Khorami v R; R v Khorami

1. [1]

   BELL P: The background to the two appeals with which this judgment is concerned has been set out in Johnson J’s comprehensive set of reasons.

2. [2]

   The first appeal (strictly speaking an application for leave to appeal because it involved questions of fact or questions of mixed fact and law) is that brought by Ali Khorami (the Applicant) against his conviction in relation to 10 of 22 counts with which he was charged (the Applicant’s appeal). The Applicant was found not guilty in respect of three of the counts charged and did not seek leave to appeal with regard to nine of them.

3. [3]

   The second appeal is a Crown appeal under s 5D of the Criminal Appeal Act 1912 (NSW) against the aggregate sentence imposed on the Applicant of six years’ imprisonment with a non-parole period of three years and nine months.

The Applicant’s appeal

1. [4]

   As Johnson J explains, the Applicant relies upon a single ground of appeal, namely that his conviction on each of counts 1, 3, 5, 6, 7, 9, 10, 13, 15 and 23 was unreasonable and could not be sustained having regard to the evidence.

2. [5]

   Each of the acts said to constitute the offences in respect of which conviction is challenged was captured in CCTV footage which was carefully reviewed by each member of the Court in advance of the hearing. In addition, the Court was carefully taken through the relevant footage in relation to the acts constituting the offences the subject of challenge in the course of the hearing of the appeal.

3. [6]

   I gratefully adopt Johnson J’s meticulous description of what was disclosed by this footage in respect of each of the challenged counts. I also adopt his Honour’s valuable summary of the balance of the evidence led at trial. The nature of the Applicant’s appeal is such, however, that I have reviewed the whole of the evidence myself with a view to undertaking the task required by M v The Queen (1994) 181 CLR 487; [1994] HCA 63 (M).

4. [7]

   One important matter to be borne in mind is that the reasonableness of the jury’s verdict is to be assessed by reference to the totality of the evidence: see, for example, Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [43], citing M at 493. Although that may appear to be a trite observation, the targeted focus during the hearing of the appeal on the footage of the conduct comprising almost exclusively the acts constituting the convictions complained of (as opposed to all of the Applicant’s conduct, including the counts for which he was convicted) carried the risk of minimising the significance of tendency evidence admitted at trial. This is a risk which an appellate court must be astute to avoid, and which I have been conscious of in reviewing the evidence cf. the similar care that must be taken with the use of photographs: see Taitoko v R [2020] NSWCCA 43 at [80]-[81] (Taitoko).

5. [8]

   This was a case in which tendency evidence played a significant role. No complaint was made at trial or on appeal in relation to the admissibility of that tendency evidence, the directions to the jury in respect of the use to be made of it, or its significance.

6. [9]

   As the Crown submitted and as Johnson J explains in greater detail in his reasons which, on the Applicant’s appeal, I gratefully adopt, the tendency evidence was particularly powerful. Its potency was reinforced by the fact that the evidence disclosing the tendency asserted was of acts that occurred over a six-week period and, in respect of individual complainants, in the course of an overnight stay at the Woolcock Institute. In other words, there was a multiplicity of occasions upon which the tendency manifested itself, the circumstances of which were almost identical, and there was very close temporal proximity: see Taylor v R [2020] NSWCCA 355 at [122(xiv)].

7. [10]

   There was no doubt that what was a very extensive body of tendency evidence rationally affected the assessment of the probability of the existence of a material fact in issue to a significant extent: see Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [16]. This was particularly so in the cases where the video footage of particular counts, viewed in isolation, painted a picture that was less clear than the footage in respect of other counts which were not the subject of challenge.

8. [11]

   Having reviewed the evidence as a whole, including the CCTV footage, I am comfortably satisfied that it was well open to the jury to convict the Applicant on the counts challenged on appeal. The Applicant’s appeal should therefore be dismissed.

The Crown appeal

1. [12]

   Turning to the Crown appeal, Johnson J has again meticulously set out the contentions of the parties. His Honour has also set out in [262] a very useful table which records the indicative sentences for each of the offences in respect of which the Applicant was sentenced.

2. [13]

   There are three grounds to the Crown appeal:

3. [14]

   As to the first of these grounds, it is to be emphasised that an aggregate sentence was imposed and there is no appeal from, or in respect of, indicative sentences which “have no practical operation at all”: see Vaughan v R [2020] NSWCCA 3 at [90] (Vaughan). That having been said, indicative sentences may supply a lens which may magnify or expose an error in an aggregate sentence, although care must be taken not to allow a series of indicative sentences to distort or obscure the proper focus on an overall assessment of what is a “just and appropriate measure of the total criminality involved” in the offending: see Postiglione v The Queen (1997) 189 CLR 295 at 307-308; [1997] HCA 26, cited in R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [15] (MAK). See also Nguyen v The Queen (2016) 256 CLR 656 at 677; [2016] HCA 17 at [64]; and ZA v The Queen (2017) 267 A Crim R 105; [2017] NSWCCA 132 at [70].

4. [15]

   As RA Hulme J (with whom Hoeben CJ at CL and Adamson J agreed) observed in JM v The Queen (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [40]:

5. [16]

   Dealing first with ground 1, the starting point is the observation of Spigelman CJ in Mulato v R [2006] NSWCCA 282 at [37] (Mulato):

6. [17]

   In the same case, Simpson J (as her Honour then was) expressed emphatic agreement with this observation (at [45]) before going on to observe:

7. [18]

   More recently, Leeming JA in Taitoko at [87] observed that the “question of objective seriousness is quintessentially a matter for the sentencing judge”. It is for this reason that it has been said, citing Mulato at [37], that “[t]he Court has therefore been ‘very slow’ to determine such matters for itself or to set aside the judgment made by the first instance judge exercising a broadly based discretion”: see Lees v R [2019] NSWCCA 65 at [55].

8. [19]

   The very experienced sentencing judge in the current case characterised the objective gravity of counts 3, 4, 6, 17 and 25 as being “relatively low level” examples of the particular offences. Her Honour employed a verbal scale to assess the relative objective gravity of the various counts. Thus, having described counts 3, 4, 6, 17 and 25 as “relatively low level”, her Honour described counts 1, 7, 9, 10, 13, 14, 18, 19, 20, 22 and 23 as “more serious than counts 3, 4 and 6”, and counts 5, 8 and 15 as “more serious again” than the previous set of counts which were described as “more serious than counts 3, 4 and 6”.

9. [20]

   For the reasons given by Cavanagh J, the sentencing judge’s assessment of counts 3, 4, 6, 17 and 25 was open to her Honour. It follows that, with great respect, I disagree with Johnson J in this regard.

10. [21]

    In relation to count 21, the sentencing judge described the objective seriousness of this offence as “below the mid-range of objective seriousness but not appreciably so”. The offence of administering an intoxicating substance to commit an indictable offence under s 38(a) of the Crimes Act 1900 (NSW) is a very serious offence, carrying a maximum penalty of 25 years’ imprisonment. Unlike both Johnson and Cavanagh JJ, I do not regard her Honour’s characterisation of this offence as inapt and it was, in my opinion, open to her Honour to characterise its seriousness as she did.

11. [22]

    What is perhaps, at least at first sight, somewhat more difficult to understand, however, is that, having described the offence as “below the mid-range of objective seriousness but not appreciably so”, the sentencing judge only indicated a sentence of four years in respect of this offence. On its face, there appears to be something of a disjunction between her Honour’s verbal description of the objective seriousness of the offence and the indicative sentence recorded in respect of it, given the maximum sentence of 25 years for an offence under s 38(a) of the Crimes Act. This may be explained, however, when it is borne in mind that the indictable offence referred to in the Indictment to which the charge of administering an intoxicating substance with intent was linked was aggravated indecent assault, an offence contrary to s 61M(1) of the Crimes Act which carried a maximum sentence of 7 years’ imprisonment.

12. [23]

    A similar approach may be seen in Kearsley v The Queen (2017) 265 A Crim R 233; [2017] NSWCCA 28 (Kearsley). Mr Kearsley, a Professor of Radiation Oncology and Director of Radiation Oncology at the Cancer Care Centre at St George Hospital, was charged with and pleaded guilty to two offences, namely, indecent assault and administering an intoxicating substance with intent. The complainant was a much younger female doctor with whom Mr Kearsley had dinner, ostensibly to discuss the complainant’s career progression. The key facts were described by Harrison J, in the Court of Criminal Appeal (at [27]-[30]), as follows:

13. [24]

    Macfarlan JA, with whom Schmidt J agreed, set aside the sentence imposed on Mr Kearsley in the District Court and resentenced him to an aggregate term of imprisonment of 18 months with a non-parole period of 9 months. His Honour indicated a sentence of 15 months’ imprisonment in respect of the s 38(a) offence.

14. [25]

    Schmidt J described Mr Kearsley’s acts as involving the deliberate drugging of his victim “in circumstances which involved a serious abuse of the relationship of trust which existed between them and which gave him the opportunity to take advantage of his victim, an opportunity which he deliberately pursued”: at [127].

15. [26]

    Harrison J who described the s 38(a) offence as “moderate” observed that his assessment of it entailed “no more and no less than a comparative analysis of that offence and other possible or hypothetical examples of it that I am required to undertake as part of the sentencing exercise”: at [85]. His Honour would have imposed a suspended sentence of 18 months in respect of this offence.

16. [27]

    In DL v R [2020] NSWCCA 164 (DL), DL was found guilty of some 9 counts, two of which, involving different victims, were under s 38(a) of the Crimes Act, in both cases involving the administration of a “funny tasting drink” containing diazepam (valium) to a 13 year old and another teenage girl under the age of 16 who was DL’s biological daughter, on a camping trip prior to, in the first case, digitally penetrating the victim and kissing and fondling her breasts. It was established that DL had previously conducted internet research as to how much diazepam to administer to a 50kg female, so there was no doubt that the s 38(a) offence was deliberate and planned. For the digital penetration offence, namely sexual intercourse without consent in circumstances of aggravation (victim under age of 16 years) contrary to s 61J(1) of the Crimes Act, the sentencing judge assessed the objective seriousness of the offence at above mid-range. For the s 38(a) offence, the sentencing judge had indicated a sentence of 5 years’ imprisonment in respect of each victim with the s 61J(1) offence attracting an indicative sentence of 6 years’ imprisonment.

17. [28]

    The Court of Criminal Appeal (Hoeben CJ at CL, Fagan and Cavanagh JJ) held that the aggregate sentence imposed was manifestly excessive having regard to the objective seriousness of the offences with a focus on the totality of the criminality involved. In relation to the s 38(a) offences, Hoeben CJ at CL said (at [108]) that “while significant, particularly because of the degree of planning involved, [they] were still of a relatively low level and no more than midrange in seriousness.” In re-sentencing, his Honour indicated that he would have imposed a sentence of 3 years’ imprisonment for each of the s 38(a) offences.

18. [29]

    Each case is, of course, different, but in terms of focus on the challenge to the indicative sentence imposed on the Applicant in the present case in respect of the s 38(a) offence, whilst accepting that it was more serious than the similar offence in Kearsley, it was not in my view so different to justify a conclusion that the sentencing judge’s assessment of its objective seriousness was not open. Indeed, the indicative sentence imposed was 25% greater than the indicative sentences for each of the s 38(a) offences in DL, one of which involved the administration of an intoxicating substance that was followed by a serious sexual assault contrary to s 61J(1) of the Crimes Act.

19. [30]

    For these reasons, I would reject ground 1 of the Crown appeal.

20. [31]

    In relation to ground 2 of the Crown appeal, namely the complaint that the sentencing judge erred by failing to provide reasons as to how the Applicant’s prior good character was taken into account, I respectfully agree with the reasons of Johnson J for rejecting this ground.

21. [32]

    To a significant extent, my rejection of grounds 1 and 2 of the Crown appeal drives the conclusion that the challenge to the adequacy of the aggregate sentence in ground 3 must also be dismissed, given the Crown’s reliance on the matters raised in these grounds as “patent errors” in the sentencing judge’s approach to the assessment of the objective seriousness of the offences and as bearing on ground 3. As the Crown submitted, “[t]he specific errors identified in Grounds 1 and 2 in part explain why a manifestly inadequate sentence was imposed.” My rejection of grounds 1 and 2 undermines the Crown’s argument on manifest inadequacy.

22. [33]

    As has been said on many occasions including in Manojlovic v R; R v Manojlovic [2020] NSWCCA 315 at [167]:

23. [34]

    Like Cavanagh J (at [485]), I consider that the aggregate sentence imposed by the sentencing judge was on the lenient side, having regard to the number of victims, the number of counts and the nature of the offence under s 38(a) of the Crimes Act, described by the sentencing judge as only slightly below the mid-range of objective seriousness. However, it is axiomatic that the mere fact that I may have imposed a heavier sentence does not, by itself, warrant appellate intervention or render the aggregate sentence imposed manifestly inadequate, unreasonable or plainly unjust.

24. [35]

    In declining to interfere with the sentencing judge’s assessment of the range of factors which are appropriate to be taken into account in the synthetic sentencing process, I have borne in mind the importance of the principle of totality in the context of a case involving multiple offences and multiple victims: see MAK at [15]-[16] which is extracted in the reasons of Cavanagh J at [483]. The “real question to be determined” in a case of multiple individual offences is, as Basten JA observed in McIntosh v R [2015] NSWCCA 184 at [137], “the appropriate overall period of imprisonment”.

25. [36]

    I have also borne in mind that, as was recently observed by Johnson J in Vaughan, it “would be wrong to consider the indications of the sentencing Judge [in respect of each offence] and treat them as if they were actual and operative sentences with a view to translating them, in some way, into a total sentence which has been calculated by reference to the principles in Pearce v The Queen”: at [100]. In the same case, RA Hulme J said at [117] that:

26. [37]

    The touching of the several victims in the present case was brief and non-invasive and, with the possible exception of one offence, did not involve the genital region of any of the victims cf. Zhao v R [2019] NSWCCA 203 at [86]. By way of comparison to DL (see [27] above), the s 38(a) offence in the present case was not accompanied or followed by any assault. Many of the offences, although separate, occurred within a very short period of time from each other and were of a very similar nature. In my view, looking at least at the multiple offences committed against each victim, this is a case where “a deal of the criminality in each offence is best seen as comprehending and reflecting the criminality of the other offences”: see Taitoko at [132].

27. [38]

    Even accepting that the sentence imposed may have been on the lenient side (see [34] above), imprisonment for 6 years entails a strong denunciation of the Applicant’s conduct, especially when regard is had to the extra-curial punishment that I refer to below.

28. [39]

    As the sentencing judge observed, the Applicant will “almost certainly never practice medicine in this country again and will struggle to find work in a health-related field”. This has significance both for the limited role to be ascribed to personal deterrence as a consideration in the sentencing process in this particular case, and the need for community protection, for it is highly unlikely that the Applicant will ever be able to be in a position such as that from which the offences were opportunistically committed.

29. [40]

    The Applicant’s future unemployability in the medical or any allied health profession also constitutes a significant element of extra-curial punishment that will inevitably flow from the convictions: see, for example, Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 at [54]; and Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 at [32]. This should be of some comfort to the Applicant’s victims.

30. [41]

    For these reasons and those given by Cavanagh J on this issue, which I have had the benefit of reading and with which I agree, I would reject the Crown appeal in relation to ground 3.

31. [42]

    Even if, like Johnson J, I had reached the conclusion that the aggregate sentence imposed was manifestly inadequate, I would have been inclined to exercise the residual discretion under s 5D of the Criminal Appeal Act to refuse to interfere in the aggregate sentence imposed. This is not a case calling for the laying down of principles for the governance and guidance of sentencing courts, which is the primary purpose for the upholding of Crown appeals: see Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [1]–[2].

32. [43]

    It follows in my view that Ali Khorami’s application for leave to appeal and the Crown’s appeal should both be dismissed.

33. [44]

    JOHNSON J: On 6 July 2020, following a trial at the Sydney District Court, a jury found the Applicant, Ali Khorami, guilty of offences of aggravated indecent assault under s.61M(1) Crimes Act 1900 (19 counts), an offence of administering an intoxicating substance with intent to commit an indictable offence (aggravated indecent assault) contrary to s.38(a) Crimes Act 1900 and committing an aggravated act of indecency under s.61O(1A) Crimes Act 1900 (two counts).

34. [45]

    On 9 October 2020, the Applicant was sentenced for these offences to an aggregate term of imprisonment for six years, comprising a non-parole period of three years and nine months commencing on 25 September 2020 and expiring on 24 June 2024 with an additional term of two years and three months commencing on 25 June 2024 and expiring on 24 September 2026.

The Notices of Appeal

1. [46]

   By Notice of Appeal filed on 16 November 2020, the Crown appealed against the aggregate sentence under s.5D Criminal Appeal Act 1912.

2. [47]

   By Notice of Appeal filed on 19 May 2021, the Applicant sought leave to appeal with respect to his conviction on nine of the 22 offences for which he was sentenced.

3. [48]

   At the hearing on 30 July 2021, the Applicant was granted leave to amend the Notice of Appeal, so as to challenge his conviction with respect to 10 counts.

4. [49]

   Although the Applicant is the Respondent to the Crown appeal, for ease of reference, he will be referred to throughout this judgment as “the Applicant”.

5. [50]

   Both the Crown appeal and the Application for Leave to Appeal against conviction were heard on the same day by this Court.

6. [51]

   It is appropriate to consider first the Application for Leave to Appeal against conviction concerning 10 of the 22 counts for which the Applicant was convicted. If the Applicant succeeded with respect to his appeal on any of those counts, as an aggregate term of imprisonment was imposed at first instance, it would be necessary to consider the question of resentencing the Applicant for the offences in relation to which he remained convicted.

7. [52]

   As would be clear, even if the Applicant succeeded entirely with his conviction appeal, it would leave 12 offences for which the Applicant would need to be sentenced.

8. [53]

   If the Applicant fails entirely with his conviction appeal, then the Court will move to consider the Crown appeal against sentence.

The Applicant’s Ground of Appeal

1. [54]

   The Applicant relies upon a single ground of appeal which asserts that the conviction on each of Counts 1, 3, 5, 6, 7, 9, 10, 13, 15 and 23 is unreasonable or cannot be supported having regard to the evidence.

2. [55]

   The Applicant does not challenge the verdicts of guilty returned on Courts 4, 8, 11, 14, 17, 18, 19, 20, 21, 22, 24 and 25. The Applicant was found not guilty on Counts 2, 12 and 16.

3. [56]

   The Applicant’s ground of appeal involves a question of fact or mixed fact and law, so that leave to appeal against conviction is required: s.5(1)(b) Criminal Appeal Act 1912.

4. [57]

   The Applicant relies upon the first limb of s.6(1) Criminal Appeal Act 1912 in contending that each of the challenged verdicts is unreasonable or cannot be supported having regard to the evidence.

Overview of the Offences for which the Applicant was Convicted

1. [58]

   The Applicant had qualified and practised as a medical practitioner in Iran before he moved to Australia in 2011 (T432-434). He completed examinations in Australia and was registered as a general practitioner in June 2018 (T434). He commenced to practice as a general practitioner in New South Wales from the end of August 2018 (T435).

2. [59]

   In July-August 2018, the Applicant (then aged 47 years) was employed as a sleep technician at the Woolcock Institute of Medical Research (“Woolcock Institute”) in Glebe. His duties included monitoring patients who came to participate in an overnight sleep study.

3. [60]

   At the beginning of each study, patients were connected to a number of sensors which were linked with a computer system which generated data. A camera was installed in each room so that technicians could monitor them from a remote room. The sleep studies were recorded using CCTV.

