R v Foster

[2021] NSWDC 726

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Foster [2021] NSWDC 726

Hearing dates:

16/8/21-23/8/21, 27/8/21, 22/10/21, 19/11/21

Date of orders:

19/11/21

Decision date:

19 November 2021

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to an aggregate term of imprisonment of 3 years 6 months with a NPP of 2 years (19/11/21-18/11/23). I find special circumstances.

The indicative sentences are:

Count 1 – 16 months with NPP 9 months

Count 2 – 16 months with NPP 9 months

Count 3 – 18 months with NPP 10 months

Count 4 – 16 months with NPP 9 months

Count 5 – 9 months

Count 8 – 24 months with NPP 13 months.

Catchwords:

Crime – Sentence – Sexual touching of person with cognitive impairment - Sexual act towards person with cognitive impairment – Sexual intercourse with person with cognitive impairment

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Cahyadi v R (2007) 168 A Crim R 141

Mohindra v R [2020] NSWCCA 340

Category:

Sentence

Parties:

NSW DPP – Crown
Paul Douglas Foster - Offender

Representation:

Counsel:
Mr R Munro for Crown
Mr S Ryan for Offender

File Number(s):

2019/260738

Publication restriction:

Non-publication order in relation to the identity of the complainant

sentence

1. The offender, Mr Paul Foster, stood trial before me sitting without a jury between 16 August and 23 August 2021 on an indictment containing eight counts. On 27 August 2021, I delivered my verdicts and reasons in which I found the offender not guilty of counts 6 and 7 but guilty of the remaining six counts.

2. Those six counts for which the offender is now to be sentenced are as follows. Five counts under s 61KD(1)(a) of sexual touching of a person with a cognitive impairment by a person responsible for their care. The maximum penalty for those offences is seven years' imprisonment and a standard non-parole period of five years is specified.

3. He is also to be sentenced for one offence under s 62KF(1)(a) of the Crimes Act of committing a sexual act towards a person with a cognitive impairment by a person responsible for their care. The maximum penalty for that offence is three years' imprisonment and there is no standard non parole period specified. The maximum penalties, and where applicable, standard non-parole period are important guideposts in the sentencing exercise to which I have had regard.

FACTS

4. Turning to factual matters. The offences involved a single victim, who I will refer to as Ms P, who was a patient at Kaoriki House where she had been admitted from 12 March 2018 until 2 April 2019. Kaoriki House is a 12-bed psychiatric inpatient ward within Morisset Hospital, and the offender was a senior nurse there at the time. Ms P had schizophrenia and was taking medication for that condition. She was also taking methadone each day for heroin addiction. Ms P reported that these medications sometimes had a stupefying effect upon her.

5. Ms P also has a condition known as Pantothenate Kinase Associated Neurodegeneration, also known as “PKAN”, which can cause a person to have difficulty in articulating words clearly, and very slow, muffled or strangled speech, or a tendency to repeat syllables or words over and over very rapidly. It is a cognitive impairment and may affect executive functioning.

6. At Kaoriki House, patients who smoked were allowed to have a cigarette approximately every three hours. These would be distributed by a staff member at specific times of each day.

7. The offences occurred during four separate incidents. The first incident is the subject of count 1. Count 1 is an offence of sexual touching of a person with a cognitive impairment by a person responsible for that person's care. The offence occurred in an external courtyard on Christmas Eve 2018, when the offender touched Ms P's breasts. This occurred in an alcove which she referred to as a "hidey-hole" after a barbecue. The offender was on duty at that time and had been cooking food on the barbecue for the residents earlier in the afternoon. The barbecue had finished and the other staff and residents had gone back inside the building. In finding the offender guilty of this offence I accepted beyond reasonable doubt Ms P's version, namely that the incident occurred in the hidey-hole while Ms P was standing up. The offender put his hand under Ms P's shirt and bra and said "Jeez you've got nice tits". When Ms P said "Paul, leave me alone, I don't want to do it. I'm uncomfortable" the offender replied "Don't worry about it" and continued to touch her breast for a couple of minutes.

8. The second incident is the subject of counts 2 and 3. Those two counts are also offences of sexual touching of a person with a cognitive impairment by a person responsible for that person's care. These offences occurred in the same open courtyard sometime between 24 December 2018 and 27 January 2019. Ms P was sitting down but was in a position where the offender could be in front of her, and also see if anyone was coming. The offender approached her and played with her breasts on the inside of her clothing using circular motions with his hands. This is the subject of count 2. He then put his hand down her skirt and into her underpants and touched her on the vagina with his fingers. This is the subject of count 3. This overall incident occurred for several minutes. During the incident the offender told Ms P "You're my favourite. You smell like berries and you taste like sweet red wine" or something similar. The incident ceased when Ms P began to cry. The offender then left her alone and she went to her room where she continued to cry.

