Director of Public Prosecutions v Burton (a pseudonym)

[2019] VCC 418

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

TERRENCE BURTON (a pseudonym)

---

JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	29 March 2019
CASE MAY BE CITED AS:	DPP v Burton (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 418

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Coombes
For the Accused	Mr M. McLay

HER HONOUR:

1Terrence Burton[1], you have pleaded guilty before me to one charge of sexual assault.  The maximum penalty for this charge is ten years' imprisonment.  The facts underlying this offending are as follows.

[1] Terrence Burton is a pseudonym.

2You were a psychiatrist who between 2011 and 12 November 2015, was treating the victim ABC for a number of conditions, including a bipolar mood disorder.  At the time of the offending, you had been a psychiatrist for about
39 years.

3ABC was referred to you by her general practitioner in March 2011 for specialist assistance regarding her mood disorders and the management of her medication.  It was the Crown case that you took a personal interest in ABC and in around 2013, began touching her inappropriately, discussing inappropriate sexual matters, which interest continued and culminated in you touching ABC's breasts and vagina on 12 November 2015.

4ABC began attending you on 31 March 2011 and thereafter attended upon you a monthly basis on average, although there were gaps where she would not attend for months.  You prescribed her a variety of medications for her various mental health conditions, including a mood stabilising medication, which caused ABC to experience a reduction in her sex drive, which concerned her and led her to discuss this matter with you.

5You then tried to find the right medication for her to assist in reinstating her sex drive.  Thereafter in about 2013, you began asking ABC personal and unnecessary questions about her masturbation practices which confused her, and you began to show her adult pornographic material on a computer, which you described to police as graphic.

6Overall, sessions became very heavily focussed on sexual matters, rather than ABC's mental health issues.  Sometime in 2013, ABC stopped taking her medications, was drinking heavily, and in that context had a sexual encounter with someone other than her husband which she discussed with you.  She told police that after that the tenor of the appointments changed with you even more.

7For example, instead of sitting behind a table during consultations, you would sit on the chair next to her, as close as you could, on occasions, your knees touched and you held her hand.  As time went on, you would put your arm under her upper arm and rub against her breasts.  ABC noticed that you would stare at her breasts if she wore a singlet top which made her feel uncomfortable and caused her in later sessions to cover herself by wearing a cardigan.

8On one other occasion, ABC wore a skirt which rose up when she sat down, she saw you were staring at her knees throughout the session and kept trying to pull the skirt down to cover them.

9In January 2014, ABC spoke to you about weight gain she was experiencing from her medication and you told her to stand up and show you her backside, which she did, you rubbing your hands over it and telling her she was sexy.  On another occasion, you touched ABC's face, and told her that she was sexy.  Although unnerved by this attention, ABC continued to attend upon you, as you bulk billed her sessions, and she was unable to find another psychiatrist who did this.

10On 29 September 2015, ABC had an appointment with you, on what was the six-year anniversary of her stillborn baby's birth.  She was feeling down and wanted to discuss this with you.  During the appointment, you asked her a lot of questions about masturbation; whether or not she was having sex and told her that you had previously had an affair with a patient and that you were caught by your children.  You laughed when you told ABC about this, holding her hand and rubbing her leg with your other hand.

11The appointment went longer than expected, and after it, ABC complained to the receptionist at the hospital, saying she felt uncomfortable with you and that you were sleazy.  She said that you had touched her arm and breasts, sat next to her during consultations, rubbed the top of her thigh, and told her you did not have sex with your wife.

12The receptionist advised ABC to put in a formal complaint, and she then advised her own supervisors about the conversation she had had with ABC asking her to call ABC.  A supervisor did try to contact ABC but was unable to reach her personally.  After this, feeling nervous and scared about seeing you again, ABC cancelled a couple of appointments.

13You then rang ABC’s mobile phone on 29 October 2015 to discuss the cancellations.  ABC told you that she glandular fever, and you said you would book her in the next week, although she told you not to.  Later that day, ABC received a text message from you saying you had booked her an appointment for November 5.  ABC cancelled that on the morning of November 5, but on November 11 she contacted the clinic to make an appointment with you as she needed more medication and believed only a psychiatrist could prescribe it for her.

