Raffaele Di Paolo v The Queen

[2019] VSCA 194

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0157

RAFFAELE DI PAOLO	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	PRIEST and NIALL JJA, and LASRY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 August 2019
DATE OF JUDGMENT:	30 August 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 194
JUDGMENT APPEALED FROM:	DPP v Di Paolo (Unreported, County Court of Victoria, Judge Stuart, 28 March 2018 (conviction); 6 July 2018 (sentence)).

---

CRIMINAL LAW – Appeal – Conviction – Sexual penetration by fraud, indecent assault and common assault – Applicant fraudulently misrepresented medical qualifications – Admissibility of evidence – Whether judge erred by admitting business practice evidence – Whether evidence relevant – Whether complainants credible and reliable - Whether verdicts unsafe and unsatisfactory – Any prejudice curable by directions – Reasonably open to jury to convict – Leave to appeal refused – Arico v The Queen [2018] VSCA 135, M v The Queen (1994) 181 CLR 487; Conolly (a Pseudonym) v The Queen [2019] VSCA 123; Dupas v The Queen [2012] VSCA 328 applied – Evidence Act 1995 ss 55 and 137 and Criminal Procedure Act 2009 s 276(1)(a) and Sched 1 cl 4A.

CRIMINAL LAW – Appeal – Sentence – Applicant pleaded guilty to obtaining property by deception, indecent assault, common assault and other offences – Jury found applicant guilty of procuring sexual penetration by fraud, indecent assault and common assault –Total effective sentence 9 years and 6 months with non-parole period 6 years and 6 months – Whether judged erred in rejecting R v Verdins (2007) 16 VR 269 principles – Whether sentence manifestly excessive – Whether sentence involved double punishment – Whether judge erred in ordering registration as a sex offender – Sentences well within available sentencing ranges – Applicant poses a risk to the sexual safety of the community Leave to appeal refused – DPP v O’Neill [2015] 47 VR 395 applied – Sex Offenders Registration Act 2004 s 11(1).

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms C M Randazzo SC	Melasecca Kelly & Zayler
For the Respondent	Ms F L Dalziel QC	Mr John Cain, Solicitor for Public Prosecutions

PRIEST JA
NIALL JA
LASRY AJA:

Introduction

1. The applicant, Raffaele Di Paolo, has applied to this Court for leave to appeal against his convictions and sentences, which are set out in the table below.  The convictions and sentences arise from charges spread over three separate indictments, identified as Indictments A, B1 and C.[1]  

   [1]Indictment F13261079A, Indictment F13261079B.1 and Indictment F13261079C, respectively.

1. In the broadest of terms, these charges arise from the activities of the applicant over a 10-year period.  Before, during and after that period, the applicant falsely represented that he was a qualified medical practitioner and offered ‘fertility treatments’ to people who came to him as ‘patients’.  The allegations were that the applicant obtained money by deceiving clients as to his medical qualifications and carried out numerous intimate examinations, which the clients would not have permitted if they had known he was not medically qualified.     

1. On 21 February 2018 in the County Court, following pre-trial argument and rulings, the applicant pleaded guilty to five charges of obtaining property by deception in Indictment A but not guilty to the other 17 charges, which included charges of procuring sexual penetration by fraud, common assault and indecent assault.  A jury later found the applicant guilty of 15 of those 17 remaining charges, and not guilty on Charges 13 and 14.  Those verdicts were delivered on 28 March 2018.

1. On 5 April 2018, the applicant pleaded guilty to all charges on Indictments B1 (15 charges) and C (16 charges).

1. The applicant was therefore to be sentenced on a total of 51 charges.  The applicant was sentenced following a plea hearing on 5 and 6 July 2018 in accordance with the following table:

Charge on Indictment	Offence		Maximum term of imprisonment	Sentence	Cumulation
Indictment A
1 Course of conduct	Obtaining property by deception [Crimes Act 1958 s 81(1)]		10 years	4 years aggregate	Base
2	Procure sexual penetration by fraud [Crimes Act1958 s 57(2)]		5 years	9 months	3 months
3	Common assault [common law]		5 years	2 years aggregate	12 months
4	Common assault [common law]		5 years
5	Common assault [common law]		5 years
6	Common assault [common law]		5 years
7	Common assault [common law]		5 years
8	Common assault [common law]		5 years
9	Common assault [common law]		5 years
10	Common assault [common law]		5 years
11A	Common assault [common law]		5 years
12 Course of conduct	Obtaining property by deception [Crimes Act 1958 s 81(1)]		10 years	See Charge 1A[2]
15 Course of conduct	Obtaining property by deception [Crimes Act 1958 s 81(1)]		10 years	See Charge 1A
16	Procure sexual penetration by fraud [Crimes Act1958 s 57(2)]		5 years	9 months	4 months
17	Procure sexual penetration by fraud [Crimes Act1958 s 57(2)]		5 years	9 months	4 months
18 Course of conduct	Obtaining property by deception [Crimes Act 1958 s 81(1)]		10 years	See Charge 1A
19 Course of conduct	Procure sexual penetration by fraud [Crimes Act1958 s 57(2)]		5 years	2 years 6 months	22 months
20	Indecent assault [Crimes Act 1958 s 39(1)]		10 years	4 months	2 months
21 Course of conduct	Obtaining property by deception [Crimes Act 1958 s 81(1)]		10 years	See Charge 1A
22 Course of conduct	Procure sexual penetration by fraud [Crimes Act1958 s 57(2)]		5 years	12 months	6 months
Indictment B
1 Course of conduct	Obtaining property by deception [Crimes Act 1958 s 81(1)]		10 years	See Charge 1A
2	Indecent assault [Crimes Act 1958 s 39(1)]		10 years	3 months	1 month
3 Course of conduct	Obtaining property by deception [Crimes Act 1958 s 81(1)]		10 years	See Charge 1A
4	Common assault [common law]		5 years	6 months	2 months
5 Course of conduct	Obtaining property by deception [Crimes Act 1958 s 81(1)]		10 years	See Charge 1A
6	Common assault [common law]		5 years	6 months	2 months
7 Course of conduct	Obtaining property by deception [Crimes Act 1958 s 81(1)]		10 years	See Charge 1A
8	Common assault [common law]		5 years	6 months
9	Indecent assault [Crimes Act 1958 s 39(1)]		10 years	3 months	1 month
10 Course of conduct	Obtaining property by deception [Crimes Act 1958 s 81(1)]		10 years	See Charge 1A
11	Indecent assault [Crimes Act 1958 s 39(1)]		10 years	3 months	1 month
12	Obtaining property by deception [Crimes Act 1958 s 81(1)]		10 years	See Charge 1A
13	Common assault [common law]		5 years	6 months	2 months
14 Course of conduct	Obtaining property by deception [Crimes Act 1958 s 81(1)]		10 years	See Charge 1A
15	Common assault [common law]		5 years	6 months	2 months
Indictment C
1 Course of conduct	Obtaining property by deception [Crimes Act 1958 s 81(1)]		10 years	See Charge 1A
2 Course of conduct	Obtaining property by deception [Crimes Act 1958 s 81(1)]		10 years	See Charge 1A
3 Course of conduct	Obtaining property by deception [Crimes Act 1958 s 81(1)]		10 years	See Charge 1A
4 Course of conduct	Obtaining property by deception [Crimes Act 1958 s 81(1)]		10 years	See Charge 1A
5	Attempt to obtain property by deception [Crimes Act 1958 s 81(1)]		5 years	See Charge 1A
6 Course of conduct	Obtaining property by deception [Crimes Act 1958 s 81(1)]		10 years	See Charge 1A
7 Course of conduct	Obtaining property by deception [Crimes Act 1958 s 81(1)]		10 years	See Charge 1A
8 Course of conduct	Obtaining property by deception [Crimes Act 1958 s 81(1)]		10 years	See Charge 1A
9	Obtaining property by deception [Crimes Act 1958 s 81(1)]		10 years	See Charge 1A
10 Course of conduct	Obtaining property by deception [Crimes Act 1958 s 81(1)]		10 years	See Charge 1A
11 Course of conduct	Obtaining property by deception [Crimes Act 1958 s 81(1)]		10 years	See Charge 1A
12 Course of conduct	Obtaining property by deception [Crimes Act 1958 s 81(1)]		10 years	See Charge 1A
13 Course of conduct	Obtaining property by deception [Crimes Act 1958 s 81(1)]		10 years	See Charge 1A
14 Course of conduct	Obtaining Property by Deception [Crimes Act 1958 s 81(1)]		10 years	See Charge 1A
15	Attempt to obtain property by deception [Crimes Act 1958 s 81(1)]		5 years	See Charge 1A
16 Course of conduct	Obtaining property by deception [Crimes Act 1958 s 81(1)]		10 years	See Charge 1A
Total effective sentence:		9 years and 6 months’ imprisonment
Non-parole period:		6 years and 6 months’ imprisonment
Pre-sentence detention declaration:		100 days
6AAA statement:		12 years’ imprisonment with a non-parole period of nine years
Ancillary orders:		Forensic sample order. Disposal and compensation orders. Pecuniary penalty orders. Sex Offender on Charges 16, 17, 19, 20 & 22 of Indictment A and Charges 2, 9 & 11 on Indictment B. Sex Offenders Register for life.

[2]Charge 1 on Indictment A.

1. In this Court, the applicant has sought leave to appeal against the convictions on which the jury delivered verdicts on the following two grounds:

Ground 1

The trial judge erred in admitting ‘business practice’ evidence, after pleas of guilty were entered to the charges of obtaining property by deception, as admissible on the remaining charges.

Ground 2

The verdicts of procuring sexual penetration by fraud are unsafe and unsatisfactory.

1. In relation to the application for leave to appeal against sentence, the applicant relies on the following four grounds:

Ground 1

The sentencing judge erred in rejecting Verdins principles.

Ground 2

The individual sentences, degree of cumulation, total effective sentence and non-parole period are manifestly excessive.

Ground 3

The sentencing judge erred by doubly punishing the applicant.

Ground 4

Registration as a sex offender pursuant to the Sex Offender Registration Act 2004 was not warranted and should not have been ordered.

1. For the reasons that follow, we have concluded that the application for leave to appeal against both conviction and sentence should be refused.

Circumstances of alleged offending

Background

1. The applicant was born in Italy on 10 August 1956 and emigrated to Australia with his parents when he was nine months old.  He completed his secondary education in Melbourne and then commenced a science degree at Monash University.  In 1977, he deferred that study to travel to Italy.  Police enquiries revealed that the applicant did not complete any undergraduate degree at Monash University.

1. In Italy, the applicant initially studied at the University of Chieti and then transferred to the University of Rome at the end of 1978.  None of that study led to the conferral of a degree that qualified him as a medical practitioner in Italy or Australia — a fact that he accepted for the trial in the County Court.

1. Upon returning to Australia in 2006, the applicant falsely purported to be a legally-qualified medical practitioner and fertility specialist.  He conducted a practice in that field initially from his home in Bay Street, Brighton and later at a suite of offices in St Kilda Road, Melbourne.

1. Generally, people were referred to the applicant by word of mouth or by other practitioners in allied fields, such as chiropractors, natural therapists and specialists.  In each of the cases that became the subject of charges, his clients were couples who experienced difficulties with conception and had already been through ‘traditional’ medical processes, such as in vitro fertilisation (‘IVF’) treatment.  It was alleged by the prosecution — and ultimately accepted by the applicant through his pleas — that these clients paid substantial sums of money to him on the basis that he was practicing a ‘more natural and successful’ form of IVF treatment.  

1. As the prosecution put its case and as we have already briefly described, the applicant purported to offer various fertility ‘treatments’ to his clients, which ranged from internal and external ultrasounds,[3] administering homeopathic medications, endometrial biopsies, and the extraction of sperm from the testes. 

   [3]Whether the applicant offered and performed internal ultrasound examinations was a central matter in dispute.

1. The offences committed by the applicant occurred between January 2005 and May 2015.  There were 30 complainants in total.  The division of the charges into three indictments was as follows.

Indictment A

1. The charges on this indictment were alleged to have occurred between January 2005 and August 2010.  Broadly summarised, the charges of obtaining property by deception (Charges 1, 12, 15, 18 and 21) related to the applicant taking payment in exchange for fertility services where the complainants believed that the services were provided by a properly-qualified and/or registered medical practitioner.  The amount appropriated over this period was alleged to have been $70,750.