9. The third incident is the subject of counts 4 and 5. Count 4 is an offence of sexual touching of a person with a cognitive impairment by a person responsible for that person's care. Count 5 is an offence of committing a sexual act towards a person with a cognitive impairment by a person responsible for that person's care. This third incident occurred in a tribunal hearing room at Kaoriki House between 24 December 2018 and 27 January 2019. On this occasion the offender took Ms P to the tribunal room through a locked door and once inside he sat on the edge of a table and fondled her breasts, this being the subject of count 4, and also fondled his penis, which is the subject of count 5. This incident stopped when Ms P started crying out of fear.

10. The fourth incident is the subject of count 8. Count 8 is another offence of sexual touching of a person with a cognitive impairment by a person responsible for that person's care. This incident took place in a locked room at Kaoriki House on 28 January 2019. The offender took Ms P by the hand and walked her there just before the last cigarette break when staff were putting out supper food which usually happened around 7pm to 8pm. The offender had a key to the room and once inside he took off his own clothes and laid the victim on her back on a bed. The offender exposed Ms P's breasts, either by pulling up her top, or removing it altogether, and then put his penis between her breasts until he ejaculated on her breasts. Ms P wiped the semen off her breasts with her shirt. The offender and Ms P were in the room for about 10 to 15 minutes. The offender told Ms P that if she ever spoke about the assault she would lose her house or be moved to another hospital where she would not get the house for which she was on a waiting list. Ms P, after using lipstick to mark the location of the semen stain on her shirt, sent the shirt or top to her daughter in the post. Testing of the stain confirmed the presence of the offender's DNA. Those are the factual matters upon which Mr Foster is to be sentenced.

OBJECTIVE SERIOUSNESS

11. There can be no doubt that the offences before the Court are serious. The maximum penalties and the standard non-parole period that applies in relation to five of the offences makes that clear. However, that observation can be made about any examples of these types of offences, and so it is necessary that I make an assessment of the relative seriousness of the particular examples of offending that are before the Court.

12. One factor that is of relevance to all the offences is the level of cognitive impairment by which Ms P was affected. In my view the severity of the impairment by which Ms P was affected is likely to have fluctuated. At times it was fairly severe with her experiencing hallucinations and feeling stupefied by the drugs she was on.

13. The fact that Ms P's mental impairment was or could at times, however, be severe is supported not only by the specific medical evidence about her conditions, but also by the fact that she was held in Kaoriki house for a period in excess of 11 months. However, and as explained by her treating psychiatrist, Dr Keighran, at other times Ms P's level of impairment was more mild. As Dr Keighran said, her condition would wax and wane and she would experience flare-ups which were usually brief, sometimes hours to a day or so, and her condition might change moment to moment.

14. However, and as is obvious from the fact that I was satisfied beyond reasonable doubt as to the essence of Ms P's evidence of the various offences, I am not of the view that her mental impairment at the time of the offences was severe, given that she was able to describe the incidents in a logical and coherent way, and given that on each occasion she either offered some resistance, at least verbally, or indicated, for example by crying, that she was well aware of what was going on, and distressed by it.

15. Although it is difficult to be proscriptive about such a matter, I assess the level of her impairment at the time of the various offences as being in the mild to moderate range. However, the fact that she was impaired and at times seriously impaired, made Ms P a vulnerable and easy target, even more so because she was being held as an involuntary patient. Ms P herself implicitly acknowledged her vulnerability and relative helplessness in her police interview when she said that she had collected the semen sample on her shirt because she thought that people "wouldn't believe me, think I'm delusional".

16. It is no doubt this vulnerability of people with cognitive impairments that has led Parliament to create offences like those with which the offender has been convicted.

17. Another factor common to all of the offences before the Court is that they took place in a location which at the time was Ms P's home. She should have been entitled in her home to feel safe from sexual exploitation and the fact that the offences took place in Ms P's home is a matter that increases their seriousness. Of course in referring to her home I am referring to Kaoriki House where she lived for about 11 months or so.

18. In my view, each of the offences were a product of the vulnerable position in which Ms P was placed, a matter I have already described, combined with the position of authority which the offender occupied as a person responsible for her care. I am conscious, however, that these are inherent aspects of the offences of which the offender has been convicted, and they do not increase the objective seriousness of the particular offences before the Court.

