By Paul Gregoire and Ugur Nedim
Between 23 April and 12 June 2014, Central coast physiotherapist Youngjin Jung indecently assaulted seven patients at his Ocean Beach Rd practice in Umina. Over that time, Mr Jung carried out twelve inappropriate acts upon clients with “no professional justification” for doing so.
On several occasions, Mr Jung exposed clients’ breasts during treatment and proceeded to massage them. “I’m sorry, I must apologise if it was inappropriate, you have very beautiful breasts,” Jung remarked after massaging a patient.
During one session, Jung place his finger on a woman’s pelvic bone, while on another occasion he rubbed his hands back and forth over the exterior of a patient’s pubic area. Mr Jung would often tell his patients that this would assist in their recovery.
Escalating conduct
The physiotherapist became more brazen as time went on. On 7 June, Jung exposed the breasts of one patient for 10 minutes and began asking about her social life. “Do you go out? Where do you go?” he questioned her. “Would you go with other men?”
On 12 June, the married 35-year-old father-of-two exposed another patient’s breasts and began massaging.
“Have you had any fun with any men lately?” he asked, as he began sliding one hand down towards her pants. “I can do a full body massage at your home for $50, but don’t tell anybody. I can give you my number.” The patient was so shocked that she left the practice with her bra in her bag
After several complaints to police, Jung was eventually arrested on 13 June, 2014.
At the District Court
On 2 March last year, Mr Jung appeared for sentencing in the Sydney District Court, after pleading guilty to ten counts of indecent assault, contrary to section 61L of the Crimes Act 1900. Two other indecent assaults were placed on a ‘form 1’, which means they were admitted and taken into account during sentencing.
Indecent assault carries a maximum penalty of 5 years imprisonment. District Court Judge Clive Jeffreys imposed an aggregate sentence of 5 years, with a non-parole period of 3 years and 6 months.
Five of the patients Mr Jung assaulted submitted victim impact statements to the court, which made it clear Jung had breached the trust they had placed in him due to his position as a healthcare professional.
The conduct had led to several of the victims to avoid further treatment from male physiotherapists, and some required counselling after the assaults.
The finding of the sentencing judge
Judge Jeffreys found that Jung had seriously abused his position of trust. His Honour found that the assaults were “objectively grave behaviour,” as they involved “skin to skin contact.” The acts did not relate to treatment in any way – they were solely for Jung’s sexual gratification.
A report by psychologist Ms Jung Sook Kim dated 14 February, 2016 was tendered as evidence. Ms Kim opined that Jung was suffering from depression and anxiety, and that this had contributed to his offending conduct.
“In my view on balance I am not satisfied that the offender’s mental problems contributed in a material way to his offending,” Judge Jeffreys nevertheless found. However, His Honour did acknowledge Jung was suffering severe depression at the time of sentencing, and that this should be taken into consideration.
By his own admission
On 13 February this year, Mr Jung appealed his sentence to the NSW Court of Criminal Appeal (NSWCCA) on two grounds.
The first was that the sentencing judge had erred by not finding his mental condition had an effect on his offending conduct.
NSWCCA Justice Peter Johnson noted Ms Kim’s finding that Jung was suffering from a severe adjustment disorder and major depressive disorder in February 2016, and that he was “depressed and very irrational” in the lead up to his arrest in June 2014.
However, Justice Johnson pointed out that Mr Jung had not made any reference to his mental health as a contributing factor for the assaults whilst being cross-examined during his sentencing hearing. When asked if anything had contributed to his behaviour, Jung replied, “No, there’s no excuse about it.”
Mr Jung acknowledged that the reason for the conduct was that he was sexually attracted to the victims. He also agreed that at the time he carried out the assaults, he was aware that he would lose his registration as a physiotherapist if reported.
The court rejected the first ground of appeal, with Justice Johnson finding a “disconnect” between the evidence of the offender and his psychologist. Based on Mr Jung’s own testimony, His Honour found no link between Jung’s mental issues and the offences.
Abuse of trust
The second ground of appeal was that the sentence was “manifestly excessive.”
In considering this ground, Justice Johnson noted that Mr Jung had admitted being aware his actions were inappropriate, and yet he continued with them. It was only due to his arrest that he stopped.
The fact Jung was of good character prior to committing the offences had little bearing on the case, as “it was a condition of his registration under the Health Practitioner Regulation National Law that he be a suitable person to hold registration as a physiotherapist.”
His Honour found the patients were entitled to assume their medical practitioner was of good character. “The fact that, under the guise of treatment, the applicant abused the trust of his patients in committing these offences was a significant aggravating factor on sentence,” he remarked.
Justice Johnson referenced Baine v R, which was the case of a masseur who committed offences against female clients at a gymnasium. However, the justice found no direct comparison could be made between the cases, as the masseur was not a registered medical professional in a position of trust.
An appropriate sentence
“Additional considerations apply when a registered health professional commits sexual offences against patients,” His Honour reasoned. He then cited Justice Grove in R v Arvind:
“The gravity of the sexual offences committed by the appellant was magnified by the circumstance that there was involved a breach of trust which the patient reposed in a medical practitioner.”
The claim that the sentence was excessive was rejected by the court. Justice Johnson found that the sentencing judge was open to impose the sentence he did. That sentence, he concluded, was a “moderate” response considering the particular case.
On 6 March this year, the court dismissed Mr Jung’s appeal against the severity of his sentence.
