Regina v Samir Bounekhla

No: 200505970/A4

Court of Appeal Criminal Division

27 April 2006
[2006] EWCA Crim 1217
2006 WL 1635034

Before: Lord Justice Pill Mrs Justice Dobbs DBE Mr Justice Underhill

Thursday, 27th April 2006
Representation

* Mr J Hodivalla appeared on behalf of the Appellant.

Judgment

Mr Justice Underhill:

1 On 20th September 2005 the appellant, who is aged 36, pleaded guilty at the Sheffield Magistrates' Court to four offences of sexual assault contrary to section 3 of the Sexual Offences Act 2003 and was committed to the Crown Court for sentence.

2 The nature of the assault was substantially identical in all four cases. The appellant went to a nightclub and sought out a single woman to dance with. When they were dancing close, he surreptitiously took his penis out of his trousers (he was not wearing underwear) and ejaculated onto her clothing when pressed up against her. In each of the cases it took the victim a little while to realise what had happened and he had left before he was detected. He was arrested when he revisited one of the clubs and was recognised by staff there.

3 When the matter came before the Crown Court in Sheffield, it was appreciated that the first in time of the offences, the subject of count 1, was committed prior to the coming into force of the 2003 Act. It was accordingly treated as an offence of indecent assault which the appellant asked to have taken into consideration.

4 Of the remaining three offences, on counts 3 and 4 His Honour Judge Keen QC sentenced the appellant to imprisonment for public protection pursuant to section 225 of the Criminal Justice Act 2003 with a minimum term of two and a half years. On count 2, which related to an offence committed prior to the coming into force of section 225, he sentenced the appellant to four years' imprisonment. All three terms were to run concurrently.

5 The appellant appeals against sentence with the leave of the single judge.

6 In his sentencing remarks the judge said this:

“Samir Bounekhla, you are 36 years of age and a person without previous convictions. I take that into account. It is inevitable that you receive a custodial sentence, and I reduce that because of your plea of guilty, which was at the very earliest opportunity.

But it is to be noted that when the police first saw you, you made no comment — as was your right — and that you only admitted these offences as a result of forensic evidence. Coupling the forensic evidence of DNA with the complaints by the four women in question, you plea of guilty was inevitable, and you had little choice but to enter it.

You, over a period of 18 months, on four occasions, deliberately set out to go to nightspots in this city, looking for victims with whom you could achieve an unlawful sexual satisfaction. You prepared yourself by not wearing any undergarments and then exposed your penis and pushed it against each of the women, without their consent, until you ejaculated. You displayed not only depravity, but also cunning and a complete lack of insight into what you were doing.

I have heard about all of your victims. They have been extremely distressed, and one them very badly damaged, as a result of your conduct.”

7 Those remarks succinctly summarise the aggravating and mitigating circumstances in the case. (We have been told that in fact it was not the appellant's practice ever to wear underwear, so that was not a special act of preparation; but that, even if accepted, is of marginal significance overall). The offences were not isolated. They were planned and premeditated. As the victim impact statements show, which we, like the judge, have seen, it is clear that these offences caused great distress.

8 It is convenient to start with the sentence of imprisonment for public protection. So far as that is concerned, the judge said:

“It is clear to me that there is a significant risk to members of the public of serious harm being occasioned by you by the commission of further offences of this kind. Therefore, in respect of two of these matters I am going to impose … a sentence of imprisonment for public protection. What I am going to say is this: I would have imposed in respect of those matters a sentence of five years' imprisonment. But I am going to take account — as I must — of the early release date. Therefore, you will first become eligible for consideration of parole after two and a half years.”

9 It is not disputed that the judge was entitled to conclude that this was a case where a sentence under section 225 was necessary. Using the usual terminology, what he was doing in the passage quoted was to take a notional determinate term of five years concurrent for these two offences. The appellant had pleaded guilty at the earliest opportunity, as the judge acknowledged, and he was entitled to a full one third discount accordingly. (We note that in the passage which we quoted earlier the judge referred to the fact that the appellant had little choice but to plead guilty; but if on that account he gave him less than full discount, he was, with respect, wrong to do so.) Thus a notional determinate term of five years represents what would have been a sentence of seven and a half years in the event of conviction following a not guilty plea.

