Khorami v R; R v Khorami

[2021] NSWCCA 228

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Khorami v R; R v Khorami [2021] NSWCCA 228

Hearing dates:

30 July 2021

Date of orders:

24 September 2021

Decision date:

24 September 2021

Before:

Bell P at [1];
Johnson J at [44];
Cavanagh J at [425].

Decision:

Conviction appeal:

1. Grant leave to appeal against conviction.

2. Appeal against conviction dismissed.

Crown sentence appeal:

3. By majority, appeal dismissed.

Catchwords:

CRIME – appeal against conviction – Applicant found guilty by jury of administering an intoxicating substance with intent to commit an indictable offence (aggravated indecent assault) under s. 38(a) Crimes Act 1900 (one count), aggravated indecent assault under s. 61M(1) Crimes Act 1900 (19 counts) and committing an aggravated act of indecency under s. 61O(1A) Crimes Act 1900 (two counts) – ground of appeal contends that guilty verdicts on 10 of 22 counts were unreasonable or cannot be supported on the evidence – Applicant a sleep technician charged with committing offences against five separate female victims during course of overnight sleep studies at medical facility – consideration of totality of evidence – sleep studies recorded on CCTV but not all acts of Applicant clearly visible in recordings – significant role of tendency directions in determination of verdicts – held that verdicts of guilty on each of the 10 challenged counts was open to the jury – conviction appeal dismissed

CRIME – Crown sentence appeal – Applicant sentenced to aggregate term of imprisonment for six years with non-parole period of three years and nine months – five female victims aged between 16 and 29 years – offences committed over six-week period in 2018 – Applicant qualified as medical practitioner working as sleep technician – Applicant entered sleep study room and committed offences against victims whilst purporting to touch them for purposes associated with the sleep study – whether error in assessment of objective seriousness concerning six of 22 offences (ground 1) – whether error in failing to provide reasons as to how Applicant’s prior good character taken into account (ground 2) – whether aggregate sentence manifestly inadequate (ground 3) – ground 1 upheld in part (by majority) – ground 2 rejected – ground 3 rejected (by majority) – Crown sentence appeal dismissed (by majority)

Legislation Cited:

Crimes (Appeal and Review) Act 2001

Crimes (Sentencing Procedure) Act 1999

Crimes Act 1900

Criminal Appeal Act 1912

Health Practitioner Regulation National Law 2009

Public Health Regulation 2012

Cases Cited:

BG v R [2020] NSWCCA 295

Bray v R [2018] NSWCCA 301

Brown v R [2014] NSWCCA 215

CMB v Attorney General (NSW) (2015) 256 CLR 346; [2015] HCA 9

Corby v R [2010] NSWCCA 146

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

Director of Public Prosecutions v Klep [2006] VSCA 98

DL v R [2020] NSWCCA 164

Einfeld v R (2010) 200 A Crim R 1; [2010] NSWCCA 87

EJDG v R [2012] NSWCCA 251

Elomar v R (2014) 300 FLR 323; [2014] NSWCCA 303

Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49

FL v R [2020] NSWCCA 114

Franklin v R [2019] NSWCCA 325

Gardiner v R (2006) 162 A Crim R 233; [2006] NSWCCA 190

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49

Hawi v R (2014) 244 A Crim R 169; [2014] NSWCCA 83

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45

House v The King (1936) 55 CLR 499; [1936] HCA 40

Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20

Irmak v R; Dagdanasar v R [2021] NSWCCA 178

JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297

Jung v R [2017] NSWCCA 24

Kahler v R [2021] NSWCCA 40

Kearsley v R (2017) 265 A Crim R 233; [2017] NSWCCA 28

Kelley v R [2021] NSWCCA 173

Lee v R [2016] NSWCCA 146

Lees v R [2019] NSWCCA 65

Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30

LN v R [2020] NSWCCA 131

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35

Magro v R [2020] NSWCCA 25

Manojlovic v R; R v Manojlovic [2020] NSWCCA 315

McIntosh v R [2015] NSWCCA 184

Mohindra v R [2020] NSWCCA 340

MRW v R [2011] NSWCCA 260

Mulato v R [2006] NSWCCA 282

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17

Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26

R v Amati (2019) 279 A Crim R 73; [2019] NSWCCA 193

R v Gommeson (2014) 243 A Crim R 534; [2014] NSWCCA 159

R v JRD [2007] NSWCCA 55

R v Kennedy (2019) 101 NSWLR 121; [2019] NSWCCA 242

R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381

R v Mulligan [2016] NSWCCA 47

R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534

R v Stoupe [2015] NSWCCA 175

RC v R; R v RC [2020] NSWCCA 76

Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21

Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74

Taitoko v R [2020] NSWCCA 43

Taylor v R [2020] NSWCCA 355

Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247

The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Vaughan v R [2020] NSWCCA 3

Waterfall v R [2019] NSWCCA 281

ZA v R (2017) 267 A Crim R 105; [2017] NSWCCA 132

Zahorsky v R [2013] NSWCCA 268

Zhao v R [2019] NSWCCA 203

Texts Cited:

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Category:

Principal judgment

Parties:

Ali Khorami (Applicant)
Regina (Respondent)

Representation:

Counsel:
Ms J Paingakulam (Applicant)
Ms M Millward (Respondent)

Solicitors:
Legal Aid, NSW (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2018/319124

Publication restriction:

1. Because of a pending trial of the Applicant which was listed to commence in the District Court on 13 September 2021 (and later listed on 6 October 2021), on the application of the Crown and the Applicant, the Court of Criminal Appeal made an order on 30 July 2021 (T1-2) under s.7 Court Suppression and Non-Publication Orders Act 2010, preventing the publication of the Applicant’s name and preventing the publication of information comprising the evidence of each of the offences, whether or not the offences resulted in a conviction and are the subject of the conviction appeal, with that order to operate throughout the Commonwealth of Australia and until the conclusion of the trial in the matter described as JusticeLink No. 2020/00225974, being the trial listed to commence on 6 October 2021.

2. As a result of the order made on 30 July 2021, the Applicant was referred to in this judgment by a pseudonym (AK) with the pseudonym to be replaced by the Applicant’s name when the non-publication order was lifted.

3. Following the return of a verdict at a Judge-alone trial on 26 October 2021, the Court of Criminal Appeal lifted the non-publication order made on 30 July 2021 so that the name of the Applicant, and the evidence at the trial of the Applicant can now be published.

4. The complainants are not identified in this judgment, consistent with the protection against publication to which each of them is entitled under s.578A Crimes Act 1900 and, in respect of JS, also under s. 15A Children (Criminal Proceedings) Act 1987.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

---

Date of Decision:

Conviction: 6 July 2020
Sentence: 9 October 2020

Before:

Flannery SC DCJ

File Number(s):

2018/319124

headnote

[This headnote is not to be read as part of the judgment]

Ali Khorami (the Applicant) was employed as a sleep technician at the Woolcock Institute of Medical Research in Glebe. His duties included monitoring patients who came to participate in overnight sleep studies, which were recorded using CCTV.

Between the period 17 July 2018 and 30 August 2018, the Applicant was charged with a number of offences committed against five female complainants who were participating in such sleep studies. At trial, the Crown relied, without objection, upon the evidence of each count as tendency evidence in relation to each other count, submitting that the evidence demonstrated that the Applicant engaged in a pattern of behaviour that revealed that he had a sexual interest in females aged between their late teens and their late 20s, and a tendency to act in a particular way, namely to indecently assault or commit acts of indecency on females who were under his care as patients during the course of his employment at the Woolcock Institute.

Following a trial at the District Court of New South Wales, a jury found the Applicant guilty of 19 counts of aggravated indecent assault under s 61M(1) of the Crimes Act 1900 (NSW), one count of administering an intoxicating substance with intent to commit an indictable offence (namely, aggravated indecent assault) contrary to s 38(a) of the Crimes Act, and two counts of committing an aggravated act of indecency under s 61O(1A) of the Crimes Act.

The Applicant was sentenced to an aggregate term of imprisonment of six years, comprising a non-parole period of three years and nine months.

The Applicant sought leave to appeal against his conviction in relation to 10 of the 22 counts with which he was charged (the Applicant’s appeal). The Crown also appealed against the aggregate sentence imposed on the Applicant, pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) (the Crown appeal).

The principal issue on the Applicant’s appeal was whether the conviction on each of the 10 counts was unreasonable or could not be supported having regard to the evidence, on the basis that what appeared in the relevant CCTV footage was insufficient to allow a finding beyond reasonable doubt that the alleged offences occurred.

With respect to the Crown appeal, the principal issues were:

whether the trial judge erred in her assessment of the objective seriousness of six counts as challenged (ground 1);

whether the trial judge erred by failing to provide reasons as to how the Applicant’s prior good character was taken into account (ground 2);

whether the sentence pronounced was manifestly inadequate (ground 3).

The Court held:

With respect to the Applicant’s appeal (Johnson J, Bell P and Cavanagh J agreeing), granting leave to appeal but dismissing the appeal against conviction:

Having undertaken an independent assessment of the totality of the evidence, including the CCTV footage of the sleep studies and the tendency evidence, the Court held that it was well open to the jury to be satisfied beyond reasonable doubt of the guilt of the Applicant on each challenged count: [11] (Bell P); [199]-[259] (Johnson J); [425]-[426] (Cavanagh J).

With respect to the Crown appeal (Bell P and Cavanagh J agreeing, Johnson J dissenting) dismissing the appeal:

Ground 1:

Counts 3, 4, 6, 17 and 25:

Per Bell P and Cavanagh J: The trial judge did not err in her assessment of the objective seriousness of the three counts of aggravated indecent assault and two counts of aggravated acts of indecency as being “relatively low level”, with such an assessment being well open to her Honour: [16]-[20]; [439]-[466].

Lees v R [2019] NSWCCA 65; Magro v R [2020] NSWCCA 25; Mulato v R [2006] NSWCCA 282; Taitoko v R [2020] NSWCCA 43, considered.

Per Johnson J (dissenting): The trial judge erred with respect to her characterisation of the three counts of aggravated indecent assault and the two counts of aggravated acts of indecency as being “relatively low level”, as this did not reflect the very significant abuse of authority and breach of trust involved: [309]-[327]; [338].

EJDG v R [2012] NSWCCA 251; Jung v R [2017] NSWCCA 24; Waterfall v R [2019] NSWCCA 281, considered.

Count 21:

Per Johnson and Cavanagh JJ: The trial judge erred in her characterisation of count 21 (comprising one count of administering an intoxicating substance to commit an indictable offence, namely aggravated indecent assault) as falling “below the mid-range of objective seriousness but not appreciably so”. Such a finding was not open to her Honour, and failed to give appropriate weight to the significantly aggravated circumstances existing at the time of the offending: [328]-[338]; [467]-[470].

Zahorsky v R [2013] NSWCCA 268, considered.

Per Bell P (dissenting): It was open to the trial judge to assess the objective seriousness of the offence comprising count 21 in the manner that she did. Although, at first glance, there appeared to be a disjunction between her description of the objective seriousness of the offence and the indicative sentence of four years in respect of it (given the maximum penalty for such an offence is 25 years), it must be borne in mind that the indictable offence referred to in the indictment to which the charge of administering an intoxicating substance with intent was linked was aggravated indecent assault, which carried a maximum sentence of seven years’ imprisonment: [21]-[30].

DL v R [2020] NSWCCA 164; Kearsley v The Queen (2017) 265 A Crim R 233; [2017] NSWCCA 28, considered.

