Director of Public Prosecutions v Milky
[2023] VCC 712
•27 April 2023
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT GEELONG
CRIMINAL JURISDICTION
CR 21-01513
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MD SHAFIUL MILKY |
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JUDGE: | HER HONOUR JUDGE HAMPEL |
WHERE HELD: | Geelong (Trial); Melbourne (Plea and Sentence) |
DATE OF HEARING: | 13 February 2023 – 20 March 2023 (Trial) 3 April 2023 (Plea) |
DATE OF SENTENCE: | 27 April 2023 |
CASE MAY BE CITED AS: | DPP v Milky |
MEDIUM NEUTRAL CITATION: | [2023] VCC 712 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Indecent assault – sexual assault – rape – sexual assault by compelled sexual touching – rape – standard sentencing scheme – profound and gross breach of trust by a medical practitioner in respect of his patients– general practitioner – offending in the course of medical consultations – AHPRA – likely deportation upon completion of sentence – not appropriate to exercise discretion to place on the sex offender register – serious sexual offender – no s 6AAA sentencing discount for guilty plea
Legislation Cited: Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic).
Cases Cited: Jurj and Miftode v The Queen [2016] VSCA 57
Sentence:Total effective sentence of 14 years, 6 months. Non-parole period of 11 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr R. Pirrie | Office of Public Prosecutions |
For the Accused | Mr T. Kassimatis KC with Mr S. Cash | Wotton and Kearny |
HER HONOUR:
1Md Shafiul Milky, you began working as a doctor in Australia in 2019. In 2012, you commenced working as a general practitioner at Peninsula Medical Clinic in Ocean Grove. You remained employed by that practice until your employment was terminated in July 2019. You remained working as a doctor for some time after that, until your right to practice was suspended. Although that right to practice was ultimately reinstated for a period, it was suspended again in late 2020 and has not been reinstated since. On 20 March 2023 a jury found you guilty of raping two patients and sexually assaulting another three when they attended you for a consultation at the Peninsula Medical Clinic in Ocean Grove between 2012 and 2018.
2At some stage during the time you were employed by Peninsula Medical Clinic, you also began working for the National Home Doctor Service as a general practitioner, doing out-of-hours home visits. The jury also found you guilty of sexually assaulting a patient in February 2019 when attending her as a patient in her own home for what, again, should have been no more than a routine medical consultation.
First patient: Leah Buchanan[1] September 2012
[1] A pseudonym
3Leah Buchanan consulted you in September 2012 for a sprained ankle. She had two consultations with you before the consultation that gave rise to the charges of which the jury has found you guilty of indecently assaulting her. At each of those consultations, you discussed with her breast examinations, although her presenting complaint was, as I have said, a sprained ankle.
4On 24 September 2012, you, in the course of a consultation with her, first touched her breast over her T-shirt, saying that you were demonstrating the correct way of doing a breast examination, when it was quite clear, on the jury's verdict, that what you were demonstrating was not the correct way to do a breast examination. Such an examination was, in any event, unnecessary and unwarranted, having regard to the consultation she had had only minutes earlier with a practice nurse for that very purpose. That gives rise to Charge 1 of indecent assault.
5Charge 2 of indecent assault is a charge that, in the course of the same consultation, you touched Ms Buchanan’s nipples, again under the pretext of showing her the correct way to conduct a breast and nipple examination. You had her lift her shirt took her breasts out of her bra and squeezed her nipples, purportedly demonstrating how to do a correct nipple examination.
6You then said that you were going to conduct an examination of her body, and in particular, of her femoral pulse. You made her get onto the examination bed, and pull her clothing down. You put your hand down her pants on her groin area, ostensibly seeking to feel her femoral pulse. You did not check any of her other peripheral pulses. That gives rise to Charge 3 of indecent assault. Charge 4 of indecent assault in respect of Ms Buchanan, of which the jury found you guilty, was that you then, under the guise again of conducting an examination of her, touched her then exposed breasts with a stethoscope.