1. The charges of procuring sexual penetration by fraud involved the applicant inserting a pipette (Charge 2), an ultrasound transducer (Charges 13,[4] 16, 17, 19 and 22) and a gloved hand (Charge 14)[5] into the vagina of the complainants, in circumstances where they believed he was a properly qualified and/or registered medical practitioner.

   [4]The applicant was found not guilty on this charge.

   [5]The applicant was found not guilty on this charge.

1. The charges of common assault relate to one male complainant.  On his first, second and fourth cycles of intracytoplasmic sperm injections (‘ICSI’), the applicant inserted a needle into the complainant’s testicle to extract sperm (Charges 3, 4, and 11).  On the third ICSI cycle, the applicant performed the procedure six times (Charges 5 to10).

1. The charge of indecent assault occurred when the applicant conducted a breast examination with un-gloved hands upon a complainant (Charge 20).

1. The application for leave to appeal against conviction is only concerned with this indictment.  The following two indictments arise for consideration only in the application for leave to appeal against sentence.

Indictment B1

1. The offending covered by this indictment occurred between 2006 and 2014.  The charges of obtaining property by deception (Charges, 1, 3, 5, 7, 10, 12 and 14) relate to seven complainants who paid the applicant for services in similar circumstances to those outlined above — that is, payment in return for fertility services.

1. The charges of indecent assault (Charges 2 and 9) occurred when the applicant performed a physical examination of two complainants’ testicles and/or penis.  Charge 11, indecent assault, occurred when the applicant performed a physical examination of a complainant’s breasts.

1. The charge of common assault (Charge 8) occurred when the applicant conducted an endometrial biopsy and inserted a needle into the complainant’s uterus.

1. Charge 15, common assault, occurred when the applicant administered a homeopathic treatment by intravenous drip.

1. Charges 4, 6 and 13, common assault, occurred when the applicant injected unknown substances, which he claimed were homeopathic medications, into the abdomens of three complainants.

Indictment C

1. The offending covered by this indictment occurred between 2004 and 2015. All of the charges are obtaining property by deception, save for Charges 5 and 15 which are charges of attempting to obtain property by deception.  The charges relate to 15 complainants who paid the applicant for services in similar circumstances to those outlined above.

Conviction - Grounds of appeal

Ground 1 – Admissibility of ‘business practice’ evidence

1. This ground appears to assert that, should it succeed, all convictions resulting from the jury’s verdicts on Indictment A ought to be set aside.

Procedural history

1. On 29 November 2017, the prosecution caused tendency notices to be served on the applicant, which indicated the prosecution sought to prove that the applicant had a tendency to ‘act in a particular way, namely to falsely represent that he was, or had been, a properly qualified and/or registered medical practitioner and/or gynaecologist and/or IVF specialist either in Melbourne or in Italy to … patients, medical practitioners and allied health professionals’.  They also sought to prove he had a tendency to ‘falsely represent his professional qualifications and experience in order to have patients consent to procedures they believed were medically necessary and to pay for his services’.

1. On that same date, the respondent also served on the applicant’s solicitors a coincidence notice that they intended to prove that the applicant had a particular state of mind or did particular acts, including making false representations, orally and in writing, that he was a doctor with IVF experience, that he took blood samples and that he administered injections into clients’ abdomens.

1. It was made clear on behalf of the applicant that the admissibility of the tendency and coincidence evidence would be in contention for the trial.

1. Shortly after the trial’s commencement, the trial judge advised the parties by email of three particular authorities in relation to the topic of ‘business practice’ evidence and whether such evidence could be admitted in proof of a fact in issue, instead of tendency evidence.  Those cases, which became the subject of argument, were: ACCC v Four Wheel Drive Systems Pty Ltd [2003] FCA 880; Jacara Pty Ltd v Perpetual Trustees (WA) Ltd (2000) 106 FCR 51; and Higgins (a Pseudonym) v The Queen [2016] VSCA 47.

1. It is sufficient for the purposes of this application to note that those cases demonstrate that separate, similar representations or acts can establish a business model or ‘business practice’.  A ‘business practice’ bears directly on a fact in issue, such as the state of mind, motive or intent, rather than establishing a mere tendency to act a certain way. 

1. After further discussion, the prosecution abandoned its reliance on the proposed tendency and coincidence evidence, and sought to have the same subject matter admitted as ‘business practice’ evidence.  The applicant objected to this course, and the matter was debated before the judge.

1. On 15 February 2018, his Honour ruled that the evidence from individuals who dealt with the accused separately could be used cumulatively to establish that he had a ‘business system’ in place and the nature of that system.  He concluded that the evidence was admissible in proof of the fraud element for the charges of obtaining property by deception (‘deception charges’) and procuring sexual penetration by fraud (‘penetrative charges’).  The evidence was also circumstantial evidence going to his state of mind and motive as well as providing context for the complainants’ evidence.

1. On 21 February 2018, the applicant indicated that he proposed to plead guilty to the deception charges in Indictment A and, consequently, the applicant requested that the relevance of the ‘business practice’ evidence be revisited in relation to the remaining charges.

1. It was submitted on behalf of the applicant that the allegation that he represented himself as a medical practitioner would no longer be contested.  It was put that the guilty pleas would acknowledge the fraud in relation to the penetrative charges as well as the common assault and indecent assault (‘assault charges’).  Consequently, the only issue that remained for the jury’s consideration was whether the acts in those charges were, in fact, committed as the applicant denied that any such examinations or procedures actually occurred at all.

1. The trial judge did not accept these submissions and concluded that he would not revisit his previous ruling.  His Honour said:

It is not contested that, absent a medical degree, he was not allowed to engage in any of the procedures alleged by the complainants but denied by the [applicant].  Each and every one of those acts are acts, as I understand it, that a duly-qualified medical practitioner could conduct …

A jury would be entitled to consider as relevant material, directly or indirectly, the fact that he maintained this deception as to his qualifications both before 2005 and after 2010 in considering whether or not that evidence provides the setting, provides for evidence of his state of mind and all other matters as I have adumbrated them during the course of my ruling.

The prosecution is entitled to present its case in a complete way.  Nothing that … has been indicated by [defence counsel] as to how the complainants will not be cross-examined, nor the pleas of guilty to the five charges of obtaining property by deception, affects in any way the matters that are still prudent as set out by… my ruling, other than removing the issue of dishonesty and the falsity of the representations [that were the] subject of the [deception] charges.

