DPP v Michael
[2018] VCC 1987
•22 November 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCase No. CR 17-01729
CR-17-01730
CR-17-01731
CR-18-01724
Indictment No. C1711115
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NASHAAT TADROS MICHAEL |
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| JUDGE: | HIS HONOUR JUDGE TINNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15 November 2018 |
| DATE OF SENTENCE: | 22 November 2018 |
| CASE MAY BE CITED AS: | DPP v MICHAEL |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 1987 |
REASONS FOR SENTENCE
---Catchwords: Indecent assault by dentist against 9 separate female victims; 8 victims his patients; Acts during treatment, the 9th victim one of his staff. Long period of offending. Significant impact. Plea of guilty. No prior criminal history, 60 years of age as at sentence
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S Borg | Office of Public Prosecutions |
| For the Accused | Mr S Cash | Ball and Partners Lawyers |
HIS HONOUR:
1 Nashaat Tadros Michael, you have pleaded guilty to nine charges laid on the indictment which has been filed in this court. The plea in mitigation was conducted by your counsel, Mr Cash, last Thursday 15 November, and on that date I remanded you to today’s date for sentence.
2 You are 60 years of age and you have no prior criminal history at all. However, it cannot be forgotten that the offending spans a sizeable period of time. I will return to discuss that issue later in these my reasons.
3 The maximum penalty for each offence is ten years' imprisonment.
Facts
4 The prosecutor, Ms Borg, opened this matter to me in accordance with an agreed written prosecution opening dated 17 October 2018. It was marked as Exhibit A on the plea. I do not see any need at all now to describe the full factual setting. It was a lengthy summary and it was read in open court. Your counsel, Mr Cash, took no issue with the summary and in fact he told me that it was an agreed statement. Your counsel when speaking of the offences committed upon your eight patients described those offences as involving an egregious breach of trust. He conceded the seriousness of the offending and the need for terms of imprisonment with a degree of cumulation as between the individual sentences.
5 As to the physical acts involved in each of the offences to which you have pleaded guilty, I will not stray beyond the agreed facts set out in the written summary. I will say something later in these reasons as to the individual offences when dealing with the submissions which were made to me as to the nature and gravity of the offending and where they sat on the spectrum of offence seriousness.
6 You were interviewed by the police on a number of occasions and you did not tell the truth. You either lied about the conduct or you chose not to comment or you declined to be interviewed. It was, of course, your right to remain silent or to decline to be interviewed and none of these things including lying to the police are matters in any way in aggravation here. Some people when interviewed by the police make full and detailed admissions and they even sometimes provide full expressions of genuine remorse and when they do, those sorts of matters are relied upon heavily on the plea in mitigation. That does not exist here.
7 The chronology which is also before me as part of Exhibit A shows that originally you were charged in relation to three of your victims. That matter went to committal in late August of last year and each of those women were cross examined. You were committed to stand trial and it was apparent from an initial direction hearing held on 30 August 2017 that the matter was proceeding to trial. You disputed the acts alleged by those three women, acts which, of course, you now admit by your guilty plea.
8 The process of publicity at the committal then brought forward the remainder of these victims. The trial date in September 2018 was vacated to permit that fresh material to be considered. It was and then the matter resolved.
9 So of the nine victims on this indictment, six have been spared entirely the experience of giving evidence, three were cross examined at committal but have at least been spared that experience up in this court.
10 The chronology is disturbing on a number of levels. It sets out the fact of your first offending way back in 1996-1997. You were then put on notice of the complaint made by Ms Rivera[1]. She went to the police and complained about you. You were interviewed by the police back then and you obviously denied the offending as the brief was not authorised. It is pretty startling that this near miss did not deter you. You offended against a dental nurse in that similar time frame between 1997 to December 2000. You continued to offend over the sizeable period covered by the charges on the indictment. As to the eight patients, all of them were vulnerable. They were sitting in a dentist’s chair. Your conduct must be roundly denounced by the court.
[1] A pseudonym used to protect the identity of the victim.
11 I note that a report was made by Ms Gray[2] to the Australian Health Practitioner Regulation Agency (AHPRA) in early 2014, in February or March 2014, it matters little which. Ms Blackburn[3] also contacted AHPRA sometime before October 2014, which was when she made her formal police statement. She had been directed to the police by APRHA. What action was taken then by Australian Health Practitioner Regulation Agency? It is disturbing that no action appears to have been taken, though perhaps I am not fully informed in that area.
[2] A pseudonym used to protect the identity of the victim.
[3] A pseudonym used to protect the identity of the victim.
12 The fact is though that you continued to practise as a dentist and you continued to offend. For instance against Ms Monroe[4] sometime in 2015. That offending followed the police interview that had been conducted on 31 October 2014 where you were told by police that you may be charged in relation to the allegations made by Ms Blackburn.
[4] A pseudonym used to protect the identity of the victim.
13 If, as seems likely to be the case, the complaint to AHPRA was not swiftly acted on then perhaps AHPRA should explain to the victim who was indecently assaulted beyond that 2014 complaint date exactly why it is that you were still allowed to practise without any level of restriction.
14 However, whatever their failings, AHPRA of course are not responsible for your offending. It was your choice to offend in this brazen fashion and having heard the plea, I must say I am not one step closer to understanding why you acted as you did. Not one word has been uttered on the plea, not one explanation and unusually no professional opinion, on that topic from any expert.
15 So much then, for my summary of the summary. The full summary will, of course, remain available on the court file.
Victim Impact
16 Four of your victims have chosen not to make victim impact statements. That was their right though of course no one would or did suggest that they have not been affected by the crime. We have their statements. We have the summary which speaks of a level of impact, and even without those it hardly would take any imagination or speculation to understand the impact that this sort of conduct would cause.
17 Five of your victims have made victim impact statements. In one case there is also a report from a treating psychologist. They were all marked as Exhibit B on the plea. Though your counsel, Mr Cash, took no issue with any of the victim impact materials, it was plain that there was material within some of those impact statements dealing with your proficiency as a dentist and failings in that regard which I cannot have regard to. Ms Blackburn’s impact statement had a great deal of detail about her pain and her treatment and the deep impact of physical pain in her life. Also the financial cost in terms of other treatment that she undertook.
18 Ms Bartlett’s[5] impact statement had some similar material and each of them dealt with the suggestion or at least hinted at the notion of your deliberately stalling treatment and bringing them back unnecessarily so as to be able to commit the acts of abuse - of grooming them, essentially. I alerted the parties to my view that such material was not admissible, that I could not act on that or any issues in terms of technical deficiencies as a dentist. I really need not have bothered as Mr Cash and Ms Borg were well across this and had been discussing it and were in fact going to make that very same submission to me.
[5] A pseudonym used to protect the identity of the victim.