Ground 2:

Per Johnson J (Bell P and Cavanagh J agreeing): Although a fuller statement of the way in which the trial judge dealt with the Applicant’s prior good character (and the weight to be given to it) may have been preferable, the trial judge did not err by failing to provide reasons with respect to the weight to be given to prior good character: [31] (Bell P); [349]-[356] (Johnson J); [428] (Cavanagh J).

Ground 3:

Per Bell P and Cavanagh J: Although the aggregate sentence imposed may have been on the lenient side, it was not manifestly inadequate, unreasonable or plainly unjust. In any event, the term of imprisonment imposed entailed a strong denunciation of the Applicant’s conduct, especially when regard was had to the extra-curial punishment of the Applicant’s future unemployability in the medical or any allied health profession that would inevitably flow from the convictions: [32]-[41]; [471]-[486].

JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297; Kearsley v R (2017) 265 A Crim R 233; [2017] NSWCCA 28; Manojlovic v R; R v Manojlovic [2020] NSWCCA 315; Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284; Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21, considered.

Per Johnson J (dissenting): The aggregate sentence of imprisonment imposed was manifestly inadequate, and was unreasonable or plainly unjust. The sentence failed markedly to reflect the totality of the Applicant’s offences committed against five victims, including young women aged between 16-19 years: [370]-[394].

Judgment

1. BELL P: The background to the two appeals with which this judgment is concerned has been set out in Johnson J’s comprehensive set of reasons.

2. The first appeal (strictly speaking an application for leave to appeal because it involved questions of fact or questions of mixed fact and law) is that brought by Ali Khorami (the Applicant) against his conviction in relation to 10 of 22 counts with which he was charged (the Applicant’s appeal). The Applicant was found not guilty in respect of three of the counts charged and did not seek leave to appeal with regard to nine of them.

3. The second appeal is a Crown appeal under s 5D of the Criminal Appeal Act 1912 (NSW) against the aggregate sentence imposed on the Applicant of six years’ imprisonment with a non-parole period of three years and nine months.

The Applicant’s appeal

4. As Johnson J explains, the Applicant relies upon a single ground of appeal, namely that his conviction on each of counts 1, 3, 5, 6, 7, 9, 10, 13, 15 and 23 was unreasonable and could not be sustained having regard to the evidence.

5. Each of the acts said to constitute the offences in respect of which conviction is challenged was captured in CCTV footage which was carefully reviewed by each member of the Court in advance of the hearing. In addition, the Court was carefully taken through the relevant footage in relation to the acts constituting the offences the subject of challenge in the course of the hearing of the appeal.

6. I gratefully adopt Johnson J’s meticulous description of what was disclosed by this footage in respect of each of the challenged counts. I also adopt his Honour’s valuable summary of the balance of the evidence led at trial. The nature of the Applicant’s appeal is such, however, that I have reviewed the whole of the evidence myself with a view to undertaking the task required by M v The Queen (1994) 181 CLR 487; [1994] HCA 63 (M).

7. One important matter to be borne in mind is that the reasonableness of the jury’s verdict is to be assessed by reference to the totality of the evidence: see, for example, Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [43], citing M at 493. Although that may appear to be a trite observation, the targeted focus during the hearing of the appeal on the footage of the conduct comprising almost exclusively the acts constituting the convictions complained of (as opposed to all of the Applicant’s conduct, including the counts for which he was convicted) carried the risk of minimising the significance of tendency evidence admitted at trial. This is a risk which an appellate court must be astute to avoid, and which I have been conscious of in reviewing the evidence cf. the similar care that must be taken with the use of photographs: see Taitoko v R [2020] NSWCCA 43 at [80]-[81] (Taitoko).

8. This was a case in which tendency evidence played a significant role. No complaint was made at trial or on appeal in relation to the admissibility of that tendency evidence, the directions to the jury in respect of the use to be made of it, or its significance.

9. As the Crown submitted and as Johnson J explains in greater detail in his reasons which, on the Applicant’s appeal, I gratefully adopt, the tendency evidence was particularly powerful. Its potency was reinforced by the fact that the evidence disclosing the tendency asserted was of acts that occurred over a six-week period and, in respect of individual complainants, in the course of an overnight stay at the Woolcock Institute. In other words, there was a multiplicity of occasions upon which the tendency manifested itself, the circumstances of which were almost identical, and there was very close temporal proximity: see Taylor v R [2020] NSWCCA 355 at [122(xiv)].

10. There was no doubt that what was a very extensive body of tendency evidence rationally affected the assessment of the probability of the existence of a material fact in issue to a significant extent: see Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [16]. This was particularly so in the cases where the video footage of particular counts, viewed in isolation, painted a picture that was less clear than the footage in respect of other counts which were not the subject of challenge.

11. Having reviewed the evidence as a whole, including the CCTV footage, I am comfortably satisfied that it was well open to the jury to convict the Applicant on the counts challenged on appeal. The Applicant’s appeal should therefore be dismissed.

The Crown appeal

12. Turning to the Crown appeal, Johnson J has again meticulously set out the contentions of the parties. His Honour has also set out in [262] a very useful table which records the indicative sentences for each of the offences in respect of which the Applicant was sentenced.

13. There are three grounds to the Crown appeal:

1. Ground 1 — Her Honour erred in her assessment of the objective seriousness of counts 3, 4, 6, 17, 21 and 25.

2. Ground 2 — Her Honour erred by failing to provide reasons as to how the Applicant’s prior good character was taken into account.

3. Ground 3 — The sentence pronounced was manifestly inadequate.

   14. As to the first of these grounds, it is to be emphasised that an aggregate sentence was imposed and there is no appeal from, or in respect of, indicative sentences which “have no practical operation at all”: see Vaughan v R [2020] NSWCCA 3 at [90] (Vaughan). That having been said, indicative sentences may supply a lens which may magnify or expose an error in an aggregate sentence, although care must be taken not to allow a series of indicative sentences to distort or obscure the proper focus on an overall assessment of what is a “just and appropriate measure of the total criminality involved” in the offending: see Postiglione v The Queen (1997) 189 CLR 295 at 307-308; [1997] HCA 26, cited in R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [15] (MAK). See also Nguyen v The Queen (2016) 256 CLR 656 at 677; [2016] HCA 17 at [64]; and ZA v The Queen (2017) 267 A Crim R 105; [2017] NSWCCA 132 at [70].

   15. As RA Hulme J (with whom Hoeben CJ at CL and Adamson J agreed) observed in JM v The Queen (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [40]:

   “indicative sentences recorded in accordance with s 53A(2) [of the Crimes (Sentencing Procedure) Act 1999 (NSW)] are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence”. (emphasis added).

In this sense, grounds 1 and 3 of the Crown’s appeal are linked.

16. Dealing first with ground 1, the starting point is the observation of Spigelman CJ in Mulato v R [2006] NSWCCA 282 at [37] (Mulato):

“Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour.”

17. In the same case, Simpson J (as her Honour then was) expressed emphatic agreement with this observation (at [45]) before going on to observe:

“The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King[1936] HCA 40; 55 CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance.”

18. More recently, Leeming JA in Taitoko at [87] observed that the “question of objective seriousness is quintessentially a matter for the sentencing judge”. It is for this reason that it has been said, citing Mulato at [37], that “[t]he Court has therefore been ‘very slow’ to determine such matters for itself or to set aside the judgment made by the first instance judge exercising a broadly based discretion”: see Lees v R [2019] NSWCCA 65 at [55].

19. The very experienced sentencing judge in the current case characterised the objective gravity of counts 3, 4, 6, 17 and 25 as being “relatively low level” examples of the particular offences. Her Honour employed a verbal scale to assess the relative objective gravity of the various counts. Thus, having described counts 3, 4, 6, 17 and 25 as “relatively low level”, her Honour described counts 1, 7, 9, 10, 13, 14, 18, 19, 20, 22 and 23 as “more serious than counts 3, 4 and 6”, and counts 5, 8 and 15 as “more serious again” than the previous set of counts which were described as “more serious than counts 3, 4 and 6”.

20. For the reasons given by Cavanagh J, the sentencing judge’s assessment of counts 3, 4, 6, 17 and 25 was open to her Honour. It follows that, with great respect, I disagree with Johnson J in this regard.

21. In relation to count 21, the sentencing judge described the objective seriousness of this offence as “below the mid-range of objective seriousness but not appreciably so”. The offence of administering an intoxicating substance to commit an indictable offence under s 38(a) of the Crimes Act 1900 (NSW) is a very serious offence, carrying a maximum penalty of 25 years’ imprisonment. Unlike both Johnson and Cavanagh JJ, I do not regard her Honour’s characterisation of this offence as inapt and it was, in my opinion, open to her Honour to characterise its seriousness as she did.

22. What is perhaps, at least at first sight, somewhat more difficult to understand, however, is that, having described the offence as “below the mid-range of objective seriousness but not appreciably so”, the sentencing judge only indicated a sentence of four years in respect of this offence. On its face, there appears to be something of a disjunction between her Honour’s verbal description of the objective seriousness of the offence and the indicative sentence recorded in respect of it, given the maximum sentence of 25 years for an offence under s 38(a) of the Crimes Act. This may be explained, however, when it is borne in mind that the indictable offence referred to in the Indictment to which the charge of administering an intoxicating substance with intent was linked was aggravated indecent assault, an offence contrary to s 61M(1) of the Crimes Act which carried a maximum sentence of 7 years’ imprisonment.

23. A similar approach may be seen in Kearsley v The Queen (2017) 265 A Crim R 233; [2017] NSWCCA 28 (Kearsley). Mr Kearsley, a Professor of Radiation Oncology and Director of Radiation Oncology at the Cancer Care Centre at St George Hospital, was charged with and pleaded guilty to two offences, namely, indecent assault and administering an intoxicating substance with intent. The complainant was a much younger female doctor with whom Mr Kearsley had dinner, ostensibly to discuss the complainant’s career progression. The key facts were described by Harrison J, in the Court of Criminal Appeal (at [27]-[30]), as follows:

“After an entrée, they went to the kitchen where Mr Kearsley prepared the main course. Ms Smith went to the bathroom and on her return Mr Kearsley offered her some red wine which they both drank as he prepared the food. At some point just before dinner Mr Kearsley administered a tablet of Ativan to the wine they were drinking without Ms Smith’s knowledge. Ativan is a benzodiazepine which is a sedative used to treat anxiety. Mr Kearsley had been using Ativan for about six months before the offences to treat his own long-term symptoms of anxiety.

After the meal at about 10.35pm, Mr Kearsley suggested that they go for a walk. They walked for about an hour returning to the applicant’s apartment building at about 11.35pm. During the walk Ms Smith started to feel dizzy.

When the pair returned to the apartment, Mr Kearsley offered Ms Smith dessert. He said to her, ‘Lie down, I’ll teach you a relaxation technique’. Ms Smith sat on the couch where Mr Kearsley removed her boots and placed her legs onto the couch. He said, ‘I’ll give you a head massage’. Ms Smith, who was feeling sleepy and muddled at this time, did not protest.

At some point they moved to the guest bedroom where Mr Kearsley massaged Ms Smith’s back. He pulled up her shirt until it reached the back of her neck and placed his mouth on Ms Smith’s left nipple. She said, ‘No, stop’. Mr Kearsley did so and said to her, ‘Relax’. He then tried to kiss her and tried to kiss her nipple again but she turned away, pulled her shirt down and told him to stop. Ms Smith pushed Mr Kearsley away, stood up and said she wanted to leave.”

24. Macfarlan JA, with whom Schmidt J agreed, set aside the sentence imposed on Mr Kearsley in the District Court and resentenced him to an aggregate term of imprisonment of 18 months with a non-parole period of 9 months. His Honour indicated a sentence of 15 months’ imprisonment in respect of the s 38(a) offence.

