R v Mark Vallely

For sentencing purposes, severe psychological harm is a factual assessment of the effect on the victim. It does not require expert evidence or a clinical classification.

An abuse of trust under the relevant sexual-offences guideline requires a relationship giving the offender significant responsibility towards the victim on which the victim may rely. Everyday confidence in a professional engaged in a private setting is insufficient without that requisite responsibility. Circumstances falling short of abuse of trust may nevertheless substantially aggravate the offence. A sentencing categorisation error does not make a sentence manifestly excessive where the sentence remains properly open within the correct guideline range.

The applicant, an amateur photographer, was convicted of sexual assault on C during a private photographic session in her home. He was sentenced to three years’ imprisonment.

At the sentencing hearing, the judge placed the offence in category 1A of the applicable Sentencing Council guideline. He found severe psychological harm and abuse of trust. The applicant sought leave to appeal, contending that both findings were wrong and that the sentence was manifestly excessive. The Registrar referred the application to the full court.

The central issues were whether the evidence established severe psychological harm and whether the photographer-model relationship amounted to an abuse of trust for guideline purposes.

1. Leave to appeal was refused. The court held that the three-year sentence was not manifestly excessive, although the sentencing judge had wrongly categorised the offence as involving an abuse of trust.

2. On psychological harm, the court applied R v Chall [2019] EWCA Crim 865. A sentencing judge makes a factual assessment of whether the victim suffered psychological harm and whether it was severe; expert evidence is not a necessary precondition. The judge had seen and heard C, and was entitled to rely on the victim personal statements and the counsellor’s evidence. The continuing and wide-ranging effects over more than two-and-a-half years entitled the judge to find severe psychological harm. Recent improvement and C’s continued modelling work did not undermine that conclusion.

3. On culpability, the guideline’s abuse-of-trust factor required a careful fact-specific assessment. As R v Forbes [2016] EWCA Crim 1388 and the later authorities made clear, the relationship must give the offender a significant level of responsibility towards the victim on which the victim is entitled to rely. C’s everyday trust that the applicant would behave appropriately as a photographer did not meet that standard. The relationship involved no relevant inequality of power or significant responsibility. The offence therefore fell within category 1B, not category 1A.

4. The circumstances remained seriously aggravating. The applicant exploited C’s vulnerability while she was alone and naked in her home, during a professional engagement in which she was entitled to feel safe. Those features justified a sentence well above the category 1B starting point and towards the top of its range. After mitigation, three years’ imprisonment remained unarguably within the proper range.

• Court of Appeal (Criminal Division): The full court refused the application for leave to appeal against sentence in [2022] EWCA Crim 923.
• Sentencing court: The applicant was convicted of sexual assault and sentenced to three years’ imprisonment. The court and citation were not stated in the judgment.