2 years and 6 months. 4. Count 5 - aggravated sexual touching without consent (person under authority), an offence pursuant to s61KD(1)(a) of the Crimes Act 1900. The offender is convicted and is to serve a Community Corrections Order pursuant to s 8 of the CSPA for a term of 18 months. 5. Count 6 - aggravated sexual touching without consent (person under authority), an offence pursuant to s61KD(1)(a) of the Crimes Act 1900. The offender is convicted and is to serve a Community Corrections Order pursuant to s 8 of the CSPA for a term of 18 months. 6. Count 7 - aggravated sexual touching without consent (person under authority), an offence pursuant to s61KD(1)(a) of the Crimes Act 1900. The offender is convicted and is to serve a Community Corrections Order pursuant to s 8 of the CSPA for a term of 3 years. 7. Count 8 - intentionally sexually touch a child above the age of 10 years and under the age of 16 years, an offence pursuant to s66KB(a) of the Crimes Act 1900. The offender is convicted and is to serve a Community Corrections Order pursuant to s 8 of the CSPA for a term of 18 months. 8. Count 9 - aggravated sexual touching without consent (person under authority), an offence pursuant to s61KD(1)(a) of the Crimes Act 1900. The offender is convicted and is to serve a Community Corrections Order pursuant to s 8 of the CSPA for a term of 18 months.

Orders

I hereby order as follows:- 1. You are hereby convicted of the following offences:- 1. Count 1 - aggravated indecent assault on PS, an offence pursuant to s61M(1) of the Crimes Act 1900. 2. Count 2 - aggravated indecent assault on HS, an offence pursuant to s61M(1) of the Crimes Act 1900. 3. Count 3 - aggravated indecent assault on HS, an offence pursuant to s61M(1) of the Crimes Act 1900. 4. Count 5 - aggravated sexual touching without consent (person under authority), an offence pursuant to s61KD(1)(a) of the Crimes Act 1900. 5. Count 6 - aggravated sexual touching without consent (person under authority), an offence pursuant to s61KD(1)(a) of the Crimes Act 1900. 6. Count 7 - aggravated sexual touching without consent (person under authority), an offence pursuant to s61KD(1)(a) of the Crimes Act 1900. 7. Count 8 - intentionally sexually touch a child above the age of 10 years and under the age of 16 years, an offence pursuant to s66KB(a) of the Crimes Act 1900. 8. Count 9 - aggravated sexual touching without consent (person under authority), an offence pursuant to s61KD(1)(a) of the Crimes Act 1900. 1. In respect of each offence you are sentenced as follows:-

Count 1 1. Pursuant to s8(1) of the CSPA instead of imposing a sentence of imprisonment, you are ordered to comply with a Community Correction Order. 2. The term of the order is for 12 months.

Count 2 1. Pursuant to s8(1) of the CSPA instead of imposing a sentence of imprisonment, you are ordered to comply with a Community Correction Order. 2. The term of the order is for 18 months.

Count 3 1. Pursuant to s8(1) of the CSPA instead of imposing a sentence of imprisonment, you are ordered to comply with a Community Correction Order. 2. The term of the order is for 2 years and 6 months.

Count 5 1. Pursuant to s8(1) of the CSPA instead of imposing a sentence of imprisonment, you are ordered to comply with a Community Correction Order. 2. The term of the order is for 18 months.

Count 6 1. Pursuant to s8(1) of the CSPA instead of imposing a sentence of imprisonment, you are ordered to comply with a Community Correction Order. 2. The term of the order is for 18 months.

Count 7 1. Pursuant to s8(1) of the CSPA instead of imposing a sentence of imprisonment, you are ordered to comply with a Community Correction Order. 2. The term of the order is for 3 years.

Count 8 1. Pursuant to s8(1) of the CSPA instead of imposing a sentence of imprisonment, you are ordered to comply with a Community Correction Order. 2. The term of the order is for 18 months.

Count 9 1. Pursuant to s8(1) of the CSPA instead of imposing a sentence of imprisonment, you are ordered to comply with a Community Correction Order. 2. The term of the order is for 18 months.

In respect of each of the eight Community Correction Orders made above I further order: 1. The standard conditions of the order apply:- 1. You must not commit any offence; and 2. You must appear before court if called on to do so at anytime during the term of the order. 1. It is a further condition that you are to accept directions from Community Corrections regarding your supervision and treatment, in particular any referral to the CSNSW Psychologist for risk assessment, management or treatment for sexual recidivism. 2. If you fail to comply with the conditions of these orders, further action may be taken against you. This may require you to return to court to be re-sentenced.
Each of these orders are to commence from today.
You are to report to Sutherland Community Corrections Office within 7 days of today.

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 September 2023

At a glance

Court

Decision date

Before

Source

Judgment (17 paragraphs)

Parties

Cases Cited (5)