Two High Court judges sitting in Pietermaritzburg have ruled that former Durban gynaecologist Lloyd Damian Daniels must serve a term of imprisonment for indecently assaulting a young pregnant patient while he was examining her at RK Khan Hospital on September 25 2001.
Judge Nic van der Reyden, with Judge Chris Nicholson concurring, handed down the reserved judgment in chambers as the Pietermaritzburg courts remained closed from Wednesday last week because of the strike action by civil servants.
The judges confirmed a sentence of three years' imprisonment imposed on Daniels in terms of Section 276 (1) (i) of the Criminal Procedure Act, which provides for Daniels to be placed under correctional supervision at the discretion of the commissioner of correctional services.
In the written judgment, the judges refused an application by advocate Igna Stretch for an increase in the sentence.
"However, any increase in sentence on appeal could be indicative of the outrage experienced by me on the initial reading of the appeal record," Judge van der Reyden stated in the judgment.
"Outrage or disgust should not unduly influence the sentence to be imposed. In considering the sentence imposed, I warned myself against an emotional approach," he stated.
The appeal court was satisfied that there had been no misdirection on the part of the regional court magistrate who imposed the sentence on Daniels, nor did the sentence impose a sense of shock, said Judge Van der Reyden.
Earlier the judge said he was not persuaded that a non-custodial sentence would be appropriate in the matter.
"The facts of this appeal call for a term of imprisonment," he said.
He said it had been argued on appeal that Daniels had been struck from the roll of medical doctors and that this on its own, was more than sufficient punishment for his misconduct.
Judge van der Reyden found that Daniels had abused his position of trust as a medical doctor, in breach of his own ethical rules and the trust the complainant (his patient) would have had in him when she entered his consulting rooms.
The judge said these were aggravating factors.
He stated in the judgment that he fully agreed with the judgment of the regional court magistrate at the trial who stated that Daniels had, as a doctor, disregarded the human dignity of a patient.
"You violated her in a most intimate and vulnerable position. I find that to be an aggravating feature.
"You basically treated a human being like a piece of meat, objectifying her.
"I find that your conduct involves something which I can only say invokes a sense of outrage," the magistrate said.
Daniels was initially charged with rape by the patient - a 17-year-old pregnant woman - whose evidence was to the effect that Daniels had surreptitious sexual intercourse with her during her gynaecological examination.
Daniels denied raping her, but pleaded guilty to indecent assault.
He did not give evidence in his defence.
One of two psychologists called to testify by the defence submitted that he had suffered from "behavioural dysfunction" brought on by exposure to stress and working long hours, and submitted he had diminished responsibility.
However, the appeal court found that there was no merit in the psychologists' submission, and said Daniels's "so-called medical examination of the complainant was beyond a reasonable doubt a ruse to enable him to satisfy his sexual desires", which had been "calculated and executed step by step".
Judge van der Reyden said Daniels had been aware of his fantasies involving young girls and yet chose to put himself in a position where he could give vent to these desires and fantasies.
All that had been required of Daniels to protect himself and his patient had been to ensure that the examination took place in the presence of a female nurse.