REGINA v ARDZIS CICIS

In sentencing for sexual assault, the applicable guideline category must reflect the harm and culpability established by the evidence. Persistent physical harassment may amount to a sustained incident within Category 2 harm, even where there was no sexual touching. It does not without more establish severe psychological harm, conduct akin to abduction, or significant planning.

An opportunistic offence should not be placed in Category A culpability merely because the offender followed the victim. Aggravating features may justify a sentence at the top of the applicable range and immediate custody, but a sentence materially above that range is manifestly excessive.

The appellant pleaded guilty at the first opportunity to sexual assault contrary to section 3 of the Sexual Offences Act 2003. In the early hours, he followed a lone and intoxicated woman into an alleyway, made a sexually explicit remark, grabbed and held her, and continued to pursue her after she escaped.

At Liverpool Crown Court, the Recorder treated the offence as between Categories 1A and 2A of the Sexual Offences Guideline. She imposed two years and eight months’ imprisonment after credit for the guilty plea, plus two consecutive months for breach of an earlier community order.

The appellant appealed against sentence. The central issues were the proper guideline categorisation, totality, and whether the resulting sentence was manifestly excessive.

1. The appeal was allowed to the extent of substituting a total sentence of 18 months’ imprisonment. The victim surcharge was also varied from £180 to £170, because it had to be calculated by reference to the earliest offence before the court, including the offence underlying the breached order.

2. The Recorder had overstated harm. The appellant’s manhandling of a lone woman in an alleyway was violent and terrifying. However, it was not sufficiently similar to abduction to add that Category 1 feature. In the absence of evidence, including an impact statement, the court could not assume severe and lasting psychological harm.

3. The absence of sexual touching did not reduce the case below Category 2. The sustained aspect of the appellant’s persistent physical harassment best characterised the harm. The offence therefore fell within Category 2 harm.

4. The offence was opportunistic. Although the appellant followed the victim from the club into the alleyway, any planning was not significant. In the absence of another qualifying feature, culpability was Category B. The appropriate guideline range was therefore a high-level community order to two years’ custody, with a starting point of one year.

5. The court nevertheless identified substantial aggravation: deliberate targeting of a vulnerable victim, the alleyway location, the early hour, intoxication, and the victim’s boyfriend hearing events unfold by telephone. Those features justified a sentence at the top of the Category 2B range. After one-third credit for the guilty plea, that sentence was 16 months’ immediate custody. Suspension was precluded by the seriousness of the offence.

6. The consecutive two-month sentence for breach of the community order was unobjectionable. The original sentence was manifestly excessive because it exceeded the top of the applicable Category 2B range and corresponded to the starting point for Category 1A.

• Court of Appeal (Criminal Division): Allowed the sentence appeal in part and substituted a total sentence of 18 months’ imprisonment: [2022] EWCA Crim 827.

• Liverpool Crown Court: On 6 December 2021, imposed two years and eight months’ imprisonment for sexual assault, plus two consecutive months’ imprisonment for breach of a community order.