Submissions on appeal

1. In this Court, the applicant’s counsel accepted that the ‘business practice’ evidence was relevant to the applicant’s state of mind, motive or context for the deception charges. However, counsel reiterated the argument that, in pleading guilty to those charges, the fraudulent nature of his conduct was no longer a fact in issue for the penetrative and assault charges. It was therefore argued that the ‘business practice’ evidence was inadmissible primarily because the evidence was not relevant pursuant to s 55 of the Evidence Act 2008 (‘Evidence Act’).  

1. Alternatively, it was argued that the trial judge should have excluded that evidence pursuant to s 137 of the Evidence Act on the basis that the prejudicial effect of the evidence outweighed its probative value.

1. The respondent’s written case argued that, regardless of the plea, the prosecution still had to prove the fraudulent conduct that vitiated consent or formed an element of the offences.  As the fraudulent conduct relied on for the penetrative charges was the same as the deception charges, the same evidence was still relevant.

1. The respondent also noted that the trial judge identified the issue in relation to all charges being whether the complainants were deceived by the applicant as to whether he had a medical qualification.

1. In his first ruling, his Honour examined the application of s 55 of the Evidence Act and, in relation to the penetrative charges, identified the elements as follows:

(1)The accused procured the victim;

(2)The victim was procured to take part in an act of sexual penetration;

(3)The accused procured the victim through fraudulent means; and

(4)The accused did what he did with the intention of producing the desired result.

1. The trial judge went on to conclude that it was plain, given the required element of fraud, that the ‘business practice ’ evidence was relevant in proof of the elements of the offence charged.  There can be no question that his Honour’s view was correct.

1. Senior counsel for the applicant did not press a submission that the ‘business practice’ evidence concerning events during the charge period of offending — that is, between 2005 and 2015 — should not have been admitted.  It was plainly relevant and admissible for those complainants who alleged that they had been penetrated by the applicant to give evidence about the circumstances in which they came to consult the applicant and the facts which led them to believe that he was a registered medical practitioner trained in fertility treatment.

1. More generally, evidence relating to the business practices of the applicant during the charge period was admissible on the penetration charges as going to the context of the examinations and the circumstances of the consultations.  The business practice evidence as a whole, including that which fell outside of the charge period, was relevant as establishing fraud, and therefore an element of the offences, and was also relevant to the context of the medical procedures and the context of the alleged penetrations. 

1. Having found that the ‘business practice’ evidence is relevant to the penetrative charges, we next turn to the alternative argument of whether the trial judge erred in not excluding the ‘business practice’ evidence under s 137 of the Evidence Act.

1. The ‘prejudicial effect’ referred to in s 137 is understood to mean that there is real risk the evidence will be misused by the jury in some way.

1. Senior counsel for the applicant did not press the submission that the ‘business practice’ evidence concerning events during the charged period of offending — that is, between 2005 and 2015 — should not have been admitted.  The remaining submission was that admitting such evidence as fell outside that period resulted in a miscarriage of justice because there was a risk that the jury misused that evidence and reasoned that, because he continued the deception, it was more likely that he committed the acts of penetration alleged.

1. Briefly, the effect of the evidence from outside the charged period was that the applicant represented himself in various ways as a medical practitioner to witnesses who visited the medical practice.  Some underwent treatment, although none of which was penetrative.  They also received documents in which the applicant represented himself as a doctor or a fertility specialist.  One assisted with a website for the applicant’s enterprise that referred to him as a doctor.  The business practice being conducted by the applicant throughout the charged period and beyond was one involving the promotion of his business through false representations about his qualifications and expertise.    

1. When that evidence, or part of it, was being given at trial, the judge gave the jury a direction about how such evidence could be used by them.  In those directions his Honour said the purpose of the evidence was a ‘confined one’.  He went on:

It is to give you an overview of the business practice, in order to provide you with a context in which you look at the evidence of a particular complainant.  So, the aim here is to provide you with evidence as to how he presented himself professionally to other patients …

1. On the issue of whether the prosecution could prove beyond reasonable doubt that penetration occurred, his Honour directed the jury as follows:

[Y]ou can use all the evidence in [order] to assess whether the prosecution in relation to a particular charge concerning a particular complainant has proven its case beyond reasonable doubt or not bearing steadily in mind that the issue or issues between the prosecution and the defence are somewhat confined — if not greatly confined — to whether or not the alleged penetration of the kind that - in that particular charge that you’re considering has been proven to have occurred beyond reasonable doubt.

Now, that evidence requires you to consider the complainant in question.  You can’t say, “Well, I” – for example, if you did, in relation to one of the complainants an internal probe was used in relation to her on a particular occasion; therefore it occurred in relation to her, on another occasion the subject of the charge.  You have to look at her evidence in relation to that particular incident.

Likewise, to conclude, if you did, that you would accept beyond reasonable doubt that in relation to one of the complainant's an internal probe was used the subject of a particular charge therefore it was used in relation to a different complainant; you can't do it.  You can't import a finding beyond reasonable doubt whether an internal probe was used in relation to one complainant but then say therefore you haven't in relation to another.

You must look to that particular complainant's evidence in the context, if you accept it, of the evidence globally as to his practices, as to, for example, his use or non-use of the internal probe, and that's an example of how you can use the evidence generally as to the context if you find that that particular part of his practice occurred, namely that he used an internal probe, that can be used by you in  assessing the credibility, in assessing the reliability of a particular complainant in relation to her evidence, and that's it, nothing more.

It is only going to assisting you to assess that particular complainant's evidence in the context that the Crown contend for – and that's in dispute, duly in dispute.  So it is a narrow focus: you can use that evidence as to the nature of his business in looking to the evidence of a particular complainant, in relation to a particular charge in deciding whether that witness proves to your satisfaction that the event that she describes – whether it be the touching of the breast or the use of the probe or some other act – in fact occurred beyond reasonable doubt.

So finding of guilt on one charge does not translate for a finding of guilt on another in relation to the same complainant nor in relation to different complainants.  A finding beyond reasonable doubt that – sorry. A finding that you do not – you are not satisfied beyond reasonable doubt that a probe was used in relation to one particular complainant does not translate, likewise, into a finding that it was not use in relation to another complainant; you must look at each charge separately, each complainant separately.

You cannot import or substitute, fill in a part of the evidence coming from one complainant with evidence coming from another complainant, can’t do it.

