Al-Sayed, R v

For attempted voyeurism, the aggravating features in the sentencing guideline are not exhaustive. Observing a vulnerable child, continuing attempts after an initial failure, planning by taking equipment to the scene, and a significant intrusion upon privacy may properly place an offence above level 1 and towards the lower end of level 2. An immediate custodial sentence within the guideline range was not manifestly excessive.

A recommendation for deportation should not stand where the conviction and available risk material do not enable the court to conclude that the offender’s continued presence is detrimental to society. The immigration decision itself remains for the Home Office.

The appellant was convicted at Chelmsford Crown Court of attempted voyeurism after using a mirror beneath changing-cubicle doors at a leisure centre. A ten-year-old girl saw his face reflected in the mirror and saw him place it beneath other doors. He denied attempting to observe anyone.

He received nine weeks’ imprisonment, sex-offender notification requirements for seven years, a lifetime disqualification from working with children, and a recommendation for deportation. He appealed against sentence, contending that the offence fell within level 1 of the applicable sexual-offences guideline and that the deportation recommendation was unjustified.

The central issues were whether the custodial sentence was manifestly excessive and whether the court could properly recommend deportation on the available material.

1. The appeal was allowed only in relation to deportation. The recommendation for deportation was quashed. The nine-week custodial sentence and all other ancillary orders remained in force.

2. Voyeurism under Sexual Offences Act 2003, section 67, protects privacy rather than physical integrity. Although the conduct was an attempt and involved an unsophisticated mirror, it was a serious intrusion upon the privacy of a vulnerable ten-year-old child.

3. The sentencing guideline’s stated aggravating examples were not exhaustive. The judge was entitled to treat the child’s vulnerability as an aggravating feature, although the appellant had not specifically targeted children. His continued efforts to observe other cubicles and the planning involved in taking a mirror to the changing area made the case more serious than the basic level 1 offence. The case therefore fell towards the lower end of level 2, and immediate custody was justified.

4. The sentence was within the applicable guideline range. The sentencing judge had allowed for the appellant’s previous good character and had not treated either his defence or the child’s need to give evidence as aggravation. There was consequently no basis to find the sentence manifestly excessive.

5. The court could not conclude, from this conviction and the inconclusive risk assessment, that the appellant’s continued presence in the United Kingdom was detrimental to society. It expressed no view on whether deportation was ultimately appropriate, since that decision was for the Home Office.

• Court of Appeal (Criminal Division): In [2009] EWCA Crim 1922, the court allowed the sentence appeal to the limited extent of quashing the recommendation for deportation. It upheld the custodial sentence and remaining ancillary orders.

• Chelmsford Crown Court: On 24 June 2009, the appellant was convicted of attempted voyeurism. On 28 July 2009, he was sentenced to nine weeks’ imprisonment, notification requirements for seven years, a lifetime disqualification from working with children, and a recommendation for deportation.