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. 1. Her Honour gave insufficient weight to the psychological state of the claimant both at the time of offence and at sentence. 2. Her Honour gave no discount for the utilitarian, or otherwise, value of the plea of guilty. 3. Her Honour incorrectly fused the delay in bringing the charges with the application to change the plea. 4. Her Honour gave undue weight to the application to change the plea in the Court below, an application made on legal advice. 5. Her Honour failed to consider the good character and antecedents of the applicant prior to the impersonating a doctor/sexual assault charges. 6. The sentence was excessive in the circumstances. 9 On 20 June 2003, the matter was again listed before English DCJ for resumption of the sentencing hearing. On that occasion, a notice of motion was filed in court, seeking leave to withdraw the plea of guilty. The matter was again adjourned. 10 On 27 October 2003, the motion was heard and was dismissed, her Honour holding that she had no jurisdiction to give leave to withdraw the plea after the plea had been entered and the sentencing hearing had commenced. 11 On 31 October 2003, her Honour sentenced the applicant to a term of imprisonment of three years and six months, commencing on 27 October 2003, with a non-parole period of one year and six months expiring on 26 April 2005. 12 The proceedings in this court came on for hearing on 10 September 2004. The applicant withdrew the appeal against conviction. The Crown did not oppose an extension of time in relation to the appeal against sentence. The application for leave to appeal against sentence was heard. 13 The agreed statement of facts tendered before English DCJ on 12 February 2003 reads as follows. The complainant is a married woman with three children, born in 1987, 1991, and 1993. In about 1985 the complainant moved to the St John's Park area and began attending a local general medical practice conducted by Doctor Rick Dallas, a qualified and registered medical practitioner, and brother of the accused Mark Dallas. The surgery was located at 545 Smithfield Road. The new surgery contained two doctor's consulting rooms. Prior to the surgery moving, and whilst the new surgery was under construction, the complainant attended the surgery and had a conversation with the receptionist who told the complainant that the Mark Dallas, whom she had seen at the premises, was a doctor currently doing further studies in eye and skin disorders. From that conversation the complainant formed the belief that the accused was a trained and registered medical practitioner. In late 1991 or early 1992 the complainant attended the surgery to see Doctor Rick Dallas. The complainant presented her Medicare card, which was swiped, and waited in the waiting room. On this occasion she was asked by one of the receptionists, either Lynne Dallas or Narelle Knight, if she would like to see "Mark", as he was now working at the practice, and the wait would be shorter. The complainant agreed to this and she and her family commenced to see the accused Mark Dallas instead of Dr Rick Dallas, in the second of the two doctor's consulting rooms; although from time to time she still consulted Doctor Rick Dallas. On the occasions that the complainant and her family consulted Mark Dallas he acted in the role of general practitioner, treating the complainant and the children and attending to illnesses and ailments, vaccinations for the children, ear nose and throat examinations, and writing prescriptions and letters of referral to specialists, using the letterhead and medical stationery of Doctor Rick Dallas. In 1993 following the birth of her third child, the complainant developed a gynaecological condition. On 6 May 1995 she attended the surgery and consulted the accused Mark Dallas, who prescribed medication. Count 1 – 10 days later, on 16 May 1995, she consulted him again regarding the same condition. On this occasion the accused Mark Dallas asked her to remove her lower clothing and underwear. He then conducted an internal vaginal examination including insertion of a speculum, an instrument used when carrying out internal vaginal examinations. A swab was taken in the course of the internal examination and sent for pathology. At the time of having the procedure, the complainant was of the belief that Mark Dallas was a qualified and registered Medical Practitioner. This belief was based on what she had been told by the receptionist, by the fact his brother was a Doctor who worked from a medically equipped surgery and because the accused Mark Dallas conducted himself and his procedures as a doctor would. She further believed she was required to undergo this examination to identify the nature and extent of her medical condition. The complainant would not have allowed Mark Dallas to conduct any examination of any part of her body had she not been lead [ sic ] to believe that Mark Dallas was a qualified registered Medical practitioner. As a result of this assault she did not suffer any physical injuries. The complainant has suffered emotional trauma as a result of learning that Mark Dallas was not a qualified Doctor. Form 1 – On the 6 January, 1996, the complainant attended the surgery to have a lump on her breast examined. After waiting for a short time she was invited into the consultation room of Mark Dallas. She was asked to remove her upper clothing and lay on an examination table. A