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) Solicitor: Solicitor for Public Prosecutions (NSW) (Crown) File Number(s): 2019/00349486 Publication restriction: There is to be no publication of any details that might identify or tend to identify the complainant pursuant to s 578A of the Crimes Act 1900 (NSW). Judgment 1. The appellant appeals against his conviction for one offence contrary to s 61KC(a) of the Crimes Act 1900 (NSW), specifically that on 5 November 2019 at Kogarah, he sexually touched the named complainant without his consent. The appellant pleaded not guilty in the Local Court which heard the charge over two days in March 2021. The magistrate delivered a judgment on 31 May 2021 finding the offence proved beyond reasonable doubt. The appellant was convicted and sentenced on a later date. 2. I accept, pursuant to s 18 of the Crimes (Appeal and Review Act) 2001 (NSW) that the hearing before me is by way of rehearing on the transcript of the evidence that was before the magistrate and the exhibits. As per the dicta of the Court of Appeal in McNiven v Director of Public Prosecutions NSW [2001] NSWCA 298, this does not preclude reference to the magistrate's reasons for judgment, including the magistrate's assessment of the credibility of any particular witness, taking into account the advantage that the magistrate had in seeing the witnesses in person. I have read that judgment and the transcript of evidence given by witnesses. 3. The issue on this appeal as I perceive it is whether or not the magistrate should have entertained a reasonable doubt about whether the complainant in fact consented to the touching. The touching would appear to have been admitted. 4. There is no argument that the magistrate made any other error of law. In particular, the magistrate set out accurately the elements which need to be proved and the definition of sexual touching. There is no issue between the parties that the touching, which it is agreed occurred, would amount to sexual touching because of the part of the body involved. The magistrate accurately set out the appropriate matters to be established to prove lack of consent and knowledge of lack of consent. 5. As I understand it, this was reinforced in the submissions made during the hearing of this appeal. The prosecution case is that the complainant to this matter only consented to the sexual touching because he was under a mistaken belief that the sexual activity was occurring for health purposes. That would mean that lack of consent would be proved beyond reasonable doubt if it were established because of the provisions of s 61HE(6)(c) of the Crimes Act 1900. The magistrate accurately set that out. 6. The evidence was given by the officer in charge, who largely produced a series of documents and other exhibits, all of which were tendered without objection and he was not cross-examined. The other witnesses were the complainant and the appellant himself. There were also two character references provided on behalf of the appellant, tendered without objection. 7. The versions of the complainant and the appellant were almost diametrically opposed in relation to the issue of consent or lack of consent. Whilst of course in this offence like any other offence of this type, the Crown must also prove knowledge of lack of consent, it seems to me that the real issue in this matter, as it was run, was whether or not the prosecution could prove beyond reasonable doubt that the complainant was not consenting to the sexual touching because he believed that the sexual activity was occurring for health purposes. No other basis would appear to have been put forward on behalf of the prosecution either in the magistrate's court or on the hearing before me. 8. I do not understand it to have been suggested that there was any evidence from which lack of consent would otherwise be inferred by way of activity undertaken by the complainant or words used by the complainant at the scene where the offence was alleged to have occurred, nor any evidence given by the complainant at the Local Court hearing from which lack of consent would be established beyond reasonable doubt. 9. The prosecution case as I have said and as I perceive it to be on the basis of submissions made before me, was that the consent was only given because the complainant had a mistaken belief that the sexual activity was for health purposes. That being the case and it being therefore necessary for that to be proved as one of the essential elements for this offence, the Crown must prove that beyond reasonable doubt. I do not propose to go through the evidence in any detail at all. There was a wealth of evidence in this matter. Some matters were not in dispute. 10. I accept from the evidence overall that the general background was not in dispute. The appellant was at the relevant time a medical practitioner or a doctor who was practising in the emergency department at Fairfield Hospital. The complainant was a patient who attended the hospital on 4 November 2019. The complainant, I accept, went to a medical centre in Fairfield two days beforehand on 2 November 2019 complaining of some burning sensation on urination and was prescribed some antibiotics which he took for two days. He went back again on 4 November 2019 in circumstances where he complained that his symptoms had not abated and was referred to Fairfield Hospital for further treatment. 