1. His Honour supplemented this direction by saying:

The other aspect to the other evidence of the nature of the business in question is if in any respect you do not accept part of this evidence as context evidence in which to evaluate the evidence of a particular complainant, put it entirely aside.  If it doesn’t help you in that particular regard, put it entirely aside and then focus solely on the evidence of the complainant in question, bearing in mind in each case of these matters it is the evidence as it relates to the particular charge that you must be satisfied of beyond a reasonable doubt.

1. His Honour did not return to this topic in his final directions to the jury.  To have done so would have been prudent but failing to do so is not, in our view, a basis to impugn the convictions and is not the subject of complaint.

1. So far as this Court’s consideration of s 137 of the Evidence Act is concerned, in Arico,[6] it was concluded that the prejudice contemplated by s 137 must exist notwithstanding a proper direction to the jury about the use of that evidence:[7]   

The question whether the evidence should have been excluded is, of course, quite separate from the question whether an anti-propensity direction could, or should, have been given.  Nonetheless, appellate decisions on s 137 are consistent and clear in holding that the danger of unfair prejudice for the purposes of that section must be assessed, at least in part, by reference to the capacity of the judge, by giving directions, to reduce or eliminate any such prejudice.

Thus, in Bray (a pseudonym) v The Queen,^[[8]] the Court referred to the ‘mechanisms available to ensure a fair trial,’ including the capacity of the trial judge to give ‘appropriate and strong directions to the jury’.  Recently, in R v Dickman, the High Court endorsed the view of the trial judge — and of Whelan JA in this Court — that the warnings to be given to the jury on identification evidence would ‘minimise any risk that the jury might give the evidence disproportionate weight’.

[6]Arico v The Queen [2018] VSCA 135 (‘Arico’).

[7]Ibid [139]-[140] (Maxwell ACJ and Weinberg JA) (citations omitted).

[8](2014) 46 VR 623.

1. In view of the trial judge’s direction to the jury and our acceptance of the relevance of the evidence, in our opinion there was no real possibility that the evidence was used impermissibly, and therefore no substantial miscarriage of justice occurred.  The admission of evidence that revealed the manner in which the applicant conducted himself was relevant, appropriate and accompanied by a judicial direction sufficient to avoid a miscarriage of justice by the misuse of the evidence.

1. This ground of appeal must fail.

Ground 2 – unsafe and unsatisfactory convictions

1. There were five complainants in respect of whom this ground was sought to be agitated: ‘VD’ (Charge 2), ‘CD’ (Charges 3 to 11), ‘NZ’ (Charges 16 and 17), ‘AP’ (Charges 19 and 20) and ‘MC’ (Charge 22).

1. It is no longer contended that the convictions on Charges 5 to 10 are unsafe and unsatisfactory.  However, in relation to the remaining charges concerning CD and the sole charge involving VD, counsel for the applicant did not make any submissions, either in the written case or orally, except that these incidents were denied by the applicant.  In those circumstances, we presume the contention in relation to Charges 2 to 4 and 11 is not  pressed.  

1. It should be noted that Charges 18, 19 and 22 were ‘course of conduct’ charges within the meaning of cl 4A of Schedule 1 of the Criminal Procedure Act 2009.  The effect is that a single charge may incorporate multiple incidents for the same offence committed on more than one occasion over a specified period.  This kind of charge exists to enable the prosecution of a series of offending where the specific details of any one instance cannot be disclosed in enough detail to prove the offence.  No point was made during the course of submissions that this would make any difference in determining this application.

1. In effect, the argument is that the case against the applicant in relation to each of those charges turned on the credibility of the complainants and that their evidence of penetration was so implausible as to render it dangerous to allow the convictions to stand.

Relevant principles

1. In the applicant’s written case the heavy burden of establishing this ground was acknowledged.  The proper approach to a complaint of unsafe and unsatisfactory verdicts is guided by the joint judgment of Mason CJ, Deane, Dawson and Toohey JJ in M.[9]  We must ask ourselves whether we think that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  This task was discussed in the recent case of this Court in Conolly (a Pseudonym) v The Queen:[10]  

The Court must make its own independent assessment of whether, on the evidence, there is a reasonable doubt as to guilt, giving full weight ot the jury’s advantage in seeing and hearing the witnesses.  Generally, a reasonable doubt about guilt experienced by the appellate court is one that the jury should also have experienced.  As was observed:

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.  It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.  That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.  If the evidence, upon the record itself, contains discrepancies, display inadequacies, is tainted or otherwise lack probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.[11]

[9]M v The Queen (1994) 181 CLR 487 (‘M’).

[10]Conolly (a Pseudonym) v The Queen [2019] VSCA 125 (Priest, Beach and Kryou JJA) (‘Conolly’).

[11]Ibid [7].

1. As this Court observed in Dupas:[12]

The test by which a court of criminal appeal must determine whether a jury verdict isunsafe and unsatisfactory — or, as that ground is expressed in the appeal statute, ‘is unreasonable or cannot be supported having regard to the evidence’ - — has been stated and restated many times since the High Court decided M v The Queen. For example, in Libke v The Queen, Hayne J (with whom Gleeson CJ and Heydon J agreed) described the test as follows:

But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt.  It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.

Provided the jury has been given appropriate and adequate directions of law by the trial judge to enable them to consider their verdict properly, that verdict is solely a matter for them.  The verdict will only be interfered with on appeal if the appellant can demonstrate that no reasonable jury could properly have reached it upon the evidence before them.[13]

[12]Dupas v The Queen [2012] VSCA 328.

[13]Ibid [301] (citations omitted; emphasis in original).

The evidence at trial

1. The prosecution case against the applicant in relation to the impugned charges alleged that the three complainants attended the applicant’s practice and that, on a number of occasions, his examination included an internal ultrasound, which required the insertion of a transducer into their vaginas.

1. It was alleged that, during some of these internal examinations, other persons were present.  In some cases, the complainants’ partners or friends were present.  One complainant gave evidence that a retired obstetrician who assisted the applicant, Dr Bruce Sutherland, witnessed the applicant conduct an internal ultrasound on one occasion and, on another occasion, Dr Sutherland himself performed the internal ultrasound. 

1. During the course of submissions, counsel on behalf of the applicant focused her attack on the reliability of this last complainant, MC, in particular.  It was submitted that there was a body of evidence that conflicted with her account.

1. It is necessary to examine the evidence of each of the witnesses in order to conclude whether a reasonable jury was entitled to act on that evidence to reach a verdict of guilty.