19. It was, however, argued by the Crown that each of the offences involved a breach of trust in terms referred to in s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999. In oral submissions, the Crown accepted, in part, my observation that there was a great deal of overlap in this case between any position of trust and the concept of "being a person responsible for the care" which is an element of the offences. The Crown referred me to the decision of Mohindra v R [2020] NSWCCA 340 where, at para 25, Basten JA accepted that the concepts of “trust” and “authority” differ in some respects, and that in some cases both terms may apply. This will, however, as his Honour noted, often depend on the circumstances of the case. While I accept that on the facts of this case there was some level of a breach of trust involved, it seems to me that the offences are more correctly to be regarded as involving a breach of the authority inherent in the element of being a "person responsible for the care" of Ms P. In my view, to treat this also as a “breach of trust” case would involve a substantial degree of double-counting.

20. It was also submitted by the Crown that there was an aspect of “grooming” to the offender's behaviour. In this respect, the Crown pointed to comments attributed to the offender such as that Ms P was "his favourite" and comment such as "Jeez you've got nice tits". It was also the fact that Ms P said in evidence that the offender would give her extra cigarettes at the time of or after the incidents of sexual touching. I have considered this submission by the Crown and while I am not satisfied that this behaviour amounted to “grooming” in the usual sense of that word, I am satisfied that most, if not all of the offences, involved conduct that was aimed at dissuading Ms P from making any complaint to others. I will consider this aspect more closely when examining the objective seriousness of each of the offences.

21. Turning to the objective seriousness of count 1, this involved the offender placing his hand under Ms P's shirt and bra and fondling her breasts, skin on skin, while Ms P and the offender were in the external courtyard referred to by Ms P as the "hidey-hole". It occurred over a period of a couple of minutes while others were not around, and at a time when Ms P was at least moderately affected by her mental condition and by the medications she was on to treat that condition. The offence was accompanied by the offender saying "Jeez you've got nice tits", which I am satisfied was intended as some sort of compliment to encourage Ms P to keep quiet about the abuse. I am also satisfied that the offender gave Ms P an extra cigarette or cigarettes as a further incentive to her to remain quiet.

22. It was argued by the Crown that the offence involves an inherent level of planning, although not to the extent that the aggravating factor in s 21A(2)(n) applies. I have considered this issue. However, it seems to me that the offence was opportunistic and cannot be said to have been planned. I assess this offence as being slightly below the mid-range.

23. Turning to counts 2 and 3. These two offences also occurred in the external courtyard. Count 2 involved the offender placing his hand inside Ms P's clothing and touching her breasts skin on skin, and count 3 involved the offender placing his hand inside Ms P's skirt and underpants and touching the outside of her vagina. Again, the offending was accompanied by complimentary remarks such as "You're my favourite" or similar, which were intended as an encouragement for Ms P to say nothing about the abuse. He also gave her a cigarette or cigarettes for the same purpose. These offences went on for a number of minutes, although not more than five minutes, and stopped when Ms P began to cry. In my view each offence was opportunistic rather than planned. I assess count 2, which involves skin on skin touching of the breasts, as being slightly below the mid-range, and count 3 which was skin on skin contact with the vagina, as being into the mid range.

24. Turning to counts 4 and 5, these offences occurred in the tribunal room after the offender took Ms P there. Count 4 involved the offender fondling Ms P's breasts. Ms P could not recall whether the touching of her breasts was under or over her clothes, and so I treat count 4 as an offence involving sexual touching that was not skin on skin. Count 5 involved the offender exposing and then masturbating his penis in front of Ms P. The offences occurred in a relatively isolated room where Ms P would have felt even more helpless. The offences came to an end when Ms P started crying. While the offences were largely opportunistic, they did involve some level of planning by reason of the offender's actions in taking Ms P to the tribunal room to minimise the risk of detection. While there is no evidence of any specific comments or threats by the offender in the context of these two offences, I am satisfied that he provided Ms P with a cigarette or cigarettes as encouragement for her being silent. I assess the count 4 offence as being slightly below the mid-range, and as to the count 5 offence, which was of a different kind to the remaining five counts, I assess this offence as being around the mid-range.