4. [61]

   The Applicant was charged with offences committed against five female complainants over a period of six weeks between 17 July 2018 and 30 August 2018.

5. [62]

   It is helpful to set out, in tabular form, the charges upon which the Applicant stood trial, including a short summary of the alleged act in each count, the verdicts and whether particular convictions are the subject of appeal by the Applicant. The short summaries of the alleged acts are drawn from a document (MFI31), which was provided by the Crown to the jury prior to the Crown closing address. Where two times are shown, being the “Data” and “CCTV” times, the “Data” time was said to be accurate.

6. [63]

   The following descriptions of the offences are taken from the remarks on sentence delivered on 9 October 2020. It will be seen that the short description of each offence provided by the sentencing Judge varied, in minor respects, from the short summary contained in MFI31. In making these findings on sentence, her Honour had regard to the evidence, including the CCTV footage, and described the offences in a manner consistent with the verdicts of the jury and the way in which the trial had been conducted.

7. [64]

   HMF was a patient at the Woolcock Institute between 16 and 17 July 2018. At that time, she was 23 years old. After an initial consultation with a doctor, she met the Applicant who took her blood pressure, height, weight and neck circumference. He then attached electronic data leads to her body.

8. [65]

   The Applicant asked her to remove her bra, saying it would interfere with the wires during the night.

9. [66]

   At 12.12 am on 17 July 2018, the Applicant came into the room and rearranged the blankets covering HMF. He then placed his hand on her groin or vagina (Count 1 – s.61M(1) Crimes Act 1900 offence).

10. [67]

    At 1.03 am, the Applicant entered the room again and disconnected the headbox, pausing HMF’s sensory data. She woke up and had a short conversation with him before appearing to fall back to sleep. Whilst speaking with HMF, the Applicant touched himself on his penis. He then took her right arm and laid it out with her right hand hanging over the bed. He then placed the blood pressure cuff onto her right hand and fondled his penis with his right hand whilst holding HMF’s right arm with his left hand (Count 3 – s.61M(1) Crimes Act 1900 offence).

11. [68]

    At 3.01 am, the CCTV and sleep study were disconnected until 3.19 am. When the footage and data recommenced, the CCTV camera was pointing upwards towards the ceiling. At 3.21 am, the CCTV camera moved back down towards HMF.

12. [69]

    At 6.09 am, the Applicant again entered the room and disconnected the headbox. He pulled HMF’s right arm and stretched it out, and held her right hand with his left hand whilst fondling his penis with his right hand (Count 4 – s.61M(1) Crimes Act 1900 offence).

13. [70]

    At 6.11 am, the Applicant placed the blood pressure cuff on HMF’s arm and then moved his groin area directly into her outstretched hand. He then placed his penis in her hand for about two minutes, gently thrusting his hips back and forth (Count 5 – s.61M(1) Crimes Act 1900 offence).

14. [71]

    Shortly after this, at 6.16 am, the Applicant moved to the base of the bed and pulled the covers up, exposing HMF’s feet and lower legs. He moved his hips towards HMF’s feet and masturbated for a moment (Count 6 – s.61M(1) Crimes Act 1900 offence).

15. [72]

    At 6.19 am, the Applicant re-entered the room and again moved the blood pressure cuff onto HMF’s right arm, which was still outstretched. He moved his hips towards her right hand and touched his penis with his right hand at the same time (Count 7 – s.61M(1) Crimes Act 1900 offence).

16. [73]

    It was the evidence of HMF that she did not give the Applicant permission to touch her in any way other than for the purpose of the sleep study and she was unaware of any indecent assaults being committed upon her.

17. [74]

    JS was a patient at the Woolcock Institute between 27 and 28 July 2018. At that time, she was 16 years old.

18. [75]

    On the evening of 27 July 2018, JS (who was accompanied initially by her mother, CS) had an appointment with the sleep doctor and was then attended to by the Applicant. He took her measurements in a consultation room and then took her to an allocated bedroom and connected the wires as required for the study.

19. [76]

    Between 10.28 pm and 10.42 pm, when JS was asleep, the sleep study was paused, but the CCTV continued recording. The Applicant entered the room carrying a blood pressure machine and reached under the bed covers, pulling JS’s left arm out from under the covers. She appeared to wake up and he appeared to reassure her. He placed the blood pressure cuff on her left arm and then placed his penis in her left hand where it remained for two-to-three minutes (Count 8 – s.61M(1) Crimes Act 1900 offence).

20. [77]

    After several minutes, the Applicant left the room briefly and then re-entered and lifted the covers from the bottom of the bed, exposing JS’s legs and feet. He placed his penis on her feet and moved his hips back and forth (Count 9 – s.61M(1) Crimes Act 1900 offence).

21. [78]

    The Applicant then walked back to the top of the bed, adjusted the headbox and data leads around her head, causing JS to wake up for a moment. He then walked back to the bottom of the bed and placed his penis on her feet again (Count 10 – s.61M(1) Crimes Act 1900 offence).

22. [79]

    A short time later, the Applicant walked back to the left side of the bed and stretched out JS’s arm again. Whilst the blood pressure cuff was on her arm, he pulled his penis out and placed it in her hand whilst he appeared to take her blood pressure. She woke up and he instructed her to pump her left hand into a fist. He then put two of his left fingers on her wrist whilst fondling his penis with his right hand (Count 11 – s.61M(1) Crimes Act 1900 offence).

23. [80]

    Between 11.18 pm and 11.31 pm, the Applicant entered the room again and pulled the bed covers up, adjusting the leads around JS’s legs. He placed his penis on her feet again (Count 13 – s.61M(1) Crimes Act 1900 offence).

24. [81]

    Between 12.29 am and 12.41 am on 28 July 2018, the CCTV and data were paused. When the video recommenced, JS was laying on the very edge of the bed with her bottom exposed. Between 1.17 am and 1.33 am, the study was paused again. When it recommenced, JS was laying in the same position with a towel placed around her bottom.

25. [82]

    At 1.36 am, the Applicant entered the room again and stood to the side of the bed, leaning against JS’s bottom whilst he appeared to adjust sensor leads around her face (Count 14 – s.61M(1) Crimes Act 1900 offence).

26. [83]

    Between 2.53 am and 3.10 am, the study and the CCTV were once again both paused. At about 5.53 am, the study and the CCTV were both paused and did not recommence.

27. [84]

    In the morning, JS woke up as the Applicant was turning on the lights. He told her that she had been calling out to him during the night, saying that she could not breathe and that he had to come into her room because it had happened a few times. JS did not recall calling out or having any breathing issues and events of that sort were not recorded anywhere in the sleep study notes.

28. [85]

    LD was a patient at the Woolcock Institute on the night of 3 August 2018. At that time, she was 29 years old.

29. [86]

    After checking in and consulting the doctor, the Applicant took LD’s measurements, including her blood pressure, and then attached the wires to her body. During the setup process, the Applicant told LD about a patient at the Woolcock Institute who had been dreaming about having sex with politicians and celebrities. He said that the patient’s sleep study revealed that during the night, she would masturbate repeatedly without waking up. After this conversation, LD went to sleep.

30. [87]

    At 11.20 pm on 3 August 2018, the Applicant entered LD’s room and placed a pillow under her right arm, stretching the arm out so that it was hanging off the edge of the pillow. He then pulled the blood pressure cuff on her right arm and placed his penis in her hand, whilst appearing to take her blood pressure. He rocked his hips gently in a sexual motion (Count 15 – s.61M(1) Crimes Act 1900 offence).

31. [88]

    At 12.09 am on 4 August 2018, the Applicant entered the room and disconnected the headbox, pausing the study. He was carrying a torch. He turned LD onto her right side so that she was facing him. He fondled his penis whilst looking at her (Count 17 – s.61O(1A) Crimes Act 1900 offence).

32. [89]

    At 12.11 am, LD woke up and there was a short conversation with the Applicant who told her to move onto her left side. She did so. He then pulled the bedding over her hips, exposing her bottom. He then walked back to the door of the bedroom and returned a short time later. He moved the bedding around her feet and pulled her legs and feet out from under the covers. He then pushed himself up against her bottom whilst he masturbated and fondled his penis (Count 18 – s.61M(1) Crimes Act 1900 offence).

33. [90]

    At 12.15 am, the Applicant re-entered the room and shone the torch at LD’s bottom and then placed his right hand on her bottom (Count 19 – s.61M(1) Crimes Act 1900 offence).

34. [91]

    At about this time, LD appeared to wake up for a moment and had a short conversation with the Applicant. She then fell asleep and he leaned his groin up against her bottom whilst masturbating (Count 20 – s.61M(1) Crimes Act 1900 offence). At one point whilst this was happening, the Applicant leaned over and stroked LD’s hair.

35. [92]

    EB was a patient at the Woolcock Institute for two nights between 14 and 16 August 2018. At that time, she was 19 years old.

36. [93]

    On the first night of her sleep study, EB was attended to by a female technician who took her measurements and blood pressure and reported no abnormalities.

37. [94]

    On the second night, the Applicant was her sleep technician. He attached the wires to her body. Although she did not feel any symptoms of low blood pressure, the Applicant took her blood pressure three times, telling her it was low each time. He then told her she should drink a cup of orange juice to raise her blood pressure and produced an orange juice Popper and cut the corner off with scissors. He then poured it into a plastic cup.

38. [95]

    EB drank the contents of the cup which the jury and the sentencing Judge were satisfied beyond reasonable doubt contained two sleeping pills, Oxazepam and Temazepam, which had been placed in the cup by the Applicant with the intention of committing an aggravated indecent assault or assaults against her (Count 21 – s.38(a) Crimes Act 1900 offence).

39. [96]

    TH was a patient at the Woolcock Institute on 29-30 August 2018. At that time, she was 29 years old.

40. [97]

    The Applicant was her allocated technician and he completed the setup as usual. He asked her to remove her bra, telling her it would interfere with the study.

41. [98]

    At around 12.15 am, whilst TH was asleep, the CCTV camera moved towards the ceiling so that the bed and TH were no longer in the frame. The camera remained there until 12.21 am. After the camera had been lowered, TH’s position was different and a pillow was in a similar position to where it had been with the other complainants.

42. [99]

    The camera was moved to face the ceiling again at around 1.39 am and then pointed back down to the bed at 2.17 am.

43. [100]

    At 2.18 am, TH awoke to feel the Applicant touching her breasts (Count 22 – s.61M(1) Crimes Act 1900 offence).

44. [101]

    At 2.54 am, the Applicant walked into the bedroom and disconnected the headbox. He picked up a pillow and lifted up the bed covers, placing the pillow in between TH’s legs. His hand then moved towards her groin (Count 23 – s.61M(1) Crimes Act 1900 offence).

45. [102]

    TH then felt the Applicant touching and caressing her vagina in a circular motion over her underwear (Count 24 – s.61M(1) Crimes Act 1900 offence).

46. [103]

    A little later, the Applicant stood next to the bed facing TH and rubbed his groin area over his pants (Count 25 – s.61O(1A) Crimes Act 1900 offence).

47. [104]

    Following complaints made concerning the Applicant’s conduct towards EB and TH, a police investigation was undertaken, which revealed, as well, the Applicant’s conduct concerning JS and LD.

48. [105]

    On 18 October 2018, the Applicant was arrested by police. Following an electronic interview with police, the Applicant was charged on 18 October 2018.

The Trial of the Applicant

1. [106]

   The Crown case at trial included the evidence of the five complainants, together with CCTV footage captured during the sleep study attended by each complainant concerning all counts (except Counts 21, 22, 24 and 25). In addition, a number of witnesses gave evidence concerning the Woolcock Institute, and its practices and procedures concerning sleep studies.

2. [107]

   The Crown also relied, without objection, upon the evidence of each count as tendency evidence in relation to each other count. The Crown submitted that the evidence demonstrated that the Applicant engaged in a pattern of behaviour that revealed that he had a sexual interest in females aged between their late teens and their late 20s, and a tendency to act in a particular way, namely to indecently assault or commit acts of indecency on females who were under his care as patients during the course of his employment at the Woolcock Institute.

3. [108]

   The principal issues at trial varied as between the counts. With the exception of Count 8, the Applicant denied that he committed the physical acts, the subject of each count.

4. [109]

   In relation to the complainants HMF and TH, the Applicant denied engaging in any indecent conduct towards them.

5. [110]

   In relation to EB, the Applicant denied having provided her with an intoxicating substance, intending to indecently assault her. It was not suggested to EB in cross-examination that she had taken the substances later detected on toxicological analysis of her own volition.

6. [111]

   The Applicant gave evidence at the trial. He did not deny having placed his penis on the hand of JS or that he rubbed his penis in the presence of LD, but gave evidence that each of these complainants had consented to him behaving in the way he did in the course of practising energetic or tantric healing upon them.

7. [112]

   A summary of the offences for which the Applicant was convicted, based upon the sentencing remarks, was provided earlier in this judgment (at [64]-[103]). It will be necessary to say something further concerning the evidence of each complainant, and the contents of the CCTV footage with respect to that complainant, when addressing the conviction ground of appeal.

8. [113]

   A number of persons associated with the Woolcock Institute gave evidence in the Crown case.

9. [114]

   Dr Carla Evans, the Chief Senior Sleep Technologist at the Woolcock Institute, gave evidence that the Applicant was employed at that facility as an overnight sleep technician. His role was to meet and greet patients, to measure their height and weight and to take the patient’s blood pressure. The technician was then required to perform the setup procedure, ensuring the patient is comfortable and that the signal quality is optimal before turning the lights out.

10. [115]

    Overnight, the primary role of the technician was to sit and monitor data acquisition and to ensure that there were minimal signal losses or faults in the signal quality. The monitoring was done from a monitoring room which was within the laboratory, but external to the rooms occupied by patients. There were usually two or three sleep technicians working in the monitoring room.

11. [116]

    Dr Evans gave evidence that sleep technicians were not instructed to request that female patients remove their bras. She stated that, in her experience, bras did not interfere with signals (T117).

12. [117]

    Dr Evans gave evidence that, in between the evening blood pressure check and the morning blood pressure check, there were not supposed to be further blood pressure checks during the night. As to the purpose of a sleep study, she said “These people clearly have sleep problems so we want to see how badly they sleep with minimal interference” (T112).

13. [118]

    In the course of explaining the locations where sensors were placed on a patient’s body, Dr Evans stated that no sensors were placed around the groin area or a woman’s vaginal area (T116).

14. [119]

    Dr Evans stated that the medical data captured by the headbox was “synched up” to a CCTV camera in each of the rooms (T119). The direction in which the CCTV camera points could be moved using the computer software. It could also be moved manually but, as the camera was positioned high on the wall, it would require a chair to do so (T124).

15. [120]

    Dr Evans gave evidence as to the standard procedures within the laboratory at the Woolcock Institute for the collection and storage of urine samples taken from patients who complete daytime sleep studies, as well as its collection and transportation to the testing laboratory. No medication, including prescription medicine or “even Panadol” was kept on the premises of the Woolcock Institute (T122).

16. [121]

    Dr Evans gave evidence that she had reviewed the CCTV footage in relation to the complainants JS, LD, EB and TH and noted various interruptions in both the sleep study data and the CCTV recordings (T147-159).

17. [122]

    Darren O’Brien (who had an extensive background in nursing) was the Clinical and Research Operations Manager for the Woolcock Institute in 2018, having held the position since 2012. He gave evidence concerning the role of a sleep technician.

18. [123]

    In 2018, the general practice was to take blood pressure readings once in the evening and once in the morning (T336). In relation to the recording of subsequent blood pressure readings (taken after the initial measurements), Mr O’Brien said that any further readings were usually recorded by the technician in the Woolcock Institute’s digital management system (T336). The Applicant did not do so in this case, with the exception of one notation in relation to HMF. With respect to the notation concerning HMF, the reading was said to have been taken at 12.30 am on 17 July 2018 (T129), which did not coincide with Count 5, an allegation that, at about 6.11 am, the Applicant put his penis in HMF’s hand whilst purporting to take her blood pressure (see [70] above).

19. [124]

    Mr O’Brien noted that the Applicant had prior work experience as a sleep technician, as a phlebotomist, and was a trained general practitioner in Iran. Mr O’Brien said that the Applicant “was a trained GP from Iran that I knew was trying to re-qualify here and he had former sleep tech experience, so he was quite a good candidate” (T336). In light of his qualifications and training, the Applicant was not required to attend the training course operated by the Woolcock Institute (T336-337).

20. [125]

    On 30 August 2018, Mr O’Brien received a complaint by email from JB, the mother of EB. The same day, he received an email from the husband of TH concerning a complaint made by TH. Mr O’Brien spoke to the Applicant about both complaints. Mr O’Brien noticed, when he reviewed the studies, that the Applicant had paused the video. That occurred in contravention of a policy that required sleep studies to be recorded from setup through to lights on in the morning without exception, with this policy having been introduced after an unrelated complaint about a different technician in June 2018 (T337-338).

21. [126]

    On 31 August 2018, Mr O’Brien had a conversation by telephone with the Applicant, in which the Applicant told him that he had paused the video of EB’s study so that her privacy could be maintained because she had bedwetting issues, and he was worried about the other sleep technicians seeing her on the monitor in the monitoring room (T340-341).

22. [127]

    On 5 September 2018, Mr O’Brien again spoke to the Applicant about EB’s complaint, noting that he was chiefly concerned that Oxazepam and Temazepam had been found in EB’s urine screen. The Applicant described the complaint as “nonsense” and said that EB had told him in confidence that she was taking medication. The Applicant was suspended from work at the Woolcock Institute on 5 September 2018 (T344-345).

23. [128]

    At the request of Mr O’Brien, the Applicant prepared written responses to the complaints with those responses being before the jury (Exhibits W, X and Y).

24. [129]

    Malgorzata Bronisz was the sleep technician who oversaw the first night of the two-night oversight study attended by EB. She gave evidence that it was not her practice to ask a female patient to remove her bra and said that she did not experience problems when patients wore a bra (T354).

25. [130]

    Zhifan Zhang gave evidence that, in 2018, he was Senior Sleep Technologist at the Woolcock Institute. He worked under Dr Evans and was joint second-in-charge with Matthew Lambert. Mr Zhang’s role included diagnosing and fixing technical issues and, if he could not do so, arranging for the issue to be fixed.

26. [131]

    In the course of reviewing the sleep study of TH, Mr Zhang noticed that on three occasions during the night, the CCTV camera was manually moved and pointed to the ceiling (T374).

27. [132]

    In cross-examination, Mr Zhang said that when the camera’s power supply was switched off, the camera will move into a default position determined by the factory settings (T376).

28. [133]

    Aung Mynt gave evidence that he was the Sleep Technologist who conducted the day study attended by EB on 16 August 2018. He stated that he recorded, in notes taken during the study, that EB was falling asleep during the breaks (between naps) despite being advised not to do so (T382). He gave evidence concerning his practice of obtaining a urine sample from a patient and the method of storage of the sample. He noted that he had never previously had any complaints about the samples he had taken (T389).

29. [134]

    A consultant forensic pharmacologist, John Farrar, gave evidence with respect to the effects of Oxazepam and Temazepam. He said that both are usually administered in the form of a tablet which is soluble in liquid.

30. [135]

    Temazepam is a fast-acting hypnotic benzodiazepine used in the clinical management of insomnia (T397-398).

31. [136]

    Oxazepam is an anxiolytic benzodiazepine that is primarily used to treat anxiety (T399). As well as being a clinically available drug, he stated that Oxazepam is also a metabolite or breakdown product of Temazepam (T399).

