R v Leighton

[2017] NSWDC 472

District Court

New South Wales

Medium Neutral Citation:	R v Leighton [2017] NSWDC 472
Decision date:	24 July 2017
Jurisdiction:	Criminal
Before:	C Craigie SC DCJ
Decision:	Sentence
Catchwords:	CRIME – offences predate 1989 Crimes (Sentencing Procedure) Act (NSW)
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1989 (NSW)
Cases Cited:	High Court in Power v The Queen (1974) 131 CLR 623
Category:	Sentence
Parties:	Regina (Crown) Rodger Garry Leighton (Offender)
Representation:	Counsel: Mr Brad Hughes (Crown)   Solicitors: Mr Sam Macedone (Offender)
File Number(s):	2012/00282749, 2017/00012388
Publication restriction:	Suppression and non-publication orders – Statutory non-publication order re names of complainants

Judgment

1. HIS HONOUR: The offender, Rodger Garry Leighton, has pleaded guilty to offences alleged in two indictments. There are six counts on the first indictment, with further matters to be taken into account on that indictment by way of three Form 1 documents. There is a second indictment consisting of ten counts.

2. All of the offending reflected in the indictments relates to criminal conduct committed by the offender in a period from 1974 to 1983. In the first instance that relates to offending against young female children. All of the offending relates to victims who had attended the offender’s dental practice, where in the course of treatment or examination he would molest them whilst they were in the dental chair. He did so when the victims were under the influence of nitrous oxide gas that was administered by the offender on the pretence that the administration of the gas was solely for the purposes of legitimate dental treatment. Rather, it was the case of also being to facilitate opportunistic offending for the offender’s sexual gratification.

3. Indictment A in this instance contains six counts. It relates to offences committed on dates the latest of which is in 1982, the earliest 1974. In each instance the counts relate to female children, who were the patients of the offender. The ages of the five victims in this first indictment range from between ten or 11 and 14.

4. In addition to the first indictment and its related Form 1 offences attached to three of the six counts, there is a second indictment of ten counts. It relates also to predatory sexual behaviour by the offender in the course of his dental practice. However, that related conduct ranged between dates in early 1974 and December 1979. The three victims in those instances were young, but nonetheless, adult women. In each instance there was more than one offence. As in the case of the child victims in the first indictment, the conduct arose in a particular setting of dental practice and involved the administration of nitrous gas. After the administration of that gas, the offender would sexually interfere with his patient while she was at least partially debilitated by the effect of the gas.

5. I note that in respect of all matters the pleas of guilty have come in a setting that the offender had been previously convicted by me after a trial before a jury in respect of other matters. Those convictions were imposed in respect of five indecent assault counts relating to three children, who were between the ages of ten and 12. The offender was subsequently sentenced to imprisonment for that offending against his young female patients relating to a period between 1 January 1973 and 31 December 1984. There is then a substantial area of overlap between that offending and the present offending.

6. In relation to those earlier trial matters, I sentenced the offender to an overall non-parole period of one year and one month, to date from 11 November 2015 and to expire on 10 December 2016. There was a balance of term imposed of six months and 16 days, expiring on 26 June this year. I note, however, the offender has remained in custody since the commencement date of the earlier sentences, being 11 November 2015.

7. I also record for completeness that those sentences, having been reviewed and not set aside in an appeal to the Court of Criminal Appeal by the Crown, that they do to some extent provide a relevant basis for general comparison as to the available ranges within an exercise of allowable discretion related to the offending at the particular time and as is to be emphasised when applying the sentencing practices and patterns applicable at the time of offending, those sentencing practices and patterns, of course now being quite inadequate according to the views, legislative and judicial, that have developed since.

8. Subsequent to the trial, related sentencing proceedings and disposition of the Crown’s appeal on the issue of sentence, further matters by agreement between the parties came before me.

9. In the present and further 16 matters now before the Court, pleas were entered before a magistrate in respect of counts 1, 2 and 3 on the first indictment of six counts in all. In relation to those three counts I note that it is now not contested and made clear that an allowance of 25% is regarded as appropriate by the parties in reduction of any otherwise appropriate sentence. That allowance of 25% is solely upon the basis of the utility afforded by the fact of the pleas, which may be regarded as having been entered at the earliest opportunity, that is in respect of those three counts only. A lesser allowance is to be determined upon consideration of all factors, including any factor of utility as may attach to counts 4, 5 and 6 on the first indictment and in respect of the ten counts on the second indictment.

10. In relation to the first indictment, which I will refer to as “Indictment A”, the following counts and related facts are to be considered: These offences were, as previously noted, committed at a time when the offender was in his late thirties to early forties. A consequence of the history of these matters is that for some 40 years the offender has gone unpunished and his victims have gone without relief from the humiliations and distress that he caused them, in many instances when they were at an age of particular and lasting vulnerability, and in that regard I do not refer only to the children. The offender has been permitted hitherto to go about his life, obtaining all the material and other rewards, including those of social status and accompanying standing in the community, that a professional person such as a dentist is afforded.

11. Now the offender comes before the Court as a person of advanced years and in sharply declining health he is to be punished finally for his past conduct. As I am required to take into account the offender’s age and declining health, the long delay in bringing him to answer for his crimes has, amongst other implications, some which may require moderation in the severity of punishment that may now be imposed upon him.

12. It is to be observed, regrettable in the extreme that the victims of the offender’s depredations have had to wait so long to see him brought to justice and it will not be the full measure of justice that a more swift resolution might well have brought about, even applying the sentencing scales at the time. None of this is any fault of any victim, as the offender abused his victims with some justifiable confidence that their inherent vulnerability, whether as young children or as young women restrained by the attitudes of the time, and his relative position of power and responsibility would protect him. His victims were in some cases aware of all these factors, and indeed in some other cases had been explicitly or at least implicitly discouraged from complaint by the sad reality at the time that they might not have been believed and, if they complained, they might well have had to go through investigative and/or court processes of a different level of sensitivity to that which they would encounter now and with a lower expectation that the process would in any event deliver vindication, as they would properly see it.