10 Mr Hodivalla, for the appellant, points out that that starting point is substantially in excess of the starting point of five years identified in Millberry [2003] 2 Cr App R(S) 142 for an uncomplicated offence of rape, and even more substantially in excess of the starting point of four years for assault by penetration identified by this court in Attorney General's Reference No 104 of 2004 [2005] 1 Cr App R(S) 117. He submitted that these offences were patently less serious than either rape or assault by penetration.

11 We accept that submission. The appellant's conduct, serious as it was, cannot in our view be equated with assault, or with assault by penetration. In our view, a starting point of seven and a half years cannot be justified.

12 Having regard to all the circumstances of this case, it seems to us that the correct starting point would have been one of four and a half years, which after a full discount for the appellant's plea of guilty would produce a notional determinate sentence of three years and thus a minimum custodial period of 18 months, subject to any days spent in custody.

13 We then turn to count 2, which is the count to which section 225 did not apply. The judge in fact imposed a lower determinate sentence in respect of that count — four years — than the notional determinate sentence in relation to the later counts; no doubt, though he did not spell this out, to take account of the element of repetition which aggravated the later offences. We see nothing wrong with that course in principle, but it seems to us that the more straightforward course for us is to reduce the sentence on count 2 to the same figure as the notional determinate sentence term employed in counts 3 and 4, namely three years.

14 We therefore quash the sentences imposed by the judge and substitute the sentences which we have indicated.

15 We should mention for completeness that the appellant is an Algerian national and that the judge made a recommendation for deportation. That recommendation was not challenged before us.
( WormuIus, Tue 8 Feb 2011, 12:32, 1 reply)

Just to clarify
1. I was winding the OP up
2. the case states the opposite of what you said
3. the Defendant pleaded guilty
4. Fuck off
( WormuIus, Tue 8 Feb 2011, 12:33, closed)

anyway, the point is moot
since this isn't really a sexual offence, just an assault.
As for your example of farting, its a different thing to fart and for people to smell it than it is to extrude liquid from your arse and get it to touch someone else.

A better example would be showering someone with shit without their permission. This again, is clearly an assault.

edit: I've changed my mind after having a think about this. I think Section 3 can be sustained.
( WormuIus, Tue 8 Feb 2011, 12:36, closed)

fair enough, I did freely point out that my source wasn't the most reliable. At least it got the nature of the offence right, which is clearly in an entirely different league to having a crafty slash in a pool. If it's assault, and not a sexual offence, why bring up Section 3 of the Sexual Offences Act at all?

Throwing shit at someone would not be a better example, as throwing anything at another person is clearly assault (and a remarkably unpleasant one, in this instance). Urinating into a shared body of water and having it subsequently come into contact with someone else is substantially different from directing a jet of hot piss square into their face. Hence the farting analogy; both include bodily effluvia being released into the immediate enviroment, and subsequently being transported by the surrounding medium and coming into contact with others. So one's gas, one's liquid - that's only really a matter of temperature, anyhow.

I dare say a few of my turds have ended up in the ocean, in some form or another (not deposited directly, I hasten to add). Possibly, some people have swum in/near their watery remnants. If one believes in homeopathy, I've potentially doused a significant portion of the planet with highly diluted, and therefore extremely potent, poo-water. I honestly don't feel like I've done anything terribly wrong, but numberswise, this probably makes me worse than H...

...ah, no, Godwin ain't getting me.
( Happy Phantom has been to Hastings, Brighton, and Eastbourne too, Tue 8 Feb 2011, 13:21, closed)

My intial thoughts were I can push for Section 3 with this.
Then I had a few doubts because I couldn't tell if the act is objectively sexual or not.
I've slept on it now and whilst the law is not completely clear, I think you could sustain a charge of Sexual Assault here, particularly given the insufficiency of sentencing available if a lesser offence were substituted.

If I were Defending this, my argument would be that the act was not objectively sexual and therefore needed a sexual motive, however, I think a court might well consider this objectively sexual.

A teacher, deliberately urinating on a child is pretty serious offending and I think Section 3 is appropriate.

My early example of 'showering someone with shit' was someone excreting on someone else, not throwing something, although this is totally irrelevant and both would count.

The only difference between urinating directly onto someone and urinating into water so that it touched them is that in one scenario the other person is aware of it, in our example the offending is if anything, more serious.