32. [137]

    Mr Farrar expressed the opinion that EB had been administered Temazepam (T400). He considered that Oxazepam was present in EB’s urine sample as a metabolite of Temazepam. Mr Farrar said that, if both substances were present in a sample, in his experience, the Oxazepam was a metabolite of Temazepam, as it was very rare that a person would be taking both of these substances as drugs at the same time (T401). Administration of Temazepam would reduce the time taken to go to sleep, increase depth of sleep and reduce arousal (T401). Mr Farrar said that Temazepam had a very faintly bitter taste but that, when mixed with fruit juice, one would not be able to taste the tablet (T401).

33. [138]

    The officer-in-charge, Detective Senior Constable Amanda Wallace, gave evidence with respect to various aspects of the police investigation. She stated that the Applicant was arrested on 18 October 2018, and agreed to take part in an electronically recorded interview which was conducted on the same day. A recording of that interview was in evidence before the jury (Exhibit AA (DVD) and MFI25 (Transcript)).

34. [139]

    Brief reference was made to the Applicant’s evidence earlier in this judgment (see [108]-[111] above). It is not necessary to set out a more detailed summary of the Applicant’s evidence at this point in the judgment.

Applicable Legal Principles Concerning the Conviction Appeal

1. [140]

   The principles to be applied by the Court in determining the conviction ground of appeal are not in doubt. The ultimate question is whether the Court considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the Applicant on each challenged count: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66]. In doing so, the Court “is not to substitute trial by an appeal court for trial by jury”: The Queen v Baden-Clay at [66].

2. [141]

   When considering whether a verdict is unreasonable, the Court is to make its own independent assessment as to the sufficiency and quality of the evidence. The question for the Court is whether, notwithstanding there is evidence upon which a jury might convict, it can be said that it would nonetheless be dangerous in all the circumstances to let the verdict of guilty stand: M v The Queen (1994) 181 CLR 487 at 492; [1994] HCA 63. 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: Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113].

3. [142]

   As the High Court made clear in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (at [45]), there is no inconsistency in the formulation of the test in Libke v The Queen and in M v The Queen:

4. [143]

   The burden of persuasion that appellate interference is required rests with the Applicant: Mackenzie v The Queen (1996) 190 CLR 348 at 370; [1996] HCA 35.

5. [144]

   In RC v R; R v RC [2020] NSWCCA 76, Wilson J (R A Hulme and Hamill JJ agreeing) said at [143]:

6. [145]

   In determining the question whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the Applicant was guilty on each challenged verdict, the Court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or the consideration that the jury has had the benefit of having seen and heard the witnesses: M v The Queen at 494-495; Pell v The Queen at [37]. The advantage of the jury in seeing and hearing the witnesses extends to the combined advantage of a jury of 12 persons having seen and heard the witnesses at the trial: Hawi v R [2014] NSWCCA 83 at [80].

7. [146]

   As the High Court explained in The Queen v Baden-Clay at [65]:

Submissions Concerning Conviction Appeal

1. [147]

   Ms Paingakulam, counsel for the Applicant, made submissions on the conviction appeal by reference to the transcript of evidence adduced at the trial and the CCTV footage of sleep studies concerning the complainants (Exhibit A).

2. [148]

   Copies of Exhibit A had been provided to the Court and were viewed by each member of the Court prior to the hearing on 30 July 2021. In addition, parts of Exhibit A were played during the course of the hearing to assist an understanding of the submissions made on the conviction appeal.

3. [149]

   In relation to each of the convictions challenged on appeal, it was submitted that there was no evidence from the relevant complainant that the alleged act occurred. With respect to each of the challenged convictions, it was submitted that what appeared in the CCTV footage was insufficient to allow a finding beyond reasonable doubt that the alleged offence occurred.

4. [150]

   As the primary evidence with respect to each challenged count was contained in the CCTV footage, it was submitted for the Applicant that this Court is in the same position as the jury to make an assessment about the quality and sufficiency of the evidence relied upon to prove the relevant count.

5. [151]

   Particular emphasis was placed during submissions for the Applicant upon the short summary of each alleged offence contained in MFI31 (see [62] above) with it being argued that the particular conduct contained in that short summary had not been proved to the criminal standard in the challenged convictions.

6. [152]

   Concerning each of the challenged convictions, counsel for the Applicant submitted that the tendency evidence was not able to be used by the jury to fill a gap in the evidence where there was no evidence of the specific act alleged.

7. [153]

   It was acknowledged that the evidence with respect to the unchallenged convictions (Counts 4, 8, 11, 14, 17, 18, 19, 20, 21, 22, 24 and 25) was available to demonstrate that the Applicant had a sexual interest in females from their late teens to late 20s, and a tendency to indecently assault or commit acts of indecency towards female patients in that age range who were under his care during the course of his employment at the Woolcock Institute.

8. [154]

   With respect to Counts 1, 3, 5, 6 and 7 (concerning HMF), submissions were made as to why the Court should conclude that the challenged conviction was unreasonable or was not supported having regard to the evidence.

9. [155]

   Put shortly, concerning Count 1, it was submitted that the CCTV footage showed, at best, that the Applicant touched HMF on the leg, with his hand and forearm then being covered by the bed clothes. It was noted that the Applicant had denied touching HMF in the vicinity of her vagina. Accordingly, it was submitted that there was insufficient evidence for the jury to be satisfied beyond reasonable doubt that the Applicant had placed his hand on HMF’s groin or vagina whilst rearranging the bedsheets.

10. [156]

    Concerning Count 3, it was noted that the summary in MFI31 alleged that the Applicant touched himself on the penis before placing his penis on the complainant’s hand. By reference to the images contained in the CCTV footage, it was acknowledged that the Applicant appeared to touch his groin area (with his back to the camera) and, soon after, appeared to touch himself again in the groin area. It was submitted that it was not possible to determine from the footage whether the Applicant was just scratching himself, as opposed to masturbating. Accordingly, it was submitted that the jury ought not to have been satisfied beyond reasonable doubt concerning Count 3.

11. [157]

    With respect to Count 5, it was noted that the allegation was that the Applicant put his penis in the complainant’s hand and thrust his hips. By reference to the CCTV footage, whilst acknowledging that the Applicant appeared to fiddle the zipper area of his pants and to tilt his hips forward slightly, it was submitted that the penis was not visible outside the pants. Whilst noting that the Applicant appeared to press forward with his hips at several points, it was submitted that it could not be determined from the images that the Applicant placed his penis in the complainant’s hand at any point during the footage. Accordingly, it was submitted that there was insufficient evidence for the jury to be satisfied beyond reasonable doubt that Count 5 was established.

12. [158]

    Concerning Count 6, it was noted that the summary of the allegation in MFI31 asserted that the Applicant moved his hips towards the complainant’s feet and masturbated. By reference to the CCTV footage, it was said that the Applicant could be seen straddling the bottom left corner of the bed near HMF’s right foot, but that there was nothing in the footage at that point that would allow an inference to be drawn that he was masturbating. It was noted that the Applicant’s right arm and hand could be seen adjusting the wiring on HMF’s right leg and that his left arm was not visible. Accordingly, it was submitted that there was insufficient evidence to make a finding to the criminal standard that the offence charged in Count 6 had been proved.

13. [159]

    With respect to Count 7, it was noted that the summary of the allegation in MFI31 asserted that the Applicant placed his penis on the complainant’s hand. Whilst acknowledging that the footage may depict the Applicant pressing forward with his hips at points during the footage, it was said that it was not possible to see the complainant’s hand, let alone the Applicant’s penis either in or close to it. It was noted that the Applicant denied placing his penis on HMF’s hand. Accordingly, it was submitted that there was insufficient evidence for the jury to be satisfied beyond reasonable doubt that the offence charged in Count 7 had been proved.

14. [160]

    It was acknowledged that Counts 4 and 6 demonstrated the Applicant’s sexual interest in HMF. However, counsel for the Applicant submitted that a finding that the Applicant had such a tendency was not able to be used by the jury to fill gaps in the evidence when there was no evidence of the specific acts alleged. It was submitted that there was insufficient evidence to make a finding beyond reasonable doubt that each of Counts 1, 3, 5, 6 and 7 had occurred.

15. [161]

    With respect to Counts 9, 10 and 13 (concerning JS), it was noted that the summary allegation in MFI31 in each case was that the Applicant had placed his penis on the complainant’s feet. It was accepted that the conduct giving rise to the unchallenged convictions on Counts 8, 11 and 14 demonstrated that the Applicant had a sexual interest in JS and was prepared to act upon it. It was submitted, however, that the tendency evidence could not be used to fill gaps in the evidence.

16. [162]

    By reference to the CCTV footage, it was acknowledged that the Applicant had placed his penis in the complainant’s hand, but it was said that he appeared to put the penis back into his pants. Whilst standing at the foot of the complainant’s bed and with his back to the camera, it was submitted that it was not possible to see what the Applicant was doing beyond the fact that he was doing something with the complainant’s legs. It was noted that JS did not give evidence of having seen the Applicant’s penis. Accordingly, it was submitted that there was insufficient evidence for the jury to be satisfied beyond reasonable doubt that the specific conduct alleged in Counts 9, 10 and 13 had occurred.

17. [163]

    With respect to Count 15 (concerning LD), it was noted that the summary allegation in MFI31 was that the Applicant had placed his penis on the complainant’s hand. Whilst acknowledging that the Applicant’s conduct concerning the unchallenged convictions for Counts 17, 18, 19 and 20 demonstrated that he had a sexual interest in LD and was prepared to act upon it, it was submitted that the tendency evidence could not be used to fill gaps in the evidence.

18. [164]

    Concerning Count 15, it was submitted that the CCTV footage was very blurry and that it was not possible to see with any clarity what the Applicant was doing at that point at a time when he had his back to the camera. It was noted that the Applicant’s evidence was that his tantric healing of LD (involving his penis touching her hand) did not extend to touching her body. Accordingly, it was submitted that there was insufficient evidence for the jury to be satisfied beyond reasonable doubt that the specific conduct alleged in Count 15 had occurred.

19. [165]

    With respect to Count 23 (concerning TH), it was noted that the summary of the allegation in MFI31 asserted that the Applicant touched the complainant’s lower stomach and groin on her bare skin.

20. [166]

    Whilst acknowledging that the conduct giving rise to the unchallenged convictions on Counts 22, 24 and 25 demonstrated that the Applicant had a sexual interest in TH and was prepared to act upon it, it was submitted that the tendency evidence could not be used to fill what were said to be gaps in the evidence.

21. [167]

    It was submitted that the CCTV footage depicted the Applicant’s hand and forearm being largely covered by the bed clothes over TH at the relevant time and that the footage showed, at most, that the Applicant touched the complainant on the leg.

22. [168]

    It was noted that TH did complain that the Applicant had engaged in the conduct which was the subject of Counts 22, 24 and 25 involving the fondling of her breasts and her vagina and masturbating in front of her, but that she made no complaint about being touched on the stomach and groin on her bare skin in the manner alleged in Count 23.

23. [169]

    It was submitted that there was no evidence that the Applicant had committed the specific acts alleged in Count 23 and that the jury should not have been satisfied beyond reasonable doubt of his guilt concerning that count.

24. [170]

    The Crown submitted that, in order to appreciate the strength of the prosecution case, it was necessary to review the CCTV footage in relation to all of the counts and not just those counts challenged on the conviction appeal. This was necessary to appreciate the pattern of behaviour upon which the Crown relied at the trial. It was submitted that the footage showed that the Applicant behaved in a similar way, on a number of occasions, in relation to different complainants over the six-week period during which the offences were alleged to have been committed.

25. [171]

    The Crown said that the submissions for the Applicant confined artificially the examination of the evidence, so as to focus solely upon the images depicted in the CCTV footage. It was noted that each of the challenged convictions involved offences of aggravated indecent assault contrary to s.61M(1) Crimes Act 1900. The submissions for the Applicant focused on whether the CCTV footage showed physical contact between the Applicant and the relevant part of the complainant’s body, notwithstanding acceptance in those submissions that, at the relevant time, the Applicant was physically proximate to that part of the complainant, and that he was found to have engaged in other sexualised behaviour towards the same complainant, including other offences of aggravated indecent assault, during the same sleep study.

26. [172]

    The Crown submitted that several matters should be kept in mind when considering the evidence.

27. [173]

    Firstly, the unchallenged direction by the trial Judge that an assault is a deliberate and unlawful touching of another person, and that the slightest touch is sufficient to amount to an assault and the touching did not have to be a hostile or aggressive act or one that caused the complainant fear or pain.

28. [174]

    Secondly, insofar as the Applicant relied upon the absence of a reaction by the complainants to the alleged touching and their lack of awareness of it, it was necessary to bear in mind that each of the assaults took place whilst the complainants were trying to sleep so that their level of consciousness was impaired. Further, it was not alleged that the assaults were carried out by the Applicant in a forceful or aggressive fashion. The Crown submitted that it was apparent that the Applicant sought to mask his offending by using measures, such as the pretext of taking a complainant’s blood pressure or adjusting their blankets or the sensors attached to them, and that he deliberately conducted himself in a manner designed to avoid detection.

29. [175]

    Thirdly, insofar as the Applicant placed reliance on his denial of the offences, the Crown submitted that it was well open to the jury to reject those denials and to place the Applicant’s evidence to one side. It was submitted that the Applicant’s evidence was inconsistent with the overwhelming weight of the evidence (including the CCTV footage) and that aspects of his account were implausible and an affront to common sense.

30. [176]

    Fourthly, the Crown submitted that the Applicant’s arguments overlooked the extent to which the tendency evidence provided powerful support for the conclusion that the Applicant committed the aggravated indecent assault offences, for which convictions are challenged on appeal. The Crown contended that the Applicant’s characterisation of the tendency evidence was unduly narrow, and that it would be incorrect to approach this aspect upon the basis of the need for direct evidence depicting the offence on the CCTV footage before the tendency evidence could be considered.

31. [177]

    The Crown noted that the tendency evidence was admitted in relation to each count without objection, and that reliance was placed upon what was said to be a pattern of behaviour. There were said to be closely similar circumstances in which the offences were committed over a short period of time, with reliance being placed upon the Crown closing address (T615-616).

32. [178]

    The Crown relied upon the fact that the Applicant acted in a closely similar way on a number of occasions, in relation to different complainants over a six-week period, to establish that the particular offences had occurred and the fact that he did so was capable of bearing upon whether the specific act, the subject of individual counts, had been proved.

33. [179]

    The Crown responded in detail to the Applicant’s submissions concerning the challenged convictions.

34. [180]

    Concerning Count 1, it was submitted that the Applicant is seen to lift the bed clothes and place his right hand under the bed clothes between HMF’s legs in the immediate vicinity of her vagina, and that it was well open for the jury to be satisfied beyond reasonable doubt that the Applicant indecently assaulted HMF by touching her vagina.

35. [181]

    With respect to Count 3, the Crown referred to submissions made in the Crown opening address and closing address to the jury where the Crown alleged that the Applicant, after placing the blood pressure cuff on HMF’s arm, fondled his penis with his right hand whilst holding onto her arm and then placing his penis on her hand. The Crown submitted that the CCTV footage showed clearly the Applicant holding HMF’s arm with his left hand (purporting to take her blood pressure) whilst fondling his penis with his right hand. It was open to the jury to find the Applicant guilty on Count 3.

36. [182]

    Concerning Count 5, the Crown noted that the Applicant’s submission focused on the question whether the CCTV footage showed the Applicant putting his penis in the complainant’s hand. The Crown submitted that the footage showed the Applicant, over a four-minute period from 6.11 am, standing such that his penis is in the immediate vicinity of HMF’s hand. He touched the complainant’s hand and appeared to bring it into contact with his penis, having placed her right arm on a pillow as he purported to take her blood pressure.

37. [183]

    The Crown submitted that it was well open to the jury to conclude that the Applicant’s use of the blood pressure monitor was merely a pretext as it was on other occasions (such as Counts 8, 11 and 15). That being so, the Crown submitted that it was open to the jury to conclude that the Applicant’s use of the pillow was not for the purpose of enabling HMF’s blood pressure to be taken, but to elevate her hand in order to bring it to the level of his penis. The CCTV footage in relation to Counts 8, 11 and 15 showed that the Applicant used a pillow on those occasions for the same purpose. Having regard to the CCTV footage in relation to Count 5 and the tendency evidence, the Crown submitted that it was well open to the jury to find the Applicant guilty on Count 5.

38. [184]

    With respect to Count 6, it was noted that this was an allegation that the Applicant, having removed HMF’s legs from under the bed clothes, separated them and positioned her right leg such that it was hanging off the side of the bed, then moved his hips towards the complainant’s feet and masturbated. This was one of four counts of aggravated indecent assault alleged to have been committed by the Applicant upon HMF between 6.09 am and 6.20 am on 17 July 2018 (Counts 4-7).

39. [185]

    The Crown submitted that the argument for the Applicant ignored what is depicted in the CCTV footage concerning Count 6. It was said that the Applicant, having deliberately positioned the complainant’s right foot such that it is hanging slightly off the bed, straddled the bed in the immediate vicinity of her right foot before holding his right hand in the immediate area of his penis and moving it back and forth. It was said that the Applicant’s argument ignored additional supporting evidence, including: the Applicant’s sexual interest in HMF, and his willingness to act on it by indecently assaulting her, which was established by the Count 4 offence which occurred just seven minutes earlier.

40. [186]

    The Crown argued that it was clear that the Applicant was not engaged in a legitimate therapeutic act such as adjusting a sensor. The sleep study was no longer operative because the Applicant had turned it off when he entered the room seven minutes earlier at 6.09 am. The Crown submitted that the Applicant used the appearance of a legitimate therapeutic act (adjusting the complainant’s leg sensors) as a pretext to mask his offending as he did on other occasions (including Counts 5, 8, 11 and 15). It was submitted that it was well open to the jury to find that the Applicant committed the offence contained in Count 6.

41. [187]

    With respect to Count 7, the Crown submitted that it was well open to the jury to be satisfied beyond reasonable doubt that the Applicant placed his penis on HMF’s hand having regard to the CCTV footage, the fact that he had committed other indecent assaults upon her shortly beforehand (demonstrating both a sexual interest in her and a tendency to act on it by indecently assaulting her) and the fact that he adopted a similar pattern of behaviour on this occasion as he did in relation to Count 5 (involving HMF) and Count 8 (involving JS). It was submitted that the similarity in the Applicant’s position (standing over the complainant’s hand), his elevation of her hand with a pillow, and the fact that he gently moved back and forth (with these being features common to other counts) supported the fact that the Applicant placed his penis on the complainant’s hand, as he did on the occasions that corresponded with Counts 5 and 8 so that the conviction on Count 7 was not unreasonable.

42. [188]

    Concerning Counts 9, 10 and 13 (relating to JS), the Crown noted that the events giving rise to Counts 8-11 occurred in a seven-minute period between 10.28 pm and 10.35 pm on 27 July 2018, with the Applicant challenging his conviction with respect to two of these offences only. In circumstances where the Applicant is clearly depicted placing his penis on the complainant’s hand (Count 8), he then walked directly to the foot of the bed where he lifted up the bed clothes exposing JS’s feet. The Crown submitted that the Applicant was seen to put his hand in the area of his penis, and to look down at his penis at times in a similar fashion to that visible when he had his penis in the complainant’s hand during Count 8. When the Applicant stepped away from the bed having allegedly committed Count 9, the position of JS’s feet is clearly visible. The Applicant then moved to the right-hand side of the bed briefly before returning to the area of the complainant’s feet. He stood in the same position as he had occupied at the time of Count 9, with his body leaning forward over her exposed feet. The Crown submitted that the only reasonable inference is that he did so for the same purpose, being to place his penis on the complainant’s feet (Count 10).

