R v AYX

Abuse of trust under the sentencing guidelines is a fact-specific culpability assessment. A familial relationship, including that of step-parent and stepchild, neither automatically establishes nor excludes the factor. The question is whether the offender had a significant level of responsibility towards the child on which the child was entitled to rely.

The guideline examples are non-exhaustive. Where the facts establish that responsibility, treating abuse of trust merely as general aggravation rather than high culpability is an error of categorisation and may render the sentence unduly lenient.

The offender was convicted at the Crown Court at Shrewsbury of rape and sexual assaults against one stepdaughter, and multiple sexual activity offences against her older sister. The offending occurred during regular overnight weekend contact with their mother and the offender.

The judge imposed concurrent determinate sentences totalling two years for the offending against the older child and a consecutive special custodial sentence of eight years for the rape. He treated the offender's ordinary breach of trust as aggravating, but declined to find the guideline high-culpability factor of abuse of trust.

The Solicitor General referred the sentence under section 36 of the Criminal Justice Act 1988. The central issue was whether the judge had wrongly categorised the offender's relationship with his stepdaughters under the applicable sentencing guidelines.

1. The court granted leave to refer and held that the total sentence was unduly lenient. It quashed the sentence for the rape count and substituted a special custodial sentence under section 278 of the Sentencing Code of 12 years, comprising 11 years' custody and one year on licence. That sentence was consecutive to the unchanged concurrent determinate sentences totalling two years.

2. The guideline factor of abuse of trust requires close examination of the facts. The relationship must give the offender a significant level of responsibility towards the victim on which the victim is entitled to rely. The examples in the guideline are non-exhaustive. The court applied the fact-specific approach identified in Attorney General's Reference (R v RGX) [2023] EWCA Crim 1679.

3. The judge was correct not to assume that every person described as a stepfather occupies a position of trust for guideline purposes. However, he erred by treating the absence of an express reference to stepparents in the examples as tending to exclude that relationship from the factor.

4. On these facts, the offender was in an enduring relationship with the girls' mother, formed part of their new family, and had regular responsibility for them during overnight contact over more than a year. The children were entitled to rely on him to behave appropriately. The offending therefore involved abuse of trust within the guidelines, requiring category A culpability for the rape offence.

5. The proper starting point for that offence was 10 years' custody. Reflecting the additional serious offences against the younger child, while giving limited weight to mitigation, the least proper custodial term for the rape was 11 years. The court retained the two-year sentence for the offences against the older child, having regard to totality and the sentencing structure.

• Court of Appeal (Criminal Division): In [2024] EWCA Crim 1367, the court granted the Attorney General leave to refer the sentence as unduly lenient. It quashed the sentence on the rape count and substituted a consecutive 12-year special custodial sentence.
• Crown Court at Shrewsbury: The judge imposed concurrent determinate sentences totalling two years and a consecutive eight-year special custodial sentence for the rape count.