25. Schmidt J described Mr Kearsley’s acts as involving the deliberate drugging of his victim “in circumstances which involved a serious abuse of the relationship of trust which existed between them and which gave him the opportunity to take advantage of his victim, an opportunity which he deliberately pursued”: at [127].

26. Harrison J who described the s 38(a) offence as “moderate” observed that his assessment of it entailed “no more and no less than a comparative analysis of that offence and other possible or hypothetical examples of it that I am required to undertake as part of the sentencing exercise”: at [85]. His Honour would have imposed a suspended sentence of 18 months in respect of this offence.

27. In DL v R [2020] NSWCCA 164 (DL), DL was found guilty of some 9 counts, two of which, involving different victims, were under s 38(a) of the Crimes Act, in both cases involving the administration of a “funny tasting drink” containing diazepam (valium) to a 13 year old and another teenage girl under the age of 16 who was DL’s biological daughter, on a camping trip prior to, in the first case, digitally penetrating the victim and kissing and fondling her breasts. It was established that DL had previously conducted internet research as to how much diazepam to administer to a 50kg female, so there was no doubt that the s 38(a) offence was deliberate and planned. For the digital penetration offence, namely sexual intercourse without consent in circumstances of aggravation (victim under age of 16 years) contrary to s 61J(1) of the Crimes Act, the sentencing judge assessed the objective seriousness of the offence at above mid-range. For the s 38(a) offence, the sentencing judge had indicated a sentence of 5 years’ imprisonment in respect of each victim with the s 61J(1) offence attracting an indicative sentence of 6 years’ imprisonment.

28. The Court of Criminal Appeal (Hoeben CJ at CL, Fagan and Cavanagh JJ) held that the aggregate sentence imposed was manifestly excessive having regard to the objective seriousness of the offences with a focus on the totality of the criminality involved. In relation to the s 38(a) offences, Hoeben CJ at CL said (at [108]) that “while significant, particularly because of the degree of planning involved, [they] were still of a relatively low level and no more than midrange in seriousness.” In re-sentencing, his Honour indicated that he would have imposed a sentence of 3 years’ imprisonment for each of the s 38(a) offences.

29. Each case is, of course, different, but in terms of focus on the challenge to the indicative sentence imposed on the Applicant in the present case in respect of the s 38(a) offence, whilst accepting that it was more serious than the similar offence in Kearsley, it was not in my view so different to justify a conclusion that the sentencing judge’s assessment of its objective seriousness was not open. Indeed, the indicative sentence imposed was 25% greater than the indicative sentences for each of the s 38(a) offences in DL, one of which involved the administration of an intoxicating substance that was followed by a serious sexual assault contrary to s 61J(1) of the Crimes Act.

30. For these reasons, I would reject ground 1 of the Crown appeal.

31. In relation to ground 2 of the Crown appeal, namely the complaint that the sentencing judge erred by failing to provide reasons as to how the Applicant’s prior good character was taken into account, I respectfully agree with the reasons of Johnson J for rejecting this ground.

32. To a significant extent, my rejection of grounds 1 and 2 of the Crown appeal drives the conclusion that the challenge to the adequacy of the aggregate sentence in ground 3 must also be dismissed, given the Crown’s reliance on the matters raised in these grounds as “patent errors” in the sentencing judge’s approach to the assessment of the objective seriousness of the offences and as bearing on ground 3. As the Crown submitted, “[t]he specific errors identified in Grounds 1 and 2 in part explain why a manifestly inadequate sentence was imposed.” My rejection of grounds 1 and 2 undermines the Crown’s argument on manifest inadequacy.

33. As has been said on many occasions including in Manojlovic v R; R v Manojlovic [2020] NSWCCA 315 at [167]:

“The principles in relation to Crown appeals are well established. The primary purpose of a Crown appeal against sentence is to lay down principles of law for the governance and guidance of courts having the duty of sentencing convicted persons. A Crown sentence appeal based on a claim of manifest inadequacy of sentence requires the Crown to establish that the sentence imposed was unreasonable or plainly unjust in a sentencing environment where there is no single ‘correct’ sentence and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [325]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520 at 538; [2010] HCA 45 at 538 [58].”

34. Like Cavanagh J (at [485]), I consider that the aggregate sentence imposed by the sentencing judge was on the lenient side, having regard to the number of victims, the number of counts and the nature of the offence under s 38(a) of the Crimes Act, described by the sentencing judge as only slightly below the mid-range of objective seriousness. However, it is axiomatic that the mere fact that I may have imposed a heavier sentence does not, by itself, warrant appellate intervention or render the aggregate sentence imposed manifestly inadequate, unreasonable or plainly unjust.

35. In declining to interfere with the sentencing judge’s assessment of the range of factors which are appropriate to be taken into account in the synthetic sentencing process, I have borne in mind the importance of the principle of totality in the context of a case involving multiple offences and multiple victims: see MAK at [15]-[16] which is extracted in the reasons of Cavanagh J at [483]. The “real question to be determined” in a case of multiple individual offences is, as Basten JA observed in McIntosh v R [2015] NSWCCA 184 at [137], “the appropriate overall period of imprisonment”.

36. I have also borne in mind that, as was recently observed by Johnson J in Vaughan, it “would be wrong to consider the indications of the sentencing Judge [in respect of each offence] and treat them as if they were actual and operative sentences with a view to translating them, in some way, into a total sentence which has been calculated by reference to the principles in Pearce v The Queen”: at [100]. In the same case, RA Hulme J said at [117] that:

“The applicant's argument proceeds on a premise that the indicated sentence for one offence is ‘accumulated’ upon the sentence for another offence. However, in setting an aggregate sentence, a judge does not need to assess a precise degree of accumulation at all. The judge simply determines the aggregate sentence by assessing what is appropriate to reflect the totality of criminality in all of the offending. Quite commonly, there are references to there being ‘notional accumulation’ – but if such a reference is apt at all, sight should not be lost of the fact that it is truly something that is ‘notional’.”

37. The touching of the several victims in the present case was brief and non-invasive and, with the possible exception of one offence, did not involve the genital region of any of the victims cf. Zhao v R [2019] NSWCCA 203 at [86]. By way of comparison to DL (see [27] above), the s 38(a) offence in the present case was not accompanied or followed by any assault. Many of the offences, although separate, occurred within a very short period of time from each other and were of a very similar nature. In my view, looking at least at the multiple offences committed against each victim, this is a case where “a deal of the criminality in each offence is best seen as comprehending and reflecting the criminality of the other offences”: see Taitoko at [132].

38. Even accepting that the sentence imposed may have been on the lenient side (see [34] above), imprisonment for 6 years entails a strong denunciation of the Applicant’s conduct, especially when regard is had to the extra-curial punishment that I refer to below.

39. As the sentencing judge observed, the Applicant will “almost certainly never practice medicine in this country again and will struggle to find work in a health-related field”. This has significance both for the limited role to be ascribed to personal deterrence as a consideration in the sentencing process in this particular case, and the need for community protection, for it is highly unlikely that the Applicant will ever be able to be in a position such as that from which the offences were opportunistically committed.

40. The Applicant’s future unemployability in the medical or any allied health profession also constitutes a significant element of extra-curial punishment that will inevitably flow from the convictions: see, for example, Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 at [54]; and Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 at [32]. This should be of some comfort to the Applicant’s victims.

41. For these reasons and those given by Cavanagh J on this issue, which I have had the benefit of reading and with which I agree, I would reject the Crown appeal in relation to ground 3.

42. Even if, like Johnson J, I had reached the conclusion that the aggregate sentence imposed was manifestly inadequate, I would have been inclined to exercise the residual discretion under s 5D of the Criminal Appeal Actto refuse to interfere in the aggregate sentence imposed. This is not a case calling for the laying down of principles for the governance and guidance of sentencing courts, which is the primary purpose for the upholding of Crown appeals: see Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [1]–[2].

43. It follows in my view that Ali Khorami’s application for leave to appeal and the Crown’s appeal should both be dismissed.

44. JOHNSON J: On 6 July 2020, following a trial at the Sydney District Court, a jury found the Applicant, Ali Khorami, guilty of offences of aggravated indecent assault under s.61M(1) Crimes Act 1900 (19 counts), an offence of administering an intoxicating substance with intent to commit an indictable offence (aggravated indecent assault) contrary to s.38(a) Crimes Act 1900 and committing an aggravated act of indecency under s.61O(1A) Crimes Act 1900 (two counts).

45. On 9 October 2020, the Applicant was sentenced for these offences to an aggregate term of imprisonment for six years, comprising a non-parole period of three years and nine months commencing on 25 September 2020 and expiring on 24 June 2024 with an additional term of two years and three months commencing on 25 June 2024 and expiring on 24 September 2026.

The Notices of Appeal

46. By Notice of Appeal filed on 16 November 2020, the Crown appealed against the aggregate sentence under s.5D Criminal Appeal Act 1912.

47. By Notice of Appeal filed on 19 May 2021, the Applicant sought leave to appeal with respect to his conviction on nine of the 22 offences for which he was sentenced.

48. At the hearing on 30 July 2021, the Applicant was granted leave to amend the Notice of Appeal, so as to challenge his conviction with respect to 10 counts.

49. Although the Applicant is the Respondent to the Crown appeal, for ease of reference, he will be referred to throughout this judgment as “the Applicant”.

50. Both the Crown appeal and the Application for Leave to Appeal against conviction were heard on the same day by this Court.

51. It is appropriate to consider first the Application for Leave to Appeal against conviction concerning 10 of the 22 counts for which the Applicant was convicted. If the Applicant succeeded with respect to his appeal on any of those counts, as an aggregate term of imprisonment was imposed at first instance, it would be necessary to consider the question of resentencing the Applicant for the offences in relation to which he remained convicted.

52. As would be clear, even if the Applicant succeeded entirely with his conviction appeal, it would leave 12 offences for which the Applicant would need to be sentenced.

53. If the Applicant fails entirely with his conviction appeal, then the Court will move to consider the Crown appeal against sentence.

The Applicant’s Ground of Appeal

54. The Applicant relies upon a single ground of appeal which asserts that the conviction on each of Counts 1, 3, 5, 6, 7, 9, 10, 13, 15 and 23 is unreasonable or cannot be supported having regard to the evidence.

54. The Applicant does not challenge the verdicts of guilty returned on Courts 4, 8, 11, 14, 17, 18, 19, 20, 21, 22, 24 and 25. The Applicant was found not guilty on Counts 2, 12 and 16.

55. The Applicant’s ground of appeal involves a question of fact or mixed fact and law, so that leave to appeal against conviction is required: s.5(1)(b) Criminal Appeal Act 1912.

56. The Applicant relies upon the first limb of s.6(1) Criminal Appeal Act 1912 in contending that each of the challenged verdicts is unreasonable or cannot be supported having regard to the evidence.

Overview of the Offences for which the Applicant was Convicted

58. The Applicant had qualified and practised as a medical practitioner in Iran before he moved to Australia in 2011 (T432-434). He completed examinations in Australia and was registered as a general practitioner in June 2018 (T434). He commenced to practice as a general practitioner in New South Wales from the end of August 2018 (T435).

59. In July-August 2018, the Applicant (then aged 47 years) was employed as a sleep technician at the Woolcock Institute of Medical Research (“Woolcock Institute”) in Glebe. His duties included monitoring patients who came to participate in an overnight sleep study.