43. [189]

    Immediately after Count 10, the Applicant returned to the left-hand side of the bed where he again stretched out JS’s arm on the pillow. His penis was out of his pants and he adjusted the position of JS’s hand and arm, so that they were in line with his penis, consistent with an intention to again place his penis on a part of her body. The Crown submitted that the Applicant appeared to be forced to modify his intended behaviour when JS stirred. Persisting with the ruse that he was performing a legitimate task (taking her blood pressure), the Crown submitted that the Applicant encouraged JS to pump her fist. He then fondled his penis with his right hand whilst touching the complainant’s wrist with his left hand (as if he were taking her pulse), with this giving rise to Count 11, an offence for which the conviction is not challenged on appeal. The Crown submitted that it was well open to the jury to be satisfied beyond reasonable doubt in relation to both Counts 9 and 10.

44. [190]

    With respect to Count 13, it is alleged that the Applicant placed his penis on JS’s feet at 11.19 pm, about 45 minutes after the unchallenged conviction on Count 11. The Crown submitted that the CCTV footage depicted the Applicant behaving in a similar manner to Counts 9 and 10. As he walked towards the foot of the bed, he touched his penis and he exposed the complainant’s feet which he brought together. The Crown submitted that, once again, the Applicant had no legitimate purpose for doing this. It was said that the Applicant’s position, the manner in which he adjusted his stance, the manner in which he moved the complainant’s feet and the fact that he appeared to touch his penis whilst positioned over the complainant’s body (as he did at the time of Counts 8, 9 and 10) all compelled the conclusion that the Applicant committed the offence charged in Count 13, and that it was well open to the jury to be so satisfied.

45. [191]

    Concerning Count 15 (involving LD), the Crown noted that this is one of five convictions for offences against LD with no challenge being made to the other four convictions (Counts 17-20).

46. [192]

    The Crown acknowledged that the quality of the footage with respect to Count 15 is not as good as other portions of footage tendered in the trial, but said that it was nonetheless possible to see much of what the Applicant was doing. The Applicant stood in the immediate vicinity of LD’s arm, having elevated it by placing it on a pillow. He purported to take her blood pressure. The Applicant leant forward towards LD’s hand, and from time to time appeared to touch his penis.

47. [193]

    The Crown submitted that the pattern of behaviour exhibited by the Applicant during Count 15 was closely similar to that displayed in relation to Count 8, when the Applicant elevated the hand of JS and placed his penis on her hand whilst purportedly taking her blood pressure. Furthermore, the Crown submitted that later the same night, the Applicant masturbated his penis whilst staring at LD (Count 17) and indecently assaulted LD by touching her bottom (Count 19) and by twice pushing his groin against LD’s bottom whilst he masturbated (Counts 18 and 20). The Applicant denied having committed each of these offences but, the Crown submitted, the jury plainly rejected those denials.

48. [194]

    It was submitted that those offences demonstrated the Applicant’s sexual interest in LD, and his preparedness to repeatedly act on that interest by indecently assaulting her, and that it was well open to the jury to be satisfied beyond reasonable doubt that the Applicant had committed the offence contained in Count 15. It was submitted that those offences demonstrated the Applicant’s sexual interest in LD, and his preparedness to repeatedly act on that interest by indecently assaulting her, and that it was well open to the jury to be satisfied beyond reasonable doubt that the Applicant had committed the offence contained in Count 15.

49. [195]

    With respect to Count 23 (concerning TH), the Crown noted that the Applicant was convicted of four offences and that no challenge is made with respect to his conviction for three of those offences (Counts 22, 24 and 25). Count 23 is an allegation that the Applicant touched TH’s lower stomach and groin on her bare skin. Unlike Counts 22, 24 and 25, Count 23 relied on the CCTV footage rather than the oral evidence of TH.

50. [196]

    The Crown submitted that the CCTV footage depicted the Applicant reaching past the pillow, which he introduced into the area between the complainant’s legs into the area of her groin. He appeared to reach under the sheets and touch TH with his right hand, which remained in the area of her vagina, whilst he used his left hand to rearrange the blankets and pillow. Although the CCTV footage did not depict directly these acts occurring, the Crown submitted that this was the appropriate inference to be drawn, and that the Applicant’s submission ignored his motivation for the act, being the Applicant’s sexual interest in TH. The Crown submitted that it was open to the jury to find the Applicant guilty on Count 23.

51. [197]

    Generally, the Crown said that the arguments advanced on appeal were raised squarely before the jury. The jury were invited by both parties to consider carefully the CCTV footage. The Crown submitted that the tendency evidence revealed that the Applicant engaged in a pattern of behaviour which provided powerful support for the conclusion that the Applicant committed the offences for which he was convicted, including the offences for which the convictions are challenged on appeal.

52. [198]

    The Crown submitted that, on an independent assessment of the evidence, it was clearly open to the jury to conclude that the Crown had established beyond reasonable doubt that the Applicant committed the offences for which his convictions are now challenged on appeal.

Decision on Conviction Appeal

1. [199]

   The Applicant stood trial upon an indictment containing 25 separate counts. The jury was required to give separate consideration to each count, except to the extent to which evidence on other counts was able to be utilised in determining whether the Applicant was guilty on a particular count.

2. [200]

   In this trial (and perhaps unusually) tendency evidence was admitted, without objection. The trial Judge gave the jury detailed directions concerning the tendency evidence. Those directions were not challenged in this Court. It is helpful to set out the terms of those directions. This will assist an understanding of the verdicts reached by the jury. In addition, this Court should adopt the approach contained in these directions when considering whether the verdicts on the challenged counts are unreasonable or cannot be supported having regard to the evidence. Her Honour said to the jury (SU22-25):

3. [201]

   In accordance with these directions, the jury was entitled to have regard to proven counts for the purpose of determining whether other counts were proved beyond reasonable doubt. With respect to each of the five complainants, there is at least one conviction which is not challenged by the Applicant on appeal. Accordingly, there was and remains evidence supportive of the tendencies relied upon by the Crown, and it may be inferred readily that the jury had regard to the tendency evidence in accordance with the directions provided by the trial Judge.

4. [202]

   It is necessary to keep in mind the way in which tendency evidence can be used to assist fact finding in a criminal trial. Evidence that a person had a particular tendency is adduced for the purpose of providing the foundation for an inference that the person was more likely to act in a particular way or have a relevant state of mind on the particular occasion that is subject to the charge or charges: Gardiner v R (2006) 162 A Crim R 233; [2006] NSWCCA 190 at [124]; Taylor v R [2020] NSWCCA 355 at [92]-[94]. In Elomar v R (2014) 300 FLR 323; [2014] NSWCCA 303, the Court (Bathurst CJ, Hoeben CJ at CL and Simpson J) said at [359]-[360]:

5. [203]

   In this case, the tendency evidence had substantial work to do, given the close proximity of other criminal acts carried out by the Applicant which permitted inferences to be drawn concerning his conduct and state of mind at the time of the counts where the verdicts are challenged on appeal.

6. [204]

   It may also be inferred that the jury did not rush to judgment in this case. The jury retired to consider verdicts at 3.10 pm on Thursday, 2 July 2020. Deliberations continued throughout the day on Friday, 3 July 2020 and continued on Monday, 6 July 2020 with verdicts being returned at 4.06 pm that day.

7. [205]

   As noted earlier, the jury found the Applicant not guilty on Counts 2, 12 and 16. It may be taken that, during two days of deliberations, the jury worked their way through the counts, considering the oral evidence and the CCTV footage contained in Exhibit A with respect to each count.

8. [206]

   The appropriate conclusion is that the jury gave the Applicant the benefit of the doubt with respect to Counts 2, 12 and 16. Having observed all the CCTV footage, these verdicts are understandable. With respect to the balance of the counts where the Applicant was found guilty, the verdict on each count reflected the direct evidence, including the CCTV footage, and the permissible use of the tendency evidence, which emanated from the individual complainant (for counts involving that complainant) as well as the evidence of all complainants, given the pattern of conduct of the Applicant displayed over a period of six weeks at the Woolcock Institute in his capacity as a sleep technician working with female patients.

9. [207]

   When considering whether it was open to the jury to find the Applicant guilty on each count challenged on appeal, it is necessary for this Court, as with the jury, to have regard to all evidence which is relevant to the question of guilt on that count. The Crown case involved a combination of direct evidence from patients and the CCTV footage, together with evidence from senior persons at the Woolcock Institute as to the proper procedures to be followed by a sleep technician when supervising sleep studies by patients and, in particular, female patients. Of particular significance in this case, was evidence that blood pressure testing was not to be undertaken during the night. A blood pressure test was to be made before the patient went to sleep and again after waking in the morning. The purpose of a sleep study is to allow the patient’s sleep to be monitored during the night without interruptions of the type which would occur with nocturnal blood pressure testing. This aspect was of particular importance in this case, and pointed to the Applicant using blood pressure testing as a pretext to enter the room of the female patients. This was an excuse to touch the body of the patient to mask an ulterior purpose, being the sexual exploitation of a female patient in his care.

10. [208]

    In addition, the jury was entitled to draw reasonable inferences from the combination of evidence adduced at the trial including conclusions with respect to the conduct of the Applicant towards female patients when, over a relatively short period of time, he acted in an overtly sexual fashion towards the female patient (concerning counts where the conviction was not challenged), and seeks to challenge convictions on other counts which occur at a time closely connected with other overtly sexual acts committed by him.

11. [209]

    Particular features of the tendency evidence upon which the Crown relied as demonstrating a pattern of behaviour included the following (T615-616):

12. [210]

    For the purpose of determining the conviction appeal, I have viewed the CCTV footage (Exhibit A) on several occasions and have had regard to its contents, in conjunction with the evidence before the jury and the submissions made by reference to the evidence on appeal.

13. [211]

    Although the CCTV footage was very significant evidence at the trial, it should be kept in mind that the jury had an opportunity to see each complainant give evidence, with this including TH who gave direct evidence with respect to the offences in Counts 22, 24 and 25 and with those convictions not being challenged on appeal. In addition, the jury had the opportunity to observe the Applicant giving evidence and being cross-examined.

14. [212]

    The Court should keep in mind what has been said by the High Court of Australia concerning the advantage of the jury in observing witnesses (see [145]-[146] above), with this aspect remaining of importance in determining the conviction appeal despite the significant role played at trial and on appeal by the CCTV footage.

15. [213]

    In what follows, I will concentrate upon the images contained in the CCTV footage with respect to the challenged convictions, but refer as well to other aspects of the evidence to allow a complete assessment of the evidence which bears upon the challenged conviction in each case.

16. [214]

    HMF, then aged 23 years, attended an overnight sleep study at the Woolcock Institute which commenced on the evening of 16 July 2018. After meeting the Applicant, certain measurements were taken including her blood pressure which the Applicant said was “a bit low” (T57). Readings taken of HMF’s blood pressure prior to the sleep study did not indicate low blood pressure. The Applicant led HMF to the room and, before she changed into her pyjamas, he told her to take her bra off so it would not get tangled with the sensors (T59). According to the evidence of senior staff at the Woolcock Institute, this requirement by the Applicant was not consistent with proper procedure. No sensors were placed on HMF’s feet and there were no sensors in the groin or vaginal area. HMF was aware that the Applicant had entered the room during the night at some time.

17. [215]

    The CCTV footage concerning HMF commences at 12.10 am on 17 July 2018. The Applicant entered the room at 12.12 am and paused to look at HMF before adjusting the sheets. After lifting up the sheets near HMF’s groin, the Applicant put his right hand under the sheets between her legs and appeared to touch HMF in the vaginal area whilst she was lying on her back. As he appeared to touch HMF in this way with his right hand, the Applicant was adjusting the sheets with his left hand. There was no proper therapeutic reason for the Applicant to be placing his right hand in HMF’s vaginal area at this time. Based on the CCTV footage and the tendency evidence, it was the Crown case that the Applicant placed his hand on the complainant’s vagina whilst rearranging the bedsheets (Count 1). The Applicant left the room at 12.13 am.

18. [216]

    The Applicant returned to the room on occasions depicted in the CCTV footage. At one point, at about 12.37 am, the Applicant looked down towards his groin and, according to the Crown, appeared to touch his penis (Count 2). The Applicant was found not guilty on this charge. The images contained in the CCTV footage are not especially clear and it may be taken that the jury gave the Applicant the benefit of the doubt on this count.

19. [217]

    At about 1.03 am, the Applicant entered the room and disconnected the sleep study. He appeared to touch his penis before stepping out of the shot briefly and returning with a blood pressure monitor. The Applicant took the hand of HMF and rested it on her side before placing the blood pressure cuff onto her arm. After placing the cuff on her arm, and as he was holding her arm with his left hand, the Applicant touched his penis with his right hand. The Applicant appeared to take the complainant’s pulse with his left hand whilst fondling his penis with his right hand (Count 3). The fact that the summary of the allegation in MFI31 referred to the Applicant “placing his penis in the complainant’s hand” did not require the Crown to prove that precise act. The Crown was required to prove the elements of an aggravated indecent assault offence and the narrative contained in this paragraph was capable of constituting this offence. Apart from the images contained in the CCTV footage which provided direct support for the verdict of guilty, the tendency evidence was significant, as was the evidence of senior staff at the Woolcock Institute that the taking of blood pressure during the night was not proper procedure.

20. [218]

    At 6.09 am, the Applicant entered the room holding a blood pressure monitor and turned off the sleep study. The Applicant moved HMF’s right hand from behind or near her head on the pillow and placed it on the side of the bed closest to him. He can be seen fondling his penis with his right hand whilst holding HMF’s arm with his left hand (Count 4). The Applicant does not challenge his conviction on Count 4 on appeal. This proven offence supports the use of tendency evidence against the Applicant with respect to the challenged convictions concerning HMF on Counts 1, 3, 5, 6 and 7.

21. [219]

    The Applicant walked out of the shot briefly and, upon his return, he approached the side of the bed and picked up HMF’s right hand. Whilst standing next to the bed, the Applicant thrust his hips forward and, at the same time, brought the complainant’s hand towards his penis. The Applicant then fondled his penis for about 10 seconds.

22. [220]

    At 6.11 am, the Applicant picked up the blood pressure monitor from the bed and stood immediately next to HMF’s right hand, which was hanging over the side of the bed. He placed a pillow under HMF’s right arm and touched his penis with his right hand, in the course of putting the blood pressure cuff on her right arm. He stepped closer to the pillow where HMF’s hand was resting so that he was straddling the corner of the pillow. The Applicant appeared to hold his penis in contact with the complainant’s right hand and stepped closer, appearing to be holding his penis in contact with her hand. The Applicant continued to stand in this position at times using both hands to handle the blood pressure monitor, near HMF’s arm, and at times placing his hand or hands in the vicinity of his penis. The Applicant moved his hips gently back and forth on a number of occasions (Count 5). It was the Crown case, based on the CCTV footage, the tendency evidence and evidence concerning the inappropriate use of the blood pressure monitor that the Applicant placed his penis in HMF’s hand so as to constitute this offence.

23. [221]

    At 6.15 am, the Applicant stepped away from the bed and walked directly to the foot of the bed, moving the blankets and exposing HMF’s feet. He moved HMF’s right lower leg so that her foot was hanging slightly off the bed before moving her left leg. He positioned himself so that he was straddling the bottom corner of the bed where he had placed HMF’s leg moments beforehand. The Applicant leant forward and appeared to be holding his penis with his right hand. When HMF appeared to stir, the Applicant moved and appeared to touch her left leg. He then turned to the corner of the bed towards HMF’s right leg foot, which he again straddled briefly. It was the Crown case, based on the CCTV footage and the tendency evidence, that the Applicant moved his hips towards HMF’s feet and masturbated (Count 6).

24. [222]

    The Applicant returned to the room at 6.18 am. He stood next to the pillow where HMF’s right hand was still resting and touched his penis. The Applicant leant slightly closer to HMF so that his position was in the immediate area of her right hand and the Applicant appeared to gently rock back and forward and again touched his penis. Based on that footage and the tendency evidence, it was the Crown case that the Applicant placed his penis on HMF’s hand (Count 7).

25. [223]

    At 6.20 am, the Applicant stepped away from the bed and pushed up HMF’s pyjama pants and touched her leg or leg sensors. After about a minute, HMF appeared to wake and have a conversation with the Applicant before she sat up in the bed.

26. [224]

    The above description of the evidence concerning Counts 1, 3, 5, 6 and 7 seeks to place those events in context by reference to other events and the tendency evidence, as well as evidence concerning the inappropriate use by the Applicant of the blood pressure monitor.

27. [225]

    In determining the challenge on appeal to these convictions, it is necessary, as well, to have regard to the broader tendency evidence, which involved a pattern of behaviour on the part of the Applicant over a six-week period which commenced with events involving HMF.

28. [226]

    At this point, I record my conclusion that it was well open to the jury to find the Applicant guilty of each of the offences charged in Counts 1, 3, 5, 6 and 7 with respect to HMF. The relationship between events depicted in the CCTV footage, some of which involved overt sexual acts on the part of the Applicant, sheds permissible light upon the acts of the Applicant at the time of the challenged convictions. I would reject the Applicant’s conviction appeal with respect to these counts.

29. [227]

    JS and her mother, CS, attended the Woolcock Institute on the evening of 27 July 2018. JS was 16 years old at the time. They attended a consultation with a medical practitioner before being taken to another waiting room where they met the Applicant. The Applicant took a number of measurements including JS’s blood pressure. The Applicant took JS and her mother to the room in which the study was to be conducted. JS changed into her pyjamas and was wearing a sports bra at the time. The Applicant attached leads to various parts of JS’s body and, as he did so, he told JS and her mother that he was a doctor.

30. [228]

    After her mother left, the Applicant told JS that he was going to take her blood pressure. According to the evidence of Woolcock Institute’s senior staff, it was inappropriate to do so. As he took the blood pressure, he asked JS to move closer to the edge of the bed so that her hand was touching the Applicant’s leg close to her groin area, with this making JS feel very uncomfortable (T291-294). The Applicant tested her blood pressure again soon after.

31. [229]

    JS recalled waking a number of times during the night and being conscious that the Applicant was in the room at different times.

32. [230]

    The CCTV footage concerning JS commenced at 10.27 pm on 27 July 2018. At 10.28 pm, the Applicant entered the room and placed the blood pressure monitor on the bed and disconnected the study. He stepped out of the shot briefly before returning to the room and standing next to the bed. He touched his penis before picking up the blood pressure monitor. The Applicant took JS’s right arm and extended it towards the pillow with her right hand hanging slightly off the pillow. The Applicant placed the blood pressure cuff on the complainant’s right arm. He immediately removed his penis from his pants and moved forward, placing his penis against the hand of the complainant. He touched the blood pressure machine and held the arm of JS at the same time whilst looking down at his penis occasionally. The Applicant remained in that position for a period and he touched his penis and placed it on the hand of JS. The Applicant rocked back and forth gently, occasionally looking at his penis (Count 8). The Applicant does not challenge his conviction for this offence.

33. [231]

    The Applicant then walked directly to the foot of the bed and remained there. He lifted up the bed clothes, exposing the feet of JS. At 10.32 pm, the Applicant had his back to the camera. The Applicant moved his arm in the area of his groin. It was the Crown case, based upon the CCTV footage and the tendency evidence, that the Applicant placed his penis on the complainant’s feet (Count 9). It is to be kept in mind that this incident followed closely after the overt sexual acts of the Applicant directed to JS at the other end of the bed, and in circumstances where there appeared to be no legitimate therapeutic purpose for the Applicant being at the foot of the bed exposing the feet of JS. Although the camera view is of the Applicant’s back, his left hand appears to be moving in a manner consistent with touching his penis in very close proximity to the bare feet of JS.

