Moh’d v R

1. [1]

   MITCHELMORE JA: The applicant, Ali Khamis Moh’d, was tried in the District Court, before Bourke SC DCJ sitting with a jury, on an indictment containing eight counts of sexual offending against four complainants, each arising from conduct which the applicant was alleged to have engaged in during his employment as a registered nurse:

   1. (1)

      count 1: on 12 December 2018, aggravated sexual touching of EL, a person under the applicant’s authority, contrary to s 61KD of the Crimes Act 1900 (NSW);

   2. (2)

      count 2: on or about 8 August 2021, aggravated sexual intercourse without consent with JM, a person under the applicant’s authority, contrary to s 61J of the Crimes Act;

   3. (3)

      count 3: on or about 9 August 2021, aggravated sexual intercourse without consent with JM, a person under the applicant’s authority, contrary to s 61J of the Crimes Act;

   4. (4)

      count 4: on 17 September 2021, aggravated sexual touching of JR, a person under the applicant’s authority, contrary to s 61KD of the Crimes Act;

   5. (5)

      count 5: on 17 September 2021, aggravated sexual intercourse without consent with JR, a person under the applicant’s authority, contrary to s 61J of the Crimes Act;

   6. (6)

      count 6: on 4 March 2022, aggravated sexual touching of RK, a person under the applicant’s authority, contrary to s 61KD of the Crimes Act;

   7. (7)

      count 7: on 4 March 2022, aggravated sexual touching of RK, a person under the applicant’s authority, contrary to s 61KD of the Crimes Act;

   8. (8)

      count 8: on 4 March 2022, aggravated sexual touching of RK, a person under the applicant’s authority, contrary to s 61KD of the Crimes Act.

2. [2]

   On 6 August 2024, the jury returned verdicts of guilty on counts 1, 4, 5 and 6, and found the applicant not guilty on counts 2, 3, 7 and 8. On 27 September 2024, Bourke SC DCJ sentenced the applicant to an aggregate sentence of imprisonment of 5 years and 2 months with a non-parole period of 3 years and 6 months.

3. [3]

   By his Notice of Appeal filed on 11 June 2025, the applicant sought leave to appeal against his conviction on count 6 and against the aggregate sentence imposed on the following grounds:

   1. (1)

      The jury’s verdict on count 6 was unreasonable because it was inconsistent with the verdict of not guilty on count 7 (requiring leave under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW)).

   2. (2)

      The sentencing judge erred in finding, on count 1, that the offending the subject of that count involved “skin to skin” contact (requiring leave under s 5(1)(c) of the Criminal Appeal Act).

4. [4]

   For the reasons set out below, I would grant the applicant leave to appeal against his conviction and against the aggregate sentence. However, I would dismiss the appeal.

The conviction appeal

1. [5]

   Although the applicant’s conviction appeal was limited to count 6, which concerned the complainant referred to as RK, both the applicant and the respondent addressed the other counts on the indictment in their written submissions, as providing context for the ground of appeal.

2. [6]

   The Crown at trial led evidence from each of the complainants, witnesses who worked in the two hospitals where the offences were alleged to have occurred, family members of the complainants, and one expert witness, along with the officer in charge. Specifically in relation to RK, the Crown relied on a number of witnesses who were on the nursing staff at Nepean Private Hospital, as well as one of RK’s daughters who visited RK in hospital.

3. [7]

   The Crown also relied on tendency evidence. The tendency that the Crown alleged was a tendency on the part of the applicant to have “a particular state of mind, namely a sexual interest in adult females under his care or supervision and a tendency to act on that sexual interest in an opportunistic manner by sexually touching them and/or digitally penetrating them in circumstances where he pretended the sexual touching and/or penetration was for a proper purpose”.

4. [8]

   The applicant gave evidence at trial. He also called a number of witnesses as to his good character, including three doctors who had worked with the applicant at Nepean Private Hospital and Norwest Private Hospital, as well as his wife and his wife’s friend.

5. [9]

   On 10 December 2018, EL commenced a two-week clinical placement at Nepean Private Hospital as part of her nursing degree (by the time of the trial, EL was a registered nurse). On 12 December 2018, EL was assigned to work with the applicant.

6. [10]

   The Crown relied on evidence of an event that occurred early in the shift on 12 December 2018 as providing context to the alleged offending conduct. EL gave evidence that the applicant took her into an unoccupied single room to show her the monitoring device that displays patients’ vital signs and can be used for electrocardiogram (ECG) monitoring. While in the room, the applicant asked EL if she knew where to place the ECG leads. EL gave evidence that she demonstrated by pointing to the areas on her chest where she would place the stickers, starting with towards the right side of her breast, followed by the left side and under her breast. Before she could finish describing the locations on her chest, the applicant asked if he could touch her. EL said yes, and the applicant followed the same pattern on her that she was going to describe, placing his finger on the six areas. As he placed his finger on an area, he identified the sticker number he would place there. EL thought the applicant’s demonstration, which went on for a couple of minutes, was strange and unnecessary, because she had demonstrated on herself and essentially showed him what she was trying to explain.

