Pickering, R v

A victim’s consent, or possible consent, to sexual activity on an earlier occasion does not reduce the seriousness of a later sexual assault. Repeated threats to disclose sexual imagery, used to compel sexual activity, humiliate a victim and demand money, are grave aggravating features which may require immediate imprisonment.

A neurodevelopmental condition may explain an initial misunderstanding of social cues, but affords limited mitigation where the offender knew that the victim was reluctant and continued for sexual or financial gain. Its effect in making custody harder to bear remains relevant to sentence.

The offender pleaded guilty in the Crown Court at Leeds to two sexual assaults and blackmail. He had used threats to disclose sexual material and images of the victim to obtain further sexual activity, images and ultimately money. On 15 February 2019, a recorder imposed a total sentence of 18 months’ imprisonment suspended for two years.

On a reference by the Attorney General under section 36 of the Criminal Justice Act 1988, the Court of Appeal considered whether that sentence was unduly lenient, particularly given the coercive and sustained nature of the offending.

1. The court granted leave to refer, held that the sentence was unduly lenient, quashed it and substituted concurrent sentences producing a total of three years’ immediate imprisonment.

2. The recorder had correctly treated the first sexual encounter as consensual for sentencing purposes. However, that fact did not change the seriousness of what followed. Consent on one occasion does not lessen the gravity of a subsequent sexual assault.

3. The later sexual assaults had been procured by repeated threats. Over months, the offender used false social-media accounts, demanded humiliating naked images and disclosed an image to the victim’s girlfriend. The threats caused fear and distress and were persistent. The later demand for money materially increased the overall seriousness because it was made against that coercive background. Even had the offending ended after the second assault, immediate custody would undoubtedly have been necessary.

4. The court noted that section 33 of the Criminal Justice and Courts Act 2015 separately criminalises distressing, non-consensual disclosure of private sexual imagery, with a maximum sentence of two years even without blackmail. That comparison reinforced the seriousness of this offending.

5. Asperger’s Syndrome could partly explain the beginning of the contact, but provided limited mitigation once the offender knew that the victim was reluctant and nevertheless acted for sexual and financial motives. The court also recognised that imprisonment would be especially difficult for this offender. Having balanced mitigation, guilty-plea credit and his compliance with the suspended sentence order, it assessed the least proper total sentence after plea at three years. The sexual harm prevention order remained in force.

• Court of Appeal (Criminal Division): granted the Attorney General’s reference under section 36 of the Criminal Justice Act 1988, found the sentence unduly lenient, quashed it and imposed a total of three years’ imprisonment.
• Crown Court at Leeds: on 15 February 2019, imposed a total of 18 months’ imprisonment suspended for two years for two sexual assaults and blackmail.