R v Foster [2021] NSWDC 726

District Court New South Wales

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.