13. These are historical offences. As I have noted, this has a number of implications. As a result of the long delay the offending in all instances, as is required of me at law, can only be met with charges framed pursuant to the provisions of the Crimes Act 1900 as they were then in force at the time of the offending conduct. Some of the related offence provisions have long since been repealed and replaced by significantly more severe provisions as would now apply to the same conduct and facts. That has reflected a progression in public awareness, legislative and judicial attitudes. There have been, since the 1980’s in particular, a succession of reflective statutory and sentencing practice adjustments meeting the need for more severe responses in relation to sexual offending of any kind, but in particular when it involves children.

14. This Court, however, is bound to sentence in accord with the provisions and sentencing practices at a time prior to many of those changes to which I have referred. That will therefore entail that in sentencing the offender, as I am required at law, I must reflect the sentencing patterns at the time, including as informed by maximum penalties that were in force at the time for the offences and as they would have been charged at the time.

15. There is a strong body of appellate authority making it clear that I must abide by the requirement to sentence according to those practices and identifiable sentencing ranges applicable at the time of the offending. That will inevitably mean that in sentencing for historical offending of the kind now before the Court, even severe outcomes by the standards of decades ago will often amount to outcomes of a kind that would be considered manifestly inadequate if applied for any corresponding conduct committed, charged and sentenced in accord with contemporary standards.

16. In particular, it is also the case that each of these offences substantially predates the measures contained within the 1989 Crimes (Sentencing Procedure) Act in the so-called truth in sentencing movement towards a different sentencing regime, in particular non-parole periods that now, absent findings of special circumstances, commence with a period of 75% in the ratio between non‑parole period to head sentence unless, as is commonly the case, a finding of special circumstances is made. Even where such a finding of special circumstances is made, the resulting non-parole period will very seldom be anything like the relatively low ratio that applied at the time, sometimes as low as 30 or 35% of the effective head sentence. I will be obliged to reflect some of these realities of past sentencing practice when I come to deal with the totality of offending and indeed the constituent individual sentences.

17. I now turn to consideration of the individual counts and to the supporting facts as outlined in each of the related agreed statements of facts. I will commence with Indictment A and count 1. This count concerns offending against the victim whom I will identify as SK. The substantive count is to the effect that between 7 February 1975 and 31 December 1975 the offender indecently assaulted the victim so as to constitute an offence contrary to the provisions of s 76 of the Crimes Act 1900. At the time the maximum penalty for that offence was six years imprisonment. SK was no older than 14 years at the time when she attended upon the offender for dental treatment. In common with the other victims, she was given nitrous oxide, described by the victim as “happy gas”, as indeed was the term used by the offender in a number of instances. In her case that attracted her because she had a fear of going to the dentist. On the occasion when she was attending in 1975 for an after school appointment she was in her school uniform. As she sat in the dental chair and at a time when the dental nurse was absent, she was molested by the offender while she was affected by nitrous oxide gas. The offender put his hand under the protective dental cape and touched the victim’s vagina on the outside of her underwear. SK continually pushed the offender’s hand away, as she felt embarrassed, which in the statement of facts is related to the fact that she was also at the time wearing a menstrual pad and she thought that the offender could feel it. At the end of the appointment SK was distressed and started to cry. She went home and told her parents what the offender had done to her. She continued to receive dental treatment from the offender but she thereafter refused to have gas and made sure that either her mother or one of the dental nurses was present.

18. I move now to count 2 on Indictment A. The victim in this instance was a then child to whom I will refer as MK. She was subjected to a sexual assault by the offender sometime between 30 October 1975 and 16 January 1977. MK attended the offender’s surgery on a number of occasions, receiving injections prior to treatment. However, when she was either 13 or 14 she was given gas for the first time, having attended an appointment on her own. She was asked if she wanted to have the so-called happy gas so that she would not have to have an injection. She agreed, and while she was feeling the effects of the nitrous oxide and the dental nurse was out of the room the offender reached over and grabbed her vagina on the outside of her clothing and down between her legs in what is described as “a sexual way”. At some point the dental nurse returned and then the offender ceased his touching. However, when the nurse again left, the offender recommenced rubbing MK’s vagina on the outside of her clothing. She felt completely immobilised and was unable, when she tried, to move her arms and legs. She became distressed and was crying, with tears streaming down her face to the point that her hair and the side of her face was wet. On the next occasion the dental nurse returned, her distressed state was noticed and the dental nurse wiped her face, also saying some words of comfort, noting the child was crying. At the end of the appointment MK left the surgery feeling dazed. She looked down at her dress and noticed that it was creased around the crotch area. She made that observation as she was travelling on the train. MK never returned to the offender’s dental surgery, as her parents moved back to Melbourne. She did not disclose what had happened for several years.

19. In the proceedings before me MK presented a victim impact statement. I take that statement into account, as I do in relation to other such statements presented by other victims, but do so in accord with principles indicating the manner in which the statements are to be approached. In each instance the victim impact statement has informed the Court of harm done by the offender. It is, however, to be noted that a victim impact statement is not to be used in a manner that will elevate findings of fact related to objective seriousness of the offending above that level which is otherwise to be assumed and inherent in the evidence otherwise before the Court. In the event, an inherent level of considerable harm is to be assumed in assaults of the kind revealed in each instance relating to the child victims in particular, having regard to the gross breach of trust committed by an individual in a caring profession, whose role places him in an advantaged position, which was grossly abused in each instance of offending now before the Court. The status of the victim impact statements is, however, acknowledged, as is the suffering of each of these victims. I do so whilst noting the necessary limitations put upon the use of victim impact statements at law, whose status is not the same as that of sworn testimony that has been tested under cross-examination.

