R v SOUFI

[2022] NSWDC 615

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v SOUFI [2022] NSWDC 615
Hearing dates:	18 November 2022
Date of orders:	7 December 2022
Decision date:	07 December 2022
Jurisdiction:	Criminal
Before:	NOMAN SC DCJ
Decision:	Aggregate sentence imposed. Indicative sentences nominated: Sequence 3, sexual touching: 2 years imprisonment; Sequence 4, sexual touching: 2 years imprisonment. Imprisonment for 2 years and 6 months to be served by way of an Intensive Correction Order, with conditions.
Catchwords:	SENTENCING — Penalties — Intensive correction order – sexual touching
Legislation Cited:	Crimes Act 1900 (NSW)
Category:	Sentence
Parties:	R; Hesan Soufi
Representation:	Counsel: Defence: Mr Strickland SC Solicitors: Crown: Ms Mansour Defence: Ms Bannister
File Number(s):	2021/206259
Publication restriction:	Statutory non-publication order over the victim’s name or anything which could identify her.

JUDGMENT

1. There is a statutory non-publication order over the victim’s name or anything which could identify her. I propose not to use her name in the reasons to maintain her confidentiality as the proceedings are not in closed court.

2. This is a sentence after pleas of guilty to two counts of sexual touching were negotiated in the Local Court. Both offences are contrary to s.61KC[a] Crimes Act for which the maximum penalty is 5 years imprisonment. The maximum penalty operates as a legislative guidepost and represents the legislature’s assessment of the seriousness of the offence. The timing of the pleas requires a reduction of 25% to the otherwise appropriate sentence.

3. I am required to assess the seriousness of each offence. This requires a consideration of the individual characteristics of each offence. The offending occurred on the one evening, in the same location and within minutes of each other. Both offences are of a similar nature and occurred upon the sole victim. Each occurred in the context of other offending.

4. The offender was aged 20 and the victim was aged 17. The offender advanced to a psychologist he believed the victim to be 18. He gave evidence and was not challenged on this belief. I accept he held this belief. However, whether she was 17 or 18 does not impact an assessment of the seriousness of the offence. They met socially in January 2021. They commenced a consensual sexual relationship although there was no committed relationship. The offender invited the victim to his belated birthday party to be held on 4 April 2021 in a serviced apartment. The victim and her friend arrived at 9.53pm and commenced to consume alcohol. Soon after the offender and the victim were alone on the balcony and they engaged in consensual sexual activity. The offender asked the victim to accompany him to the bedroom which she declined. She said she had just arrived and she did not want to leave her friend alone. She repeatedly refused. She continued to drink and became intoxicated. At 11.10pm other girls arrived. About 30 minutes later the offender was observed kissing one of these girls. They walked together to the bedroom before the girl left after about 10 to 20 minutes. When the offender approached the group, the victim abused him and told him to ‘stick to one girl’. The victim was observed to be falling asleep on the couch and she was assisted to the bedroom where she was observed to be asleep. Sometime later the girl who accompanied him to the bedroom earlier told the offender to check on the victim. He entered the bedroom about 20 minutes after the victim had entered the room and he closed the door. He lay down beside her on the bed. She was on her back and he commenced to hug her from the side and touch her breasts, bottom and began to kiss her face. The victim by words and gestures clearly told him no and to go away. This touching was initiated without inquiry. The victim told him there was ‘no chance’ of sexual intercourse occurring after his conduct with the other girl.

5. Count 1 is an incident observed by others. The victim was observed to be face down with her dress pulled up and her bottom to be bare. The offender was on top of the victim, kneeling on the bed and he was not wearing any clothing. His penis was erect and was observed between her legs. It was agreed during the hearing that the placement of his penis was in the upper thigh area close to the genitals. The victim was asleep and did not respond when her name was called. After further inquiry she mumbled. Those who entered the room left and the timing of an Uber indicated they were picked up at 1.47am.

