Citation: R v Soufi [2022] NSWDC 615
Court: District Court of New South Wales
Date: 7 December 2022
Judge: Noman SC DCJ
Background
The offender, a 20-year-old man, pleaded guilty in the Local Court to two counts of sexual touching contrary to s 61KC(a) of the Crimes Act 1900 (NSW). Both offences were committed on the same evening in April 2021 at a serviced apartment during a birthday party. The victim was a 17-year-old woman with whom the offender had previously shared a brief consensual sexual relationship, though no committed relationship existed.
During the evening the victim became intoxicated. After she had been assisted to a bedroom and fell asleep, the offender entered the room and touched her while she was asleep and without seeking her consent (Count 1). Shortly after, when others briefly entered the room and then left, he persisted with further sexual touching while the victim was awake, repeatedly crying, and explicitly refusing consent (Count 2). Both counts involved direct skin-to-skin contact of the offender's penis with or near the victim's genitalia.
The matter came before the District Court for sentencing following negotiated guilty pleas. The central question was the appropriate sentence, including whether an intensive correction order (ICO) was suitable as an alternative to full-time custody.
Legal Issues
- The objective seriousness of each offence under s 61KC(a) of the Crimes Act 1900 (NSW), which carries a maximum penalty of five years imprisonment
- Whether the offender's belief that the victim was 18 (rather than 17) affected the seriousness of the offending
- The weight to be given to the offender's character, age, immaturity, and expressed remorse
- Whether a sentence of imprisonment was the only appropriate penalty and, if so, whether it should be served by way of an intensive correction order rather than full-time custody
- How individual sentences for the two offences should be structured, including the degree of accumulation required
Decision
His Honour found both offences to be relatively serious examples of the provision. Both involved high-level sexual touching, both occurred in circumstances where the offender actually knew consent was absent, and both involved the offender taking advantage of the victim's intoxication. The first offence was aggravated further by the victim being asleep and the offender having removed her clothing. The second offence persisted despite clear, repeated refusals and the victim's distress, with the offender attempting to silence her.
The offender's mistaken belief that the victim was 18 rather than 17 was accepted but found to have no bearing on the seriousness of the offending. The court accepted that the timing of the guilty pleas warranted a 25% reduction to the otherwise appropriate sentence.
On remorse and insight, the court found the offender's out-of-court messages, his account to police (which contained untrue statements), and his evidence did not reflect genuine or fulsome acceptance of responsibility. Although a psychologist assessed his remorse as genuine, the court characterised his expressed sorrow as reflecting only developing understanding, likely constrained by his age and immaturity. His prior good character, positive community standing, and numerous character references did operate to permit some leniency.
The court was satisfied that no sentence other than imprisonment was appropriate but was also satisfied that an alternative to full-time custody was warranted. An aggregate sentence of two years and six months was imposed, to be served by way of an intensive correction order.
Orders Made
- The offender convicted on each of the two counts of sexual touching
- Indicative sentences: two years imprisonment for each count (Sequences 3 and 4)
- Aggregate sentence of two years and six months imprisonment, imposed as an intensive correction order
- Reporting condition: report to the City Community Corrections office within seven days
- Standard ICO conditions imposed, including:
- No commission of any offence
- Supervision by a community corrections officer
- 400 hours of community service work
- Psychological treatment at least monthly with a nominated or approved psychologist
- Abstention from alcohol and drugs, with testing as directed by Community Corrections
- Warning given that non-compliance may result in more stringent conditions, formal warning, or revocation of the ICO, with possible return to full-time custody
Key Takeaways
- The District Court confirmed that an offender's mistaken belief about a victim's age does not, of itself, reduce the objective seriousness of a sexual touching offence where the victim was in fact 17.
- Where an offender has no prior criminal history, demonstrates good character supported by extensive evidence, and pleads guilty at an early stage, those matters can justify leniency in the form of a non-custodial serving arrangement, even for serious sexual offences.
- A 25% discount to the otherwise appropriate sentence applied because of the timing of the guilty pleas negotiated in the Local Court.
- Persistent offending in the face of clear and repeated refusals of consent, combined with attempts to silence the victim, were treated as distinct aggravating features supporting a finding that the offences were relatively serious examples of the relevant provision.
- Under the ICO framework, revocation for non-compliance may result in the offender being required to serve all or part of the sentence in full-time custody.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 61KC(a) (sexual touching; maximum penalty five years imprisonment)
Cases cited: None recorded in the judgment metadata or text.