7Ms Buchanan noticed, at the end of the consultation, that your trousers were ballooning and that you were touching your crotch. You gave all the appearance of having experienced an erection as a result. She did not say anything to you at the time because she was taken aback, but immediately after leaving the consultation told her partner that you had gone too far and explained what you had done. Not only did Ms Buchanan complain to her partner, she also sought advice from AHPRA the medical regulator because of her concerns about what had happened and the inappropriateness of it. They told her to speak to the practice nurse about what had happened. The nurse, in turn, reported it to the medical practitioners who were the owners of the practice. Ms Buchanan also made a formal complaint to police.
8The owners of Peninsula Medical Practice, Doctors Santosh Kurien and Emmanuel Nnopu, appear to have accepted your statement, when the complaint was referred to them, that you had done nothing wrong. They did not attempt to speak to Ms Buchanan or follow up on the clear conflict between what they had been told by the practice nurse and what you said occurred in the consultation, and immediately before it. It would appear AHPRA accepted advice from Doctors Kurien and Nnopu that as you denied the allegations, there was no need to further investigate.
9I am at a loss to understand how that sits with Doctors Kurien and Nnopu or AHPRA’s legal, social or moral obligations to Ms Buchanan or to any other patient.
10Despite Ms Buchanan’s complaint and the existence of what could be categorised as a number of different types of supporting evidence available to the police from a number of different and independent sources, and which was ultimately relied on at your trial earlier this year as evidence which, if accepted, was capable of supporting Ms Buchanan’s account, a prosecution was not authorised. I cannot help but wonder, would your other five patients of whom the jury has found you guilty of sexually assaulting or raping have been spared had Doctors Kurien and Nnopu done more than accept your denials had AHPRA not accepted their assertion your denials meant there was no evidence you had engaged in misconduct, or had a prosecution brief been authorised.
Second patient: Ashley Ramsey[2] November 2016
[2] A pseudonym
11The second patient who you sexually assaulted and of whom the jury has found you guilty of sexually assaulting is a young woman by the name of Ashley Ramsey. She consulted you for a sore back. You asked her to lie face down on the examination table and take her bra off. You grabbed the sides of her breasts, fondling them and groping them. You then asked her to sit up. As she did so, you were standing very close to her, and her elbow inadvertently brushed your groin. She felt that you had an erection.
12As she sat up, she asked you again about her back. Far from doing anything about the presenting problem, her back, as she sat on the edge of the examination table you grabbed hold of both of her breasts and fondled them. It was clearly not a breast examination and clearly not warranted by the nature of the consultation. It is those two acts of touching Ms Ramsey’s breasts when she was face down on the table and then when she was sitting up after that that constitute Charges 5 and 6 of sexual assault, of which the jury found you guilty.
Third patient: Loretta Ingram[3], February 2017
[3] A pseudonym
13The next of your victims is a young mother by the name of Loretta Ingram. The jury found you guilty of one charge of rape in respect of Ms Ingram. She, having recently given birth to her second child, had attended the clinic for abdominal pain and thrush-like symptoms. Having given that history, you told her that she needed a pap smear immediately and took her to the examination room at the rear of the premises, where you then had her undress, lie on the bed, and, in the guise of conducting an examination or taking a pap smear, inserted your fingers into her vagina. It was only after that that you conducted an examination involving the use of a speculum and the taking of a sample. Ms Ingram gave evidence that, as she was on the examination table and you penetrated her vagina with your fingers, you leant forward towards her with your face very close to hers, and said, 'that's nice', or words to that effect.
Fourth patient: Elizabeth Roberts[4], March 2018
[4] A pseudonym
14The next patient of whom the jury found you guilty of sexually assaulting was Elizabeth Roberts. The jury found you guilty of raping her. That is the subject of Charge 8. Ms Roberts was a person who was very time-poor and attended the clinic on a number of occasions to see you. She discussed with you many of the problems, social and physical, that she had. On the occasion of the consultation where the jury has found you guilty of raping her, she had been booked in for a pap smear. She had no concern about having a pap smear conducted by a male doctor, unlike many female patients.
