R v Stuart [1999] VSCA 41

20. The applicant, a married man, was aged 35 at the time of the first of these two offences. He pleaded guilty at the committal mention stage. The ground of manifest excess refers specifically to the plea of guilty, remorse, prospects of rehabilitation, the applicant's background, the absence of prior convictions for like offences, and the applicant's genuine desire to assist his patients. Mr Holdenson elaborated on these matters and mentioned some others in the course of his submission on the applicant's behalf.

23. The early plea of guilty must be given due weight, as, of course, the judge recognised. His Honour was prepared to find that there was some limited remorse. The applicant was perhaps fortunate to obtain this finding, but he is entitled to the benefit of it. The judge referred to the applicant's background and there is no reason to suppose that he did not have proper regard to his prospects of rehabilitation. He treated the applicant, as I have said, as a first offender and described him as "caring".

26. I agree with the judge's view that these offences constituted a gross breach of trust, that general deterrence was an important consideration and that specific deterrence was also a consideration. As regards this last matter, and as regards remorse and rehabilitation, it should be noted that in his records of interview the applicant, while admitting the physical acts that had taken place with these two patients, was constantly trying to justify his own behaviour. The psychologist called by the applicant on the plea himself mentioned "the denial which was present when he was interviewed by the police". One of his character witnesses said of him, "From speaking with Douglas I don't believe that he thinks he has done anything wrong." Passages in the police interviews do indeed suggest that the applicant has at least been tempted to indulge in some form of sexual activity with female patients other than the two complainants. A reading of the records of interview leaves me with the strong impression that the applicant was a person who stood in need of deterrence. This impression is reinforced by the striking fact that the second offence was committed three months after the applicant had been interviewed at length by the police about the first offence and informed by the police that he might receive a summons at a later date "for the offence of sexual penetration and/or rape".

29. I am unable to conclude that the individual sentences or the total effective sentence or the non-parole period were manifestly excessive, or that the principle of totality has been infringed. In particular, I think it was well open to the judge to conclude that the order for partial cumulation which he made was appropriate, especially when regard is had to the fact that the second offence was committed three months after the police interview and the warning that he might be charged with sexual penetration or rape.

32. The last ground of appeal is that the judge erred in failing to find that the applicant's convictions would destroy or impair his ability to practise homeopathy. Mr Holdenson referred to the evidence of a naturopath named Bethal. I need not, I think, summarise the evidence relied upon. I have already mentioned that the applicant was not a member of any professional association. There was other evidence relied on by Mr Holdenson, but I refer to none of it. The judge dealt with this whole matter as follows:

"It was submitted by your counsel that convictions against you and the imposition of terms of imprisonment would mean that you would lose your career as a homeopath. No doubt your reputation has suffered by reason of your crimes and may perhaps further suffer as a consequence of convictions and, should imprisonment be imposed, that imprisonment. It does not appear, however, that there would be any formal or legal impediment to your continuing, when you are able, to practise as a homeopath. There is no requirement for registration in Victoria, and your counsel has told me that he is not aware of any such proposed requirement. So far as damage to your career as a homeopath by loss of reputation is concerned, it should perhaps be noted that none of those witnesses who are patients or former patients appears to have any lessened regard of you notwithstanding your crimes. I am not satisfied therefore, on the balance of probabilities, that you will not be able, when you are free to do so, resume the practice of homeopathy."

36. I see nothing to criticise in these remarks. His Honour was saying that he was not satisfied that the applicant's career would be lost or significantly damaged, and I think it was open to him to decline to make any such finding.

44. I agree. We were pressed by counsel for the applicant to conclude that the judge erred in failing to find that the applicant's career would, as a result of his convictions, be lost, alternatively that it would be adversely affected. The evidence before the judge was, in my view, not such as to require any such finding. At best it could be concluded, I think, that the applicant's practice might be affected. As it was, the judge expressed himself not to be satisfied that the applicant would not be able, when free to do so, to resume his practice. Failure to be so satisfied was, I think, well open. Even if it be thought that the applicant's career might be affected in the short term - perhaps even the long term - that would not, in my view, in all the circumstances of this case, attract the principles which have been applied by way of justifying a reduction in penalty in cases such as McDermott, McFarling and Piercey.

49. I agree with what each of the other members of the Court has said.

54. The order of the Court is that the application is dismissed.