R v Foster [2021] NSWDC 726

R v Foster [2021] NSWDC 726

The offences were serious sexual offences against a vulnerable involuntary psychiatric patient with cognitive impairment, committed by a senior nurse responsible for her care in the place that was effectively her home. The offending involved repeated incidents, abuse of authority, conduct encouraging silence, and for count 8 a threat; count 8 was above the mid-range and toward the upper range of objective seriousness. The offender had prior good character and reasonable prospects of rehabilitation and had assisted the administration of justice, but showed no remorse and his moral culpability was high. Imprisonment was required; an aggregate sentence with some accumulation for the four...

Jurisdiction
Australia
Judgment Date
19 November 2021
Procedural Posture
Criminal Sentence / Sentencing After Judge Alone Trial and Convictions on Counts 1 5 and 8
Outcome
Convicted and sentenced to an aggregate term of imprisonment of 3 years 6 months with a non-parole period of 2 years; special circumstances found.
Legal Topics
['sexual Touching of Person With Cognitive Impairment by Person Responsible for Care' 'sexual Act Towards Person With Cognitive Impairment by Person Responsible for Care' 'objective Seriousness' 'victim Impact' 'breach of Trust or Authority' 'remorse' 'risk of Reoffending' 'aggregate Sentence' 'totality' 'special Circumstances']
['criminal Law' 'sentencing'] ['sexual Touching of Person With Cognitive Impairment by Person Responsible for Care' 'sexual Act Towards Person With Cognitive Impairment by Person Responsible for Care' 'objective Seriousness' 'victim Impact' 'breach of Trust or Authority' 'remorse' 'risk of Reoffending' 'aggregate Sentence' 'totality' 'special Circumstances']

Case Brief

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Procedural Posture

Criminal Sentence / Sentencing After Judge Alone Trial and Convictions on Counts 1 5 and 8

Legal Issues

  1. 1 ['What sentences should be imposed for five offences of sexual touching of a person with a cognitive impairment by a person responsible for her care and one offence of committing a sexual act towards a person with a cognitive impairment by a person responsible for her care.' "How the objective seriousness of each count should be assessed, including the complainant's vulnerability, the setting, planning, threats, incentives to silence, and the offender's position of care." 'Whether the offending involved a breach of trust for the purposes of s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 without impermissible double-counting.' 'Whether an aggregate sentence should be imposed and how totality and accumulation should be applied.' 'Whether special circumstances should be found.']

Ratio Decidendi

The offences were serious sexual offences against a vulnerable involuntary psychiatric patient with cognitive impairment, committed by a senior nurse responsible for her care in the place that was effectively her home. The offending involved repeated incidents, abuse of authority, conduct encouraging silence, and for count 8 a threat; count 8 was above the mid-range and toward the upper range of objective seriousness. The offender had prior good character and reasonable prospects of rehabilitation and had assisted the administration of justice, but showed no remorse and his moral culpability was high. Imprisonment was required; an aggregate sentence with some accumulation for the four...

Court Disposition

Convicted and sentenced to an aggregate term of imprisonment of 3 years 6 months with a non-parole period of 2 years; special circumstances found.

Orders

  • ['The offender was found not guilty of counts 6 and 7 and guilty of the remaining six counts.' 'Aggregate term of imprisonment of 3 years 6 months imposed, commencing 19 November 2021 and expiring 18 May 2025.' 'Non-parole period of 2 years imposed, expiring 18 November 2023.' 'Special circumstances found.'...