Charges 16 and 17 – NZ

1. NZ was referred to the applicant by a friend in 2008 after unsuccessful IVF treatment elsewhere.  According to her evidence, the applicant told her he was an IVF doctor from Italy and had moved into natural therapies because they were better aligned with his religious beliefs.  She described visiting his rooms three times per week.

1. She recalled the first internal ultrasound occurred when her husband, ‘GZ’, was present.  On that occasion, the applicant placed gel onto the transducer and inserted it into her vagina.  She said that the applicant advised he was examining her ovaries to ‘check if everything was okay’.  The examination lasted approximately three minutes.

1. On another occasion, after having a pregnancy confirmed by the applicant, NZ attended at the applicant’s rooms because she felt a sharp pain.  Her husband was away and a friend, ’EM’, accompanied her.  NZ described the process of preparing for the ultrasound and said that the applicant again inserted the transducer into her vagina to find a heartbeat.  She also described EM standing by her shoulder during the examination.    

1. Under cross-examination, NZ agreed that the applicant also used external ultrasounds but insisted that internal ultrasounds were conducted on at least the two occasions she described.  She further described the applicant preparing the internal transducer by placing a glove over it for hygienic purposes and putting gel over the transducer and glove.  She did not agree with her husband’s statement that the applicant used a condom rather than a glove.

1. GZ gave evidence about the instance when the applicant used an internal ultrasound in his presence. He recalled that, unlike with external ultrasounds, NZ had to remove her trousers entirely for this examination.  He described the applicant putting a condom on the top of the transducer, applying gel and then inserting it.  He said the applicant asked him insert the transducer but he declined, and the applicant carried out the procedure.

1. EM was also called as a witness, and she confirmed accompanying NZ on two occasions but only entered the examination room on one.  On that occasion, she described sitting near the door of the room.  She also stated that she did not know whether the ultrasound was internal or external as she ‘was there for support … not to actually look what was going with [NZ]’ and was instead looking around the room.

Charges 19 and 20 – AP

1. AP gave evidence that she visited the applicant in early 2010 after being referred by her brother.  During the initial consultation that she attended with her husband, ‘PP’, the applicant described his experience in IVF and advised that his alternative fertility practice was very successful.  Throughout 2010, she saw the applicant three times a week for about 15 minutes each time. 

1. AP stated that the applicant began using an internal ultrasound at her second consultation.  The applicant informed her that she had a ‘tilted pelvis’, which prevented proper imaging with an external ultrasound.  After that, she said there were internal ultrasounds at every visit.  AP recalled attending at the applicant’s clinic between 28 to 32 times.  She described that the internal ultrasound was conducted in the same manner each time.  She had to remove all her clothing on the bottom half and then the applicant ‘inserted a long, cream probe with lubricant’ into her vagina.  On cross-examination, AP could not recall whether a protective covering was placed over the transducer.  

1. In addition to her fertility concerns, AP discussed breast cancer with the applicant due a recent death in her family.  Her evidence was that she told him she did not know how to properly conduct a breast examination and the applicant offered to demonstrate.  He then performed an examination by placing his hand on her breast.  

1. AP also described another man at the applicant’s clinic named ‘Bruce’, whom we know to be Dr Bruce Sutherland.  She gave evidence of interacting with Dr Sutherland on two instances and stated that, on the second instance, the applicant was not there and Dr Sutherland performed the internal ultrasound.

1. It was put to AP on cross-examination that she only ever had external ultrasounds, which she rejected.  She advised that she was not surprised that her ‘tilted pelvis’ necessitated the use of an internal ultrasound as the issue had arisen during her earlier attempts with IVF.

1. She rejected the suggestion that Dr Sutherland had observed her consultations with the applicant on more than one occasion.  She also confirmed her evidence that the ultrasound Dr Sutherland conducted was internal.

1. It was put to her that the breast examination did not take place at any stage, and she responded by saying the applicant ‘definitely examined [her] breasts’.  

1. PP gave evidence describing attending at the applicant’s rooms with his wife.  He formed the view that the applicant was a doctor and IVF specialist.  He said he went to the first appointment and one other.  He recalled the applicant taking a blood sample at the second appointment, but he could not recall any ultrasounds.  He agreed that, in earlier consultations with other doctors, he had witnessed internal ultrasounds.  He did not recall his wife specifically telling him that the ultrasounds the applicant was conducting were internal nor could he recall AP telling him about the breast examination.

1. Dr Sutherland also gave evidence and told the Court about his qualifications as an obstetrician and gynaecologist.  He first met the applicant in 2001, and the applicant told him he was medically qualified in Italy.  He retired in 2004, and began working for the applicant casually in 2008 at the St Kilda offices.  He worked two days a week and he would cover appointments if the applicant was away.  Dr Sutherland ceased to work for the applicant in 2011.

1. Dr Sutherland described the equipment that the applicant had in his rooms, which included ‘a very sophisticated ultrasound machine’.  He said he ‘thought [he] saw a vaginal probe’ at the rooms of the applicant.  Dr Sutherland advised that he only conducted external ultrasounds during his own practice and while he worked for the applicant.  At his former practice, he had a very old ultrasound machine that did not have an internal transducer. 

1. When Dr Sutherland was cross-examined, he said he never saw the applicant perform an internal ultrasound or vaginal examination.  He confirmed that he did not carry out an internal ultrasound while he was working for the applicant.  He was shown photographs of the ultrasound machine, which were taken in 2015, and agreed it looked like the same machine present between 2008 and 2011.  He identified some of the instruments attached to the machine as external transducers.  He ultimately agreed that he did not tell investigators that he saw a vaginal transducer because that he was ‘not sure’ whether there was one at the applicant’s rooms.

Charge 22 – MC

1. MC is the sister of AP.  She gave evidence that she was also referred to the applicant by her brother in 2010.  She understood the applicant to be a fertility expert.  Over the three-month period that she was treated by the applicant, she received an ultrasound during most of her visits.  Some ultrasounds were external and she had ‘a couple of internal ones as well’.  She described a cover being placed over the internal transducer, which looked similar to a condom.

1. In cross-examination, MC agreed that most ultrasounds conducted by the applicant and Dr Sutherland were external.  Although she accepted that, in her police statement, she had said she ‘believed’ that some of the scans were performed internally, she emphasised that she was ‘very sure’ that the internal ultrasounds occurred.  MC was also asked whether she discussed the treatments with her sister, AP, but she stated that they never went into specifics or discussed the treatment in detail.