short time later, Mark Dallas, came to where she was laying and pulled down the sheet she had over her upper body, exposing her breasts. He then began palpating her breasts with his hands. After a short examination the accused left the room and returned with Doctor Rick Dallas, who also carried out a breast examination upon her. At the completion of the breast examination the complainant got dressed and was referred to a radiology practise [ sic ] in the Fairfield area for further test. The complainant then left the surgery. The complainant says that on 6 January 1996, the day of the breast examination by both Mark and Rick Dallas, she only consented as she was of the firm belief that both Mark and Rick Dallas were qualified Medical Practitioners. She further says that had she known that Mark Dallas was not a qualified medical practitioner, she would not have allowed him to examine her breasts. At 5pm on Monday 26 November, 2001, as arranged the accused attended Fairfield Police Station where he was advised he was under arrest for the sexual assault of Julie Anne Dawson, in May, 1995. The accused was taken to and introduced to the Custody Officer who read aloud to him his rights. A short time later the accused was taken to an interview room at Fairfield Police Station to be interviewed. About 5.25pm electronically recorded interview between the accused and Detective Sergeant Lewis was commenced. A short time later the accused advised interviewing police that he did not wish to answer any questions about the allegation. At this time the interview was terminated. He was then charged. 14 Exhibits tendered on the sentencing hearing in the District Court included a pre-sentence report by the Probation and Parole Service dated 5 March 2003, an updated report dated 24 October 2003, a victim impact statement by the complainant dated 23 February 2003, a report by Dr A D Diment, consultant psychologist, dated 4 March 2003, and a report by Dr J A Roberts, psychiatrist, dated 17 September 2003. 15 The Probation and Parole Service pre-sentence report recorded that the applicant had a life-long desire to become a medical practitioner but had never qualified as such. He had commenced a course in dentistry with a view to transferring to medicine but had had to give up that course due to illness. He had assisted in the construction of his brother's surgery in 1989 and 1990 and had been employed in the practice as an assistant between 1990 and 1997. He had obtained some minor paramedical qualifications in relation to remedial massage, pathology collection and sports medicine. Following his convictions in 2002, he had abandoned the idea of employment in any medically related field. He had obtained certificates and a diploma in information technology at TAFE. 16 According to the Probation and Parole Service report, the applicant had been plagued with childhood illnesses. His present ailments included asthma and retinopathy which caused blurred vision and headache. Strangely, at interview, the applicant maintained his innocence in relation to the charges to which he had pleaded guilty in the District Court. 17 The applicant told Mr Diment, consultant psychologist, that his involvement in his brother's medical practice was the biggest mistake of his life, that he had commenced with minor procedures such as bandaging and that it had evolved from there. He said he loved the idea of helping people and found it satisfying to discuss problems with the patients. 18 On formal psychological testing, the applicant suffered from clinical anxiety and clinical depression in the severe range. Mr Diment assessed the applicant as clinically anxious and depressed with suicidal ideation and at high risk of suicide. He was in need of psychiatric review for these conditions and of counselling. 19 Dr J A Roberts, psychiatrist, recorded in his report of 17 September 2003 that the applicant had been seen in his practice in March 2000 and had then been referred by his general practitioner on 27 June 2003. The applicant had been diagnosed with epilepsy in childhood and with cardiac disease. He suffered from chronic headache. The referral in 2003 had arisen from a recent suicide attempt. The applicant presented as significantly depressed. Anti-depressants were prescribed. There were indications of a paranoid state. 20 As in the case of the Probation and Parole Service, the applicant told Dr Roberts that he did not commit the offence of sexual intercourse without consent. He said he pleaded guilty on legal advice and to avoid the risk of being gaoled for 14 years. He asserted to Dr Roberts that the complainant would have been aware of his true role in the surgery, implying that she would have been aware that he was not a qualified medical practitioner and had consented to the procedure knowing that. 21 Anti-depressants did not assist his depressed mood and had caused agitation. In August 2003, the applicant had presented in a very depressed state. Anti-psychotic medication was prescribed in an attempt to stabilise his mood. In September 2003, the applicant spoke of demons associated with waves of depression, present for years and unrelated to the court proceedings. He and his wife stated that he would scream, rant and rave about demons. The anti-psychotic medication was effective to some extent. However, when spoken to by the doctor about the pending court proceedings on 19 September 2003, the applicant again became highly agitated with further suicidal ideation. 