R v Kyle Franklyn Buckley

A sentencing court must set the starting point for the whole sexual offending covered by a count before applying aggravating features. A continuum of non-consensual acts may justify a substantial uplift from the notional guideline starting point towards the top of the category range. Brazen conduct in a public place, humiliation, victim impact, intoxication, offending against a worker during work and a serious criminal record may cumulatively aggravate sentence. The totality principle may still require a substantial consecutive term where the sexual offending is serious, separate, disparate and committed against another victim.

The appellant pleaded guilty at Sheffield Crown Court to one count of sexual assault under section 3 of the Sexual Offences Act, covering the entirety of his non-consensual sexual acts against a shop manager. No evidence was offered on the remaining counts, and not guilty verdicts were entered. He received two years’ imprisonment consecutive to an existing sentence, together with a 15-year restraining order. He appealed, arguing that the starting point was too high and that insufficient weight had been given to totality. The central issue was whether the sentence was manifestly excessive.

Appeal dismissed.

1. The offending was Category 2B sexual assault, for which the guideline starting point was one year’s custody and the range extended to two years. The correct preliminary question was the appropriate starting point for all the offending covered by the count, before aggravating features were considered. The count covered a continuum of several non-consensual sexual acts over about ten minutes. That justified a very significant uplift from the notional starting point towards the top of the range (para [16]).
2. The offending was serious, brazen, humiliating and degrading. It occurred in broad daylight in a public shop while others were present and had a significant impact on the victim. The appellant’s heavy intoxication, the fact that the victim was a shop worker undertaking her work, and his appalling previous criminal record were further aggravating features. Similar previous sexual offending would have carried substantially greater weight. Taken together, those factors justified a sentence of two years and six months before totality and guilty-plea credit (para [17]).
3. The totality principle did not require a greater reduction. The sexual offending was separate, disparate, committed on a different occasion and involved a different victim from the offending for which the appellant was already serving 44 months. It therefore justified a substantial immediate custodial sentence in its own right. A 10% reduction for totality was adequate, and the further 10% reduction for the very late guilty plea was not open to criticism. The resulting two-year consecutive sentence was upheld (para [18]).

• Court of Appeal (Criminal Division) dismissed the appeal against sentence.
• Crown Court at Sheffield sentenced the appellant on 18 March 2024 to two years’ imprisonment consecutive to an existing sentence and imposed a 15-year restraining order.