Professor Gabor Kovacs

1. Professor Kovacs is a semi-retired gynaecologist, and is highly qualified and experienced in the field of reproductive medicine.  He was called at trial to give evidence, in part, about best medical practice in relation to the use of ultrasounds in that field. It is of note that this witness had no involvement with the applicant nor did he observe any of the incidents alleged to have occurred. His evidence was used to compare with the complainants’ description of the internal ultrasound.  

1. He advised the Court that, in most gynaecological examinations, internal ultrasounds are preferred because it enables better imaging.  He also indicated that a proper examination would start with an abdominal scan and an internal scan would follow.  Professor Kovacs described the vaginal transducer as a longitudinal probe that is covered by a protective sheath, like a condom, before a gel is applied.

1. Under cross-examination, Professor Kovacs described the type of condom used for the internal transducer to come in a box, not unlike rubber gloves.

Evidence from the police search

1. On 13 July 2015, some five years after the last incident alleged, police executed a warrant at the premises at St Kilda Road, Melbourne.  Another warrant was executed and a search conducted on 11 September 2015.  A large number of items were seized; however, no vaginal transducer was ever found.

The statement of the accused

1. In addition, on 11 September 2015, the applicant took part in a record of interview and, on any view, told a number of lies during the course of it.  Those included the assertion that he was medically qualified in Italy.  Relevantly, he emphatically denied ever conducting an internal probe with any of the complainants and made the point that he did not have such an instrument for such internal examinations.

1. The applicant did not give evidence at his trial.

Submissions on appeal

1. It was submitted on behalf of the applicant that the evidence of penetration in the case of each complainant was so implausible as to make it dangerous for the convictions to stand.  However, the challenge only proceeds on the basis that all three of them described penetrative examinations by the applicant that simply did not occur.

1. On behalf of the respondent, it was argued that the evidence in support of penetration is capable of supporting a conviction in the case of each of those four charges.  The matters raised by the applicant were well within the province of the jury to consider and take into account.

1. We agree.  As was pointed out to the applicant’s counsel in course of submissions, the issues of fact that arose in this trial were quintessentially questions for the jury to determine.  Each of the witnesses gave evidence that the ultrasound examinations performed on them were, on several occasions, done internally.  Each described in detail the way in which that procedure occurred.  There could be no argument that the penetrative procedures alleged by these witnesses were impossible or even implausible.  There was a conflict on the evidence, as there often is.  That conflict does not mean that the jury who had the opportunity the assess the evidence and resolve that conflict then delivered a verdict that is unsafe.

1. In our opinion, it was open to the jury to reject the evidence of Dr Sutherland to the extent that his evidence impugned the evidence of the complainants.

1. In addition, nothing is gained by contrasting the practice described by Professor Kovacs with the evidence of the complainants.  Whether the manner in which the applicant performed the internal ultrasounds was in accordance with medical best practice is irrelevant, particularly given that the applicant is not a qualified practitioner, and it does not assist the argument as to whether the acts occurred.  There was nothing about his evidence that contributed to the argument that the evidence of the complainants was implausible and, in some respects, it actually buttressed their allegations.

1. The jury were entitled to conclude that the complainants were credible and definite about what occurred, particularly given the intimate nature of the procedures. 

1. Further, the acquittal of the applicant on Charges 13 and 14, which had alleged the applicant conducted internal ultrasounds at his earlier Brighton office, demonstrates that the jury approached their task very carefully.  In circumstances where the credit of a particular witness fell short, the jury were led to acquit.  

1. This ground of appeal must also fail.

Conclusion and orders on the conviction application

1. We would refuse leave to appeal on both grounds of appeal against conviction.

Appeal against sentence

Ground 1 – Verdins

1. During the plea made on behalf of the applicant, it had been argued that there were four bases to support the application of the principles in Verdins.[14]  

   [14]R v Verdins (2007) 16 VR 269.

1. First, the offending was directly attributable and causally connected to his mental illness.  Second, the applicant’s moral culpability was reduced by virtue of his mental illness.  Third, general and specific deterrence should be moderated given the effect of the condition on the mental capacity of the defendant.  Fourth, as a result of his mental illness, imprisonment will ‘weigh more heavily’ on the applicant as opposed to prisoners of normal health.  

1. The evidentiary material submitted on the plea in support of these submissions included a letter from Robert Postlethwaite and a report from Patrick Newton, both clinical psychologists.

1. In his letter, dated 20 March 2018, Mr Postlethwaite indicated the applicant was referred to him for assistance with conditions relating to anxiety and depression from September 2016 onwards.  In Mr Postlethwaite’s opinion, the applicant presented with an acute stress disorder, which developed as a consequence of the charges against him.

1. Mr Newton’s report, dated 7 June 2018, similarly included a diagnosis of an adjustment disorder with mixed anxiety and depressed mood, which arose from the stress of his arrest and incarceration.  He also diagnosed the applicant with a narcissistic personality disorder.  Mr Newton went on to say that there was no indication that the applicant was affected by a mental disorder during the course of his offending. It was also his opinion that the applicant’s personality disorder could likely create difficulties that were likely to mean that his time in custody would be more difficult. 

1. With this material, the judge reviewed the principles articulated in Verdins and reached the following conclusions.

1. First, whilst the prosecution conceded that there should be some moderation of sentence as a result of the applicant’s diagnoses, he was not satisfied that imprisonment would be more burdensome for the applicant. and therefore he did not intend to moderate the sentence.

1. Second, the applicant was diagnosed with a personality disorder, but not a mental illness.  That distinction is critical for the application of Verdins following this Court’s judgment in O’Neill.[15]  The Court in that case concluded that whilst diagnostic labels were not determinative, the principles are confined to cases where the offender suffered an impairment of their mental functioning and do not apply to personality disorders. In the applicant’s case, a level of grandiosity may be consistent with a narcissistic personality disorder, but it did not in any way diminish the applicant’s moral culpability.

   [15]DPP v O’Neill (2015) 47 VR 395.

1. In oral argument, senior counsel for the applicant ultimately conceded that there was no error on the part of the sentencing judge in rejecting the application of the first three Verdins principles raised.  However, she persisted with the submission that the diagnosed disorders would make prison more burdensome for the applicant and that the judge failed to properly take that into account.