20. In relation to count 3 in Indictment A, the victim FR was aged 12 at the time when as a high school student she attended the offender’s surgery. She had been sent there because her parents had heard that he used the so-called happy gas on patients and they believed that this would alleviate her fear of the dentist. FR was molested by the offender on her first visit. Having administered the nitrous oxide and when the dental nurse was out of the room, the offender placed his hand under FR’s school tunic and touched her on the vagina on the outside of her underwear. FR, unsurprisingly, felt shocked by this but due to the gas she felt unable to move and stop the offender from what he was doing. She recalled everything was spinning and noise in the room sounded like an echo. At the end of the appointment she felt extremely embarrassed by what the offender had done but did not say anything to anyone. That first incident is to be taken into account on a Form 1 as a sexual assault pursuant to the provisions then enacted as s 61E(1), being an offence for which the maximum penalty at the time was four years imprisonment.

21. The indictment count itself relates to FR’s attendance not long after that first appointment, again at a time when the dental nurse was absent and nitrous oxide was administered, but on this occasion the offender placed his finger inside FR’s underwear and put his fingers inside her vagina, starting to touch her clitoris. The offender was looking at FR while he was doing this but she was unable to respond, as she was not able to move because of the effect of the gas. She felt that she was unable to prevent the offender from assaulting her in the way that he did. After that appointment, FR felt shocked and embarrassed by what had been done. She did not disclose to a number of people what the offender had done, including any disclosure to her parents.

22. Count 4 relates to offending between 1 January 1979 and 31 December 1979 against the victim KL. That offending constituted a further offence pursuant to s 76 of the Act, as then prevailing and as in the preceding three counts giving rise to implications of a maximum penalty then of some six years imprisonment. KL was no older than 11 years of age at her first attendance upon the offender. She was asked by the offender if she would like to try the gas, to which she agreed as she hated injections. The offender, while she was under the influence of the nitrous oxide on this first visit, stood over her, touching her arm and starting to squeeze her bicep before moving his hand down to touch her thigh and then touching between her legs. KL felt the offender pushing on the outside of her vagina on the outside of her clothing whilst he continued to talk to her.

23. There is no further matter such as might be contained in a Form 1 but it is not contested as the agreed statement of facts would indicate that the indecent assault on KL was not an isolated event involving her and that on further attendances there were at least two other occasions upon which the offender administered gas and indecently assaulted her. I intend to take that matter into account in a different manner to that required for any formally sustained Form 1 offence and I will approach it only upon the basis that it must be accepted that count 4 in relation to KL was not an isolated event so far as offending against that victim is concerned.

24. Count 5 relates to offending by way of digital penetration against the victim BV. There are four related offences of indecent assault pursuant to s 61A(1) to be taken into account on a Form 1 attached that count. BV was 12 years of age when her parents decided that she needed braces and took her to the offender’s dental surgery. After initial appointments when the offender took moulds, she attended on another occasion to have a tooth removed. She was frightened and the offender told her that when she had gas she would be “right because it won’t hurt”. In a reflection of the pattern of offending in other offences, when she was under the gas the offender reached under her clothing and started rubbing her vagina with his fingers on the outside of her clothing, doing so for more than ten minutes, during which time the dental nurse was apparently absent and the victim had felt that she was unable to move. When the dental nurse returned at a point and asked the offender if matters were ready he replied in the negative and the nurse left, the offender then being able to continue rubbing the victim’s vagina for another five minutes. This first incident of sexual assault upon BV is reflected in a Form 1 entry to be attached to count 5 as a s 61E(1) offence.

1. Two weeks after this incident, upon another attendance for the removal of a tooth the victim was similarly assaulted whilst under the gas by the offender, who rubbed her vagina on the outside of her clothing. In this instance that continued for about ten minutes. That matter I note resolves also as a Form 1 entry pursuant to s 61E(1).

2. Some two weeks later, BV attended the offender’s surgery to have another tooth removed. It was a sports day at her school and she was wearing track pants and a t-shirt. The dental nurse placed a coat on her before leaving the room. The offender placed a mask on her face and nose for the gas. The offender walked to the right hand side of the victim and placed her hands on top of each other on the outside of the coat. I note that this was consistent with a pattern of arranging the victims in order that they might be more conveniently sexually assaulted, apart from any convenience that might have been afforded for conventional treatment. The offender then started rubbing BV’s vagina with his fingers on the outside of her clothing. This was the subject of a third Form 1 entry attached to count 5.

3. A further two weeks later BV attended to have another tooth removed. The offender commenced a further indecent assault, initially by rubbing her vagina on the outside of her clothing. This is the subject of a Form 1 entry attached to count 5.

4. The offender then moved his hand inside BV’s track pants and underwear and inserted two fingers inside her vagina. The offender moved his fingers back and forth inside his victim’s vagina. As the offender was moving his fingers back and forth he used his other hand to rub her right breast. This went on for about a minute, before the offender stopped. The offender then removed his hand from inside her underwear, then washed his hands before the dental nurse returned to the room. This last event constituted a particularly serious offence in the offender’s catalogue of criminal conduct towards children, noting that in this instance it was clearly an act of penetrative digital intercourse. It constituted an offence contrary to the provisions of s 61D(1), in respect of which the maximum penalty at the time was ten years imprisonment. That is the matter that constitutes count 5 itself.