34. [232]

    At 10.33 pm, the Applicant stepped away from the bed. The position of JS’s feet is clearly visible at the foot of the bed where the Applicant had been standing immediately beforehand. The Applicant then moved to the right-hand side of the bed and walked to the headboard. About 30 seconds later, he returned to the feet of JS and stood in the same position (with his back to the camera) and with his body leaning forward over the feet of JS. It was the Crown case, based on the CCTV footage and the tendency evidence, that the Applicant again placed his penis on the complainant’s feet (Count 10). The Applicant then pulled the bed clothes down over the feet of JS and stepped away from the foot of the bed, before returning to the left-hand side of the bed where he once again touched the blood pressure machine.

35. [233]

    The Applicant stretched the right arm of JS over the pillow with the hand again hanging off the pillow. The Applicant’s penis is visible outside his pants. He adjusted the position of JS’s hand and arm so that it was in line with his penis. JS stirred and the Applicant encouraged her to pump her fist, which she did. The Applicant took his right hand off the blood pressure machine and placed it on his penis and fondled his penis whilst touching the wrist of JS with his left hand as if he was taking her pulse (Count 11). The Applicant does not challenge his conviction on Count 11. At 10.35 pm the Applicant removed the blood pressure cuff from her arm before touching and adjusting the headboard and leaving the room.

36. [234]

    In considering the challenges to conviction on Counts 9 and 10, it is appropriate to keep in mind the unchallenged convictions on Counts 8 and 11, which involved overt sexual acts committed by the Applicant toward JS in a very short period of time which preceded and followed the acts giving rise to Counts 9 and 10. The Applicant’s penis was exposed and there was no proper therapeutic reason for the Applicant to be exposing the feet of JS, let alone standing close to her bare feet whilst manipulating himself in his genital area. In my view, it was well open to the jury to find the Applicant guilty on each of Counts 9 and 10 having regard to the totality of the evidence which bears upon those alleged offences, including the tendency evidence.

37. [235]

    The jury found the Applicant not guilty on Count 12 reflecting, once again, consideration of individual charges by the jury and a preparedness to extend the benefit of a reasonable doubt to him concerning individual counts.

38. [236]

    At about 11.18 pm, the Applicant can be seen walking to the right-hand side of the bed where he touched the hand of JS. He turned towards the camera and walked towards the foot of the bed and, as he did so, he touched his penis. The Applicant walked directly to the end of the bed and lifted the bed covers, exposing the feet of JS which he moved towards the end of the bed. JS stirred but appeared to go back to sleep. The Applicant leant forward. At 11.19 pm, the Applicant moved the complainant’s feet together and adjusted his stance and, whilst leaning forward over JS’s feet, appeared to be moving his hands in a manner consistent with the opening of his zipper and with hand movements consistent with touching his penis. Although these movements are viewed with the Applicant’s back facing the camera, it may be readily inferred that he is acting in this way in close proximity to the feet of JS (Count 13). Based upon the CCTV footage and the tendency evidence and the clear sexual interest of the Applicant in JS upon which he had acted earlier that evening, it was well open to the jury to conclude that the Applicant had placed his penis on the feet of JS at this time, in particular when there was no proper therapeutic reason for him to be in close proximity to her bare feet.

39. [237]

    To conclude the counts concerning JS, it is appropriate to note that at 1.36 am on 28 July 2018, the Applicant re-entered the room and walked to the left side of the bed. The Applicant leant forward, bringing his lower torso and groin area in contact with JS’s bottom whilst appearing to adjust a sensor under her nose. This conduct gave rise to the conviction on Count 14 which is not challenged on appeal.

40. [238]

    JS denied that the Applicant spoke to her about “energetic healing” and denied that she had consented to the Applicant placing his penis on any part of her body (T310).

41. [239]

    Once again, it is appropriate to consider the challenged convictions with respect to JS against the background of unchallenged convictions and the totality of the evidence, including the CCTV evidence and tendency evidence. Having considered the totality of the evidence bearing upon these convictions, I am well satisfied that it was open to the jury to find the Applicant guilty with respect to each of Counts 9, 10 and 13 concerning JS.

42. [240]

    LD was 29 years old at the time when she attended the Woolcock Institute for an overnight sleep study on the evening of 3 August 2018.

43. [241]

    After arriving that evening, there was a brief consultation with a medical practitioner before LD was directed to a waiting room where she met the Applicant. He took a number of measurements including her blood pressure. As the Applicant was attaching sensors to her, LD said to him “I’ve bet you’ve seen some interesting stories” and the Applicant told her of a sleep study of one patient who revealed that she repeatedly masturbated during the night without waking up. As the Applicant attached wires to LD’s legs, she stated that he braced her foot against his inner thigh close to his groin (T89).

44. [242]

    LD believed that she went to sleep at about 11.30 pm and woke during the night to the realisation that there was someone behind her. LD stated that she did not give the Applicant consent to do anything to her other than attaching the wires to her body (T95). In cross-examination, LD had no recollection of the Applicant speaking to her about “chakra healing” or “energetic healing” or any sort of alternative treatments and she emphatically denied that she had allowed the Applicant to engage in any form of alternative healing during the sleep study (T101-102).

45. [243]

    It should be kept in mind that the Applicant challenges his conviction on Count 15 only, and does not challenge his convictions on Counts 17, 18, 19 and 20 with respect to LD. The CCTV footage concerning LD commenced at 11.17 pm on 3 August 2018. The Applicant entered the room and turned off the study before pulling back the blanket and taking LD’s right arm from under the sheets. He positioned her hand so that it was hanging off the bed and placed a blood pressure monitor down onto the bed before leaving the room briefly. The Applicant returned to the room shortly thereafter and placed a pillow under LD’s arm. He placed the blood pressure cuff over LD’s hand. The Applicant appeared to touch his penis whilst standing in the immediate vicinity of LD’s hand and leaning forward over it. He remained in this position for over a minute before leaning further forward. He remained in that position until 11.21 pm, at which time he leant back slightly and appeared to be touching the blood pressure cuff on LD’s arm and her hand. The Applicant’s positioning of his body close to LD’s hand appeared to be an unnatural and uncomfortable pose to adopt if he was, in truth, taking her blood pressure. From time to time, the Applicant touched the blood pressure machine with his right hand before removing the cuff at 11.22 pm. This conduct gave rise to Count 15, the conviction for which is challenged on appeal.

46. [244]

    The CCTV footage and the tendency evidence is to be viewed together with the evidence that the taking of blood pressure during the evening was not appropriate procedure during a sleep study. The tendency evidence was of particular importance given the unchallenged convictions of the Applicant for offences in Counts 17, 18, 19 and 20, committed between 12.09 am and 12.15 am on 4 August 2018 with respect to LD. In those offences, the Applicant is, at 12.09 am, standing at the edge of the bed directly next to the complainant’s head and upper body as he fondled his penis whilst looking at her before touching the sheets (Count 17). Soon after, the Applicant moved the blankets to expose LD’s bottom and then touched his penis as he stood next to the bed looking at her, before walking out of the shot and then returning soon after and adjusting the sheets around her feet and moving closer to the side of the bed. The Applicant touched his penis and stepped beside the bed, pushing his hips towards LD’s bottom as he continued to masturbate and then stroking LD’s hair with his hand (Count 18). Soon after again, the Applicant was touching his penis and, whilst holding a torch which he shone on LD’s bottom, he rubbed her bottom with his left hand (Count 19). He then touched his penis again and, at 12.15 am, masturbated whilst leaning forward against her bottom and moving his hips gently back and forth, whilst continuing to masturbate and pressing his groin forward against LD’s bottom, remaining in that position until about 12.18 am (Count 20).

47. [245]

    Although no challenge is made to the convictions with respect to Counts 17, 18, 19 and 20, those unchallenged and clear sexual acts directed to LD were available to the jury in determining whether the Applicant was guilty on Count 15.

48. [246]

    In my view, it was well open to the jury to find the Applicant guilty on Count 15 concerning LD.

49. [247]

    The Applicant does not challenge his conviction on Count 21 for administering an intoxicating substance with intent to commit an indictable offence (aggravated indecent assault) with respect to EB. That offence was committed on 15 August 2018.

50. [248]

    It was open to the jury to have regard to the tendency evidence, including the conduct concerning EB, in reaching verdicts with respect to other counts including the counts for which the Applicant’s convictions are challenged on appeal. It remains appropriate for this Court on appeal to consider the offence concerning EB for tendency purposes in determining the conviction appeal. It is not necessary to say more with respect to this offence, a brief summary of which was given earlier (at [92]-[95] above).

51. [249]

    TH attended an overnight sleep study at the Woolcock Institute on the evening of 29 August 2018. She was 27 years old at that time. Upon her arrival, she spoke briefly to a medical practitioner before meeting the Applicant. The Applicant took various measurements including blood pressure. The Applicant took TH to the room where the sleep study was to take place. He asked her to remove her bra because he said it would interfere with the study and she did so. As noted earlier, this request was inconsistent with proper practice at the Woolcock Institute.

52. [250]

    The Applicant then applied sensors to various parts of TH’s body. As he placed sensors on her chest, the Applicant stood very close to her and she stated that his position made her feel very uncomfortable. After TH got into bed, the Applicant told her that he needed to take her blood pressure again as part of the study. He had not commented on her blood pressure when he had taken it during the initial measurements.

53. [251]

    TH believed that it was late, about 11.30 pm or after, before she went to sleep. Some time after she had fallen asleep, TH woke up and she felt cold. Her singlet had been pulled down and TH could feel that her breasts were bare. She did not open her eyes. TH felt the Applicant’s hands down her top on her breasts and he was “caressing them, kind of fondling them” (Count 22). She was lying on her back and froze and felt as though she could not move. The next thing TH remembered was waking to the feeling of a hand on her underwear. The Applicant’s hand was rubbing her vaginal area in a circular motion as she was lying on her back (Count 24). Once again, she froze. TH recalled waking up on her side on another occasion and noticed the Applicant was standing near her face. The Applicant was touching himself on his “penis area” and he did not say anything. TH was unable to estimate how long the Applicant was touching his penis (Count 25).

54. [252]

    TH was woken by the Applicant about 6.00 am and he told her he was going to disconnect the sensors. She called an Uber and left. When she arrived home, TH told her husband what had happened. She reported the matter to police on 1 September 2018. TH stated that she did not give the Applicant consent to touch her breasts or vagina or to touch his penis in her presence (T220).

55. [253]

    Unlike the evidence concerning other complainants, the evidence with respect to Counts 22, 24 and 25 was given by TH herself with respect to the offences committed by the Applicant against her. The Applicant does not challenge these convictions on appeal. It is important to keep this aspect in mind when considering the challenge to conviction on Count 23 which was based upon events recorded on the CCTV footage.

56. [254]

    The CCTV footage with respect to TH depicted events on 30 August 2018 at 2.18 am (Count 22), 2.54 am (Count 24) and again at 2.54 am (Count 25). The CCTV footage evidence was consistent with, and supportive of, the evidence of TH concerning those offences.

57. [255]

    Count 23 was based upon an incident recorded on the CCTV footage at 2.54 am on 30 August 2018. The Crown alleged that the Applicant touched TH’s lower stomach and groin on her bare skin thereby constituting an offence of aggravated indecent assault. The CCTV footage depicted the Applicant entering the room at 2.53 am and disconnecting the study. The Applicant stood next to the bed and moved the blankets whilst looking at TH. At 2.54 am, he picked up a pillow which he placed under the sheets. The Applicant appeared to reach under the sheets and touch TH with his right hand in the vaginal area as he used his left hand to rearrange the blanket and pillow. It was the Crown case that the Applicant touched the complaint’s lower stomach and groin area on her bare skin (Count 23).

58. [256]

    It is the case that the CCTV footage does not depict directly the Applicant’s hand touching the bare skin of TH’s lower stomach and groin area. However, in considering the challenge to this conviction, it should be borne in mind that the Applicant committed sexual offences immediately thereafter against TH, which gave rise to the unchallenged convictions on Counts 24 and 25. In addition, the Applicant had acted in an overtly sexually and criminal way towards TH about half an hour earlier (Count 22).

59. [257]

    It would be erroneous to consider the acts relied upon concerning Count 23 in isolation. The Applicant had demonstrated a clear sexual interest in his female patient, TH, which he had acted upon both before and after Count 23. Further, there appeared to have been no legitimate therapeutic reason for the Applicant lifting the bed clothes and placing a pillow under the sheets, whilst touching TH at all, let alone in the groin area. Having regard to the totality of the evidence including the oral evidence of TH, the CCTV evidence, the tendency evidence and the evidence concerning the lack of any legitimate therapeutic purpose for the Applicant touching TH at this time, it was well open to the jury to be satisfied beyond reasonable doubt that the Applicant touched the complainant’s lower stomach and groin area on her bare skin, at a time when he was manipulating a pillow under the sheets for no proper and permissible purpose.

60. [258]

    Having undertaken an independent assessment of the evidence adduced at the trial, it was well open to the jury to be satisfied beyond reasonable doubt that the Applicant was guilty on each of the counts in relation to which the conviction is challenged on appeal.

61. [259]

    The Applicant has failed to make good his appeal against conviction with respect to any of the counts challenged in this Court. Although I would grant the Applicant leave to appeal against conviction, the appeal against conviction should be dismissed.

Crown Appeal Against Sentence

1. [260]

   As the conviction appeal is unsuccessful in its entirety, it is appropriate to turn next to the Crown appeal against sentence.

2. [261]

   As mentioned earlier, the sentencing Judge passed sentence on 9 October 2020 whereby the Applicant was sentenced to an aggregate term of imprisonment for six years, comprising a non-parole period of three years and nine months commencing on 25 September 2020 and expiring on 24 June 2024 with an additional term of two years and three months commencing on 25 June 2024 and expiring on 24 September 2026.

3. [262]

   In accordance with ss.53A(2) and 54B(4) Crimes (Sentencing Procedure) Act 1999, the sentencing Judge nominated indicative sentences. The following table identifies the offence, the finding of objective seriousness made by the sentencing Judge, together with the maximum penalty, standard non-parole period and indicative sentence for each offence:

Grounds of Appeal

1. [263]

   By Amended Notice of Appeal filed 12 May 2021, the Crown relied upon the following grounds of appeal:

The Sentence Hearing

1. [264]

   Following the verdicts delivered on 6 July 2020, a sentencing hearing took place on 25 September 2020. Victim impact statements from EB, TH and CS, the mother of JS, were tendered on sentence, with TH reading her victim impact statement to the Court.

2. [265]

   A report of Dr Katie Seidler, psychologist, dated 9 September 2020 was tendered in the defence case on sentence together with a number of references.

3. [266]

   Both the Crown and trial counsel for the Applicant furnished written submissions on sentence. Counsel addressed the Court on sentence, after which her Honour remanded the Applicant in custody for sentence on 9 October 2020.

The Sentencing Remarks

1. [267]

   Having regard to the grounds of appeal, it is appropriate to set out parts of the sentencing remarks.

2. [268]

   Early in the sentencing remarks, her Honour summarised the facts of the offences (ROS2-8) in the manner summarised earlier in this judgment (see [64]-[103]).

3. [269]

   The sentencing Judge referred to the victim impact statements made by EB, TH and the mother of JS and agreed with the Crown submission that “they speak eloquently of the devastating and deleterious effect on them of the offender’s offending” with those matters being taken into account pursuant to s.3A Crimes (Sentencing Procedure) Act 1999 (ROS8). Her Honour observed that HMF and LD had not provided victim impact statements, but observed “I have no doubt that they have been similarly traumatised by the offender’s behaviour” (ROS8).

4. [270]

   Her Honour summarised the submissions of the Crown and counsel for the Applicant concerning the objective seriousness of the offences (ROS8-10).

5. [271]

   Her Honour then moved to make assessments of the objective seriousness of the offences, in a manner which is challenged (concerning some counts) in the first ground of appeal (ROS10-12):

6. [272]

   The sentencing Judge then addressed the Applicant’s subjective circumstances which included the following personal history (ROS12-13):

7. [273]

   Her Honour referred to letters of support from the Applicant’s wife and friends of the Applicant who spoke of him in positive terms. Reference was made to the report of Dr Seidler who noted, amongst other things, that the Applicant’s “understanding of consent” was “sophisticated” and “that he did not endorse any attitudes consistent with sexual abuse” and that “he demonstrated some insight into the possible effects of victims of sexual abuse” (ROS14).

8. [274]

   Her Honour referred further to the report of Dr Seidler (ROS14-15):

9. [275]

   Once again, having regard to the second ground of appeal, it is appropriate to set out her Honour’s summary of competing submissions concerning the prior good character of the Applicant (ROS15-16):

10. [276]

    Her Honour then addressed a number of these submissions in the following way (ROS16):

11. [277]

    The sentencing Judge found special circumstances “to ensure he is supervised in the community for a lengthy period” (ROS17).

12. [278]

    Reference was made to further matters taken into account on sentence (ROS17-18):

13. [279]

    Her Honour then announced the indicative sentences to be attached to each count, before imposing the aggregate sentence of imprisonment of six years with a non-parole period of three years and nine months commencing on 25 September 2020. In light of the finding of special circumstances, the non-parole period represented 62.5% of the aggregate term of imprisonment.

Ground 1 – Her Honour Erred in the Assessment of Objective Seriousness of Counts 3, 4, 6, 17, 21 and 25

1. [280]

   The Crown acknowledged that the assessment of objective seriousness of an offence was quintessentially a matter for the sentencing Judge, but submitted that the characterisation of the objective seriousness of Counts 3, 4, 6, 17, 21 and 25 was not open in this case: Mulato v R [2006] NSWCCA 282 at [37]; Franklin v R [2019] NSWCCA 325 at [72]-[73].

2. [281]

   The Crown submitted that the sentencing Judge’s characterisation of Counts 3, 4 and 6 as being “relatively low-level examples” of offences under s.61M(1) Crimes Act 1900 was not open in the circumstances of this case, nor was the identical finding concerning Counts 17 and 25, being offences under s.61O(1A) Crimes Act 1900. In relation to Count 21, the offence under s.38(a) Crimes Act 1900, the Crown submitted that it was not open to the sentencing Judge to assess this offence as falling “below the mid range of objective seriousness but not appreciably so”.

3. [282]

   The Crown accepted that it was open to the sentencing Judge to find that Counts 3, 4, 6, 17 and 25 were less objectively serious than the remaining counts under s.61M(1) Crimes Act 1900, bearing in mind the nature of the physical contact involved in that group of offences. The Crown submitted, however, that the nature and degree of the physical contact involved, whilst being of considerable significance in assessing the objective seriousness of an offence, “is not the start or the end of the assessment”: Bray v R [2018] NSWCCA 301 at [28].

4. [283]

   It was submitted that a critical component of the assessment of objective seriousness is an examination of the circumstances in which each offence was committed. It was said that the Applicant committed each of the offences in the course of his employment as a medical professional engaged to monitor sleep studies and, in committing the offences, he abused the authority he held by virtue of that position. This was a gross breach of the trust placed in the Applicant by each of the complainants. The Crown submitted that this circumstance was of major significance in this case and served to elevate the objective seriousness of the offences.

5. [284]

   The Crown submitted that the nature of the position of authority held by the Applicant, and his abuse of that position, made each of these offences serious examples of aggravated indecent assault offences. His position of authority provided opportunity for the Applicant to commit the offences, and the use of legitimate tasks associated with his position, such as taking blood pressure and checking and adjusting leads and sensors, masked his sexual offending.