11. The referral letters were tendered. It is clear and I accept from those, that he had complained to his general practitioner of left flank pain, accompanied by a burning sensation on urination for five days before he was referred on 4 November 2019 and that he had been taking antibiotics orally for three days but was still presenting with a burning sensation on urination and left flank pain when he went to the emergency department at Fairfield Hospital on 4 November 2019. 12. It is not in dispute that he did so. He was triaged and went into the emergency section where he met the appellant who was the doctor on duty at the emergency department who was treating him for that presentation. They were strangers up until then. The appellant referred him for a CT scan. He was given a bed. He remained there until he was discharged at about midnight. His treatment included intravenous antibiotics and the other treatments that he was given set out in the medical documents that were tendered before the magistrate and now before me. 13. There was evidence given by the complainant in relation to the appellant's examination of him in the hospital. Whilst it seems to have been given some emphasis by the magistrate, I do not in effect understand it to be of any great moment for the purposes of this appeal. He examined him. There is a dispute about whether or not he was wearing gloves to do so. It seems to me very little if anything turns on that. He examined him in a way which it is not suggested was inappropriate, given the presenting symptoms. 14. There was then, however, evidence that would appear not to have been in dispute between the parties that there was conversation between them in which there was some personal details exchanged, including an exchange of telephone numbers. The complainant's evidence is that the appellant offered to provide him with stronger medication but could not prescribe it for him in the hospital and would have to give it to him outside the hospital. The appellant denied that this occurred. 15. Again, it is almost impossible to determine where the truth of those two assertions lie and with respect not that much turns on such a finding. For the moment, however, I am prepared to accept that for whatever reason, the complainant believed that when he left the hospital there was some chance that he would have further contact with the appellant for the purposes of some medical treatment. However, it may be that that was not the only reason that he thought he would have further contact with him. 16. There was an exchange of telephone numbers. Eventually, the appellant was prepared to concede that at that stage he felt a degree of attraction to the complainant and it seems to me that that much is clear from the evidence overall. 17. The appellant did not himself initiate any further contact with the complainant. The complainant did so the following day. He did so in these circumstances. He was discharged as I have said at about midnight. He had undertaken a course of intravenous antibiotics. He gave evidence which I accept that he had a prescription for antibiotics given to him at the hospital which he had filled and started to take overnight. His evidence was that he was not feeling worse the following day, although he had had a bad night's sleep. His evidence as I recall it was to the extent that he had flank pain before his admission on 4 November 2019 but that any form of back pain had gone by the following day. He certainly did not give evidence that he felt worse but he did not give evidence either that he was completely cured. His evidence would appear to have been that he initiated contact with the appellant because he thought that he would be able to get access to stronger medication from him personally, although not by seeing him at the hospital. 18. Just taking the complainant's evidence, this is what next occurred. He sent the appellant a text message. That is in evidence. He asked if he could see him later that day. He referred to him as doctor, used his first name and said he would like to see him that day. This was a message sent at about 9.30AM. The appellant said he would contact him in about an hour. He did send a message saying please take your morning medications. 19. The evidence is then that there was further contact with them via WhatsApp. The appellant did call him back and made arrangements to see him at about 12.30PM that day. It must have been clear to the complainant at that stage that he was not seeing the appellant at the hospital or at any nominated medical facility. He asked the address. He was given an address which on the face of it was an ordinary residential street. He went there. The evidence would seem to be to an extent not in dispute that he could not find a parking spot. In one way or another, either coming from inside his residential unit or arriving in an Uber or a taxi, the appellant arranged to meet him out the front and took him to a parking space or garage attached to his own residential unit which as I understand the evidence would have looked just like a residential or domestic parking spot in a block of units. 