22 In Dr Roberts opinion, there was long-standing depressive illness with more recent symptomatology indicating a more serious disturbance. There was the possibility of psychotic illness. 23 Dr Roberts gave evidence at the sentencing hearing and adhered to this opinion. 24 The impact statement by the complainant included reference to her association with the applicant for medical treatment over a period of time ante-dating the offences charged, whereas the applicant was being sentenced for the two specific offences committed in May 1995 and January 1996. It was the effect of those particular offences on the complainant's state of mind which was relevant. The complainant's statement had, accordingly to be received with discrimination. The following is an extract from the statement. I can only describe as traumatic the feelings of realisation that I had allowed this fraudulent person to treat and diagnose me. Sleepless nights and feelings of anger were regularly and frequently apparent and added to the feelings of violation which came from intimate but fraudulent examinations upon my body. My anger and hurt contributed to pressures within my family. The relationship between my first husband and myself deteriorated. Working as a Registered Nurse, I felt my colleagues ridiculed me as they discovered a person masquerading as a registered medical practitioner had deceived me. I felt I was further isolated into my predicament as they didn't understand how well this person had presented himself with his apparent familiarity of medicine. Even to this day, when I know that I should seek the services of a GP I am reluctant to do so. On the few occasions over the past five years when I have visited a GP I always firstly look for their appropriate qualifications on the wall of the surgery and if I do not see them displayed I will question them as an attempt to gain reassurance such is my subsequent lack of trust. Even today my reluctance to obtain a regular breast examination adds a pressure to the relationship with my husband, who lost his mother to breast cancer and whose sister has had a mastectomy. 25 As I have mentioned, following the plea on 12 February 2003, the sentencing hearing was adjourned to 6 March 2003. That was to obtain a pre-sentence report, as was done. Thereafter, as I have mentioned, the proceedings were adjourned several times up to and including 19 September 2003. The motion for leave to withdraw the plea was dismissed on 27 October 2003 and the applicant was sentenced on 31 October 2003. In her remarks on sentence, her Honour recorded the course of the proceedings between March and September 2003 in the following terms: On 6 March 2003 the offender's legal representatives sought leave to withdraw and that leave was granted and the matter was stood over till 28 April 2003. An adjournment application was made on that occasion to enable the offender to obtain fresh legal representation and to obtain advice as to whether he could change his plea. The matter was stood over to 20 June 2003. The offender did not appear and the court was informed that he had attempted to take his life and was in Fairfield Hospital. A medical certificate was eventually obtained and the matter adjourned for mention to 18 August. Due to changes in the judicial calendar the matter was re-listed for sentence on 19 September and the offender remained on bail. On 19 September there was another failure by the offender to attend court. The Court was advised that the offender was heavily sedated and unable to attend court. Reluctantly the matter was again adjourned until 27 September 2003 with an indication that if the offender did not attend bail would be revoked and he would be arrested. 26 I have to say that the tenor of this account was unfair to the applicant in view of the unanswered expert evidence which confirmed the applicant's mental state during this period. 27 A similar situation persisted to the date of sentencing, 31 October 2003. Speaking of the period 27 to 31 October 2003, her Honour recorded the following course of events. However, following submissions [ which related to the motion ], and before the offender was sentenced, due to my concerns the offender would not appear to receive sentence I revoked bail and I ordered that the offender be placed in custody pending sentence. During the intervening period the offender once again attempted to take his life by taking an overdose of medication and the matter was yet again adjourned. 28 Her Honour then recorded the agreed facts in relation to the two offences, and made findings accordingly. She made the following observations concerning the applicant's motivations. True it is that he may not have undertaken the examination that he did for sexual gratification, but he did do so, I find, when the opportunity arose to satisfy his own ego, justifying in his own mind, as I have said, that he was qualified to do so without any regard to the effect his actions may have had upon the complainant. 29 This, also, was an unduly strict view. It could not be found, on the requisite standard, that the applicant had engaged in the relevant conduct otherwise than out of a genuine, albeit misguided, regard for the welfare of the complainant. That, of course, does not mean that these were not serious offences. They were. But a finding that the conduct was undertaken to satisfy the applicant's ego was not warranted. 