6. [285]

   The Crown referred to the sentencing Judge’s comparison of the Applicant’s position of authority with “the position of a parent, teacher or principal” (see [271] above). It was submitted that this comparison was erroneous bearing in mind the nature of the position of authority occupied by the Applicant and the manner in which he abused it. Whilst not asserting that this was a patent error itself, the Crown submitted that it served to explain why the sentencing Judge made an assessment of the objective seriousness of Counts 3, 4, 6, 17 and 25 that was not open on the evidence.

7. [286]

   The Crown pointed to the finding of the sentencing Judge that each complainant was vulnerable and that, with the exception of TH, was asleep or in such a state that they were unaware of the offences taking place. Reference was made to Dr Seidler’s observation that the Applicant had “a sophisticated knowledge of consent”. The Crown submitted that the Applicant’s moral culpability for the offences was high and it was noted that the sentencing Judge made no reference to moral culpability in the sentencing remarks.

8. [287]

   The Crown submitted that each of the offences took place as part of a course of conduct, both in relation to the particular complainant and more broadly in the context of ongoing offending over a six-week period, and that this was a factor which bore upon the assessment of the objective seriousness of each of the offences: LN v R [2020] NSWCCA 131 at [31]-[60]; Einfeld v R (2010) 200 A Crim R 1; [2010] NSWCCA 87 at [146]-[148].

9. [288]

   It was submitted that these features had the combined effect of rendering each offence of significant seriousness, regardless of the nature of the physical act involved. Having regard to all factors, the Crown submitted that it was not open to the sentencing Judge to find that the s.61M(1) offences in Counts 3, 4 and 6, or the s.61O(1A) offences in Counts 17 and 25 were “relatively low-level examples” of offences of their kind.

10. [289]

    With respect to Count 21, the offence under s.38(a) Crimes At 1900, the Crown noted that the nature of the physical act (and its duration) varied as between the counts for which the Applicant was convicted. The fact that the Applicant acted differently in relation to Count 21 by administering an intoxicating substance which he knew would alter EB’s level of consciousness, justified a conclusion that the intended act fell towards the more serious end of the spectrum of physical acts committed by the Applicant.

11. [290]

    The Crown submitted that the Applicant’s abuse of his position of authority and trust was extremely serious, in that he inveigled EB into drinking orange juice that contained the substance by representing that there was a medical imperative to do so, to address what he said was her low blood pressure. It was submitted that the administration of the substance not only made EB more vulnerable, but also put her at risk of complications caused by the medication. It was submitted that the degree of deliberation involved in this offence was high and it was not an offence committed spontaneously or impulsively. Given the absence of substances of this type from the Woolcock Institute, it was submitted that the Applicant brought the intoxicating substance with him to work.

12. [291]

    In all those circumstances, the Crown submitted that it was not open to the sentencing Judge to characterise the objective seriousness of Count 21 as “below the mid range but not appreciably so” and that those considerations required a finding that the offence fell, at least, within the mid-range for offences of that kind, if not above.

13. [292]

    The Crown did not challenge, as amounting to patent error, the sentencing Judge’s assessment of the objective seriousness of the remaining offences beyond those specified in this ground of appeal. It was accepted that a sentencing court is not required to express an assessment of objective seriousness by reference to a position within a range or by resorting to mathematical terminology: FL v R [2020] NSWCCA 114 at [59]-[60]. That said, the Crown submitted that the indicative sentences specified in relation to the other offences were themselves manifestly inadequate in that they fell far short of adequately addressing the objective seriousness of those offences, with this argument being developed further in support of the third ground of appeal which claimed manifest inadequacy in the aggregate sentence.

14. [293]

    Ms Paingakulam emphasised the discretionary nature of a finding of objective seriousness: Mulato v R at [37]; Brown v R [2014] NSWCCA 215 at [68].

15. [294]

    With respect to the s.61M(1) and s.61O(1A) Crimes Act 1900 offences in Counts 3, 4, 6, 17 and 25, it was submitted that it was open to the sentencing Judge to make the findings challenged in the first ground of appeal. It was open to the sentencing Judge to have regard to the more limited physical contact on the part of the Applicant in making the findings of objective seriousness with respect to these counts.

16. [295]

    In response to the Crown’s emphasis upon the Applicant’s abuse of authority, it was submitted that the sentencing Judge accepted the defence submission that the most significant factor in the sentencing exercise was the gross breach of trust (ROS11 at [271] above). Whilst that concept was distinct from an abuse of authority, it was submitted that there was some overlap between the concepts of breach of trust and abuse of authority so that it was necessary to avoid double counting in that regard: MRW v R [2011] NSWCCA 260 at [78].

17. [296]

    Counsel for the Applicant disputed the Crown’s use of the term “medical professional” to describe the Applicant as he was working as a sleep technician at the time of these offences and not as a medical practitioner. It was submitted that the sentencing Judge had regard to the vulnerability of the victims and also the fact that the offences formed part of a course of conduct on the Applicant’s behalf.

18. [297]

    With respect to Count 21, it was submitted that the finding of objective seriousness made by the sentencing Judge was open in the circumstances of the case. Her Honour had regard to the vulnerability of the victim, and it was said that the risk of complications caused by the intoxicating substance was inherent in the nature of the offence. It was submitted that the commonly prescribed sleeping pill that was used in this offence was not an illicit or otherwise particularly dangerous substance.

19. [298]

    It was acknowledged that the fact that the victim of the s.38(a) Crimes Act 1900 offence was a patient at the Woolcock Institute was plainly relevant to its seriousness. However, also relevant was the fact that the serious indictable offence which the Applicant sought to commit upon the intoxicated victim was a s.61M(1) Crimes Act 1900 offence which carried a maximum penalty of imprisonment for seven years. There were more serious indictable offences that the Applicant could have sought to commit, but it was necessary that he be sentenced for the offence for which he was convicted which specified “aggravated indecent assault” as being the intended indictable offence.

20. [299]

    It was submitted, as well, that the aggravated indecent assault offence which the Applicant intended to commit against EB was not of the most serious kind. Rather, it was of a type reflected in the other s.61M(1) offences committed which involved brief touching of the complainant.

21. [300]

    Counsel for the Applicant submitted, as well, that the sentencing Judge had erred, in a manner adverse to the Applicant, by finding that he had administered two different sleeping pills to the victim (see [95] above). It was submitted that the evidence at trial was that Oxazepam was a metabolite of Temazepam so that the body converts some of the latter into the former which is then readily detectible in urine. On that basis, it was submitted that it was not open to the sentencing Judge to find that the Applicant had administered two separate drugs to the victim.

22. [301]

    In summary, with respect to the first ground of appeal, Counsel for the Applicant submitted that the impugned findings were open to the sentencing Judge both in the circumstances of this case and, with respect to Count 21, after correction of the factual error which had allegedly been made concerning the administration of two drugs. It was submitted that the first ground of appeal should be rejected.

23. [302]

    Her Honour was sentencing the Applicant for a combination of offences, some with standard non-parole periods (the s.61M(1) offences) and some without (the s.61O(1A) offences and the s.38(a) offence). The findings of “objective seriousness” made by the sentencing Judge did not involve the narrower and technical meaning of “objective seriousness” concerning standard non-parole period offences: Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247 at [110].

24. [303]

    Rather, the findings reflected the requirement to make an assessment of objective gravity mentioned in Tepania v R at [112]:

25. [304]

    An assessment of moral culpability frequently accompanies an assessment of objective gravity, with these concepts overlapping in certain respects. It was said in Tepania v R at [119]:

26. [305]

    The sentencing Judge did not refer to the Applicant’s moral culpability in the sentencing remarks.

27. [306]

    With respect to the offences under s.61M(1) Crimes Act 1900 in Counts 3, 4 and 6, the sentencing Judge characterised each offence as being a “relatively low-level example” of an aggravated indecent assault offence. The maximum penalty for a s.61M(1) offence is imprisonment for seven years with a standard non-parole period of five years. For each of these offences, the sentencing Judge nominated an indicative sentence of nine months’ imprisonment with a non-parole period of six months.

28. [307]

    Counts 17 and 25 were offences of aggravated act of indecency under s.61O(1A) Crimes Act 1900 which carries a maximum penalty of imprisonment for three years with no standard non-parole period. For each of these offences, the sentencing Judge nominated an indicative sentence of imprisonment for six months.

29. [308]

    For Count 21, the s.38(a) Crimes Act 1900 offence, the sentencing Judge characterised the offence as being “below the mid range of objective seriousness, but not appreciably so”. The maximum penalty for this offence is imprisonment for 25 years with no standard non-parole period. The sentencing Judge nominated an indicative sentence of imprisonment for four years for this offence.

30. [309]

    With respect to the s.61M(1) offences, the circumstances of aggravation relied upon in each count was that the victim was under the authority of the Applicant: s.61M(3)(c) Crimes Act 1900. That authority flowed from the position of the Applicant as a sleep technician into whose care each of the victims had been placed, in an isolated room, for the purpose of a nocturnal study which would require the Applicant to be alone with each victim on occasions and to come into physical contact with each of them for the purpose of carrying out the sleep study.

31. [310]

    It may be an aggravating factor on sentence if the offender abused a position of trust or authority in relation to the victim: s.21A(2)(k) Crimes (Sentencing Procedure) Act 1999. It has been recognised that breach of trust and abuse of authority may be overlapping features of an offence and that caution is required to avoid inappropriate double counting of these factors. In MRW v R, Bathurst CJ (James J and myself agreeing) said at [77]-[78]:

32. [311]

    In Mohindra v R [2020] NSWCCA 340, Basten JA (with the agreement of Davies J and myself) said at [25]:

33. [312]

    The gravity of the breach of trust and abuse of authority will depend upon an examination of the circumstances of the particular case. It is not especially helpful to compare a situation such as this where the Applicant exercised a degree of control and authority (with associated trust) over patients during a nocturnal sleep study with general concepts of trust and authority involving parents and teachers (see [271] above). To that extent, the sentencing Judge’s comparators were not particularly useful.

34. [313]

    A closer scenario for present purposes, when assessing the degree of breach of trust and abuse of authority, concerns persons in health-related professions who indecently assault patients under the guise of treatment. Offences of this type attract the aggravating circumstances which the Crown has emphasised on this appeal.

35. [314]

    In Jung v R [2017] NSWCCA 24, this Court considered a sentence appeal by a physiotherapist who had committed several offences of indecent assault under s.61L Crimes Act 1900 against several patients during treatment. In the course of dismissing the sentence appeal, the Court said at [59]-[60]:

36. [315]

    It is correct that the Applicant, when acting as a sleep technician was not a “registered health practitioner” within the meaning of the Health Practitioner Regulation National Law 2009. To the extent that he was working as a sleep technician, he would be characterised as an “unregistered health practitioner” who was still subject to the Code of Conduct for Unregistered Health Practitioners issued under Schedule 3 of the Public Health Regulation 2012. Even as an “unregistered health practitioner”, the Applicant was required (under Clause 3(1) of Schedule 3) to provide health services in a “safe and ethical manner”. Importantly, the Applicant was also a registered medical practitioner in July and August 2018, although he was not working in that capacity at the Woolcock Institute. The Applicant had been trained as a medical practitioner, and had knowledge of the effect of medications (including Temazepam) and an understanding of ethical responsibility to patients. Put simply, he was not merely a sleep technician, although that was the function he was exercising when he committed the offences. This aspect served to heighten the objective seriousness of these offences and the Applicant’s moral culpability with respect to them.

37. [316]

    It is, of course, correct that the physical conduct involved in a particular s.61M(1) offence is important to an assessment of objective seriousness. In Bray v R, R A Hulme J (Macfarlan JA and Rothman J agreeing) said at [32]:

38. [317]

    In Zhao v R [2019] NSWCCA 203, Price J said at [86]:

39. [318]

    In Bray v R, RA Hulme J referred to EJDG v R [2012] NSWCCA 251, where Latham J (McClellan CJ at CL and Fullerton J agreeing) said at [27]-[28]:

40. [319]

    Assessment of objective seriousness of an offence is not confined to the physical acts of the offender, with the relationship between the offender and victim being important as well: Waterfall v R [2019] NSWCCA 281 at [33]-[35]. The degree of abuse of authority which is contained within a s.61M(1) offence is also of importance. To the extent that breach of trust operates as an additional aggravating feature of an offence (under s.21A(2)(k)), it is necessary to factor that aspect in as well without double counting it inappropriately (see [309]-[315] above).

41. [320]

    I have kept in mind the discretionary nature of the finding as to objective seriousness made by the sentencing Judge with respect to the counts challenged in the first ground of appeal. Her Honour referred to features which bore upon that assessment, including the physical acts of the Applicant and the position and status which he occupied in each case concerning the victim. The Court should be cautious in seeking to intervene when a challenge is made to a finding of objective seriousness.

42. [321]

    However, I am satisfied that there is a significant disconnect between the recital of the facts of each of the s.61M(1) offences in Counts 3, 4 and 6 and the characterisation of each offence as being a “relatively low-level example” of an aggravated indecent assault offence. This conclusion is fortified by the indicative sentence nominated for each of these offences in circumstances where that indicated sentence is, of course, undiscounted by operation of a plea of guilty.

43. [322]

    The characterisation of each of these offences as a “relatively low-level example” of a s.61M(1) offence does not reflect the very significant abuse of authority involved by reference to the Applicant’s position as a sleep technician, to whom the care of each victim was entrusted for the purpose of therapeutic testing in a private setting overnight. The abuse of authority and breach of trust was substantial including the Applicant using his access to the victim to commit aggravated indecent assault offences whilst pretending to provide therapeutic care to each person.

44. [323]

    I accept the Crown submission that it was not open to the sentencing Judge to characterise each of these offences as being “relatively low-level examples” of s.61M(1) offences, so that the findings challenged in this ground of appeal were not open in all the circumstances of the case.

45. [324]

    The two offences under s.61O(1A) Crimes Act 1900 (Counts 17 and 25) were also characterised by the sentencing Judge as being “relatively low-level examples” of aggravated act of indecency offences. The nominated indicative sentence in each case, as against a maximum penalty of imprisonment for three years, was six months’ imprisonment.

46. [325]

    Once again, the circumstance of aggravation for these offences was the fact that the victim was under the authority of the Applicant at the time of the offence: s.61O(3)(b) Crimes Act 1900.

47. [326]

    The analysis concerning abuse of authority and breach of trust with respect to s.61M(1) offences set out earlier (at [309]-[315]) applies equally to these offences. It was, of course, important to have regard to the physical conduct of the Applicant in committing each of these offences. However, that was part only of the matters to be taken into account in assessing objective seriousness. Her Honour had regard to the circumstances in which the Applicant occupied a position of authority concerning each victim and breached trust in that respect.

48. [327]

    However, an assessment of the objective seriousness of these offences, which had regard to the serious breach of trust and abuse of authority in this case, was not capable of giving rise to a finding that Count 17 and Count 25 were “relatively low-level examples” of aggravated act of indecency offences. It was not open to the sentencing Judge to reach that finding which was then reflected in the low indicative sentence nominated for each offence.

49. [328]

    The finding concerning Count 21, the s.38(a) Crimes Act 1900 offence, was that the offence lay “below the mid range of objective seriousness but not appreciably so”. An indicative sentence of four years’ imprisonment was nominated as against a maximum penalty of imprisonment for 25 years.

50. [329]

    It was appropriate for the sentencing Judge to have regard to the nature of the intoxicating substance administered to the victim as well as the intended indictable offence. The intoxicating substance in this case was likely a single drug (Temazepam) with Oxazepam being detected as a metabolite of Temazepam. It was possible that the two drugs were administered to EB but the more likely scenario was that a single drug was used by the Applicant.

51. [330]

    However, little turns on the question whether one or two drugs were used by the Applicant to stupefy EB. He had brought the drug into the Woolcock Institute and administered it to the victim. He utilised his medical knowledge in so acting.

52. [331]

    Nor do I consider that the Applicant is assisted by an argument that he was not a “medical professional”, a term relied upon by the Crown in submissions, but resisted by counsel for the Applicant. As noted earlier (at [58]), it was the case that the Applicant had qualified as a medical practitioner in Iran and had been registered in June 2018 as a medical practitioner in New South Wales. The Applicant possessed training and experience concerning the use of drugs which he utilised for the purpose of the commission of this offence. He may not have been holding himself out as a medical practitioner at the time when this offence was committed, although he did mention to more than one victim that he was a medical practitioner. However, he utilised knowledge which he had as a medical practitioner for the purpose of drugging EB with the intention of sexually exploiting her during the course of the overnight sleep study.

53. [332]

    Unlike the offences under s.61M(1) and s.61O(1A), it was not an element of the offence under s.38(a) Crimes Act 1900 that the offence was committed whilst the victim was under the authority of the Applicant. Accordingly, it was necessary for the sentencing Judge to give full weight to the aggravating factor contained in s.21A(2)(k) Crimes (Sentencing Procedure) Act 1999 when sentencing the Applicant for this offence.

54. [333]

    This was a very serious aggravating factor on sentence. In this case, the Applicant drugged EB, a 19-year old woman, who was present at the Woolcock Institute for the purpose of an overnight sleep study. The Applicant’s motive for drugging EB was to make it easier for him to sexually abuse her during the sleep study, at a time when she was entitled to feel free from the risk of sexual molestation by the person expected to care for her during this medical procedure. The objective gravity of this offence was substantial as was the Applicant’s moral culpability.

55. [334]

    It was relevant that the intended offence was aggravated indecent assault under s.61M(1) Crimes Act 1900. It is true that there may be more serious indictable offences intended as part of a s.38(a) offence. However, this was a serious example of a s.38(a) offence given the position of trust and authority occupied by the Applicant, in the performance of a medical test, and the particular vulnerability of EB, a young woman undertaking a sleep study to assist with medical treatment.

56. [335]

    The Applicant’s s.38(a) offence involved planned criminal activity involving the administration of a drug with the intention of exploiting the victim sexually: Zahorsky v R [2013] NSWCCA 268 at [61]. This was not a case of a medical practitioner committing an unplanned s.38(a) offence in a private setting away from medical practice: Kearsley v R (2017) 265 A Crim R 233; [2017] NSWCCA 28 at [15], [84]-[85], [108], [127].

57. [336]

    It is difficult to align the narrative of the Count 21 offence with a conclusion that the objective seriousness of the offence lay “below the mid range of objective seriousness but not appreciably so”.

58. [337]

    I have kept in mind the discretionary nature of the assessment and the principles discussed in Mulato v R and later authorities. A conclusion that a particular finding was not open involves satisfaction of a demanding test. In my view, it was not open to the sentencing Judge to find that the s.38(a) offence lay below the mid-range of objective seriousness.

59. [338]

    I am satisfied that the findings of objective seriousness with respect to Counts 3, 4, 6, 17, 21 and 25 were not open to the sentencing Judge in this case having regard, in particular, to the importance of the Applicant’s position of authority and trust which was breached in a substantial way on each occasion.

60. [339]

    I would uphold the Crown’s first ground of appeal.

Ground 2 – Her Honour Erred by Failing to Provide Reasons as to how the Applicant’s Prior Good Character was taken into Account

1. [340]

   The Crown pointed to the finding by the sentencing Judge that, prior to these offences, he was a person of good character and well regarded by his family, friends and colleagues (ROS16 at [276] above). The Crown submitted that her Honour did not return to the issue of good character nor provide insight into the weight afforded to that factor on sentence.

