R v Mohammad Rahman

[2011] NSWDC 101

District Court

New South Wales

Medium Neutral Citation:	R v Mohammad RAHMAN [2011] NSWDC 101
Decision date:	28 July 2011
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	For the offences of indecent assault - fixed terms of 2 years and 3 months imprisonment. For the offences of indecent assault, accompanied by additional charges - fixed terms of 2 years and 6 months imprisonment. For the aggravated indecent assault - non-parole period of 1 year 6 months, balance of the term of 3 years.
Catchwords:	CRIMINAL LAW - sentence - 22 charges of indecent assault, 1 charge of aggravated indecent assault - additional offences under s 32 of Crimes (Sentencing Procedure) Act 1999 - 17 victims - offender was a medical practitioner - committed offences in his surgery when patients attended for treatment - victim impact statements from some victims - all victims female - "breast fetish" - appalling breach of trust - no criminal history - plea of guilty at earliest opportunity - prospects of rehabilitation fairly good - prospects of re-offending guarded - offence of aggravated indecent assault within middle of the range of objective seriousness - partial accumulation of sentences
Legislation Cited:	Crimes Act 1900 s 61L, s 61M(2) Crimes (Sentencing Procedure) Act 1999 s 21A, s 32
Category:	Sentence
Parties:	Regina Mohammad Rahman
Representation:	Ms J Healy for the offender Ms F Sullivan for the Director of Public Prosecutions
File Number(s):	2010/83114
Publication restriction:	It is an offence to publish the name, or any information that identifies a complainant in this case.

SENTENCE

1. Patients have to trust doctors and most do. Patients feel obliged for their own good to comply with a doctor's requests. Most patients would understandably feel that it is against their own interests to refuse to cooperate with a physical examination. Accordingly patients will generally permit a doctor to handle them physically, and in private, in ways which they would permit either no one else or only those with whom they choose to be physically intimate. Oftentimes patients have to permit a doctor who is a total stranger to be physically intrusive. They may not have a regular doctor or that doctor may not be available.

2. On the other hand doctors, like all of us, have sexual desires and attractions. It follows that a vital part of a doctor's professional practice is not to let such desires or feelings intrude into their relations with patients. It is equally important that patients know that a doctor will not let that happen.

3. Here we return to trust. A patient trusts a doctor - indeed has to for their own wellbeing - not to let the doctor's personal sexual side have anything to do with the doctor's dealings with the patient.

4. In this case Mohammad Rahman, who was a doctor, very seriously abused that trust which seventeen patients placed in him when they attended his surgery for treatment. Mohammad Rahman violated the trust which I have referred to. It was not a lapse which occurred on one occasion in a moment of weakness. Mohammad Rahman violated no fewer than seventeen of his female patients over one period of six months. One of the patients was a fourteen year old girl in her school uniform. Another was a mother and he violated her in the presence of her foster children.

5. This sustained criminal conduct has brought about twenty-two charges of indecent assault and one charge of aggravated indecent assault. Indecent assault is an offence against s 61L of the Crimes Act 1900. Parliament has fixed a maximum sentence of five years imprisonment to the crime of indecent assault. I need to sentence Dr Rahman to twenty-two sentences for the crime of indecent assault. Aggravated indecent assault is made a crime by s 61M(2) of the Crimes Act . Parliament regards that crime as so serious that it has fixed a maximum of ten years imprisonment to that crime. Not only that but Parliament has taken the further step of attaching to that crime a standard non-parole period of eight years imprisonment.

6. In respect of three of the victims I have been asked by Dr Rahman

and the prosecution to take into account additional offences which are listed on a form which has been provided to me under s 32 of the Crimes (Sentencing Procedure) Act 1999. I will take those additional charges into account in due course and I sign the forms to that effect.

7. It is important for a judge in sentencing anyone to provide a brief description of the criminal behaviour which brought about the charges which the judge is sentencing the offender for.

8. In this case Dr Rahman was a medical practitioner who practised at the Dapto Medical Centre. He had been there from July or August 2009. Each of the victims, to whom I will refer in a moment, was a patient of that Dapto Medical Centre at the time of the respective offences. The offences occurred over the period 11 September 2009 to 12 March 2010, as I said some six months.

9. Dr Rahman was arrested on 17 March 2010 and was bailed. Last Friday 22 July 2011, when I took evidence and heard submissions about these matters bail was not applied and refused so that Dr Rahman has been in custody since last Friday, 22 July 2011, and his overall sentence will commence from that date.

10. As I said I need to give a brief description of what occurred to bring about these charges. I had thought of doing that in a global way because much of the behaviour of Dr Rahman was common to some of the patients but I have now decided to make brief reference to each patient because each patient was separately violated and each patient's circumstances varied from the others in significant or minor respects.

11. I do not propose to name of any of the patients and it is important for those in court to know that, if there is any reference to any name, the names of these victims of Dr Rahman's sexual crimes are not to be published outside this court room. Indeed it is an offence to do so.

12. The victims of the offences are referred to in exhibit A in a document called the Agreed Facts which is signed by Dr Rahman and by the representative of the Office of the Director of Public Prosecutions and they are referred to as victim 1 through to victim 17 and I will use those numbers in describing what happened to each of the victims. I use the numbers in order to avoid undue publicity which might identify each or any of the victims.

