R v Jacek Brzozowski [2025] EWCA Crim 1113

[2025] EWCA Crim 1113Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30 July 2025
Before
LORD JUSTICE STUART-SMITHMR JUSTICE JOHNSONHIS HONOUR JUDGE CONRAD KC
Between
REXCrownJACEK BRZOZOWSKIDefendantREXJACEK BRZOZOWSKI
REFERENCE BY THE ATTORNEY GENERAL UNDER s.36 CRIMINAL JUSTICE ACT 1988
Fiona Robertson appeared for Solicitor GeneralPeter Byrne appeared for Respondent Offender
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 that offence.
Approved Judgment
[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 that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act. For the avoidance of doubt, we do not waive or lift the prohibition.[2]His Majesty's Solicitor General applies for leave to refer a sentence which she regards as unduly lenient. The sentence was passed by Her Honour Judge Wright sitting in the Crown Court at Sheffield on 21 May 2025 after the offender had pleaded guilty on the second day of his trial to a single offence of sexual activity with a child contrary to section 9 of the Sexual Offences Act 2003. The judge passed a sentence of 21 months suspended for 2 years. The essential criticism advanced by the Solicitor General is that the judge mischaracterised the offender's conduct as falling within category 1B of the guideline. It is submitted that it should have been characterised as falling within category 1A, which would have led to a much higher starting point and resulted in a custodial sentence that was too long to suspend. The offender responds by saying that the characterisation was justifiable and the sentence not unduly lenient once the full circumstances are known.

The factual background

[3]The account that follows refers to the offender and to two other men who were co-defendants when the case came to trial. Without belittling the seriousness of what the offender did, the much worse abuse inflicted by the other men is relevant because their abuse serves to put the offender's criminal conduct in its proper context and perspective.[4]As a result of investigations into grooming gangs in Rotherham and nationally, the victim (who we shall call V) and her friend (who we shall call F) were identified and spoken to by police as potential victims and disclosed that they had been sexually abused.[5]In 2011, V (who was then aged 15) and her friend F (who was also aged 15) were friends and fellow residents of a children's home in Rotherham.[6]In the autumn of 2011, Mr Stefan Houphouet met and quickly befriended V and F in Rotherham town centre when they were heavily intoxicated. He engaged both girls in conversation and offered them more alcohol and the chance to go to a party. Before leaving however, Mr Houphouet took V into an alleyway, pushed her to the ground and vaginally raped her.[7]Mr Houphouet took both girls a short distance to a home in the Eastwood area of Rotherham and introduced them to his housemate, Mr Absolom Sigiyo, and other males. Later that evening, after providing them with more alcohol during a house party, Mr Houphouet again raped V, and on this night or a night soon after Mr Sigiyo raped F.[8]Over the course of the following months and into 2012, Mr Houphouet routinely met the victims in Rotherham town centre and conveyed them to the house he shared in Eastwood, where there were regular house parties in which the girls were given attention and made to feel wanted and grown up. They were encouraged to dance provocatively and were reminded directly and indirectly that they were the subject of sexual attraction and would be having sex during or at the end of the night. Mr Houphouet and Mr Sigiyo incited them to drink alcohol to excess whilst the girls often arrived "pre-loaded" with alcohol from drinking together in Rotherham town centre. Mr Houphouet would ensure that their levels of intoxication were maintained and increased by the provision of further alcohol and tobacco he would purchase from a nearby petrol station.[9]At an early one of these parties, around November 2011, the offender began talking with V, asking her about her background, where she was from and where she lived. He was flirty with her and asked if she wanted to go upstairs to talk in private, to which she agreed. The parties went into Mr Houphouet's bedroom, where they talked further and began to kiss.[10]V told the police that she did not feel scared as she had gone upstairs willingly rather than being told to go upstairs. She described what occurred as being completely different to what happened with the other men. She disclosed that both she and the offender were undressing each other and described it as how sex is meant to be when it is something you want, as compared with her other experiences. V kissed the offender and let him know that she was enjoying what they were doing, both verbally but also by her actions. She touched the offender back. She was, of course, still only 15.[11]V and the offender progressed to having penetrative vaginal sex, but after a couple of minutes of this, Mr Houphouet walked into the room. V told the police:
"He like opened the door proper slammed it, you know being proper … violently loud ... loud violently ... scary, you know like kicking off to sense like asking me what the fuck I am doing, why the fuck I am sleeping with him, I am not allowed to sleep with him. You are a slag ... a slut."
The offender jumped up and Mr Houphouet told him to "get the fuck off, get dressed, fuck off."[12]The offender got dressed as quickly as he could and was saying to Mr Houphouet, "I am sorry, I am sorry, am sorry", and then ran downstairs and left the premises. V never saw the offender again. Mr Houphouet proceeded to call V a slut and violently raped her, stating "You are not allowed to sleep with him, you are mine, you are for me."[13]The offender was interviewed on 18 April 2018 and 18 June 2020. He provided an account which confirmed that he was living with Mr Sigiyo at the Eastwood address and that Mr Sigiyo would bring girls back to the address to party. The officers showed him a photograph of V. He said he recognised her as one of the girls brought to the address. He said that on one occasion he and V both took their clothes off. He denied that any sex took place but stated it could have taken place if a black male (who he said was called Steve) had not entered the room. He said he thought that V was 16 or 17, and he denied on another occasion trying to kiss F.

The proceedings

[14]The offender was charged with two offences. One, count 4, was an allegation that he incited F to engage in sexual activity by kissing him on the mouth when she was a child. Count 5 was the allegation with which we are directly concerned.[15]The day after the jury was empanelled but before the substantive trial had got underway, the offender was rearraigned on count 5 and pleaded guilty to that offence. He maintained his plea of not guilty to count 4 and was in due course acquitted of that offence by the jury.[16]The co-defendants were convicted on multiple counts, involving multiple rapes of both V and F. Mr Houphouet was sentenced to a total of 20 years and Mr Sigiyo to a total of 18 years 6 months' imprisonment.[17]The course of the trial meant that the judge had the opportunity to observe the offender throughout. When she came to sentence him, she had numerous sources of information.

Victim impact statement

[18]V provided a victim impact statement that addressed the impact of all the offending against her without distinguishing between the effect of the abuse by individual defendants. Viewed overall, it indicated profound psychological damage. Given the very different circumstances of the offender's conduct when compared with that of the other two defendants, it is not possible to form any reliable assessment about whether or to what extent his conduct contributed to the overall impact of what was inflicted on her.

Antecedents

[19]The offender is 36 now. He was 21 at the time of the offence. He has no previous convictions but has one caution for the possession of cocaine in August 2018.

Character reference

[20]A character reference was provided on the offender's behalf from a person who had known the offender for 8 years and with whom he had lived for much of that time. She stated he had cared for her as she suffered from bipolar disorder and that he had always shown respect to her.

Psychological report

[21]A psychological report was prepared by Dr Majid Saleem based on an examination in February 2025. In his summary of his report Dr Saleem said:
"3.4. [The offender] achieved borderline to low average scores on the WAIS-IV. His overall level of functioning, represented by the Full-Scale IQ score, was in the borderline range, placing him in the bottom 5% of the general population. He functions at a level that is not associated with a diagnosis of intellectual disability. 3.5. [The offender] achieved scores on the PHQ-9 and GAD-7 which would suggest that he is currently suffering from clinically significant levels of anxiety and depression. 3.6. An IQ of 75, which falls in the borderline intellectual functioning range, can significantly impact culpability. A person with an IQ of 75 may have diminished capacity to fully understand the moral and legal wrongfulness of their actions. This does not excuse the behaviour but may reduce their culpability if their intellectual limitations played a role in their decision-making. With borderline intellectual functioning, their ability to comprehend the consequences of their actions or to foresee harm may be impaired."
Later, in expressing his conclusions, Dr Saleem said:
"10.10. An IQ of 75 may indicate difficulty with impulse control, decision-making or understanding social norms. This might explain behaviour patterns but would not necessarily absolve responsibility unless it is significantly impaired judgment. 10.11. The court may consider [the offender’s] borderline levels of intellectual functioning as a mitigating factor when determining sentencing. It may consider his limited cognitive abilities, poor judgment and reduced capacity to understand the consequences of his actions."

Pre-sentence report

[22]The judge had a pre-sentence report and an addendum report. One of the striking features of the PSR is that the offender remained unable to appreciate the seriousness of his offending, relying upon his assertion that he did not force V to engage in the sexual activity that was involved in his offence.