As for your turds ending up in the ocean, this is a question of intention. If you went to Blackpool and shat in the water next to a child you too would be guilty of the same offence.

Similarly, farting deliberately on someone is an assault, again the question is one of whether at law farting on someone is objectively sexual, I suspect that a court would almost certainly hold that it wasn't, I think we would all agree that farting is a different thing to urinating, is conducted in different places, has a different impact sociologically if used as the basis of an assault etc.

In conclusion, sorry to confuse you, I was flipflopping because the law isn't clear, but I'm now pushing for Section 3.
( WormuIus, Tue 8 Feb 2011, 15:54, closed)

This has shades of Speckled Jim...

Perhaps I've had a sheltered upbringing, but I don't see such a strong link between urination and sexual gratification. Certainly, I hope the OP didn't go home and rub himself raw over the encounter...

It would certainly be an interesting test case, given the amount of people who, when surveyed, admit to pissing in the pool. As we're handing out charges of sexual assault to kids as young as ten, I fear we may need more prisons. Then again, as the supposed victim was entirely ignorant of the attack, there were no witnesses, and there would be no evidence whatsoever to offer in pursuit of a conviction, perhaps our OP, with his community-spirited warming of public waters, would be OK.

Anyway, you'll be needing your hat:


( Happy Phantom has been to Hastings, Brighton, and Eastbourne too, Tue 8 Feb 2011, 17:04, closed)

No! There was nothing sexual about this! I am not a paedo!
I appreciate that people are trying to wind me up, but I am starting to get slightly frightened of being nonce-bashed. Thank you all of you.
(jimmy spankhands, Tue 8 Feb 2011, 17:21, closed)

pissing in the pool is different to deliberately pissing on a child in a pool
the most upsetting thing in this example is as I said before, the abuse of trust.

As for evidence, confessions are pretty good.
( WormuIus, Wed 9 Feb 2011, 13:56, closed)

You seem to be operating under the assumption that he's a teacher, rather than a lifeguard. When I was a lifeguard, I was never given to understand that I was acting in loco parentis; I was merely there to stop the little fuckers from sinking. Admittedly, this did not lead to me pissing on any obnoxious teens - and indeed, if it had, I like to think I'd have done so with a little more panache. Preferably from a diving board.

I digress. If we're drawing distinction between 'pissing on', implying a direct jet, and 'pissing near', with the payloaad carried by the surrounding water - I'm going to go with the former being technically impossible. Presuming he didn't flop out his tackle, the stream would first have had to contend first with a cold-shrivelled weener, possibly bent into a non-optimal weeing configuration, then the material of whatever form of swimming-short he was sporting (which are frequently dual-layered, featuring integrated pants), and lastly, the drag of the surrounding water. Now, I'm no expert on flow dynamics, but I'm guessing that by this point, 'pissing on' has become more or less impossible, the jet having turned into a gently-expanding cloud. I would hazard that 'pissing on' doesn't extend past the inner pant layer. So unless the kid was indulging in Neroesque aquatic dong-nilbbling, which has not thus far been mentioned, the only likely outcome is 'pissing near'.
( Happy Phantom has been to Hastings, Brighton, and Eastbourne too, Wed 9 Feb 2011, 18:50, closed)

Yes, basically I wet myself in a lake
and I wanted to be controversial and shocking.

I must say I'm amazed at the amount of time and thought put into some of these replies - clearly B3tans don't do much work. Or, I'm going to receive a large legal bill for all the advice on here.
(jimmy spankhands, Wed 9 Feb 2011, 21:18, closed)

Either way, he's guilty of the attempt.

( WormuIus, Wed 9 Feb 2011, 23:19, closed)

also, to clarify, gratification has nothing to do with it.
If I rubbed my cock on you it could be for a whole range of reasons, some potentially non-sexual (it was itching and I wanted to scratch it on your beard, for example), however, because of the nature of the assault itself it is automatically sexual as the standard is objective rather than my subjective intention.

The issue here is whether a court would hold that a man urinating on someone is inherently sexual and the sort of action designed to be prevented by the Sexual Offences Act.
( WormuIus, Wed 9 Feb 2011, 13:59, closed)

Also, I'm opposed to the re-introduction of the death penalty.

( WormuIus, Wed 9 Feb 2011, 14:00, closed)