19 I am not dealing with those issues at all. What I am dealing with is the impact of these crimes to which you have pleaded guilty. The only way in which those later physical issues, for instance the pain described by Ms Blackburn, can have any relevance to my task is as being perhaps a constant reminder to her of the sexual act complained of. I make plain then that I do not act on those particular identified areas that I act only on the admissible portions of all of the impact statements. Two of the statements were read to the court by their authors,
Ms Blackburn and Ms McClure[6]. The other impact statements other than the psychological report for Ms McClure were read aloud by the prosecutor Ms Borg.
[6] A pseudonym used to protect the identity of the victim.
20 I have, of course, read them all again since the plea. The impact statements made for sobering listening and reading. Ms McClure read out aloud her statement. Her voice rang out in this court, telling you and others how your acts have so damaged her. Ms Blackburn’s voice described that deep impact as well, and each of the others read out by the prosecutor had the same sentiment.
21 Hearing this material should cause you dismay. These were your deliberate and perverted acts, the damage wreaked by you upon totally innocent women who trusted you. You should be thoroughly ashamed of yourself and your acts. You are not, and I will deal with that issue later in these reasons.
22 I take those statements into account, and I suppose having said that, I could then move on now with the balance of my sentencing remarks. I could but I will not. You see, this process is not just about you. I have to sentence you for the crimes that you have committed upon these nine women and I am required as a matter of law to take into account the impact of your crimes.
23 I will not be overwhelmed by this impact material, I will not respond emotionally to it. I certainly will not let it swamp other sentencing considerations but I will take into account the impact, as I am required to. This is the only opportunity, Mr Michael, that your victims will ever have to describe the impact of your crimes.
24 It would serve no useful purpose though my setting out large slabs of the victim impact statements in my reasons and so I will not, but I will still say something just very briefly. Ms Rivera in her 2018 impact statement is describing the impact of your conduct, conduct occurring over 20 years ago, conduct which when one actually assesses the touching is probably the least invasive of all the acts covered by the conduct on the indictment. Her sentiments demonstrate that my task cannot be approached just by looking at the physical conduct. I must have regard to the impact and much of that, of course, is derived from the breach of trust in play here. It is a common theme amongst the impact statements, that is the feeling of violation and ongoing trust issues.
25 Over 20 years later she still has very much a fresh sense in her mind of the act and her feelings at the time. She has a sense of shame, though, of course, she should feel none, a sense of horror at your misuse of your position of trust.
26 Ms Bartlett speaks of the issues she has had with trust, feelings of anger and sadness arising from being taken advantage of at her most vulnerable.
27 Ms Spencer[7] sums it up compellingly in her victim impact statement. It is a remarkable document. As she describes it, the act was not a “full blown” rape so was not taken that seriously by those few she disclosed to. She was left feeling weak and helpless with lowered self-respect and confidence. In a way she said she buried it and is still coming to terms with what you did and how it affected her. She is not able to go to the dentist as she has lost trust in dentists. She has lost trust in male health care providers and even males generally. She feels vulnerable even in situations not involving a health care setting. She knows that is not rational but it is just the way she feels, and that is as a result of your conduct, conduct that has shattered her confidence.
[7] A pseudonym used to protect the identity of the victim.
28 Ms Blackburn describes keeping the matter to herself and blaming herself. She felt weak and weighed down by what you did, as I say, even in a way blaming herself, but of course she should not. There is only one person to blame and it is you. She has been deeply affected indeed, as is apparent from her impact statement.
29 Ms McClure came to you with a level of damage arising from earlier events in her life. Of course you were not to know that. She felt violated by your conduct and her confidence has been reduced, so too her self-image. She is left with post-traumatic stress disorder and issues with anxiety. Hardly surprisingly, there is a reduced trust in male dentists and men generally. These are just some snippets from those impact statements that have been filed.
30 I take into account the admissible victim impact materials placed before me. You have targeted these various women. You have chosen to offend against them in what is an unmistakably serious context. You have breached every duty that you owed to those who were your patients. You have acted against one and then just moved on to another, seemingly without a care in the world.
31 Your counsel in the course of his submissions to me spoke of the losses, that is the damage to you, namely the loss of respect and of your profession. That is as it should be. These were your acts. These were your choices and those were the very predictable and foreseeable consequences. But you have left in your wake a trail of damage. You are responsible for the impacts referred to, no one else, and I take into account the serious impacts of your offending.
Mitigation
32 Mr Cash raised a number of matters in mitigation in what was a refreshingly straightforward and realistic plea. There was a brief written outline of plea submissions that was marked as Exhibit 1. He relied upon:
· Your guilty plea and the reasonably early stage of that plea;
· The presence of at least some limited remorse;
· Some increase in your custodial burden owing to the suggestion of depression in the materials placed before me, and hence the application of the fifth limb from the case of Verdins;
· He relied upon two written character references and called one of the authors as well as another priest to give character evidence before me;
· He took me to your background in detail;
· He impliedly argued that you had good prospects of rehabilitation as he submitted there was a low risk of re-offence;
· He made some brief submissions as to the nature and the gravity of the offending and the sentencing purposes at play here. He was not mucking around raising the potential availability of a combination type disposition, that is a prison term with your ultimate release onto a community corrections order. I asked him and he conceded that that style of sentence was not available here owing to the seriousness of the offending. He conceded the significant breach of trust and the inevitability of a term of imprisonment and one that would require the fixing of a non-parole period. It was a sensible concession.
Prosecution
33 The prosecutor, Ms Borg, made a number of submissions as well. She made submissions as to the seriousness of the offending. She spoke to the written sentencing submissions that were marked as Exhibit C on the plea. I am not going to repeat them all now. There was nothing particularly controversial in those submissions as to the offending. So for instance the breach of trust, the vulnerability of victims, the limits existing to the claim of good character when dealing with such a span of offending.
34 She challenged the application of the fifth limb of the case of Verdins, questioning the adequacy of the evidentiary basis, she questioned the usefulness of the evidence from the priest who was called and from Dr Youssef, as well as questioning the level of remorse on display in this case.
35 She referred me to the case of Wilson, not as being a comparable case but as containing some important and applicable statements of principle. Plainly the Director of Public Prosecutions of this State was calling for a term of imprisonment and one requiring the fixing of a non-parole period but the submission was hardly needed given the concession sensibly made by your own counsel.
Background
36 I want to turn now then to your background and I will do so briefly for three reasons. Firstly, I have no reason not to accept the family background that has been placed before me in the plea conducted by your counsel. Secondly, there is nothing at all in any of the material as to your background which in any way explains this serious offending. Thirdly, you know what your background is and there is little use my restating it to you or to others. So I do turn to it quite briefly. It is also set out in some detail in the written outline as well as fleshed out in the oral submissions made to me.
37 You were born in Egypt on 14 September 1958 so you are 60 years old. You passed Year 12 in Egypt, you moved on to tertiary studies in both Syria and Egypt, completing your dentistry degree in 1986. Then 18 months of military service beckoned before working in a clinic in Alexandria. Your father had been a respected surgeon and of your three older brothers who live overseas, two are doctors and one is a pharmacist. Your mother and father are now deceased.