7. [11]

   The conduct constituting count 1 occurred later in the shift, when the applicant and EL were preparing to look after a patient who had undergone bowel surgery. The applicant told her that it was important to listen to bowel sounds after surgery and that he could show her how to do this. The applicant took her to an empty room and demonstrated how to listen to bowel sounds using a stethoscope, putting it on areas of his stomach and abdomen over his clothing. The applicant then handed EL the stethoscope so that she could listen to her own bowel sounds.

8. [12]

   EL put the earpieces of the stethoscope in her ears and placed the diaphragm on her stomach over the top of her clothes. When the applicant told her that she could not go over the clothes and needed to be “on the skin”, she put the diaphragm of the stethoscope on her stomach underneath her shirt, so as not to expose her stomach. EL said that she could not hear anything and the applicant took the earpieces out of her ears and had a listen before handing them back to her. When EL had another listen and still could not hear any bowel sounds, the applicant said to her, “sometimes you need to go lower”.

9. [13]

   According to EL’s evidence, the applicant “grabbed the end of the diaphragm [of the stethoscope] where my hand was and he popped it under my pants”. EL said that the applicant took the diaphragm 4 cm below her belly button and 5-7 cm to the left of it, close to her underwear. With one hand still around the diaphragm of the stethoscope, the applicant then “used his other hand and he put his [index] finger on my underwear and stretched it and I could see him peering down, looking towards my vagina”. EL’s evidence was that after about 10 or 15 seconds, the applicant let go of her underwear, with EL feeling and hearing her underwear flick back on to her skin. This conduct was the subject of count 1.

10. [14]

    EL recalled that the applicant continued to talk to her as if nothing had happened and then he walked out of the room. The next day, she told a friend (who was a fellow nursing student) what happened. On her friend’s suggestion, EL contacted and met with the clinical nurse education facilitator, Claudine Rushton, and recounted the events of the previous day. At Ms Rushton’s request, EL wrote down what happened on a piece of paper (Ex 4). Ms Rushton then took EL to meet with the director of nursing at the hospital, Jill McEvoy-Williams. EL told Ms McEvoy-Williams what happened. Ms McEvoy-Williams gave evidence that she spoke to the applicant, who denied that anything occurred.

11. [15]

    On 7 August 2021, JM, who was about 58 years old at that time, was admitted to Norwest Private Hospital, having been transferred from another hospital after experiencing chest pains. The applicant was one of the nurses who was responsible for her care.

12. [16]

    JM gave evidence that when he was performing an enema, the applicant instructed JM to adopt a position where her knees were on the bed, her face was on the bed, and her bottom was up in the air. When JM was in that position, the applicant told her “I need to see if something’s there”, then inserted his finger into her anus and moved it around (count 2).

13. [17]

    JM gave evidence that the applicant returned to her room the following day and asked if her pubic area had been shaved in advance of the coronary angiogram she was to undergo. JM said she had been shaved, and the applicant asked if he could have a look to see if it was done properly. After looking at her pubic area, the applicant told her it had not been done properly and he would need to do it again. JM gave evidence that while the applicant was shaving her genital area, he inserted his finger into her vagina (count 3).

14. [18]

    The applicant gave evidence that he did not recall JM. He said that what JM described in relation to the enema was proper medical procedure, as was shaving a patient’s pubic area before a coronary angiogram. He also said that he never conducted a digital rectal examination without first obtaining consent, and that he never inserted a finger into a patient’s vagina while shaving the pubic area.

15. [19]

    As I noted above, the jury found the applicant not guilty on counts 2 and 3.

16. [20]

    On 15 September 2021, JR, who was 27 years old at the time of trial, was admitted to Norwest Private Hospital to undergo an electrophysiology study (EPS). The EPS involved a surgical procedure by which a catheter was inserted through her groin into the heart, which left JR with a wound on the right side of her groin.

17. [21]

    On 17 September 2021, being the day of JR’s discharge, the applicant entered her room and asked to see the wound. JR pulled down her pants and her underwear while lying on the bed. The applicant pressed on the area of the wound, touching it and massaging it. He then touched the left side of her groin before proceeding, on JR’s evidence, “to touch further down the genital area into the vulva area” (count 4). JR said that the applicant touched her clitoris with his thumb while massaging the wound, and then touched her labia before spreading the labia a few times and inserting his finger “probably about 2 centimetres-ish into the vaginal canal” (count 5). JR recalled that the applicant said to her something along the lines of, “I’m sorry I didn’t realise I was doing that”.