20. The evidence was that the block of units looked like a block of residential units in Brighton-Le-Sands and there was nothing to indicate that it contained any form of medical clinic in it. The appellant took the complainant from the garage up to his unit and they went inside. The complainant's version of events is that they sat on the lounge and talked for a while. The appellant said he needed to examine him further. That the complainant accepted this at face value and agreed to remove his trousers and underpants. That the appellant then said that he needed to examine him properly by him lying on the bed. That he went into the bed and laid down and that he, thereafter, again in the briefest possible summary, consented to what he said was the appellant's masturbating him, using a lotion in an attempt to have him attain an erection, of course in the words of the complainant, he told him he was trying to vacuum him by which he meant, have him ejaculate which he said, he believed was part of the treatment that was being provided. 21. So far as I recall the evidence, the appellant does not appear to have asked for a tablet that he says he had come to get before then and only asked for it afterwards. His evidence was that the appellant said that he did not have it and that he, the complainant, would have to get it the following day at the hospital. 22. There is no evidence that the complainant sought any medical treatment from his medical centre that day, 5 November 2019. There is no evidence that his condition was worse and if anything, there was evidence that his condition was slightly better in that he had no back or flank pain. He had to drive across Sydney from the Fairfield area, although I am not clear exactly where it was that the complainant lived but the Fairfield area to Brighton-Le-Sands in order to receive this medical treatment. 23. The appellant's version of all of this is completely different. He gave evidence that the complainant messaged him, that much is not in dispute, and that he agreed to see him. He said by then, he had a level of attraction to him, that they had agreed to meet for coffee but that the complainant wanted to go to the toilet after they met. He showed him upstairs and that the complainant then initiated sexual contact in which he, for a brief period of time, masturbated the complainant and then according to the evidence of the appellant, he agreed that he recognised that what he was doing was crossing the ethical boundaries and that he ought not be having this level of contact between patient and doctor and he stopped the offending, told the complainant that he had somewhere else to go, asked him to leave and asked him to shut the garage door after he left. 24. The magistrate rejected the evidence given by the appellant before her. Clearly enough, that very brief summary that I have just given of the appellant's version of events was a very brief summary indeed. The magistrate's reason for rejecting the appellant's version was largely as I perceive it because the appellant had given three different versions of the same event. One was when the police came to see him on 6 November 2019 which is captured in a body worn camera video that has been tendered. The second version he gave to the police when he engaged in a record of interview which was also tendered and then the third version that he gave during the hearing of the matter in the Local Court. 25. The magistrate also made a finding that the appellant was not an impressive witness or she did not find him to be an impressive witness. She made a finding that his evidence did not ring true and in her words, it glossed over the obvious. She defined that as being the text messages. She said there was nothing in those messages that suggested a coffee date, no mention of a coffee shop or anything like that and that the messages were suggestive only of a doctor patient relationship. She came to the conclusion that the evidence finally given by the appellant in court was a reconstruction of the events designed to meet what he anticipated would be said against him and did not accept his explanations, it would appear, at least for giving different versions neither of which he now agreed were the truth in his initial answers to the police and his record of interview. 26. The magistrate does not appear to have dealt with the appellant's explanations for lying to the police initially which were largely that he felt under stress, that he realised he had made a serious ethical mistake and that he simply wanted to get away from the police to get a lawyer and take it from there. Whether or not that is true, it was not addressed by the magistrate but nonetheless, she came to the conclusion that his evidence was not credible and reliable as I have said, largely it would seem based on the two earlier inconsistent versions. She also made a finding that he was constructing evidence as he was being asked and for example referred to the fact that his evidence given that the complainant put his hands behind his back whilst he was being masturbated and said to the appellant "try harder" were examples of those exculpatory versions given by him made up as he went more or less because those matters were not put to the complainant. That was open to Her Honour. 27. However, with respect, the magistrate made an error in saying that another example of that was that it was not put to the complainant in cross-examination that he had a concern that he may face criminal charges as a result of passing on a sexually transmitted disease to his girlfriend. That in fact is not the case and that was put to the complainant during his cross-examination on page 37 of the transcript. 