38 You married in 1991 and your wife came out that same year to Australia and you followed later in that same year. You had to undertake further studies to be qualified to practise here and you did from about 1991 to 1993. Thereafter in 1994 you were then able to practise as a dentist and did so in Bateman’s Bay for about a year.
39 You then spent a number of years practising out of the Kingston Centre in Moorabbin as well as doing some after-hours work at the Dandenong community dental clinic. At a later point, you established your own clinic in Stud Road and, of course, a large number of the offences took place at that clinic. I am told that you lost a large amount of money from an inheritance, money which you invested in a property development which went badly wrong and this was in the period of 2013-2015. It left you feeling depressed and you were commenced on anti-depressant medication.
40 Your wife worked as the practice manager of your private clinic. Of course that clinic has now been shut down as you are no longer able to practise and that has been the position for some time now. You have two children and the oldest is a boy named John, studying dentistry up at the University of New South Wales. The hope was that he would join you in practice and eventually take over the clinic. Of course, that hope has been dashed entirely.
41 Your daughter is 23. She has obtained what appears to be a good degree in communications and is working outside that field in hip hop dancing. The family has lived at the family home in Endeavour Hills for 17 years. Your wife is there alone now. Their world has fallen apart, I am sure of that, and I have no doubt their position is excruciating as they try to cope with your fall from grace. It is not their fault that you have committed these acts. No doubt they are shocked by the conduct that has come to light.
42 AHPRA were notified of the fact of one of these complaints in February or March of 2014, as I said earlier in these reasons. Another complaint later in that same year. In November 2016, that is not a misprint, November 2016, the Dental Board of Australia in response to some of those issues that had come to light then took action and limited your rights prohibiting any contact with female patients. Too little far too late if I may say so. That was your status from then until 31 August 2017 at which point you were suspended from all practice. That arose from the death of a patient following a wisdom tooth extraction procedure conducted on 2 August 2017 where the issue of your possible responsibility for that death emerged on autopsy, with Victorian Institute of Forensic Medicine notifying the Dental Board of their concerns. Your registration has now expired. I am told that you would not seek re-registration. You will surely never be permitted to act as a dentist ever again.
43 You came to court last Thursday having been advised by your counsel of the certainty of a term of imprisonment. That sensible but miserable forecast has no doubt been hovering above your head for a number of months since the resolution of this matter and it cannot have been easy to come to grips with. You will be serving your first prison term and that will not be easy for you.
44 Your counsel in taking me through your background focussed on what you have lost. He prefaced those submissions by saying that it was all brought on by your own acts, but that you had lost your profession, your livelihood and would emerge ultimately from prison with no respect and no livelihood. That is true and I recognise that fact and I do take it into account. Regrettably your profession, an esteemed, trusted and respected profession, is exactly what brought you into contact with these victims. The bond of trust residing in your professional position facilitated the contact and hence the offending where patients were offended against.
45 Still, I take into account your counsel’s submissions as to your altered and reduced circumstances. Your counsel reminded me that as serious as the offending is, as sizeable the breach of trust, you are more than just the person who has committed those serious crimes, and plainly that submission is correct.
Guilty plea
46 I then turn to consider some of the other submissions made on your behalf by Mr Cash.
47 I turn firstly to your guilty plea. I will deal in one moment with some of the chronology as the stage of a plea is a relevant consideration to my task. The fact is though you have pleaded guilty and that is important. Your counsel was not suggesting that it was at the earliest stage at least for some of the offending, and plainly it was not in relation to the charges relating to Ms Gray, Ms Blackburn and Ms Rivera.
48 I now repeat some of the chronology I have already touched upon. Ms Rivera had levelled the allegations in 1997, you were interviewed in 1997 and denied the allegations, as was your right. More recently when some of the matters came to light in 2014, you were interviewed. You denied the allegations. You were interviewed at one point, as I have said, on 31 October 2014 and despite that you continued to offend, this time against Ms Monroe, the subject of Charge 9. I will come back to that in different context but it is really quite incredible that you would continue to offend even in the face of what you knew to be an ongoing police investigation into your serious and criminal conduct.
49 There was a further interview in August 2015. To cut a long story short, you either denied the offending or declined to comment. Charges were laid in relation to Ms Gray, Ms Blackburn and Ms Rivera and you conducted that contested committal on 28 and 29 August of last year. They were all cross- examined at length by Mr Cash. Former members of your staff were called at your request and cross-examined about their observations of you generally as a dentist and the absence of any support for the allegations levelled at you by Ms Blackburn in particular.
50 Your staff in cross-examination provided what were essentially testimonials to your competence as well as the care, courtesy and respect displayed by you to your patients. Of course, you knew precisely the opposite was true. I raised those issues with your counsel in the course of the plea.
51 On 29 August of last year you were committed to stand trial and, as I have said, a trial date was fixed for 3 September 2018. That initial directions hearing was conducted on 30 August 2017 in this court and your counsel made plain that the matter was proceeding to trial. The publicity at the time of the committal then led to the remainder of the current victims coming forward in dribs and drabs. It was those matters to which you made a no comment interview and you declined to be interviewed in relation to Ms McClure’s allegations.
52 It is obvious that the additional six complainants were the proverbial straw that broke the camel’s back. Those matters resolved at the earliest opportunity on 20 August 2018 and on the same day you indicated you were pleading guilty to the charges relating to the three complainants who had been cross examined already.
53 I want to make one thing very plain and I mentioned it earlier in these reasons. It was your right to say what you did on interview. It was your right to decline to comment. It was your right to run the committal. It was your right to go to trial. I will deal with these concepts when dealing with the issue of remorse in this case. At the moment I am dealing with the fact of your guilty plea.
54 You have taken early responsibility for your offending in relation to six of the victims. Those matters as I have said resolved at the earliest opportunity. You have taken less early responsibility in relation to the original three victims. I have to take into account the fact of the guilty plea as well as the stage of that plea. It is important that you have pleaded guilty. There is a strong utilitarian value which must be recognised in the sentence which is passed.
55 The community has been saved the time, the expense and the effort associated with the conduct of a full committal hearing for all the complainants in the Magistrates' Court. There has been no trial at all up in this court. Witnesses have, with the exception of those called in the Magistrates Court, been spared the experience of giving evidence. All of the witnesses have been spared the experience of giving evidence at trial. To the victims in particular, this is worth a lot. I regret to say that it is still my experience as a Judge in this court that even with all the advances that have been made and the alternative processes for the giving of evidence, including the use of the remote witness facilities and provision of witness support services, that the giving of evidence at trial is still most commonly an extremely stressful event for a complainant. Not just the giving of evidence but contemplating that as a future event. It hasn’t occurred here.