5. I come now to count 6 and its related Form 1 matters also relating to the victim BV. Some two weeks after the matters constituting count 5, BV attended to have a fourth tooth removed. Again whilst under the influence of the gas and in the apparent absence of the dental nurse, she was sexually assaulted by the offender, in this instance by rubbing her vagina with his fingers on the outside of her clothing. He was interrupted by the dental nurse walking in and asking if they were ready. He quickly removed his hands and said “No.” The procedure was apparently completed insofar as the removal of the tooth. That matter is a further indecent assault, in this instance attached to count 6, to which I will further refer.

6. Two further instances two weeks later and then a further week later occurred in each instance while BV was under the influence of gas and the offender opportunistically rubbed her vagina with his fingers, in each instance on the outside of her clothing.

7. As to count 6 itself, this arose in a final incident some two to three weeks later when BV attended to have her bottom teeth fixed. As in other incidents, she was taken into the room, a dental cape was placed over her and shortly after the gas was administered by the offender. The offender in this instance rubbed the outside of her vagina before she felt something hard pushing against her pelvic bone. BV’s account is that it felt like an elbow pushing against her vagina and it caused her pain. This continued for about a minute and the offender then slid his hand inside her underpants and started rubbing the outside of her vagina, before inserting his finger. He continued to do this for a short time before she heard the dental nurse return and again ask “Are you ready?”, to which the offender said “No.” The dental nurse left, followed shortly thereafter by the offender. A short time later the offender and the dental nurse returned to the room for the ostensible purpose of realigning the wire on the braces that had been fitted to the bottom of BV’s teeth.

8. The final incident of digital intercourse is a further serious example of offending pursuant to s 61D(1), which, as I previously noted, at the time attracted a maximum penalty of ten years imprisonment for a sexual assault of the kind with a person under the age of 16. Four related indecent assaults constituted by touching or rubbing the vagina of the victim are taken into account in the attached Form 1 matters.

9. It is to be noted that in relation to each of the offences and related Form 1 matters on Indictment A there has been a range of dates and corresponding ages given. I have proceeded in each instance upon the basis that the victim in each instance is to be regarded as no younger than the oldest age consequent upon consideration of the range. To do otherwise would lend weight to an otherwise aggravating circumstance that cannot be established beyond reasonable doubt. In each instance, however, the inherent vulnerability of a child is a factor of seriousness additional to that of the vulnerability of a patient reclined in a dental chair and subjected to the effect of nitrous oxide gas. Whilst the age of the child is an element of the offending and not to be double-counted, the particular age of younger children is to be given appropriate weight.

10. I turn now to Indictment B. The ten counts on that indictment concern three victims, who as young women were subject to indecent assaults by the offender in a manner consistent with his mode of offending as reflected in the case of the eight children. I say “eight children” because there were three children related to the trial convictions and now five more have been more recently related to the guilty pleas. The three young women who are the subject of Indictment B will be identified respectively as YL, DV and JS.

11. In order of occurrence the offences, which were all s 76 offences, for which at the time the maximum penalty was four years imprisonment. There were four instances reflected in the corresponding counts that relate to YL. That offending took place at times between 1 January 1974 and 31 December 1974. In relation to four indecent assaults, also contrary to s 76 against DV, those offences occurred over a more extended period, between 1 January 1976 and 31 December 1978. In relation to JS, the two offences committed against her occurred between 1 January 1976 and 31 December 1979. There is an agreed statement of facts in relation to each of these matters.

12. As to the three counts relating to YL, it is to be noted that she was born in 1946. She had married at the age of 20 in 1966 and had started to attend the offender’s dental surgery as a regular patient for some five to seven years. During that period she had not hitherto been touched inappropriately nor did she receive gas during her appointments. However, in 1974, when she was about 28, she had some anxieties in her relationship with her husband and she decided to improve her appearance by having her front tooth fixed with a crown. It was to that end that she attended the offender for several appointments in order to have the gold filling taken out of her front tooth and to have a crown put in its place after the tooth had been trimmed to receive it. It was during these appointments that the offender started to administer nitrous oxide.

13. In relation to count 1, one afternoon YL attended the dental practice and, after being fitted with a dental cape or bib, nitrous oxide was administered. When she awoke from the gas, YL realised that the offender was pressing his erect penis against her arm and continued to do so. He did so even when she attempted to move away. At that time she was shocked and did not respond. That conduct constitutes count 1 in Indictment B.

14. As to count 2, not long after the first appointment for the crown work YL attended again. On this occasion, as previously, in the late afternoon the offender administered nitrous oxide and on this occasion the victim woke up feeling the offender’s hands inside her bra and touching her breasts. When the offender saw that she was awake he removed his hands. YL did not say anything about what had happened and made another appointment for further dental work.

15. As to count 3, this incident arose on the last appointment for the completion of the particular dental work. The offender again administered gas to YL. As she woke from the gas, she felt the offender’s fingers inside her underwear. As soon as the offender saw that she awake, however, he removed his fingers from her underwear. She demanded to know what he was doing and the offender replied “I believe when you put people under the gas the last thing they hear is repeated. While you were under I wanted to give you an orgasm.” YL left the surgery.

16. Apparently, her husband was displeased with the appearance of the crown and she attended at the surgery again, so that it could be replaced. Obviously, she had not raised any of the offender’s impropriety with her husband. On the second occasion, when she attended for the replacement of the crown, she did so again in the late afternoon. She was again administered nitrous oxide gas. At some time during the appointment she woke up and felt, as she described in her agreed statement, “really groggy”. The offender assisted her from the dental chair and walked her to the back wall of the surgery room. The offender turned her around and she saw that he had his penis out of his trousers. YL said “You can’t. I’ve got my period.” The offender replied “Next time make the appointment when you haven’t got your period.” I observe that this was a particularly brazen and confident aspect of the offending and shows the virtual impunity with which the offender believed he could act as he did. On this occasion the appointment concluded and YL left.