13. Victim 1 was seventeen. She visited Dr Rahman on 17 February 2010. Dr Rahman told her that he wanted to check her heart and do a breast examination. He felt her breasts outside of her clothes but he told her to come back for another test and that she should see him and no other doctor. She returned a couple of weeks later. Dr Rahman examined her breasts using the palm of his hand in a circular motion one at a time. He asked her personal questions including whether she had a boyfriend and told her that the best time to check breasts was after having sex. He squeezed her breasts with two fingers and his thumb. He asked questions about the status of the relationship with her boyfriend. He watched her put her bra on and shirt and told her to sit down. He enquired about her single friends. She became scared and confused. This was the very first breast examination which she had. The breast examination was done on the pretext of checking iron levels. I say that because Dr Rahman mentioned that and the evidence in exhibit A includes a report from a specialist medical practitioner, Dr Rosemary Isaacs, who says that there is no link between low iron levels and a breast examination. The Agreed Facts record that the examination was carried out for Dr Rahman's own personal gratification. As a result of that behaviour over two days, Dr Rahman was charged with two indecent assaults. The first charge - number 24 - I will sentence him for. The other - charge 47 - is one of the additional offences which I take into account in imposing the sentence in respect of victim 1.

14. Victim 2 was eighteen when she visited Dr Rahman on 8 March 2010. He again placed his hands on each breast and squeezed them. He asked questions about her relationship with her boyfriend and any sexual relations she may or may not have with him. He then observed that he could feel " a bit of a lump on the left side ". He then said that he had to warm up the patient's breasts to get a better feel of the lump. He then asked the victim to put her arms behind her head and he pushed down. He asked her about any family history of breast cancer. He put his hand on her leg. The victim was scared and phoned her boyfriend. A doctor who later examined the same victim did not identify anything unusual when that doctor conducted a breast examination. As the facts record, that was carried out for Dr Rahman's own sexual gratification. That victim, number 2, as well as victim 1, have provided a victim impact statement which I will refer to in due course. That behaviour with victim 2 gave rise to one charge of indecent assault which became charge 25. The length of the consultation was some twenty-five minutes.

15. Victim 3 also provided a victim impact statement. She attended Dr Rahman on 8 March 2010. All she wanted was to get a referral for a specialist appointment. She was thirty-seven. Dr Rahman in her case rubbed her waist and, as the facts recorded, " whilst doing so moaned and said, 'Nice, nice' ". He slowly moved his hands up towards her breasts and rubbed them on the outside of her shirt for about twenty seconds. He was making moaning noises. That behaviour resulted in an indecent assault charge as I said.

16. Victim 4 saw Dr Rahman on 23 February 2010 with rash or bites on the skin beneath her breasts. She was twenty one. Dr Rahman used his hand to massage her breasts. This took about five minutes. The medical specialist evidence is that a usual standard breast examination will take about two minutes. He did not wear gloves. He touched the victim's breasts with his fingertips. He was then talking to her and whilst gesturing with his hands his fingers were touching his breasts. He said to her, " You shouldn't wear a bra unless you are going to a party ". During this he was acting as though he was conducting a normal breast examination.

17. Victim 5 saw Dr Rahman on 15 February 2010. She was twenty-three. She had sustained an injury in some form of exercise . Dr Rahman did not tell her that he would examine her breasts. He touched her stomach from every angle and then touched her breasts. The examination lasted for about a minute. The victim felt very uncomfortable. He rubbed her nipple and cupped her breast with his fingers. He also asked personal questions. He rubbed her nipple for about one or two minutes. She returned two days later and on this occasion Dr Rahman pulled her t-shirt down and put his hand directly onto her breast beneath her bra and massaged it. He pulled her other breast out and did the same. This lasted about two minutes. He started to stare at her breasts. The facts record that the " victim was of the view that he was being sexual, and obtaining sexual gratification due to his facial expression ". Understandably she felt very uncomfortable. This behaviour resulted in two charges, numbers 28 and 29, of indecent assault.

18. Victim 6 saw Dr Rahman on 22 February 2010. She was aged eighteen. She complained of a urinary tract infection. He asked her about pap smears and breast examinations. That victim told Dr Rahman that she had never had either. He then made enquiries about whether or not she had engaged in sexual activity. He then began to firmly massage and squeeze her left breast. He did this for about five minutes and then repeated the process on the right breast and for a further five minutes moved his hands over both breasts. The victim never had a breast examination, as I have said, so was not aware of the normal procedure. Dr Rahman then arranged for a female nurse to come in whilst he conducted a pap smear. The nurse stayed outside of the curtain where the procedure was being conducted. When Dr Rahman placed lubricant on the victim's vagina he also put lubricant on her clitoris and rubbed it up and down once. The victim thought this was not correct procedure but " did not say anything as she was a doctor and she was not completely sure as she had never had a pap smear ". This is an obvious example amongst many of a very serious violation of trust. That behaviour lead to a charge, which is number 30, of indecent assault and an additional charge of indecent assault, number 49, which I will take into account when sentencing Dr Rahman on charge 30.

19. The victim returned to see Dr Rahman about a couple of days later. She had received a phone call to come in and discuss some test results. She was discussing with Dr Rahman a particular area of interest that she was studying. He asked her about that and engaged her in conversation asking whether she could help him in that particular area of study and activity. He made reference to an ultrasound. The victim was not sure why she needed one. Dr Rahman said it was " for the lump he found in her left breast ". Dr Rahman had not previously advised her of that and understandably that victim became upset and scared. He then proceeded to use his thumb and forefinger to squeeze her left breast and pinch it and indicate where the lump was. Dr Rahman picked up her bra and threw it onto the desk. The facts then go on to record that the victim was " completely topless, and was worried because people outside could see her as the blind was open and she could see people. She folded her arms to hide her breasts, however the offender told her to put her hands by her side. She did so as the offender was a doctor and she trusted him, however felt uncomfortable ". He also made reference to and asked questions about her personal life and any sexual activity in her life. He hugged her before she left. The ultrasound did not detect any problems in her breast.