25. Turning to the objective seriousness of count 8. This offence occurred when the offender took Ms P to another room on the ward where he undressed himself and then exposed Ms P's breasts, after which he rubbed his penis between her breasts until he ejaculated onto her breasts. The incident was not brief in that it took some minutes. It occurred in an isolated room where Ms P would have felt quite helpless. The offence also involved a threat in that the offender told Ms P that if she spoke about the incident she would lose the house she was waiting for, and/or be moved to another hospital. I also accept that Ms P was given a cigarette or cigarettes by the offender as an incentive to not report the offence. I accept the Crown's submission that this is a very serious form of sexual touching.

26. The Crown suggested the offence falls toward the top of the range. Counsel for the offender suggested that it lies above the mid-range. In my view the objective seriousness lies above the mid-range and towards, although not into, the upper range of objective seriousness.

VICTIM IMPACT STATEMENT

27. A Victim Impact Statement from Ms P sets out some of the consequences for her of the offender's conduct. She says she feels "dirty and worthless like it was my fault that I let it happen" and that although people have told her that it was not her fault, she still blames herself. She says that the stress of the offender's actions has left her with nightmares, extreme anxiety and paranoia, more than she has experienced in the past, and that this has had a lasting effect, including a loss of trust in nurses and doctors.

28. The Crown did not rely on the contents of the Victim Impact Statement as an aggravating factor, and did not submit that the offences are aggravated by reason of having caused substantial harm for the purposes of s 21A(2)(g), and I therefore do not treat the contents of the Victim Impact Statement as aggravating in that sense. However, I certainly do not suggest that the offences have had little or no impact on Ms P. The courts of this country have in recent decades said repeatedly that sexual offences will usually, if not almost invariably, have significant and often long-term effects on victims. In my view there is no reason to think that this case is any different, and I accept that the offences regrettably will have left their mark on the victim, and to some extent also her family.

SUBJECTIVE MATTERS

29. Turning then to subjective matters relating to Mr Foster. Mr Foster is 45 years old and has no prior criminal convictions other than a matter of public drunkenness in 2008 which is of no relevance. He is of prior good character. He did not give evidence on sentence, and maintains his innocence. However, a psychological report of Megan Godbee was tendered on his behalf. His childhood upbringing was essentially a good one and did not involve domestic or other violence or deprivation. He left home at age 18 and has largely lived independently since then. Although he underachieved at school, he later became a registered nurse and worked as a nurse for over 20 years before being suspended after being charged in relation to this matter. Although he is a user of alcohol and in the past has used other drugs, he does not have a substance abuse problem. He has congenital hearing loss but it was not suggested that this was a major factor to be taken into account in sentencing.

30. He was married for 21 years and he and his ex-wife have three children together, who are now high school age. Two of the children have autism, which was very stressful in the early stages, and the offender told the psychologist that once this stressful period was over there was no "glue" to hold the relationship together. The relationship unravelled in the period from about two years before the offences, and once the allegations came to light this led to an increase in the offender's alcohol usage, at which time his wife ended the relationship. The offender is now in a new relationship, having met his current girlfriend earlier this year, and the pair are engaged to be married. The psychologist thought that the offender's history of anxiety and other thoughts might be indicative of bipolar disorder, an autism disorder, or ADHD. However, she was unable to reach any definitive diagnosis. She considered that bipolar disorder probably explains the majority of his symptoms, but that those symptoms are usually mild, and only present as hypomania when he is stressed.

29. The psychologist notes that the offender was at some stage diagnosed with bipolar disorder, and placed on lithium, but that he stopped taking this drug after three months as it was ineffective, and that the offender himself does not accept that he has bipolar disorder. But in any event, and more importantly, she notes that the first known episode was after his index offending, and so this disorder would not account for his offending behaviour. Although the psychologist concluded that the offender has few intervention needs and no specific treatment needs, she did find that he suffers from social difficulties and periods of hypomanic symptoms, and I have taken these into account as part of the mix of matters that I am required to synthesise in performing this sentencing exercise. I also accept that to some degree these difficulties will make any period in custody more difficult for him.

REMORSE

32. Turning then to matters of remorse and prospects of rehabilitation. As noted already, the offender maintains his innocence of the offences. Although he continues to accept that there was a sexual incident between him and Ms P, he continues to claim that this was one that was initiated by her. The offender told the psychologist that his behaviour was unethical and a violation of Ms P's trust. However, according to her report, he also minimised this behaviour saying that she, that is Ms P, was "able to consent" and that "She initiated the encounter with a motivation of suing the hospital". The psychologist notes that the offender made other derogatory comments about Ms P, calling her manipulative, a drug addict and an offender. Although the Sentencing Assessment Report author notes that the offender said he was remorseful and was able to discuss elements of victim empathy, and the significant negative impact on Ms P, he "disputed the majority of the charges except for the single occasion when he claimed he accepted the offer of sexual contact with the victim" and attributed his behaviour to the decline of his mental health. In these circumstances there is no evidence whatsoever of any remorse.

