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District Court 27 September 2024

R v Moh’d

[2024] NSWDC 522

Sexual offences
CRIME SENTENCE

Citation: R v Moh'd [2024] NSWDC 522
Court: District Court of New South Wales
Date: 27 September 2024
Judge: Bourke SC DCJ

Background

The offender, a Clinical Nurse Specialist working at Nepean Private Hospital and Norwest Private Hospital, stood trial on eight counts arising from three separate incidents involving three different victims. The jury returned guilty verdicts on four counts and acquitted him on the remaining four.

The four counts for which he was to be sentenced involved three victims: a graduate nurse on a practical placement who was subjected to sexual touching during a supposed training exercise in 2018; a 25-year-old patient who was sexually touched and then digitally penetrated during what was presented as a wound inspection in 2021; and a 67-year-old patient whose breasts were touched while the offender was replacing heart monitor stickers in 2022.

The sentencing proceedings required the court to determine the facts consistent with the jury verdicts, assess the objective seriousness of each offence, weigh subjective factors, and impose an appropriate aggregate sentence.

  • What facts could be established beyond reasonable doubt consistent with the jury's verdicts, including resolving disputed aspects of the victims' evidence.
  • The objective seriousness of each offence relative to the applicable maximum penalties and standard non-parole periods.
  • What weight to give to the offender's subjective circumstances, including any mental health issues and his background as a first-time offender.
  • Whether special circumstances existed warranting an adjustment to the ordinary ratio between the non-parole period and the head sentence.
  • How totality principles should apply in constructing an aggregate sentence across four counts involving three victims and multiple incidents separated by considerable time.

Decision

Bourke SC DCJ made detailed factual findings on each count, accepting the evidence of each victim beyond reasonable doubt. The court acknowledged some inconsistencies in the victims' earlier accounts but found those inconsistencies did not create reasonable doubt about the substance of their trial evidence. In relation to count 1, the court found the offender touched the victim's lower abdomen and used a finger or fingers to pull away her underwear before looking at her exposed pubic area. For counts 4 and 5, the court found the offender massaged the patient's genital area including her clitoris and then digitally penetrated her vagina. For count 6, the court found the offender touched an older patient's exposed breasts while making a demeaning comment about her appearance.

All four offences were found to be opportunistic rather than planned. However, the court observed that they were particularly insidious because the offender exploited a position of professional trust and authority as an experienced nurse. The victims were either in his care as a student or as patients receiving clinical attention, placing them in a position of genuine vulnerability.

The court found special circumstances existed, based on the offender's first experience of custody and his mental health issues, justifying an adjustment to the ordinary ratio between the non-parole period and the total sentence. Applying totality principles, the court imposed some degree of notional accumulation to reflect the three separate victims and the significant gaps between incidents, while keeping the accumulation between counts 4 and 5 minimal given they arose from a single episode involving the same victim.

Orders Made

  • Aggregate head sentence of five years and two months imprisonment, commencing 5 August 2024 and expiring 4 October 2029.
  • Non-parole period of three years and six months, expiring 4 February 2028.
  • Indicative sentences recorded as: Count 1, 12 months (non-parole period 8 months); Count 4, 18 months (non-parole period 12 months); Count 5, 4 years 2 months (non-parole period 33 months); Count 6, 12 months (non-parole period 8 months).

Key Takeaways

  • The District Court confirmed that, when sentencing on multiple counts with an aggregate sentence, indicative sentences for each individual count must still be stated on the record, even though they do not constitute the final sentence.
  • A finding of special circumstances, here grounded in the offender's first experience of custody and mental health considerations, permits the court to depart from the standard ratio between non-parole period and head sentence under the Crimes (Sentencing Procedure) Act 1999.
  • Opportunistic offending does not reduce objective seriousness where the offender's professional position created the opportunity and exploited the trust and vulnerability inherent in clinical relationships.
  • Totality principles require the court to consider not only the number of counts but also whether offences involved separate victims and were separated by significant intervals of time, factors that may justify greater accumulation than offences committed in a single episode against the same victim.
  • Inconsistencies between a witness's earlier complaints and their trial evidence do not automatically create reasonable doubt; the court assesses whether the inconsistencies undermine the essential reliability of the evidence taken as a whole.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61KD(1)(a), 61J(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Commonwealth DPP v De La Rosa (2010) 79 NSWLR 1
- Mohindra v R [2020] NSWCCA 340
- MRW v R [2011] NSWCCA 260