Wambie Whoppers owner Eric Phu Soksan appeals jail sentence for sexual touching

Lawyers have argued a “cultural misunderstanding” led the owner of a popular Central Coast burger shop to sexually touch a young boy in an appeal of his prison sentence.

The owner of popular Wamberal takeaway Wambie Whoppers, Eric Phu Soksan, has appealed his 10-month jail sentence after pleading guilty to two counts of intentionally sexually touching a boy.

His defence argued it was a “cultural misunderstanding” from his childhood in Cambodia where it was common for adults to touch children’s genitalia as a sign of filial affection, which lowered his moral culpability.

The Crown argued the 46-year-old’s offending was not a “misguided filial affection” but motivated by sexual gratification and no other penalty than jail was appropriate.

In the end Judge Tanya Bright said she could not make a finding either way of what motivated Soksan but the law was there to protect children from the “devastating” effects of molestation regardless of what prompted the offending.

“It matters little to the child victim, or the community, what the motivation was for the offending,” she said.

Eric Phu Soksan with his Wambie Whopper burger at Wamberal. The court heard he did not read English language newspapers. Picture: Peter Clark

Judge Bright said while she accepted the practice was a cultural norm in Cambodia in the late 1970s and that Soksan himself had been touched by his parents, she could not be satisfied it wasn’t also sexually motivated.

She said Soksan had spent his entire adult life in Australia and had run a busy takeaway for the past 16 years so it would have been “highly improbable” that he was not aware his offending was illegal.

Judge Bright also found it “particularly reprehensible” Soksan apologised to his victim during a recorded telephone conversation, lawfully orchestrated by police, in which he told the boy “not to tell anyone”.

Eric Phu Soksan, 46, of Terrigal, (left) arriving at Gosford Court with his oldest brother Khuon Phu (right) who gave evidence at his appeal. Picture: Richard Noone

The court heard Soksan’s Wambie Whoppers would have to close if he was sentenced to full-time custody however Judge Bright said there was “no evidence” of that and it would be an “expected and usual consequence of incarceration”.

Judge Bright commended Soksan’s victim for his “bravery and courage” in coming forward and telling his parents who contacted police.

She said his victim impact statement showed Soksan’s offending had “a significant impact on him” and left the child diagnosed with a major depressive disorder and post traumatic stress.

“It still makes me feel sick every day to think about the whole situation,” Judge Bright said quoting from the victim impact statement.

She said from the agreed facts the two counts of sexual touching were “not isolated” and it disentitled Soksan to any leniency if these offences were one-off occasions.

“These facts clearly disclose very serious objective criminality,” Judge Bright said.

She dismissed his appeal and confirmed his convictions and his sentence, of 10 months jail with a non-parole period of five months, imposed by the Local Court on June 16.

Soksan was led into custody and will first be eligible for release on February 1 next year.

PREVIOUSLY FROM AUGUST 27

The owner of Wambie Whoppers, Eric Phu Soksan, has appealed the severity of his sentence after being convicted and jailed for two counts of sexually touching a child aged between 10 and 16.

Soksan’s brother Khuon Phu gave evidence at his appeal in Gosford District Court on Friday where he said growing up in Cambodia it was common practice for parents and other adults to touch the genitalia of children.

Soksan’s 56-year-old brother, Mr Phu, said it was normal for children to play hide and seek and grab each other’s genitalia and for parents to touch children’s genitalia.

“This is acceptable in our culture,” he said.

“It’s just like, a normal.”

The brother of Wambie Whoppers owner Eric Soksan (pictured) brother said it was normal in Cambodia for parents to touch the genitalia of their children out of affection not sexual gratification. Picture: Peter Clark

Soksan was convicted in Gosford Local Court in June after pleading guilty to two counts of intentional sexual touching.

His defence argued in his culture it was a sign of affection and culturally normal in Soksan’s native Cambodia but was not done in a sexualised manner or for gratification.

The court heard Soksan’s inappropriate behaviour with a 15-year-old boy lasted throughout 2018 to early 2020 and included him asking the victim to call him “dad” and offering him expensive gifts.

On two occasions, Soksan touched the victim’s genitalia, including once outside his clothing and the other time in between the victim’s underpants and trousers. He said “don’t worry, I wont look”.

Eric Phu Soksan, 46, of Terrigal, arriving at a previous court appearance with his brother Khuon Phu. Picture: Richard Noone

The 46-year-old from Terrigal was sentenced to 10 months jail with a non-parole period of five months but was released on bail pending the outcome of his appeal.

His solicitor Michal Mantaj told the court Soksan treated the victim like a son and asked him to call him dad because he didn’t have any sons of his own.

The Crown prosecutor, however, said full time custody was the only appropriate sentence given an intensive corrections order (ICO) was not available for this type of offending.

He said Soksan’s previous good character should not be taken into account for this offending and that the judge should reject Soksan’s defence argument of a “misguided affiliate affection” because it could not be proved, on balance, that Soksan didn’t do it for some kind of sexual gratification.

Judge Tanya Bright will deliver her remarks on sentence next Thursday.