R v Wayne Glover-Stuart [2025] EWCA Crim 1013

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[2025] EWCA Crim 1013

IN THE COURT OF APPEAL

Venue Royal Courts of Justice

Date Tuesday 1 July 2025

Strand

London

WC2A 2LL

Before

LORD JUSTICE DINGEMANS

MR JUSTICE SAINI

HIS HONOUR JUDGE HIRST

(Sitting as a Judge of the CACD)

Reference by the Attorney General under s.36 Criminal Justice Act 1988

Between

REXCrown

Between

WAYNE GLOVER-STUART

__________

Computer Aided Transcript of Epiq Europe Ltd,

Lower Ground, 46 Chancery Lane, London WC2A 1JE

Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

_________

MS A HUSBANDS appeared for Solicitor General

MR M BAINES appeared for Offender

________

JUDGMENT

(Approved)

[1]This is the hearing of an application for leave to refer a sentence which His Majesty's Solicitor General considers to be unduly lenient. The respondent is Wayne Glover-Stuart, he is 36 years old having been born in August 1988. We grant leave.

[2]Mr Glover-Stuart was convicted on 26 February 2025 at the Crown Court in Inner London, after a trial of four offences against two separate victims. These were two sexual assaults in respect of the first victim and causing a person to engage in sexual activity without consent, contrary to section 4 of the Sexual Offences Act 2004 against both victims. The victims of the offending have the benefit of life-long anonymity pursuant to the provisions of the Sexual Offences (Amendment) Act 1992.

[3]Mr Glover-Stuart was sentenced on 16 April 2025 to an overall sentence of 2 years' imprisonment suspended for 24 months with 26 days Building Better Choices, 30 days rehabilitation activity requirements and 200 hours of unpaid work. The evidence shows that he has done 10 days of rehabilitation activity requirements sessions, he has done 130 hours out of the 200 unpaid work, he has started a Better Choices Programme and he is still taking part in a Listening Programme given suicide risks. The issues

[4]The issue on the Reference is whether the judge miscategorised the offences of causing a person to engage in sexual activity without consent as category 3B when it is contended on behalf of the Solicitor General that they were category 3A offences because there was an abuse of trust. It is also submitted that irrelevant matters were taken into account in the sentencing remarks. The factual background

[5]So far as the facts are concerned, in September and October 2023, Mr Glover-Stuart had advertised two photoshoots to separate men. He said, falsely, he had been asked by Calvin Klein to do underwear shots. There were messages exchanged with the men, one of which was: "Checking you're good with an underwear shoot" and another exchange was with the first man who attended (18 years of age) who asked to be accompanied by a companion but he was told that it was a closed shoot. The photoshoots were in Wayne Glover-Stuart’s flat and the men were photographed in their underwear. He touched the men's penises over the underwear, rearranging their underwear which was expected behaviour for such a shot. The Solicitor General, submits that demonstrated the position of trust that Mr Glover-Stuart had.

[6]So far as the first victim was concerned who was 18 years old, Mr Glover-Stuart who is a 35 year old, continued to touch him. That brought about an erection and Mr Glover-Stuart took hold of his penis, which was the sexual assault for which he was sentenced to 8 months concurrent. He then placed the victim's penis into his mouth, which was the causing a person to engage in sexual activity, for which there was a 12-month sentence imposed and he then later approached the victim and kissed him, which was the second sexual assault for which there was 1 month concurrent.

[7]So far as the second victim was concerned, who was aged 28 years old, Mr Glover-Stuart touched the victim who had an erection. He pulled down his underwear and put the victim's penis in his mouth, which was the causing a person to engage in sexual activity without consent. The victim told him to stop and that he had a girlfriend and Mr Glover-Stuart had said that he wanted to cause the victim to ejaculate. The Sentencing

[8]Mr Glover-Stuart had previous cautions and convictions. In 2008 he had used a customer's points on a loyalty card to obtain goods; in July 2020 he had committed four frauds against his employer by taking money from customers for his own benefit. He had been sentenced then to a suspended sentence.

