Bello v R [2022] NSWDC 768

District Court New South Wales

Medium Neutral Citation: Bello v R [2022] NSWDC 768 Hearing dates: 5, 7 September 2022 Date of orders: 14 December 2022 Decision date: 14 December 2022 Jurisdiction: Criminal Before: Tupman DCJ Decision: 1. Conviction appeal is upheld. 2. Conviction and sentence imposed by the Magistrate are quashed. 3. Pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999, sequence 2 is dismissed without conviction. Catchwords: CRIME – conviction appeal – sexual touching without consent – s61KC(a) Crimes Act 1900 – offences proved after hearing in Local Court – appellant convicted and sentenced to 18 month ICO – sentence appeal – possess prohibit drug – s10(1) Drug Misuse and Trafficking Act 1985 – appellant convicted and fined $500 CONVICTION APPEAL – issue whether absence of consent proved beyond reasonable doubt – consent given on complainant's mistaken belief sexual activity was for health purposes – appellant was a medical practitioner in emergency department – complainant attended as patient – versions of complainant and appellant were diametrically opposed – complainant initiated contact – attended appellant's home after hospital visit – appellant engaged in sexual behaviour believing consensual – complainant believed it was part of the treatment – appellant recognised crossing ethical boundaries and stopped the offending – prosecution could not exclude plausible alternative hypothesis – not satisfied lack of consent established beyond reasonable doubt SENTENCE APPEAL – appellant possessed three 10ml vials of anabolic steroids – less than a small quantity – personal use to lose weight – well-hidden and no risk – breached ethical boundaries – minor offence – not appropriate that conviction recorded – rehabilitation better without conviction CHARACTER – good character – no prior convictions – positive character evidence – appellant well-regarded medical doctor in public hospital system for 15 years – character reference from previous colleague and nurse speaking of his hard work – lost job shortly after being arrested – appellant has been undertaking ICO sentence because of misunderstanding – sentence not stayed – meant that appellant has had ongoing contact with a psychologist Legislation Cited: Crimes Act 1900 (NSW): ss 61HE(6)(c), 61KC(a) Crimes (Appeal and Review) Act 2001 (NSW): s 18 Crimes (Sentencing Procedure) Act 1999 (NSW): s 10(1)(a) Drug Misuse and Trafficking Act 1985: s 10(1)(a) Cases Cited: McNiven v Director of Public Prosecutions NSW [2001] NSWCA 298 Category: Principal judgment Parties: Regina (Queen) Leoncio Bello (Appellant) Representation: Counsel: D Petrushenko (Appellant)