56 The guilty pleas once entered have totally vindicated each one of these complainants. With that guilty plea their status has immediately altered. They move from being complainants making allegations to actual victims of your crimes. At the same time from that point, they have been spared the experience of giving evidence at trial or even worrying as to that fact, and that must be recognised. You have in these ways facilitated the course of justice and I must reward you for your decision to plead guilty, and at the stage which you did.
57 I must pass a lesser sentence upon you than I would have imposed had you been found guilty by a jury after the conduct of a trial. That is the law.
Remorse
58 I turn now then to the issue of remorse. Your counsel accepted there were some real problems in that respect and was not suggesting there was much if any evidence of remorse other than that which might be implied from your guilty plea.
59 He accepted that the evidence from the character witnesses called on the plea and the written character material had some limitations. He was right. The claim as to your good character from those materials has to be viewed in light of the extent of the acts I am dealing with, their context and the date span of those acts. Those witnesses' experiences of you are of a man of good character in a number of areas but it follows they were completely in the dark in terms of this lengthy period of serious offending. In that period you were not a man of good character at all. Mr Cash accepted there was that tension in those materials.
60 Secondly, on the topic of remorse, which is what I am dealing with now, it became apparent that neither of the witnesses who were called had many if any discussions about what you had actually done. Neither were seemingly awake to the fact that you had run a contested committal or denied the offending. There is no question that you are upset with your predicament and the predicament of your family. That is hardly surprising; it would be strange if you were not.
61 That is not remorse. Remorse is not self-pity. Remorse is not concern for your family or a sense of having letting them down. It is not some lowering of your self-esteem or the loss of respect you feel or concern about being sent to prison. Rather remorse is a concept bound up with a sense of contrition for the actual crimes that you have committed against your victims and your feelings for them.
62 Father Attalla spoke of your remorse but it became apparent enough he was speaking of your concern predominantly for consequences to you and your loved ones. Mr Youssef spoke of your distress for your current circumstances. I was unimpressed by his written reference, I can say that very plainly, where he saw the need to speak of the smallness and welcoming nature of your consulting space. He saw fit to mention in his written reference that a nurse was present on all occasions that he had seen you treating any of his family, as if to suggest that in those circumstances it would not really be possible for any untoward conduct to occur.
63 I do not know why that is in the reference other than to raise that expression of doubt in his mind as to the happening of the acts. The acts occurred. The fact is a nurse was present on very many of the occasions of the sexual misconduct. I was not impressed by this evidence. I have examined the claim made by the witnesses (or the author for that matter) of your being of good character. You may well have behaved in a very decent fashion in many other facets of your life. There is no reason to think that you did not. However, this conduct was not out of character. That is what is apparent from the chronology. Your family and the witnesses no doubt are shocked by your conduct and I accept that but I cannot ignore the number of occasions of touching, the brazen nature of it, and the long period of inappropriate conduct which did occur.
64 What else then do I have that may touch upon your feelings for what you have actually done to these victims? Again the chronology is instructive. We have the first offending in 1996-1997 against Ms Rivera. It was a close shave indeed with the police being involved. You kept offending in later periods. You made full denials in relation to the interviews where you chose to answer questions. You even continued to offend following the first interview in 2014. You chose to conduct a committal in relation to Ms Rivera, Blackburn and Gray. Each were cross-examined. As I said earlier, your counsel cross-examined your former staff, no doubt to lock them in to a sworn version, one consistent with your innocence.
65 Ms Shabna for instance who worked with you for a five year period ending in 2015 (and hence for a sizeable period where you knew you were offending) was asked questions by your counsel to describe you and said you were very good with patients, with friendly personal skills and an ability to set patients' minds at rest, anxious patients were well catered for with thousands of patients seen and no concerns at all held by her.
66 It went from the general to the specific with questioning as to the procedures conducted with Ms Blackburn as she was a nurse on duty, all of it designed to demonstrate that nothing had happened. You knew it had. It was the same approach with Ms Bittar who had worked for you for two and a half years and stopped in about 2015. She was asked how you were regarded by your patients and answered “very loved by his patients and he’s loved by his staff as well”, see committal transcript 126. She was asked as to your reputation for honesty as well, on that same page. She was also asked about the specifics of
Ms Blackburn’s treatment. So there you were, sitting behind your counsel at that committal whilst that process took place.
67 You were committed to trial. You were running a trial. Then, of course, we had the stream of other patients and the complaints. It was the sheer weight of numbers that has brought about a change in your approach. It is hard to imagine a more compelling case for either tendency or coincidence reasoning than was presented in this case. It was a truly striking pattern of conduct and recognised to be so. Your counsel recognised that at the initial directions hearing and intimated that he would not be arguing against tendency reasoning being deployed here, and that was when there were three complainants. Three became nine and you then pleaded guilty.
68 A guilty plea is usually evidence of at least some remorse but that is not always the position. I have raised these various issues with your counsel including the conduct at the committal and Mr Cash conceded there were some tensions between that conduct and the submissions as to remorse. Your counsel frankly conceded that he could not point me to any evidence of remorse other than what might be inferred from your guilty plea. There is no written or verbal apology as there sometimes is.
69 There is nothing in any interview on that topic. I have no direct statement from you on this topic at all. Sometimes, probably too often actually, a consultant forensic psychologist who has seen an offender may report his or her opinion as to the presence or otherwise of remorse, but there is a glaring absence of any such report from a forensic psychologist in this case.
70 Given the crimes that you have committed, the circumstances of them and the degree of impact and harm caused, one would expect that you should be very remorseful indeed. I can detect no actual remorse here - none. I do not know why you are not remorseful but I am not satisfied that you are.
71 In that sense I do not treat your plea as implying any actual remorse. You have pleaded guilty and you get the full benefit for that as I have described already earlier in these reasons. That is a totally separate matter. However, I am just not satisfied there is any actual remorse for your victims in this case.
Prospects
72 I turn now then to your prospects of rehabilitation. I do not recall Mr Cash selecting, as sometimes is selected, an adjective to describe those prospects such as reasonable, or fair, or good, or very good or excellent. Rather I sense he approached it from the other direction dealing instead with your risk of re-offence.
73 He submitted that the risk was low. It is always difficult for a court to make an assessment as to the future prospects of rehabilitation, or for that matter the risk of re-offence. It is not an easy task to determine those future prospects in this case, I can tell you - not at all. In the lead up to your exposure, your friends and family, for instance Father Raphael or Father Attala or Dr Youssef would presumably have described your prospects of committing one of the offences against a single victim as non-existent or even unthinkable, and yet you have committed offences against nine victims, some of it rolled-up and over many years.
74 This is not some isolated aberration at one brief point in your life. This is not a case of your offending in 1987 or 1997 and having 20 or 30 years of offence free life thereafter. Nor is it as simple as saying that you have no prior convictions at all and that therefore bodes well for the future. You do not have any prior convictions and I do take that into account obviously but I am dealing with offending occurring when you were in your late 30s (Ms Rivera in 1996-1997), continuing against your dental nurse Ms Fuller[8] in the period of 1997-2000. Then continuing against the other named patients from when you were about 50 or 51 in about 2009 right through to 2015 when you were in your late 50s. So the offending spans a sizeable period in your life.