2. [341]

   It was submitted that the sentencing Judge had determined that the Applicant was of good character prior to the commission of the offences, but that her Honour had not determined the weight to be given to that factor in mitigation of sentence in the manner referred to in Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 at [23]; BG v R [2020] NSWCCA 295 at [9]-[13].

3. [342]

   The Crown noted that the parties had made competing submissions in the District Court as to the significance of the Applicant’s prior good character. The Crown had submitted that the Applicant’s good character should carry less weight because it enabled his access to the position at the Woolcock Institute and the victims and facilitated his offending. Trial counsel for the Applicant submitted that the Applicant was a well-functioning member of the community who had achieved much and that the offending ought be seen as an aberration in the life of a man of otherwise good character who was well regarded by his family, friends and colleagues.

4. [343]

   The Crown submitted that it was well established that where an offender’s good character enabled him to be in a position where he could offend against his victims, the weight to be afforded to good character should be moderated: Jung v R at [56]-[58]. It was submitted that application of correct legal principle required that the weight to be afforded to the Applicant’s prior good character be moderated in this case.

5. [344]

   The Crown submitted that sentencing remarks must be adequate to demonstrate the absence of a real possibility that the Judge failed to apply correct legal principle: Lee v R [2016] NSWCCA 146 at [26]. It was submitted that the sentencing remarks in this case did not satisfy this requirement. It was noted that the remarks on sentence were not delivered ex tempore, but by way of a reserved judgment. The Crown argued that the failure to give proper reasons was an error of law which warranted intervention by the Court.

6. [345]

   Counsel for the Applicant noted the finding with respect to good character made by the sentencing Judge (ROS15-16 at [275]-[276] above) and submitted that her Honour made that finding as part of an instinctive synthesis exercise, with the trial Judge ascribing weight to that factor in all the circumstances of the case.

7. [346]

   It was noted that the sentencing Judge had referred to the submissions made by each party with respect to the Applicant’s prior good character and, after finding that he had been a person of good character, the Court moved to address the question of weight to be given to that finding. The Applicant relied upon Kahler v R [2021] NSWCCA 40 at [60]-[61] in support of a submission that her Honour’s approach to good character in this case was sufficient. It was submitted that her Honour’s reasons indicated that limited weight was to be given to the Applicant’s prior good character, having regard to a number of features, including the opinion of Dr Seidler concerning relevant issues.

8. [347]

   Insofar as the Crown sought to rely upon cases with respect to registered health professionals, such as Jung v R, counsel for the Applicant submitted that those authorities were of limited assistance. It was submitted that the Applicant was working as a sleep technician, and the role that he was performing was not one that was subject to professional registration and the good character requirements that go with it, so that what was said in Jung v R at [56]-[57] concerning registered health professionals was clearly distinguishable.

9. [348]

   Although it was undoubtedly the case that the patients at the Woolcock Institute were entitled to assume that the Applicant was a person who could be trusted to touch them only for purposes connected to the sleep study, it was submitted that the function which he was exercising required no more demonstration of good character than that of a masseur treating patients. In this way, it was submitted that the weight to be given to the Applicant’s prior good character was not reduced in similar fashion to that which would operate with respect to registered health professionals.

10. [349]

    In considering this ground of appeal, it is necessary to read fairly what the sentencing Judge said with respect to the Applicant’s prior good character and the role which it played on sentence.

11. [350]

    The Crown accepted that her Honour was entitled to have regard to the Applicant’s prior good character, but that reasons as required by law were not provided to explain the weight to be given to his prior good character in the circumstances of the case.

12. [351]

    There is no prescriptive formula of words which is required to fulfil this requirement in sentencing remarks. The requirement referred to by McHugh J in Ryan v The Queen concerning the weight to be given to good character may be satisfied by express words or necessary implication: Kahler v R at [61]. The qualifications or reservations about the Applicant expressed by the sentencing Judge operated in this way.

13. [352]

    It is appropriate to keep in mind, as the Crown observed, that Mr O’Brien explained that the fact that the Applicant was a trained general practitioner was relevant to the decision to recruit him as a sleep technician to work at the Woolcock Institute (see [124] above). It remains the case, however, that the Applicant (in his capacity as a sleep technician) was not a registered health practitioner who was subject to the Health Practitioner Regulation National Law which applied to others, including medical practitioners and physiotherapists: Jung v R at [56]-[57].

14. [353]

    That said, the Applicant was working in a responsible health-related activity caring for patients, on a one-to-one basis, during overnight sleep studies. There were technical skills required of him in the discharge of his duties which included various forms of health checks and the application and use of sensors to be attached to the bodies of patients. The Applicant used his training as a medical practitioner in carrying out these functions. The fact that the Applicant was not a registered health professional does not remove from consideration entirely the principles referred to in Jung v R.

15. [354]

    To the extent that comparisons assist, the principles in Ryan v The Queen, as they apply in a health-related setting, operate more strongly with respect to a sleep technician such as the Applicant than a person who is providing massage services only. That person is not operating technical health-related equipment, which monitors various features of the patient, of the type operated by the Applicant with these victims.

16. [355]

    Although a fuller statement of the way in which the sentencing Judge was dealing with the Applicant’s prior good character (and the weight to be given to it) may have been preferable in this case, I am not satisfied that the Crown has made good this ground of appeal which asserts that her Honour erred in law in not giving reasons with respect to the weight to be given to prior good character in this case.

17. [356]

    I would not uphold the second ground of appeal.

Ground 3 – The Sentence Pronounced was Manifestly Inadequate

1. [357]

   The Crown pointed to the maximum penalties for each of the classes of offences for which the Applicant was found guilty, and the standard non-parole period which applied to the s.61M(1) offences, although noting the curious relationship between the standard non-parole period and the maximum penalty for that class of offence: cf Corby v R [2010] NSWCCA 146 at [71].

2. [358]

   Assessed against the legislative guideposts set by the maximum penalties and the standard non-parole period, the Crown submitted that the indicative sentences specified for each of the offences was manifestly inadequate and, in combination with an inadequate degree of notional accumulation, contributed to the imposition of a manifestly inadequate aggregate sentence which fell markedly short of addressing the totality of the Applicant’s criminality.

3. [359]

   It was noted that the Applicant had proceeded to trial so that there was no discount for the utilitarian value of guilty pleas and that he had not displayed remorse or contrition. The Crown noted that the Applicant did not suffer from any mental or physical health conditions. Whilst the sentencing Judge took into account, as extra-curial punishment, the fact that the Applicant will almost certainly never practise medicine in Australia, the Crown submitted that the weight to be afforded to that factor was to be assessed in light of the seriousness of the offences. It was submitted that the Applicant must have known that the commission of sexually motivated offences against young women in his care would, sooner or later, bring his professional career to an end.

4. [360]

   The Crown submitted that the Applicant’s subjective case was largely unremarkable.

5. [361]

   Whilst acknowledging that the indicative sentences are not themselves amenable to appeal, the Crown submitted that they may be a guide as to whether there is error in the aggregate sentence: JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [40].

6. [362]

   The Crown submitted that examination of the indicative sentences revealed that the sentencing discretion had miscarried for two reasons:

7. [363]

   The Crown submitted that the significance of the manifestly inadequate indicative sentences was compounded by the extent of notional accumulation as between the 22 counts. It was necessary for the notional accumulation to reflect the number of victims and offences: R v Gommeson (2014) 243 A Crim R 534; [2014] NSWCCA 159 at [109]. It was submitted that the aggregate sentence imposed did not reflect the degree of notional accumulation required when sentencing for 22 offences committed against five separate victims.

8. [364]

   The Crown pointed to the indicative sentence of imprisonment for four years on Count 21, compared with an aggregate head sentence of imprisonment for six years, in support of a submission that the aggregate sentence did not reflect the criminality with respect to the other four victims.

9. [365]

   It was submitted that the inadequacy of the aggregate sentence was further compounded by the extent of the finding of special circumstances, which gave rise to the non-parole period which constituted 62.5% of the head sentence. The Crown submitted that the need for general deterrence and denunciation was important, relying upon what was said in Jung v R in this respect, whether the person being sentenced is a medical practitioner, a physiotherapist or sleep technician undertaking duties of the type performed by the Applicant.

10. [366]

    The Crown submitted that the aggregate sentence was manifestly inadequate in all the circumstances of the case.

11. [367]

    Counsel for the Applicant submitted that the sentencing Judge had regard to the number of offences and victims in undertaking the process of notional accumulation leading to the aggregate sentence of imprisonment imposed on the Applicant. It was submitted that a number of favourable findings had been made concerning the Applicant’s subjective circumstances and background which were factored into the sentence imposed.

12. [368]

    It was submitted that, in setting an aggregate sentence, the sentencing Judge did not need to assess a precise degree of accumulation, but to assess what was appropriate to reflect the totality of criminality in all the offending: Vaughan v R [2020] NSWCCA 3 at [117]. It was submitted that this is what the sentencing Judge did in this case.

13. [369]

    The Applicant submitted that the finding of special circumstances was open and that the Crown had not succeeded in establishing that the aggregate sentence was manifestly inadequate.

14. [370]

    By asserting manifest inadequacy, the Crown alleges that the result embodied in the aggregate sentence of imprisonment was unreasonable or plainly unjust. To make good this ground, the Court must be satisfied that error occurred in the sentencing Judge’s approach giving rise to this sentence, or in the outcome itself, so that the Court should conclude that the aggregate sentence imposed was manifestly too short: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6].

15. [371]

    In order to uphold this ground, this Court should conclude that there must have been some misapplication of principle, even though where and how that occurred is not apparent from the remarks on sentence: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. A claim of manifest inadequacy of sentence requires consideration of all of the matters that are relevant to the fixing of sentence: Hili v The Queen at [60].

16. [372]

    In considering the first ground of appeal, I have already found error in findings concerning objective seriousness made by the sentencing Judge. The conclusion with respect to the first ground of appeal relates to a limited number of offences only. However, in determining a claim of manifest inadequacy, I will keep in mind the conclusion reached with respect to that ground of appeal.

17. [373]

    The maximum penalty for each category of offence, and the standard non-parole period applicable to the 19 offences under s.61M(1) Crimes Act 1900, were important legislative guideposts for the purpose of sentence: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]. Although there is some tension arising from the curious relationship between the maximum penalty (imprisonment for seven years) and the standard non-parole period (imprisonment for five years) for the s.61M(1) offences, it remains the responsibility of the Court to give proper attention to the standard non-parole period when sentencing for offences in this class: Corby v R at [71].

18. [374]

    It is also necessary to keep in mind the limitations of the Applicant’s subjective case on sentence. It was the case that the Applicant could rely upon prior good character, including the absence of criminal convictions, and the evidence of his family and those who knew him which was before the sentencing Judge. However, there was no evidence of contrition or remorse or any discount to be extended to the Applicant arising from the utilitarian value of guilty pleas. Further, the Applicant’s prior good character attracted less weight because of the nature of the role which he was performing, even allowing for the fact that he was not (in acting as a sleep technician) a registered health professional subject to the health regulatory scheme mentioned earlier in this judgment (at [315] above).

19. [375]

    The Applicant’s prospects of rehabilitation and risk of reoffending fell to be considered by reference to a person who had repeatedly committed offences upon patients over a six-week period, taking advantage of opportunities which presented themselves to him at a time when he was expected to protect the female patients and not exploit them sexually.

20. [376]

    Importantly, the Applicant was to be sentenced for a series of offences committed against five individual patients over a six-week period in 2018. These were not spontaneous or spur-of-the-moment offences. The Applicant demonstrated a methodical and predatory course of criminal conduct involving the sexual exploitation of patients during nocturnal sleep studies.

21. [377]

    Reference was made earlier in this judgment to principles concerning the assessment of objective seriousness of indecent assault offences under s. 61L(1) and s. 61M(1) Crimes Act 1900 (see [316]-[319] above). The Applicant was to be sentenced for 19 s. 61M(1) offences committed against four victims. At least 12 of these offences involved “skin on skin” contact of which at least seven offences involved the Applicant touching the genital area of the victim or causing his penis to touch the body of the victim (Counts 1, 5, 8, 9, 10, 13 and 15). All of the offences involved the Applicant entering the room and assaulting each victim while she was asleep or was expected to be asleep (see EJDG v R referred to at [318] above).

22. [378]

    The fact that the Applicant was to be sentenced for multiple offences was relevant to the determination of each sentence, so that it would be erroneous to treat each offence as if it had occurred in isolation: R v JRD [2007] NSWCCA 55 at [27], [33]; Mohindra v R at [48].

23. [379]

    The s.38(a) Crimes Act 1900 offence in Count 21 was the most serious offence committed by the Applicant by reference to the maximum penalty for that offence. He intentionally drugged a 19-year old female patient for the purpose of sexually abusing her (by way of aggravated indecent assault) whilst in an intoxicated state, which he produced in her without her knowledge, let alone consent.

24. [380]

    The Applicant’s modus operandi with respect to this offence involved an especially grave and additional feature of his course of criminal conduct.

25. [381]

    There were five victims of the Applicant. Three of the five made victim impact statements which recounted, in harrowing detail, the adverse consequences which each of them have suffered as a result of these offences. As the sentencing Judge observed correctly, the absence of victim impact statements from the other two victims does not indicate that they have not experienced harm as a result of these offences: s.30E(5) Crimes (Sentencing Procedure) Act 1999.

26. [382]

    As the victim impact statements demonstrate, there were adverse consequences resulting from these offences beyond those commonly seen with offences of this general type.

27. [383]

    EB stated in her victim impact statement that her trust in the medical profession had been “broken and destroyed”. She had certain allergies and worries as to “what may have happened if I had an allergic reaction” to the drug the Applicant gave her. She stated that she “was never an anxious person but now I am”.

28. [384]

    In her victim impact statement, TH spoke of her approach (since the commission of the offences) of delaying medical testing which had been advised “as I was too distrusting of medical professionals and found a hospital environment to be too triggering”. TH spoke of other difficulties with her family life arising from the offences committed by the Applicant. TH said she “felt validated, heard and relieved” by the guilty verdicts. She spoke of being a “survivor” and not a “victim”.

29. [385]

    CS (the mother of JS) made a victim impact statement as JS (who was 16 years old at the time of the offences) did not wish to do so due to “ongoing trauma”. CS spoke of the anxiety experienced by JS in many respects and the confronting experience for JS in giving evidence at the trial. JS has a number of ongoing health difficulties. CS ended the victim impact statement in this way:

30. [386]

    When issues of notional accumulation, concurrency and totality arise with respect to determination of an aggregate sentence for sexual offences involving several victims, it is necessary for the aggregate sentence to reflect the fact that there were a number of offences committed against five separate victims over an extended period: R v Gommeson at [109]; Mohindra v R at [64].

31. [387]

    Where there are several victims, there is a special need to ensure a proper level of notional accumulation to guard against a view that, in reality, there is virtually no penalty at all to be imposed for sexual offences committed against several victims: R v Gommeson at [114].

32. [388]

    In my view, there is a substantial disconnect between the Applicant’s total criminality and the aggregate sentence of imprisonment imposed in his case.

33. [389]

    This can be illustrated by examination of the indicative sentences and the aggregate sentences of imprisonment:

34. [390]

    The total of indicative head sentences for all 22 offences comprised a period of 25 years.

35. [391]

    The aggregate sentence of imprisonment imposed upon the Applicant comprised a head sentence of six years with a non-parole period of three years and nine months.

36. [392]

    In circumstances where the single offence against EB (Count 21) attracted an indicative sentence of imprisonment for four years, it is entirely clear that the 21 offences against the other four victims have not been accommodated reasonably in an aggregate head sentence of six years imprisonment. The sentencing outcome reflected in the aggregate sentence is manifestly inadequate – the sentence is unreasonable or plainly unjust. It fails markedly to reflect the totality of the Applicant’s offences committed against 5 victims, including young women aged 16 and 19 years.

37. [393]

    This mathematical summary assists a clear conclusion that the aggregate sentence was manifestly inadequate in this case.

38. [394]

    In all the circumstances of this case, I am satisfied that the aggregate sentence of imprisonment imposed was manifestly inadequate and I would uphold the third ground of appeal.

The Residual Discretion

1. [395]

   If the Court found error, the Applicant relied upon the affidavit of Dr Katie Seidler affirmed 17 May 2021 which, in effect, placed Dr Seidler’s report (which had been tendered in the District Court) before this Court as well. In addition, an affidavit of the Applicant dated 18 May 2021 was relied upon and this affidavit was confined to the circumstances in which the Applicant was seen by Dr Seidler.

2. [396]

   The Crown submitted that this Court should proceed to resentence the Applicant if one or more of the grounds of appeal had been established. Counsel for the Applicant submitted that the Court should decline to resentence the Applicant even if the Crown made good any ground of appeal.

3. [397]

   The Court having found error under the first and third grounds of appeal, it remains for the Crown to satisfy the Court that the residual discretion to decline to intervene and resentence the Applicant should not be exercised in this case: CMB v Attorney General (NSW) (2015) 256 CLR 346; [2015] HCA 9 at [33], [54].

4. [398]

   There was no delay in the institution of the Crown appeal or the service of the Notice of Appeal upon the Applicant. The Applicant was notified on 2 November 2020 that the Crown was considering an appeal. The Notice of Appeal was signed on 13 November 2020, filed on 16 November 2020 and served upon the Applicant on 20 November 2020.

5. [399]

   Nor is there any feature in the way that the proceedings were conducted at first instance which operates against the Crown with respect to the residual discretion.

6. [400]

   It has been said that the primary purpose of Crown appeals is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons: Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [1]-[2].

7. [401]

   I have reached the clear view that the aggregate sentence imposed in this case was manifestly inadequate. I am satisfied that errors with respect to assessment of objective seriousness of certain counts (in the first ground of appeal) contributed to the imposition of a manifestly inadequate aggregate sentence. The 22 offences were serious crimes committed against five separate victims by the Applicant over a period of six weeks, at a time when he occupied a position of authority and trust concerning each victim.

8. [402]

   An important part of the jurisdiction to hear Crown appeals is to ensure that there will be uniformity of sentencing, which is of great importance in maintaining public confidence in the administration of justice: R v Stoupe [2015] NSWCCA 175 at [115]; R v Amati (2019) 279 A Crim R 73; [2019] NSWCCA 193 at [132]. In Everett v The Queen (1994) 181 CLR 295 at 306; [1994] HCA 49, McHugh J said:

9. [403]

   By reference to other circumstances which may bear on the exercise of the residual discretion, I note that the Applicant’s eligibility for release on parole is not imminent: Green v The Queen at [43]. Further, given the continuing absence of any remorse or contrition on the Applicant’s part, this is not a case where resentencing would have an adverse effect on the progress of the Applicant towards rehabilitation: Green v The Queen at [43].

10. [404]

    Further, it is necessary that the aggregate sentence imposed in this case reflect the strong denunciation of persons in the position of the Applicant, in health-related fields, who have access to patients in positions of trust and authority and who abuse that trust and authority by commission of sexual offences.

11. [405]

    I am satisfied that it is appropriate to proceed to resentence the Applicant for these offences.

Resentencing the Applicant

1. [406]

   For the purpose of resentencing the Applicant, I am satisfied that the appropriate finding is that each offence for which the Applicant is to be sentenced lies in the middle of the range of objective seriousness, apart from Counts 3, 4, 6, 17 and 25, which lie just below the mid-range.

2. [407]

   For the purpose of resentencing the Applicant, I find that the moral culpability of the Applicant arising from the commission of each offence was substantial. The Applicant used his trusted position as a sleep technician to sexually exploit each complainant in circumstances giving rise to 22 separate offences, committed against five victims, over a six-week period in 2018. The sentencing Judge made no finding with respect to moral culpability. However, it is important that this finding be made for the purpose of resentencing, whilst noting the overlapping nature of findings concerning objective gravity and moral culpability: Tepania v R at [112]-[119]. It is appropriate to note, in assessing moral culpability, the opinion of Dr Seidler that the Applicant had a sophisticated understanding of consent which he disregarded in committing these offences.

