Sepulvida-Gomez v R.

Inadmissible opinion evidence about whether a complainant consented does not make a conviction unsafe where acceptance of the witnesses’ admissible factual evidence necessarily defeats the defence case, so that the opinions add nothing material.

Sentencing-guideline harm factors must be construed from their final wording, not consultation materials. A guest who enters a bedroom without permission has not thereby made a forced or uninvited entry into the victim’s home if he was invited into the flat. A sleeping person, affected by alcohol, may nevertheless be particularly vulnerable because defenceless.

A sexual-harm-prevention condition must be necessary and workable. A broad, indefinite employment restriction unsupported by criminal conduct or a sufficient protective need should not be imposed.

The appellant was unanimously convicted at the Crown Court at Blackfriars of assault by penetration and two sexual assaults contrary to sections 2 and 3 of the Sexual Offences Act 2003. The offences occurred after he entered the bedroom in which the complainant, the girlfriend of his host, was asleep following a party.

He appealed against conviction on grounds including inadmissible opinion evidence on consent, alleged bad-character evidence, the absence of a modified good-character direction, representation, and cross-admissibility. He also appealed against an eight-year sentence and a condition in a Sexual Harm Prevention Order.

The central sentencing issues were whether the guideline factors of forced or uninvited entry into the victim’s home and particular vulnerability due to personal circumstances placed the principal offence in category 2B.

1. The appeal against conviction was dismissed. The opinions of two prosecution witnesses as to whether the complainant would have consented were inadmissible because they were speculative. The court nevertheless held the conviction safe. If the jury accepted those witnesses’ admissible factual evidence, it necessarily rejected the defence case that the complaint and contemporaneous reports were fabricated at the boyfriend’s instigation. The inadmissible opinions then added nothing material.

2. The evidence of sexual innuendoes and reported consensual sexual encounters was properly before the jury. Even assuming that it amounted to reprehensible behaviour under the Criminal Justice Act 2003, all parties agreed to its admission and the defence relied on it to advance its case that the appellant pursued consensual encounters but respected boundaries. The directions were sufficient. The judge also acted within her discretion in declining a modified good-character direction, and the proper cross-admissibility direction did not render the convictions unsafe.

3. The appeal against sentence was allowed in part. Applying Attorney General’s Reference No. 51 of 2015 (Whitmore) [2015] EWCA Crim 1699, guideline factors had to be interpreted by their final wording. Entry into the complainant’s boyfriend’s bedroom without permission was not forced or uninvited entry into the complainant’s home, because the appellant had been invited into the flat. However, the complainant was particularly vulnerable due to personal circumstances: after drinking alcohol she was asleep and defenceless in bed.

4. The principal offence remained category 2B, but at its lower end because only one category-2 harm factor applied. Applying totality, the eight-year sentence was substituted with five years’ imprisonment. The concurrent 18-month sentences on the sexual-assault counts remained.

5. Under section 103A of the Sexual Offences Act 2003 and the guidance in R v Smith [2011] EWCA Crim 1772, a Sexual Harm Prevention Order must be necessary and workable. The indefinite condition restricting employment or occupations involving being alone with a female, subject to notice to offender managers, was onerous, insufficiently justified and likely unworkable. It was quashed; the no-contact condition was retained.

• Court of Appeal (Criminal Division): conviction appeal dismissed; sentence appeal allowed in part. The sentence for assault by penetration was reduced from eight years to five years, and an employment-related SHPO condition was quashed.
• Crown Court at Blackfriars: the appellant was unanimously convicted on 22 June 2018 and sentenced on 1 August 2018 to eight years’ imprisonment overall, with a Sexual Harm Prevention Order.