15You took her to a consultation room. Again, she was told to take her clothing off, and without describing or telling her what was to take place, you conducted an examination, inserting a speculum into her vagina, inserting a swab, taking a sample, and removing the swab. Then, having removed the speculum, you sexually penetrated her vagina by inserting your fingers in it, and pulled down hard on the bottom of her vagina. So hard that it hurt and she exclaimed loudly. That rape occurred in March 2018.
Fifth patient: Ada Dennis[5], September 2018
[5] A pseudonym
16The next patient in respect of whom the jury found you guilty of committing sexual offences against is Ada Dennis, who consulted you in September 2018. Her reason for consulting you was that she was suffering cold symptoms and also had sciatic nerve pain. You asked her to sit on the examination table, told her that you wanted to look at her abdomen, made her undo her jeans and underwear, and touched her in the area around her stomach.
17You then asked her when she had last had a breast examination and, in the guise of, again, conducting or saying that you were to conduct a legitimate breast examination, you had her sit up, undid her bra, put your hands under her bra and onto her breasts, and began to rub up and down. She described it as patting with a light touch, ‘like patting a dog’. It was not a breast examination of the sort that she was used to receiving. There was no attempt to look for hardened lumps in the breast.
18You then, when she reminded you that she was consulting for the purpose of back pain, sciatic nerve pain, had her lie on the examination table, bent her right leg up, pressing your body against it, cradling it against you and looking into her face. Although the pain that she had complained of was on the left side, this was all with her right leg. You then massaged her inner thigh and groin. It is that conduct, the touching of her breasts and then the massaging of her inner thigh and groin, that gives rise to Charges 9 and 10 of sexual assault of which the jury found you guilty.
19You then asked her inappropriate questions about whether she had a partner and whether she had someone at home. You massaged her neck, making her lean against you and touch you. You offered her the opportunity of another consultation for a further massage, telling her that you knew you should not be doing it, and also told her you were available for home visits.
20Ms Dennis was the last patient in respect of whom the jury found you guilty of sexually assaulting in the course of consultation at the Peninsula Medical Clinic.
Sixth patient: Beatrice Mckinney[6] February 2019
[6] A pseudonym
21Your final victim, Ms Mckinney was assaulted in her own home. She had called the National Home Doctor service for a home consultation, having been suffering from cold and flu symptoms, headache, and muscle soreness for a number of days. When you arrived at her home, having taken a short history from her, you then started touching her on her body, first on her breasts, over her singlet, which gives rise to Charge 11 of sexual assault. Then under her singlet, over her bra, which gives rise to Charge 12 of sexual assault. You then touched her breast underneath her bra, which gives rise to Charge 13 of sexual assault. All the time, you were purporting to conduct a medical examination, touching, pressing, and rubbing her body and asking her whether it hurt.
22You then tried to kiss her, bringing your face in contact with her face and your lips brushing the side of her cheek. That gives rise to Charge 14 of sexual assault of which the jury found you guilty. Finally, you grabbed her hand and placed it momentarily on your erect penis before she was able to pull her hand away. That gives rise to Charge 15 of sexual assault by compelled sexual touching of which the jury found you guilty.
23Each of these clusters of charges therefore occurred in the course of a single consultation with each of the patients. Some of them were there visiting you for the first time and never went back. Others went back because they said they had nowhere else to go. The only two who complained at the time to authorities were the very first victim, Ms Buchanan and the last, Ms Mckinney. Each of them though, immediately after the consultation made a complaint to an intimate partner, to a friend, or, in the case of Ms McKinney, to the police.