18. [22]

    JR said that after the applicant took his finger out of her vagina, he massaged her thigh. He then took his gloves off and said, “Okay, thank you” and walked out. JR proceeded to cry. Another nurse came in and saw her crying, but JR did not say anything to her.

19. [23]

    That same afternoon, JR emailed her general practitioner, Dr Melissa Joseph, and asked about the protocol for massaging a groin venous puncture site post procedure. Dr Joseph rang JR, who explained in brief detail what had happened. The nurse who had seen her crying earlier then returned and JR gave her a brief summary of what had happened. That nurse left to get the nurse unit manager (NUM), Anna Castaneda. Ms Castaneda visited JR’s room with a clinical nurse educator, Eldie Duggan, and JR gave them a more in-depth summary of what had happened. After she was discharged on the same day, JR emailed a written complaint to Ms Castaneda (Ex 10). On 1 October 2021, she attended Stride Safe Space at Blacktown and spoke to one of the workers there, who arranged for police to attend so that JR could make a complaint.

20. [24]

    The director of nursing at Norwest Private Hospital, Heidi Evans, gave evidence that she spoke to the applicant and he said he had been asked to check the groin by a new graduate to see if a lump was forming. He had only moved her underwear to the side, and had palpated the puncture site to check for a haematoma. He denied touching JR’s clitoris or vagina.

21. [25]

    The conduct the subject of counts 6, 7 and 8 was alleged to have occurred in the course of an interaction between the applicant and RK at Nepean Private Hospital on 4 March 2022.

22. [26]

    RK was 69 years old at the time of trial. She gave evidence that she went to Nepean Private Hospital for an angiogram, following which she was told that she needed to have a quadruple bypass and would not be leaving hospital until that was done. After four or five days at Nepean Private Hospital, RK was transferred to Norwest Private Hospital where she had the bypass surgery. She was later transferred back to Nepean Private Hospital.

23. [27]

    During her first period at Nepean Private Hospital, RK was in a private room with an ensuite bathroom. She was connected to a heart monitor and the leads of the monitor were attached to her chest with stickers. The only time RK was allowed to leave her bed was to have a shower and use the toilet. In order to have a shower, RK needed to call a nurse for assistance. The nurse would either detach the monitor leads from the stickers or remove and replace the stickers. She later described the stickers as “little patches that attach to your body, that stick onto your body”.

24. [28]

    RK said that nurses came and went all of the time. On 4 March 2022, the applicant came into RK’s room at the shift changeover and told her that he would be looking after her. RK wanted to have a shower and asked the applicant to remove the monitor leads. The applicant removed the stickers as well. Before she went to have a shower, the applicant said to her “If you need me, call me and I will help you in the shower”.

25. [29]

    RK gave the following evidence as to what occurred next:

26. [30]

    RK gave evidence that before this day, a number of nurses had removed the leads and the stickers, and none of them had touched her the way the applicant did. When asked to describe what was different in the way the applicant touched her, RK said:

27. [31]

    When asked how the applicant squeezed her nipple, RK replied:

28. [32]

    RK was “pretty sure” that when the applicant was re-placing the stickers, the door to her room was closed. She subsequently gave evidence that when the applicant was re-placing the stickers and touched her breasts, it was with his hand, and there was nothing between her breast and his hand.

29. [33]

    RK said that the applicant left the room and came back later. When the applicant returned to her room, RK was sitting on the edge of the bed. The applicant asked RK how she was, and RK said she had a pain in her back. The applicant took cream from the shelf and rubbed it into RK’s back while she was sitting on the edge of the bed. He was standing in front of RK, “very close” to her, and rubbing the cream into the top part of her back. RK gave evidence that when this was happening, the applicant said to her, “You can touch me if you want to. That’s okay.” RK replied that she did not want to. This conduct was the subject of count 8.

30. [34]

    RK said that when the applicant was still standing in front of her, there was a knock at the door and the director of nursing, whom she knew as Jill, came into the room. Jill said to her that the applicant would be looking after her when she went to Norwest. The applicant then left the room. RK recalled that the applicant returned towards the end of his shift and sat on the edge of her bed talking to her. While the applicant was in the room, RK’s daughter arrived to see RK, and the applicant told her that he would be looking after RK when she went over to Norwest. After the applicant left, RK said to her daughter, “I didn’t think he’d ever go”. RK did not tell her daughter what happened because she was going to Norwest Private Hospital and she did not want her family worrying. RK was also embarrassed and scared and did not want them to know what the situation was.