28. Nonetheless, the magistrate rejected the accused's version. That of course, however, is not the end of the issue. For the purpose of my assessment of this matter, I do not propose to interfere with the magistrate's finding in relation to the appellant's evidence, even though it seems to me that there are perhaps some matters missing from her assessment of his credibility. Nonetheless, it is the case that he gave three different versions of the event and the magistrate had the benefit, an advantage over me, of seeing him in the witness box. 29. However, even if the appellant's evidence is entirely rejected and even if as the magistrate seems to have done, nothing of what he said raises any reasonable doubt in her mind or in my mind as the judge now on appeal, that does not mean that the prosecution necessarily is able to prove the guilt of the accused of this offence. They can only do that if the evidence of the complainant is accepted as being the truth beyond reasonable doubt in relation to the only issue, it seems to me, which needs to be addressed and that is whether or not they can prove beyond reasonable doubt that the only reason the complainant consented to the admitted sexual touching was because he had a mistaken belief that it was in the course of medical treatment. 30. I have come to the conclusion that has not been proved beyond reasonable doubt by the Crown. I do take into account and pay full regard to the magistrate's finding that the complainant to her assessment was an impressive witness. Whilst I take that into account, it seems to be somewhat difficult to accept fully that that could have been the case, given that which is patently clear which is that the complainant giving evidence via CCTV system in the Court room with the assistance of an interpreter who did not always interpret accurately and in circumstances where the CCTV system failed consistently both in relation to the ability of the parties in the Court room to hear what was being said and the frequent occasions on which it was said that nobody could see the complainant because of failures with the system. It seems to be somewhat difficult to accept the magistrate's finding that she had carefully scrutinised the complainant's evidence and observed him giving evidence in court. Be that as it may however, and even accepting that assessment on her part, her ability to assess the witness first hand is just one matter. 31. There are other factors that I take into account in determining whether or not the prosecution has proved beyond reasonable doubt that the only reason the complainant was consenting was because he believed what was occurring was in the course of medical treatment. One is that it was the complainant who in fact initiated contact with the appellant the day following his visit to the hospital. There are some other issues in relation to the complainant's evidence. One in particular is his denial and consistent denial that he went to the hospital complaining inter alia of backpain. That is clear from the GPs referral that he had been treated for that and it was an integral part of the referral. Whatever that might have been however, he did say that he no longer suffered from backpain the morning of 5 November 2019 after he had been released from hospital and had been given appropriate medication. 32. The evidence, it seems to me, establishes that there was no particular reason for the appellant to be seeking additional medical treatment only nine hours after he left the hospital. There is no evidence that his condition had deteriorated and in fact as I have said on the contrary, it would appear to have gotten a little better. There is no explanation for why he simply did not go to the medical centre which he had attended twice in the preceding two days. 33. On the evidence given, there was no reason for him to need medical treatment in the form of stronger medication in a somewhat out of the ordinary way by seeking personal contact with the appellant not in a hospital, not in a medical facility, but in his home. There is also a matter of fact which I take into account, namely that the complainant drove a considerable distance to do so from the area where he lived which I infer is in the Fairfield, Liverpool or Blacktown area across Sydney to Brighton-Le-Sands, a considerable distance, solely it is argued on behalf of the prosecution, so that he could be given a tablet by the appellant which he believed would be stronger. It seems to me that that together with the surrounding evidence about there being no deterioration in his condition and no explanation for not seeking whatever else he might need from his medical centre does not bear logical scrutiny. 34. Further, as I understand the evidence, when the appellant sent him his address, it would clearly have looked like a residential address. If he realised he was attending a residential address, that should give some cause for concern about whether what was occurring was medical treatment. There is also no doubt and I accept this from the evidence that when he arrived at the given address, it was clearly a block of residential units. His answer that he thought it was possible there was a medical clinic inside seems to me is somewhat disingenuous. 