24The maximum penalties for indecent assault, sexual assault and sexual assault by compelled touching is 10 years' imprisonment. The maximum penalty for rape is 25 years. By the time you committed the rape of which the jury found you guilty on Ms Roberts, that is, Charge 8, the standard sentencing scheme provided for in s5A(1)(b) of the Sentencing Act had come into effect. That declares 10 years' imprisonment is the standard sentence for an offence of rape, taking into account only the objective factors affecting its relative seriousness.
25For offences committed after the commencement of s5A(1)(b), a standard sentence is another yardstick, like the maximum sentence, to have regard to as part of what is ultimately the process of instinctive synthesis; that is, when determining the appropriate sentence, having regard to all of the relevant factors. The standard sentencing regime had not come into effect at the time of the commission of the earlier rape on Ms Ingram, your third victim and the subject of Charge 7 of which the jury has found you guilty.
26On your plea, it was conceded no sentence other than imprisonment was appropriate in respect of all offences of which the jury found you guilty. It follows, therefore, that once sentences of imprisonment are imposed in respect of charges 1 and 2 on this 15 charge indictment, you come to be sentenced as a serious sexual offender for the remaining charges, 3 to 15, inclusive. It follows that protection of the community becomes the principal purpose for which a sentence is to be imposed. I do not consider it necessary to impose a sentence disproportionate to the gravity of any of the charges in order to give effect to the principle of protection of the community or its primacy in respect of Charges 3 to 15. Nor, having regard to principle of totality, is it necessary or appropriate to direct all sentences be served cumulatively.
27Given the number of charges, what I have done is a fix on what I consider to be the appropriate sentence for each charge, and then determine the appropriate order of cumulation between each cluster of charges relating to each separate complainant. I have sought to do that whilst bearing the principle of totality and the need to avoid a crushing sentence in mind. Given the number of complainants and the number of separate charges of which you have been found guilty, there is necessarily a degree of artificiality in achieving appropriate individual sentences for each charge, bearing in mind the principle of totality and having an appropriate order of cumulation to reflect the number of victims and the different victims.
28In my view, some cumulation in respect of each victim is necessary, or indeed, cumulation in respect of each victim is necessary in respect of the indecent assault and sexual assault charges. In respect of those charges, the indecent assault and sexual assault charges, each cluster represents, for each of the victims, a course of conduct or a continuous episode involving successive sexual assaults in the course of a single consultation. In those circumstances, I have decided that there is little utility - in fact, it becomes a demeaning and devaluing exercise - to make fine gradations of cumulation, charge by charge, reflected in differences of months, in fixing on the appropriate cumulation orders in respect of the different ways in which each of the five complainants subject to the indecent assault and sexual assault charges was sexually assaulted.
29So for the three patients in respect of whom the jury has found you guilty of indecently assaulting or sexually assaulting in the course of a consultation at Peninsula Medical Centre, I consider the same term is appropriate for each individual assault. I have decided that there is no basis for imposing different sentences for any of the individual indecent assaults or sexual assaults committed on those three different complainants at the medical centre. However, in my view, the sexual assaults and the one act of compelled sexual touching involving Ms Mckinney, committed during the home consultation, warrant a higher sentence than the sentences than I have fixed on for the indecent assaults and sexual assaults occurring in the consulting rooms at the Peninsula Medical Clinic.
30So for each of the four victims of indecent assault and sexual assault occurring at Peninsula Medical Centre, for the purposes of structuring the appropriate sentence, I have made the sentences for each of the successive charges relating to each of those victims concurrent with all other sentences for that victim. That means, I have made the first sentence in each cluster the subject of a cumulation order with the rape sentence. That, in my view, is the most appropriate way of achieving the need for some cumulation, for identification and distinguishing between the different complainants, and for reflecting the increasing seriousness of the offending in respect of Ms Mckinney. In relation to the rape charges, I have applied the same reasoning in fixing the same sentence for each rape, but making a partial cumulation order. That reflects totality, and the need to have a degree of cumulation reflective of the offending against each of the individual complainants.
