R v Stuart - [1999] VSCA 41

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 131 of 1998

THE QUEEN

DOUGLAS JAMES STUART

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JUDGES:	BROOKING, TADGELL and ORMISTON, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 April 1999
DATE OF JUDGMENT:	7 April 1999
MEDIA NEUTRAL CITATION:	[1999] VSCA 41

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CRIMINAL LAW - Sentence - Procuring sexual penetration by fraud - Homeopath pretending digital penetration of vagina part of treatment - Two offences against different women - Suggested effect of convictions on applicant's career - Total effective three years upheld.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, Q.C. and Mr B. Kayser	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr O.P. Holdenson, Q.C.	Alex Lewenberg

BROOKING, J.A.:

Douglas James Stuart has for some time been practising what he describes as homeopathy after studying part-time for four years at the Victorian College of Classical Homeopathy, from which body, he says, he obtained a certificate. I say that he describes himself as a homeopath because his description of homeopathy does not seem to accord with the usual definition of that system of therapeutics. It is not possible to arrive at a clear view of what he understood homeopathy to be, even after going through the 241 pages of transcript of tape-recorded police interviews. He was not a member of any professional organisation, and although he believed that there was a code of ethics for homeopaths he had never seen it. The evidence led on the plea after his conviction shows that in his professional activities he was not subject to any form of supervision or control by any public or private body.

The conviction just mentioned was sustained last May in the County Court after a plea of guilty to two counts of procuring sexual penetration by fraud by representing to two different women that an internal vaginal examination was necessary for the purpose of treating them. The two offences were about ten months apart, having been committed in July 1996 and May 1997. The maximum penalty was five years' imprisonment and the sentence passed was one of two years' imprisonment on each count, with an order for partial cumulation giving a total effective sentence of three years. A non-parole period of two years was fixed.

We have before us an application for leave to appeal against sentence on three grounds: manifest excess, infringement of the principle of totality by both total effective sentence and non-parole period, and error in finding that the applicant's ability to practise homeopathy would not be impaired by his convictions.

The applicant had sustained 23 convictions on a single occasion in 1986 for social security fraud consisting in the claiming of unemployment benefits at too high a rate. The judge, perhaps somewhat over-generously, treated these convictions as completely irrelevant, and I shall do the same.

The circumstances of each of the two fraudulent digital vaginal penetrations appear from the judge's careful reasons for sentence and I shall not repeat the facts. It is plain…

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 Stuart

Details

AGLC: R v Stuart [1999] VSCA 41
Case: [1999] VSCA 41
Decision Date: 7 April 1999

CaseChat Overview and Summary

In the case of R v Stuart, the defendant was convicted of procuring sexual penetration by fraud, following two separate incidents where he pretended to digitally penetrate the vaginas of two different women as part of a medical treatment. The case came before the court to determine an appropriate sentence. The central legal issues revolved around the nature and impact of the offences, the defendant's character and background, and the potential impact of these convictions on his career as a homeopath.

The court had to weigh the seriousness of the offences, the defendant's lack of previous criminal history, and his remorse. It was also necessary to consider the effect of these convictions on the defendant's career and the need for deterrence and rehabilitation. The court noted that the offences were premeditated and involved a breach of trust, which was compounded by the defendant's position of authority as a healthcare professional. The court found that the total effective sentence of three years was appropriate, considering the need to balance punishment, deterrence, and the defendant's prospects for rehabilitation.

After carefully considering the submissions and the relevant principles, the court upheld the sentence of three years, acknowledging the seriousness of the offences and the need to protect the public. The court found that the sentence adequately reflected the gravity of the crimes while also taking into account the defendant's background and prospects for rehabilitation. The court also considered the potential impact of the convictions on the defendant's career, but ultimately found that the sentence was appropriate in the circumstances. The final orders confirmed the sentence of three years imprisonment for the defendant.

Orders