60. At the beginning of each study, patients were connected to a number of sensors which were linked with a computer system which generated data. A camera was installed in each room so that technicians could monitor them from a remote room. The sleep studies were recorded using CCTV.

The Charged Offences and Verdicts

61. The Applicant was charged with offences committed against five female complainants over a period of six weeks between 17 July 2018 and 30 August 2018.

62. It is helpful to set out, in tabular form, the charges upon which the Applicant stood trial, including a short summary of the alleged act in each count, the verdicts and whether particular convictions are the subject of appeal by the Applicant. The short summaries of the alleged acts are drawn from a document (MFI31), which was provided by the Crown to the jury prior to the Crown closing address. Where two times are shown, being the “Data” and “CCTV” times, the “Data” time was said to be accurate.

Complainant	Count	Time	Charge	Summary of Alleged Act (MFI31)	Verdict	Verdict Challenged by Conviction Appeal
HMF	1	17/7/18 Data: 12.12am CCTV: 1:12am	Aggravated indecent assault (s.61M(1) Crimes Act 1900)	Applicant allegedly places hand on complainant’s groin/vagina whilst rearranging bedsheets	Guilty	Yes
HMF	2	17/7/18 Data: 12.37am CCTV: 1:37am	Aggravated indecent assault	Applicant allegedly places penis on complainant’s feet	Not Guilty	---
HMF	3	17/7/18 Data: 1.03am CCTV: 2.03am	Aggravated indecent assault	Applicant allegedly touches himself on the penis before placing his penis in the complainant’s hand	Guilty	Yes
HMF	4	17/7/18 Data: 6.09am CCTV: 7:09am	Aggravated indecent assault	Applicant allegedly fondles his penis whilst holding the hand of the complainant	Guilty	No
HMF	5	17/7/18 Data: 6:11am CCTV: 7:11am	Aggravated indecent assault	Applicant allegedly places his penis in the complainant’s hand and thrusts his hips	Guilty	Yes
HMF	6	17/7/18 Data: 6:16am CCTV: 7.16am	Aggravated indecent assault	Applicant allegedly moves his hips towards the complainant’s feet and masturbates	Guilty	Yes
HMF	7	17/7/18 Data: 6:19am CCTV: 7:19am	Aggravated indecent assault	Applicant allegedly places his penis on the complainant’s hand	Guilty	Yes
JS	8	27/7/18 10.28pm- 10.42pm (22.30)	Aggravated indecent assault	Applicant allegedly places his penis on the complainant’s hand	Guilty	No
JS	9	27/7/18 10.28pm- 10.42pm (22:32)	Aggravated indecent assault	Applicant allegedly places penis on complainant’s feet	Guilty	Yes
JS	10	27/7/18 10.28pm to 10.42pm (22:33)	Aggravated indecent assault	Applicant allegedly places penis on complainant’s feet	Guilty	Yes
JS	11	27/7/18 10.28pm to 10.42pm (22:34)	Aggravated indecent assault	Applicant allegedly puts his fingers on the complainant’s wrist whilst he fondles his penis	Guilty	No
JS	12	27/7/18 11.18pm to 11.31pm (23:18)	Aggravated act of indecency (s.61O(1A) Crimes Act 1900)	Applicant allegedly fondles his penis whilst staring at the complainant	Not Guilty	---
JS	13	27/7/18 11.18pm to 11.31pm (23:19)	Aggravated indecent assault	Applicant allegedly places his penis on complainant’s feet	Guilty	Yes
JS	14	28/7/18 1.36am (01:37)	Aggravated indecent assault	Applicant allegedly leans against the complainant’s bottom whilst adjusting cords	Guilty	No
LD	15	3/8/18 Data: 11.20pm 4/8/18 CCTV: 12:20am	Aggravated indecent assault	Applicant allegedly places his penis on the complainant’s hand	Guilty	Yes
LD	16	3/8/18 Data: 11.25pm 4/8/18 CCTV: 12:25am	Aggravated indecent assault	Applicant allegedly places his penis on the complainant’s hand	Not Guilty	---
LD	17	4/8/18 Data: 12.09am CCTV: 1:09am	Aggravated act of indecency	Applicant allegedly masturbates whilst staring at the complainant	Guilty	No
LD	18	4/8/18 Data: 12:11am CCTV: 1:11am	Aggravated indecent assault	Applicant allegedly pushes his hips against the complainant’s bottom whilst he masturbates. Applicant allegedly strokes complainant’s hair.	Guilty	No
LD	19	4/8/18 Data: 12.15am CCTV: 1:15am	Aggravated indecent assault	Applicant allegedly places his hand on the complainant’s bottom	Guilty	No
LD	20	4/8/18 Data: 12.15am CCTV: 1:15am	Aggravated indecent assault	Applicant allegedly leans against the complainant and masturbates.	Guilty	No
EB	21	15/8/18	Administer intoxicating substance with intent (s.38(a) Crimes Act 1900)	Applicant allegedly gives sleeping pills to complainant prior to sleep study	Guilty	No
TH	22	30/8/18 Data: 2:18am CCTV: 3:18am	Aggravated indecent assault	Applicant allegedly touches the complainant’s breasts	Guilty	No
TH	23	30/8/18 Data: 2:54am CCTV: 3:54am	Aggravated indecent assault	Applicant allegedly touches the complainant’s lower stomach and groin on her bare skin	Guilty	Yes
TH	24	30/8/18 Data: 2:54am CCTV: 3:54am	Aggravated indecent assault	Applicant allegedly touches/caresses the complainant’s vagina in a circular motion over her lace underwear.	Guilty	No
TH	25	30/8/18 Data: 2:54am CCTV: 3:54am	Aggravated act of indecency	Applicant allegedly masturbates himself standing next to the bed facing the complainant.	Guilty	No

63. The following descriptions of the offences are taken from the remarks on sentence delivered on 9 October 2020. It will be seen that the short description of each offence provided by the sentencing Judge varied, in minor respects, from the short summary contained in MFI31. In making these findings on sentence, her Honour had regard to the evidence, including the CCTV footage, and described the offences in a manner consistent with the verdicts of the jury and the way in which the trial had been conducted.

Offences Involving HMF

64. HMF was a patient at the Woolcock Institute between 16 and 17 July 2018. At that time, she was 23 years old. After an initial consultation with a doctor, she met the Applicant who took her blood pressure, height, weight and neck circumference. He then attached electronic data leads to her body.

65. The Applicant asked her to remove her bra, saying it would interfere with the wires during the night.

66. At 12.12 am on 17 July 2018, the Applicant came into the room and rearranged the blankets covering HMF. He then placed his hand on her groin or vagina (Count 1 – s.61M(1) Crimes Act 1900 offence).

67. At 1.03 am, the Applicant entered the room again and disconnected the headbox, pausing HMF’s sensory data. She woke up and had a short conversation with him before appearing to fall back to sleep. Whilst speaking with HMF, the Applicant touched himself on his penis. He then took her right arm and laid it out with her right hand hanging over the bed. He then placed the blood pressure cuff onto her right hand and fondled his penis with his right hand whilst holding HMF’s right arm with his left hand (Count 3 – s.61M(1) Crimes Act 1900 offence).

68. At 3.01 am, the CCTV and sleep study were disconnected until 3.19 am. When the footage and data recommenced, the CCTV camera was pointing upwards towards the ceiling. At 3.21 am, the CCTV camera moved back down towards HMF.

69. At 6.09 am, the Applicant again entered the room and disconnected the headbox. He pulled HMF’s right arm and stretched it out, and held her right hand with his left hand whilst fondling his penis with his right hand (Count 4 – s.61M(1) Crimes Act 1900 offence).

70. At 6.11 am, the Applicant placed the blood pressure cuff on HMF’s arm and then moved his groin area directly into her outstretched hand. He then placed his penis in her hand for about two minutes, gently thrusting his hips back and forth (Count 5 – s.61M(1) Crimes Act 1900 offence).

71. Shortly after this, at 6.16 am, the Applicant moved to the base of the bed and pulled the covers up, exposing HMF’s feet and lower legs. He moved his hips towards HMF’s feet and masturbated for a moment (Count 6 – s.61M(1) Crimes Act 1900 offence).

72. At 6.19 am, the Applicant re-entered the room and again moved the blood pressure cuff onto HMF’s right arm, which was still outstretched. He moved his hips towards her right hand and touched his penis with his right hand at the same time (Count 7 – s.61M(1) Crimes Act 1900 offence).

73. It was the evidence of HMF that she did not give the Applicant permission to touch her in any way other than for the purpose of the sleep study and she was unaware of any indecent assaults being committed upon her.

Offences Involving JS

74. JS was a patient at the Woolcock Institute between 27 and 28 July 2018. At that time, she was 16 years old.

75. On the evening of 27 July 2018, JS (who was accompanied initially by her mother, CS) had an appointment with the sleep doctor and was then attended to by the Applicant. He took her measurements in a consultation room and then took her to an allocated bedroom and connected the wires as required for the study.

76. Between 10.28 pm and 10.42 pm, when JS was asleep, the sleep study was paused, but the CCTV continued recording. The Applicant entered the room carrying a blood pressure machine and reached under the bed covers, pulling JS’s left arm out from under the covers. She appeared to wake up and he appeared to reassure her. He placed the blood pressure cuff on her left arm and then placed his penis in her left hand where it remained for two-to-three minutes (Count 8 – s.61M(1) Crimes Act 1900 offence).

77. After several minutes, the Applicant left the room briefly and then re-entered and lifted the covers from the bottom of the bed, exposing JS’s legs and feet. He placed his penis on her feet and moved his hips back and forth (Count 9 – s.61M(1) Crimes Act 1900 offence).

78. The Applicant then walked back to the top of the bed, adjusted the headbox and data leads around her head, causing JS to wake up for a moment. He then walked back to the bottom of the bed and placed his penis on her feet again (Count 10 – s.61M(1) Crimes Act 1900 offence).

79. A short time later, the Applicant walked back to the left side of the bed and stretched out JS’s arm again. Whilst the blood pressure cuff was on her arm, he pulled his penis out and placed it in her hand whilst he appeared to take her blood pressure. She woke up and he instructed her to pump her left hand into a fist. He then put two of his left fingers on her wrist whilst fondling his penis with his right hand (Count 11 – s.61M(1) Crimes Act 1900 offence).

80. Between 11.18 pm and 11.31 pm, the Applicant entered the room again and pulled the bed covers up, adjusting the leads around JS’s legs. He placed his penis on her feet again (Count 13 – s.61M(1) Crimes Act 1900 offence).

81. Between 12.29 am and 12.41 am on 28 July 2018, the CCTV and data were paused. When the video recommenced, JS was laying on the very edge of the bed with her bottom exposed. Between 1.17 am and 1.33 am, the study was paused again. When it recommenced, JS was laying in the same position with a towel placed around her bottom.

82. At 1.36 am, the Applicant entered the room again and stood to the side of the bed, leaning against JS’s bottom whilst he appeared to adjust sensor leads around her face (Count 14 – s.61M(1) Crimes Act 1900 offence).

83. Between 2.53 am and 3.10 am, the study and the CCTV were once again both paused. At about 5.53 am, the study and the CCTV were both paused and did not recommence.

84. In the morning, JS woke up as the Applicant was turning on the lights. He told her that she had been calling out to him during the night, saying that she could not breathe and that he had to come into her room because it had happened a few times. JS did not recall calling out or having any breathing issues and events of that sort were not recorded anywhere in the sleep study notes.