31Each of your victims was profoundly affected by what you did. Most but not all have provided victim impact statements. Three of them were so affected by what you did that they not only left the area but moved right away. They spoke of their fear and distress at the thought of seeing you in and around the local area. They spoke of the shame and humiliation that they had experienced to not have had the wits or the courage at the time to be able to protest, to stop you, or to complain. A number of them, spoke of the guilt they felt, at not speaking out earlier and the impact that had on your successive victims. It is clearly, as the prosecutor put in the course of the sentencing submissions, a profound and gross breach of trust by a medical practitioner, in respect of his patients. And the objective seriousness of the offending and the circumstances, place these at a high level of seriousness.
32The submissions put on your behalf, in relation to the characterisation of the gravity of the rape charges, were, in the written submissions put in these terms,
The feature which stands out as (perhaps) most aggravating in the case of Dr Milky's offending is the breach of the trust reposed in him by his patients and, relatedly, their vulnerability. The other is that the two offences [that is, the two rape offences] were committed in the presence of another, rendering them especially brazen.
33In the recent case of Jurj and Miftode v The Queen[7], the Court of Appeal set out the features typically taken into account when assessing the gravity of a particular instance of rape. Those passages were helpfully set out in the defence submissions. The compilation is, of course, a helpful one, but the rapes of which you stand convicted fall into a very unusual subgroup of rape, namely, by a doctor under the guise of or accompanying a legitimate, medically justifiable, intimate medical procedure. Neither prosecution nor defence were able to point me to any similar sentencing exercises in respect of doctors breaching trust in such a way. There were a number of cases in relation to masseurs, but not in respect of doctors.
[7]Jurj and Miftode v The Queen [2016] VSCA 57 (Maxwell P and Redlich and Beach JJA).
34The defence then went on to submit that in most other respects, apart from a breach of trust and brazenness, the offending the subject of those rape charges was not characterised by the features which the Court of Appeal had identified in Jurj and Miftode as accompanying especially grave instances or examples of rape. That may well be so but, of course, it does not follow that the absence of features ordinarily identified as relevant to the assessment of the relative gravity of one rape from another make it a less serious example of rape than one with all of those features. The gravity of any individual offence will depend on its own circumstances.
35In my view, these are serious examples of serious offences, and what makes them so are the features identified by your counsel, namely, the breach of trust, the vulnerability of the victims, and the brazenness of the conduct. As was acknowledged on the plea, there were also aspects of your conduct which were degrading. Most notably, saying 'nice' as you raped Ms Ingram, and the visible signs of your erection, that is, that you were obtaining sexual gratification from your conduct, noted by Ms Buchanan, Ms Ramsey, and Ms McKinney.
36So far as the charges of indecent assault and sexual assault are concerned, the defence written submissions acknowledged,
The same aggravating features, [I interpolate - which I understand to be the breach of trust and the patients' vulnerabilities,] distinguishes Dr Milky's offending on the charges of sexual and indecent assault, especially in the case of Ms Mckinney, who was offended against in her home.
37These are serious examples, all of them, of serious offences. The breach of trust is not just by reason of the breach of the doctor‑patient relationship, it is also the intimate nature of the examinations, that could in the right circumstances legitimately be conducted, and which you said you were doing. There is also involved in the examinations themselves, a breach of trust, by reason of the stealth and the deception involved: The disguising of what you were doing or about to do, and the taking advantage of legitimate intimate examinations to touch and penetrate the complainants in the way you did.
38The vulnerability of your victims arose not just from the nature of the examinations, but also from the individual vulnerabilities of the complainants themselves, and the brazenness arose not just in the context of the rape charges where there was someone purportedly in the role of a chaperone present, but also more generally from the nature of the conduct. You took advantage of your authority as a doctor, the power imbalance in the doctor‑patient relationship, and the pretence that what you were doing was part of medically appropriate examination to sexually abuse these women for your own sexual gratification.