35. Further, the fact that he was taken to what would appear to be a one off car space usually connected to a residential unit would have added to his belief that he was not attending a medical facility and that is a relevant consideration in determining whether or not the Crown can prove beyond reasonable doubt that the only reason that he consented to the sexual touching was because he believed it was being given for medical purposes. Even if there might be some doubt about that, it is perfectly clear and apparent from both the search warrant video and the other body worn video that by the time the appellant got to the door and opened the door, it was patently clear that what he was doing was entering the appellant's home and for that matter, a very messy home - small messy and nothing whatsoever, like a medical facility. 36. He agrees. He agreed in his evidence that when he got to the door, he realised that he was in the appellant's residential premises, not in a medical facility but continued to assert that he believed the appellant would be able to give him this tablet that he said he needed or wanted. There is no evidence that, realising he was not in any form of medical facility, did not lead him to leaving and there is no evidence that he was prevented from leaving. There is no evidence that he queried why he was being treated in the home of the appellant. He did not query why he was being asked to take off his clothes nor why he should go into the bedroom for the examination. 37. Having seen the video of the search warrant conducted on the following day, taken together with evidence from the appellant that his sheets had not changed from the previous day, I infer that the appellant's bedroom looked much the same on 5 November 2019 when the complainant went into it as it did on 6 November 2019 when the search warrant was executed. It looked nothing like a medical facility, nothing on which any appropriate medical examination might be conducted. It is messy. There are considerable number of items of a domestic or personal nature on the bed. There are two teddy bears in the corner of the bed. This room and this bed looks nothing like what would have been expected to be an appropriate place on which a medical examination would be conducted. 38. The complainant also gave evidence that during the sexual touching, which he continued to assert he believed was for medical purposes, the appellant applied some sort of lotion either to assist the masturbation of him or to assist him to obtain an erection. It seems to me that that assertion is not supported by the evidence of what was seized by the police during the execution of the search warrant. 39. The complainant gave evidence that the appellant rubbed a substance onto his penis for this purpose which he continued to assert he believed was for medical purposes, that medical purpose being asserted by the appellant, that he needed to "vacuum" him, by which he understood that he needed to ejaculate in order to provide him with treatment but that he did so by applying some lotion from what he described as a yellow tube. 40. The items seized by the police during the search warrant are the subject of a video. So far as I can comprehend, all the items that were seized by the police are shown at the time they are seized, many of them are given a timing as to the time of seizure and they are bagged. There were in fact two containers or tubes of one form of lotion or another seized from the top of a white cupboard that was alongside the bed but was not the bedside table. They would appear to be a lubricant or some form of sex aid cream. They were in white tubes. 41. There was, however, one yellow tube which the police did not seize but which is clearly visible on the video of the search warrant. It is a tube that is described as menthol which I infer is similar to a form of Dencorub or similar or Tiger Balm or something of a similar nature. The appellant insisted in his evidence that the lotion that was applied to his penis came from a yellow tube. The only yellow tube obvious in the search warrant, and there is no other evidence before me, apart from that, is something which is in the nature of Dencorub or Tiger Balm. If such a substance were applied to the complainant's penis, the Court can take judicial notice of the fact that it is likely to have caused intense stinging and pain and no such thing is described by him during the course of what he says was consensual sexual touching for the purpose of medical treatment. That piece of the complainant's evidence must not be true. 42. Further, the magistrate took into account when assessing the complainant as a reliable witness the fact that he apparently made an immediate complaint to police on the evening of 5 November 2019. She seems to have made no real finding about the way in which that evidence can be used except inferentially to support the complainant's credibility. There would appear to be no dispute that he made a complaint to police but there is absolutely no evidence at all and nor was there in the Local Court about the circumstances in which that was made, the terms of that complaint or anything even vaguely approaching appropriate complaint evidence. 43. The fact that a complaint was made and made early can be used as some evidence in addition to the evidence of the complainant himself of the assault of which he complains and also is capable of being used to assess his credibility. However, in circumstances where for whatever reason, the prosecution did not lead the terms of that evidence either from the complainant himself or from the person to whom he complained, it is very difficult for the Court to give that complaint any weight on either of the two bases on which it is admissible. It is there and is on a very minor level capable of being used on those two bases but not in a way that would afford it considerable weight in the circumstances. 