RISK OF REOFFENDING

33. As to future risk, the Sentencing Assessment Report notes that the offender is, according to the LSI-R test, a low risk, whereas the psychologist notes that the offender scored a below average risk rating on the Static-99 test. However, the psychologist noted that by reference to another testing protocol this risk might be regarded as increased due to a number of other factors such as the psychological coercion involved in the offences, the offender's extreme minimisation of the offending, and various other matters. She also suggests that the offender would benefit from brief individual psychological treatment to assist him in challenging his distorted attitudes about Ms P's capacity to consent, and to improve his insight into his mental health and social difficulties.

34. Given the offender's generally prosocial background and habits, his lack of relevant criminal history, but taking into account also the comments I have just recited from the psychologist, I assess his prospects of rehabilitation as being reasonable.

MORAL CULPABILITY

35. In terms of moral culpability, it seems to me that in relation to all the offences this must be regarded as high, given the offender's intelligence, his psychological training, and the lack of anything of substance, which might explain or diminish the serious nature of the breach of authority involved in these offences. In referring to his psychological training and breach of authority I am conscious of and have taken care to avoid double-counting these factors, given that they are an inherent aspect of the offences before the Court.

36. I accept, as was submitted by the offender's counsel and accepted by the Crown, that the offender assisted in the administration of justice in accordance with s 22A of the Crimes (Sentencing Procedure) Act 1999 by agreeing, while the proceedings were in the Local Court, and by signing agreed facts in this Court to the effect that Ms P was affected by a cognitive impairment and that the offender was aware of that fact. The Crown accepted that this was of considerable assistance in running the trial.

DETERMINATION

37. I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 and I do not intend to recite the various aspects set out in that section. I am satisfied for the purposes of s 5 of that same Act that the so-called threshold has been crossed, and that a sentence of imprisonment is required for the various offences.

38. I intend to impose an aggregate sentence. Given that I intend to impose an aggregate sentence, I must specify the indicative sentences, those being the sentences that would otherwise have been imposed in relation to each individual offence.

39. Mr Foster, what I am about to announce are called indicative sentences, they are not the sentence that I will impose. That will be made clear at the end. But I am required to set out these indicative sentences first.

40. In relation to count 1, the indicative sentence is a head sentence of 16 months' imprisonment and a non-parole period of nine months. In relation to count 2, 16 months' imprisonment with a non-parole period of nine months. In relation to count 3, 18 months' imprisonment with a non-parole period of ten months. In relation to count 4, 16 months' imprisonment with a non-parole period of nine months. In relation to count 5, nine months' imprisonment, and I am not required to specify a non-parole period for that matter, given that there is no standard non-parole period specified. Count 8, a head sentence of two years, that is 24 months, with a non-parole period of 13 months.

41. I intend to make a finding of special circumstances, given that Mr Foster has never previously been in custody, and also given the need for him to be monitored for a considerable period upon release to parole.

42. In determining the ultimate aggregate sentence, it is important that I have regard to totality principles. I must ensure that the ultimate sentence is one that meets the various competing purposes of sentencing, and represents the minimum time that is required, having regard to the overall criminality, and avoids the imposition of a crushing sentence. It is also necessary in this regard that I determine the extent to which there should be any accumulation of the sentences, and the extent to which the sentence for one offence can comprehend and reflect the criminality for the other offence or offences: Cahyadi v R (2007) 168 A Crim R 141.

43. In this regard, the offences before the Court involved four separate incidents, and so there does need, in my view, to be some degree of accumulation. However, counts 2 and 3 were part of a single incident and counts 4 and 5 were also part of a different but single incident, and so the penalties in relation to the offences making up those two incidents should in my view be essentially concurrent, but there still needs to be some accumulation with regard to the offences making up the four incidents themselves. I have given close consideration to these matters and I have then stood back and made an assessment of the minimum overall period that is required.

44. Mr Foster if you just stand up I will explain the sentence to you. I impose an aggregate term of imprisonment of three years six months, and I impose a non-parole period of two years. Those will date from today, 19 November 2021. The head sentence will expire on 18 May 2025 and the non-parole period on 18 November 2023. Take a seat Mr Foster.

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Amendments

02 February 2022 - Minor typo

Decision last updated: 02 February 2022