39Each of them spoke of their disbelief, the dawning realisation that what was happening in the course of the consultation was wrong, their feelings of powerlessness as they realised what was happening and their feelings of inability to stop it or to control you, their desire to get out of the room and away from you as soon as possible, and their shame and anger later, they had not confronted you or stopped you at the time.
40This is clearly serious, predatory, serial sexual offending. It is clear, therefore, that denunciation and deterrence, as well as protection of the community, have considerable application and carry considerable weight in sentencing you.
41That you continued to act as you did, even after Ms Buchanan’s complaint, because you denied misconduct, and were believed, and were not held accountable, makes it clear specific deterrence as well as general deterrence has a role to play. Far from being deterred by Ms Buchanan’s complaint, the acceptance of your denials, the inaction of the owners of the practice, AHPRA and the police clearly gave you a sense of impunity. You continued to sexually abuse patients over the next six years after Ms Buchanan’s complaint was ignored. For some patients, the sexual violation escalated, giving rise to the two rape charges, and you did so, I am satisfied, for your sexual gratification. It is a grave violation of trust, of the trust reposed in a medical practitioner, and the sentences to be imposed upon you must reflect that.
42What else then, relevant to fixing on a just punishment for these offences must be taken into account? First, I note that you pleaded not guilty, as is your right. You are, as the defence submissions acknowledged, unable, as a result, to call in aid the significant, substantial discounts in sentence available to those who plead guilty to sexual offending. Clearly there is no evidence of remorse or acceptance of responsibility. There is no utilitarian value flowing from a plea of guilty, and no weight to be given to advancing interests of and the course of justice that you can call in aid.
43The victims were not spared the ordeal of reliving and recounting the events. They were all cross‑examined extensively and had to deal with the embarrassment of recounting what happened to them in front of strangers, of having details of their private medical and personal circumstances trawled over in court, of being cross‑examined about their failure to protest or resist and were subjected to the indignity of being characterised as witnesses lacking credibility, who had given a false narrative, who had imagined, or made up their accounts.
44As I said, to plead not guilty and put the prosecution to proof was your right, and you cannot be punished for doing so. But the inability to call in aid those factors relevant to a reduction in sentence flowing from a guilty plea, removes from the sentencing mix a powerful mitigating factor available to those who do plead guilty, for the reasons that I have identified..
45Turning then to your personal circumstances. You are now 59 years of age. You were in your late 40s to mid-50s over the period of offending. You were born and educated in Bangladesh, and you come from what was described as a privileged family. Your six siblings, like you, all completed tertiary studies and obtained significant professional qualifications and have had successful careers. All your other siblings ultimately emigrated from Bangladesh to the United States, where they all live and work or worked until their retirement.
46You practised medicine in Bangladesh for some years, then went to New Zealand. You obtained New Zealand citizenship and came from there to Australia under the Australia‑New Zealand exchange or open borders in 2009. By then you had obtained a provisional right to practice in rural Australia, subject to passing the Australian exams to qualify overseas trained doctors to practice on their own account in Australia. You passed those exams, and by early 2012 you had moved to the Geelong area. You lived and practised in Geelong until your registration was suspended sometime after these charges were laid in 2019.
47You have no previous convictions. You can call your good character in aid, but good character is of less weight in circumstances such as these because it is your good character that, in part, enabled these offences to occur. You were able to rely upon the fact that you had not been held accountable after the first offending concerning Ms Buchanan in order to allow you to continue to act in the predatory way you did in respect of your other victims. Therefore, that good character enabled you to abuse your position, and your reliance on your role as a respected doctor to act as you did and to stare down the investigation following Ms Buchanan’s complaint of your brazen conduct means that although your good character has some weight, it does not hold as much weight as it otherwise would.
