R v Dallas [2004] NSWCCA 316

New South Wales Court of Criminal Appeal

CITATION : R v Dallas [2004] NSWCCA 316 HEARING DATE(S) : 10 September 2004 JUDGMENT DATE : 17 September 2004

JUDGMENT OF : Sperling J at 1; Kirby J at 43; Newman AJ at 44 DECISION : (1) Extend time for application for leave to appeal against sentence; (2) Grant leave to appeal against sentence; (3) Appeal allowed; (4) Quash the sentence imposed; (5) Substitute a sentence of three years imprisonment commencing on 27 October 2003, with a non-parole period of one year and four months expiring on 26 February 2005; (6) Direct release of the applicant on parole at the end of the non-parole period.

CATCHWORDS : Criminal Law - appeal against sentence - no question of principle LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999, s22 PARTIES : Regina Mark Michael Dallas FILE NUMBER(S) : CCA 2003/3290 (60188/03) COUNSEL : Mr D Arnott for the Crown Mr G Jones with Mr B Clark for the Applicant SOLICITORS : Director of Public Prosecutions Ford Gaitanis Lawyers for the Applicant

LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/0228 FILE NUMBER(S) : LOWER COURT English DCJ JUDICIAL OFFICER :

- 1 - IN THE COURT OF CRIMINAL APPEAL 2003/3290 (60188/03)

Sperling J Kirby J Newman AJ

Friday, 17 September 2004 Regina v Mark Michael Dallas Judgment 1 Sperling J: The applicant, Mark Michael Dallas, is not a qualified medical practitioner. His brother, Rick Dallas, was so qualified and practised as a general practitioner. The applicant came to be employed in his brother's practice. 2 On 9 April 2002, the applicant pleaded guilty in the Local Court to a number of charges which included falsely holding himself out as entitled to practise medicine. A community service order and substantial fines were imposed. 3 On 11 February 2003, the applicant was arraigned before English DCJ on two charges: first, having sexual intercourse with a woman (hereafter "the complainant") without her consent; and, secondly, indecent assault upon the same woman on 6 January 1996. The applicant pleaded not guilty to both charges. 4 On that date, 11 February 2003, her Honour heard argument concerning the admissibility of evidence by other women who asserted they had received medical treatment from the applicant. She ruled the evidence admissible. 5 On 12 February, a jury was empanelled and her Honour made the usual introductory remarks to the jury. The court adjourned at about 12.30 pm. During the adjournment the applicant conferred with his legal advisers and considered his position. At 3 pm, the court reconvened. The applicant pleaded guilty to the first charge, on the basis that the second charge would be taken into account on Form 1. The Crown accepted the plea in full satisfaction of the indictment. The Crown tendered an agreed statement of facts and the proceedings were adjourned to a later date. 6 Further adjournments were granted on 6 March 2003 and 28 April 2003. 7 On 4 June 2003, an application to extend time for appeal and a notice of appeal against conviction and sentence were filed in this court. The ground of appeal against conviction was that the applicant's plea of guilty had been entered and accepted in circumstances amounting to a miscarriage of justice. 8 The grounds of appeal against sentence were and remain as follows.