Ayeva, R v [2009] EWCA Crim 2640

Case No 200902682/A7[2009] EWCA Crim 2640
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 19th November 2009
Strand
London, WC2A 2LL
B e f o r e:
MR JUSTICE LANGSTAFF
MR JUSTICE WYN WILLIAMS
Between
R E G I N ACrownv
Between
SHARIF AYEVA
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr N Devas appeared for Appellant
J U D G M E N T
[1]MR JUSTICE LANGSTAFF: On 20th April 2009 before the Peterborough Crown Court, the appellant pleaded guilty on rearraignment to an offence of causing a person to engage in sexual activity without consent, contrary to section 4 of the Sexual Offences Act 2003. On 18th May 2009 he was sentenced for that offence by His Honour Judge Enright to a term of three-and-a-half years' imprisonment. He was to comply indefinitely with the notification provisions of Part 2 of the Act. Against that sentence he appeals to this court with the leave of the single judge.[2]The facts briefly stated are these. On 30th October 2008 a 19-year-old woman was waiting to meet her father outside the public library in Peterborough. The defendant approached and engaged her in conversation, using the name "Joe" although it does not appear from any other papers to be his real name. He began to ask more personal questions and then confessed to her that she was beautiful, that he loved her and that he wished to be with her. She felt uncomfortable. She made excuses. She went away. She went away down an alley, and in that way appeared to have shaken him off. But when she came back to the front of the library, he appeared again and once more sought to engage her in this type of conversation. He suggested they went inside the library and they did so and then came outside. She explained that she had hoped that by then her father would have arrived and she could escape with him. But at that stage, he put his arms around her waist. She told him not to do it. That was the first but, sadly, not the only contact. She went down the alleyway again, but this time she did not escape the defendant. He followed. He caught her from behind. He put his hands around her breasts and grabbed them, digging his forearms into her upper arm so she could not move away from him and therefore brought her back into contact with his front. He insisted upon her listening to music from his phone and continued to compliment her.[3]She had the sensation that he was unzipping his trousers. She felt that he had got his penis out and discovered that was so when he bent her arm behind her back and forced her to take hold of his erect penis in the palm of her hand, using his hand over her hand to rub it up and down. She told him to stop. He did not.[4]She came free and came back to the front of the library, where she was picked up by her father, who had now arrived, very upset, crying, shaking and actually physically sick on the pavement.[5]The defendant, later that same day, texted her on her phone. She said -- it was a matter which would have been in dispute at trial -- that during the course of the incident in the alleyway, he had taken her phone to ring his phone and no doubt thereby would have obtained her number. But he texted her undoubtedly to say "Hi Sam, it's Joe. Are you home? You are so lovely. Do you wanna stay in touch.?"[6]When that case came to court it became apparent that the appellant was a man who had no previous convictions. But he did significantly have that which Miss Devas, who appears on his behalf of the judge, accepts is an aggravating factor, that is an offence (of battery) for which he was cautioned nominally. But the circumstances of that offence bore every similarity to this offence, in that it involved him approaching a young woman, on her own, engaging her in conversation, and conversation plainly with a view, if she responded, to his sexual gratification. This had been unwanted.

The judge was told of that incident by the prosecution, in these terms:

[7]that the complainant in that case was near the library as was he, that she was asked by him whether she would like to meet up with him and told that he could make her feel really good. When she said "no" and said she was waiting for her boyfriend he had responded saying "come on please", grabbed her by her right arm and asked for her mobile telephone number and where she lived. She had had to take evasive action.[8]When the judge came to sentence, having decided that there was mitigation in the late guilty plea, which had avoided the young lady giving evidence, he indicated that he could not conclude that the offender was dangerous, but then said:
"Having regard to the guidelines, however, at page 40 [that was a reference to the Sentencing Guidelines Council guidelines as to sexual offences], I take the view this falls in the two to five year bracket at the top of the page. A sentence, on a fight, of four years' imprisonment would follow. The most serious aggravating matter being the masturbation resulting, in due course, in ejaculation. I make an appropriate discount for your plea."