44. Whilst the magistrate dismissed all of the evidence given by the appellant and found him to be an unreliable and unimpressive witness and whilst she gave herself the character direction that is necessary, it does not appear that she has sought to explain or reason the basis on which if at all, she considered the issue of the appellant's good character. He is a person who not only was a person without any prior convictions but also there was positive character evidence in the form of the character references which were not objected to which show him to be a person of good character in addition to a person who had not been convicted of any offence. He is entitled to have that taken into account in two ways. 45. One of those is an assessment of him as a witness and I make no further comment about that, having been prepared to accept the magistrate's finding in relation to him as a not impressive witness. However, he is also entitled to have that good character taken into account on an assessment of whether or not he is likely to have committed the offence with which he is charged. That is a factor that I take into account. It does not provide him with a defence but it is a matter that I take into account in deciding whether or not he is likely to have committed the offence of which he is charged. 46. The bottom line of this appeal however, in my view, is that the Crown must prove beyond reasonable doubt that the sexual touching which is admitted and by both sides is largely the same sort of sexual touching but on both versions in different circumstances, only occurred because the complainant was under the mistaken belief that the sexual activity was for health purposes. I am not satisfied that that has been established beyond reasonable doubt. It must be established beyond reasonable doubt because it is an essential element of the offence. 47. In a nutshell or in summary, the complainant's decision to drive right across Sydney, on his own request, nine hours after being discharged from hospital with appropriate treatment, in circumstances where he did not complain that his condition had deteriorated, in circumstances where there was no explanation for his not attending a closer medical centre or going back to the hospital, in circumstances where it should have been patently obvious when he arrived that he was at residential premises and was patently obvious to him, when he opened the door, that he was in the complainant's premises it seems to me are much more consistent with his attending for the purposes of having some form of personal contact with the appellant. That is a perfectly plausible alternative hypothesis in this case and in those circumstances, the lack of consent on the basis that it is brought by the Crown, cannot be proved beyond reasonable doubt. The conviction appeal is upheld. The conviction is quashed and sentence are quashed. 48. I think I was told wasn't I, that if that happened, the other sentence is not being appealed? 49. PETRUSHNKO: No your Honour. It is being appealed your Honour. That's the second sequence which is a possess prohibited drug. It's three lots of steroids your Honour. 50. HER HONOUR: I don't have much about that apart from what happened, what I see in the search warrant. I don't have anything about that, do I? 51. PETRUSHNKO: Sorry your Honour if I could just assist. It's page 16 of the Crown bundle is the Court Attendance Notice in relation to that. 52. HER HONOUR: I've got the Court Attendance Notice. 53. PETRUSHNKO: And the two references that were handed up for Mr Bello is at page 98 and-- 54. HER HONOUR: Yes I've read those, I just said that. 55. PETRUSHNKO: Yes your Honour. Apart from that your Honour, there's nothing further. 56. HER HONOUR: Well, what was it? All it says is three 10ml vials of anabolic steroids. 57. PETRUSHNKO: That was it your Honour. 58. HER HONOUR: What's the maximum penalty? I don't know, I mean I don't have anything like that, I don't have a sentence bundle, do I? 59. PETRUSHNKO: It's on the first page of the Crown's instruction sheet your Honour. The maximum penalty is two years imprisonment and or 20 penalty units in which Magistrate Poulos imposed a $500 fine on Mr Bello. Your Honour the issue that we've got is the conviction. 60. HER HONOUR: Yes. All I know is that he told the police in the record of interview, I think it was the record of interview wasn't it, that he only had them for his own use so it could increase his heart rate, do a workout and lose weight? 61. PETRUSHNKO: That's correct your Honour and also there was a plea entered at the first available opportunity and also your Honour taking into account this is Mr Bello's first offence. Your Honour the conviction is what we're concerned about. 62. HER HONOUR: Do I need any further documentation Mr Prosecutor, or not? 63. JONES: Your Honour there was the psychologist report, the sentence assessment report and-- 64. HER HONOUR: I don't have that, do I? 65. JONES: Annexed to that was-- 66. HER HONOUR: That wasn't tendered. 67. JONES: No your Honour. 68. HER HONOUR: No. 69. JONES: If I can hand those up now, they were relied upon in the Local Court. 70. HER HONOUR: So they were tendered. Well it's appropriate that I didn't have them yet so that's fine. 71. PETRUSHNKO: Yes your Honour. 