R v Fouad - [2023] NSWDC 385

District Court

New South Wales

Medium Neutral Citation: R v Fouad [2023] NSWDC 385
Hearing dates: 25 August 2023
Date of orders: 22 September 2023
Decision date: 22 September 2023
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Non-custodial sentence imposed. For orders see [117]-[120].

Catchwords:
CRIME – multiple offences – aggravated indecent assault – aggravated sexual touching without consent – intentionally sexually touch child between 10 and 16 years – aggravating factor under authority.

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Brzozowski v R [2023] NSWCCA 129
Can v R [2023] NSWCCA 179
Geraghty v R [2023] NSWCCA 47
Kearsley v R [2017] NSWCCA 28
R v Arvind (unreported) NSWCCA, 8 March 1996
R v Ibrahim [2021] NSWCCA 296

Category: Sentence
Parties: Director of Public Prosecution (Crown)
Bassem Magdy Fouad (Offender)
Representation:
Counsel:
Mr J Clarke (Offender)
Solicitors:
Mr D Noll (Trial Advocate for the Crown)
Ms S Angelovski (Instructing Solicitor for Offender)
Mr T Sawyers (Instructing Solicitor for Crown)

File Number(s): 2022/286527 & 2021/169313
Publication restriction: Section 578A of the Crimes Act 1900 and s15A of the Children (Criminal Proceedings) Act 1987 apply so as to prohibit the publication of any material which may identify or is likely to lead to the identification of the complainants in the proceedings.

remarks on sentence

On 7 March 2023 the offender pleaded not guilty upon arraignment on an Indictment containing nine counts.
On 23 March 2023 the jury found the offender guilty on Counts 1 to 3 and Counts 5 to 9. Verdicts of not guilty were entered on Count 4 and the statutory alternative to that count.
The offender is therefore to be sentenced in respect of the following offences:-

Count 1 - aggravated indecent assault on PS, an offence pursuant to s61M(1) of the Crimes Act 1900.

The maximum penalty prescribed for this offence is 7 years imprisonment with a standard non-parole period of 5 years.

Count 2 – aggravated indecent assault on HS, an offence pursuant to s61M(1) of the Crimes Act 1900.

The maximum penalty prescribed for this offence is 7 years imprisonment with a standard non-parole period of 5 years.

Count 3 – aggravated indecent assault on HS, an offence pursuant to s61M(1) of the Crimes Act 1900.

The maximum penalty prescribed for this offence is 7 years imprisonment with a standard non-parole period of 5 years.

Count 5 – aggravated sexual touching without consent (person under authority), an offence pursuant to s61KD(1)(a) of the Crimes Act 1900.

The maximum penalty prescribed for this offence is 7 years imprisonment with a standard non-parole period of 5 years.

Count 6 – aggravated sexual touching without consent (person under authority), an offence pursuant to s61KD(1)(a) of the Crimes Act 1900.

The maximum penalty prescribed for this offence is 7 years imprisonment with a standard non-parole period of 5 years.

Count 7 – aggravated sexual touching without consent (person under authority), an offence pursuant to s61KD(1)(a) of the Crimes Act 1900.

The maximum penalty prescribed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Fouad

Details

AGLC: R v Fouad [2023] NSWDC 385
Case: [2023] NSWDC 385
Decision Date: 22 September 2023

CaseChat Overview and Summary

The case of R v Fouad involved the defendant, Fouad, charged with multiple offences, including aggravated indecent assault and aggravated sexual touching without consent, involving a child between the ages of 10 and 16 years. The matter was heard in the Supreme Court of Victoria. The crux of the dispute was the severity of the charges and the appropriate sentence to be imposed on the defendant, considering the aggravating factor of authority.

The legal issues before the court were the interpretation and application of the statutory provisions related to aggravated indecent assault and the sentencing principles applicable to such offences. The court needed to determine the weight to be given to the aggravating factor of authority in the sentencing process. Additionally, the court was tasked with balancing the principles of deterrence, denunciation, and rehabilitation in imposing an appropriate sentence.

In delivering the judgment, the court carefully considered the nature and circumstances of the offences, the impact on the victim, and the principles of sentencing. The court found that while the offences were serious, the defendant's lack of a criminal record and his cooperation with authorities warranted consideration of a non-custodial sentence. The court emphasised the importance of rehabilitation and deterrence, ultimately imposing a non-custodial sentence. The specific details of the sentence, including community service and supervision orders, were outlined in the judgment from [117] to [120].

Orders

Orders of the court

Non-custodial sentence imposed. For orders see [117]-[120].

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Fouad [2023] NSWDC 385
Hearing dates:	25 August 2023
Date of orders:	22 September 2023
Decision date:	22 September 2023
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Non-custodial sentence imposed. For orders see [117]-[120].
Catchwords:	CRIME – multiple offences – aggravated indecent assault – aggravated sexual touching without consent – intentionally sexually touch child between 10 and 16 years – aggravating factor under authority.
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Brzozowski v R [2023] NSWCCA 129 Can v R [2023] NSWCCA 179 Geraghty v R [2023] NSWCCA 47 Kearsley v R [2017] NSWCCA 28 R v Arvind (unreported) NSWCCA, 8 March 1996 R v Ibrahim [2021] NSWCCA 296
Category:	Sentence
Parties:	Director of Public Prosecution (Crown) Bassem Magdy Fouad (Offender)
Representation:	Counsel: Mr J Clarke (Offender) Solicitors: Mr D Noll (Trial Advocate for the Crown) Ms S Angelovski (Instructing Solicitor for Offender) Mr T Sawyers (Instructing Solicitor for Crown)
File Number(s):	2022/286527 & 2021/169313
Publication restriction:	Section 578A of the Crimes Act 1900 and s15A of the Children (Criminal Proceedings) Act 1987 apply so as to prohibit the publication of any material which may identify or is likely to lead to the identification of the complainants in the proceedings.