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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Greenwood, R. v [2024] EWCA Crim 1611 (17 December 2024) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2024/1611.html Cite as: [2024] EWCA Crim 1611

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IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT AT CHESTER
(HIS HONOUR JUDGE LEEMING) [07EZ1023323]

		Royal Courts of Justice The Strand London WC2A 2LL
		17 December 2024

Thursday 17 December 2024

LORD JUSTICE LEWIS: I shall ask Mr Justice Garnham to give the judgment of the court.

MR JUSTICE GARNHAM:

1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of the offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.
2. On 24 October 2024, following a trial in the Crown Court at Chester before His Honour Judge Michael Leeming and a jury, the appellant was convicted of sexual assault and sentenced to 18 months' imprisonment. At a "slip rule" hearing held on 24 October 2024, pursuant to section 385 of the Sentencing Code, that sentence was ordered to run concurrently with a sentence of imprisonment for public protection already being served.
3. The appellant now appeals against the sentence imposed by leave of the single judge.
4. The facts may be stated shortly. On 3 June 2023 the complainant, who was over 18 years of age, was visiting her parents' home to look after their dogs whilst her parents were away watching the FA Cup Final. Her plan had been to spend the afternoon sunbathing before going out. There was a hot tub in the garden and on occasions the appellant, who was related to the family, had used the hot tub when there had been no one else present.
5. The appellant had asked the complainant's mother if he could use the hot tub on 3 June 2023 but the mother had declined because she knew that her daughter would be alone at the house. She said that if her daughter had been going out and there was nobody else in the home, the appellant could use the hot tub.
6. The appellant subsequently spoke to the complainant who told him to come to the house at around 2 pm, but no earlier as she would be sunbathing before then. The appellant arrived at 1.40 pm when the complainant was still sunbathing in her bikini. She wrapped herself in a towel before answering the door. After setting up a television so that the appellant could watch the football whilst in the hot tub, the complainant went upstairs to get ready to go out. On her return downstairs the complainant was shocked to see that the appellant was naked in the hot tub. She immediately left the house and told her mother by telephone what had happened.
7. The complainant expected the appellant to have left the house by the time she returned at around 6.30 pm, but he was still there and was still naked in the hot tub. The complainant made an excuse and left the house. She again informed her mother of what had happened.
8. When the complainant returned for a second time, the appellant was still at the house, but was now dressed. Eventually he went to leave and bent down to hug the complainant. The appellant then moved towards her and tried to kiss her on the lips. She pushed him away. The appellant put his hand on the complainant's thigh and moved it up towards the top of her leg. That was the subject matter of the offence. She pushed him away again. The complainant went to the front door and asked the appellant to leave, but he kept asking her for another hug. Eventually the appellant stepped away from the doorway and the complainant closed and locked the door, before telephoning her mother to tell her what had happened.
9. The complainant reported the matter to the police on 21 June 2023 and the appellant was arrested. In interview the appellant accepted that he had been naked in the hot tub but said that the complainant would not have been able to see much because of the bubbles. He denied having a sexual interest in the complainant and stated that if he had touched her leg it had been purely accidental.
10. The appellant was aged 61 at sentence. He had eight convictions for 16 offences spanning from 14 May 1980 to 14 February 2011. His relevant convictions included five sexual offences. Of note is that, on 14 February 2011, he had been sentenced to an indeterminate sentence for public protection, with a minimum term of five years and 121 days, for two counts of kidnapping and attempting to take a child without lawful authority so as to remove him or her from lawful control.
11. The judge agreed with counsel for both parties that this offence fell into category 3B of the Sentencing Council's guideline for sexual assault, which has a starting point of a high level community order. He said that the appellant's record for sexual offences was a significant aggravating factor, as was the fact that the offending took place in the complainant's family home where she was entitled to feel safe and secure; the fact that the appellant had been drinking; and the fact that there had been an element of abuse of trust.
12. The judge below sentenced the appellant without a pre-sentence report. We agree that one was not necessary then and is not necessary now.
13. On the appellant's behalf it is argued by Mr Evans that the sentence of 18 months' imprisonment was manifestly excessive as it exceeded by far the starting point in the offence guideline for a category 3B offence, and that the aggravating features of the offending did not justify the extent of the increase.
14. In our judgment, there is much force in Mr Evans' submissions. The judge was right to identify as aggravating features the appellant's record of serious offending, the location of this offence, the appellant's drinking, and his abuse of the trust implicit in the relationship between him and the complainant. But the starting point for this offence was a medium level community order, and the top of the range was six months' custody. Even making full allowance for the aggravating features, a sentence of three times the upper limit of the range was manifestly excessive. Whilst we would have queried whether this offence crossed the custody threshold, it is conceded that imprisonment was appropriate because the appellant had been returned to prison in consequence of his breach of the licence provisions of his IPP. Given that factor, in our judgment a sentence of 13 weeks' imprisonment would be appropriate.
15. For those reasons we allow this appeal against sentence, we quash the sentence of 18 months' imprisonment and substitute a sentence of 13 weeks' imprisonment.
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