R v Moodley - [2013] QCA 253

SUPREME COURT OF QUEENSLAND

CITATION:

R v Moodley [2013] QCA 253

PARTIES:

R
v
MOODLEY, Nemalan Seshagiri
(applicant)

FILE NO/S:

CA No 17 of 2013
DC No 427 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

10 September 2013

DELIVERED AT:

Brisbane

HEARING DATE:

11 July 2013

JUDGES:

Holmes and Fraser JJA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

The application for leave to appeal is granted.1.

The appeal is allowed and the sentence imposed on each count set aside.2.

with an operational period of three years.A sentence of twelve months imprisonment on each of counts 1-8 and a sentence of three years imprisonment on count 9 is substituted, the last sentence to be suspended after 12 months3.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to nine counts of sexual assault and was sentenced to four years imprisonment on each count, to be served concurrently and suspended after 16 months – where the applicant was a general practitioner – where the offences involved the applicant, while clothed, rubbing his genitals against female patients’ bodies during the course of examining them – where the applicant had no criminal history, had lost his career as a medical practitioner and was the subject of many favourable character references – where the applicant's co-operation in the administration of justice was limited – where the number of complaints and offences, the protracted time over which the offending took place and the breach of trust implicit in a doctor-patient relationship added an extra dimension of gravity – whether the extent to which the sentences were increased in order to reflect the overall criminality of the conduct lost sight of the proportions of the actual offences – whether in all the circumstances the sentence was manifestly excessive

Director of Public Prosecutions v Joseph [2001] VSCA 151, considered
R v BAS[2005] QCA 97, considered
R v Fereiro[2006] QCA 10, considered
R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, considered
R v Thompson; ex parte A-G (Qld)[2003] QCA 200, considered

COUNSEL:

D R MacKenzie for the applicant
P J McCarthy for the respondent

SOLICITORS:

Hawkers Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

HOLMES JA: The applicant for leave to appeal against sentence was a general practitioner working at a country medical centre. He pleaded guilty to nine counts of sexual assault committed on six female patients in the conduct of his practice and was sentenced to four years imprisonment on each count. Those sentences were to be served concurrently and were, in each case, ordered to be suspended after 16 months imprisonment was served, with an operational period of four years. All of the offences entailed the applicant,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Moodley

Details

AGLC: R v Moodley [2013] QCA 253
Case: [2013] QCA 253
Decision Date: 10 September 2013

CaseChat Overview and Summary

The applicant, Dr Moodley, appealed against the sentence imposed following his guilty plea to nine counts of sexual assault. The case was heard in the Supreme Court of New South Wales. Dr Moodley was a general practitioner who had rubbed his genitals against female patients' bodies during examinations while clothed. He was sentenced to four years imprisonment on each count, to be served concurrently and suspended after 16 months. The applicant had no criminal history, had lost his medical career, and was the subject of many favourable character references. However, his cooperation in the administration of justice was limited. The court had to consider whether the sentence was manifestly excessive or inadequate, taking into account the number of complaints and offences, the protracted time over which the offending took place, and the breach of trust implicit in the doctor-patient relationship.

The court found that while the sentences reflected the overall criminality of the conduct, they lost sight of the proportions of the actual offences. The court found that the sentences did not adequately reflect the nature and circumstances of the offences, particularly given the limited cooperation of the applicant and the breach of trust involved. The court held that the sentences were manifestly excessive and granted leave to appeal. The appeal was allowed, and the sentence imposed on each count was set aside. A new sentence of twelve months imprisonment on each of counts 1-8 and a sentence of three years imprisonment on count 9 was substituted, with the last sentence to be suspended after 12 months, and an operational period of three years.

The court's decision highlights the importance of proportionality in sentencing and the need to consider the specific circumstances of each case. The court found that the original sentences did not adequately reflect the nature and circumstances of the offences, particularly given the breach of trust implicit in the doctor-patient relationship. The new sentences imposed by the court reflect a more proportionate approach, taking into account the specific circumstances of the case while still reflecting the seriousness of the offending. The decision also highlights the importance of considering the limited cooperation of the applicant in the administration of justice. The final orders of the court reflect a more proportionate sentence that adequately reflects the nature and circumstances of the offences while also taking into account the specific circumstances of the case.

Orders

Orders of the court

The application for leave to appeal is granted.1.

The appeal is allowed and the sentence imposed on each count set aside.2.

with an operational period of three years.A sentence of twelve months imprisonment on each of counts 1-8 and a sentence of three years imprisonment on count 9 is substituted, the last sentence to be suspended after 12 months3.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Moodley [2013] QCA 253
PARTIES:	R v MOODLEY, Nemalan Seshagiri (applicant)
FILE NO/S:	CA No 17 of 2013 DC No 427 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	10 September 2013
DELIVERED AT:	Brisbane
HEARING DATE:	11 July 2013
JUDGES:	Holmes and Fraser JJA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	The application for leave to appeal is granted.1. The appeal is allowed and the sentence imposed on each count set aside.2. with an operational period of three years.A sentence of twelve months imprisonment on each of counts 1-8 and a sentence of three years imprisonment on count 9 is substituted, the last sentence to be suspended after 12 months3.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to nine counts of sexual assault and was sentenced to four years imprisonment on each count, to be served concurrently and suspended after 16 months – where the applicant was a general practitioner – where the offences involved the applicant, while clothed, rubbing his genitals against female patients’ bodies during the course of examining them – where the applicant had no criminal history, had lost his career as a medical practitioner and was the subject of many favourable character references – where the applicant's co-operation in the administration of justice was limited – where the number of complaints and offences, the protracted time over which the offending took place and the breach of trust implicit in a doctor-patient relationship added an extra dimension of gravity – whether the extent to which the sentences were increased in order to reflect the overall criminality of the conduct lost sight of the proportions of the actual offences – whether in all the circumstances the sentence was manifestly excessive Director of Public Prosecutions v Joseph [2001] VSCA 151, considered R v BAS[2005] QCA 97, considered R v Fereiro[2006] QCA 10, considered R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, considered R v Thompson; ex parte A-G (Qld)[2003] QCA 200, considered
COUNSEL:	D R MacKenzie for the applicant P J McCarthy for the respondent
SOLICITORS:	Hawkers Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent