Bello v The the King

The appellant, Bello, appealed against his conviction and sentence for sexual touching without consent and for possessing a prohibited drug. The appeal was heard in the NSW Court of Criminal Appeal. Bello was a medical practitioner working in an emergency department when he engaged in sexual activity with a patient, who believed the activity was part of her treatment. Bello was subsequently convicted and sentenced in the Local Court. Bello appealed both his conviction and sentence.

The court needed to determine if the prosecution proved beyond reasonable doubt that Bello's sexual activity with the complainant was not consensual. The court considered the conflicting accounts of Bello and the complainant. The complainant alleged that she did not consent to the sexual activity, while Bello claimed that the activity was consensual. The court found that the prosecution could not exclude the possibility that the complainant genuinely believed the sexual activity was part of her treatment, and therefore, the court was not satisfied that the lack of consent was established beyond reasonable doubt. The court also considered the appeal against the sentence for possessing a prohibited drug. Bello possessed three 10ml vials of anabolic steroids for personal use to lose weight. The court found that the offence was minor, and a conviction would not be appropriate. The court considered Bello's good character, lack of prior convictions, and positive character evidence.

The court allowed the appeal against the conviction and sentence for sexual touching without consent. The court quashed the conviction and sentence imposed by the Magistrate. The court dismissed the sequence 2 without conviction pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999. The court found that the prosecution could not exclude the plausible alternative hypothesis that the complainant genuinely believed the sexual activity was part of her treatment. The court also found that a conviction for possessing a prohibited drug was not appropriate given the minor nature of the offence and Bello's good character.