20. That victim returned again some days later to get the results of her pap smear and ultrasound. Dr Rahman told her there were a few dark spots in the ultrasound which made it hard to see if anything was there. He said he needed to conduct a further examination to check for lumps. Again he undertook a breast examination to look for lumps and, as the facts record, " a third breast examination to look for lumps in such a short period of time would have offered nothing further from a medical perspective ". Understandably that victim was afraid that she may have cancer. That behaviour over those two days lead to two charges of indecent assault, one being charge 31, the other being charge 48. Charge 48 I will take into account as an additional charge when I am sentencing Dr Rahman.

21. I should add if I have not that all of those additional charges, there are four in total, Dr Rahman has indicated he will plead guilty to. I should also have added that victims 3 and 5 have provided impact statements as well.

22. Victim 7, who provided a victim impact statement, saw Dr Rahman on 10 March 2010. She was twenty and had been attending that particular practice since she was about five years old. Dr Rahman shook her hand, asked her to call him Mohammed and then pulled on her to move himself closer to her. He was sitting on a chair. He examined her on the consultation bed and was examining her stomach when he unzipped her pants without warning and pulled them down to the top of her thighs. He pushed down his fingers in her pelvis region and at the same time asked if she was married. That victim could feel the offender's crotch rubbing on her arm. She could also feel him constantly pushing his penis against her waist. He repeated, " Come closer, come closer ". He continued to push in her pelvic region and moved his hand around toward her pelvic bone and vulva. He continued down to her vagina and pushed against that. When that victim got dressed and they were sitting down Dr Rahman grabbed her thigh and pulled her towards him, between his legs, once again saying, " Come closer, come closer ". He put his hand on her top near her waist. It moved to the bottom of her bra and he put his hand under her bra and pushed her left breast. He then did the same with her right bra. The victim understandably felt violated and angry, embarrassed and is reluctant to see another doctor. The facts record that there was " no medical reason for the offender to have had any contact with the inside or outside of the victim's underpants, or contact with her breasts ". That behaviour resulted in two charges of indecent assault, charges 32 and 33.

23. Victim 8 saw Dr Rahman for a swollen ankles. She was thirty years old. Again he asked her personal questions. He asked her whether she was sexually active. This victim indicated that she had suffered a panic attack a few days before. She needed a referral to a female psychologist. What Dr Rahman then did is to roll his chair towards her and placed a knee on either side of her leg. He came so close that his face was right in front of hers. He lifted her skirt up to her knees and ran his hands up and down each leg checking on swelling. He put his hand inside her bra and felt her breasts. He started pressing around her stomach asking if she had pain anywhere. He stroked both sides of her face with his hand and asked that she should come back. This, I repeat, was after she attended him with a complaint of swollen ankles and asking for a referral. At one stage she felt trapped against the wall. That behaviour resulted in charge 34 of indecent assault.

24. Victim 9 saw Dr Rahman in early March 2010 with cracked lips. She had her foster children with her. They were aged three and four. She was thirty-three. He touched her lips with his bare hands and told her that he thought she had an infection and asked her to return in a week. A week later, on 9 March 2010, that victim attended again also with her foster daughters. Dr Rahman stood between her and her daughters. He pushed at her stomach and made reference to her stomach being hard and asked her whether she went to the gym. He referred to her body being " so hard ". The victim was shocked. She tried to push him away. Dr Rahman moved his hand to her lower stomach above her pubic bone. This took a minute or so more. He put his hand under her breast and squeezed it and did the same with the other breast. Understandably the victim's main priority as to " get the girls away from him and out the room ". All of that behaviour resulted in an indecent assault charge which is charge 35. That victim has also provided a victim impact statement.

25. Victim 10 was the fourteen year old school girl who came to see Dr Rahman on 8 March 2010 with her mother. There was some problem with her hips. Dr Rahman extraordinarily asked her whether she was sexually active and, as the victim said, " she could not understand why " he would ask such a question. He told her to lie on the bed. Dr Rahman then stood between her and her mother and told her to pull up her dress. He began to check her pelvis, hips and legs. He pushed her vulva/vagina area four or five times above her underwear. The facts record that this " process took 15 to 20 minutes ". He was also grabbing her leg and thigh. That examination which I have just described gave rise to a charge of aggravated indecent assault which I will take into account when sentencing him for another charge with the same victim, that was called charge 50. The other charge, number 36, occurred during the same consultation when Dr Rahman told this fourteen year old school girl to take her bra off which she did. He checked her glands and her breasts. This process continued " for approximately 10 minutes ". He squeezed and rubbed her breasts with his hands. Understandably she felt very uncomfortable. He said to her he could feel a lump. At no stage did Dr Rahman tell her why he was examining her breasts. Once again I observe that she had presented with a complaint of clicking in her hips. There was, as the facts record, " no medical reason for the offender to have conducted a breast examination ". It is " not standard procedure to check the breasts of a girl the victim's age ". A breast examination should take two minutes. And it also records that in a " normal hip examination the doctor's hand would never come in contact with a patient's vagina ".