Offences Involving LD

85. LD was a patient at the Woolcock Institute on the night of 3 August 2018. At that time, she was 29 years old.

86. After checking in and consulting the doctor, the Applicant took LD’s measurements, including her blood pressure, and then attached the wires to her body. During the setup process, the Applicant told LD about a patient at the Woolcock Institute who had been dreaming about having sex with politicians and celebrities. He said that the patient’s sleep study revealed that during the night, she would masturbate repeatedly without waking up. After this conversation, LD went to sleep.

87. At 11.20 pm on 3 August 2018, the Applicant entered LD’s room and placed a pillow under her right arm, stretching the arm out so that it was hanging off the edge of the pillow. He then pulled the blood pressure cuff on her right arm and placed his penis in her hand, whilst appearing to take her blood pressure. He rocked his hips gently in a sexual motion (Count 15 – s.61M(1) Crimes Act 1900 offence).

88. At 12.09 am on 4 August 2018, the Applicant entered the room and disconnected the headbox, pausing the study. He was carrying a torch. He turned LD onto her right side so that she was facing him. He fondled his penis whilst looking at her (Count 17 – s.61O(1A) Crimes Act 1900 offence).

89. At 12.11 am, LD woke up and there was a short conversation with the Applicant who told her to move onto her left side. She did so. He then pulled the bedding over her hips, exposing her bottom. He then walked back to the door of the bedroom and returned a short time later. He moved the bedding around her feet and pulled her legs and feet out from under the covers. He then pushed himself up against her bottom whilst he masturbated and fondled his penis (Count 18 – s.61M(1) Crimes Act 1900 offence).

90. At 12.15 am, the Applicant re-entered the room and shone the torch at LD’s bottom and then placed his right hand on her bottom (Count 19 – s.61M(1) Crimes Act 1900 offence).

91. At about this time, LD appeared to wake up for a moment and had a short conversation with the Applicant. She then fell asleep and he leaned his groin up against her bottom whilst masturbating (Count 20 – s.61M(1) Crimes Act 1900 offence). At one point whilst this was happening, the Applicant leaned over and stroked LD’s hair.

Offence Involving EB

92. EB was a patient at the Woolcock Institute for two nights between 14 and 16 August 2018. At that time, she was 19 years old.

93. On the first night of her sleep study, EB was attended to by a female technician who took her measurements and blood pressure and reported no abnormalities.

94. On the second night, the Applicant was her sleep technician. He attached the wires to her body. Although she did not feel any symptoms of low blood pressure, the Applicant took her blood pressure three times, telling her it was low each time. He then told her she should drink a cup of orange juice to raise her blood pressure and produced an orange juice Popper and cut the corner off with scissors. He then poured it into a plastic cup.

95. EB drank the contents of the cup which the jury and the sentencing Judge were satisfied beyond reasonable doubt contained two sleeping pills, Oxazepam and Temazepam, which had been placed in the cup by the Applicant with the intention of committing an aggravated indecent assault or assaults against her (Count 21 – s.38(a) Crimes Act 1900 offence).

Offences Involving TH

96. TH was a patient at the Woolcock Institute on 29-30 August 2018. At that time, she was 29 years old.

97. The Applicant was her allocated technician and he completed the setup as usual. He asked her to remove her bra, telling her it would interfere with the study.

98. At around 12.15 am, whilst TH was asleep, the CCTV camera moved towards the ceiling so that the bed and TH were no longer in the frame. The camera remained there until 12.21 am. After the camera had been lowered, TH’s position was different and a pillow was in a similar position to where it had been with the other complainants.

99. The camera was moved to face the ceiling again at around 1.39 am and then pointed back down to the bed at 2.17 am.

100. At 2.18 am, TH awoke to feel the Applicant touching her breasts (Count 22 – s.61M(1) Crimes Act 1900 offence).

101. At 2.54 am, the Applicant walked into the bedroom and disconnected the headbox. He picked up a pillow and lifted up the bed covers, placing the pillow in between TH’s legs. His hand then moved towards her groin (Count 23 – s.61M(1) Crimes Act 1900 offence).

102. TH then felt the Applicant touching and caressing her vagina in a circular motion over her underwear (Count 24 – s.61M(1) Crimes Act 1900 offence).

103. A little later, the Applicant stood next to the bed facing TH and rubbed his groin area over his pants (Count 25 – s.61O(1A) Crimes Act 1900 offence).

Arrest and Charging of the Applicant

104. Following complaints made concerning the Applicant’s conduct towards EB and TH, a police investigation was undertaken, which revealed, as well, the Applicant’s conduct concerning JS and LD.

105. On 18 October 2018, the Applicant was arrested by police. Following an electronic interview with police, the Applicant was charged on 18 October 2018.

The Trial of the Applicant

The Crown Case

106. The Crown case at trial included the evidence of the five complainants, together with CCTV footage captured during the sleep study attended by each complainant concerning all counts (except Counts 21, 22, 24 and 25). In addition, a number of witnesses gave evidence concerning the Woolcock Institute, and its practices and procedures concerning sleep studies.

107. The Crown also relied, without objection, upon the evidence of each count as tendency evidence in relation to each other count. The Crown submitted that the evidence demonstrated that the Applicant engaged in a pattern of behaviour that revealed that he had a sexual interest in females aged between their late teens and their late 20s, and a tendency to act in a particular way, namely to indecently assault or commit acts of indecency on females who were under his care as patients during the course of his employment at the Woolcock Institute.

Issues at the Trial

108. The principal issues at trial varied as between the counts. With the exception of Count 8, the Applicant denied that he committed the physical acts, the subject of each count.

109. In relation to the complainants HMF and TH, the Applicant denied engaging in any indecent conduct towards them.

110. In relation to EB, the Applicant denied having provided her with an intoxicating substance, intending to indecently assault her. It was not suggested to EB in cross-examination that she had taken the substances later detected on toxicological analysis of her own volition.

111. The Applicant gave evidence at the trial. He did not deny having placed his penis on the hand of JS or that he rubbed his penis in the presence of LD, but gave evidence that each of these complainants had consented to him behaving in the way he did in the course of practising energetic or tantric healing upon them.

108. A summary of the offences for which the Applicant was convicted, based upon the sentencing remarks, was provided earlier in this judgment (at [64]-[103]). It will be necessary to say something further concerning the evidence of each complainant, and the contents of the CCTV footage with respect to that complainant, when addressing the conviction ground of appeal.

The Woolcock Institute Witnesses

113. A number of persons associated with the Woolcock Institute gave evidence in the Crown case.

114. Dr Carla Evans, the Chief Senior Sleep Technologist at the Woolcock Institute, gave evidence that the Applicant was employed at that facility as an overnight sleep technician. His role was to meet and greet patients, to measure their height and weight and to take the patient’s blood pressure. The technician was then required to perform the setup procedure, ensuring the patient is comfortable and that the signal quality is optimal before turning the lights out.

115. Overnight, the primary role of the technician was to sit and monitor data acquisition and to ensure that there were minimal signal losses or faults in the signal quality. The monitoring was done from a monitoring room which was within the laboratory, but external to the rooms occupied by patients. There were usually two or three sleep technicians working in the monitoring room.

116. Dr Evans gave evidence that sleep technicians were not instructed to request that female patients remove their bras. She stated that, in her experience, bras did not interfere with signals (T117).

117. Dr Evans gave evidence that, in between the evening blood pressure check and the morning blood pressure check, there were not supposed to be further blood pressure checks during the night. As to the purpose of a sleep study, she said “These people clearly have sleep problems so we want to see how badly they sleep with minimal interference” (T112).

118. In the course of explaining the locations where sensors were placed on a patient’s body, Dr Evans stated that no sensors were placed around the groin area or a woman’s vaginal area (T116).

119. Dr Evans stated that the medical data captured by the headbox was “synched up” to a CCTV camera in each of the rooms (T119). The direction in which the CCTV camera points could be moved using the computer software. It could also be moved manually but, as the camera was positioned high on the wall, it would require a chair to do so (T124).

120. Dr Evans gave evidence as to the standard procedures within the laboratory at the Woolcock Institute for the collection and storage of urine samples taken from patients who complete daytime sleep studies, as well as its collection and transportation to the testing laboratory. No medication, including prescription medicine or “even Panadol” was kept on the premises of the Woolcock Institute (T122).

121. Dr Evans gave evidence that she had reviewed the CCTV footage in relation to the complainants JS, LD, EB and TH and noted various interruptions in both the sleep study data and the CCTV recordings (T147-159).

122. Darren O’Brien (who had an extensive background in nursing) was the Clinical and Research Operations Manager for the Woolcock Institute in 2018, having held the position since 2012. He gave evidence concerning the role of a sleep technician.

123. In 2018, the general practice was to take blood pressure readings once in the evening and once in the morning (T336). In relation to the recording of subsequent blood pressure readings (taken after the initial measurements), Mr O’Brien said that any further readings were usually recorded by the technician in the Woolcock Institute’s digital management system (T336). The Applicant did not do so in this case, with the exception of one notation in relation to HMF. With respect to the notation concerning HMF, the reading was said to have been taken at 12.30 am on 17 July 2018 (T129), which did not coincide with Count 5, an allegation that, at about 6.11 am, the Applicant put his penis in HMF’s hand whilst purporting to take her blood pressure (see [70] above).

124. Mr O’Brien noted that the Applicant had prior work experience as a sleep technician, as a phlebotomist, and was a trained general practitioner in Iran. Mr O’Brien said that the Applicant “was a trained GP from Iran that I knew was trying to re-qualify here and he had former sleep tech experience, so he was quite a good candidate” (T336). In light of his qualifications and training, the Applicant was not required to attend the training course operated by the Woolcock Institute (T336-337).

125. On 30 August 2018, Mr O’Brien received a complaint by email from JB, the mother of EB. The same day, he received an email from the husband of TH concerning a complaint made by TH. Mr O’Brien spoke to the Applicant about both complaints. Mr O’Brien noticed, when he reviewed the studies, that the Applicant had paused the video. That occurred in contravention of a policy that required sleep studies to be recorded from setup through to lights on in the morning without exception, with this policy having been introduced after an unrelated complaint about a different technician in June 2018 (T337-338).

126. On 31 August 2018, Mr O’Brien had a conversation by telephone with the Applicant, in which the Applicant told him that he had paused the video of EB’s study so that her privacy could be maintained because she had bedwetting issues, and he was worried about the other sleep technicians seeing her on the monitor in the monitoring room (T340-341).

127. On 5 September 2018, Mr O’Brien again spoke to the Applicant about EB’s complaint, noting that he was chiefly concerned that Oxazepam and Temazepam had been found in EB’s urine screen. The Applicant described the complaint as “nonsense” and said that EB had told him in confidence that she was taking medication. The Applicant was suspended from work at the Woolcock Institute on 5 September 2018 (T344-345).

128. At the request of Mr O’Brien, the Applicant prepared written responses to the complaints with those responses being before the jury (Exhibits W, X and Y).

129. Malgorzata Bronisz was the sleep technician who oversaw the first night of the two-night oversight study attended by EB. She gave evidence that it was not her practice to ask a female patient to remove her bra and said that she did not experience problems when patients wore a bra (T354).

130. Zhifan Zhang gave evidence that, in 2018, he was Senior Sleep Technologist at the Woolcock Institute. He worked under Dr Evans and was joint second-in-charge with Matthew Lambert. Mr Zhang’s role included diagnosing and fixing technical issues and, if he could not do so, arranging for the issue to be fixed.

131. In the course of reviewing the sleep study of TH, Mr Zhang noticed that on three occasions during the night, the CCTV camera was manually moved and pointed to the ceiling (T374).

132. In cross-examination, Mr Zhang said that when the camera’s power supply was switched off, the camera will move into a default position determined by the factory settings (T376).