That therefore resulted in the sentence of three-and-a-half years, with the time spent on remand 196 days to count towards it.[9]Miss Devas then queried what the judge had said about the bracket. She has told this court that both the prosecution and she had told the judge that in fact, in their view, the proper sentencing range applicable for this offence was not that which the judge had identified but the less serious one. The guideline at page 40 consists of a grid in which the nature of the activity is described on the left, the starting point for adult offenders, such as was this appellant, who is aged 33 and then gives the sentencing range. For contact between the naked genitalia of an offender and the naked genitalia of the victim or, causing two or more victims to engage in such activity with each other or, causing the victim to masturbate him or herself, there is a sentencing range of 2 to 5 years custody with the starting point said to be 3 years custody.[10]The second box, for less serious conduct, describes various types of activity, one of which is contact between the naked genitalia of the offender and another part of the victim's body, as to which 12 months custody is the starting point and the sentencing range is said to run from 26 weeks to 2 years custody. It was plainly to this provision that both counsel had drawn the judge's attention.[11]When this was raised by the prosecution counsel she did so in these terms:
"Did Your Honour say that the case fell into the two to five year bracket? [THE JUDGE]: Yes, I did. [COUNSEL]: Because that is contact between the naked genitalia of the offender, and the naked genitalia of the victim. There was no touching of her naked genitalia. Or, it is causing two or more victims to engage in sexual activity with each other. [JUDGE]: 'Or'. [COUNSEL]: But the first bit is 'and'. 'Contact between naked genitalia and [she stressed that word] naked genitalia of the victim, or [she stressed that word] causing two or more victims, or, [again she stressed the word] causing victim to masturbate himself. [JUDGE]: Yes. I do not change my view on that. If you wish to dispute the finding, you would have to take the usual channel."
Counsel for the appellant then asked:
"Does Your Honour say which part of that activity... [JUDGE]: That is all I wish to say. Thank you."
Counsel quite properly having raised the issue retreated.[12]The judge did not explain why he had adopted the particular sentencing range which he did, which would have resulted, after a trial, in a sentence of 4 years for this activity for someone who, though cautioned relevantly had not been convicted of any previous offence.[13]It seems to us, therefore, that the judge appeared to adopt and, indeed, did in terms adopt a guideline which upon the face of it was inappropriate for the particular activity upon which the appellant was engaged. For this appellant did not come within the strict wording of the guidelines. His naked genitalia were not in contact with her naked genitalia.[14]In the absence of the judge's more detailed explanation of why it was he adopted the figure which he did from which to start, we have no basis for knowing. It would seem therefore that he may have adopted the wrong basis from which to start, because he specifically identified a category of offence into which this simply did not and could not fall upon the face of it.[15]It seems therefore that, as a matter of principle, he approached this sentence on the wrong basis. But before we turn to the next question which arises, which is, "what then was the right sentence?" we must observe that plainly the judge felt that facts of this case were such that to him they fell outside those sorts of offences which would normally be comprehended within the second box on page 40 of the guidelines. It is of the nature of guidelines that they are sometimes treated as being more prescriptive than they may properly deserve.[16]Indeed, part of the guidelines, which it may sometimes be forgotten as being part of the guidelines is the general principle, which is expressed in bold type, because of its importance at paragraph 1.3 of these very guidelines. That reads:
"For these types of offence, more than for many others, the sentencing process must allow for flexibility and variability. The suggested starting points and sentencing ranges contained in the offence guidelines are not rigid. Movement within and between ranges will be dependent on the circumstances of individual cases and in particular, the aggravating and mitigating factors that are present."