72. JONES: And your Honour on page 45 of the bundle, it just says the property seizure exhibit form which item 7 has three times steroid vials-- 73. HER HONOUR: Yes. No, no I saw them - find them. They were in a cardboard box on that bedside white table. 74. JONES: The only submission that the Crown wishes to make is that there ought to be a conviction recorded because the appellant is a doctor and he ought to have known or he ought to have known more than the regular person about the criminality of possessing prohibited drugs. 75. HER HONOUR: Well, how bad are these steroids? Are you actually now asking me to read a 12 page psychologist report at 4 o'clock in the afternoon? Most of this wouldn't be relevant would it, Mr Petrushnko? 76. PETRUSHNKO: No your Honour. The psychologist report your Honour, the majority of it, goes to the first sequence your Honour. 77. HER HONOUR: Alright, okay I'm not going to read it and work out which is relevant and which isn't. 78. PETRUSHNKO: No your Honour, I'm not relying-- 79. HER HONOUR: That's not my job, it's your job to tell me what I should be looking at. 80. PETRUSHNKO: Your Honour I'm not relying on the psychologist report. I'm relying-- 81. HER HONOUR: Well the Prosecutor has done the right thing by tendering what was before the magistrate when the matter was before her for sentence. 82. PETRUSHNKO: Yes your Honour. 83. HER HONOUR: And there was a sentence assessment report as well apparently which I've now got. Just excuse me. 84. PETRUSHNKO: Sorry your Honour. 85. JONES: Wasn't that already tendered last time? 86. HER HONOUR: No because I have a notation on the file that I was told on the last occasion that sentence appeals weren't going to be pursued. 87. PETRUSHNKO: No your Honour. That was conveyed that way, I do apologise your Honour. Your Honour in my submission, the sentencing assessment report, all of it looks like it all relates to the sexual touch and the possess prohibited drug has just been overshadowed in the sentencing assessment report where there's nothing about it in there your Honour. In the psychologist report your Honour there is a mention of the second sequence at page 2, second paragraph confirming that there is a plea of guilty. I can't find anything your Honour unless my friend can - what I'm going to say your Honour is I can't find anything in there that relates specifically to the second charge of possess prohibited drug your Honour. 88. HER HONOUR: So is this a personal circumstances that's in page 4 of the psychologist report, that he had been a doctor in emergency departments at various hospitals over the previous 15 years. 89. PETRUSHNKO: That's all correct your Honour. 90. HER HONOUR: He was working hard. 91. PETRUSHNKO: Yes. 92. HER HONOUR: That his position had been terminated in August 2020 because this case was continuing. 93. PETRUSHNKO: Yes your Honour. 94. HER HONOUR: That he worked long hours. 95. PETRUSHNKO: Yes your Honour. 96. HER HONOUR: He denied any use of a form of illicit or recreational drugs and alcohol. Well that's not the case is it? 97. PETRUSHNKO: No. I understand your Honour that was other than the steroids that he's been charged with your Honour. 98. HER HONOUR: Yes. What are the quantities of that drug? I have no idea what 10ml means. 99. PETRUSHNKO: Three times 10-- 100. HER HONOUR: I know that but what does that mean? 101. PETRUSHNKO: Your Honour it is three times 10mls your Honour so 30mls in total. 102. HER HONOUR: But what does that mean? I don't know what that means? Is that a lot, a little, a tiny bit, a big bit? What are the parameters? 103. PETRUSHNKO: Your Honour my understanding of this is just speaking to my client, I understand that it's a small amount. Three uses, 10mls on each occasion, that's my understanding your Honour. 104. HER HONOUR: And the only evidence is that he had it for his personal use in order to lose weight. Well the balance then is between whether or not more is expected from those to whom much is given and the fact that he's entitled to have taken into account in his favour his good character and lack of prior convictions. 105. PETRUSHNKO: Correct your Honour and I also note the plea was entered on the first available opportunity. 106. HER HONOUR: I don't know anything about him though, I mean how am I supposed to - I mean all I know is - what's the situation now? He's not working as a doctor. 107. PETRUSHNKO: No your Honour, he's lost his job. When he was arrested, I think three days later your Honour, he was terminated from his position as a doctor in ED at Fairfield Hospital and I understand he's been living off his savings. He doesn't have any family who is here and he's living alone. Your Honour as a result of the ICO that was imposed, technically your Honour when the appeal was lodged, there should have been a stay but unfortunately your Honour that stay was not communicated with - well that information was not communicated with Community Justice and during this entire time, Mr Bello has continually been seeing a psychologist by the name of Malcolm Choat. There's communication between him and the psychologist and also there are emails from March this year recommending to Mr Bello the psychologist that he wishes to see. I understand your Honour he saw Mr Choat last week and is due to see him again next week. 108. HER HONOUR: Is this the psychologist to whom he's been referred by Community Corrections? 