31. [35]

    RK was transferred to Norwest Private Hospital on the evening of 4 March 2021 and had the bypass surgery on the morning of 5 March 2021. She recalled the applicant twice visiting her when she was in the Intensive Care Unit. On the first occasion, he said to her, “You’re doing very well”. When he returned the next day, RK used her buzzer to call the nurse and the applicant left when the nurse came in.

32. [36]

    RK was eventually transferred back to Nepean Private Hospital. Upon her return there, an elderly nurse named Denise came to her room, and RK asked her what she would do if something “like that” happened to her. The nurse said to her, “You need to report it”, and asked whether it happened to RK. RK said that she nodded and started to cry. The nurse said she would let Julie-Anne know as she was the next in charge of nursing. Julie-Anne then came to see RK, and RK told her what happened. Julie-Anne said that “Jill” (Ms McEvoy-Williams) would be back the next day. RK recalled Jill coming to see her the next day, and RK told her what happened. RK gave evidence that she spoke to her three children about what happened when she came home from hospital, because the matter was in the hands of the police.

33. [37]

    In cross-examination, RK maintained that the applicant touched her breasts when the stickers were being put back on. She disagreed with the proposition that the only thing the applicant did when reattaching the stickers was to touch the stickers to the midline of her chest and her rib cage, saying: “No, he didn’t. He, he touched me, he told me I had good breasts for someone my age”. RK also disagreed with the proposition that the applicant did not squeeze her nipple when replacing the stickers, saying, “He, he actually pressed – squeezed my nipple”.

34. [38]

    Denise Price, a registered nurse, gave evidence that was she had seen RK in the course of her shift during the night of 15 March 2022 as RK had required some assistance with pain. On her final round before finishing she saw RK was sitting up and she went in to check whether she had settled during the night. After a brief conversation about pain management, RK “went really quiet” and asked Ms Price, “How do I appropriately – what do I do when I’ve been inappropriately touched by a male nurse?” Ms Price asked whether this happened at Nepean or Norwest and RK confirmed it was at Nepean. RK also said to her that the male nurse worked at both Nepean and Norwest. Ms Price tried to calm RK down but it was the end of her shift and she was receiving multiple phone calls. She apologised to RK and said she would pass all of this on and ask Julie-Anne Woodward, the NUM of the ward, to come and have a chat to her.

35. [39]

    Ms Woodward gave evidence of two interactions with RK. The first interaction was on 4 March 2022, in response to RK asking to see a manager about the behaviour of another patient, who she said had been rude to the nursing staff overnight. Ms Woodward said that when she arrived at RK’s room, the door was partly ajar. Ms Woodward knocked and RK answered, “Come in”. The curtain was pulled across, so Ms Woodward pulled the curtain back and introduced herself.

36. [40]

    Ms Woodward said that when she entered the room, the applicant was in the room on the opposite side of the bed. He was listening at first and then he walked out of the room. RK told her about what had happened overnight in relation to the other patient being rude to the nursing staff. Ms Woodward recalled telling RK that the ambulance was running a bit late to pick her up for Norwest, and that RK asked about bypass surgery. At that point, the applicant had come back into the room and Ms Woodward said, “Ali would be able to tell you more about that because he works at Norwest in that area”. RK replied along the lines of, “Yes, he has explained a lot”.

37. [41]

    Ms Woodward’s second interaction with RK was on 16 March 2022. She went to see RK after speaking briefly with Ms Price. According to Ms Woodward, when she first entered RK’s room, RK looked at her and started crying. Ms Woodward said to her, “You know what I’m here for?” and RK said “yes”. Ms Woodward sat on the edge of the bed right near RK and asked her if she could give her a name, and RK said yes and gave the applicant’s name. Ms Woodward gave the following evidence:

38. [42]

    In cross-examination, Ms Woodward was taken to her police statement of 24 May 2022. She agreed that in her police statement, she had recorded asking RK, “Was it during an ECG or connecting you to a monitor?” and that it was in response to this question that RK said no, and that the applicant had undone her gown and played with her nipples.

39. [43]

    Ms McEvoy-Williams gave evidence that she went to see RK on around 18 March 2022, knocking on her open door and asking if she could enter. RK said, “I know why you’re here”. Ms McEvoy-Williams asked RK if she could sit down and have a chat with her, and RK burst into tears. Ms McEvoy-Williams recalled that after she apologised to RK for having to repeat the allegation, RK advised that while she was having the electrodes applied to her chest by the applicant “he tweaked her nipple and suggested she could touch him as well”.

40. [44]

    In cross-examination, Ms McEvoy-Williams agreed that when she spoke to the applicant, he said that he had seen RK at Norwest twice when he was passing through the ICU, and on both occasions there was a nurse present. She also agreed that the applicant denied touching RK’s breasts and he denied saying to RK, “You can touch me if you like”.

