R v Tomasz Baginski

Abuse of trust aggravates a sexual offence only where the relationship gives the offender a significant level of responsibility towards the victim on which the victim is entitled to rely. A family friendship, without such responsibility, does not meet that threshold. On an appeal concerning suspension of sentence, the sentencing judge has considerable latitude because the decision involves a balancing exercise. The appellate court should intervene only where something has gone wrong. If an erroneous aggravating factor makes the sentence manifestly excessive, the court may resentence within the correct guideline category, taking account of totality, actual aggravating features and mitigation.

The appellant was convicted in the Crown Court at Isleworth of two counts of sexual activity with a child, contrary to section 9(1) of the Sexual Offences Act 2003. He received eight months’ imprisonment on count 1, concurrent with 22 months on count 2.

The sentencing judge treated the offences as category 3A and found category A harm because of abuse of trust. The appellant challenged the use of that aggravating factor, the refusal to suspend the sentence, and the length of the sentence on count 2. The central issues were whether the relationship involved an abuse of trust and whether the sentence was properly imposed and reviewed.

The appeal was allowed in part. The challenge to suspension was dismissed, but the sentence on count 2 was quashed and replaced by 12 months’ imprisonment.

1. Abuse of trust. The sentencing guideline requires a relationship giving rise to a significant level of responsibility towards the victim on which the victim would be entitled to rely. The examples of teacher and pupil, and carer and dependent, illustrated the required relationship. The appellant was a family friend and had no responsibility towards the complainant. The judge therefore erred by treating abuse of trust as an aggravating factor.
2. Reassessment of sentence. Both offences remained category 3A offences, with a starting point of 26 weeks and a range from a high-level community order to three years’ custody. The principal aggravating features were the location in the complainant’s home, limited attempts to prevent reporting, and offending while drinking. These had to be balanced against the mitigation, including the appellant’s good character. Count 2 was more serious and could properly attract a sentence above the middle of the range, but it remained a category 3A offence with limited aggravation and some mitigation. The total appropriate custodial sentence was no more than 12 months.
3. Suspension. Whether to suspend involved a balancing exercise in which the sentencing judge had considerable latitude. The appellate court would intervene only if something had gone wrong. Although the judge had not expressly identified every factor favouring suspension, she had carried out the necessary balancing exercise and was entitled to conclude that the offending required immediate custody. The absence of recognition of the offending and the impact of a contested trial on the victim were relevant. The decision remained within the range of answers open to her.

• Court of Appeal (Criminal Division): On 22 September 2023, the appeal was allowed solely as to the length of sentence on count 2. The sentence was quashed and 12 months’ imprisonment substituted.
• Crown Court at Isleworth: The appellant was convicted on two counts of sexual activity with a child and sentenced to eight months on count 1, concurrent with 22 months on count 2.