No: 200403261/A5 
Neutral Citation Number: [2004] EWCA Crim 2722
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Monday, 18th October 2004
 
B E F O R E:

THE VICE PRESIDENT
(LORD JUSTICE ROSE) 

MR JUSTICE RICHARDS 

MR JUSTICE BEAN 

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REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 CRIMINAL JUSTICE ACT 1988 

ATTORNEY-GENERAL's REFERENCE NO  79 OF 2004    
 
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Computer Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
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MR R HORWELL appeared on behalf of the ATTORNEY GENERAL
MR T ROBERT QC appeared on behalf of the OFFENDER
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J U D G M E N T
1.	THE VICE PRESIDENT:  The Attorney-General seeks the leave of the Court, under section 36 of the Criminal Justice Act 1988, to refer sentences said to be unduly lenient.  We grant leave.
2.	The offender is 30 years of age, having been born in December 1973.  He was indicted on a total of 26 counts. At the plea and directions hearing at Durham Crown Court in November 2003, he pleaded not guilty to each count.  On 17th May 2004, at Leeds Crown Court, he pleaded guilty to 23 of the 26 counts and the remaining three counts were left on the file.  Witnesses did not attend because an indication of those pleas had been given, in writing, in March 2004.
3.	The 23 counts to which he pleaded guilty comprised five counts of indecent assault on a female, contrary to section 14 of the Sexual Offences Act 1956, 10 counts of making an indecent photograph of a child, contrary to section 1(1)(a) of the Protection of Children Act 1978 and eight counts of possession of an indecent photograph of a child, contrary to section 160 of the Criminal Justice Act 1988.  On 17th May he was sentenced by the Recorder of Leeds, His Honour Judge Norman Jones QC, to an extended sentence of five-and-a-half years, the custodial part of which was three-and-a-half years' imprisonment.  The offender was also disqualified from working with children.  As to the custodial element of that sentence the learned Recorder, in relation to counts 1, 2, 5, 7 and 9, which were all of indecent assault, imposed a sentence of two-and-a-half years' imprisonment, concurrently on each.  As to counts 4 and 6, which were both of making an indecent photograph, he imposed a sentence of 1 years' imprisonment on each concurrently to each other but consecutively to the two-and-a-half year sentence imposed in relation to the offences of indecent assault.  Thereby the total custodial term of three-and-a-half years to which we have referred was reached.
4.	In relation to all the other counts in the indictment, he imposed concurrent sentences of 3 months in relation to counts 11 to 18, which were of making an indecent photograph and in relation to counts 19, 20 and 22, which were of possessing an indecent photograph.  Likewise, he imposed a sentence of 8 months on each concurrently, in relation to counts 21, 23, 24, 25 and 26, each of which alleged possession of an indecent photograph: the level of the indecency in the photographs was 3 or 4.
5.	In summary, the offender was a general practitioner working in Darlington.  Over a period of 7 months, he indecently assaulted five of his female patients by, in particular, conducting vaginal examinations which were either unnecessary or inappropriate.  On occasions, those examinations were recorded by the offender using a covert digital camera.  From the computer at his home police retrieved just under 1600 indecent images of children.  The officers also retrieved 36,000 individual J peg images which comprised recordings of the medical examinations of four female patients, three of which had been conducted in the surgery and one in a private bedroom.  Each of the recordings lasted several minutes.  During one such recorded examination the offender's penis was seen to be exposed.
6.	In a little more detail, the practice of which the offender was a part consisted of five doctors, two nurses and 10 other members of staff.  The offender started working there on a salaried basis at the beginning of October 2001, having qualified as a doctor in 1997.  One of the other doctors and both of the nurses were female and approximately 95% of vaginal examinations and smear tests of patients were carried out by the female practitioners, wearing gloves.  On those occasions where a male doctor carried out such an examination, it was usual for there to be a chaperone.
7.	The first count in the indictment, the first of the five counts of indecent assault, related to a 32 year old married lady whom we shall call Mrs A.  She went to the surgery in July 2003 complaining of a feeling of sickness after eating.  She was seen by the offender, who examined her abdomen and provided a bottle for a urine sample.  Just under a week later, on 22nd July, she returned to the surgery and was told by the offender that he needed to take some vaginal smears.  Mrs A had her young daughter with her and thought it inappropriate for that to take place in the child's presence.  The offender insisted that she come back as soon as possible and he gave her an appointment for the following day.  It was usual for receptionists to make such appointments.