133. Aung Mynt gave evidence that he was the Sleep Technologist who conducted the day study attended by EB on 16 August 2018. He stated that he recorded, in notes taken during the study, that EB was falling asleep during the breaks (between naps) despite being advised not to do so (T382). He gave evidence concerning his practice of obtaining a urine sample from a patient and the method of storage of the sample. He noted that he had never previously had any complaints about the samples he had taken (T389).

The Toxicology Evidence (Concerning EB)

134. A consultant forensic pharmacologist, John Farrar, gave evidence with respect to the effects of Oxazepam and Temazepam. He said that both are usually administered in the form of a tablet which is soluble in liquid.

135. Temazepam is a fast-acting hypnotic benzodiazepine used in the clinical management of insomnia (T397-398).

136. Oxazepam is an anxiolytic benzodiazepine that is primarily used to treat anxiety (T399). As well as being a clinically available drug, he stated that Oxazepam is also a metabolite or breakdown product of Temazepam (T399).

137. Mr Farrar expressed the opinion that EB had been administered Temazepam (T400). He considered that Oxazepam was present in EB’s urine sample as a metabolite of Temazepam. Mr Farrar said that, if both substances were present in a sample, in his experience, the Oxazepam was a metabolite of Temazepam, as it was very rare that a person would be taking both of these substances as drugs at the same time (T401). Administration of Temazepam would reduce the time taken to go to sleep, increase depth of sleep and reduce arousal (T401). Mr Farrar said that Temazepam had a very faintly bitter taste but that, when mixed with fruit juice, one would not be able to taste the tablet (T401).

Police Evidence

138. The officer-in-charge, Detective Senior Constable Amanda Wallace, gave evidence with respect to various aspects of the police investigation. She stated that the Applicant was arrested on 18 October 2018, and agreed to take part in an electronically recorded interview which was conducted on the same day. A recording of that interview was in evidence before the jury (Exhibit AA (DVD) and MFI25 (Transcript)).

The Applicant’s Evidence

139. Brief reference was made to the Applicant’s evidence earlier in this judgment (see [108]-[111] above). It is not necessary to set out a more detailed summary of the Applicant’s evidence at this point in the judgment.

Applicable Legal Principles Concerning the Conviction Appeal

140. The principles to be applied by the Court in determining the conviction ground of appeal are not in doubt. The ultimate question is whether the Court considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the Applicant on each challenged count: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66]. In doing so, the Court “is not to substitute trial by an appeal court for trial by jury”: The Queen v Baden-Clay at [66].

141. When considering whether a verdict is unreasonable, the Court is to make its own independent assessment as to the sufficiency and quality of the evidence. The question for the Court is whether, notwithstanding there is evidence upon which a jury might convict, it can be said that it would nonetheless be dangerous in all the circumstances to let the verdict of guilty stand: M v The Queen (1994) 181 CLR 487 at 492; [1994] HCA 63. The question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt: Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113].

142. As the High Court made clear in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (at [45]), there is no inconsistency in the formulation of the test in Libke v The Queen and in M v The Queen:

“As their Honours observed, to say that a jury ‘must have had a doubt’ is another way of saying that it was ‘not reasonably open’ to the jury to be satisfied beyond reasonable doubt of the commission of the offence. Libke did not depart from M.”

143. The burden of persuasion that appellate interference is required rests with the Applicant: Mackenzie v The Queen (1996) 190 CLR 348 at 370; [1996] HCA 35.

144. In RC v R; R v RC [2020] NSWCCA 76, Wilson J (R A Hulme and Hamill JJ agreeing) said at [143]:

“In assessing the appellant’s arguments in that regard it is not for this Court to supplant the jury’s verdict with its own. The question is whether, having assessed the whole of the evidence that was before the jury, it was open to the jury to be satisfied of the appellant’s guilt to the criminal standard: M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 493; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [58]; SKA v The Queen (2011) 243 CLR 400; 2011 HCA 13 at [405] – [406]. In Pell v The Queen [2020] HCA 12, the High Court said, at [39]:

The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt. [Footnotes omitted]”

145. In determining the question whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the Applicant was guilty on each challenged verdict, the Court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or the consideration that the jury has had the benefit of having seen and heard the witnesses: M v The Queen at 494-495; Pell v The Queen at [37]. The advantage of the jury in seeing and hearing the witnesses extends to the combined advantage of a jury of 12 persons having seen and heard the witnesses at the trial: Hawi v R [2014] NSWCCA 83 at [80].

146. As the High Court explained in The Queen v Baden-Clay at [65]:

“It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is ‘the constitutional tribunal for deciding issues of fact’. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is ‘unreasonable’ within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.”

Submissions Concerning Conviction Appeal

Submissions for the Applicant

147. Ms Paingakulam, counsel for the Applicant, made submissions on the conviction appeal by reference to the transcript of evidence adduced at the trial and the CCTV footage of sleep studies concerning the complainants (Exhibit A).

148. Copies of Exhibit A had been provided to the Court and were viewed by each member of the Court prior to the hearing on 30 July 2021. In addition, parts of Exhibit A were played during the course of the hearing to assist an understanding of the submissions made on the conviction appeal.

149. In relation to each of the convictions challenged on appeal, it was submitted that there was no evidence from the relevant complainant that the alleged act occurred. With respect to each of the challenged convictions, it was submitted that what appeared in the CCTV footage was insufficient to allow a finding beyond reasonable doubt that the alleged offence occurred.

150. As the primary evidence with respect to each challenged count was contained in the CCTV footage, it was submitted for the Applicant that this Court is in the same position as the jury to make an assessment about the quality and sufficiency of the evidence relied upon to prove the relevant count.

151. Particular emphasis was placed during submissions for the Applicant upon the short summary of each alleged offence contained in MFI31 (see [62] above) with it being argued that the particular conduct contained in that short summary had not been proved to the criminal standard in the challenged convictions.

152. Concerning each of the challenged convictions, counsel for the Applicant submitted that the tendency evidence was not able to be used by the jury to fill a gap in the evidence where there was no evidence of the specific act alleged.

153. It was acknowledged that the evidence with respect to the unchallenged convictions (Counts 4, 8, 11, 14, 17, 18, 19, 20, 21, 22, 24 and 25) was available to demonstrate that the Applicant had a sexual interest in females from their late teens to late 20s, and a tendency to indecently assault or commit acts of indecency towards female patients in that age range who were under his care during the course of his employment at the Woolcock Institute.

154. With respect to Counts 1, 3, 5, 6 and 7 (concerning HMF), submissions were made as to why the Court should conclude that the challenged conviction was unreasonable or was not supported having regard to the evidence.

155. Put shortly, concerning Count 1, it was submitted that the CCTV footage showed, at best, that the Applicant touched HMF on the leg, with his hand and forearm then being covered by the bed clothes. It was noted that the Applicant had denied touching HMF in the vicinity of her vagina. Accordingly, it was submitted that there was insufficient evidence for the jury to be satisfied beyond reasonable doubt that the Applicant had placed his hand on HMF’s groin or vagina whilst rearranging the bedsheets.

156. Concerning Count 3, it was noted that the summary in MFI31 alleged that the Applicant touched himself on the penis before placing his penis on the complainant’s hand. By reference to the images contained in the CCTV footage, it was acknowledged that the Applicant appeared to touch his groin area (with his back to the camera) and, soon after, appeared to touch himself again in the groin area. It was submitted that it was not possible to determine from the footage whether the Applicant was just scratching himself, as opposed to masturbating. Accordingly, it was submitted that the jury ought not to have been satisfied beyond reasonable doubt concerning Count 3.

157. With respect to Count 5, it was noted that the allegation was that the Applicant put his penis in the complainant’s hand and thrust his hips. By reference to the CCTV footage, whilst acknowledging that the Applicant appeared to fiddle the zipper area of his pants and to tilt his hips forward slightly, it was submitted that the penis was not visible outside the pants. Whilst noting that the Applicant appeared to press forward with his hips at several points, it was submitted that it could not be determined from the images that the Applicant placed his penis in the complainant’s hand at any point during the footage. Accordingly, it was submitted that there was insufficient evidence for the jury to be satisfied beyond reasonable doubt that Count 5 was established.

158. Concerning Count 6, it was noted that the summary of the allegation in MFI31 asserted that the Applicant moved his hips towards the complainant’s feet and masturbated. By reference to the CCTV footage, it was said that the Applicant could be seen straddling the bottom left corner of the bed near HMF’s right foot, but that there was nothing in the footage at that point that would allow an inference to be drawn that he was masturbating. It was noted that the Applicant’s right arm and hand could be seen adjusting the wiring on HMF’s right leg and that his left arm was not visible. Accordingly, it was submitted that there was insufficient evidence to make a finding to the criminal standard that the offence charged in Count 6 had been proved.

159. With respect to Count 7, it was noted that the summary of the allegation in MFI31 asserted that the Applicant placed his penis on the complainant’s hand. Whilst acknowledging that the footage may depict the Applicant pressing forward with his hips at points during the footage, it was said that it was not possible to see the complainant’s hand, let alone the Applicant’s penis either in or close to it. It was noted that the Applicant denied placing his penis on HMF’s hand. Accordingly, it was submitted that there was insufficient evidence for the jury to be satisfied beyond reasonable doubt that the offence charged in Count 7 had been proved.

406. There is no mental condition or other feature which serves to reduce the Applicant’s moral culpability for these offences. Further, the Applicant was a mature 47-year-old man at the time of the offences.

407. I adopt the recital of the Applicant’s personal history as made by the sentencing Judge (see [272] above). I have regard, as well, to the extra-curial punishment found by the sentencing Judge (ROS15-16 at [276] above). The fact that the Applicant would not be permitted to practise medicine is relevant to sentence. However, the loss of the Applicant’s capacity to practise medicine “cannot be treated as a substitute for the punishment which the law requires”: Director of Public Prosecutions v Klep [2006] VSCA 98 at [18] (Nettle JA).

408. The Applicant’s risk of reoffending is likely to be limited by the restricted opportunity that he would have in the future to commit offences of this type, given the impact of his conviction and sentence for these offences. That said, the Applicant possesses no real insight into his offending and no contrition and remorse.

409. The Court must keep in mind the purposes of sentencing set out in s.3A Crimes Sentencing Procedure) Act 1999:

“3A Purposes of sentencing

The purposes for which a court may impose a sentence on an offender are as follows—

(a)    to ensure that the offender is adequately punished for the offence,

(b)    to prevent crime by deterring the offender and other persons from committing similar offences,

(c)    to protect the community from the offender,

(d)    to promote the rehabilitation of the offender,

(e)    to make the offender accountable for his or her actions,

(f)    to denounce the conduct of the offender,

(g)    to recognise the harm done to the victim of the crime and the community.”

412. The requirement for reasonable proportionality of sentence, having regard to the objective gravity of the offences, is reflected in s.3A(a) being the requirement for adequate punishment. The indicative sentences should have regard to other s.3A factors as well, including specific and general deterrence (s.3A(b) and (c)), promoting the rehabilitation of the Applicant (s.3A(d)) and denouncing the Applicant for his conduct and making him accountable for his actions (s.3A(e) and (f)).

413. An important additional purpose is to recognise the harm done by the Applicant to the five victims and the community (s.3A(g)). I have regard to the victim impact statements referred to earlier (see [381]-[385] above).

414. The fact that the victims were required to give evidence at the Applicant’s trial cannot be used to aggravate sentence: Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74 at [22]-[38]. However, the Applicant cannot call in aid any discount for guilty pleas, nor is there evidence of contrition or remorse.

