Citation: R v Foster [2021] NSWDC 726
Court: District Court of New South Wales
Date: 19 November 2021
Judge: Bourke SC DCJ
Background
A senior nurse at Kaoriki House, a 12-bed psychiatric inpatient ward within Morisset Hospital, was found guilty following a judge-alone trial of six sexual offences committed against a patient referred to as Ms P. Ms P had been an involuntary inpatient from March 2018 to April 2019, and suffered from schizophrenia, heroin addiction managed with methadone, and a neurological condition known as Pantothenate Kinase Associated Neurodegeneration (PKAN), which impairs cognitive and executive functioning.
The offending occurred across four separate incidents between Christmas Eve 2018 and 28 January 2019. The incidents took place in secluded areas of the ward, including an outdoor courtyard alcove, a tribunal hearing room, and a locked room to which the offender had a key. The offences escalated in seriousness and included fondling, digital penetration, and ejaculation on the victim. Following the final incident, Ms P preserved a semen stain on her clothing and posted the item to her daughter; DNA testing confirmed the offender's involvement.
The offender had been acquitted of two counts but convicted of five counts of sexual touching of a person with a cognitive impairment by a person responsible for their care, and one count of committing a sexual act towards such a person. He was sentenced on 19 November 2021.
Legal Issues
- What was the objective seriousness of the six offences, having regard to the level of Ms P's cognitive impairment at the time of each incident?
- What individual sentences were appropriate for each count, given the applicable maximum penalties and standard non-parole periods?
- How should the principle of totality and the question of accumulation versus concurrency be applied across four separate incidents involving six counts?
- Whether special circumstances existed justifying a non-parole period less than the statutory proportion of the head sentence.
Decision
His Honour assessed the objective seriousness of the offending as significant, noting the particular vulnerability of Ms P as an involuntary psychiatric patient under the care and authority of the offender. While the level of Ms P's cognitive impairment fluctuated, His Honour found it was in the mild to moderate range at the time of the offences, based on her ability to give coherent accounts and her demonstrable awareness of and distress at what was occurring. Her vulnerability was nonetheless acute, compounded by her status as an involuntary patient and the offender's position of trust and responsibility.
His Honour considered the relevant maximum penalties: seven years' imprisonment with a standard non-parole period of five years for the sexual touching offences, and three years' imprisonment (with no standard non-parole period) for the sexual act offence. The standard non-parole periods served as guideposts but were not mechanically applied. His Honour also weighed the offender's good character, lack of prior criminal history, and the absence of any recorded victim impact statement, while noting the inherent harm such offending causes.
On totality and accumulation, His Honour applied the principle from Cahyadi v R, finding that some accumulation was necessary given the four distinct incidents. However, within incidents where two counts arose from a single episode (counts 2 and 3, and counts 4 and 5), those sentences were treated as essentially concurrent. His Honour then stepped back to assess the overall criminality and imposed an aggregate sentence that reflected the minimum period required without being crushing.
Special circumstances were found, given the offender had never previously been in custody and would require supervision and monitoring over an extended period upon release.
Orders Made
- Count 1: 16 months' imprisonment, non-parole period of 9 months
- Count 2: 16 months' imprisonment, non-parole period of 9 months
- Count 3: 18 months' imprisonment, non-parole period of 10 months
- Count 4: 16 months' imprisonment, non-parole period of 9 months
- Count 5: 9 months' imprisonment (no non-parole period required)
- Count 8: 24 months' imprisonment, non-parole period of 13 months
- Aggregate sentence: 3 years and 6 months' imprisonment
- Non-parole period: 2 years, commencing 19 November 2021
- Head sentence expiry: 18 May 2025; non-parole period expiry: 18 November 2023
- Special circumstances finding recorded
Key Takeaways
- The District Court confirmed that the vulnerability of a complainant with cognitive impairment is a significant factor in assessing the objective seriousness of offences under the relevant provisions of the Crimes Act, particularly where the offender held a position of care and authority over the victim.
- A finding of special circumstances was available where the offender had no prior custodial history and where extended post-release supervision was considered necessary, allowing a non-parole period below the standard statutory proportion.
- Where multiple counts arise from a single incident, sentencing courts will ordinarily treat those sentences as concurrent with each other; however, where offending spans distinct incidents, some degree of accumulation is appropriate to reflect the separate episodes of criminality.
- Under the totality principle as applied in Cahyadi v R, the aggregate sentence must represent the minimum period commensurate with the overall criminality and must not be crushing, requiring the sentencing judge to step back and assess the combined effect of individual sentences.
- The standard non-parole period applicable to the sexual touching offences (five years against a maximum of seven years) functioned as a legislative guidepost, not a mandatory minimum, and was calibrated against the court's assessment of relative seriousness across the specific facts.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61KD(1)(a) and 62KF(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- Cahyadi v R (2007) 168 A Crim R 141
- Mohindra v R [2020] NSWCCA 340