3. [408]

   There is no mental condition or other feature which serves to reduce the Applicant’s moral culpability for these offences. Further, the Applicant was a mature 47-year-old man at the time of the offences.

4. [409]

   I adopt the recital of the Applicant’s personal history as made by the sentencing Judge (see [272] above). I have regard, as well, to the extra-curial punishment found by the sentencing Judge (ROS15-16 at [276] above). The fact that the Applicant would not be permitted to practise medicine is relevant to sentence. However, the loss of the Applicant’s capacity to practise medicine “cannot be treated as a substitute for the punishment which the law requires”: Director of Public Prosecutions v Klep [2006] VSCA 98 at [18] (Nettle JA).

5. [410]

   The Applicant’s risk of reoffending is likely to be limited by the restricted opportunity that he would have in the future to commit offences of this type, given the impact of his conviction and sentence for these offences. That said, the Applicant possesses no real insight into his offending and no contrition and remorse.

6. [411]

   The Court must keep in mind the purposes of sentencing set out in s.3A Crimes Sentencing Procedure) Act 1999:

7. [412]

   The requirement for reasonable proportionality of sentence, having regard to the objective gravity of the offences, is reflected in s.3A(a) being the requirement for adequate punishment. The indicative sentences should have regard to other s.3A factors as well, including specific and general deterrence (s.3A(b) and (c)), promoting the rehabilitation of the Applicant (s.3A(d)) and denouncing the Applicant for his conduct and making him accountable for his actions (s.3A(e) and (f)).

8. [413]

   An important additional purpose is to recognise the harm done by the Applicant to the five victims and the community (s.3A(g)). I have regard to the victim impact statements referred to earlier (see [381]-[385] above).

9. [414]

   The fact that the victims were required to give evidence at the Applicant’s trial cannot be used to aggravate sentence: Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74 at [22]-[38]. However, the Applicant cannot call in aid any discount for guilty pleas, nor is there evidence of contrition or remorse.

10. [415]

    The Applicant’s prior good character is of limited use to him on sentence. This was not spur of the moment aberrant conduct, but a pattern of predatory criminal conduct directed to female patients in the Applicant’s care as a sleep technician.

11. [416]

    In sentencing the Applicant, it is necessary for the Court to have regard to s.68A Crimes (Appeal and Review) Act 2001 so that double jeopardy is not to be taken into account on the appeal: R v Mulligan [2016] NSWCCA 47 at [49]-[53].

12. [417]

    Having regard to the objective circumstances of the offences and the subjective circumstances of the Applicant and other factors relevant to sentence, the indicative sentences in this case should be as follows:

13. [418]

    The process of notional accumulation undertaken for the purpose of reaching an aggregate sentence must have regard in this case to the various factors referred to earlier and, in particular, the requirement that the aggregate sentence reflects a series of offences committed against five separate victims: Jung v R at [68]. The totality principle requires the Court to impose an aggregate sentence which represents a just and appropriate measure of the Applicant’s total criminality: ZA v R (2017) 267 A Crim R 105; [2017] NSWCCA 132 at [70]-[76].

14. [419]

    A finding of special circumstances is appropriate by reference to the need for an extended period of supervised liberty at the conclusion of the custodial component of the sentence. However, the non-parole period should reflect the minimum period for which the Applicant should be held in custody having regard to all factors relevant to the determination of sentence and, in particular, the objective gravity of his crimes: R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [63]-[65].

15. [420]

    The aggregate sentence of imprisonment in this case should comprise a head sentence of imprisonment for nine years and nine months with a non-parole period of six years and five months to commence on 25 September 2020, the date when the Applicant first entered custody. The finding of special circumstances should result in a non-parole period which comprises about 66% of the head sentence in this case.

Conclusion and Proposed Orders

1. [421]

   The Applicant has not made good his challenge to conviction on any of the counts in relation to which it was contended that the verdict of guilty was unreasonable or could not be supported having regard to the evidence.

2. [422]

   I would grant the Applicant leave to appeal against conviction but dismiss the conviction appeal.

3. [423]

   For reasons contained in this judgment, I would uphold the Crown appeal and resentence the Applicant in the manner indicated.

4. [424]

   I propose the following orders:

5. [425]

   CAVANAGH J: I have had the considerable benefit of reviewing the draft judgment of Johnson J. I agree with his Honour’s judgment in respect of the conviction appeal.

6. [426]

   Having undertaken my own independent assessment of all of the evidence, I consider that it was open to the jury to find that the Applicant was guilty on each of the Counts which he seeks to challenge in this appeal.

7. [427]

   However, I respectfully take a somewhat different view to his Honour on the Crown appeal on sentence.

8. [428]

   As Johnson J has carefully and extensively reviewed the sentencing hearing and sentencing remarks, it is not necessary that I merely repeat that review. Further, I agree with his Honour’s decision in respect of Ground 2 on the sentence appeal.

9. [429]

   I take a different view, in part, to the Crown appeal under Ground 1 and, at least in part, as a consequence under Ground 3.

Ground 1

1. [430]

   Ground 1 constitutes a challenge to the trial judge’s (Flannery SC DCJ) assessment of the objective seriousness in respect of Counts 3, 4, 6, 17, 21 and 25.

2. [431]

   The question which thus arises is whether the particular characterisation which her Honour gave to the circumstances of the offending was open (see Mulato v R [2006] NSWCCA 282 at [37] per Spigelman CJ, Simpson J agreeing).

3. [432]

   The assessment of objective seriousness must only be reviewed by this Court in accordance with the principles stated in House v The King (1936) 55 CLR 499; [1936] HCA 40.

4. [433]

   As was observed in Magro v R [2020] NSWCCA 25 at [29] (per Gleeson JA, R A Hulme and Button JJ agreeing) the assessment of the objective seriousness of an offence is classically within the role of the sentencing judge in finding facts and drawing inferences from those facts.

5. [434]

   The assessment is an evaluative task which may be susceptible to different views. This Court may not merely substitute its own view.

6. [435]

   The trial judge made findings on objective seriousness as follows:

7. [436]

   The Crown does not submit that the trial judge erred in the findings as to objective seriousness in respect of any other Counts. Plainly, her Honour considered Counts 1, 7, 9, 10, 13, 14, 18, 19, 20, 22 and 23 as more serious than low-level examples and considered that Counts 5, 8, 15 and 25 were more serious again but found that all of that offending was still below the mid-range.

8. [437]

   In the written submissions, the Crown “accepts that it was open to the sentencing judge to find that those Counts (Counts 3, 4, 6, 17 and 25) were less objectively serious than the remaining Counts, bearing in mind the nature of the physical act involved”.

9. [438]

   Despite this, the Crown advances the argument that “having regard to all relevant factors, it is submitted that it was not open to the sentencing judge to find that Counts 3, 4, 6, 17 and 25 were ‘relatively low-level examples’ of offences of their kind.”

The appeal in respect of counts 3, 4, 6, 17 and 25

1. [439]

   The offending in respect of Counts 3, 4 and 6 all occurred as a part of a course of conduct towards the same complainant. Each offence was an offence of aggravated indecent assault contrary to s.61M(1) Crimes Act 1900 (NSW).

2. [440]

   Each of the Counts involves the Applicant engaging in the conduct for up to a few seconds. As the Crown submits, Counts 3 and 4 related to the actions of the Applicant touching the complainant with his hand whilst at the same time touching his penis. Count 6 relates to the conduct of the Applicant moving himself towards the complainant’s feet and masturbating for a moment (as described by the trial judge).

3. [441]

   Her Honour gave indicative sentences of 9 months imprisonment with a non-parole period of six months for each offence.

4. [442]

   Counts 17 and 25 are both offences of aggravated acts of indecency contrary to s.61O(1A) Crimes Act 1900. Her Honour gave indicative sentences of imprisonment for 6 months in respect of each Count.

5. [443]

   The Counts relate to different complainants.

6. [444]

   Count 17 is described by her Honour in the sentencing judgment as follows:

7. [445]

   Count 25 is described by the sentencing judge as follows:

8. [446]

   Her Honour’s descriptions are consistent with the CCTV footage.

9. [447]

   The circumstances of aggravation for each Count is that the victims were under the authority of the Applicant at the time of the offending (s.61M(3)(c); s.61O(3)(b) Crimes Act 1900).

10. [448]

    As the trial judge specifically found that (leaving aside Count 21) all of the other offending was below the mid-range with Counts 5, 8 and 15 being higher than the other Counts (but still in the range described as below the mid-range), it must follow that the Crown case on appeal is that the trial judge should have identified the offending under Counts 3, 4, 6, 17 and 25 as somewhere between “below the mid-range” and at a “low-level”.

11. [449]

    Both descriptions are broad and general. It might be said that, at least conceptually, if something is less than “below the mid-level” then it is at a lower level. There may be an inconsistency in the Crown approach in that it accepts that the Counts the subject of its appeal were less objectively serious than below mid-range but says that the description of “low-level” was not open.

12. [450]

    This demonstrates the difficulties in challenging findings of objective seriousness in an appeal such as this. It is important that an appeal in respect of objective seriousness in respect of multiple Counts not be blurred with a complaint about the indicative sentences given for each Count. The Crown appeal under Ground 1 is not a challenge to the indicative sentences. It could not be (See R v Kennedy (2019) 101 NSWLR 121; [2019] NSWCCA 242 at [78] per Payne JA and Fullerton J, Adamson J agreeing).

13. [451]

    Plainly, the sentencing judge was endeavouring to describe the offending within differing bands or ranges. Objective seriousness is not capable of categorisation according to a mathematical formula (See FL v R [2020] NSWCCA 114 at [59]-[60] per Wilson J, R A Hulme and Hamill JJ agreeing).

14. [452]

    Having said that, the Crown submits that there are a number of factors which render the objective seriousness of the offending of a higher category (however that might be described) than as found by the trial judge. Further, the Crown accepts that the nature and degree of the physical contact involved is of considerable significance but submits that it is “not the start or the end of the assessment”. Of course, that must be correct but I consider that in the circumstances of this matter, the nature and degree of contact is a significant factor.

15. [453]

    The Crown submits that a critical component of the assessment of objective seriousness is an examination of the circumstances in which each offence was committed. Again, I agree.

16. [454]

    The Crown identifies the following circumstances as particularly significant:

    1. (1)

       the Applicant committed each of the offences in the course of his employment as a medical professional. He abused the authority held by virtue of that position;

    2. (2)

       the nature of the position of authority and abuse of that position made each of the offences serious examples of aggravated indecent assaults and aggravated acts of indecency;

    3. (3)

       each of the offences took place at a time when the complainants were vulnerable in the sense that each of the complainants was asleep or in such a state that they were unaware of the offences taking place and were plainly incapable of giving consent. It is evident in those circumstances that the Applicant’s moral culpability is high; and

    4. (4)

       the fact that each of the offences took place as part of a course of conduct in the context of ongoing offending over a six week period is a factor which bears upon the assessment of the objective seriousness of each of the offences (see LN v R [2020] NSWCCA 131 at [31]-[60] per Basten JA, R A Hulme J agreeing and Hamill J dissenting).

17. [455]

    At least, in my view, the matters raised by the Crown do not lead to the conclusion that the trial judge’s findings as to objective seriousness in respect of the challenged Counts were not open for a number of reasons.

18. [456]

    Firstly, it is important to avoid any double counting. The circumstances of the complainants being under the authority of the Applicant constituted an element of each of the offences. This was recognised by the Crown in its submissions on sentence as follows with reference to s.21A(2)(k) Crimes (Sentencing Procedure) Act 1999 (NSW):

19. [457]

    Whilst it may be that in some circumstances trust and authority might be viewed as different aggravating factors, as is apparent from the Crown submission on sentence, it used the terms interchangeably on the sentencing hearing.

20. [458]

    In MRW v R [2011] NSWCCA 260 Bathurst CJ (James and Johnson JJ agreeing) observed at [78]:

21. [459]

    I would be cautious in giving too much weight to the aspect of breach of trust for these Counts in circumstances in which, as the Chief Justice said, the circumstances giving rise to the abuse of trust or abuse of authority arise from the same facts and, in this case, the abuse of authority is the circumstances of aggravation which is an essential element of the offending. Having said that, at least in general terms, the trial judge considered that breach of trust was a significant factor.

22. [460]

    Secondly, whilst the concepts of objective seriousness and moral culpability can overlap (Kelley v R [2021] NSWCCA 173 at [38] per Bell P, Rothman and Bellew JJ agreeing; Irmak v R; Dagdanasar v R [2021] NSWCCA 178 at [308] per Johnson, Wilson and Cavanagh JJ). Moral culpability is only one factor which may be considered in the assessment of objective seriousness.

23. [461]

    Thirdly, I do not take what was said in LN or in Einfeld v The Queen (2010) 200 A Crim R 1; [2010] NSWCCA 87 at [146]-[148] (per Basten JA) as supporting the general proposition advanced by the Crown, being the fact that each of the offences took place as part of a course of conduct was a factor which elevated the assessment of the objective seriousness for each of the individual offences.

24. [462]

    In both LN and Einfeld, this Court referred to the importance of considering the offending conduct in the context in which it occurred, which may include uncharged conduct, provided that any uncharged conduct is not be taken into account so as to lead to the imposition of a higher sentence than would be merited for the offence charged.

25. [463]

    In my view, the trial judge was entitled to place particular weight on the nature and extent of the conduct towards each complainant. Her Honour did so.

26. [464]

    In determining objective seriousness in respect of the s.61O(1A) Crimes Act 1900 offending, particular weight should be given to the conduct of the offender towards the complainants. The act of indecency must be with or towards another person.

27. [465]

    This requires identification of what the offender did towards the other person. In respect of Counts 17 and 25 the Applicant stood next to the complainants (without touching them at that time) and fondled his penis whilst the complainants were asleep.

28. [466]

    I accept that minds may differ and it may be a matter of what weight should be given to various factors but, in circumstances in which I do not completely accept the Crown’s submissions on the factors which the Crown submits suggest the findings of objective seriousness were not open, I would not interfere with those findings. I consider that they were open to her Honour the sentencing judge.

Count 21

1. [467]

   I agree with the observations of Johnson J in respect of Count 21. Administering an intoxicating substance to the complainant in the particular circumstances was a very serious aggravating factor on sentence.

2. [468]

   As the sentencing judge said, the Applicant had brought the drug into the Woolcock Institute and administered it to the victim. He was able to do so through use of his medical knowledge. He was able to do so because the complainant was under his authority at the time.

3. [469]

   The administration of a drug or drugs to a victim whilst that person is under the authority of the offender for medical treatment is certainly an aggravating factor as set out in s.21A(2) Crimes (Sentencing Procedure) Act. I agree that the categorisation of that offending as below the mid-range of objective seriousness was not open to the trial judge. Such a finding fails to give appropriate weight to the significantly aggravating circumstances existing at the time of the offending.

4. [470]

   I consider that Ground 1 has only been made out in respect of Count 21.

Ground 3 – Manifest inadequacy

1. [471]

   It is not necessary that I repeat the principles which apply to a Crown appeal on sentence. I would simply add what was said by N Adams J (Hoeben CJ at CL and Button J agreeing) in Manojlovic v R; R v Manojlovic [2020] NSWCCA 315 at [167]:

2. [472]

   It is worth setting out the summary of the Crown position as contained in the Crown’s written submissions as follows:

3. [473]

   The Crown submits that the total sentence imposed is plainly unjust for a number of reasons but specifically relies on the matters raised under Grounds 1 and 2. In my judgment, the Crown has been largely unsuccessful under Grounds 1 and 2.

4. [474]

   In my view, there was only one “patent error” being the finding of objective seriousness in respect of the s.38(a) Crimes Act 1900 offence (Count 21). That does not of itself mean that the sentence could not be viewed as plainly unjust as manifest inadequacy is a stand-alone ground of appeal. Further, the s.38(a) Crimes Act 1900 offence is the most serious.

5. [475]

   However, the Crown’s lack of success on its other grounds rather diminishes the force of its submissions under Ground 3.

6. [476]

   As outlined above, the appeal is in respect of the total sentence and not in respect of the indicative sentences.

7. [477]

   However, examination of the indicative sentences may be a guide. Her Honour provided an indicative sentence of 4 years imprisonment in respect of Count 21. In my view, this does not necessarily suggest error even with a different finding on objective seriousness.

8. [478]

   Indeed, in Kearsley v R (2017) 265 A Crim R 233; [2017] NSWCCA 28, the Court (per Macfarlan JA, Schmidt J agreeing) provided an indicative sentence of 15 months in respect of a medical practitioner who administered a sedating drug to a colleague (in a personal capacity). The circumstances of that matter were different and the Court must always exercise caution in comparing sentences, but the difference between the indicative sentence is significant. Kearsley may also be relevant because, like this matter, it is necessary to have regard to the fact of extra-curial punishment in the sense of a loss of ability to work in his career.

9. [479]

   I might also add that whatever view that might be taken about the total sentence, it does not seem to me that the indicative sentences could be described as lenient.

10. [480]

    Even if it might be thought that, contrary to the view which I just expressed, the indicative sentence in respect of a particular count was inadequate, it does not follow that the aggregate sentence was manifestly inadequate – JM v R (2014) 246 A Crim R 528 at 537; [2014] NSWCCA 297 (per R A Hulme J, Hoeben CJ at CL and Adamson J agreeing).

11. [481]

    Further, for the reasons identified by the Applicant, I do not accept the Crown’s submission concerning accumulation. As R A Hulme J stated in Vaughan v R [2020] NSWCCA 3 at [117] in setting an aggregate sentence a sentencing judge does not need to assess the precise degree of accumulation. The judge determines the aggregate sentence by assessing what is appropriate to reflect the totality of criminality in all of the offending.

12. [482]

    I have regard to the number of victims and the number of Counts as well as the significance of the s.38(a) Crimes Act 1900 offence but, in the end, an assessment of whether an aggregate sentence is plainly unjust is not capable of determination according to some defined formula or specified criteria.

13. [483]

    I would adopt what was said by the Court in R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 (per Spigelman CJ, Whealy and Howie JJ) at [15]-[16]:

14. [484]

    I must consider whether the sentence reflects the totality of the criminality. It can be said that all offending of this type is serious, but the process of sentencing involves the synthesis of objective and subjective factors.

15. [485]

    In the end, I consider this to be a lenient sentence, particularly having regard to the number of victims and the number of Counts. However, the use of such a term does not render it plainly unjust, just as describing a sentence as severe on a manifest excess appeal does not mean that it is plainly unjust. I would not intervene merely because I consider the sentence to be lenient as Johnson J identifies (in coming to a different view than mine) more is required.

16. [486]

    I am not satisfied that the aggregate sentence is plainly unjust. I factor into my decision that other than in respect of one Count the findings on objective seriousness were open to the trial judge and the Crown was not successful on Ground 2.

The result of the appeal

1. [487]

   There may be a question as to what happens when, on a Crown appeal, the Crown establishes specific error but does not establish that the sentence was plainly unjust.

2. [488]

   This issue was considered by N Adams J in Manojlovic at [225]-[246].

3. [489]

   As her Honour observed at [234]:

4. [490]

   Further, her Honour observed at [241]:

5. [491]

   As I have not accepted the Crown appeal on manifest inadequacy, but accepted an error in the finding of objective seriousness, I would decline to intervene and dismiss the sentence appeal.