1. In response, the respondent argued that his Honour’s rejection of the application of the principles in Verdins was appropriate in his assessment of the applicant.  There was no evidence that the applicant suffered from the effects of a mental disorder during the period of the offending.  The respondent also acknowledged the sentencing judge was not bound to agree with the prosecution’s concession as to the burden of imprisonment.

1. In our view, and notwithstanding the concession of the prosecutor, such a conclusion was open to his Honour and his rejection of the application of all the principles developed in Verdins was consistent with the judgement of this Court in O’Neill.

1. This ground must therefore fail.

Ground 2 – Manifest excess

1. On behalf of the applicant, it was argued that the sentencing judge failed to give adequate weight to the following three mitigating factors when determining the appropriate sentences:  the applicant’s early offers to plead guilty to the deception charges, the utilitarian benefit of his pleas of guilt to the charges in Indictment B1, and the applicant’s remorse and insight.

1. Although the sentencing judge did note the applicant was entitled to benefit for his early offers, counsel for the applicant submitted that the aggregate sentence failed to reflect the significant benefit of his numerous offers to plead guilty.

1. It was also argued that the sentencing judge erred in finding that the applicant’s pleas of guilt were not indicative of insight or remorse. Counsel submitted that the numerous character references and the materials from Mr Newton and Mr Postlethwaite were demonstrative of his remorse and insight, particularly with respect to the deception charges.

1. The sentencing judge gave detailed reasons for the sentences he imposed.  He outlined the applicant’s background and dealt with the forged documents suggesting qualifications from the University of Rome.  He noted that applicant had a prior matter for having ‘unlawfully practiced the medical profession’ and carrying out IVF procedures in 2002 in Italy.  In those proceedings, the applicant mislead the Italian courts that he had been medically qualified in Australia and simply failed to request registration in Italy. His Honour explained that he was not sentencing the applicant in relation to that matter; however, it was relevant to the applicant’s moral culpability and the need for specific deterrence and community protection.

1. His Honour then moved to the circumstances of the offending and discussed the evidence of the various victims of the offences. He outlined those who had been deceived into thinking the applicant was a qualified medical practitioner, including Dr Sutherland.  He also read the victim impact statements, which he described as a harrowing exercise, quoting from several that he felt encapsulated the thrust of the damage the applicant caused to these women and their partners.   

1. After dealing with the submissions concerning the application of Verdins in the manner detailed above, his Honour went on to reject the suggestion of any remorse or insight on the part of the applicant.  He concluded that applicant’s primary purpose was financial gain.  His Honour noted the complexity of sentencing the applicant and the need to evaluate the overall criminality involved in applying the principle of totality.  He concluded that the overall gravity of the applicant’s offending was high.

1. His Honour noted that, for ten years, the applicant constantly and repeatedly asserted that he was ‘a highly experienced medical practitioner’.  There were a large number of victims who the judge concluded had been constantly exploited in their vulnerability.  His Honour concluded that the Court must denounce the applicant’s behaviour and justly punish it. 

1. The early offers to plead guilty to some of the charges were acknowledged by his Honour but he noted that the offer initially came with qualifications aimed at resolving the entire case which the prosecution were entitled to reject.  We agree with the submission of the respondent that the aggregate sentence of four years on 27 dishonesty charges reflects the utilitarian value of those offers. 

1. In the circumstances, his Honour was entitled to reject the submissions based on remorse and insight particularly given the contest which occurred on quantum during the plea.

1. In our view, his Honour has properly taken account of the principle of totality both as to the individual sentences and degree of cumulation in each case.

1. This ground of appeal must also fail.

Ground 3 – Double punishment

1. In support of this ground, the primary submission on behalf of the applicant was that the sentencing judge effectively compensated for his dissatisfaction with the maximum sentences available by doubly punishing the applicant for the fraud involved in both the deception and penetrative charges.  To support this contention, counsel for the applicant referred to the following observation by his Honour in his reasons for sentence:

The maximum penalty for procuring sexual penetration by fraud is but five years, recently set by Parliament.  It is plain to me that that maximum penalty is wholly inadequate as revealed by the circumstances of your offending in this case and ought to, in my view, be revisited by Parliament. Nonetheless, I am bound by that maximum penalty.

1. We first observe that it is a serious assertion to make about a judge that they have, in some way, sought to impose sentences that are effectively illegitimate because of a privately held view of that judge concerning the adequacy of the maximum penalty.  Apart from the above remarks, nothing else was referred to in support of the submission.  His Honour noted that he was bound by the maximum penalty and there is no reason to conclude that he did other than act accordingly.

1. The deception and penetrative charges are based on the same fraud — that the applicant represented himself to be a qualified medical practitioner.  However, the actus reus of the two categories of offending was markedly different and separate sentences were imposed.  A perusal of the sentences imposed in the context of the maximum penalties for those offences leads to the conclusion that sentences were modest and does not avail the argument that there was some of double punishment.  Whilst the fraud was common, the applicant’s conduct was quite separate.

1. In those circumstance, we do not accept that the applicant has been doubly punished.  The ground of appeal must fail.

Ground 4 – Sex offender registration order

1. Near the conclusion of the plea, counsel for the applicant submitted that no order for registration under Sex Offenders Registration Act 2004 should be made.  The primary basis for the submission was that the applicant’s offending was not motivated by sexual gratification.  The prosecutor argued that despite the lack of sexual gratification as a motivation for these offences, the applicant poses a risk to the sexual safety of the community seeking fertility treatment and should therefore be registered.  After that brief argument, the judge directed that the application be placed on the register for life.

1. Under the Sex Offenders Registration Act 2004, the applicant’s offending did not require registration.  His offending did not involve children and fell into the category that are described as Class 3 offences under schedules to the Act.[16]  It was therefore a matter of discretion.

   [16]Sex Offenders Registration Act 2004 s 11(1).

1. On behalf of the applicant, the prosecutor was criticised for failing to present evidence as to why an order for registration should be made.  In our opinion, however, having heard the whole of the evidence in the trial — particularly given the extent of the time over which the applicant offended, the number of offences committed and the impunity with which he did so — the judge was well entitled to take view that the applicant posed a risk of the kind contended for by the prosecutor.

Conclusion and orders on the conviction application

1. The application for leave to appeal against sentence is refused.

---