8.	She returned on the 23rd.  The offender asked her if she needed a chaperone.  She declined because she trusted the offender.  She lay down on the examination couch.  The offender did not wear gloves.  He inserted a speculum and took internal swabs and then said he wanted an outer swab and told Mrs A to part her labia and hold it open.  At that point she noticed a tissue box positioned between her legs, about a foot away from her private parts.  It had a circular hole cut in one side, behind which she saw a lens.  Unsurprisingly, she felt frightened and humiliated but, not knowing quite what to do, she remained silent.  The offender then rubbed something on her clitoris and conducted another internal examination, positioning his hand high inside her, so that she felt as though the entire hand was there.  At this stage the offender was wearing a glove, but this supposed examination lasted for about 5 minutes, and was painful.  Mrs A, unsurprisingly, thought she was being sexually abused.  After that, the appellant placed another object inside her and made her force it out.  The examination lasted about 20 minutes and, at its conclusion, the offender removed the tissue box and prescribed antibiotics.
9.	Having left the surgery, Mrs A eventually told her mother and a complaint was made to the nurse in the surgery.  In consequence, on 28th July, a partner in the practice found in the offender's room a tissue box with a circular hole cut in it, covered by a piece of Blu Tac on the side.  The partner called for the offender and put these matters to him. He denied the allegation made by Mrs A and claimed that the hole in the tissue box was to facilitate the removal of issues. Thereafter, access was gained to a programme on the offender's home computer.  The following day the offender was suspended from practice and the police were informed.
10.	In the course of their investigation, they examined the offender's computer at the surgery and the one at his home.  The home computer contained recordings of the offender examining undressed female patients and child pornography downloaded from the Internet, which gave rise to many of the counts to which earlier we referred.
11.	Count 2, also of indecent assault, related to a 74 year old patient, called Mrs J.  She is extremely vulnerable: she has cognitive impairment as well as physical disabilities.  One of the sequences on the offender's home computer showed him examining her at her home.  He did not wear gloves. He fondled her breasts. He helped her to remove her pants and to expose her private parts. He rubbed her clitoris and digitally penetrated her and there were times when he deliberately played to the camera.  He massaged her buttocks against which he placed his penis. He made her kneel down on the bed and, having exposed her vaginal area, filmed her from behind.
12.	The complainant in count 4 was a 9 year old girl, E.  She was shown in a sequence from the home computer removing her tights.  The camera then recorded a view of her perineum.  That girl had been taken by her father to see the offender at the end of February 2003. The offender said that he had to take a vaginal swab to check for infection.
13.	Count 5, of indecent assault, and count 6, of making an indecent photograph, referred to a 7 year old girl, K. Again, there was a sequence in the home computer where the offender's ungloved hand was seen repeatedly massaging the girl's clitoris and parting the labia.  Her mother had taken that girl to the offender's surgery in January 2003 because she had stomach cramps and was wetting herself.  The offender said he would have to take a vaginal swab and conduct an internal examination.  The girl's mother had been present throughout the examination but she had been sitting a little distance away.  The offender had his back to her and she was quite unaware of what the offender was doing to the girl.
14.	Count 7, also indecent assault, related to an unknown adult female, depicted in a sequence from the home computer. The offender was stimulating her clitoris without any medical justification.  She has not been identified.
15.	Count 9, the last of the counts of indecent assault, related to a 15 year old girl called L, who was taken to the offender with a vaginal discharge. She went a second time with her mother who, again, was present throughout the examination but she saw very little of what happened because the offender had his back to her.  The mother was aware of the offender persisting in a rubbing motion.  He spent some two minutes with his hand under a sheet rubbing the girl's vagina and, when the mother asked what he was doing, he said he was checking for bacteria.  It was only on a later visit, when a swab was taken by a nurse, that the mother realised that the examination conducted by the offender was not what it should have been.
16.	Counts 11 to 26 arose from images on the offender's home computer.  None of them depicted patients of the offender.  Just under 1600 indecent images were retrieved. Just over 1500 had been deleted but were retrieved by an expert and there were some 86 which had never been deleted. The vast majority of those images were at level 1, but there were 23 images at level 2, 35 at level 3 and 18 at level 4 and one (which did not give rise to a count in the indictment) at level 5.
17.	Counts 11 to 26 were sample counts.  The images in counts 11 to 18 had not been deleted and it was apparent had been downloaded between the 7th and 10th July 2003, usually in the early hours of the morning.
18.	The offender was arrested on 29th July 2003 and on two subsequent occasions in August.  Two boxes of issues, each with a hole cut out at the side, were recovered, one from the surgery and one from the offender's home.
