Mitchell, R v

An abuse of trust in sentencing for a sexual offence is not confined to a conventional caring, teaching or parental relationship. It may arise where the offender has a close and trusted connection with a vulnerable victim and her family.

The victim’s vulnerability, a sustained course of grooming with a sexual purpose, and the abuse of the trust placed in the offender may substantially aggravate the offence. A brief penetration which ceases on protest, and the absence of previous sexual convictions, do not make a guideline-range sentence manifestly excessive where those aggravating features are present.

The appellant was convicted at Leeds Crown Court on 6 February 2009 of causing a person with a mental disorder to engage in sexual activity by deception and assault by penetration. He received concurrent sentences of 12 months’ imprisonment and eight years’ imprisonment respectively.

The victim had learning difficulties and had known the appellant, a close friend of her stepfather, since childhood. The prosecution case, accepted by the jury, was that he groomed her through messages and requests for intimate photographs before penetrating her with his finger while she stayed at his home.

With leave extended by the single judge, the appellant appealed against the eight-year sentence as manifestly excessive. The central issue was whether the circumstances justified treating the offending as an abuse of trust and placing the sentence within the relevant guideline bracket.

1. Appeal dismissed. The sentence of eight years’ imprisonment for assault by penetration was not manifestly excessive and fell within the appropriate bracket and level of the Sentencing Guidelines Council guidelines.

2. The sentencing judge was entitled to treat the victim’s vulnerability as an aggravating feature. Her learning difficulties and the appellant’s long-standing connection with her family materially increased the seriousness of the offending.

3. The judge was also entitled to find an abuse of trust. This was not a conventional case involving a carer, teacher or parent. However, the appellant was close to the family, received the victim into his home, and was someone whom she could properly regard as trustworthy in a family-like way.

4. The appellant’s prolonged grooming was a further serious aggravating feature. His messages and inducements for the victim to send intimate photographs had a clear sexual purpose and exploited her mental vulnerability.

5. The court took account of the mitigating features: penetration was by a single finger, was brief, and ceased when the victim protested; the appellant had no previous sexual convictions; and imprisonment would affect his family. Those matters did not outweigh the gross abuse of the victim’s trust or render the sentence excessive.

• Court of Appeal (Criminal Division): dismissed the appellant’s sentence appeal and upheld the eight-year sentence for assault by penetration.
• Crown Court at Leeds: on 6 February 2009 convicted the appellant of causing a person with a mental disorder to engage in sexual activity by deception and assault by penetration. It imposed concurrent sentences of 12 months and eight years’ imprisonment.