26. Victim 11 was nineteen when she attended to see Dr Rahman on 2 March 2010. All she wanted was a prescription. He asked her about a pap smear and breast examination and that victim told him she had had neither. She declined twice. When she asked why he said that he should check for lumps, she then agreed. She laid down on the bed. Dr Rahman told her that it was a " lengthy process, and would take approximately 10 minutes ". That information he provided the patient is an estimate of five times the amount of time which the specialist estimated would be required for such an examination. He went and pressed her breasts and placed his hands on her nipples and held the breasts, he even punched her nipples a few times. He then asked personal questions about her and any sexual activity that she may have been engaged in and the kind of sexual activity - if she was so engaged - that she might have engaged in with her boyfriend. He continued to push her breasts and proceeded to push in and out of her pelvic region. He said he was trying to get rid of the lump. That behaviour gave rise to a charge of indecent assault. That victim dressed and Dr Rahman told her to lift her bra and top again. She felt very uncomfortable. He looked at her breasts and then touched them one at a time over a couple of minutes. He then said, " you have good breasts ". He then said that she should come and get her pap smear done with him. That behaviour gave rise to an additional charge, number 38, of indecent assault.

27. Victim 12 was twenty when she went to see Dr Rahman on 21 September 2009 complaining of stomach aches. Dr Rahman pulled up her top to the bottom of her breast line and pressed her stomach at the same time. He put both hands under her top onto her breasts on the outside of her bra and squeezed each breast once. That gave rise to a charge, number 39, of indecent assault. He withdrew his hands from her breasts and put his fingertips on her stomach below her navel. He pushed her stomach, slid his left hand into her pants and touched clitoris and vagina with his fingertips. He had four fingers together, he was not wearing gloves at the time. That gave rise to charge 40 of indecent assault. The victim returned to the practice a month later with a throat problem asking not to see that particular doctor. Later she was hospitalised for an unrelated matter and on being discharged asked to see a GP for a referral so she went back on 9 December to the same practice. She asked to see the first available doctor which was Dr Rahman. She said all she wanted was a referral. He put both his hands on her glands and put his hands on her side under her armpits and felt the area next to her breasts on her side. He put his hands onto the top parts of his breasts and squeezed between them his four fingers and thumb. He did not wear gloves. This procedure amounted to a further charge, number 41, of indecent assault and, if I did not say so, charge 40 was the behaviour when he on a former occasion touched her clitoris and vagina.

28. Victim 13 was, as it happens, the first person in time to be sexually assaulted by Dr Rahman. She visited him on 11 September 2009. She was aged eighteen. She just asked for an injection. He asked whether she would like a breast examination and she agreed. He started to feel around her left breast and grabbed her breast with his whole hand and squeezed. He said that there might be something wrong because the breast was hurting because he was squeezing so hard. He said that she had a lump in her breast. He said that she should come back to have her breasts checked. He gave her his business card. That patient, like some others, " left the surgery feeling that she may have breast cancer ". It was contrary to correct practice, the facts record, to inform a patient that there was a breast lump without doing a complete breast examination. That behaviour gave rise to charge 42 of indecent assault.

29. Victim 14 was twenty-six when she went to see Dr Rahman on 1 March 2010. He asked her personal questions about whether or not she was married. He asked her to lift her top. Her breasts became exposed but she was wearing a bra. Dr Rahman used his hands to cup and squeeze her breasts and dug his fingers into her breasts. He asked her whether her boyfriend checked her breasts. He asked her to move closer to him. She felt violated even though she felt she should trust the doctor because he was a medical practitioner undertaking an examination. He continued to squeeze, cup and pinch her breasts for a short time. He asked her whether she had breast cancer in the family. He at one stage asked that victim to move against his abdomen. That behaviour gave rise to charge 14 of indecent assault.

30. Victim 15, who also provided a victim impact statement, was twenty-seven when she went to see Dr Rahman on 22 December 2009. She had some abdominal pains. Dr Rahman felt the right side of her stomach but then moved his hands up to her breasts and pushed and squeezed them at the same time. His hands were on the outside of her clothes and he kept them there for a number of seconds. Understandably the victim did not know the reason for the offender touching her breasts when she had presented with stomach pain. He told her she had a urinary tract infection. That behaviour gave rise to a charge, number 44, of indecent assault and that victim provided a victim impact statement.

31. Victim 16 presented to the medical centre on 16 February 2010 with the flu. She was twenty-four. Dr Rahman told her that he would check her heart and he asked her to stand up. He put his stethoscope on the top part of her left breast on the outside of her clothes. He said that there might be something wrong. He placed his right hand under her shirt into her bra, touched her left breast, he squeezed and cupped her breast. This continued for about five minutes. He did the same thing with her right breast. The whole procedure took about five minutes. Examining the breasts whilst the victim is standing was not a standard practice. Examining her breasts from behind was not standard practice. Examining the breasts whilst the bra is on was not standard practice and the examination should have taken less than two minutes. That behaviour gave rise to charge 45 of indecent assault.

32. Victim 17, the last one whom Dr Rahman assaulted, presented on 17 February 2010 in the evening with trouble breathing. She was only sixteen years old. She was wearing her pyjamas. She had no bra. He lifted her top to expose her breasts and pressed on her stomach. He did not say anything to her. He placed his thumbs under her breasts and stroked them in and outwards. He moved his whole hands onto his breasts and using his whole hands squeezed her breasts a number of times. At no time did Dr Rahman listen to that victim's breathing. As the facts record the actions of squeezing or stroking the breasts as not related to the diagnosis or management of any cause of shortness of breath or difficulty breathing.

