AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 22 September 2023

R v Fouad

[2023] NSWDC 385

Sexual offences
CRIME MULTIPLE OFFENCES AGGRAVATED INDECENT ASSAULT AGGRAVATING FACTOR UNDER AUTHORITY.

Citation: R v Fouad [2023] NSWDC 385
Court: District Court of New South Wales
Date: 22 September 2023
Judge: Mahony SC DCJ

Background

The offender was a dentist operating two dental practices. Five patients, including two who were minors at the time of some of the offences, attended his surgeries over a period spanning approximately 2015 to 2021. Each victim attended for routine dental procedures including orthodontic work, root canal therapy, and wisdom tooth extraction.

A jury found the offender guilty on eight of nine counts following a trial. The offences involved the offender pressing his penis against patients during dental procedures, and in some instances placing his hand on a patient's breast. The aggravating feature common to several counts was that the offender was a person in authority over the victims as their treating dentist.

The remarks on sentence were delivered on 22 September 2023, following a sentence hearing on 25 August 2023.

  • The appropriate sentences for eight convictions involving aggravated indecent assault, aggravated sexual touching without consent (person under authority), and intentional sexual touching of a child aged between 10 and 16 years
  • Whether, in all the circumstances, the court should impose terms of imprisonment or an alternative sentencing order under the Crimes (Sentencing Procedure) Act 1999
  • The weight to be given to the aggravating circumstance that the offending occurred under the authority held by the offender as a dentist

Decision

The District Court sentenced the offender on each of the eight counts. The offences were brought under three separate provisions of the Crimes Act 1900: s 61M(1) (aggravated indecent assault, maximum 7 years with a 5-year standard non-parole period), s 61KD(1)(a) (aggravated sexual touching without consent by a person under authority, same maximum), and s 66KB(a) (intentional sexual touching of a child aged 10 to 16 years, maximum 10 years, no standard non-parole period).

The factual circumstances for each count were drawn from the jury verdicts. The offending ranged from pressing an erect penis against patients' arms, thighs, and heads during dental procedures, to placing a hand on patients' breasts, with victims describing sensations of shock, paralysis, humiliation, and pain occurring simultaneously with their dental treatment. One victim was 14 years old when she first attended; another was 15 at the time of the relevant offence on Count 8.

Rather than imposing custodial sentences, the court made Community Correction Orders (CCOs) under s 8(1) of the Crimes (Sentencing Procedure) Act 1999. A CCO is a community-based order that substitutes for a sentence of imprisonment. The longest individual order was 3 years (Count 7), with others ranging from 12 months to 2 years and 6 months.

All CCOs were ordered to run from 22 September 2023. Each order carried standard conditions and an additional condition requiring the offender to accept directions from Community Corrections, including referral to a CSNSW Psychologist for risk assessment, management, or treatment for sexual recidivism.

Orders Made

The offender was convicted on eight counts and sentenced as follows, with each order taking effect from 22 September 2023:

  • Count 1 (aggravated indecent assault, victim PS): Community Correction Order, 12 months
  • Count 2 (aggravated indecent assault, victim HS): Community Correction Order, 18 months
  • Count 3 (aggravated indecent assault, victim HS): Community Correction Order, 2 years and 6 months
  • Count 5 (aggravated sexual touching without consent, victim DH): Community Correction Order, 18 months
  • Count 6 (aggravated sexual touching without consent, victim DH): Community Correction Order, 18 months
  • Count 7 (aggravated sexual touching without consent, victim MP): Community Correction Order, 3 years
  • Count 8 (intentional sexual touching of a child, victim TK): Community Correction Order, 18 months
  • Count 9 (aggravated sexual touching without consent, victim TK): Community Correction Order, 18 months

Conditions attached to each CCO:
- Standard conditions (no further offending; attend court if required)
- Additional condition to accept directions from Community Corrections, including referral for psychological risk assessment, management, or treatment for sexual recidivism
- The offender was directed to report to Sutherland Community Corrections Office within 7 days

Key Takeaways

  • The District Court treated the dentist-patient relationship as a central aggravating feature, with the "person under authority" element expressly incorporated into several of the charges under s 61KD(1)(a) of the Crimes Act 1900.
  • Eight separate Community Correction Orders were imposed in lieu of imprisonment under s 8(1) of the Crimes (Sentencing Procedure) Act 1999, with terms ranging from 12 months to 3 years depending on the severity of the individual offence.
  • A condition requiring engagement with psychological risk assessment and treatment for sexual recidivism was attached to all eight orders, reflecting the court's concern about future risk.
  • The jury's guilty verdicts on eight counts necessarily rejected the offender's denial that any of the sexual touching was intentional, a finding the court treated as foundational to the sentencing exercise.
  • Count 4 and its statutory alternative resulted in acquittals, illustrating that the jury applied careful distinction between the individual charges despite the overlapping factual context.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(1), 61KD(1)(a), 66KB(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 8(1)

Cases
- 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