48I have already mentioned the fact that you are not an Australian citizen and obtained a right of residence by reason of your New Zealand citizenship. I am told it is likely, by reason of these convictions, that upon completion of your sentence you will be deported to New Zealand. I am told, if that is the case, that your wife is likely to follow you, but it is unclear at this stage as to whether your son, who is now a young adult with a career and a family of his own settled here, or your daughter, who is only 15 and still at school, will ultimately decide to follow you if you are deported, or to stay here and continue their lives. There is a real prospect of a disruption of your family as a result. Whatever happens, you accept that you have likely lost your right to stay here and your right to practice medicine here, and those losses are matters to take into account.
49Next is your poor health. You suffered a heart attack in June 2019 and in fact, you went into cardiac arrest. Although Ms Mckinney had by then, complained to the police about what you had done to her in February 2019, you were still practicing at that stage and still employed by the Ocean Grove Peninsula Medical Practice. You had what appears to be, from your cardiologist and general practitioner’s reports excellent medical care and an excellent recovery. You had a stent inserted and your heart condition is now managed by medication and monitoring, although pre‑existing type‑2 diabetes and your failure to stop smoking are noted by your cardiologist as adversely affecting your future risk of further cardiac events.
50You have a number of other conditions in addition to type‑2 diabetes. You have sleep apnoea and need a CPAP machine to sleep, hypertension, kidney stone disease, and an osteoarthritic hip, the result of a motor vehicle accident sustained in New Zealand before you came to Australia. That causes you pain, discomfort, and limited mobility, and I am told you are on the public waiting list for a hip replacement. Although it is not put that any of these conditions are unable to be managed in custody, I accept that your age and your poor health will make imprisonment more onerous for you than for a person not so circumstanced and that that is appropriate to take into account.
51There has also been considerable delay since Ms Mckinney made a complaint and the police investigation in respect of her started. The investigation in respect of Ms Buchanan was revived, and ultimately investigations in respect of the other four complainants in respect of whom you are charged and the jury found you guilty was conducted. Ms Mckinney reported the matter to the police straight away and a police investigation immediately ensued. It was not though until late 2020, nearly two years after your assault on Ms Mckinney, that you were charged.
52In the meantime, as a result of publicity relating to Ms Mckinney’s complaint and the suspension, ultimately, of your right to practice for a period, further complainants came forward, and that is the four middle complaints, Ms Ramsey, Ms Ingram, Ms Dennis and Ms Roberts. The coming-forward of those further complainants clearly extended the time for investigation and the time it took before charges were ultimately laid. In addition to the time taken to investigate, COVID related delays and the impact of that on the courts has added significantly to the time it has taken for the matter to come to trial.
53I accept that the delay in having the matters being dealt with from the time Ms Mckinney made her complaints, means the matters have been hanging unresolved over your head for a considerable period, and that is also a matter to take into account in reducing the sentence otherwise appropriate.
54I also accept that although COVID is no longer in pandemic but is rather in endemic stage, that continues to have an impact on the prison population. The prison population is a more vulnerable population. The risk of spread is still significant and the protective measures that are required to be taken as a result mean that prisoners are restricted in their movements, restricted in the number of visitors they can have and are restricted in their access to courses and facilities. All of that will clearly impact upon you, and I take that into account as I must and should in acknowledging a greater burden of imprisonment compared to pre-COVID times, and reducing the sentence otherwise appropriate.
55Despite your continued denials of the offending, I consider that it is imperative that you have the opportunity to participate in sex offender treatment programs in custody should you wish to do so, and I urge the prison authorities to assess your suitability and to make such courses available to you. If you choose to do so, participating in sex offender treatment no doubt will improve your prospects for rehabilitation. You are clearly an intelligent man, capable of learning, and there is no evidence before me of any mental impairment or psychological illness that would interfere with your capacity to rehabilitate or to engage meaningfully in a sex offender treatment program.
56I therefore consider that you have the capacity to rehabilitate if you choose to do so, and the presence of family support is also a protective factor in assessing your prospects for rehabilitation. The sentence I impose is structured to encourage you to participate in a sex offender treatment program or such sex offender treatment programs as are available to you, and I encourage you to do so.