14At that appointment on 12 November, ABC arrived 15 minutes early but you took her straight in to your consulting room.  She again told you she had glandular fever and a breast cancer scare, and also that she had a sore stomach, at which you lifted up her top and touched her stomach area.  Feeling uncomfortable, ABC pulled her top down, and you began staring at her breasts.  You put your hand down her top and fondled her breasts, pulling her nipples out of her bra and singlet top.  These actions are part of Charge 1.

15You then put your face close to ABC's breasts, and said you wanted to suck her nipples, she declining.  She asked you how long the consultant would take, as she wanted to book a massage, you replying you would massage her and ABC saying, "No".  You then began to rub ABC's back, eventually getting your hand beneath her clothing and rubbing the small of her back, before moving down to her buttocks.  ABC pushed you away and moved away, asking for her script, so she could leave.

16Instead of writing the scripts, you kept touching ABC who by this stage was in shock, not knowing how to react and sitting still and frozen.  You asked her to spread her legs and show you how she masturbated, saying you wanted to see her clitoris.  ABC kept her legs crossed, squeezing them together as hard as she could but you moved your hands in-between her legs, and towards her vaginal area, touching her vagina over the top of her underpants.  This behaviour also comprises part of Charge 1.

17You again put your hands down her front, grabbing her breasts and trying to get her bra off.  This behaviour also comprises Charge 1.  Whilst ABC continued to ask for her scripts, you told her just a couple more minutes and tried to kiss her, although she turned her head away, so you were unable to kiss her on the lips.  She told you to stop touching her and you again said, "Just a couple more minutes". 

18You also told ABC you wanted to see if she would experience vaginismus with you, that being a condition causing the vagina to spasm during intercourse.  Eventually, you stopped touching ABC, she asked you for scripts, and told you she needed drugs including Duromine, a weight loss drug, with a potential to interfere with ABC's medical regime.  She wanted to see if you would prescribe it for her.  You asked if she was serious, and she said, "Yes" and you asked if she wanted any other drugs.

19You walked the complainant to the reception desk and re-booked her an appointment for November 26 and for the first time since you had been seeing her, waited until she left the consulting rooms.  ABC got into her car, shaking and feeling sick and soon after, rang her mother, DEF, to tell her what had happened.  DEF told police her daughter sounded distressed, and she told ABC things had gone too far and that she needed to do something about it.

20ABC had previously confided to her mother, a friend and her husband that you had touched her inappropriately, and asked questions about her masturbation and sexual practices.  Despite their encouragement to change practitioners, ABC was concerned about the additional cost.  After speaking to her mother, ABC phoned the medical board and left a message, receiving a call the next day from the medical board representative with details of how to make a complaint.

21ABC that day also phoned her general practitioner's office, and speaking to the receptionist, Ms King, who told police ABC sounded anxious and upset.  She told Ms King she had been seeing a doctor who put his hand up her skirt, had touched her, and that this had not been the first time.  Ms King wrote details of the call on a note she provided to the practice manager, who then advised ABC's general practitioner, Dr Nicoletu.

22ABC had previously spoken to the practice about obtaining another psychiatrist who bulk billed, and a note was recorded on the clinic records that the practice manager had obtained details of two other bulk billing psychiatrists, although it was unclear whether this had been communicated to ABC.  Later that same day, ABC attended on another doctor, discussing what had occurred, and
this doctor advised her to report the matter to police and the medical board.

23ABC told her husband what had happened, and on the same day reported the matter to the police.  On either that day or the next day, ABC told a friend you had groped her and put your hand down the back of her pants.  Two days after this offending, ABC attempted to take her life, leaving behind a note disclosing the offending.  You attended the Heidelberg Police Station by appointment on November 23 2015, when you were interviewed about the allegations which you denied, and denied any inappropriate conduct with ABC.

24Two of ABC's bras were forwarded for testing for the presence of DNA on the inner surface of the bra cups.  Unsatisfactorily, it was not decided to go ahead with this testing until late 2017.  In the meantime, a contested committal was held where ABC gave evidence and was cross-examined.  On 17 January 2018, a forensic report indicated that a mixed DNA profile was found on the inner surface of both cups of one bra.  The statistical analysis was that in relation to the right cup, you were 100 billion times more likely to be a contributor to the mixed DNA profile, and in relation to the left cup, 73 billion times more likely, than someone randomly selected in the community, providing what is termed a, "extremely strong" support for the proposition that you had contributed to that DNA profile, the highest probability expression in forensic science.

25The two-day contested committal took place on April 4 and 5 2017.  On
25 January 2018, there was a defence application to adjourn the trial date after receipt of the DNA report.  A defence plea offer was made on 13 November 2018; the matter resolving on 22 November 2018, and you entered a plea of guilty at arraignment on 26 November 2018.

26I now turn to your personal circumstances.  You are now aged 69 and have no prior or subsequent criminal convictions.  You were born in India, the fifth of six children, to parents who are now deceased.  You completed your tertiary education in psychiatry training in India, and from 1979, worked as a psychiatrist in Nigeria for five years.

27From 1984 to 1993, you worked as a psychiatrist in the UK, before emigrating to Australia in 1994.  You settled in Melbourne working at public hospitals, including Royal Park, the Alfred and Box Hill Hospitals, before beginning private practice in 2003.  You married in 1978, your wife working as a practice manager in your office.  You and she have two children in their 30's; your son is a dentist; your daughter is training as a psychiatrist.

28Neuropsychologist Professor Dennis Velaculis, whose report dated 28 March 2018, was tendered on the plea, said there was no significant issues within your family, who remain supportive of you.  According to Professor Velaculis, you presented with symptoms of memory loss for some years, and in January 2018, suffered two focal seizures.  Neurologist Professor Richard McDonell, in a report dated 13 March 2018, said you had described episodes of blank spells, going back three or four years, occurring three to four times a week.

29Professor McDonell said the spells sounded like focal dyscognitive seizures, the episodes lasting only a few minutes at a time.  An EEG the week before showed non-specific left temporal slowing with what was termed
"Epileptiform features".  Professor McDonell started you on anti-convulsive treatment.  In September 2018, Professor McDonell noted clinical features of a left fourth nerve palsy, which he said was usually due to a microvascular disease, stating,

"There is some evidence of this on Terrence’s past scan.  This generally writes itself spontaneously, but does speak to microvascular disease, possibly underlying his epilepsy as well".

30He added blood pressure medication to your medication regime.  Whilst Professor Velaculis opined the possible development of dementia or Alzheimer's disease, it was conceded on the plea that there was at the present time no evidence of either developing in you.  It was not put by your counsel, Mr Papas QC, that there was any link between your seizures and your offending behaviour.

31You also suffer from diabetes type two and a respiratory illness, which according to repository and sleep physician Dr Fergal O'Donahue, involves a total lung capacity below the normal range which in 2018 had not changed significantly, since previous testing in 2013, and which was attributed to some respiratory muscle weakness.  You also suffer sleep apnoea.

32Your wife also suffers some medical conditions, has a pacemaker for atrial fibrillation and suffers depression for which she is medicated.  You and your wife are practicing Christians with the Uniting Church, and I received references of your involvement over many years in church programs, designed to support the intellectually disabled and mentally ill.  I also received a reference as to your involvement in the Tamil Christian diaspora, the past Secretary of the Tamil Christian congregation of Victoria, Chrisantha Ariatnum, writing that you had treated many Tamil refugees for no cost.

33Professor of psychiatry Nicholas Keks in his reference dated 6 November 2018, wrote that he recruited you to join the psychiatric service at Eastern Health, of which he was then Director of clinical services in psychiatry.  He described you as a psychiatrist of good reputation and standing who had made a major contribution to the community through your work as a public sector psychiatrist.  He said you made valuable contributions in teaching, research, examining and clinical work.

34Three victim impact statements were read to the court – from ABC, her mother, and husband.  In her victim impact statement, ABC said she had been diagnosed with a bipolar condition which involved depression and manic episodes, and post-traumatic stress disorder.  As a result of your offending, she now finds it difficult to leave the house, experiences broken sleep as well as constant flashbacks, which she said, "Makes me afraid and I feel scared of how he violated me".