[8] A pseudonym used to protect the identity of the victim.
75 Not only that, there is the aspect of the near miss in 1997. That did not stop your conduct nor even the interview in 2014. You continued to offend even when the spotlight was swinging towards you which, as I have said, is quite amazing. The offending itself was in breach of every duty that you owed to your own patients. You must have known that. I have not been told of any step or effort at any stage taken by you to receive any counselling or treatment to stop the conduct or to even to try to understand it.
76 It was incredibly brazen conduct. It occurred under the nose of your own staff who would often be in the very room in close proximity and on at least one occasion with your wife in the adjacent room.
77 There is no suggestion of your cognitive state being eroded or your judgment somehow being impeded by substances or for any other reason, so there is no aspect of disinhibition at all here. You must have known how serious and how wrong this conduct was. There is simply no question of your thinking that any one of your victims was or might be consenting. Of course they were not, and I am satisfied beyond reasonable doubt that you were well and truly aware of that fact. Some of it occurred and then recurred in the setting of patients displaying their concern.
78 There is nothing before me in any way explaining your offending or even attempting to explain it. No expert report, which often enough in this sort of case is relied upon and often enough contains some form of risk assessment. I have seen enough of those reports to know that the long term nature of the offending, the multitude of victims, the chronology of offending in the face of the past police intervention and in the presence of witnesses, and in clear breach of your professional duties as well as your denial of it on multiple occasions would pose some serious enough issues. Those issues are raised on the materials before me without any assistance at all from an expert. As I have said earlier, I am not satisfied that there is any remorse here.
79 I have heard the full plea. I know next to nothing about why you did what you did. For all of those reasons, I am not able to accept your counsel’s submission of your having a low risk of re-offence. How can I reach that view? Why would I be so satisfied of that? I am not satisfied the risk is low at all given the drive that has had you offend in the setting I have described over all these years. True it is you will no longer have available the steady stream of vulnerable patients to exploit and misuse as you will surely never work as a dentist ever again. Really it was that feature and that feature alone which was at the heart of your counsel’s submissions as to your posing a low risk in the years ahead.
80 But what other occupations may you engage in? I do not know. Whether employed or not, what other contacts will you have in the future with unsuspecting or even suspecting women? Who knows?
81 You have committed some serious crimes. Why? There is silence on that topic. No expert materials. No theories, no opinions, just silence. I am left with no clarity at all as to any explanation for this long term descent into serious criminal conduct. Why would that desire or drive to sexually interfere, as has so evidently existed over all those years, just evaporate? It was a drive which was strong enough to overcome so many obvious obstacles and to persist for so many years.
82 Often enough the process of being arrested and charged and brought before a court has a role to play in deterring future offending. Being interviewed by the police in October 2014 did not even deter you from committing the fresh offence and serious offence against Ms Monroe in 2015.
83 You will now be sent to prison for a significant period of time and one would hope that that would have a role to play in deterring you into the future. No doubt you will be asked to do a sexual offender treatment program in custody. Perhaps that will reduce your future risk, but who knows?
84 Ultimately then for the reasons I have advanced, I can only be very guarded as to your future prospects of rehabilitation and your risks of reoffending. I assess your prospects of rehabilitation as being reasonable. I am really unable to reach a clear view as to your risk of re-offence but I am certainly not satisfied that it is low.
Verdins
85 Initially your counsel submitted that the case of Verdins, a Court of Appeal decision, had no application at all in this case. He then changed tack and argued that the fifth limb from that case had some application. I had best explain so that you and others understand these reasons.
86 That case is a Court of Appeal decision dealing with the impact upon the sentencing process of conditions existing either at the time of offence or sentence or both. That is something of a gross simplification but it really is sufficient for present purposes. The fifth limb from that decision deals with an increase in the prison burden arising from a condition.
87 What was the condition relied upon here? It was depression. What is the evidence in support of the condition and as importantly the way in which it would actually increase your prison burden? There is virtually none. I have a letter from Dr Ibrahim dated 3 November 2014. Your GP had referred you to him for management of your psychiatric condition. To quote Dr Ibrahim's letter, “His symptoms indicate melancholic nature of MDD and I’ve increased his antidepressant”. I will assume that the reference MDD is a reference to a major depressive disorder. That is a letter written back in November of 2014. I have no updated report.
88 I have a patient health summary from the Stud Road Medical Centre dated 12 November 2018 and that deals purely with your current medication and evidently you are still prescribed antidepressants. That is the extent of the evidence. That is an entirely unsatisfactory basis from which to conclude that there is any increased custodial burden operating here. I am not satisfied on the balance of probabilities that there is. Really, I think your counsel had it right the first time when he indicated that Verdins had no application. It has none at all and that is because there is no evidentiary basis at all.
Serious offender provisions/totality is modified
89 I turn now to the serious offender provisions and the concept of totality of sentence in this case. I will be sentencing you as a serious sexual offender from the time of the third sentence being imposed by this court.
90 Under the serious sexual offender provisions contained in the Sentencing Act 1991, unless I otherwise direct, the sentences passed upon you from that third sentence would be served cumulatively, that is consecutively, upon the earlier sentences imposed and upon each other and upon other sentences imposed by me. (See s.6E of the Sentencing Act 1991).
91 Additionally, for the sentences imposed from that point, from the point of the third sentence, I must - not may, I must - regard the protection of the community as the principal sentencing purpose. The court has under those provisions available the power to impose a disproportionate sentence in relation to those charges to achieve that purpose. I make very plain that I will not do so here. No one suggests that it is open to pass a disproportionate sentence and I will not pass any disproportionate sentences in this case.
92 These serious offender provisions exist for a reason. They are not accidental and I am not free to ignore these provisions. What I must do is give them their due weight. The rule as to cumulation that is set out within those provisions has an evident object and one that is not to be defeated merely by the court’s exercise of the discretion to direct otherwise. To adopt that as a routine course would undermine what is a clear legislative policy within the provisions.
93 These provisions give effect to the legislative will that ‘serious offenders’ are in a special category of offenders. (See Beyer v R [2011] VSCA 15 and R v RHMcl [2000] 203 CLR 452. See also HPW 2011 VSCA 88.) See also the more recent case of Hopson [2016] VSCA 303 to which I was referred by Ms Borg. I must give weight to s.6E and the nature of your offending. It is clear though that I still must pay regard to the principles of totality. Whilst those principles are clearly modified by this role, they are still important.
94 Despite the primacy of community protection, I must also inform myself by reference to the level of risk of re-offending in this same way. I have commented at length already as to the difficulties in assessing your risk of re-offence in the future.
95 I have given consideration to the overall effect of the sentences imposed by this court. I have engaged in a last look at the overall effect in endeavouring to avoid a sentence that might be crushing upon you, and to ensure that the overall effect is consistent with your overall criminality. Your overall criminality was very high in this case.