41. [45]

    The Crown also called Dr Eunice Gribbin, a registered nurse since 1978 with a PhD and experience in clinical teaching of nursing students since 1999. Ms Gribbin gave evidence about the correct placement of stickers for an ECG monitor. Ms Gribbin stated that for a female patient it was necessary to be mindful of the fact that they may be uncomfortable exposing their chest, and the actual breast need not be exposed. Referring to a depiction of the lead placement that was in evidence (Ex 15), Dr Gribbin stated:

42. [46]

    The applicant denied engaging in any of the conduct the subject of each of the counts on the indictment. In relation to the counts involving RK, the applicant gave evidence that when his shift began on the morning of 4 March 2022, he was told by the nightshift nurse that RK had not been able to sleep and had been agitated by another patient in a room nearby. The shift nurse had closed RK’s door and suggested to the applicant that he keep the door closed, which he did during the shift.

43. [47]

    The applicant said that when he introduced himself to RK at the start of his shift, she was unhappy and tired. After breakfast, she pressed the buzzer asking for a shower. According to the applicant, RK asked him to remove all of the stickers and cables. She had moved her gown down and he took it down further, removed the stickers and cables and then put the gown back up. When they moved to the bathroom, the applicant assisted RK to remove her gown, as she had one arm attached to a pump administering a heparin infusion which could not be stopped. The applicant then attended to other patients while RK had a shower.

44. [48]

    When RK pressed the buzzer, the applicant returned to her room and found her in the bathroom trying to put on the gown. As this involved negotiating the heparin infusion pump, RK was having some difficulties. The applicant assisted RK to put the gown on and did it up at the back, before moving the infusion pump with her back to her bed. The applicant said that, when RK was back in bed, he explained to her that he needed to reconnect her to the monitor and put the stickers in the same places, and that RK agreed to this. The applicant’s evidence was that RK pulled her gown down for this purpose without his needing to ask her to do so, saying that after a couple of days people “just know these things”. He denied that he touched RK’s breast for anything other than a proper medical purpose for applying the stickers. He also denied squeezing her nipples and saying to her that she had nice breasts for her age.

45. [49]

    In relation to the conduct the subject of count 8, the applicant gave evidence that when Ms Woodward came into the room to see RK, he was in the room to adjust the heparin infusion and do observations. When Ms Woodward entered, he was standing beside the monitor on the right side of the bed, which was the side furthest from the door. RK was lying on her back. Ms Woodward introduced herself to RK and the applicant left to give them some space. When he returned after about five minutes to document the observations, Ms Woodward was still in the room and she mentioned to RK that the applicant also worked at Norwest.

46. [50]

    The applicant maintained his denials in cross-examination. In relation to counts 6 and 7, the applicant agreed that theoretically it was possible to attach the ECG stickers on a female patient without touching the breasts, but sometimes touching happened given that some of the stickers need to be placed just under the breast. Even if a patient was asked to lift her breasts sometimes a patient let the breast drop and he would need to use the back of his hand to move the breast away from where the stickers were to be placed. The applicant agreed that there would not be any reason to squeeze a nipple during the procedure and that there was no medical purpose in him inviting a patient to touch him when rubbing their back.

47. [51]

    In closing submissions on counts 6, 7 and 8, the Crown Prosecutor outlined the conduct the subject of those counts and submitted:

48. [52]

    The applicant’s trial counsel relied on the difference between the account of the conduct constituting counts 6 and 7 that RK gave in her evidence and the account that, on Ms Woodward’s evidence, RK had given to her about that conduct. The applicant’s counsel submitted that these accounts were not reconcilable, which cast doubt on RK’s reliability. In relation to the conduct the subject of count 8, the applicant’s counsel emphasised that by contrast with RK’s evidence, the evidence of Ms Woodward was that when she entered the room to speak with RK, the applicant was not standing in front of RK but was on the other side of the bed near the monitors, and RK was lying down on the bed. Counsel relied on these matters and others to submit that there were “big question marks over the reliability of [RK]”.

49. [53]

    The parties were not in dispute about the principles that apply when a verdict is alleged to be unreasonable on the basis of factual inconsistency with other verdicts. In MacKenzie v The Queen (1996) 190 CLR 348 at 366-367; [1996] HCA 35 (“MacKenzie”), Gaudron, Gummow and Kirby JJ set out a number of general propositions on the basis of a review of the cases, including:

50. [54]

    In Holt v R [2021] NSWCCA 140, after referring to the above passage in MacKenzie, N Adams J referred to a number of subsequent authorities of this Court that have applied that decision on the question of inconsistent verdicts, in a passage that provides a useful summary of the position:

51. [55]

    The applicant submitted that on RK’s evidence, counts 6 and 7 occurred as part of a single incident when the applicant was re-attaching the ECG stickers and leads to her chest. The unequivocal nature of her evidence as to both acts was such that there could have been no issue regarding her reliability in respect of count 7 that did not also infect count 6. Relatedly, the applicant noted that RK complained about both the breast touching and the nipple squeeze at the time, such that the complaint evidence did not give rise to a reasonable basis for distinguishing between the two counts.