33. It is important in recording what I have said about each of these individual sexual assaults to also note that a number of the victims have provided individual victim impact statements. I have made reference to those who did in passing. Some of them have read them out in court. Others have not. Some have had them read out by a representative in court. All victims are to be commended for their courage in reporting the violations which were perpetrated on them to the police and allowing their evidence to be provided as a basis for charges to be laid against Dr Rahman. The victims who provided victim impact statements are to be commended for putting their experiences in writing, and in particular those who read their statements out are to be commended. That is not to be critical at all of others who chose not to put their experiences in writing. There may well be a number of very good reasons for a victim not wishing to reduce their experiences to writing or to attend court.

34. There was some discussion between me and counsel about the relevance of the victim impact statements. I invited the representative of the Crown, Ms F Sullivan, and Dr Rahman's representative, Ms J Healey, to provide additional written submissions regarding the relevance of the victim impact statements. Both did so in a timely manner and I have been assisted by their submissions, as I was indeed assisted by both of them in their submissions in court.

35. Ms Sullivan made clear that she is not submitting that any material in the victim impact statement should form the basis of the aggravating factor referred to in s 21A(2).

HIS HONOUR: Just remind me Ms Sullivan.

SULLIVAN: It should be 3A, I'm sorry that was the emotional loss in respect of mitigating factor. 21A(2)(g).

HIS HONOUR: (g) to the effect that the " injury, emotional harm, loss or damage caused by the offence was substantial ". Ms Healey made her position clear that such a finding should not be made. I agree with both of them. I will not be making such a finding. As both counsel made clear, that is not to in any way diminish the impact which this predatory sexual criminal behaviour had on any of the victims of the crime. What the victim impact statements do is graphically illustrate why Parliament in these cases chose to fix a maximum of five years imprisonment to the sort of activity which Dr Rahman engaged in.

36. However, both counsel acknowledge that the activity by Dr Rahman constituted an aggravating factor under s 21A(2)(k) of the Crimes (Sentencing Procedure) Act in that Dr Rahman " abused a position of trust or authority in relation to the victim ". In this case the abuse was to a position of trust which is based upon the circumstances which I referred to in my introduction to these remarks on sentence.

37. I do not propose to refer to the individual victim impact statements but I can make these observations. By far the most common impact which victims described were two. The first was a reluctance or fear to go to a doctor, either alone or at all, and consequential concerns about what would happen if they needed to see a doctor. The second was difficulty in trusting other people.

38. Other impacts which were referred to included social withdrawal, a sense of embarrassment or shame in not realising what was happening or not putting a stop to it at the time, a fear that the victim might encounter Dr Rahman in public and strains on relationships between the victim and their partner, particularly in the areas of intimacy. In some instances a victim's sleep was affected and some victims became argumentative or angry with those around them. In one or two instances there were impacts on employment and study. I regard all of these kinds of impacts which I have described as the kinds of impact to be expected from this kind of crime. They are impacts which, I repeat, are taken into account by Parliament in fixing the sentence which it does.

39. Two of the victims presented with particular past histories. One victim, in her victim impact statement, referred to sexual abuse which she had experienced in the past. As a result of the behaviour by Dr Rahman the impact of that sexual abuse was aggravated and in a sense reexperienced. Another victim had suffered trauma in the past because of the original country from which she had emigrated. Once again the trauma of that war was aggravated and re-experienced as a result of the offending behaviour by Dr Rahman. I do not propose to take into account those two particular descriptions of impact by way of aggravating the offence above what would be normally expected to be consequences of this behaviour but I do propose to take them into account in the sentence as a description of the kind of impact which might come about.

40. Ms Healey argued that such impacts may not be foreseeable. Whether or not foreseeability is appropriate for me to take into account has been the subject of some authority. However, I would regard such impact as foreseeable in the sense that Dr Rahman is a medical practitioner who saw a lot of patients on a daily basis. Some of them would be immigrants from countries which had civil, political and violent disruption in the past. Others may be people with pasts which involved abusive behaviour. It would be not unusual at all to be examining people who may present with such conditions in the past. I would regard such an impact as being foreseeable, not in particular instances but given that the behaviour occurred over so many victims.

41. In sentencing an offender something must be said about their personal circumstances. There is not much information about Dr Rahman's personal circumstances. Indeed all of the information which I have is contained either in exhibit A, which comprises the Crown papers, or in exhibit 1, a report by a psychologist, Dr Steven Dragutinovich.

42. It should be noted that Dr Rahman has no previous convictions of any sort.

43. Dr Dragutinovich, who examined Dr Rahman four times last year after he had been charged with two offences and then again in April this year after he had been charged with the balance of offences, recorded information about Dr Rahman's past. He is from Bangladesh and was born in Dhaka as one of eleven children. He had a normal upbringing without any criminal behaviour within the family at all. He excelled in school. He went to medical school. He did very well. He was treasurer of an organisation helping poor people. After he graduated he spent some time with Red Crescent and then worked in Zambia and in South Africa for some five years. He returned to Bangladesh to marry his wife and they have three healthy children. They came to Australia and became permanent residents. When they came to Australia they first went to Mackay in Queensland and then to Claremont in Queensland where Dr Rahman practised with good repute for some eight years. He then accepted the position as a medical practitioner at the Dapto Medical Centre in August 2009.

44. I should add that when I made the observation that there is not much information about Dr Rahman's past, I do accept all of that personal history and personal background about him which I expect is uncontroversial.