96 Quite aside from the presumption in favour of cumulation that is found in s6E, there would be a strong need to cumulate portions of the sentences here. These were not minor crimes. They were separate acts on separate occasions and critically, they were committed upon quite separate victims with individual impacts. The need for meaningful cumulation would be obvious independent of the serious offender provisions.
97 What I cannot lose sight of is that your serious individual crimes have been committed upon individual victims. They must be reflected in the appropriate individual sentences being imposed and in the level of cumulation. The victims are not to be reduced to meaningless statistics by sentences which have no or little practical impact upon you.
98 Necessarily though, I must to some extent otherwise order concurrency under 6E. If not, every sentence from the third sentence imposed would cumulate upon the base sentence and upon each other. The ultimate sentence in such a setting as that would be appropriately described as crushing. In recognition of this principle of totality, modified as it is, as you will see, I am going to order some decent measure of concurrency here.
99 At the end of the day though, it seems to me that a very sizeable sentence is the inescapable outcome of your choice to commit separate sexual offences mostly in a breach of trust setting against a large number of quite separate and vulnerable victims.
The Offences
100 As to the offences themselves, your counsel conceded that this was serious offending. He described it as involving an egregious breach of trust. Egregious is defined in the dictionary that I turned to (the Macquarie) as "remarkably or extraordinarily bad or flagrant". His concession was undoubtedly correct.
101 Now at one point Mr Cash made a submission to the effect “that if we put aside the significant breach of trust here, that a large proportion of the offending was at the lower end of the scale”. His written submission was cast in a slightly different fashion and described ‘the objective circumstances of a large proportion of the offending falling at the lower end of the scale’. In fact the objective circumstances would include, not exclude the breach of trust and vulnerability.
102 So it was then that Mr Cash selected the charge with the least degree of touching, that is the charge relating to Ms Rivera and then examined the physical touching, what occurred and what did not. Not the context. Not the presence of another person. Not the relationship of dentist and patient. Not the breach of trust. Not the words actually spoken. Not the impact. Just the physical touching. That and that alone. That is exactly what I cannot do. Putting aside the breach of trust would involve me focussing on a very different offence, which again is what I must not do.
103 It is the breach of trust which is so serious in this case. The context is critical to any sensible assessment of the seriousness of the offence. The breach of trust is a very serious aggravating feature as was conceded. There really is no point approaching my task by imagining or envisaging a totally different crime.
104 Nor by the way is the submission correct when one looks at some of the admitted facts in relation to some of the other victims. We are dealing with charges of indecent assault so necessarily that offence will never involve the more serious sexual acts, for instance, any act of sexual penetration.
105 Ms Fuller was an employee in her workplace. It is rolled-up conduct of the two occasions referred to, hands inside her shirt down to the top of her breast with her saying “stop” and “please don’t” and a repetition on another date several weeks later where you undid her bra and touched her breast.
106 What of Ms Bartlett? Hand on the outside of her clothes, rubbing from her groin to her vaginal area. During treatment, treatment for a woman with some very special needs and vulnerabilities owing to her cancer. It is after all why she was there. She needed a large amount of dental work as radiotherapy and chemotherapy had caused the loss of about 20 fillings.
107 Ms Sargent[9] had one of your hands on her breast, the other on her thigh, with you whispering "I love you" into her ear. The hand remained on her breast for what seemed like quite a while. She was shocked and froze. All of that during root canal therapy, a procedure which would have most people weak at the knees without factoring in the additional and unwanted sexual touching.
[9] A pseudonym used to protect the identity of the victim.
108 Ms McClure had been a regular patient for many years and is the subject of rolled-up allegations, touching her breast, her putting her hand up to stop you and your conduct ceasing when the nurse returned to the room. At the next appointment, putting your hands down into the waistband of her pants and trying to put your hand down her pants. Being stopped by her. She confronted you in private. She said “What do you think you were doing? How would you like me to tell your wife what you were doing?” You apologised and you said it would not happen again. It did not happen again to her, but the offending continued with others. Again that is quite incredible.
109 Ms Gray was touched on the breast during treatment. For Ms Spencer the treatment was coming to an end and the nurse was using the UV light to conclude the procedure, and as she did that, you were attempting to put your hand up her top. She was pushing your hand away from her breast and you then moved down to her pubic area on the outside of the clothes. She kept trying to push your hand away with no success. It is a rolled-up charge.
110 What then of the touching of Ms Blackburn, the subject of Charge 8 on the indictment? That was not selected for dissection by Mr Cash and no doubt for good reason. Even if I could put aside the breach of trust, the vulnerability and just focussed on the touching, it would be impossible to describe the touching in her case as at the lower level. It plainly was not. It is a rolled-up charge. As you purported to work on her teeth, you were rubbing her stomach under the tray. You pulled out her shirt from her pants and then put your hand down the top of the pants and into her underpants. So touching her pubic hair under her underpants as you purported to act as a dentist - as her dentist.
111 She panicked and moved her elbows to try to push you away and attempted to make a sound. I say attempted because she had dental equipment in her mouth. As I have said a moment ago, indecent assault cannot involve penetration. On any view of it and before going further into the facts of that charge, this was obviously a very serious example of such a crime even dealing with the touching alone. Then add in the context, that is the breach of trust, the presence of another person, the vulnerability. As I have said, she had equipment in her mouth and tried to push you away.
112 You responded by grabbing her hands, you held them and you then moved back and put your hand back under her jeans and inside her underpants moving in a circular motion on her pubic area. Again she tried to push you away. You then withdrew your hand and touched her in the area of the vagina on the outside of the clothes. The consultation, for want of a better term, finished. Plainly enough you were using it for your own sexual purposes, but it ended with her trying to leave as swiftly as she could, which was hardly surprising.
113 You pushed her into the seat, you put a finger on either side of her mouth to turn up no doubt what were the downturned corners of her mouth to form a smile, saying “smile” as you did so. It was dreadful offending.
114 Finally Ms Monroe, the subject of Charge 9. Again, it is a rolled-up charge, again a hand up her shirt to touch her breasts, pushing you away and you then putting your hand down the front of her pants into her underpants and touching her pubic area towards her vagina. She jumped and pushed your hand away. That offence had occurred sometime in 2015 and hence, after you had been interviewed by the police in October of 2014 in relation to other alleged misconduct. The conduct described by Ms Monroe could never be described as falling at the lower level of offending. It was not even close to that.
115 Mr Cash in dealing with Ms Rivera, and focussing on the physical act to the exclusion of the breach of trust and vulnerability, spelt out other matters of aggravation which were absent. So, for instance, he spoke of the relatively brief nature of the touching, of your being clothed and her being clothed, of her not being hurt physically or threatened in any way. So it was the absence of those features of aggravation that Mr Cash was focusing on.