52. [56]

    In so far as it might be said that count 6 was strengthened by the tendency evidence, the applicant put two submissions. First, he submitted that in circumstances where both the acts constituting count 6 and count 7 were unambiguously sexual and took their character from the whole of the event, the tendency relied upon was not engaged. In oral submissions, senior counsel for the applicant referred in this context to the evidence of Dr Gribbin that there was no reason to expose the breast or touch the breast when applying the ECG stickers.

53. [57]

    Second, if the tendency was engaged, its focus was on the tendency to act opportunistically and that tendency applied equally to count 6 and count 7. Accordingly, it would be expected that the jury’s acceptance of RK’s account in relation to count 6 would flow into count 7. That this did not happen suggested that the tendency was not a determinative factor for the jury. It followed, the applicant submitted, that it was not logical for the jury to distinguish one part of RK’s account from the other.

54. [58]

    It is the case that on RK’s evidence, the two acts the subject of counts 6 and 7 happened as part of one episode of offending. Nonetheless, they were charged as separate counts and the jury was directed in an orthodox fashion as to the need to give separate consideration to each of the verdicts.

55. [59]

    On RK’s evidence, the sexual touching commenced after the applicant started reattaching the ECG stickers to RK. According to her evidence, he started to put the stickers on her and touching her breasts, telling her that she had nice breasts for her age (count 6). RK contrasted how the applicant touched her with how other nurses (and there had been a number) touched her when they removed the stickers, giving evidence that none of them had touched her the way he did. She referred specifically to how another male nurse asked her to move her breasts he couldn’t get to where he needed to, “whereas Ali just touched me in, you know, sort of, not, not the way anybody would touch a patient”. Consistently with this evidence, RK’s first complaint to anyone, being Ms Price, was that she had been “touched inappropriately”. Her next complaint, made to Ms Woodward on the same day, was that the applicant had fondled her breasts and rubbed her nipples. On the following day, RK alleged that the applicant had tweaked a nipple.

56. [60]

    In finding the applicant not guilty on count 7, the jury was not satisfied beyond reasonable doubt that the applicant, in attaching the ECG stickers and leads to her chest in the manner she described, separately squeezed her nipple. RK’s evidence was that the nipple squeeze happened “while he was doing that”, with “that” being putting the leads and stickers back on, the same conduct in which the applicant was alleged to have touched her breasts.

57. [61]

    The rational explanation for those differential verdicts lies in the level of specificity of the acts the subject of the counts. On the one hand, RK gave evidence that the applicant squeezed her nipple “with his fingers”. However, RK then said that she did not see the act because she was not looking, going on to say “but I know when I, I get squeezed and I know when it’s not professional”. In circumstances where she did not see the act, it was significant that on Ms Woodward’s evidence, as the first person to whom RK provided an account of any detail, RK told her that the applicant “fondled her breasts and rubbed her nipples”. In speaking to Ms McEvoy-Williams the following day, RK’s account that the applicant “tweaked” her nipple was closer to her evidence at trial. Nonetheless, on the terms in which RK made complaints about what the applicant, it was rational for the jury to find that the applicant touched RK’s breasts in a sexual way without being satisfied to the criminal standard that he had separately squeezed her nipple.

58. [62]

    I would grant the applicant leave on ground 1. However, I would dismiss the ground.

The sentence appeal

1. [63]

   Judge Bourke, to whom I will refer in this part of the judgment as the sentencing judge, heard the sentence proceedings on 27 September 2024 and sentenced the applicant at 2:00 pm the same day, the reasons for which were subsequently published: R v Moh’d [2024] NSWDC 522. As I noted above, the focus of the applicant’s application for leave to appeal against the sentence is count 1, which involved the complainant EL.

2. [64]

   In the sentence proceedings, the Crown tendered the applicant’s criminal record and custodial record which showed no convictions or arrests prior to the instant offending, the sentencing assessment report, and victim impact statements of the complainants RK and EL. The defence tendered a psychological report prepared by psychologist Ms Ann-Marie De Santa Brigida, a letter prepared by the applicant’s wife, and character reference letters prepared by surgeons who previously worked with the applicant.

