R v Roy Mackenzie

The aggravating feature of abuse of trust is fact-specific. It requires close examination and clear justification. An employer–employee relationship alone does not establish it: the relationship must give rise to significant responsibility towards the victim on which the victim is entitled to rely. Differences in age and status, and offending in the victim’s home, may still aggravate sentence without amounting to abuse of trust.

After correcting an erroneous culpability assessment, an appellate court may reassess both sentence and suspension. Immediate custody may remain necessary where the offending is sufficiently serious, even if rehabilitation is realistic and the offender poses no danger.

On 5 June 2025, the Crown Court at Bristol sentenced the appellant to 20 months’ imprisonment for two sexual assaults on a junior employee, contrary to section 3 of the Sexual Offences Act 2003. Leave to appeal against sentence was granted. The appellant challenged the finding of abuse of trust, the resulting higher culpability category, and refusal to suspend sentence. The central issues were the proper use of the aggravating feature and whether immediate custody remained justified.

Appeal allowed against sentence. The sentences of 20 months’ imprisonment were quashed. The court imposed 12 months’ imprisonment on each count, to run concurrently, making a total sentence of 12 months. The court upheld the decision that immediate custody was required.

1. Abuse of trust. The Sentencing Council guideline requires close examination and clear justification before abuse of trust is treated as an aggravating feature. The relationship must give rise to a significant level of responsibility towards the victim on which the victim would be entitled to rely. The inquiry is fact-specific. The mere existence of an employer–employee relationship is insufficient. The court applied the guidance in R v Ashton [2015] EWCA Crim 1799; [2016] 1 Cr App R(S) 32 and R v Nilmoni Singh [2020] EWCA Crim 1366.
2. Application to culpability. The appellant’s managerial position did not justify an abuse-of-trust finding. His substantially greater age and status, and the fact that he entered and offended in the victim’s home, remained serious aggravating features. The offences were therefore category 2B offences, with a starting point of 12 months and a range extending to two years.
3. Re-sentencing. Taking account of the location, timing, persistence, psychological harm, offending in drink, age and status difference, and mitigation, the sentence after trial was assessed at about 18 months. Credit for early guilty pleas reduced the appropriate sentence to 12 months.
4. Suspension. It was appropriate to reconsider suspension because the sentencing judge had viewed the case through the erroneous 20-month sentence and had partly relied on the abuse-of-trust finding. The absence of danger, realistic rehabilitation and lack of non-compliance did not outweigh the seriousness of the offending. Difficulties caused by the appellant’s placement within the prison estate were matters for the Prison Service and could not be taken into account.

1. Court of Appeal (Criminal Division) ([2025] EWCA Crim 1526, 11 September 2025): allowed the appeal against sentence, quashed the sentences, and imposed concurrent sentences of 12 months’ imprisonment.
2. Crown Court at Bristol (5 June 2025): sentenced the appellant to 20 months’ imprisonment for two sexual assaults and ordered payment of the statutory surcharge.