Hotel employee in Whistler sentenced to two years in prison for sexual assault, appeal dismissed

The appeal of a Whistler employee imprisoned for sexual assault has been rejected.

On May 22, Nicholas Nolan Roche Hurley was sentenced to two years in prison for sexually harassing a colleague on December 14, 2020.

According to court documents, Hurley was found guilty of sexually assaulting his co-worker at a private residence in Whistler on December 19, 2022. At the time, Hurley and his co-worker were employed at a hotel in the community and lived in the same apartment with other hotel employees.

Judge Joanne Challenger found Hurley guilty of engaging in sexual activity with his colleague “despite her clear and verbal expression of non-consent.” Hurley attempted to have sex with his colleague while she was drunk and trying to sleep, and continued despite repeated requests to stop. According to court documents, Hurley had developed romantic interest in his colleague prior to the assault, but this was not reciprocated.

In his appeal, Hurley claimed that Challenger failed to consider his mental health disorders – listed as ADHD and “related social and learning difficulties” – as mitigating his moral culpability, and failed to consider Hurley’s own childhood abuse as a mitigating circumstance.

Hurley sought to have his prison sentence replaced by a Conditional Sentence Order (CSO) of two years minus one day, which would have allowed him to serve his time in the community under conditions followed by probation.

Hurley was allowed to appeal, but it was unanimously rejected by three judges of the Court of Appeal.

In a ruling delivered July 12 in North Vancouver, joined by two other judges, Justice Ronald Skolrood wrote that Challenger had taken Hurley’s mental state into account and therefore rejected the claim that it contributed to a misunderstanding of the “clearly communicated” lack of consent.

“The judge clearly concluded that the defendant’s decision to ignore the plaintiff’s reported lack of consent was driven by his desire to satisfy his own sexual and romantic desires. The defendant’s ADHD and related learning and social problems therefore had little or no bearing on the defendant’s moral culpability for the specific conduct underlying his conviction,” Judge Skolrood wrote.

Regarding the allegation that Challenger failed to take into account Hurley’s own victimization as a child, Skolrood ruled that Challenger was aware of Hurley’s childhood trauma and found that the evidence did not suggest that that trauma played a role in the sexual assault of his colleague.

Finally, Hurley’s appeal against the severity of the sentence was also dismissed. Hurley had argued that a CSO would be more appropriate given his appeals to guilt and previous trauma, but Skolrood wrote that he did not take issue with the judge’s arguments and that the sentence imposed was at the “low end of the range established by this court for sexual abuse of an adult,” so two years in prison was not an unreasonable sentence.

At sentencing, a case was made for a CSO, but Challenger ruled that the lack of sexual penetration did not diminish the need to call out Hurley’s conduct or deter others from doing so. A CSO was disproportionate to the seriousness of the offence, and concerns that Hurley would “not cope well” in a prison setting due to psychological and emotional problems also did not persuade Challenger. He ruled that the evidence did not show that he would suffer undue hardship beyond the normal consequences of a conviction that would result in a prison sentence.

The so-called “collateral damage” of his conviction – social stigma, loss of job as a football coach, and ongoing anxiety and depression – were also taken into account in determining the sentence. However, Challenger ruled that the prison sentence was necessary to instill basic community values ​​”and to demonstrate that our society views the nature of such crimes as heinous.”