3. [65]

   The sentencing judge found that each of the offences were opportunistic. However, the offences were particularly insidious having regard to the context in which they occurred, with the applicant occupying a position of trust and authority given his position as an experienced nurse: at [22]. On the basis of the various incidents, his Honour found it irresistible that the applicant manipulated and abused his position of authority for his own sexual gratification: at [23].

4. [66]

   In reaching the above conclusion, his Honour made it clear that that he was not treating the fact that the offences involved a breach of trust and authority as an additional aggravating factor: at [25]. Specifically in relation to count 1, his Honour did not accept the Crown’s submission that the offence involved a breach of trust that was additional to EL being under the applicant’s authority, the latter being the aggravating circumstance for the purposes of s 61KD of the Crimes Act: at [27]-[28].

5. [67]

   His Honour found the objective seriousness of count 1 to be comfortably below the mid-range of seriousness and towards the lower end, albeit not in the lowest range, for reasons to which I will come when addressing the ground of appeal: at [28]. In relation to the sexual touching count involving JR (count 4), his Honour considered that this offence sat around the mid-range of objective seriousness: at [30]. As to count 5, an offence of aggravated sexual intercourse without consent, which occurred at about the same time as count 4 and involved the applicant placing his finger briefly inside JR’s vagina, his Honour found that this offence was below the mid-range for this type of offence and was towards but not in the lower range of objective seriousness: at [31]. In relation to the sexual touching count involving RK (count 6), his Honour found that it lay comfortably below the mid-range of objective seriousness and fell towards the lower end, albeit not in the lowest range: at [33].

6. [68]

   On the applicant’s subjective case, the sentencing judge noted that the applicant was 44 years old at the time of sentence and had no criminal history: at [38]. He was born in Kuwait and, after the Gulf War, lived in Iraq with his mother and siblings while his father remained in Kuwait. The family reunited in Jordan after the end of the war: at [39]. While in Jordan, the applicant completed high school and then a Bachelor of Nursing Science. He worked in Jordan as a nurse for three years before moving to Saudi Arabia, where he also worked as a nurse for about three years. The applicant came to Australia when he was aged 29, working initially in the aged care sector for five or six years before gaining employment as a nurse at Nepean Hospital: at [41].

7. [69]

   The applicant married his wife when he was 29 years old and they have two children. The applicant’s wife remained supportive, and the sentencing judge noted that she was present during much of the trial and at the sentence proceedings: at [43]. His Honour noted the very significant impact that the applicant’s incarceration had had on his wife and their children, referring to a letter from his wife. His Honour noted that this was an understandable and regrettable but almost inevitable consequence of serious criminal offending and took it into account as part of the applicant’s overall subjective case: at [44].

8. [70]

   His Honour noted the two character references from surgeons who had worked with the applicant. Accepting that they expressed genuinely held views, his Honour gave them limited weight as it was the applicant’s nursing that put him in a position to commit the offences: at [46].

9. [71]

   The applicant had no history of problems with alcohol, drugs or gambling: at [42]. No remorse had been expressed despite the verdicts and what his Honour described as “the compelling evidence supporting them”: at [47]. The report from Ms Brigida concluded that the applicant met the diagnostic criteria for post-traumatic stress disorder based on childhood experiences, including growing up in a war-torn country, facing the possibility that his father had died and the absence of his father from a young age, and his responses to a provisionally diagnostic questionnaire: at [45]. His Honour took this diagnosis into account in the sense that it may render his time in custody more difficult, but did not attach much weight to it because the applicant seemed until recent times to have navigated his family and working life with few obvious problems: at [51].

10. [72]

    The sentencing judge accepted that the applicant was at low risk of offending within a medical setting in the future, although that was because he would never in the future be permitted to work in such an environment: at [49]. His Honour otherwise found that the applicant would continue to pose some risk of opportunistic sexual offending, but his prospects of rehabilitation were reasonable given his family supports, lack of other offences and the availability of work in a different area on his release: at [50].

11. [73]

    His Honour was satisfied that for each of the offences, the threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was passed and that no sentence other than one of imprisonment was appropriate: at [52]. His Honour found special circumstances having regard to this being the applicant’s first time in custody and the mental illness diagnosis. His Honour considered that there was a need for a degree of accumulation to account for three victims and the offending being separated by considerable time, also recognising that counts 4 and 5 involved the same victim and were effectively part of a single episode: at [58].

12. [74]

    In imposing an aggregate head sentence of 5 years and 2 months imprisonment, with a non-parole period of 3 years and 6 months, his Honour indicated the following sentences:

    1. (1)

       Count 1: a head sentence of 12 months imprisonment with a non-parole period of 8 months;

    2. (2)

       Count 4: a head sentence of 18 months imprisonment with a non-parole period of 12 months;

    3. (3)

       Count 5: a head sentence of 4 years and 2 months imprisonment with a non-parole period of 33 months; and

    4. (4)

       Count 6: a head sentence of 12 months imprisonment with a non-parole period of 8 months.

