The Court of Appeal has dismissed an appeal against a 20-month prison sentence imposed on an appellant convicted of three counts of indecent assault involving two complainants who were 15 at the time of the offences.
In a judgment delivered on 3 July 2019, the court found no error in the sentencing judge’s decision to place the offences in the upper range of seriousness, impose consecutive sentences for offences involving two victims, or account for the appellant’s age and health.
The appellant was convicted on 2 November 2017. The offences took place between 1974 and 1976 at a hospital and the appellant’s private clinic. The judgment identifies the complainants only as MW and DK. It says one count concerned DK, who attended the appellant for an ingrown toenail. The other two counts concerned MW, who underwent surgery for undescended testes and hernias in April 1975 and later attended appointments at the appellant’s private rooms. The judgment recounts evidence from MW about two occasions when the appellant massaged the base of his penis.
The sentencing judge imposed six months for one offence against MW and a concurrent ten months for the other. A further ten months for the offence against DK was consecutive, resulting in a total sentence of 20 months. The maximum sentence for each offence was two years.
The appellant challenged the use of consecutive sentences, the assessment of the offences as falling in the upper range, the weight given to his age and health, and the failure to identify a headline sentence. He was 85 at sentencing, had no previous convictions and had medical conditions including coronary heart disease and chronic effort angina. The prosecution argued that consecutive terms were appropriate because there were two victims and that the total sentence reflected substantial mitigation.
The appeal court said the appellant’s position as a medical consultant involved a significant breach of trust. It described the complainants as young and vulnerable and said the offending had caused long-term harm. Although the physical acts were not, in themselves, among the most egregious, the court said the deliberate conduct during medical examinations gave rise to high moral culpability.
The judges accepted that the sentencing judge had not followed optimum practice in imposing sentence, but said that did not automatically establish an error in principle. They also rejected the argument that the sentences should run concurrently, reasoning that this would cause the sentence for the offence against DK to merge with those for the offences against MW. The court concluded that the sentences were just and appropriate and dismissed the appeal.