45. When he was seen by Dr Dragutinovich in 2010 with a history of two complaints he told the psychologist that " his examinations were clinically warranted in both cases as one of the patients complained of breast pain ". The psychologist described Dr Rahman as presenting as very embarrassed. Dr Rahman explained to him that he had to do very thorough breast examinations because of an experience in Queensland where a sister of someone who worked in the practice died of breast cancer at a young age. The psychologist quoted Dr Rahman as saying, " I saw the agony and distress of her mother and sister-the cancer was missed until it was too late ". Dr Rahman told the psychologist that these were the first allegations made against him and there was no evidence to suggest otherwise. At the time of the initial consultation, the psychologist " understood that Mohammad was intending to contest the charges ". Dr Rahman told the psychologist that it was common in country practices to engage in social talk with patients.

46. When he saw the psychologist in April this year the psychologist had the Agreed Facts made by all of the victims and Dr Rahman told the psychologist that he " had pleaded guilty as he could no longer tolerate the pressure of further court proceedings ". He had moved to Newcastle because of the publicity in Wollongong. His wife and children were back in Bangladesh. He was working in a friend's grocer shop up in Newcastle. He said he would " like to resume work as a GP and is prepared to accept any restriction " concerning female patients.

47. Dr Dragutinovich described what is detailed in the facts as " boundary-breaching behaviour ". This is a somewhat mild description of the criminal activity engaged in over a period of six months perpetrated against the seventeen women who were the victims of his crime. However, the psychologist recorded Dr Rahman as expressing " regret, not only for the effect upon himself, his family and colleagues, but also, perhaps more so, for the effect it had upon his female patients, whose trust, or rather now lack thereof, in professionals he now acknowledges may adversely affect them in the future ". This does seem to be a somewhat qualified expression of remorse. It is qualified by reference to words such as " perhaps " and " may " and by a reference to the effects upon himself and his family. That is not to say that the charges will not have an impact on him and his family and his position but the impact upon the victims of this criminal predatory behaviour far outweighed the impact on one life, namely his.

48. Dr Dragutinovich described a condition which he thought " can only be considered to represent a breast fetishism ". Dr Dragutinovich thought that Dr Rahman had been " pre-morbidly psychologically stable, well integrated, intelligent, conservative " and a medical practitioner " whose apparent thoroughness in conducting breast examination was triggered by the false negative diagnosis of the young sister of his practice manager who died as a result of a breast cancer that was missed ". He then started to conduct more thorough breast examinations that would be normally appropriate. The psychologist then goes on to describe that that " thoroughness appears to have subsequently and insidiously segued into boundary-breaching behaviour of a paraphilic kind involving a form of partialism insofar as the focus generally appears to have been on one part of the body, that of the female breast ". The psychologist recommended some behaviour modification over a period of a year and thought that he was unlikely to re-offend.

49. I will briefly refer to the helpful submissions which I received from Ms Sullivan and Ms Healey before sentencing Dr Rahman and I will make findings as I refer to those submissions.

50. Ms Healey described partialism as a particular focus on a part of the body, in this case it was the breast area. She described it as maladapted behaviour. Ms Healey correctly made clear that she was not relying upon the psychological report as indicating some kind of mental health issue which would mitigate her client's behaviour but as a way of explaining his behaviour. I do accept that explanation but it needs to be seen in this context. The behaviour would have become obvious to Dr Rahman himself very soon after the first incident at the beginning of the period of six months. As a mature man he is presently aged forty-four and as an experienced medical practitioner the first transgression should have seriously alarmed him. So whilst the psychological report may explain his behaviour, it in no way excuses the six months of predatory criminal activity which occurred after the first offence when he should have asked for help. In addition, as Ms Sullivan points out, the psychological report is helpful but it is not supported by any sworn evidence verifying material from Dr Rahman. As I say, I accept the personal history but things such as expressions of regret and the impact which the death of the relative of the staff member had in Queensland were not the subject of any verified evidence or cross-examination.

51. Ms Healey acknowledged that the offences were aggravated in accordance with s 21A(2)(k) of the Crimes (Sentencing Procedure) Act . That was an appropriate acknowledgement and in my opinion the only position which could reasonably be taken. She acknowledged the fact that in one instance the offence occurred in the presence of infant children. She pointed to her client's previous good character with no prior convictions. I accept that he has no prior convictions and that will be of benefit to him and be taken into account from the point of view of leniency which is appropriate under the Crimes (Sentencing Procedure) Act . However that seems to be the limit of the evidence about his good character. I do not find, of course, that he is a person of bad character but I have no sworn evidence from him nor any references to make any positive finding about the kind of character which Dr Rahman is in normal life. In other words the evidence about his good character is very limited.

52. Dr Rahman has pleaded guilty to all of the offences that he was charged with. Ms Sullivan acknowledges that they were entered in the Local Court at the earliest available opportunity. Accordingly, and this is important to record, in imposing the sentences which I will impose shortly, those sentences according to the Court of Criminal Appeal should be and will be discounted by twentyfive per cent as a result of Dr Rahman's pleas of guilty at an early stage.

53. Ms Healey asked me to take into account his remorse. I find that there is no remorse expressed in the terms of s 21A(3)(i) - sorry I withdraw that. I accord some weight to remorse under that provision but it is based upon the pleas of guilty and upon the information given to the psychologist which is, as I said, unverified. I do take into account, of course, that in pleading guilty he has not required the victims of his crime to attend and give evidence before a jury and to be crossexamined.

54. There was some debate between Ms Sullivan and Ms Healey regarding the prospects of rehabilitation and the likelihood of reoffending. I think, given this experience, that the prospects of rehabilitation are fairly good and I take that into account. His prospects of re-offending are guarded. I only say that because he persisted in the behaviour which he did over six months despite it obviously being not only professional misconduct - in my opinion - but also seriously criminal behaviour; and also because the psychologist recommended a treatment which might take a year to deal with it. We do not know how Dr Rahman may respond to that treatment. So I would be guarded about his prospects of re-offending.