19.	When he was interviewed, the offender initially denied any sexual impropriety and said that the pornography had been downloaded by accident.  When he was confronted with the recordings of the examination of four of his patients, he claimed that they had been made to enable him to review his techniques and treatment to see whether they could be improved.  When shown the recordings, the offender admitted having committed certain acts of indecency and having voyeuristic tendencies.
20.	We turn to the impact of the offender's conduct on four of the victims.  Mrs A lost her confidence in the medical profession and her relationship with her partner also broke down.  The girl K, in view of her age, has not been made known of the sexual nature of the conduct against her but she knows that the offender did something wrong and took photographs of her.  The consequence is that she does not trust doctors and needs to be encouraged when it is necessary for her to see one. She becomes distressed and worried when an appointment is due.  She had been a confident child but she now needs to be chaperoned and does not like to be away from her family.  The victim's mother clearly was also distressed by what had taken place in her presence.
21.	The girl, L, who is now 16, has shown a significant change in her personality and attitude to men.  She has become withdrawn and is unable to forget what happened to her.  Her studies have suffered and she has lost interest in the career which she had planned as a beauty therapist.  She does not trust men and does not want to get physically close to a man.  Her relationship with her male relations and male friends has been adversely affected.  Mrs J, the 74 year old lady, has, fortunately for her, no knowledge of the offences which were committed against her.
22.	On behalf of the Attorney-General Mr Horwell draws attention to what he rightly submits are eight aggravating features.  First, the offences were committed against patients in a gross breach of trust.  Secondly, they were repeated and six patients were the victims of his misbehaviour.  Third, at least four of the patients had their medical examinations recorded.  Fourth, some of the indecent assaults involved penetration of the victims. Fifth, some of the victims, as we have indicated were particularly vulnerable by reason of youth or age and, in addition, the elderly patient had a degree of mental impairment.  Sixth, she suffered in indignities and was treated in a particularly degrading and humiliating fashion.  Seventh, the offences have had a considerable impact on the lives of some of the victims.  Eight, there was a very large number of indecent images of children found.
23.	Mr Horwell draws attention to three mitigating features: first, the plea of guilty, albeit not at the earliest stage; secondly, the fact that the offender was of positive previous good character; and thirdly, that the offender has demonstrated genuine remorse.
24.	A number of authorities were cited in the written Reference and it is desirable to identify many of them, R v Millberry [2003] 2 Cr App R(S) 142, Attorney-General's References Nos 91, 119 and 120 of 2002 [2003] 2 Cr App R(S) 338, Attorney-General's References Nos 37, 38 & Others of 2003 [2004] 1 Cr App R(S) 499, R v Prokop 16 Cr App R(S) 598, R v Pike [1996] 1 Cr App R(S) 4, Attorney-General's Reference No 6 of 1999 [2000] Cr App R 67, Attorney-General's Reference No 60 of 1998 [2000] 2 Cr App R(S) 286, R v Green [2002] EWCA Crim 1501, R v Healy [2003] 2 Cr App R(S) 520 and Attorney-General's Reference No 3 of 2002 [2004] 1 Cr App R(S) 357.  Mr Horwell also referred, in relation to the pornographic images, to R v Oliver [2003] 1 Cr App R 463.
25.	The submission which is made is that the sentences imposed in total by the learned judge were unduly lenient in that they failed to mark the aggravating features of these grave offences, particularly the gross breach of trust, the particular vulnerability of some of the patients and the impact which such offences have not only on the victims, but also on public confidence in the medical profession.
26.	Mr Horwell, by reference to the authorities, correctly identified the four matters which have to be taken into account when approaching sentence in cases of this kind:  first, the degree of harm done to the victims; secondly, the level of culpability of the offender; thirdly, the level of risk which the offender poses; and fourthly, the need for deterring others.
27.	Mr Horwell also drew attention to the observations made by Kay LJ, giving the judgment of the Court in Attorney-General's Reference No 37 & Ors [2004] 1 Cr App R(S) 499, at page 505, where, at paragraph 14, he dealt with the question of good character: 
"In Millberry at para. [29], the Court considered the weight to be attached in rape cases to an offender's good character.  It concluded that whilst it could not be ignored, it could not justify a substantial reduction of what otherwise would be the appropriate sentence. Again that proposition seems equally applicable to other serious forms of sexual offending and it is perhaps important to observe that where an offender has taken advantage of the standing that he enjoys in the community to breach the trust placed in him by others, especially parents, it is difficult to see how the positive attributes that were the very circumstance of his offending can benefit him very much when it comes to sentence. Those who enjoy much standing in the community, be they teachers, priests, doctors or anyone else, have to recognise that the benefits that they enjoy from their position are necessarily balanced by the responsibilities that arise as a result.  If they offend in breach of trust and of those responsibilities, they can hardly expect to enjoy the further benefit of a substantial reduction in their sentence."
