Elphicke, R. v

In an appeal against sentence, the appellate court must respect the sentencing judge’s factual findings unless there is an obvious error of approach or perversity. Intervention is justified only if the overall sentence is manifestly excessive. Under the Sentencing Council Guideline for Sexual Offences, touching a naked breast may amount to Category 2 harm even where clothing or underwear partly obstructs contact; the whole context matters. Abuse of trust is fact-sensitive: inequality of power is a hallmark, but employment status alone is insufficient. The court must examine whether trust and power imbalance were used to commit the offence. A guideline’s aggravating-factor list is non-exhaustive. Vulnerability may therefore aggravate sentence even if the victim is not described as particularly vulnerable. Sentencing and suspension are evaluative, not arithmetical.

Following a trial at Southwark Crown Court, the applicant was convicted of three sexual assaults contrary to s 3 of the Sexual Offences Act 2003. The offences involved his children’s nanny in 2007 and his Parliamentary researcher in 2016. The Judge imposed an overall sentence of two years’ immediate imprisonment, with consecutive treatment for the offending involving the separate victims.

The renewed application for leave to appeal against sentence challenged the classification of harm, findings of abuse of trust and vulnerability, the weight given to mitigation and the pre-sentence report, and the refusal to suspend custody. The central issue was whether the sentence was manifestly excessive or disclosed any proper basis for appellate interference.

Application refused. The court held that the grounds disclosed no arguable basis for interfering with the overall sentence of two years’ immediate imprisonment.

1. The relevant appellate question was whether the sentence was manifestly excessive. The court was bound to respect the Judge’s factual conclusions, having heard the evidence, unless there was an obvious error of approach or perversity. The application largely sought to reargue the sentencing exercise.
2. The Judge was entitled to regard the applicant as a sexual predator. The description was emotive, but it did not affect the sentencing exercise. The evidence supported the conclusion that he had repeatedly exploited positions of power and trust to pursue his sexual desires.
3. Category 2 harm under the Sentencing Council Guideline for Sexual Offences includes touching naked breasts. That classification was available even though the victim was clothed and underwear partly obstructed the contact. The whole context, including the restraint, attempted kiss, pursuit and psychological damage, was relevant. The facts were distinguished from R v Ahmed [2015] EWCA Crim 2357.
4. For abuse of trust, inequality of power is a hallmark but is not determinative alone. The court must examine whether the offender used particular trust and the associated power imbalance to commit the offence. The employer/employee relationship did not automatically establish abuse of trust, but there was ample evidence of it here. The principle identified in R v Lo [2018] EWCA Crim 1545 was applied.
5. The Guideline was not to be read as a statute and its list of aggravating factors was not exhaustive. The Judge was entitled to treat B’s vulnerability as aggravating. Previous good character was of limited weight in serious offending, and the Judge could consider the earlier similar conduct when sentencing on the later counts despite the absence of an earlier conviction. Sentencing as a whole was not a purely arithmetical exercise.
6. The Judge was entitled to disagree with the pre-sentence report after independently assessing seriousness and disposal. Suspension involved an evaluative balancing exercise, not a numerical calculation. Immediate custody was properly regarded as necessary because of the gross abuse of power and trust. Permission to appeal was refused.

• Court of Appeal (Criminal Division) — On the renewed application, permission to appeal against sentence was refused: [2021] EWCA Crim 407.
• Southwark Crown Court — Following trial, the applicant was convicted of three offences contrary to s 3 of the Sexual Offences Act 2003 and sentenced to two years’ immediate imprisonment on 15 September 2020.