R v Morteza Azizi-Safa

In an appeal against sentence for a historic sexual offence, the sentence must reflect the precise count of conviction, the statutory offence charged and any acquittals. A sentencing court must not treat uncharged or acquitted penetrative conduct as establishing a higher modern guideline category where the conviction concerns a distinct non-penetrative offence. The modern guideline can assist only by reference to an equivalent offence. A single isolated conviction, good character and personal mitigation may require a lower starting point, but grooming, marked age disparity and an employer relationship may remain material aggravating features. Those features may justify immediate custody despite delay and low risk of reoffending. The Court of Appeal quashed a manifestly excessive sentence and substituted 18 months’ imprisonment.

Following a trial at the Crown Court at Bradford, the appellant was convicted of one count of indecent assault under section 14(1) of the Sexual Offences Act 1956. He was acquitted of two rape counts and another indecent assault count. The Recorder imposed three years’ imprisonment and a restraining order under section 360 of the Sentencing Act 2020. The appeal concerned whether the sentence wrongly treated the conviction as penetrative, failed to account for the acquittals and single count, gave insufficient weight to mitigation, and should have been suspended.

The court, in a judgment given by Mrs Justice Foster, allowed the appeal against sentence.

1. Proper scope of the conviction. The Recorder failed to give sufficient regard to the acquittals and to the fact that count 3 was a single count. The count alleged pressing the penis against the complainant’s vagina and did not allege penetration. It was an offence under the Sexual Offences Act 1956, distinct in scope and penalty from a penetrative offence. The sentence had to reflect the offence of conviction rather than the later sexual intercourse or the acquitted allegations.
2. Guideline categorisation. Category 1A considerations under the modern guidance did not apply. The appropriate comparison was with the non-penetrative category 2A offence under section 9 of the Sexual Offences Act 2003. The Recorder therefore took too high a starting point. Grooming remained a real part of the nature of the charged offence, despite the conviction being for only one count.
3. Mitigation and aggravation. In light of the appellant’s previous good character and personal mitigation, the appropriate starting point was two years’ imprisonment, followed by a further reduction for mitigation. Significant age disparity and the employer relationship were serious aggravating features. The age disparity did not amount to double counting in the circumstances.
4. Suspension. The delay, absence of previous or subsequent offending and low risk of harm provided an argument for suspension. However, the seriousness of the sexual activity, together with the age disparity and employer relationship, justified immediate custody. The refusal to suspend the sentence involved no error.
5. The three-year sentence was manifestly excessive. It was quashed and replaced with 18 months’ imprisonment. The restraining order remained in force.

• Court of Appeal (Criminal Division): On 19 January 2024, allowed the appeal against sentence, quashed the three-year sentence and substituted 18 months’ imprisonment. The restraining order remained in place.
• Crown Court at Bradford: Convicted the appellant on 15 March 2023 and sentenced him on 15 May 2023 to three years’ imprisonment, with a restraining order for five years.