Citation: Bello v R [2022] NSWDC 768
Court: District Court of New South Wales
Date: 14 December 2022
Judge(s): Tupman DCJ
Background
The appellant, a medical practitioner working in the emergency department of a public hospital, was convicted in the Local Court of one count of sexual touching without consent under s 61KC(a) of the Crimes Act 1900 (NSW). The complainant had attended the emergency department as a patient on 4 November 2019 presenting with urinary symptoms and flank pain. The appellant treated him that evening, and the two exchanged telephone numbers before the complainant was discharged around midnight.
The following day, the complainant initiated contact with the appellant and subsequently attended the appellant's home. It was at this location that the alleged sexual touching occurred. The prosecution's case was that any apparent consent by the complainant was vitiated because he believed the sexual activity was part of his medical treatment. The appellant maintained the contact was consensual and that he had no reason to believe otherwise.
The appellant was also separately convicted in the Local Court of possessing a prohibited drug, specifically three 10ml vials of anabolic steroids, and fined $500. He appealed both the conviction for sexual touching and the sentence for drug possession to the District Court.
Legal Issues
- Whether the prosecution proved beyond reasonable doubt that the complainant did not consent to the sexual touching, specifically whether his apparent consent was given under the mistaken belief that the activity was for health purposes (s 61HE(6)(c) of the Crimes Act 1900)
- Whether the appellant knew, or was reckless as to, the complainant's lack of consent
- Whether the sentence for possession of a prohibited drug should instead be disposed of without conviction under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999
Decision
Conviction appeal (sexual touching): Tupman DCJ found that the versions of the complainant and the appellant were almost diametrically opposed on the question of consent. The prosecution's sole basis for establishing lack of consent was that the complainant only agreed to the touching because he mistakenly believed it was part of his medical treatment. The District Court accepted that the complainant had some belief that further contact with the appellant might involve medical assistance, but found this was not the only reason he initiated contact.
The court was not satisfied that the prosecution had excluded the plausible alternative hypothesis that the complainant was in fact consenting to the sexual touching on a basis other than a mistaken belief about health purposes. Without being able to establish that mistaken belief beyond reasonable doubt, the prosecution could not prove lack of consent as required. On that basis, the conviction appeal was upheld and the conviction was quashed.
Sentence appeal (drug possession): The appellant had possessed 30ml of anabolic steroids, which fell below the "small quantity" threshold under the Drug Misuse and Trafficking Act 1985, and the steroids were for his personal use. The District Court noted the appellant had already lost his medical employment shortly after arrest and had been serving an intensive correction order for approximately 15 to 16 months due to a misunderstanding that lodging the conviction appeal had stayed that sentence. That misunderstanding had resulted in ongoing contact with a psychologist, which the court regarded as beneficial to his rehabilitation.
Taking into account the appellant's good character, 15 years of respected service in the public hospital system, the absence of any prior convictions, and the relatively minor nature of the offence, the court found it was not appropriate to record a conviction. The sentence appeal was upheld and the matter dismissed without conviction.
Orders Made
- Conviction appeal for sexual touching without consent upheld; conviction and sentence quashed
- Sentence appeal for possession of a prohibited drug upheld; conviction and sentence quashed; offence dismissed without conviction pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999
Key Takeaways
- Where the prosecution relies solely on s 61HE(6)(c) of the Crimes Act 1900 to establish lack of consent (consent given under a mistaken belief that sexual activity is for health purposes), it must prove that mistaken belief beyond reasonable doubt, and failure to exclude a plausible alternative basis for consent will be fatal to the charge.
- A conviction for sexual touching without consent cannot be sustained where the evidence leaves open a reasonable doubt that the complainant may have had reasons for participating beyond the specific mistaken belief alleged by the prosecution.
- Under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999, a court may dismiss a minor drug possession offence without recording a conviction where the offender's character, the trivial nature of the offending, and rehabilitation prospects collectively weigh against the burden a conviction would impose.
- In dismissing the drug possession matter without conviction, the District Court treated the appellant's lengthy period of compliance with an ICO (served due to a procedural misunderstanding about stays pending appeal) as a relevant factor in assessing whether a conviction was warranted.
- Good character evidence, including positive references from professional colleagues and an unblemished record over a long career, can carry significant weight in sentence proceedings, particularly where an offence is at the lower end of seriousness.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61HE(6)(c), 61KC(a)
- Crimes (Appeal and Review) Act 2001 (NSW), s 18
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10(1)(a)
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1)(a)
Cases:
- McNiven v Director of Public Prosecutions NSW [2001] NSWCA 298