6. Count 2 occurred soon after. The offender remained in the bedroom. The victim was awake, now on her back and realised the offender started to kiss her face and to apologise. She reiterated she would not participate in sexual intercourse and told him to go away. He lay down beside her with his leg over her. The victim was on her back and sought unsuccessfully to push him away. The offender must have redressed as the victim heard him unzip his pants and she again said they would not be having sex. The offender repeatedly said it was fine. She commenced crying and told him “please don’t do it”. He again said it was fine and told her to shush. He got on top of her and placed his penis on her genitalia. He then started a thrusting motion as the victim continued to cry and to beg him to stop. He continued to state it was fine and for her to shush. After some time he moaned. It is likely he ejaculated at this time although the facts are silent. I make no finding other than at the time of moaning the victim could extricate herself. She left the room crying and told her friend “I didn’t give him consent”. After a delay the offender came out and said “I’m sorry. I didn’t expect that to happen. I’m not that type of person”. The end of the incident is informed by the victim and her friend being collected by an Uber at 2.05am.

7. Both offences were of limited but imprecise duration. Each is likely to have entailed minutes. Both offences involved direct skin to skin contact of the offender’s penis to an area near the victim’s genitals for count 1 or on the victim’s genitals for count 2. This is high level touching. Both counts involved the offender taking advantage of the victim being intoxicated.

8. Additionally, the first offence occurred whilst the victim was increasingly more vulnerable due to being asleep. The offender must have removed her clothing in addition to his own.

9. The second offence occurred after the offender was interrupted by the others entering the room. Once they departed he persisted in his offending. He persisted even though the victim told him more than once she was not consenting. He sought to placate or silence her and he continued. It was maintained after resistance and a clear indication of absence of consent.

10. The offending was opportunistic. The offender had an expectation that there would be consensual sexual activity. He was advised prior to the offending that this would not occur. He took advantage of the opportunity to offend when he discovered the victim asleep. The offending reflects spontaneity. Both offences occurred in circumstances where the offender actually knew of the lack of consent.

11. Both offences are relatively serious examples of the offence provision.

12. After the event there was communication involving messages. The offender expressed an apology and indicated his conduct was disrespectful. Thereafter the terms of the messages indicate the offender advancing an absence of reflection of the incident- he referred to whatever happened and he didn’t know there had been non-consensual activity. I do not accept the messages convey an acceptance of responsibility for the offending conduct and nor was there any expression of remorse. Although he had also consumed alcohol I do not accept his responses are due to an absence of recall. This is confirmed by his account to police. His account included a number of untrue statements including about the circumstances of how he knew the victim and the extent of their previous interaction. He told them on the night they had only kissed. This was 3 months after the party and he was still not admitting his conduct.

13. I accept that by his pleas and his signing of agreed facts he has accepted the account advanced therein. The offender both wrote to the court and gave sworn evidence. His out of court accounts and his evidence do not reflect fulsome remorse or insight into his offending and its harm. I accept the psychologist considered his remorse and insight to be genuine. His expressed sorrow for not doing the right thing reflects developing understanding. The limitation is likely associated with his age and immaturity. He acknowledged there would be harm to the victim and her family consequent to his actions.

14. The offender has no criminal history and comes before the court as a person of prior good character. There are numerous documents tendered providing support and attesting to his good character. He presented as a decent person held in high regard. The conduct is regarded by those who know him as inconsistent with the person each knew for differing periods and in different contexts. He has numerous positive attributes. He is a high level soccer player with ambition to become professional. He works for his father. He had and has continued support in the community. His character operates to permit some leniency.

15. I am assisted by a psychological report of Alison Cullen. Background material is addressed therein which is consistent with other tendered documents. His upbringing and childhood demonstrate considerable advantage.

16. Stress, anxiety and depression were noted to be highly elevated. This is not surprising and an expected response from an otherwise prosocial person of good character experiencing legitimate concern about re-entering custody. There is an assessment of a low level risk of reoffending.

17. The offender has obtained psychological treatment. There have only been 6 sessions. It was initiated by him and the consultations are arranged as he determines. There is no ongoing regular treatment or implemented treatment plan. This intermittent engagement amply expresses the level of concern. There is reference to an adjustment disorder that is likely to resolve without intervention.

