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

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.
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.
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

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.
Ms P also has a condition known…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Foster

Details

AGLC: R v Foster [2021] NSWDC 726
Case: [2021] NSWDC 726
Decision Date: 19 November 2021

CaseChat Overview and Summary

In the case of R v Foster, the defendant was convicted and sentenced by the court of appeal for various sexual offences involving a victim with a cognitive impairment. The court was tasked with determining the appropriate sentence for these offences, which included sexual touching, a sexual act, and sexual intercourse with a person who had a cognitive impairment. The appeal against sentence was heard by the court, which considered the severity and nature of the crimes committed.

The legal issues before the court included the appropriate weight to give to the special circumstances of the victim, the cumulative effect of multiple offences, and the need for deterrence and denunciation. The court had to balance these considerations against the offender's background and prospects for rehabilitation. The appeal hinged on whether the original sentence was manifestly inadequate or excessive in light of these factors.

In its judgment, the court found that the original sentence was manifestly inadequate. The court emphasised the severity of the offences and the vulnerability of the victim. It also highlighted the need for an appropriate deterrent effect. The court imposed a new aggregate sentence of 3 years and 6 months, with a non-parole period of 2 years. The specific indicative sentences for each count were also outlined in detail, reflecting the gravity of the crimes committed. The court concluded that the special circumstances of the case warranted a more substantial sentence.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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