35ABC said she began to self-medicate following the offending, self-harming, and using alcohol to, "Block everything out as I could not face the reality of what had happened".  Her 14-year-old son is afraid to leave her alone and has become isolated from his friends, ABC stating, "I have become a helicopter mum who has pushed my fear and anger onto him".

36She said the offending had put a major strain on her marriage, her husband feeling a failure for being unable to stop this offending, and it affecting the physical relationship she stating, "when he gets close, it triggers the fear and image of the way he touched my body sexually, so I freeze up".  ABC said she has lost a lot of friends, hates going out in public, and was only now slowly going back out and making new friends and reacquainting herself with friends she had pushed away.  She said,

"My anxiety and paranoia are out of control.  No matter how much medication I use to calm myself.  My house is full of so many different security systems and devices, that I'm constantly checking that everything is locked, turned on, over and over again".

37She noted that since the incident she had struggled mentally and emotionally, and at one stage had tried to end her life.  She's now longer able to work as an assistant manager in retail because of her difficulty of interacting with strangers.  Although attending upon a new psychiatrist, she found this terrifying, and still has difficulties being sufficiently open, to have her treatment needs effectively met.

38Sadly, as is so often the case in sexual offending, ABC has blamed, hated, and loathed herself for your offending against her.  ABC's mother, in her victim impact statement, described feelings of inadequacy as a mother who had failed to protect her daughter, and the devastation of seeing her daughter
"Lose herself and go into herself".  The offending has put great pressure on the relationship, as her daughter no longer trusts people, not even her, but has instead lost herself in pills and alcohol.  She concluded,

"To see her still struggle day-to-day absolutely kills me.  She smiles on the outside, but I know my daughter, and on the inside, she is trapped with self-loathing, guilt, hate, shame, blame, and anger".

39ABC's husband in his victim impact statement described his own continuing guilt in his failure to protect his wife, describing his wife's struggles with depression and anxiety,

"I thought at times she might take her own life, as she was self-medicating and closing herself off to everyone.  Seeing the happy, care-free, loving wife and mother, becoming shut off, paranoid, and not confident is heartbreaking".

40It is clear that your offending against ABC has caused immense suffering.  Your counsel submitted that I should deal with you by a Community Corrections Order.  He submitted that your age, health and the fact that you have never been in prison, would make the service of a sentence of imprisonment more difficult than for the normal prisoner.  I accept this latter submission.  He noted that from 2015, after ABC's complaint, until 2017, your medical registration was subjected to the condition that you not treat female patients, and on 7 November, you voluntarily surrendered your registration by written notice.

41You are now not registered to practice and will never practice again.  Your counsel pointed to your previous good character, and the fact that you had practiced as a medical practitioner for 39 years.  He submitted that due to your cognitive decline, you were not an appropriate vehicle for general deterrence.  He described the offending as opportunistic and said that given your family's support, and the absence of any other criminal offending, either before or since, that you had good prospects of rehabilitation, and were not a danger to the community.

42He pointed to the fact that there was a 12-month delay between your arrest and interview and charge and he described the delay in being provided the DNA evidence after the matter had been to committal as "lengthy and unreasonable".  He said that the current difficult health conditions suffered by your wife would add to your difficulties in serving a term of imprisonment by reason of your anxiety about her.

43Mr Papas QC told the court that you are unable to, because of your cognitive difficulties, recall any of the offending.  He submitted that had the DNA report been provided earlier, the contested committal may not have taken place; the results of the testing leading ultimately to your decision to plead guilty to the charge.

44Mr Papas QC said you greatly regretted the fact that ABC was subjected to the trauma of giving evidence and being cross-examined at committal.  He submitted that your guilty plea was of value, avoiding the need for the timely expense of a trial, and more importantly, saving ABC from the trauma of giving further evidence.  I accept that submission.

45He further submitted that your plea should be considered a relatively early one in the circumstances of the unreasonably delayed DNA report, and given your complete lack of memory of the offending, it was difficult to do other than conduct the contested committal, which earlier provision of that report may have avoided.  I also accept that submission.