55. There are special circumstances says Ms Healey in adjusting the normal ratio between a non-parole period and the head sentence. Normally when a judge or magistrate sentences a person the non-parole period, which the person must stay in gaol for, is fixed at seventy-five per cent of the full sentence. In special circumstances a judge or magistrate can adjust that ratio and reduce the non-parole period. Those special circumstances in this case, Ms Healey said, are that it is her client's first time in custody and that he has no contact with his family who will be back in Bangladesh, so it will be in some respects harder.

56. Ms Healey referred to what lawyers know as extra curial punishment; that is, impacts which the criminal behaviour has on a criminal's life apart from the sentence imposed by the judge. In this case Ms Healey pointed to the fact that her client will be almost certainly struck off from the medical practitioners' roll and that his life's work will be therefore lost. It will be difficult for him retrain. It will have a financial impact and he has become ostracised from his community. I give some small weight to these factors but standing next to the gravity of the crime that was committed by Dr Rahman these impacts I do not regard as significant.

57. Ms Healey acknowledged that the offence of aggravated indecent assault fell within the middle of the range of objective seriousness. I accept that submission. Once again, it is the only position that could be taken. However, Ms Healey points out that of course the standard non-parole period strictly does not apply because Dr Rahman has pleaded. She is right in saying that. The Court of Criminal Appeal nevertheless says that I must bear it in mind as a guidepost in sentencing an offender. Ms Healey then points out that the standard non-parole period in this case, being eight years with a maximum of ten years, is particularly high. I bear that in mind but nevertheless Parliament has chosen to fix it at that level and it is not for me to decide myself that it is not appropriate. Nevertheless, as I acknowledge, the standard non-parole period strictly does not apply.

58. Although Ms Healey pointed out that the offences were committed over a period of six months, contrasting it with some offences occurring within families over many years, on the other hand I regard it as significant that the offences were committed over six months. This was a medical practitioner who, as I said, was a mature professional man and should have immediately realised that any behaviour which was inappropriate because of some past experiences should have been acted upon and stopped straightaway. I regard the period as significant.

59. Ms Healey acknowledged that there should be some accumulation amongst the various sentences, perhaps with an overall extension of seventeen or eighteen months.

60. Ms Sullivan described the offences as extremely serious and deplorable. I regard the offences as deplorable and as very serious. I avoid the expression as extremely serious in case it might be thought that I am finding that they fall within the worst category of case. It is, Ms Sullivan said and I accept, an appalling breach of trust which Dr Rahman has perpetrated against seventeen women. Each woman left the surgery feeling violated. She referred to some of the examinations lasting an extended period of time, well beyond the two minutes standard for a breast examination, and I take that into account. She reminded me that the Agreed Facts indicate that these examinations were clearly perpetrated for sexual gratification. Indeed I hesitate to use the expression examinations because it suggests that Dr Rahman was acting in some way professionally when in fact he was acting in a criminal way.

61. Ms Sullivan referred to the profound effect on some of the victims and I have already referred to the way in which I will take that into account. She referred to the breach of trust which, as I said, I regard as very serious. She also referred to the particular crime committed in the company of two infant children.

62. Ms Sullivan submitted that the offence of aggravated indecent assault was in the middle of the range of objective seriousness, perhaps in the high range because of the breach of trust. I would regard it as towards the top of the middle or the range of objective seriousness.

63. Ms Sullivan also referred to some patients leaving the practice thinking that they might have had breast cancer.

64. Ms Sullivan submitted that the only option was a lengthy custodial sentence and she acknowledged the presence of special circumstances being the inevitable accumulation of sentences and the fact that it was Dr Rahman's first time in custody.

65. I propose to accumulate the sentences which I will impose. The sentences will be accumulated by two months. I propose to sentence concurrently in cases where two offences were committed against one victim with the exception of victim 6 where there were additional matters to be taken into account.

66. I would regard - taking into account all the factors that I have referred to - appropriate sentences for the crimes of indecent assault as being three years imprisonment. That takes into account the maximum of five years. In those cases where I am taking into account other offences then in my opinion the appropriate penalty should have been three and a half years. I thought for the offence of aggravated sexual assault that the penalty should be six and a half years.

67. However Dr Rahman, as I have said, has pleaded guilty to all of these offences and I am therefore required to discount those initial sentences by twenty-five per cent. Therefore for the offences of indecent assault I will sentence Dr Rahman to two years and three months imprisonment. For those that are accompanied by additional charges I will sentence him to two years and six months imprisonment. And for the offence of aggravated sexual assault I will sentence him for four years and six months imprisonment.

68. I had thought that an overall sentence of twelve years with eight months non-parole period was appropriate but I am going to reduce that by twenty-five per cent, so his overall sentence will be nine years with a non-parole period of six years. The ratio between the six year non-parole period and the nine year full term is not seventy-five per cent because of the special circumstances which I have referred to.

69. I will now impose the individual sentences. The overall result of the sentences will be a sentence of nine years imprisonment with a minimum to serve of a non-parole period of six years to commence 22 July 2011.

HIS HONOUR: And now, Ms Sullivan and Ms Healey, I have reduced, or my associate did on my instructions, to writing so that when I have finished imposing the sentences I am going to ask you first whether the mathematics are correct and, secondly, whether there are any errors of law or fact which I have made which I should revise under s 43 during the remarks on sentence.