28.	On behalf of the offender Mr Roberts QC submits that the sentence passed by the learned judge was a merciful one but not unduly lenient.  He was, as Mr Roberts rightly stresses, a highly experienced judge and he had dealt with this matter throughout its time at the Crown Court.  Mr Roberts drew attention to a number of features which distinguish the authorities to which we have referred from the circumstances of the present case.  He pointed out that, save in the case of Healy, all had been defendants who were tried and convicted and therefore did not exhibit any remorse.  He points out that in none of the authorities was an extended sentence passed, though of course the power to pass an extended sentence did not exist at the time when some of the decisions were reached.
29.	There are, submits Mr Roberts, a number of aggravating features to be found in the authorities, looked at in the round, which are not to be found in the present case.  These can be identified as follows: the defendants were generally mature practitioners in their forties and fifties compared with this recently qualified practitioner in his thirties.  There were, in some cases, lengthy periods of offending, whereas, in the present case, the period of offending was of the order of 12 months.  Some of the defendants in the authorities continued, even after they had been suspended from practice, or indeed prosecuted.  Some of the defendants had made overt sexual approaches to their victims.  Some had merely bogus rather than genuine medical qualifications.  Some had administered stupefying drugs. Some had not had a genuine reason for carrying out the examinations which they did, and some had carried out repeated examinations, on a false basis, of patients who were required by the offender to return for treatment time and time again.
30.	So far as this offender is concerned, Mr Roberts stresses the pleas of guilty, notified some 2 months prior to the date fixed for trial. He submits that there was genuine remorse in this case and a low risk of reoffending, borne out by the fact that the offender had only been practising for some 18 months at the time of these offences.
31.	He is a shy and introverted Muslim with a skin disorder.  He has written a substantial letter to the Court, which the sentencing judge read and which we have read, setting out the background, (including the fact that no marriage had been arranged for him by his parents), which gave rise to the commission of these offences.  Mr Robert points out that the Recorder clearly had in mind all the relevant statutory provisions with regard to his sentencing powers. He accepted that witnesses had been spared from giving evidence, that there was considerable remorse and that the offender was unlikely to behave in this way again.  Furthermore, which is plainly the case, the Recorder's approach was to determine the appropriate overall sentence.  That is an approach with which we entirely agree.
32.	We take all these matters into account.  It is, in our judgment, pertinent that there were serious consequences to three, at least, of the offender's victims. There was clearly a high degree of culpability on the offender's part because of the grave breach of trust occurring in the doctor and patient relationship.  So far as the reports upon the offender are concerned, they show a medium risk of re-offending, which will rise if he has access to children or vulnerable adults in the future.  This is clearly a case where a deterrent element in relation to doctors or those professing to be doctors must be incorporated into the sentencing process.
33.	In our judgment, in the light of all these circumstances, we take the view that the extended sentence of five-and-a-half years passed in the court below and the custodial term of three-and-a-half years' imprisonment were both unduly lenient.  We would have expected, in the court below, in all the circumstances of this case, an extended sentence of 8 years and, even on a plea of guilty, a custodial term of at least five-and-a-half years' imprisonment.  The course which we propose to follow is to impose an extended sentence of 8 years, but the custodial part of that sentence will reflect the element of double jeopardy, that is to say, that the offender is being sentenced a second time.  The custodial part of that 8 year sentence will therefore be four-and-a-half years' imprisonment.  That will be made up in the following way: in relation to counts 1, 2 and 5, the most serious counts of indecent assault, we shall quash the sentence of two-and-a-half years imposed by the learned Recorder and substitute for it a sentence of three-and-a-half years' imprisonment.  That sentence will run concurrently with the two-and-a-half years imposed by the learned Recorder on counts 7 and 9.  Just as the Recorder did, so we order that there shall run, consecutively to that three-and-a-half year term, a period of 1 year, made up of a 1 year sentence in relation to each of counts 4 and 6, which were of making an indecent photograph of, respectively, a 9 year old and a 7 year old.  The total custodial term, therefore, is one of four-and-a-half years' imprisonment.  All the other sentences on the remaining counts for making an indecent photograph and possession of an indecent photograph will be the same as the 3 and 8 month terms imposed by the learned Recorder. They will all run concurrently with each other and concurrently with the total period of four-and-a-half years which we have already identified.