The guidelines, where they deal with those offences under section 4, emphasise that it is an aggravating feature of very great importance to know whether the offender has ejaculated or not. Here he did. There was thus a very significant aggravating feature.[17]We ask ourselves therefore, what was the right sentence for this offence, taking into account what was said, and taking into account the judge's approach. Before turning to the offender himself, it seems to us that that there are a number of aggravating features in the circumstances of what took place. First, the unwelcomed conduct of the appellant was persisted in over a significant period of time. Secondly, there was no question here, in reality, that the signals which his victim was giving him could have been mistaken. She let him know his attention was not welcome. Thirdly, it was not one isolated incident of his getting her hand to touch his erect and naked penis, but also the grabbing of her breasts in a way that she could not escape and his putting her arm unwantedly around her beforehand. Not only was it a touching of the penis, but a masturbation of it, to the extent, as we have noted, that he ejaculated, although it is right to record that she was not aware that that is what had happened. Moreover, he was, as it seems to us, less than frank to the police, which must be borne in mind when considering the effect and discount for his plea of guilty. The effect of what he did was in this case immediately significant: his victim was sick. But more than that, the judge had before him, and we have before us, that which the victim herself said in her statement to the police as to effects upon her of what had taken place. She said that she had had problems sleeping at night since the incident, so much that she had to obtain medication from her general practitioner. She now found it difficult to trust people in general. She was reluctant to socialise as she was afraid about what they might do to her. She used to work at Tesco and had been signed off with stress because she worried about people whom she did not know coming up and speaking to her because she was concerned as to what they might do to her. She had planned to socialise over the Christmas period but was too frightened now to go out. She was even scared to stand outside her house in order to have a cigarette because she was too frightened to do so and had left college, at which she had been enrolled, because of her fears of meeting strange people whom she felt she could not trust. Albeit that statement was made between the date of the offence and Christmas, as the contents suggest it does show the serious after-effects of this offence on this victim.[18]As to mitigation, there was the plea. Miss Devas has emphasised before us that there was no violence. She has described the incident as short lived, a submission, it is plain we do not accept in full and, as we have noted, she conceded that it was an aggravating feature that his conduct appeared to replicate his conduct which had led to his caution in 2007.[19]What would give this court particular concern, however, is the content of the pre-sentence report. This was prepared after he had indicated that he would plead guilty but before he came for sentence. It somewhat blunts the effect of his plea. He was telling the male probation officer, who provided the report that the contact between him and her was consensual. This was even though he had pleaded upon a basis which plainly accepted that it was not. At paragraph 2.7 in that report the probation officer said:
"In terms of assessing his motivations for committing the offence the defendant maintains that he did not behave in the way outlined within the CPS documentation, stating that contact was consensual and 'no force at any time was used.' In challenging this statement [the appellant] suggested that the victims father 'may have influenced her' in terms of reporting the matter to the Police - although he could not specify a possible motivation for such actions. It is my assessment that sexual gratification was the primary motivational factor, and that the primary trigger underpinning his behaviour was undoubtedly the fact that the victim was alone and potentially vulnerable. There is also evidence of distorted thinking, with the defendant's suggesting that the victim was 'attracted to him' and that at one point telling he 'loved her and wanted to be with her' in the brief time they had met. In assessing the defendant's levels of culpability it is my assessment that he chose to minimise his behaviour throughout, choosing instead to blame the victim and her father for his current predicament. At no point throughout the interview did he acknowledge that he had behaved inappropriately towards the victim, and he struggled to understand why such allegations had been made against him."
[20]In the same pre-sentence report it appeared that he was a man who had been married for some years. In paragraph 3.9 it said this:
"Whist there is a Basis of Plea in relation to this matter [the appellant] continues to deny that he committed any inappropriate sexual behaviour other than 'attempting to kiss the victim'. In seeking to address issues relating to risk it can be argued that the current offence represents an emerging pattern of targeting lone females and behaving inappropriately towards them."
That was plainly a reference to this offence, taken with the circumstances of the earlier offence and that which the probation officer had uncovered about the way in which he first met his wife.[21]On that basis Probation Officer suggested that the defendant should complete an accredited programme to explore his disordered thinking and cognitive deficits. Then he went on to say:
"His continued levels of denial may prohibit him from completing such interventions."
He concluded that the appellant posed a medium to high risk of harm to others, namely lone adult females. We should add that he was significantly older than his victim in this case.[22]Taking those aggravating features into account, bearing in mind the need in sentencing offenders to have regard to the risk which they pose, in establishing a determinate sentence, noting that this offence is one which if one began within the second box on page 40, the aggravating features to which we have referred would significantly take it beyond, and bearing in mind what is said in paragraph 1.3 of the guidelines, that they are exactly that, guidelines and not tram lines, we consider that the appropriate sentence, after a trial in this case, would have been in the region of 30 months' imprisonment. That is significantly less than the trial judge began at. He appears to have begun at about 4 years.[23]Making such allowance as we can for his plea, which was late, and in the circumstances rather disturbingly contradicted by what he told the probation officer immediately afterwards, we think that the proper sentence in this case, starting at the right starting point would have been one of 2 years and 3 months' imprisonment. That has the consequence that the notification requirement under Part 2 of the Sexual Offences Act 2003 can no longer be one which runs indefinitely but is limited to 10 years and accordingly that provision too must be varied. The appeal therefore succeeds to that extent.