If you would stand up Dr Rahman.

70. In respect of victim 1 or charge 24 of indecent assault, taking into account charge 47 of indecent assault, I sentence you to two years and six months imprisonment to commence on 22 July 2011 and to expire on 21 January 2014.

71. In respect of victim 2 or charge 25 of indecent assault I sentence you to two years and three months imprisonment to commence on 22 September 2011 and to expire on 21 December 2013.

72. In respect of victim 3 and charge 26 of indecent assault I sentence you to two years and three months imprisonment to commence on 22 November 2011 and to expire on 21 February 2014.

73. In respect of victim 4 and charge 27 I sentence you to two years and three months imprisonment to commence on 22 January 2012 and to expire on 21 April 2104.

74. In respect of victim 5 and charges 28 and 29 I sentence you on each count to concurrent sentences of two years and three months to commence on 22 March 2012 and to expire on 21 June 2014.

75. In respect of victim 6 in respect of charge 30 of indecent assault, and taking into account charge 49 of indecent assault, I sentence you to two years and six months imprisonment to commence on 22 May 2012 and to expire on 21 November 2014. In respect of the same victim but for charge 31 and taking into account charge 48 I sentence you to two years and six months imprisonment to commence on 22 July 2012 and to expire on 21 January 2015.

76. In respect of victim 7 and charges 32 and 33, on each count I sentence you to concurrent sentences of two years and three months to commence 22 September 2012 and to expire on 21 December 2014.

77. In respect of victim 8 and charge 34 I sentence you to two years and three months imprisonment to commence on 22 November 2012 and to expire on 21 February 2013.

78. In respect of victim 9 and charge 35 of indecent assault I sentence you to two years and three months imprisonment commencing 22 January 2013 and expiring on 21 April 2015.

79. In respect of victim 11 and the two charges of indecent assault, being charges 37 and 38, I sentence you on each count to concurrent terms of two years and three months imprisonment commencing on 22 March 2013 and expiring on 21 June 2015.

80. In respect of victim 12 and three charges of indecent assault, being charges 39, 40 and 41, I sentence you on each offence to concurrent terms of two years and three months commencing 22 May 2013 expiring 21 August 2015.

81. In respect of victim 13 and charge 42 I sentence you to two years and three months imprisonment commencing on 22 July 2013 and expiring on 21 October 2015.

82. In respect of victim 14 and charge 43 I sentence you to imprisonment for two years and three months commencing on 22 September 2013 expiring on 21 December 2015.

83. In respect of victim 15 and charge 44 of indecent assault I sentence you to imprisonment for two years and three months commencing 22 November 2013 expiring on 21 February 2016.

84. In respect of victim 16 and charge 45 of indecent assault I sentence you to imprisonment for two years and three months commencing on 22 January 2014 and expiring on 21 April 2016.

85. In respect of victim 17 and charge 46 of indecent assault I sentence you to imprisonment of two years and three months commencing on 22 March 2014 and expiring on 21 June 2016.

86. In respect of victim 10 and charges 50 and 37 and taking into account charge 50 I fix a nonparole period of one year and six months commencing on 22 January 2016 and expiring on 21 July 2017. There will be an additional period of three years commencing on 22 July 2017 and expiring on 21 July 2020.

87. The overall sentence will be nine years commencing 22 July 2011 expiring 21 July 2020 and the nonparole period will be six years commencing 22 July 2011 and expiring on 21 July 2017. The first date on which it appears to me on the information available that you will be released on parole is 21 July 2017.

HIS HONOUR: Have a seat Dr Rahman. We think in respect of victim 8 I wrongly said the expiry date was 2013.

88. In respect of victim 8 the sentence of two years and three months commences 22 November 2012 and expires on 21 February 2015.

HIS HONOUR: My associate just drew that to my attention.

Now first, Ms Sullivan and Ms Healey, mathematics?

HEALEY: Yes it's correct your Honour.

SULLIVAN: I haven't noticed anything that jumps out at me your Honour.

HIS HONOUR: No, Ms Healey?

HEALEY: I've checked it carefully and it seems to be correct your Honour.

HIS HONOUR: Okay, thank you. Now any matters that should attract my attention under s 43?

SULLIVAN: There was one matter that my friend and I had thought, that in respect of victim 10 before your Honour pronounced sentence your Honour said aggravated sexual assault rather than indecent assault.

HIS HONOUR: That's wrong, yes, thank you, thank you.

SULLIVAN: We simply draw that to your Honour's attention.

HEALEY: That's the only matter your Honour.

HIS HONOUR: Thank you.

89. In respect of victim 10 the crime that I am sentencing him for are two crimes: two counts of aggravated indecent assault and I take into account one count of aggravated indecent assault being charges 50 and 36 for which I am sentencing him and charge 50 which I take into account.

HIS HONOUR: Now is that correct?

SULLIVAN: That's correct your Honour.

HIS HONOUR: I see, yes, I am wrong, my associate has corrected me.

90. There are two offences overall for the aggravated indecent assault and I am sentencing him for charge 36 and I take into account charge 50.

HIS HONOUR: I think that is correct, Ms Healey you are nodding, yes?

HEALEY: That's correct, yes.

HIS HONOUR: Ms Sullivan?

SULLIVAN: Yes thank you your Honour.

HIS HONOUR: Is there anything else?

SULLIVAN: Not from me thank you, your Honour.

HIS HONOUR: Ms Healey?

HEALEY: No your Honour.

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Decision last updated: 25 August 2011