R v David Lee Salisbury

In a sentence appeal, a recorder’s reference to a complainant’s reluctance does not amount to an impermissible finding that force was used where the reference accurately reflects the evidence and force has not been conflated with reluctance. Where an applicable guideline provides a starting point for one offence, two separate and serious offences may fully justify a substantial upward adjustment. An overall sentence within the applicable range will not be manifestly excessive or wrong in principle merely because that adjustment is significant.

Following a jury trial at Leeds Crown Court, the applicant was convicted of two offences of sexual activity with a child. The offences involved separate acts of vaginal penetration in 2006, when V was 14 and the applicant was 27. The Recorder sentenced him to nine years’ imprisonment on each count, concurrently, and made ancillary orders.

After a single judge refused leave, the applicant renewed his application to appeal against sentence. He contended that the Recorder had wrongly treated V’s reluctance as the use of force, had imposed an excessive uplift from the guideline starting point, and had insufficiently applied totality. The court also considered whether a victim surcharge could lawfully be imposed for offences of that age.

1. Disposition. The renewed application for leave to appeal against sentence was refused.
2. The Recorder had not confused reluctance with force. The reference to V as a reluctant participant reflected her evidence that she gave neither a positive nor negative verbal response to the sexual activity. It did not treat the offending as involving force.
3. The Recorder correctly applied the relevant sentencing guideline. Vaginal penetration placed each offence in category 1 harm. Grooming behaviour and the substantial age disparity placed culpability at level A. Although the starting point for one category 1A offence was five years’ custody, the applicant was being sentenced for two separate offences. Their number, the seriousness of the offending against a vulnerable child, and the aggravating features justified a significant upward adjustment.
4. The concurrent sentence of nine years’ imprisonment was neither manifestly excessive nor wrong in principle. The totality submission did not disclose an arguable error.
5. The court further observed that the victim surcharge could not lawfully have been imposed because the relevant statutory provisions did not apply to offences of this age. Although correction by re-pronouncement in court would have been preferable, the error did not affect the renewed application.

• Court of Appeal (Criminal Division). In [2024] EWCA Crim 551, the court refused the renewed application for leave to appeal against sentence after the single judge had refused leave.
• Crown Court at Leeds. On 10 August 2023 the applicant was convicted by a jury of two offences of sexual activity with a child. On 11 August 2023 the Recorder imposed concurrent sentences of nine years’ imprisonment and made ancillary orders.