[9]There was a personal statement from one of the victims and there was, importantly, a pre-sentence report and a report from a psychologist about Mr Glover-Stuart's autistic spectrum disorder. There were character references about Mr Glover-Stuart's difficult upbringing, with physical abuse, and his hard work and support of friends and family and his kindness and support of others in their career.

The judge when sentencing stated that:

"... the behaviour represented by these offences was to a large extent spontaneous and opportunistic. I am not satisfied to the criminal standard that you set out to use the photoshoots as a pretext to engage in non-consensual sexual behaviour or indeed any sexual behaviour at all. The jury were sure but all of the contact which I have just summarised was non-consensual. However, I am clear that I should approach this case and the verdicts of the jury on the basis that you wrongly and unreasonably believed, based no doubt on the erect penises that you encountered on both occasions, that both victims were in fact consenting to sexual activity. Having considered carefully the report from the consultant psychologist obtained by your solicitors, and in particular the diagnosis of pronounced autistic spectrum disorder, I am reinforced in my judgment that this is the correct way to analyse these offences. I note that the author of that report opines that these offences occurred in the context of impaired social understanding and emotional reciprocity compounded by longstanding trauma and poor insight into the emotional experience of others. She adds that whilst it is important to emphasise that this did not negate responsibility, it does help explain how your neurodevelopmental and psychological profile may have shaped your interpretation of events and subsequent actions."

[11]So far as abuse of trust was concerned, that was submitted by the prosecution at trial to be present and resisted by the defence.

The judge simply said:

"I am not persuaded that what occurred amounted to a breach of trust in the more narrow sense in the guidelines."

The judge did not give any further explanation as to why the finding of abuse of trust was not made. The judge found, therefore, that this was category 3B offending for the offence specific guideline of causing a person to engage in sexual activity without consent, where the offence involved penetration, and that has a starting point of 2 years with a category range of a high-level community order to 4 years' custody. As already indicated, having considered mitigation, the judge imposed the sentences which I have already set out. The Reference

[12]So far as the offence specific guideline for causing a person to engage in sexual activity without consent is concerned, the harm category is 1, 2 or 3, and there is no material dispute that this is category 3, so it is not necessary to consider that further. So far as culpability is concerned, there is culpability A or culpability B. The relevant culpability A factors relied on by the prosecution and repeated by the Solicitor General before this Court is abuse of trust. There is a dropdown box for abuse of trust, which reads as follows:

"A close examination of the facts is necessary and a clear justification should be given if abuse of trust is to be found. In order for an abuse of trust to make an offence more serious the relationship between the offender and victim(s) must be one that would give rise to the offender having a significant level of responsibility towards the victim(s) on which the victim(s) would be entitled to rely. Abuse of trust may occur in many factual situations. Examples may include relationships such as teacher and pupil, parent and child, employer and employee, professional adviser and client, or carer (whether paid or unpaid) and dependant. It may also include ad hoc situations such as a late-night taxi driver and a lone passenger. These examples are not exhaustive and do not necessarily indicate that abuse of trust is present. Additionally an offence may be made more serious where an offender has abused their position to facilitate and/or conceal offending. Where an offender has been given an inappropriate level of responsibility, abuse of trust is unlikely to apply."

[13]So far as category 3A is concerned, that has a starting point of 4 years' custody for each separate offence with a category range of 2 to 6 years.

[14]There are sexual assault offence specific guidelines which it is not necessary to refer to.

[15]There is also the Sentencing Guidelines Council’s Development Disorder Guideline and autism spectrum disorder is specified within Annex A of the guideline and then section 2 under "Assessing culpability", it is noted that culpability might be reduced if an offender was at the time of the offence suffering from an impairment or disorder. The sentencer should make an initial assessment of culpability in accordance with relevant specific guidelines and then consider whether culpability was reduced by reason of the impairment or disorder. Culpability will only be reduced if there is sufficient connection between the offender's impairment or disorder and the offending behaviour.

[16]So far as the trial judge's findings are concerned, this Court has said on many occasions that a trial judge is best placed to make findings of fact and that a Court will not interfere with them unless they are inconsistent with some uncontrovertible fact internally inconsistent or in some other way irrational.