17. During a final appointment for the replacement of the crown, gas was not administered and nothing inappropriate occurred.

18. As an aftermath, in the late 1970’s YL heard that the offender had been charged with touching a married woman. I simply interpolate that nothing by way of finality emerged from any such matter and in fact nothing relating to it is before me. However, it occasioned a remark by YL. She told a female friend that the offender was, as she put it, “up to his old tricks”. Unfortunately, YL felt that she could not report his conduct at the time and she declined to do so.

19. In 2012, however, YL read a report of the offender’s arrest that was apparently published in a local newspaper and she decided to supply a statement. She also provided a victim impact statement, which has been read to this Court. I have taken account of that statement in accord with the principles previously mentioned that I am required to apply to all of the victim impact statements in these proceedings.

20. YL asked that I take account of the long-lasting impact of the sexual assaults perpetrated upon her by the offender. An aspect in the aftermath of the offences against her has been an ongoing feeling of insecurity, requiring her to be accompanied by other family members whenever she has to have dental work performed by other dentists. She also said that she found she could not have gas during treatment by other dentists for some six years after the events, because she needed to recover trust in those treating her. YL has stated that she had never been able to get over the assaults upon her. She was only 27 at the time, had had only one boyfriend, who later became her first husband. She was inexperienced as to the intimate aspects of marriage and was shocked by the assaults. She has also subsequently felt guilty because she had not come forward earlier, in particular being aware now of the assaults against young children. There are statements of related regret in her victim impact statement. The experience of having to relate the matters to the police has been inherently difficult for YL. Through her employment at the time of the assaults when she worked within the court system she was aware also of the challenges that faced complainants at the time in particular. She doubted that she would have been taken seriously and was also anxious that her workmates not know of the assaults. She states that she still feels nervous when needing to attend her dentist for treatment, notwithstanding a long‑established relationship of trust.

21. As to YL’s victim impact statement, I simply observe, in no way seeking to diminish the force of the statement, that it indicates no more and no less than is to be expected, given the times and given the age of YL at those times; that she did feel humiliated, that she did not feel confident to approach authorities, let alone confident to go through what at the time would have been the considerable rigours of the court process. In each of those matters she is not to be blamed and indeed, as subsequent adjustments by the justice system have shown, she was quite reasonable in her responses. I otherwise treat her statement as one deserving respect and acknowledgement of the suffering that has been occasioned to her.

22. I now turn to the offences against DV, they being counts 5, 6, 7 and 8 in Indictment B. DV was a young woman born in 1944. She had married at the age of 18 and had a daughter who had also been taken to the offender for treatment after recommendation of the offender as a good local dentist. DV started seeing the offender herself around 1976. During treatment, the offender had recommended the administration of gas in order to make the processes of undergoing a filling pain-free. Once DV had been given the gas she started to feel, as was described, “hazy”. The offender started to masturbate her through her clothing, rubbing on the outside of her vagina with his hands. DV states that she remembers hearing the sound of the drill while the offender was masturbating her. At the time she thought she had been inappropriately touched by the offender but was not, as was put in the agreed statement of facts, “100% sure”. That first incident constitutes count 5 on that indictment.

23. About a week or two later DV returned for another filling and she was alone in the room with the offender. Again she was given nitrous oxide gas by the offender and he started rubbing the outside of her vagina with his hand. As on the prior occasion, she heard the drill while the offender was touching her. That event, a week or two after the first occasion, is count 6 on the indictment.

24. Counts 7 and 8 relate to the third and final appointment of DV with the offender. Again DV described, in a manner consistent with all the other victims, the cape or bib being placed over her, the administration of the gas and the mode by which it was administered. DV recounts that the offender started to rub her vagina as he had done on two previous occasions. At the time she was menstruating and wearing a large pad in her underwear. The offender touched her vagina for a short time and then moved his hand to her breasts. The offender started to rub her breasts with his hand.

25. After this appointment DV never returned to the offender’s surgery for treatment. She told her husband what had happened. She also recalls a conversation with three other women in which each complained about being inappropriately touched by the offender. DV did not recall the names of these two women and a third woman to whom she had spoken and who has not wished to come forward. It would appear that DV was motivated to come forward when her son told her of news reports that the offender had been charged.

26. Counts 9 and 10 also in each case relate to offences contrary to the provisions of s 76 of the Crimes Act as in force at the time. Those counts relate to two offences committed on one occasion against the victim whom I will identify only as JS. JS was a young woman at the time, born in 1946. She had married at the age of 20 and was at the time living with her two children and her husband in an area covered by the offender’s practice. As a child she had had a bad experience with a dentist and consequently was petrified, as she put it, as to receiving dental treatment. The offender was recommended to her because he used gas.

27. Between 1976 and 1979 JS attended the offender’s surgery for treatment. On attending she was taken into the treatment room and sat in the dental chair. A mask was placed over her face and the gas turned on. The offender started to touch her breasts on the outside of her clothing. He moved his hand down to her vagina and started rubbing her vagina on the outside of her clothing with his hand. JS’s account is that it felt like the offender was trying to masturbate her through her clothing. I note in that regard that the offender’s plea entails an admission of indecency in the touching. After the appointment JS was upset, crying and distressed. She spoke to her husband as to what had happened and after the incident never returned to the surgery.

