Oliver Smail, 31, who has a Master of Architecture qualification from Kingston University is starting a three-and-a-half year sentence for groping the 29 year-old he met on an all-day bar crawl.
Judge Benedict Kelleher told him: “You all ended up at a flat of your friend’s. You had consumed a very large quantity of alcohol and took cocaine as did the victim, who also took ecstasy.
“By the early hours she had fallen asleep on the sofa and there can be no doubt she was asleep when you committed this offence.
“You had shown an interest that afternoon and evening in her and were attracted to her, but you had not behaved inappropriately and had not concerned her.
“You took that opportunity to assault her and when she woke she found you were penetrating her with your finger and had pulled down the underwear that she had been wearing.”
When questioned by police Smail admitted: “Obviously she is a pretty girl and I am a man so I may make a few moves.”
An Inner London Crown Court jury convicted Smail, of St. Catherine’s Court, Aylesbury, Buckinghamshire of sexual assault by penetration at the two-bedroom apartment in Stead Street, Walworth on September 8, 2019.
The judge discounted the sentence by six months because Smail, a former Planning Support Officer with Aylesbury Vale District Council, had to wait over two years for the Crown Prosecution Service to charge him.
He also placed him on the Sex Offenders’ Register for life.
During the trial the woman told the jury from behind a screen: “I remember him trying to touch me and moving to the other side of the sofa,” adding she woke at 6.30am with her underwear and tight spanx shorts around her knees.
She felt his hand between her legs and kicked him off the couch. “I woke up and that’s what was happening. There was a point in the night I was aware of him.
“I was aware of this because of the way he was touching me. I think he was completely out of it. Very intoxicated.”
One university pal of Smail’s even sent a text to a mutual friend saying the architect was: ‘literally attempting rape on the sofa.’
The woman told the trial she began drinking in Dalston’s trendy ‘Jones & Sons’ which offers a two-hour ‘Off The Wagon’ brunch of never-ending Prosecco.
“We were drinking for two-and-a-half hours,” she told the court.
She was celebrating a birthday and she and her two female friend’s joined Smail’s mostly-male group and continued drinking cocktails at the nearby ‘Three Sheets’ bar.
Smail and friends Tom Madden and Alexander Hodgson-Doughty, who was celebrating his birthday, all know each other from the University of Kent.
They moved onto other local pubs and bars, continuing to drink and both the woman and Smail snorted cocaine during the evening and she also took an ‘ecstasy’ pill.
“I have been very honest that I took ‘ecstasy’ and cocaine. I have no recollection of who gave it to me, it was one of the three men.”
The group then took a minicab to Elephant & Castle with the vague idea of going to the Ministry of Sound nightclub, but instead bought a bottle of gin from and off licence and continued drinking at Alex’s flat.
“I am not denying I was drunk,” she added, recalling a short chat she had with Smail that evening. “I got the feeling he was flirting, but from early on I was not interested and made that clear.”
After a few rounds of gin and tonics at the flat Alex disappeared into his bedroom with the complainant’s friend, leaving her to sleep on the living-room couch.
The next morning she burst into the bedroom to complain about Smail to her friend, who asked him: “Did you finger my friend while she was asleep? Did you do that?”
The friend said Smail tried to hide under a pillow and replied: “I thought she consented.”
When cross-examined he insisted he was referring to her consent to leg touching and nothing more intimate.
He quickly put his jacket on and left the apartment as the complainant’s friend continued shouting and demanding the police be called.
Smail, who runs his own design firm, told the jury all he did was rub the woman’s leg when he woke up in the middle of the night to find it in his crotch.
He was also drinking in ‘Jones & Sons’, where he also confessed to taking cocaine. “It is not something I regularly do, it was pushed towards me during brunch.”
Regarding the complainant he said: “I didn’t find her sexually attractive,” but admitted texting a friend during the evening to describe her as “cute.”
“I was really quite drunk,” he admitted, explaining his motivation for squeezing onto the couch was to sleep and not any sexual motive.
“I woke up with something rubbing against my crotch.
“I was in a very deep sleep, very hazy and my reaction was to feel the leg. I kind of rubbed it, squeezed it like a massage just to see if it was a girl or a guy or a reaction of some sort.
“She kind of squeezed my hand and rubbed it and nothing was said by anyone.”
Smail claims he got up to sleep in the spare room, but Alex told him it was being rented via Air B&B so he returned to the couch.
“When I woke up I was being kicked in the head. It was not as hard kick and I took it as a meaning she did not want me on the sofa I had been rubbing her calf earlier on.
“I was so dazed and confused. I did not understand why I was being kicked.”
Smail denied pulling down the woman’s underwear. “I was not aware of what she was wearing under her dress. I never moved any of her clothing.
“I only had one hand that was free at any time.”
He was questioned two weeks later and charged over two years after that. “It was upsetting. I remember my heart racing and having this massive weight on my shoulders and having to trust in this system that I am going through.”
Insisting he would do nothing without the woman’s consent he recalled the moment she kicked him in the head. “I remember thinking: ‘Oh God. I totally misread that situation.’
“I grabbed a pillow and slept on the floor until I was woken up by her friend pulling it away.”
In her victim impact statement the woman said: “I don’t think the assault will be something I can ever comprehend. I often wonder if there was more I could have done.
“I was vulnerable when he decided to assault me. I was asleep and had no way of defending myself.
“Since the assault I suffer panic attacks and drive myself into a state of panic. I have serious issues sleeping and wake up with night terrors.
“He waited until I was asleep and vulnerable before he attacked me. I believe his ego was hurt by me rejecting him earlier that night and took matters into his own hands.”
Smail’s KC Chris Henley told the court: “This is very sad in many respects. This is a man who has been through a great deal.
“He has a great deal of remorse and empathy for what this woman went through and his letter to the court is heartfelt with a real degree of understanding.
“His life is very different now than in September, 2019. He bitterly regrets going out with these people.”
Smail felt sorry for birthday buddy Mr Hodgson-Doughty’s lack of guest numbers and felt obliged to stick with him that night, despite the evening descending into drunkenness and drug-taking, the court heard.
“He still finds it shocking and shaming what he did that night,” added the KC. “His behaviour just wasn’t out of character, it was off the scale.
“He has built up a business, but has found it very difficult to focus on that since the conviction and is on anti-depressants.
“It has been a publicly shaming experience with reports in the national press and Mr Smail has struggled to leave his house, wondering if photographers were waiting for him.
“When he last left court there was a man outside with a camera and he could not believe he was there to take a picture of him.”
Judge Kelleher told the first-time offender: “The offence you committed was brief and there is nothing to say it lasted for more than a moment.
“You were still under the influence of alcohol and drugs at the time. It was not a planned offence, but in an uninhibited and intoxicated state you made that fateful decision to do that.
“You were a man of completely good character with no convictions and many people have spoken very highly of your personal qualities.
“Your letter to the court expresses genuine and serious remorse on your part for what you did, but this is a case where your victim being asleep was particularly vulnerable.”