116 The absence of those features of aggravation is not a matter in mitigation. The absence of some matters of aggravation does not somehow remove the existence of the aggravating features that do present themselves, that is the sizeable breach of trust which does exist here.
117 Mr Cash at one point said that these were not offences committed against children, and that those sorts of offences, offences committed upon children, were viewed more seriously by the courts. That may or may not be so, it does not actually really matter because what it does is to introduce something of a distraction to my task. The victims were not children; I know that. They were adults, adults of a variety of differing ages. Had the victims been children there would have been a different offence potentially and some different considerations at play.
118 But I am not dealing with a different offence. I am not dealing with offences against children and I am not just dealing with the physical act. I am dealing with offending with, as I have said, different degrees of touching, different facts and durations but one constant and very significant feature of aggravation at least with the patients is that they were your patients and you were meant to be treating them as a health care professional. You were their dentist, they were seeking treatment from you - not just seeking it, they were paying for it - and were highly vulnerable in that setting.
119 I also have the impact of the crimes which is something that I must take into account. One can see in Ms Rivera’s impact statement the sizeable impact that has flowed even to one who arguably has sustained the least serious instance of physical touching. Context is critical here and it cannot be ousted from any sensible consideration of the offending. To do so would be to consider a totally different offence.
120 I am by the way not being critical of Mr Cash. I do not want anyone to misunderstand what I am saying or his submission. He was not submitting that any of the offending was minor or not serious. Rather he was endeavouring to make a submission as to the nature and the gravity of the various instances of the offence. Why? The answer is that the court is required to take into account the nature and gravity of an offence and so it is not unusual to have these submissions made which seek to place the instant offence on a spectrum of offence seriousness. To see where it ranks as against other examples of the offence.
121 This was all serious offending, make no mistake. You did exploit the vulnerability of your patients. How vulnerable they were and no doubt felt in the dentist’s chair. You knew that. Who looks forward to going to the dentist? Who sits happily in the waiting room? Who amongst us does not feel vulnerable in a dentist’s chair? I have a lovely dentist. I have known her for over 35 years even from before she was a dentist. She is as kind and reassuring and as gentle as she can be in the circumstances. I am sure she would not mind me saying or for that matter be surprised to hear me say that I do not particularly look forward to seeing her in her dental surgery. The fact is she would know as much, from my obvious level of anxiety and my tensed manner of holding on to the arms of the chair that I recline in as she goes about her work.
122 You describe the anxiety of patients in the October 2014 interview. You even describe feeling shaky yourself when you are sitting in the dentist’s chair. See question number 18 on page 225. As you would know, going to the dentist is not something that many of us look forward to. We do it because we have to. These patients had to, they were your patients and these patients were vulnerable, they put themselves into your hands for professional treatment and were paying for your services. They were there to get treatment and you indecently assaulted them as they were essentially captive in your chair. It was quite brazen offending.
123 To quote from the case of Wilson to which I was referred, you systematically exploited the vulnerability of your victims to satisfy your own sexual needs. There is this grave aspect of the offending though of course not all the acts were at the same level of seriousness. That much is plain.
Purposes
124 I have to consider a number of purposes of sentencing. I must consider your prospects of rehabilitation and as I have said I think they are reasonable.
125 There are many other sentencing purposes. I am required to punish you. That is a significant sentencing purpose in this sort of case. I must also denounce your conduct, and I do. Again, that is also a significant purpose. This was serious and perverse criminal conduct.
126 There are other purposes of sentencing. There is the need for this court to deter you from offending in the future. Given the nature of the offending that I am dealing with, the span of years as well as the chronology that I have spoken of, including offending even in the face of protest from some of your victims and police investigations, specific deterrence is important. Get it into your head you must never do anything like this again in any setting.
127 I also need to consider the protection of the community. Again it has to be given some weight in relation to the first two sentences and from the point of the third sentence imposed by this court it then becomes the principal purpose of sentencing.
128 General deterrence is a powerful factor for obvious enough reasons in this case. It is critical that those who are in these positions of power or trust in the health professions are left in no doubt as to the likely outcome should they breach that trust in this way. That any breach of trust will be met with a stern outcome at court. This court is required to send a clear message to others in the community including health care professionals who might be minded to commit these sorts of sexual offences against women.
129 The courts have a vital role to play in this respect. We as judges, must spell out how seriously this conduct will be viewed.
130 I do pay regard to current sentencing practices. That is not a single controlling factor and indeed it never has been. The case of Wilson to which I was referred was raised not as a comparable case but rather as containing some statements of principle.
131 I have looked at the relevant tables of cases in the Judicial College of Victoria sentencing site for indecent assault.
132 I have looked at Sentencing Advisory Council Snapshot No.208 of May 2017. Prison terms imposed ranged from 15 days to four years in the period covered by that data.
133 There are inherent limitations in looking at statistics. They tell me nothing at all about the facts of the case or the acts or the offender’s personal circumstances. Nothing about the existence or otherwise of remorse, nothing about any aggravating features or factors such a breach of trust. Not every indecent assault carries with it an aspect of breach of trust. It is a very powerful feature in those cases where you assaulted patients. What I must do is sentence you for your crimes. They are serious as is conceded.
134 There has been a level of criticism from those above me in the court hierarchy of the efforts taken by lawyers, and for that matter judges, to attach or apply labels to describe the levels of offence seriousness. As occurred in this case, we as judges often hear submissions made as to the offending falling at a certain level and an adjective is then described.
135 Sometimes - and I am not saying it was in this case - but sometimes it becomes slightly silly as there are distinctions seemingly drawn between the upper mid category and the mid category or even the low mid category of offence seriousness. They are pretty meaningless terms. It is far better then for me to focus on the particular offending. As I have said though, we must as judges try to assess where an offence falls on the spectrum of offence seriousness because we must make an assessment of the gravity of the offence before the court.
Where do you fall on the spectrum of offence seriousness? I have the nine offences and they do not all fall at the same level given the differing acts. So I have differing acts. I have different parts of the body being touched. I have differing durations. I have differing impacts. I have differing circumstances, for instance Ms Monroe being assaulted by you after the October 2014 interview. I have differences in terms of the stage at which you pleaded guilty.
I am not going to now descend to each offence and apply a particular descriptor or label. It is clear that those offences committed upon patients have in common the grave breach of trust which has been conceded. The acts targeting your employee are also serious owing to her vulnerability as an employee and her being in her workplace, a place where she should have been safe. All are accordingly serious criminal acts, but some are plainly more serious than others.
The conduct suffered by Ms Blackburn and Ms Monroe are to my mind very serious examples of the crime of indecent assault for the reasons that I have elaborated on earlier. I regard the offending against Ms Blackburn as the most serious on the indictment and I note that she was also cross-examined and so the stage of the plea is later in that instance than in many of the others. Obviously the offending against Ms Rivera is far less serious given the degree of touching described but it is still subject to this grave breach of trust and her high level of vulnerability at the time of the act occurring and it has had, as is plain from the impact statement, a sizeable impact upon her.