46Mr Papas QC conceded that your offending was a serious example of a serious crime, and also conceded that it was not possible to find that you had more than limited remorse for your offending in the circumstances.  Nevertheless, it was his submission that the combined effects of the plea of guilty, delay, previous good character, which included a life of service to the community, going above and beyond your professional duties, continuing family support, and good prospects of rehabilitation, such that you presented no danger to the community, meant that a Community Corrections Order could adequately cover those mitigating circumstances, as well as deal with the issues of general deterrence, just punishment, and denunciation, which he also conceded dominated the sentencing exercise before me.

47The prosecution submitted that the offending was indeed a serious example of a serious crime, involving a gross breach of trust to a vulnerable victim.  Whilst conceding that the imposition of a community corrections order was not out of the range available to the court, Ms Coombes for the prosecution nevertheless submitted that in all the circumstances, the most appropriate response was a term of imprisonment to be immediately served.  I was referred to a number of authorities deriving from both the Court of Criminal Appeal and from other members of the County Court.

48Of most relevance in my view, is the decision of the Court of Criminal Appeal in DPP v Albert Habib Joseph [2001] VSC 151, whereby a medical practitioner pleaded guilty to 11 charges of indecent assault perpetrated over a two-year period against eight victims, six of them being his patients. A sentence of three years' imprisonment, wholly suspended for a period of three years was upheld. In that case, however, the accused was found to be suffering from post-traumatic stress disorder as a result of his exposure to horrific violence during the Gulf War.

49The accused in that case was ultimately accepted into Australia as a refugee and within 18 months of his arrival was thrust into a position of responsibility as a medical practitioner, the offending beginning about two weeks later.  That is certainly not the situation in this case.

50Other authorities refer to treatment of elderly and unwell offenders.  I do regard your offending as a particularly serious example of a serious crime.  You were in a therapeutic relationship with ABC for four years leading up to the offending.  It is clear that from 2013 on you engaged in increasingly inappropriate sexualised behaviour towards her.  It is accepted by the defence that I may regard that offending as grooming, although I note it does not comprise behaviour for which you are to be sentenced.

51You were an experienced psychiatrist, who not only well knew the particular vulnerabilities attaching to ABC's mental health conditions, but must have also by virtue of your profession and expertise, been aware of the extreme dangers posed to her mental state, by the offending you then carried out.  This serious offending in my view was therefore aggravated by the enormity of the breach of professional trust which it involved.  It is hard to imagine a situation of more dependency by a member of the public upon their practitioner.

52It is the common experience of these courts that victims of sexual abuse develop adverse psychological reactions as a result of the offending against them.  In this case, ABC was already suffering from a host of difficult psychiatric conditions for which she was prescribed medication by you and I am perfectly satisfied that the consequences of your offending have greatly exacerbated her mental difficulties.

53She continues more than three years later to struggle with the understandably devastating effects of your offending against her.  In my view, a very clear message must be sent to those who breach the duty of care to vulnerable persons such as ABC, who have placed their emotional wellbeing in professional hands such as yours, that they can only expect the sternest response from these courts.

54In my view, only a term of imprisonment to be immediately served sufficiently marks the seriousness of your offending and the enormity of the breach of trust that it involved.  You do not present as a person who suffered any condition that might have contributed to your offending in this way.  In sentencing you, I do take into account your age, your previous and subsequent good character, your good prospects of rehabilitation, your continuing family support, the delay in this matter, the health conditions that you suffer, the professional and community service you afforded over the years, and the fact that this offending has led to the end of a distinguished career.

55For these reasons, the sentence is considerably less than it would otherwise have been.  I accept the principles of specific deterrence have no application in your case.  As is clear, I do regard in the circumstances of this case that the principles of general deterrence, just punishment, and denunciation of your behaviour dominate the sentencing exercise before me.  Could you stand up please, sir.

56I therefore sentence you as follows.  On the charge of sexual assault, you are sentenced to two years' imprisonment, and I order that you serve a minimum term of 14 months before becoming eligible for parole.  Pursuant to s.6AAA I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of four and a half years and ordered that you serve a minimum term of two and a half years.  Thank you.

57MR McLAY:  As Your Honour pleases.

58HER HONOUR:  Yes, you can take Mr Burton down.  Thank you.  Yes, thank you.

‑ ‑ ‑