57You do not automatically fall to be registered as a sex offender under the Sex Offender Registration Act. It is a discretionary exercise, having regard to the fact that all your victims were adults. Despite the number of victims, the predatory nature of the offending, the period over which it occurred, and your denials of involvement, I have come to the view that it is not appropriate to exercise my discretion to place you on the sex offender register.
58I have decided that it is not appropriate to make such an order given your age, the likelihood that you will be not able to practice again as a doctor, the length of sentence I propose to impose and the likelihood of deportation. The time that you will be required to serve before being eligible for parole is such that I cannot make any meaningful prediction as to your likely risk factors by the time of your likely earliest release, and therefore it seems to me to be inappropriate in the circumstances to make you subject to such an order.
59Turning then to the sentence itself. Md Shafiul Milky, on all 15 charges of which the jury has found you guilty, you are convicted.
In respect of Charge 1 of indecent assault concerning Ms Leah Buchanan, the charge of touching her breast over her T-shirt, you are sentenced to be imprisoned for a period of 12 months. On Charge 2 of indecent assault in respect of her, that is, of touching her nipples, you are sentenced to be imprisoned for a period of 12 months. On Charge 3 of indecent assault, of touching Ms Buchanan’s groin, you are sentenced to be imprisoned for a period of 12 months, and on Charge 4 of indecent assault, of touching Ms Buchanan’s exposed breasts with a stethoscope, you are sentenced to be imprisoned for a period of 12 months.
On Charges 5 and 6, in respect of Ms Ashely Ramsey, on Charge 5 of sexual assault by touching her breasts while she was lying face down on the examination table, you are sentenced to be imprisoned for a period of 12 months, and on Charge 6 of sexual assault, of touching her breasts while she was sitting up on the examination table, you are sentenced to be imprisoned for a period of 12 months.
60On Charge 7 of rape of Loretta Ingram, you are sentenced to be imprisoned for a period of eight years.
61On Charge 8 of rape in respect of Ms Elizabeth Roberts, you are sentenced to be imprisoned for a period of eight years.
62Then on the charges concerning Ms Ada Dennis, Charges 9 and 10, on Charge 9 of sexual assault involving touching Ms Dennis’ breasts, you are sentenced to be imprisoned for a period of 12 months, and on Charge 10 of sexual assault by touching Ms Dennis’ inner thigh, you are sentenced to be imprisoned for a period of 12 months.
63Finally, in respect of the charges concerning Ms Beatrice McKinney, on Charge 11 of sexual assault by touching her breasts over her clothing, you are sentenced to be imprisoned for a period of 18 months. On Charge 12 of sexual assault by touching her breasts over her bra, you are sentenced to be imprisoned for a period of 18 months. On Charge 13 of sexual assault by touching her breasts under her bra, you are sentenced to be imprisoned for a period of 18 months. On Charge 14 of sexual assault by attempting to kiss Ms Mckinney, you are sentenced to be imprisoned for a period of 18 months, and on Charge 15 of sexual assault by compelled touching by placing Ms Mckinney’s hand on your groin, you are sentenced to be imprisoned for a period of 18 months.
64I direct that Charge 7 of rape in respect of Ms Ingram be the base sentence. I direct that two years of the sentence on Charge 8 concerning Ms Roberts, 12 months of the sentence on Charge 1 concerning Ms Buchanan, 12 months of Charge 5 concerning Ms Ramsey, 12 months of Charge 9 of the charge of sexual assault concerning Ms Dennis, and 18 months of the sentence on Charge 11 concerning Ms Mckinney, be served cumulatively upon each other and upon the base sentence on Charge 7.
65That makes a total effective sentence of 14 years and six months, and I fix the period of 11 years as the time that you must serve before being eligible for parole. I declare that you have spent 38 days in pre‑sentence detention and direct that that be counted and reckoned as part of the sentence already served.
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