109. PETRUSHNKO: Correct your Honour. Yes, sorry your Honour I know my friend is trying to jump up. I had given some correspondence between the various individuals to my friend to show him as well your Honour but I'll let him speak. 110. HER HONOUR: So I mean strictly the lodging of the appeal meant that the sentence was stayed but you say that it didn't happen in practice? 111. PETRUSHNKO: No your Honour. 112. JONES: Yes your Honour, I spoke to community Corrections. They indicated that they're not notified when an appeal is lodged and that the order is stayed. So they continued to have the appellant engaged in-- 113. HER HONOUR: It was an 18 month ICO that dated from 21 July 2021, is that right, that was the sentence stayed? 114. PETRUSHNKO: Yes your Honour. 115. HER HONOUR: Yes 21 July 2021. 116. JONES: And the only other matter that I wish to raise your Honour is that it is a very small amount under the schedule of the relevant legislation. A small quantity is 50 grams so- 117. HER HONOUR: So it's less than a small quantity. 118. JONES: Yes your Honour. 119. HER HONOUR: I do propose to deal with this matter without recording a conviction pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) by way of a s 10(1)(a) dismissal. The reason for doing so is because whilst it is illegal for anyone to possess and use steroids, the explanation given by the appellant for his possession of them and what he had used them for has a touch of sadness about it to an extent and it manifests the fact that he is alone and was attempting to make himself look more attractive. His explanation was that as a person in his 50s life was not treating him anymore kindly as he got older, that he was using the steroids in order to increase his heart rate so that he would get a greater benefit out of his workout and therefore, lose weight. 120. That is a relatively sad reason for using steroids but it is not one that is likely to have made him a risk to the public. They were well hidden and in any event, he lives alone and there was no risk that anybody else was likely to come across them. In fact, that anybody could find anything in that room, would be a matter of a great surprise. It seems to me it was so busy and messy. He is now 56. He comes to court as a person who has been a working medical doctor in the public hospital system for 15 years. He is well regarded in that field with a reference from a previous colleague and nurse at Camden Hospital, speaking of his hard work. 121. He is also a person who has made contributions to the community, particularly the local Philippine community in Sydney. He has lost his job and in fact did lose his job shortly after being arrested for this offence. That is perfectly understandable and perfectly appropriate in the circumstances because even if he now is a person without a criminal conviction, on his own admission, he seriously breached ethical boundaries between himself and a patient and it is not surprising that he has been dismissed. It may be that he is able to reinstate himself at some stage in the future but that is not a matter for me but for others. Nonetheless, he has paid a significant price for his very poor error of judgment. 122. The possession of the steroids is a relatively minor offence. The quantity is 30mls which is 20mls below the small quantity. His reason for having them is for personal use only. The impact of a conviction on anyone let alone a person with professional qualifications who may wish to use them in future is potentially significant and what's more, he has been undertaking the ICO sentence that he was given by the magistrate for the other matter, that has now been dismissed, because of a misunderstanding that the lodging of the appeal operated as a stay on that sentence. That has meant he has had ongoing contact with a psychologist. 123. In all other respects, he appears to be a person whose rehabilitation would be benefited by not having the burden of a conviction and the offence itself is a reasonably minor offence in the circumstances. His character and antecedents and relatively trivial nature of the offence are factors I take into account in determining that it is not appropriate that he receive a conviction on this occasion. There is no need for a conditional release order in the circumstances where he has been subject effectively to an ICO for the last 15 or 16 months. For those reasons then, the sentence appeal for the drug possession charge is upheld. The conviction and sentences are quashed pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999. The offence is dismissed without conviction. 124. PETRUSHNKO: May it please the Court. 125. HER HONOUR: I forgot to mark the written submissions. 126. MFI #1 CROWN WRITTEN SUBMISSIONS ON APPEAL 127. MFI #2 DEFENCE WRITTEN SUBMISSIONS ON APPEAL 128. I have already marked the bundle which is exhibit A. I don't really know that those documents need to be tendered on the sentence appeal Mr Prosecutor but I will mark them on the sentence appeal as one exhibit. 129. EXHIBIT #A SENTENCE ASSESSMENT REPORT OF 11/07/21, TENDERED, ADMITTED WITHOUT OBJECTION ON APPEAL 130. EXHIBIT #1 CASE NOTE REPORT AND REPORT FROM CLINICAL PSYCHOLOGIST MUHAMAD ZIEDNI, ALL DOCUMENTS TENDERED IN THE LOCAL COURT TENDERED, ADMITTED WITHOUT OBJECTION ON APPEAL 131. Nothing further? 132. PETRUSHNKO: Nothing further your Honour. 133. HER HONOUR: I'll adjourn thank you. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 September 2024