18. The offender was on remand for 26 days between 19 July 2021 and 13 August 2021. He gave evidence of details of this experience. It was undoubtedly a terrifying and impactful experience. He was on strict bail involving a nightly curfew and reporting three times per week from his release until 23 May 2022. I propose to take these onerous conditions into account. Both the presentence custody and the bail conditions will inform the ultimate outcome.

19. I have had regard to the purposes of sentencing.

20. One of the purposes is to recognise the harm done to the victim of the crime and the community. This type of offending causes alarm within the community and it also has a tangible impact on the victim. The victim provided a victim impact statement. The immediate impact involving distress was observed. She was entitled to go to a party, to drink alcohol and not be exposed to sexual violation. Even more, to not be exploited sexually by a person with whom she had been previously intimate. The deleterious impact and inevitable harm to her should be and is acknowledged.

21. Although real and appreciable harm has undoubtedly been occasioned it does not fall at the level to be an aggravating factor.

22. The offender’s risk of reoffending is assessed in the report. I consider that the court process and his convictions will serve a particularly salutary lesson. Given the conduct was out of character and with an enhanced understanding of the personal ramifications I do not consider that his risk of reoffending is anything other than low. I determine that the offender has good prospects of rehabilitation and of not reoffending. This behaviour is irreconcilable with his normal conduct. Personal deterrence plays a very limited role.

23. Given the offender’s age the role of rehabilitation plays an enhanced role. His immaturity informs his comprehension of the consequences of his actions. This accords with his age and stage of brain development.

24. General deterrence and denunciation are important considerations in sexual offending. Sexual offences against others will not be tolerated within the community. There was publicity about his arrest. It was reported in various publications. This public exposure caused him shame and embarrassment. This is extra-curial punishment warranting some reflection on sentence. However, such reporting provides a valuable public education role and hopefully enhances the role of general deterrence.

25. Submissions were advanced on penalty. The Crown submitted full-time sentences were required. It was accepted on behalf of the offender that the s.5 threshold was met but that an alternative to full time imprisonment was warranted.

26. Having considered all other available options, I am satisfied that no sentence other than imprisonment is appropriate. I have considered which method of serving the sentence is more likely to address the offender’s risk of reoffending without any preconception in favour of incarceration as the only path to rehabilitation, along with all other matters that are required to be taken into account to determine a just and appropriate sentence.

27. The offences were of similar sexual acts occasioned on a sole day within a short period of time. I acknowledge that I am to consider each individual sentence and then reflect on whether the criminality reflected in a sentence is capable of encompassing other criminality. Some accumulation is required.

28. Mr Soufi, you are convicted on each of the two offences.

29. I propose to impose an aggregate sentence. I nominate the following indicative sentences:

1. Sequence 3, sexual touching:    2 years imprisonment;

2. Sequence 4, sexual touching:   2 years imprisonment.

30. There being no other appropriate penalty, you are sentenced to a term of imprisonment for a period of 2 years and 6 months.

31. The sentence imposed on you is to be served by way of an intensive correction order.

32. You must report to the City Community Corrections office as soon as practicable but no later than within 7 days.

33. The conditions of the order are:

1. You must not commit any offence;

2. you must submit to supervision by a community corrections officer;

3. a community service work condition requiring the performance of community service work for 400 hours;

4. a treatment condition requiring you to receive treatment at least one per month from Ann-Maria De Santa Brigida or some other psychologist approved by Community Corrections;

5. an abstention condition requiring abstention from alcohol and drugs with testing to be conducted as directed by Community Corrections;

34. If you fail to comply with the conditions of this order, sanctions may be imposed. Those sanctions may include a formal warning, imposing more stringent conditions or it may include revocation of this order. If the order is revoked you may be required to serve all or some of the period of your sentence in full-time custody.

35. A copy of this order will be forwarded to you.

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Amendments

08 December 2022 - Defence solicitor details added

Decision last updated: 08 December 2022