13. [75]

    By ground 2 of the notice of appeal, the applicant contended that the sentencing judge erred in sentencing the applicant on this count “on the basis that there was skin to skin contact”. The appropriate and correct test in a sentence appeal to ascertain the existence of a mistake of fact for the purposes of House v The King (1936) 55 CLR 499; [1936] HCA 40 is to ask whether the finding was reasonably open: Hancock v R [2025] NSWCCA 213 (“Hancock”) at [73]. In stating this test in Hancock, the Court made it clear that a number of existing principles were unaffected by it, including the accepted approach of not overly scrutinising ex tempore reasons with an eye attuned to error, instead focusing on the substance of the reasons, reading them fairly and as a whole: at [77], citing Tukuafu v R [2024] NSWCCA 84 at [133]; MF v R [2024] NSWCCA 42 at [48]; and Monardo v R [2025] NSWCCA 199 at [130]-[131].

14. [76]

    The applicant accepted that the sentencing judge’s finding on the objective seriousness of count 1 was broadly favourable to him. Nonetheless, he submitted that the factual findings on which it rested, in particular that the conduct constituting count 1 was “skin-to-skin”, was not open on the evidence. Specifically, the applicant submitted that what was clear from EL’s evidence was that she alleged that the applicant touched her on the abdomen using the diaphragm of the stethoscope and touched her underwear to pull it away from her stomach, and that she did not give evidence that the appellant’s hand touched her skin or that there was otherwise “skin-to-skin” contact.

15. [77]

    I do not accept that submission. As I set out above, EL’s account in her evidence, which the sentencing judge accepted, was that the applicant “grabbed the end of the diaphragm [of the stethoscope] where my hand was and he popped it under my pants”. EL said that the applicant took the diaphragm 4 cm below her belly button and 5-7 cm to the left of it, “close to my underwear”, the readily available implication of which was that the applicant placed the diaphragm of the stethoscope on her abdomen in a location above her underwear. EL then said that with one hand still around the diaphragm, the applicant “used his other hand and he put his finger on my underwear and stretched it and I could see him peering down, looking towards my vagina”. EL gave this evidence:

16. [78]

    As the respondent submitted on the appeal, on the basis of EL’s description of the applicant’s conduct it was reasonably open to the sentencing judge to find that his conduct involved placing one hand down her work pants holding the stethoscope and, using his free hand, placing at least the index finger of that hand between her skin and her underwear, in order to be able to pull the underwear away from her skin and look at her exposed pubic area. It was by such a process that the applicant was able to stretch the underwear using a single finger. Consistently with the applicant having used one finger to stretch her underwear out from her skin, EL’s evidence, which the sentencing judge described as “entirely consistent with an actual memory”, was that when the applicant let go she felt and heard the underwear “flick back” on to her skin.

17. [79]

    The finding of the sentencing judge that count 1 involved skin to skin contact was reasonably open on the evidence. It follows that although I would grant leave to appeal on ground 2, I would dismiss the ground.

Conclusion

1. [80]

   I propose the following orders:

   1. (1)

      The applicant is granted leave to appeal on grounds 1 and 2 of the notice of appeal.

   2. (2)

      The appeal is dismissed.

2. [81]

   CAMPBELL J: I have had the considerable advantage of reading the judgment of Mitchelmore JA in draft. With respect I agree with what her Honour has written in respect of both grounds 1 and 2 and with the orders her Honour proposes.

3. [82]

   So far as Ground 1 is concerned, I have closely considered the authorities which Mitchelmore JA sets out at [53] – [54] above. As her Honour says, these principles were not in dispute. I agree with her Honour’s conclusions at [60] – [61]. I have borne in mind Simpson J’s “central question” from R v TK at [130], which her Honour has set out (at [54]). As Mitchelmore JA has observed (at [60]), the acquittal on count 7 involves the consideration that the jury were not satisfied beyond reasonable doubt about RK’s evidence in relation to count 7. To my mind, however, this does not mean that the jury must have had doubts about RK’s credibility generally. As every jury is always instructed, jurors are entitled to take a nuanced approach to the evaluation of the evidence of every witness including a complainant. It is not an all or nothing exercise. This jury was entitled to accept part of RK’s evidence and reject other parts of it. Her evidence in relation to count 6, was generally supported by the tendency evidence which the jury apparently accepted, while they were not persuaded to the criminal standard of the facts necessary to prove count 7. As explained by Mitchelmore JA (at [61]), this is both logical and reasonable.

4. [83]

   RIGG J: I agree with Mitchelmore JA.