415. The Applicant’s prior good character is of limited use to him on sentence. This was not spur of the moment aberrant conduct, but a pattern of predatory criminal conduct directed to female patients in the Applicant’s care as a sleep technician.

416. In sentencing the Applicant, it is necessary for the Court to have regard to s.68A Crimes (Appeal and Review) Act 2001 so that double jeopardy is not to be taken into account on the appeal: R v Mulligan [2016] NSWCCA 47 at [49]-[53].

417. Having regard to the objective circumstances of the offences and the subjective circumstances of the Applicant and other factors relevant to sentence, the indicative sentences in this case should be as follows:

1. Count 1 – imprisonment for 16 months with a non-parole period of 12 months.

2. Count 3 – imprisonment for 12 months with a non-parole period of 9 months.

3. Count 4 – imprisonment for 12 months with a non-parole period of 9 months.

4. Count 5 – imprisonment for 20 months with a non-parole period of 15 months.

5. Count 6 – imprisonment for 12 months with a non-parole period of 9 months.

6. Count 7 – imprisonment for 16 months with a non-parole period of 12 months.

7. Count 8 – imprisonment for 20 months with a non-parole period of 15 months.

8. Count 9 – imprisonment for 16 months with a non-parole period of 12 months.

9. Count 10 – imprisonment for 16 months with a non-parole period of 12 months.

10. Count 11 – imprisonment for 20 months with a non-parole period of 15 months.

11. Count 13 – imprisonment for 16 months with a non-parole period of 12 months.

12. Count 14 – imprisonment for 16 months with a non-parole period of 12 months.

13. Count 15 – imprisonment for 20 months with a non-parole period of 15 months.

14. Count 17 – imprisonment for 10 months.

15. Count 18 – imprisonment for 16 months with a non-parole period of 12 months.

16. Count 19 – imprisonment for 16 months with a non-parole period of 12 months.

17. Count 20 – imprisonment for 16 months with a non-parole period of 12 months.

18. Count 21 – imprisonment for five years.

19. Count 22 – imprisonment for 16 months with a non-parole period of 12 months.

20. Count 23 – imprisonment for 20 months with a non-parole period of 15 months.

21. Count 24 – imprisonment for 20 months with a non-parole period of 15 months.

22. Count 25 – imprisonment for 10 months.

418. The process of notional accumulation undertaken for the purpose of reaching an aggregate sentence must have regard in this case to the various factors referred to earlier and, in particular, the requirement that the aggregate sentence reflects a series of offences committed against five separate victims: Jung v R at [68]. The totality principle requires the Court to impose an aggregate sentence which represents a just and appropriate measure of the Applicant’s total criminality: ZA v R (2017) 267 A Crim R 105; [2017] NSWCCA 132 at [70]-[76].

419. A finding of special circumstances is appropriate by reference to the need for an extended period of supervised liberty at the conclusion of the custodial component of the sentence. However, the non-parole period should reflect the minimum period for which the Applicant should be held in custody having regard to all factors relevant to the determination of sentence and, in particular, the objective gravity of his crimes: R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [63]-[65].

420. The aggregate sentence of imprisonment in this case should comprise a head sentence of imprisonment for nine years and nine months with a non-parole period of six years and five months to commence on 25 September 2020, the date when the Applicant first entered custody. The finding of special circumstances should result in a non-parole period which comprises about 66% of the head sentence in this case.

Conclusion and Proposed Orders

421. The Applicant has not made good his challenge to conviction on any of the counts in relation to which it was contended that the verdict of guilty was unreasonable or could not be supported having regard to the evidence.

422. I would grant the Applicant leave to appeal against conviction but dismiss the conviction appeal.

423. For reasons contained in this judgment, I would uphold the Crown appeal and resentence the Applicant in the manner indicated.

424. I propose the following orders:

1. grant leave to appeal against conviction;

2. appeal against conviction dismissed;

3. Crown appeal concerning sentence allowed;

4. the aggregate sentence imposed at the Sydney District Court on 9 October 2020 is set aside;

5. in its place, the Applicant is sentenced to an aggregate term of imprisonment for a period of nine years and nine months commencing on 25 September 2020 and expiring on 24 June 2030 with a non-parole period of six years and five months commencing on 25 September 2020 and expiring on 24 February 2027;

6. the earliest date upon which the Applicant will be eligible for release on parole is 25 February 2027.

425. CAVANAGH J: I have had the considerable benefit of reviewing the draft judgment of Johnson J. I agree with his Honour’s judgment in respect of the conviction appeal.

426. Having undertaken my own independent assessment of all of the evidence, I consider that it was open to the jury to find that the Applicant was guilty on each of the Counts which he seeks to challenge in this appeal.

427. However, I respectfully take a somewhat different view to his Honour on the Crown appeal on sentence.

428. As Johnson J has carefully and extensively reviewed the sentencing hearing and sentencing remarks, it is not necessary that I merely repeat that review. Further, I agree with his Honour’s decision in respect of Ground 2 on the sentence appeal.

429. I take a different view, in part, to the Crown appeal under Ground 1 and, at least in part, as a consequence under Ground 3.

Ground 1

430. Ground 1 constitutes a challenge to the trial judge’s (Flannery SC DCJ) assessment of the objective seriousness in respect of Counts 3, 4, 6, 17, 21 and 25.

431. The question which thus arises is whether the particular characterisation which her Honour gave to the circumstances of the offending was open (see Mulato v R [2006] NSWCCA 282 at [37] per Spigelman CJ, Simpson J agreeing).

432. The assessment of objective seriousness must only be reviewed by this Court in accordance with the principles stated in House v The King (1936) 55 CLR 499; [1936] HCA 40.

433. As was observed in Magro v R [2020] NSWCCA 25 at [29] (per Gleeson JA, R A Hulme and Button JJ agreeing) the assessment of the objective seriousness of an offence is classically within the role of the sentencing judge in finding facts and drawing inferences from those facts.

434. The assessment is an evaluative task which may be susceptible to different views. This Court may not merely substitute its own view.

435. The trial judge made findings on objective seriousness as follows:

“Count 21 is a very serious offence as all such offences are. Having regard to the nature of the aggravated indecent assault I am satisfied the offender intended to commit, that is, something similar to the indecent assaults he committed in respect of the other counts, I find that the offence is below the midrange of objective seriousness, but not appreciably so.

I am satisfied that counts 3, 4 and 6 are relatively low-level examples of aggravated indecent assault offences, counts 1, 7, 9, 10, 13, 14, 18, 19, 20, 22 and 23 are more serious and counts 5, 8, 15, and 25 more serious again, although below the mid-range of objective seriousness for such offences, but these latter offences not appreciably so.

Counts 17 and 25, the offences of aggravated acts of indecency, are relatively low-level examples of those offences.”

436. The Crown does not submit that the trial judge erred in the findings as to objective seriousness in respect of any other Counts. Plainly, her Honour considered Counts 1, 7, 9, 10, 13, 14, 18, 19, 20, 22 and 23 as more serious than low-level examples and considered that Counts 5, 8, 15 and 25 were more serious again but found that all of that offending was still below the mid-range.

437. In the written submissions, the Crown “accepts that it was open to the sentencing judge to find that those Counts (Counts 3, 4, 6, 17 and 25) were less objectively serious than the remaining Counts, bearing in mind the nature of the physical act involved”.

438. Despite this, the Crown advances the argument that “having regard to all relevant factors, it is submitted that it was not open to the sentencing judge to find that Counts 3, 4, 6, 17 and 25 were ‘relatively low-level examples’ of offences of their kind.”

The appeal in respect of counts 3, 4, 6, 17 and 25

439. The offending in respect of Counts 3, 4 and 6 all occurred as a part of a course of conduct towards the same complainant. Each offence was an offence of aggravated indecent assault contrary to s.61M(1) Crimes Act 1900 (NSW).

440. Each of the Counts involves the Applicant engaging in the conduct for up to a few seconds. As the Crown submits, Counts 3 and 4 related to the actions of the Applicant touching the complainant with his hand whilst at the same time touching his penis. Count 6 relates to the conduct of the Applicant moving himself towards the complainant’s feet and masturbating for a moment (as described by the trial judge).

441. Her Honour gave indicative sentences of 9 months imprisonment with a non-parole period of six months for each offence.

442. Counts 17 and 25 are both offences of aggravated acts of indecency contrary to s.61O(1A) Crimes Act 1900. Her Honour gave indicative sentences of imprisonment for 6 months in respect of each Count.

443. The Counts relate to different complainants.

444. Count 17 is described by her Honour in the sentencing judgment as follows:

“At 12.09am the offender entered the room and disconnected the headbox, pausing the study. He carried a torch. He turned [LD] onto her right side so that she was facing him. He fondled his penis while looking at her. This is count 17.”

445. Count 25 is described by the sentencing judge as follows:

“A little later he stood next to the bed facing [TH] and rubbed his groin area over his pants. This is count 25”.

446. Her Honour’s descriptions are consistent with the CCTV footage.

447. The circumstances of aggravation for each Count is that the victims were under the authority of the Applicant at the time of the offending (s.61M(3)(c); s.61O(3)(b) Crimes Act 1900).

448. As the trial judge specifically found that (leaving aside Count 21) all of the other offending was below the mid-range with Counts 5, 8 and 15 being higher than the other Counts (but still in the range described as below the mid-range), it must follow that the Crown case on appeal is that the trial judge should have identified the offending under Counts 3, 4, 6, 17 and 25 as somewhere between “below the mid-range” and at a “low-level”.

449. Both descriptions are broad and general. It might be said that, at least conceptually, if something is less than “below the mid-level” then it is at a lower level. There may be an inconsistency in the Crown approach in that it accepts that the Counts the subject of its appeal were less objectively serious than below mid-range but says that the description of “low-level” was not open.

450. This demonstrates the difficulties in challenging findings of objective seriousness in an appeal such as this. It is important that an appeal in respect of objective seriousness in respect of multiple Counts not be blurred with a complaint about the indicative sentences given for each Count. The Crown appeal under Ground 1 is not a challenge to the indicative sentences. It could not be (See R v Kennedy (2019) 101 NSWLR 121; [2019] NSWCCA 242 at [78] per Payne JA and Fullerton J, Adamson J agreeing).

451. Plainly, the sentencing judge was endeavouring to describe the offending within differing bands or ranges. Objective seriousness is not capable of categorisation according to a mathematical formula (See FL v R [2020] NSWCCA 114 at [59]-[60] per Wilson J, R A Hulme and Hamill JJ agreeing).

452. Having said that, the Crown submits that there are a number of factors which render the objective seriousness of the offending of a higher category (however that might be described) than as found by the trial judge. Further, the Crown accepts that the nature and degree of the physical contact involved is of considerable significance but submits that it is “not the start or the end of the assessment”. Of course, that must be correct but I consider that in the circumstances of this matter, the nature and degree of contact is a significant factor.

453. The Crown submits that a critical component of the assessment of objective seriousness is an examination of the circumstances in which each offence was committed. Again, I agree.

454. The Crown identifies the following circumstances as particularly significant:

1. the Applicant committed each of the offences in the course of his employment as a medical professional. He abused the authority held by virtue of that position;

2. the nature of the position of authority and abuse of that position made each of the offences serious examples of aggravated indecent assaults and aggravated acts of indecency;

3. each of the offences took place at a time when the complainants were vulnerable in the sense that each of the complainants was asleep or in such a state that they were unaware of the offences taking place and were plainly incapable of giving consent. It is evident in those circumstances that the Applicant’s moral culpability is high; and

4. the fact that each of the offences took place as part of a course of conduct in the context of ongoing offending over a six week period is a factor which bears upon the assessment of the objective seriousness of each of the offences (see LN v R [2020] NSWCCA 131 at [31]-[60] per Basten JA, R A Hulme J agreeing and Hamill J dissenting).

