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28
Court of Criminal Appeal 22 March 2017

Kearsley v Regina

[2017] NSWCCA 28

Also reported as (2017) 265 A Crim R 233
Sexual offencesAssault & violence
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE APPELLANT RESENTENCED CRIMINAL LAW SENTENCING SENTENCING

Citation: Kearsley v Regina [2017] NSWCCA 28
Court: Court of Criminal Appeal
Date: 22 March 2017
Judges: Macfarlan JA, Harrison J, Schmidt J

Background

The appellant was a Professor of Radiation Oncology and Director of Radiation Oncology at a Sydney hospital. The victim was a junior medical practitioner who had previously trained under his supervision, and the two had developed a professional friendship. In November 2013, the appellant invited her to his home for dinner to discuss her career advancement.

During the evening, the appellant surreptitiously administered a tablet of Ativan, a benzodiazepine sedative, into wine that both he and the victim were drinking. Later that night, in the guest bedroom, he placed his mouth on her nipple. She said "no, stop," and he desisted. She later tested positive for benzodiazepine.

The appellant pleaded guilty to one count of administering an intoxicating substance with intent to commit an indictable offence under section 38 of the Crimes Act 1900 and one count of indecent assault under section 61L. The District Court sentenced him to an aggregate term of four years and three months imprisonment with a non-parole period of two years and three months. He appealed against the severity of that sentence.

Legal Issues

  • Whether the sentencing judge erred by failing to adequately assess the objective seriousness of the section 38 (administer intoxicating substance) offence
  • Whether the sentencing judge erred by failing to impose wholly concurrent sentences for the two offences, given their interconnected criminality
  • Whether the sentencing judge erred by failing to give separate and specific weight to extra-curial punishment suffered by the appellant as a result of his conviction
  • On resentencing: what aggregate sentence was appropriate, and in particular whether any custodial sentence should be suspended

Decision

Ground 1: Failure to assess objective seriousness of the section 38 offence

All three judges agreed this ground succeeded. The sentencing judge made no finding as to the objective seriousness of the section 38 offence, and that assessment could not be gleaned from or implied by her remarks on sentence (at [60]-[65]). Because of the appellant's powerful subjective case, it was impossible to determine how her Honour's unstated view of objective seriousness had influenced the aggregate sentence (at [65]). That failure was fundamental and invalidated the sentencing exercise (at [82]).

Ground 2: Concurrency of sentences

The court rejected this ground. Harrison J held that the two offences involved discrete physical acts: the physical administration of the drug was wholly independent of the physical acts constituting the indecent assault (at [74]). It was plainly open to the sentencing judge to treat the offences as involving elements of idiosyncratic criminality not common to both, and partial accumulation was appropriate. No error in the exercise of that discretion was established (at [74]-[75]).

Ground 3: Extra-curial punishment

The court also rejected this ground. The concept of extra-curial punishment contemplates consequences that are superadded or unexpected and do not flow from the ordinary administration of the judicial process (at [76]-[77]). The appellant's loss of career and public standing, while devastating, were the natural and foreseeable consequences of his conviction. The sentencing judge had adequately taken into account the appellant's losses and their impact on his psychological health without needing to characterise them specifically as extra-curial punishment (at [79]-[80]).

Resentencing: objective seriousness

The court assessed the objective criminality of the section 38 offence as moderate, noting that the decision to drug the victim was taken opportunistically on the night rather than through premeditation, and that the victim's level of intoxication had not substantially deprived her of her mental or physical faculties (at [84]). The section 61L offence was assessed as low to moderate in objective seriousness. Relevant to that assessment were the direct skin contact involved, the brevity of the conduct, and the fact that the appellant desisted immediately when asked (at [86]).

Resentencing: role of psychiatric illness

The court found the appellant's psychiatric condition had only a tenuous causal link to the offences, so it did not materially reduce his moral culpability in the primary sense (at [3]-[4]). It was, however, relevant in a limited way to general deterrence and to the recognition that a custodial sentence would weigh more heavily on him (at [8]-[9]). General deterrence remained a factor of some significance (at [8]).