28. JS is now a woman in her early 70’s. In the victim impact statement that she has presented before the Court she speaks of the abuse that took place at the hands of the offender, described as her family dentist, when she was in her thirties. She and her family had complete trust in the offender. They lived in the same neighbourhood. JS told the Court of her abnormal fear of dentists after a first and distressing visit when she was very young. It was on this basis, and after an experience of extreme pain caused by a dentist, whose hands were shaking as he applied an old-style drill, that she felt she could not go to a dentist. Her fear was evidently quite extreme and she could not walk into a surgery, as she was so distraught. She would shake uncontrollably and find it hard to walk. Evidently, she was a particularly vulnerable individual, requiring the most sensitive treatment if she was to undergo dental therapy of any kind. It was against this background that she went to see the offender, who had been recommended because of his use of gas. She found her way through her previous fears and was no doubt fortified by the fact that her children had attended the offender for some years.

29. JS told the Court that she always had gas on her attendances. At first it would appear that she had wondered if she was imagining what it was the offender had in fact done to her when he indecently assaulted her. She describes the experience as “surreal”. She wanted to make the offender stop but she could not move. JS states:

“I finally came out of the gas and the effects. I remembered looking at him. I was scared to say anything in case I had been hallucinating. When I arrived home I was hysterically crying. I told my husband that I believed I had been sexually abused under the gas by Dr Leighton. My husband called Dr Leighton. Dr Leighton denied it and said `It is your word against mine.’”

54. As JS quite reasonably opines, the experience that she suffered was, as put, “the worst thing that could have happened to me”, that of course being against a background of her particular and extreme fear of dentists.

55. In common with other victims, JS expressed feelings of embarrassment and humiliation, in her case also affecting anxieties as to the prospect of bumping into the offender. She also reflects upon the destruction of trust in other dentists brought about by the offender.

56. As in the case of all of the victim impact statements, I do not use her statement to aggravate the offending nor to establish matters beyond what is available upon the face of the facts contained within the evidence, such as is in particular contained in the agreed statement of facts. In the event, those matters contained in JS’s victim impact statement, and indeed those of all other victims who have provided such statements, provides no more than a consistent account indicative of a level of damage to be assumed when a trusted professional abuses victims in an inherently vulnerable position of a patient undergoing treatment. In the case of young children, the breach of trust is particularly extreme. In the case of the three young women, as they were in the 1970’s, the breach of trust is also very serious.

54. I will take the morning tea break before I move on to other matters personal to the offender.

55. SHORT ADJOURNMENT

56. The offender is an elderly and now long-retired dentist. He now faces sentencing for a pattern of historical offending constituted in predatory conduct in the abuse of young and inherently vulnerable female patients under his care, some of those victims being children. The offending commenced about 42 years ago and has also involved other matters in respect of which he has been previously sentenced.

57. On the last occasion that I sentenced the offender for related conduct it concerned the same time span approximately and three young victims aged between ten and 12. However, on that occasion when I sentenced the offender last June to backdated terms of imprisonment it was on the basis that he had gone to trial, had no legitimate claim attaching to the utility that might otherwise arise from a plea of guilty and no entitlement whatever as might flow from any assessed contrition.

58. In the present instance, the offender has pleaded guilty in respect of three counts at what is conceded to be by the Crown at the earliest opportunity. Remaining pleas also afford some, although a lesser degree of utility. The bare fact of the pleas themselves is to be taken into account in respect of the three entered at the earliest opportunity. As indicated, there will be a reduction of 25% for that factor alone. The remaining 13 pleas of guilty do, in my judgment, retain some utility but at the reduced level that I assess as 10%. The victims in those instances also have been spared the further anxieties and humiliations that would have been imposed upon them if the matters had gone to trial. I emphasise, however, that those quantified reductions are quite discrete. They relate to utility alone and are quite separate from assessments such as may be made of contrition or otherwise arising from the offender’s subjective case.

59. As at the time when I sentenced the offender last year, much has been relied upon in his case, and quite properly focused upon, in relation to issues connected to his now even more advanced age and even more apparent decline in health. Those are not matters where the Court extends any sympathy. They are, however, matters at law that a sentencing court is required to take into account in particular in any instance where there is available evidence that a combination of advancing age and declining health may constitute a measure of hardship over and above that which is appropriate to and inherent in the intended experience of imprisonment.

60. The state of the evidence before me last year was to the effect as contained in particular in the report of Dr Sarah Lucas, a neuropsychologist, whose report is dated 23 February 2016, that the offender, then aged 79, showed a probable mild degree of cognitive decline. I note that Dr Lucas’s report has again been tendered in the present proceedings and is relied upon in the present proceedings as exhibit 4. I note that neither originally nor presently has there been any challenge to the admission of the report or as to the validity of the opinions expressed in it and, for that matter, reasonably available inferences that may arise given the further passage of time.

61. I do regard the opinion expressed by Dr Lucas originally as being of continuing relevance, particularly when read alongside other evidence, in particular what is contained within the offender’s own affidavit sworn 12 May 2017, which has been read in the current proceedings without objection.

62. The offender has recently turned 81. He has remained an inmate throughout and since in fact he entered custody on 11 November 2015. Relatively recently he has been moved into the special Kevin Waller Unit. He was not released to parole at the expiration of the effective non-parole period that I set when sentencing him last June - that would have been 10 December last year. He was not released to parole because of the unusual circumstance that no accommodation could be found for him in the community. Accordingly, initially at least, the reason that he was kept in a custodial institution was that there was nowhere to accommodate him elsewhere. That said, I do not overlook the possibility that it would have been an option for the offender, if contemplating entering pleas of guilty to the present matters, not to seek continuing bail in these matters, if that bail had been left available to him. That could well have been on a view adopted by him that he might as well be spending time towards satisfying elements at least of any further sentence to be imposed. In the event, any such decision was taken out of his hands, both by the unusual situation that he could not be released to parole because of problems with accommodation and also because in the present matters his bail was eventually revoked by another Judge of this Court on 20 January this year.