455. At least, in my view, the matters raised by the Crown do not lead to the conclusion that the trial judge’s findings as to objective seriousness in respect of the challenged Counts were not open for a number of reasons.

456. Firstly, it is important to avoid any double counting. The circumstances of the complainants being under the authority of the Applicant constituted an element of each of the offences. This was recognised by the Crown in its submissions on sentence as follows with reference to s.21A(2)(k) Crimes (Sentencing Procedure) Act 1999 (NSW):

“[The] offender abused a position of trust or authority in relation to the victim. This section only applies to Count 21 as the other offences were committed under the authority which is an element of the offence.”

457. Whilst it may be that in some circumstances trust and authority might be viewed as different aggravating factors, as is apparent from the Crown submission on sentence, it used the terms interchangeably on the sentencing hearing.

458. In MRW v R [2011] NSWCCA 260 Bathurst CJ (James and Johnson JJ agreeing) observed at [78]:

“However, when the circumstances giving rise to abuse of trust or abuse of authority arise from the same facts it would seem to me that a sentencing judge should be cautious in giving undue weight to an abuse of a position of trust where abuse of authority is an aggravating factor. In circumstances where a sentencing judge does so, error may result with the prospect of intervention by this Court. However, the judge committed no error in taking abuse of a position of trust into account in sentencing the appellant.”

459. I would be cautious in giving too much weight to the aspect of breach of trust for these Counts in circumstances in which, as the Chief Justice said, the circumstances giving rise to the abuse of trust or abuse of authority arise from the same facts and, in this case, the abuse of authority is the circumstances of aggravation which is an essential element of the offending. Having said that, at least in general terms, the trial judge considered that breach of trust was a significant factor.

460. Secondly, whilst the concepts of objective seriousness and moral culpability can overlap (Kelley v R [2021] NSWCCA 173 at [38] per Bell P, Rothman and Bellew JJ agreeing; Irmak v R; Dagdanasar v R [2021] NSWCCA 178 at [308] per Johnson, Wilson and Cavanagh JJ). Moral culpability is only one factor which may be considered in the assessment of objective seriousness.

461. Thirdly, I do not take what was said in LN or in Einfeld v The Queen (2010) 200 A Crim R 1; [2010] NSWCCA 87 at [146]-[148] (per Basten JA) as supporting the general proposition advanced by the Crown, being the fact that each of the offences took place as part of a course of conduct was a factor which elevated the assessment of the objective seriousness for each of the individual offences.

462. In both LN and Einfeld, this Court referred to the importance of considering the offending conduct in the context in which it occurred, which may include uncharged conduct, provided that any uncharged conduct is not be taken into account so as to lead to the imposition of a higher sentence than would be merited for the offence charged.

463. In my view, the trial judge was entitled to place particular weight on the nature and extent of the conduct towards each complainant. Her Honour did so.

464. In determining objective seriousness in respect of the s.61O(1A) Crimes Act 1900 offending, particular weight should be given to the conduct of the offender towards the complainants. The act of indecency must be with or towards another person.

459. This requires identification of what the offender did towards the other person. In respect of Counts 17 and 25 the Applicant stood next to the complainants (without touching them at that time) and fondled his penis whilst the complainants were asleep.

460. I accept that minds may differ and it may be a matter of what weight should be given to various factors but, in circumstances in which I do not completely accept the Crown’s submissions on the factors which the Crown submits suggest the findings of objective seriousness were not open, I would not interfere with those findings. I consider that they were open to her Honour the sentencing judge.

Count 21

467. I agree with the observations of Johnson J in respect of Count 21. Administering an intoxicating substance to the complainant in the particular circumstances was a very serious aggravating factor on sentence.

468. As the sentencing judge said, the Applicant had brought the drug into the Woolcock Institute and administered it to the victim. He was able to do so through use of his medical knowledge. He was able to do so because the complainant was under his authority at the time.

469. The administration of a drug or drugs to a victim whilst that person is under the authority of the offender for medical treatment is certainly an aggravating factor as set out in s.21A(2) Crimes(Sentencing Procedure) Act. I agree that the categorisation of that offending as below the mid-range of objective seriousness was not open to the trial judge. Such a finding fails to give appropriate weight to the significantly aggravating circumstances existing at the time of the offending.

470. I consider that Ground 1 has only been made out in respect of Count 21.

Ground 3 – Manifest inadequacy

471. It is not necessary that I repeat the principles which apply to a Crown appeal on sentence. I would simply add what was said by N Adams J (Hoeben CJ at CL and Button J agreeing) in Manojlovic v R; R v Manojlovic [2020] NSWCCA 315 at [167]:

“The principles in relation to Crown appeals are well established. The primary purpose of a Crown appeal against sentence is to lay down principles of law for the governance and guidance of courts having the duty of sentencing convicted persons. A Crown sentence appeal based on a claim of manifest inadequacy of sentence requires the Crown to establish that the sentence imposed was unreasonable or plainly unjust in a sentencing environment where there is no single ‘correct’ sentence and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [325]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520 at 538; [2010] HCA 45 at 538 [58].”

472. It is worth setting out the summary of the Crown position as contained in the Crown’s written submissions as follows:

“The present Crown appeal is brought for the purpose of engaging the discretion of this Court to intervene and set aside the sentence imposed upon the respondent because it is ‘plainly unjust’, being so far below the range of sentences that could justly be imposed and is thereby likely to undermine public confidence in the proper administration of criminal justice in the sentencing of offenders who commit sexual offences, particularly against patients in the course of receiving medical care. The present appeal is also brought in response to the identification of patent errors in the sentencing judge’s approach to the assessment of the objective seriousness of the offences and the respondent’s good character, and in light of the importance of deterring others in the medical profession from committing similar offences against vulnerable patients.”

473. The Crown submits that the total sentence imposed is plainly unjust for a number of reasons but specifically relies on the matters raised under Grounds 1 and 2. In my judgment, the Crown has been largely unsuccessful under Grounds 1 and 2.

474. In my view, there was only one “patent error” being the finding of objective seriousness in respect of the s.38(a) Crimes Act 1900 offence (Count 21). That does not of itself mean that the sentence could not be viewed as plainly unjust as manifest inadequacy is a stand-alone ground of appeal. Further, the s.38(a) Crimes Act 1900 offence is the most serious.

475. However, the Crown’s lack of success on its other grounds rather diminishes the force of its submissions under Ground 3.

476. As outlined above, the appeal is in respect of the total sentence and not in respect of the indicative sentences.

477. However, examination of the indicative sentences may be a guide. Her Honour provided an indicative sentence of 4 years imprisonment in respect of Count 21. In my view, this does not necessarily suggest error even with a different finding on objective seriousness.

478. Indeed, in Kearsley v R (2017) 265 A Crim R 233; [2017] NSWCCA 28, the Court (per Macfarlan JA, Schmidt J agreeing) provided an indicative sentence of 15 months in respect of a medical practitioner who administered a sedating drug to a colleague (in a personal capacity). The circumstances of that matter were different and the Court must always exercise caution in comparing sentences, but the difference between the indicative sentence is significant. Kearsley may also be relevant because, like this matter, it is necessary to have regard to the fact of extra-curial punishment in the sense of a loss of ability to work in his career.

479. I might also add that whatever view that might be taken about the total sentence, it does not seem to me that the indicative sentences could be described as lenient.

480. Even if it might be thought that, contrary to the view which I just expressed, the indicative sentence in respect of a particular count was inadequate, it does not follow that the aggregate sentence was manifestly inadequate – JM v R (2014) 246 A Crim R 528 at 537; [2014] NSWCCA 297 (per R A Hulme J, Hoeben CJ at CL and Adamson J agreeing).

481. Further, for the reasons identified by the Applicant, I do not accept the Crown’s submission concerning accumulation. As R A Hulme J stated in Vaughan v R [2020] NSWCCA 3 at [117] in setting an aggregate sentence a sentencing judge does not need to assess the precise degree of accumulation. The judge determines the aggregate sentence by assessing what is appropriate to reflect the totality of criminality in all of the offending.

482. I have regard to the number of victims and the number of Counts as well as the significance of the s.38(a) Crimes Act 1900 offence but, in the end, an assessment of whether an aggregate sentence is plainly unjust is not capable of determination according to some defined formula or specified criteria.

483. I would adopt what was said by the Court in R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 (per Spigelman CJ, Whealy and Howie JJ) at [15]-[16]:

“The Court noted the importance of the principle of totality to the task that was before Hidden J in relation to the sentencing of MMK. It was the application of that principle that required that the Crown appeal be dismissed in his case. It is a fundamental sentencing principle that Hidden J was, and this Court is, legally obliged to apply. Whenever the Court sentences an offender for multiple offences, including when there are different victims, or sentences an offender who is already serving a sentence after conviction for other offences, it is necessary for the judge to ensure that the aggregation of all of the sentences is a ‘just and appropriate measure of the total criminality involved’: Postiglione v The Queen (1997) 189 CLR 295 at 307-308; 94 A Crim R 397 at 406 per McHugh J. The need to maintain an appropriate relationship between the totality of the criminality involved in a series of offences and the totality of the sentences to be imposed for those offences arises for at least two reasons.

The severity of a sentence is not simply the product of a linear relationship. That is to say severity may increase at a greater rate than an increase in the length of a sentence...”

484. I must consider whether the sentence reflects the totality of the criminality. It can be said that all offending of this type is serious, but the process of sentencing involves the synthesis of objective and subjective factors.

485. In the end, I consider this to be a lenient sentence, particularly having regard to the number of victims and the number of Counts. However, the use of such a term does not render it plainly unjust, just as describing a sentence as severe on a manifest excess appeal does not mean that it is plainly unjust. I would not intervene merely because I consider the sentence to be lenient as Johnson J identifies (in coming to a different view than mine) more is required.

486. I am not satisfied that the aggregate sentence is plainly unjust. I factor into my decision that other than in respect of one Count the findings on objective seriousness were open to the trial judge and the Crown was not successful on Ground 2.

The result of the appeal

487. There may be a question as to what happens when, on a Crown appeal, the Crown establishes specific error but does not establish that the sentence was plainly unjust.

488. This issue was considered by N Adams J in Manojlovic at [225]-[246].

489. As her Honour observed at [234]:

“The decisions in Griffiths v The Queen and Everett v The Queen established that Crown appeals against sentence should only be brought to establish some matter of principle in the context of avoiding manifest inadequacy or inconsistency in sentences”.

490. Further, her Honour observed at [241]:

“There is nothing in the judgment of French CJ and Gageler J in CMB at [33] to suggest that in an appeal brought under s 5D of the Criminal Appeal Act, this Court can intervene and impose a higher sentence without first being satisfied that manifest inadequacy was established. Such a proposition would be inconsistent with Everett v The Queen which French CJ and Gageler J expressly endorsed in CMB at [35]. Although it is to be accepted that their Honours stated (at [33]) that before the residual discretion comes to be exercised either latent or patent error must be established, their Honours did not go on to say anything to the effect that an appellate court could, after declining to exercise the residual discretion, increase a sentence that was not manifestly inadequate”.

491. As I have not accepted the Crown appeal on manifest inadequacy, but accepted an error in the finding of objective seriousness, I would decline to intervene and dismiss the sentence appeal.

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Decision last updated: 28 October 2021