30 Her Honour noted the effect of the offences on the complainant. 31 Her Honour recognised the principle that mental illness may make an offender an unsuitable vehicle for deterring others (general deterrence). However, she did not regard his mental state as sufficiently severe to warrant mitigation on that account in this case. 32 I find it hard to quarrel with that view. The applicant had plainly become mentally disturbed in response to the situation which followed detection of the course of conduct in which he had been engaged. The two prosecutions had gone on for a long time. His mental response was understandable enough. But there was scant evidence of a pre-existing, entrenched psychiatric state. Many offenders become mentally disturbed in response to the legal processes of prosecution, trial and sentencing. Many offenders have long-standing mental disturbances of one kind or another. I do not think her Honour erred in declining to treat the applicant's mental condition as a factor moderating the consideration of general deterrence. 33 There was no question of the applicant's mental state having contributed materially to the commission to the subject offences. Mitigation on that account did not arise for consideration. 34 Her Honour was unpersuaded that the applicant felt remorse and contrition in relation to these offences. In view of the applicant's denial of guilt to the Probation and Parole officer who interviewed him and his further attempt to justify his conduct to Dr Roberts, there was no error in declining to find contrition in this case. 35 Her Honour then dealt with the utilitarian effect of the applicant's plea of guilty. She said – The offender's plea did have public utility on the day he entered it. Thereafter however he has sought to frustrate the sentencing process at every turn. The complainant has been put through great trauma sitting in court, waiting for the finalisation of this matter and on each occasion the matter has not proceeded due entirely to the actions of the offender the complainant has been unable to find closure. Even on the day that sentence was to be passed the offender had managed, yet again , to frustrate the court's ability to pass sentence. In the ordinary course, where an offender pleads guilty, he is entitled to a discount in recognition of his decision to enter a plea of guilty. That plea signifies his acceptance of responsibility and a willingness to facilitate the course of justice. The complainant has been spared the ordeal of giving evidence and the plea is some evidence of contrition. Some of those factors applied on the day the plea was entered but are now no longer applicable. Counsel for the offender submits that notwithstanding the difficulties the offender is entitled to some credit for his plea – I reject that argument. I find the offender can obtain no benefit on sentence by reason of his conduct following the entering of his plea other than the taking into account, as I am required to do, the fact that he entered a plea and by virtue of that fact and that fact alone. Section 22(1) of the Crimes (Sentencing Procedure) Act requires that I "must" take his plea of guilty into account but the section goes on to provide that I "may" impose a lesser penalty not requiring the reduction of the sentence in all cases where there is a plea of guilty entered. This I find to be such a case for the reasons I have already stated. 36 This view accorded with earlier comments in the remarks on sentence to which I have referred. On the evidence, the delay in the sentencing process was largely attributable to the applicant's mental disturbance. And the motion for leave to withdraw the plea of guilty accounted for a delay of only a month or so out of the ten months that passed between plea and sentence. The time and cost associated with the motion would have been substantially less than the time and cost of a trial. 37 Ground 2 should therefore be upheld. The applicant was entitled to a discount for the utilitarian value of the plea. The plea was late. A discount in the order of 10 per cent should have been allowed. 38 Her Honour found there were good prospects of rehabilitation, as was plainly so. 39 Her Honour found special circumstances, as was appropriate, which provided the basis for a non-parole period shorter than would otherwise have been the case. 40 Although there were other respects in which the sentencing judge took an unduly harsh view, I find it unnecessary to give consideration to whether any other ground of appeal has been made out. That is because, irrespective of any other error, a lesser sentence – after allowing a discount of 10 per cent or thereabouts for the utilitarian value of the plea – would, in my view, not be warranted having regard to the objective seriousness of the offences. 41 A discount of 10 per cent on the sentence imposed would reduce the sentence of three years and six months to one of three years and two months approximately. I would round that off to three years. A discount of 10 per cent on the non-parole period set by her Honour reduces the non-parole period from 18 months to 16 months in round figures. That, in my view, would be the appropriate result. 42 I would propose the following orders. (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. 43 Kirby J: I agree with Sperling J. 44 Newman AJ: I agree with the orders proposed by Sperling J. -oOo- Last Modified: 09/24/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.