63. The offender’s account in the affidavit that has been read is that he spent his initial three months of custody immediately after the verdict in the Silverwater Correctional Centre. There and at other centres where he had been placed he was subjected, on his account, to threats of physical assault by other inmates. The reality of that, as something that tends to accompany offenders convicted of like matters of which the offender has been convicted is so notorious that I would accept it as more probably true than not, noting in any event that the account is not challenged.

64. As to the offender’s physical vulnerability, leaving aside psychological vulnerability to such threats, his evident frailty that I observed last year is now even more apparent. The offender’s appearance is certainly consistent with what he tells the Court in his affidavit. It is to the effect that he suffers from extensive osteoarthritis, for which he is medicated for pain relief, in order that he can retain some mobility. He has appeared before me now on a number of occasions on two sticks. He has had some time ago a hip replacement. That and his osteoarthritis appear to interact in a way that makes movement difficult, in particular negotiating stairs. It has been for those considerations only that I have not for instance required him to stand at any point during the court proceedings of late.

65. The offender has found the prison diet difficult, and in particular difficult to sustain himself on it, certainly at any healthy weight. My observations of him over the various intervals at which he has appeared before me are consistent also with his account of having lost something in excess of 20 kilos since entering custody. Apparently, he initially weighed about 96 kilos or somewhere in that region and is now, as of the date of his affidavit certainly, somewhere between the mid 60’s and low 70’s in kilos.

66. The offender has a constellation of health problems over and above, I would observe, that which many people in the community would regard as normal certainly for a healthy person in their late 70’s or early 80’s. At the relatively minor but no doubt distressing level is the fact that he has a problem with his hearing, occasioned by heavy wax deposits in his ears and he complained in his affidavit that at least at that stage nothing had been done to remedy that. He had at the time suffered from a middle ear infection, which further affected his mobility and in particular balance, making him prone to falls. The offender is on cardiac and diabetes alerts. He does suffer from chronic diabetes and has vision disabilities with blepharitis. An associated symptom of that is an acidic discharge from his eyes requiring drops and cream. I note that he has been supplied with those medications. He complains of tendonitis in both shoulders, but it would appear his predominant concern is that of an ischaemic heart condition and type 2 diabetes. I note that in relation to the offender’s hearing at the date of his affidavit satisfactory arrangements had not been made for him to access a hearing aid. My observations of him in court would indicate that some assistance should be obtainable in respect of his hearing difficulties.

67. In summary, the general objective and subjective impressions of the offender are of an 81 year old man who has not aged well and is not by any stretch a healthy example of his age group. I do not, however, find that he receives other than appropriate levels of attention, but it must be recognised, as I do, that his age and relatively poor health, even taking into account of that age, constitutes a factor of considerable hardship. I make that assessment taking account of the inherent rigours accompanying imprisonment and of the availability of a range of services within the prison system, subject to, of course, the offender’s priority in obtaining access to the necessary resources.

68. Apart from the offender’s considerable physical challenges, there is a severe psychological burden imposed upon him. That is quite apart from his latterly expressed comments of regret, guilt and contrition. The principal psychological impact that the offender has sustained has been related, as was the case when I sentenced him last year, to his concern for his wife of some 55 years. The offender’s wife suffers from Parkinson’s disease and cerebral palsy. The offender had been her principal carer prior to going into custody. Separation from her was a matter that I regarded as one of considerable force operating in the sentencing proceedings last year. It is a matter that remains of great concern to the offender.

69. When I sentenced the offender last year I treated that aspect as part of the offender’s subjective circumstances rather than giving it any weight as a factor of third party hardship. In the event, I did not apply any such factor. My focus was, however, upon the impact of the offender’s consciousness that his offending had resulted in extra suffering imposed upon his wife. The offender’s account in his affidavit is that in order to make arrangements for her ongoing residential care he had sold assets in order to raise the sum of $400,000 that would ensure his wife’s residential care at the Carrington Centennial Centre where she is current accommodated.

70. The offender’s account of what remains of his relationships with this three adult children also makes it clear that his convictions have brought considerable changes in the family dynamic, including, on the offender’s account, the virtual cessation of communication with one son and very limited communication with his other son. The offender’s account is that he now also has only the most irregular and limited capacity to communicate with his wife and I infer that is largely because of the severity of her condition, particularly the cerebral palsy, which apparently makes it very difficult for her to speak with any clarity.

71. It must be said that, apart from those matters bearing upon the offender’s present situation, his prospects upon eventual release are, both on his account and as I assess the state of the evidence, grim. The offender believes, as he states in his affidavit , that he will probably need to go into a Salvation Army or St Vincent de Paul-conducted hostel or something similar. He informs the Court that, of his two sons, one lives in New Zealand and the other is a serving police prosecutor, who has the offender’s power of attorney. The offender’s son in this country will not have him living with him upon release, the son in New Zealand as it put is not speaking to him. The offender has a daughter. She has young children. A related consequence is because of the offender’s status as a convicted paedophile he would not, in the event that it was even offered, be able to take up any accommodation with his daughter.

72. I find then that the offender’s general presentation is therefore of a person whose offending has brought significant consequences to him over and above the simple fact of having continued in custody with the prospect that this will continue for some significant time. I do not, however, regard any of these matters as amounting to extracurial punishment. They are part and parcel of the consequences of having been found guilty or pleaded guilty in respect of sexual offending, in particular as involves children, and part of the sentencing matrix that has about it a level of denunciation.

