A Whistler worker imprisoned for sexual assault has had his appeal dismissed.
On May 22, Nicholas Nolan Roche Hurley was sentenced to two years imprisonment for sexually assaulting a co-worker on Dec. 14, 2020.
According to court documents, Hurley was found guilty on Dec. 19, 2022 of sexually assaulting his female co-worker in a private residence in Whistler. At the time, Hurley and his co-worker were employed at a hotel in the community, and were living in the same residence together with other hotel employees.
Sentencing Judge, Joanne Challenger, found Hurley guilty of engaging in sexual activity with his co-worker “contrary to her clearly and verbally communicated lack of consent.” Hurley attempted to have sex with his co-worker while she was intoxicated and trying to sleep, and continued despite repeated requests he stop. Prior to the assault, Hurley had developed a romantic interest in his co-worker that was not reciprocated, according to court documents.
In his appeal, Hurley claimed Challenger had failed to consider his mental health disorders—listed as ADHD and "related social and learning issues"— diminished his moral culpability, and had failed to give weight to Hurley’s own childhood abuse as a mitigating circumstance.
Hurley sought to have his imprisonment substituted for a "conditional sentence order" (CSO) of two years less one day, which would have allowed him to serve his time in the community, with conditions, followed by probation.
While Hurley was allowed to appeal, his appeal was dismissed unanimously by three justices in the court of appeal.
Justice Ronald Skolrood, in a decision handed down in North Vancouver on July 12, and concurred by two other justices, wrote Challenger had considered Hurley’s mental condition, and consequently rejected that it had contributed to a misunderstanding of the "clearly communicated" lack of consent.
“It is clear the judge found that the appellant’s decision to disregard the complainant’s communicated lack of consent was driven by his desire to satisfy his own sexual and romantic desires. The appellant’s ADHD and related learning and social issues thus had little or no bearing on the appellant’s moral culpability for the specific conduct that grounded his conviction,” wrote Justice Skolrood.
On the claim Challenger had not considered Hurley’s own victimization as a child, Skolrood ruled Challenger was aware of Hurley’s childhood trauma, and found the evidence did not establish it played a part in the sexual assault of his co-worker.
Finally, Hurley’s appeal of the severity of the sentence was also dismissed. Hurley had argued a CSO would be more proportionate, given his appeals on culpability and prior trauma, but Skolrood wrote that because he had found no fault in the sentencing judge's arguments, and the sentence handed down was at the “very lowest end of the range established by this court for sexual assault against an adult,” two years’ imprisonment was not an unfit sentence.
A CSO was argued for in sentencing, but Challenger ruled that the absence of sexual penetration did not reduce the need to denounce Hurley’s conduct, or deter others. A CSO was found to not be proportional with the degree of the offence, while the concern that Hurley would “not cope well” in a custodial institution due to psychological and emotional issues did not sway Challenger, who ruled that the evidence did not establish he would suffer any excessive hardship exceeding the normal consequences of a conviction that would result in imprisonment.
While what was referred to as “collateral consequences” of his conviction—being social stigmatization, the loss of soccer coaching as a career option, and ongoing anxiety and depression—were also considered in sentencing, Challenger ruled imprisonment was needed to instil basic communal values, “and to demonstrate that our society views that nature of such crimes as abhorrent.”