Resentencing: form of sentence

This issue divided the court. Harrison J concluded that actual custody would be starkly disproportionate to the criminality involved when all subjective factors were weighed, and proposed wholly suspended sentences (at [94]). Macfarlan JA and Schmidt J disagreed. Both held that the objective seriousness of the offending, the deliberate drugging of the victim in a position of trust, and the purposes of adequate punishment, general deterrence, and denunciation required that the sentence not be suspended (at [16]-[17], [127]-[129]). The majority view of Macfarlan JA and Schmidt J prevailed, resulting in an actual custodial sentence, albeit significantly moderated by the appellant's strong subjective case. Special circumstances were found, warranting a non-parole period less than one-third of the aggregate term, given the appellant's age, first time in custody, and worsening mental condition (at [18]).

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court on 26 August 2016 set aside
  • Appellant sentenced to an aggregate term of imprisonment of 18 months commencing 26 August 2016, with a non-parole period of 9 months
  • Appellant to be released on parole on 26 May 2017

Key Takeaways

  • A sentencing judge is required to make an explicit assessment of the objective seriousness of each offence as an essential element of the sentencing process; where the offender's subjective case is powerful, leaving that assessment to inference or implication will invalidate the sentencing exercise (at [60]-[65]).

  • Under the framework established in Director of Public Prosecutions v De La Rosa, a psychiatric condition that is not materially causally connected to an offence does not reduce moral culpability in the primary sense but may still be relevant to general deterrence and to the weight a custodial sentence imposes on the offender (at [4]-[9]).

  • Strong subjective circumstances, including an exceptional history of public service, genuine remorse, good prospects of rehabilitation, and psychiatric illness, must not be permitted to cause inadequate weight to be given to the objective circumstances of the offence (at [14]-[15]).

  • Extra-curial punishment as a distinct sentencing consideration is confined to consequences that are superadded or unexpected and do not flow from the ordinary and foreseeable results of conviction; losses of career and reputation that are the natural consequence of a criminal conviction for serious offences against a professional colleague do not qualify (at [76]-[77]).

  • By majority, the Court of Criminal Appeal held that offences involving the deliberate drugging of a victim in a position of professional trust, followed by indecent assault, required actual imprisonment and could not be met with a wholly suspended sentence, even where the objective seriousness was assessed as moderate and low to moderate respectively and the offender's subjective case was very strong (at [16]-[17], [127]-[129]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999

Cases
- Baumer v The Queen (1988) 166 CLR 51
- Chayadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
- Delaney v R (2013) 230 A Crim R 581; R v Delaney [2013] NSWCCA 150
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Dodd v The Queen (1991) 57 A Crim R 349
- Ibbs v The Queen (1987) 163 CLR 447
- Iskander v R [2013] NSWCCA 235
- Johnson v R (2004) 205 ALR 346; [2004] HCA 15
- Kenny v R [2010] NSWCCA 6
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Kerr v R [2016] NSWCCA 218
- Khoury v R [2011] NSWCCA 118
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Muldrock v The Queen (2011) 244 CLR 120;(2011) HCA 39
- Pearce v R (1998) 194 CLR 610; [1998] HCA 57 Phanekham v R [2015] NSWCCA 295
- Power v The Queen (1974) 131 CLR 623 at 628–629
- Priovolidis v R [2016] NSWCCA 20
- R v Brown [2012] NSWCCA 199
- R v Campbell [2014] NSWCCA 102
- R v Dodd (1991) 57 A Crim R 349
- R v Engert (1995) 84 A Crim R 67
- R v Omar [2015] NSWCCA 67
- R v O’Sullivan (Court of Criminal Appeal (NSW); Priestley JA, Enderby and Campbell JJ; 20 October 1989, unrep)
- R v Scott [2005] NSWCCA 152
- R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130
- R v Stoupe [2015] NSWCCA 175
- R v TA (2003) 57 NSWLR 444; [2003] NSWCCA 191
- R v Van Ryn [2016] NSWCCA 1