73. The offender has encountered difficulties, over and above those mentioned, in the prison system. One such difficulty relates to a disciplinary entry in his record. It would appear to have arisen because of the offender’s slowness of movement, which at least once has been treated as a failure to move promptly when so required. I will not attempt to second guess those who have treated such a failure, as perceived, as a matter for discipline but it strikes me as somewhat unfortunate. I note that in relation to that matter the offender pleaded guilty to the resulting breach and that, appropriately, no penalty was imposed. That does lend some weight to the offender’s explanation that it was not a failure to cooperate on his part, but a by-product of his limited mobility.

74. I would expect that the offender’s position, however, has considerably improved as a result of moving out of the main prison population and into the Kevin Waller institution, where he has been since April. He is no longer in Protection.

75. As to such reflections as he does have upon his offending, the offender’s account is that he does not remember the names of those persons to whom he refers appropriately as “the victims”. Whilst stating that he has no memory of “what is alleged”, he states in his affidavit that he does not dispute that the version of events is correct. He states that he now believes his memory is sublimated, as he puts it, and refers otherwise to being at times disorientated and not knowing where he is. He speaks of being burdened with remorse. He states that he prays for his victims and for forgiveness.

76. I am unable to assess whether the present statements of remorse represent the offender’s true state of mind as a result of confronting the outcome of the 2015 convictions, or whether indeed he has any real insight. I regard it as probable that he has primarily been forced to face reality, a reality of which at extended times he has been well aware in the past, even if his memory and cognition is now increasingly clouded. On balance, however, I will credit him with a measure of somewhat compromised insight and contrition. As to the latter, I regard the offender, not surprisingly, as a person who now reflects upon his situation, as it is heavily impacted by the misery that he has brought upon himself and, in particular, upon his wife. It is unfortunate also that a similar awareness did not arise in relation to his victims at a much earlier time.

77. I have decided to sentence the offender by way of aggregate sentences. I have had regard to each of the purposes of sentencing as provided in s 3A of the Crimes (Sentencing Procedure) Act. In particular I have had regard to the community’s requirement that there be a sentence that generally deters others who may be minded to offend in like manner. This offender, by reason of the passage of time and his age, I do not regard as an appropriate vehicle for any significant measure of specific deterrence. Also because of those factors I regard his prospects of rehabilitation in terms of any risk of re-offending as at least fair.

78. I have assessed each of the offences committed according to the sentencing practices of the period and according to each of their varying facts, also taking into account those matters where a Form 1 has been attached and the requirement that there be some meaningful reflection of those further matters, although they are not to be punished in like manner to a separate charge.

79. I have had regard to the question of totality, both as to the totality of offending reflected in the present matters and also in regard to the totality of punishment appropriate, taking into account factors that must include sentences previously imposed by me on other matters where the offender had been found guilty. I have concluded that the requirements of totality will need to be reflected in a degree of at least partial accumulation across the offending, in particular having regard to the number of victims, including victims where youth is a greater factor of vulnerability than in some other instances. There will also be a reflected varying level of objective seriousness, taking into account the specific age in particular of the juvenile victims.

80. I have considered the overall and effective non-parole period which is to be the minimum period of custody required in the circumstances and in accord with the principles expressed by the High Court in Power v The Queen (1974) 131 CLR 623.

81. The aggregate sentence to be imposed, however, must be in relative terms, and even taking into account past sentencing practices, a stern one. That is required to reflect the gross breach of trust, the multiplicity of victims and the requirement for a denunciatory sentencing body, with a strong measure of general deterrence. I have moderated the degrees of accumulation to avoid a disproportionately crushing sentence in my assessment of the aspects of undue hardship for this offender in custody arising from his age and particular state of poor health. Those factors in the partial degrees of accumulation and those of hardship will result in a finding of special circumstance over and above that which would be required in any event to reflect policies and practices as to non-parole periods prevailing at the time of the offending.

82. The aggregate sentence that I impose is to consist of a non-parole period of three years, which will commence from 11 March 2016, within a head sentence of eight years. The offender will become eligible for release to parole therefore on 10 March 2019.

83. I indicate the sentences that I would have imposed for each of the offences if separate sentences had been imposed instead of the aggregate sentences. Those indicated sentences are as follows:

84. In respect of Indictment A: for the first count, a sentence of eight months; for the second count, a sentence of nine months; for the third count, and taking into account the matter on the Form 1, a sentence of one year and three months; for the fourth count, a sentence of one year; for the fifth count, and taking into account the matters on the Form 1, a sentence of two years and six months; for the sixth count, and taking into account the matters on the Form 1, a sentence of two years and nine months.

85. In respect of Indictment B the following indicated sentences are imposed:

86. for count 1, a sentence of six months; for count 2, a sentence of nine months; for count 3, a sentence of one year; for count 4, a sentence of one year; for count 5, a sentence of one year; for count 6, a sentence of one year; for count 7, a sentence of one year; for count 8, a sentence of one year; for count 9, a sentence of one year; for count 10, a sentence of one year.

87. In order to make those matters doubly clear, the sentence therefor is one of eight years. It is partially accumulated on the sentence originally imposed for the trial matter, therefore it commences on 11 March 2016, with a non‑parole period of three years, which will expire on 10 March 2019. The offender is to be eligible for release to parole at the expiration of the non‑parole period.

88. Gentlemen, are there any matters of a technical or factual kind that I have overlooked or misstated?

89. MACEDONE: Not from my part if your Honour pleases.

90. HIS HONOUR: Mr Crown?

91. HUGHES: Your Honour started the sentence before the expiration of the sentence he was serving.

92. HIS HONOUR: Yes.

93. HUGHES: No, nothing about that.

94. HIS HONOUR: There will be a partial accumulation. Mr Macedone, you will no doubt explain those things to your client.

95. MACEDONE: I’ll do that, your Honour, thank you.

54. HIS HONOUR: He can now be removed.

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Decision last updated: 24 July 2019