464 ZF
Application is made in this case for a forensic sample and it is not opposed. I will make the order and have signed that order. I now must pronounce it. Pursuant to the provisions of s.464ZF of the Crimes Act I direct that you undergo a forensic procedure for the taking of a scraping from your mouth in accordance with the relevant provisions of the Crimes Act until a sample of sufficient standard is obtained for placement on the database. I am satisfied it is appropriate to make this order owing to the seriousness of the offending, the fact that it is not opposed and that I judge it to be in the public interest to make this order.
What that deals with, Mr Michael, is a procedure whereby someone in a position of authority will approach you while you are in custody and engage in a mouth swabbing procedure, that is what I am authorising at the moment, I am not authorizing a blood sample at this point, and they can use reasonable force to obtain that mouth scraping. It is not a particularly invasive procedure and should provide no issues. I have signed that order.
Sentence
141 Stand up then, please, Mr Michael. The most serious offence in my view is Charge 8 relating to Ms Blackburn and that will attract the longest sentence which will be the base sentence. It seems to me that there are practical difficulties in terms of the Serious Offender provisions and cumulation in the event that I sentence on the most serious matter as the eighth sentence imposed by this court, which is what I would do if I simply sentenced in order of the charges on the indictment.
142 I would then have to otherwise direct in relation to that matter, whilst at the same time cumulating other parts of the sentence upon that base sentence. That is extremely cumbersome and confusing. Instead what I am going to do is I am going to sentence on Charge 8 first and pronounce it as the base sentence. Then I will move to Charge 9 the second most serious offence in my view on the indictment, pass sentence on that, and then work my way back down the indictment from Charge 1 through to 7.
143 I will hand down to counsel and instructors just a note of the sentences that are going to be pronounced because I am going to be moving from concepts of cumulation to concepts of concurrency, which is quite confusing and difficult so hopefully it will assist them.
144 On Charge 8, the rolled-up charge relating to Ms Blackburn you are convicted and sentenced to 33 months, that is two years and nine months' imprisonment.
145 On Charge 9, that rolled-up charge in relation to Ms Monroe, you are convicted and sentenced to two years and four months imprisonment.
146 From Charge 1, which I now move to therefore, you then fall to be sentenced as a serious sexual offender.
147 On Charge 1 in relation to Ms Rivera, you are convicted and sentenced to eight months' imprisonment.
148 On Charge 2, the rolled-up charge relating to Ms Fuller, you are convicted and sentenced to 12 months' imprisonment.
149 On Charge 3 in relation to Ms Bartlett you are convicted and sentenced to 15 months' imprisonment.
150 On Charge 4 in relation to Ms Sargent you are convicted and sentenced to nine months' imprisonment.
151 On Charge 5, the rolled-up charge in relation to Ms McClure you are convicted and sentenced to 20 months' imprisonment.
152 On Charge 6 in relation to Ms Gray, you are convicted and sentenced to nine months' imprisonment.
153 On Charge 7, a rolled-up charge relating to Ms Spencer, you are convicted and sentenced to 20 months' imprisonment.
Cumulation
154 As I have said, the base sentence is therefore the two years and nine months imposed on Charge 8 relating to Ms Blackburn. I direct then that 12 months of the sentence imposed on Charge 9 is to be served cumulatively, that is consecutively, upon that base sentence.
Otherwise order concurrency
155 From that point, that is the third sentence imposed, I then follow the scheme of the legislation and must then pronounce the extent of concurrency rather than the extent of cumulation. That is, I must otherwise order under s6E of the Sentencing Act.
156 Concurrency
· 2 months of the sentence on Charge 1 (+ 6 months = 4 years 3 months)
· 6 months of the sentence on Charge 2 (+6 months = 4 years 9 months),
· 9 months of the sentence on Charge 3 (+6 months = 5 years 3 months)
· 3 months of the sentence on Charge 4 (+6 months = 5 years 9 months)
· 14 months of the sentence on Charge 5 (+6 months = 6 years 3 months),
· 3 months of the sentence on Charge 6 (+6 months = 6 years 9 months)
· 14 months of the sentence on Charge 7 (+6 = 7 years 3 months)
are to be served concurrently upon the base and part cumulative sentence.
157 These orders are very hard to follow, but these orders therefore produce further cumulation of three and a half years.
Total effective sentence
158 These orders then, firstly for cumulation and then for concurrency, produce a total effective sentence of seven years and three months' imprisonment.
Non-parole period
159 I fix a period of four and a half years during which you will not be eligible for release on parole.
Section 18
160 Following my remand of you the other day, you have already spent seven days in custody by way of pre-sentence detention and that period is declared as having already been served under this sentence pursuant to s.18 of the Sentencing Act 1991.
6AAA
161 Had you been found guilty of these offences following a jury trial, I would have sent you to prison for ten years. I would have fixed a non-parole period of seven and a half years. That is to be noted in the records of the court.
Serious offender status
162 I have sentenced you as a serious sexual offender in relation to Charges 1, 2, 3, 4, 5, 6 and 7 and that status as a serious sexual offender is to be noted in the records of the court. Just have a seat please.
163 I handed down that document so that you could follow both the individual sentences and then the scheme of the orders for cumulation and concurrency. I believe my mathematics is correct, I have checked it a number of times but maths was never my strong suit. Are there any issues in terms of any of those calculations at all?
164 MR CASH: Not that I can discern, Your Honour.
165 HIS HONOUR: All right. In any event, I have indicated my intended outcome here and I believe I have achieved it by those various orders; that is to say, a total effective sentence of seven years and three months with a non-parole period of four and a half years. But as I say, I have tried to follow the scheme of the legislation, moving from cumulation on the one hand and then to the extent of concurrency on the other and it is always a bit confusing, at least hearing it, but as I say I have looked at it fairly carefully. I hope I have not fallen foul of the mathematics of it.
166 Let me just see if there is any other order then that I need to make. That was the only ancillary order, Ms Borg, was it, the 464?
167 MS BORG: Your Honour, I may have missed it because I was looking at them, but did Your Honour declare a 6AAA?
168 HIS HONOUR: I did, yes.
169 MS BORG: Sorry, Your Honour.
170 HIS HONOUR: Ten with a seven and a half.
171 MS BORG: Sorry, Your Honour. Yes, the forensic sample is the only.
172 HIS HONOUR: That was it, all right. No other matters from you, Mr Cash?
173 MR CASH: No, Your Honour.
174 HIS HONOUR: Are there any sort of custody matters or directions at all that you want me to make, or not?
175 MR CASH: I believe they have been addressed in relation to his medical circumstances. If I might just seek some instructions, Your Honour.
176 HIS HONOUR: Of course you can.
177 MR CASH: No. Thank you, Your Honour.
178 HIS HONOUR: Thank you very much. That completes the matter. Mr Michael can be removed now, thank you.
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