[17]The approach to abuse of trust set out in the guideline is consistent with relevant authorities including R v Forbes

[2016] EWCA Crim 1388

;

[2017] 1 WLR 53

at [15]. The real issue is whether the judge was wrong not to find that there was a significant level of responsibility to the victim on which the victim was entitled to rely. We do not have, as I have already indicated, the benefit of any reasons from the judge to indicate why he did not find an abuse of trust.

[18]In this case, it is apparent that the relevant factual background included the fact that Mr Glover-Stuart had falsely said that this was a Calvin Klein photoshoot and had therefore got the victims into his flat. He had put the victims into underpants for purposes of the shoot. He had denied, so far as is material, the 18-year-old the comfort of a companion and said, falsely, that it was a “closed” photoshoot. It was expected that in such an underwear photoshoot there would be adjustment of the underwear, all of which, in our judgment, shows that there was a significant level of responsibility to the victim on which the victim was entitled to rely. The situation was effectively one where the victims were subject to Mr Glover-Stuart's directions.

[19]We note the submission that has been made on behalf of Mr Glover-Stuart that the judge had found that the offences were, to a large extent, spontaneous and opportunistic. The judge heard the trial and we are not in a position to go behind that finding. The fact, however, that someone opportunistically takes advantage of a situation where they are in a position of trust is certainly not unknown to the law and does not, in our judgment, prevent this being a situation where there was a significant level of responsibility to the victims on which the victims were entitled to rely. We therefore consider that the judge was wrong to find this as category 3B under the offence specific guideline with a starting point of 2 years, he should have found that it was category 3A with a starting point of 4 years.

[20]The judge was plainly right to reduce the offending within the guideline to take account of all the matters of mitigation to which we have referred and, importantly, the findings in relation to autism spectrum disorder. Having regard to the fact that there were two separate victims and two separate sets of harm, together with sexual assaults, the lowest that we consider that a judge could reasonably have gone in relation to the first victim was a sentence of 2 years, with the sexual assaults of 8 months and 1 month concurrent, together with a consecutive sentence of 1 year for the separate victim taking account of issues of totality, and also taking account of the fact that Mr Glover-Stuart has carried out a considerable amount of unpaid work and been subjected to penal aspects of the suspended sentence order.

[21]That then brings us to the issue of the exercise of the discretion. It is submitted on behalf of Mr Glover-Stuart that this Court, having found that the sentence was not only lenient but, as we have already indicated, unduly lenient because it should have been an immediate custodial sentence of 3 years (or perhaps a bit longer if one had not taken into account the unpaid work which has been performed), the sentence of 2 years suspended was unduly lenient.

[22]As far as discretion is concerned, the submissions are made that the Court should have well in mind the difficulties of converting a suspended sentence of suspension to one of immediate custody, the effect of custody on the individual (and that is because Mr Glover-Stuart had attempted suicide attempts during his period of remand, which was some 19 days before his release) and we are also asked to take into account the progress since sentence and the updated information showing what has been done. We are asked to note the particular difficulties for Mr Glover-Stuart in circumstances where he was sentenced in April and we are now at the 1 July.

[23]We have considered carefully all of the matters but we do consider that this sentence was unduly lenient and the sentence of 3 years' imprisonment less time spent on remand should be imposed. There were real effects on other people apart from Mr Glover-Stuart. We have made the sentence as low as we can, but, in our judgment, the sentence that was imposed on him failed to reflect the criminality disclosed by Mr Glover-Stuart. In those circumstances, we allow the Reference to the extent that we impose a sentence on count 2 of 2 years' imprisonment, and we keep the sentence on count 4 as it was at 12 months' imprisonment but that is consecutive, meaning that the overall sentence is one of 3 years' imprisonment. There will be credit for the 19 days on remand and credit for the tagged curfew of 57 days which amounts to a further 29 days, giving a total of 48 days. All the other consequential orders will remain as they were. We are very grateful to Ms Husbands and Mr Baines for the excellence of their written and oral submissions. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400 Email: Rcj@epiqglobal.co.uk