The sentencing hearing

[23]The prosecution submitted a note for the sentencing hearing. It was submitted that the case fell within category 1A. It was category 1 for harm because of the penetration of V's vagina, and it was submitted to be category A for culpability because of: i) the use of alcohol on V to facilitate the offence ii) specific targeting of a particularly vulnerable child, and iii) the significant disparity in age - 21 for the offender and 15 for V. That categorisation would indicate a starting point of 5 years, with a category range of 4 to 10 years. The sole aggravating factor identified by the prosecution in their note was the commission of the offence whilst under the influence of alcohol. Mitigating factors were identified as the absence of previous convictions, the offender's remorse and his age.[24]When during the prosecution's oral opening the judge questioned whether the case should not be treated as category 1B, the Crown made significant concessions: i) First, it accepted that there was no evidence that the offender had given V alcohol, the evidence being that it was brought in by Mr Houphouet. Although on occasions the offender drank with the other offenders and the girls, "He did not bring the drink in, he did not bring the girls to the house, and this was very early in the visits ... one of the first visits ... so ... it may not be quite the same as later when it is obvious what the pattern is, and when the pattern has arisen" - the 'pattern' being the plying of the victims with alcohol by Mr Houphouet and Mr Sigiyo. ii) Second, that also went to the question of specific targeting of a particularly vulnerable child. It was accepted by the Crown that the judge could quite easily say that the targeting had been by Mr Houphouet in the town in selecting the victims and bringing them back to the house. The Crown pointed to the evidence that Mr Houphouet had raped V in the town on his initial meeting with her and before taking her back to the house, and that the offender "seems to be out of the loop and just seemed to be there". The Crown also accepted that the court might take the view that the offender's involvement generally was much less than that of the other two offenders, so that the judge could decide that it was not specific targeting of a particularly vulnerable victim in the sense meant by the guideline. iii) Third, turning to the question of significant disparity in age, counsel for the Crown accepted that it was what he called a grey area. He accepted that a disparity of 3 years (18 and 15) would not be significant within the meaning of the guideline. The judge suggested that with a 15-year-old victim "significant" disparity would be where the offender was probably mid-20s, to which counsel for the Crown replied, "Absolutely", adding that the judge could take the view that the disparity in the present case was not sufficient to put it in the category meant by the guideline. iv) Fourth, counsel then pointed to the gap that exists between the category range for category 1A (4 to 10 years) and category 1B (high-level community order to 2 years' custody) and said, "So whether it might even fall in that gap, or whether it is properly in the lower category, I can perfectly understand how your Honour could place it in any of these three options." Counsel then expressly assented to the suggestion by the judge that the case potentially fell towards the top of category 1B, given the aggravating factors that V was a vulnerable child and there was alcohol available and that the offender was himself under the influence of alcohol.[25]When Mr Byrne, who was representing the offender below as he has before us today, came to mitigate, the judge said that her observations of the offender during the trial squared with what she had read in the reports. Mr Byrne relied heavily on the reports, submitting that the difficulties identified now would have been present at the time of the offending and suggesting that perhaps the offender's functioning age was different from the present day and may have been somewhat closer to that of V.[26]At the close of his submissions, he also pointed to the fact that although there was no formal agreement to co-operate with the prosecution, the offender had given considerable evidence at the trial not only in relation to his own involvement but in relation to the involvement of the co-defendants. It is an unusual feature of this case that the trial judge wrote to the Registrar of this court to confirm that the offender's evidence implicated the two defendants and supported the evidence of V and F.[27]When she came to sentence the offender, the central passage of her sentencing remarks was as follows:
"You pleaded guilty at trial and so I give you 10% credit. This offence occurred 14 years ago in 2011. You had sexual intercourse with [V] who was 15. She was a vulnerable girl who had been exploited by men you were acquainted with. She willingly had sexual intercourse with you. The episode was short-lived as it was interrupted by another man who reacted in a violent manner when he saw the two of you together. The offending was not repeated and there have been no incidents since. I have regard to the sentencing guidelines; this is category 1 as there was penetrative sexual activity. I am not persuaded there are any culpability A factors and so this is category B1 but towards the top end of that category as your victim was clearly vulnerable and you were under the influence of alcohol. I have read the psychological report, the pre-sentence report and addendum and I had the benefit or observing you throughout the trial, including when you gave evidence. It is clear you have some issues with functioning and understanding. You face a number of difficulties and it is apparent that your level of maturity at the time was probably similar to that of the complainant but, nevertheless, she was a vulnerable and looked after child. You have not reoffended in any way since this isolated incident. Unlike others, this was not a pattern of repeated and sustained behaviour. It seems to me that you clearly need assistance in understanding why this behaviour is so wrong. Your guilty plea is perhaps the best evidence that there is hope that you will be able with assistance to reflect upon your behaviour. I put you in a very different category to your co-accused but this offence clearly does pass the custody threshold. Giving you appropriate credit the sentence is one of 21 months’ imprisonment. I then consider the sentencing guideline for the imposition of custodial and community sentences, and I am satisfied in your case that there is a reasonable prospect of rehabilitation. I therefore suspend that sentence for a period of two years."
[28]Although not replicated in her sentencing remarks, it is an irresistible inference that the judge settled on category 1B for the reasons discussed with prosecution counsel and in the light of the significant concessions made by prosecution counsel during submissions that we have outlined above.

The Solicitor General's submissions

[29]In support of the submission that the case fell within category 1A, the Solicitor General relies upon the features originally identified in the prosecution sentencing note. Although the offender did not administer alcohol to V, it is submitted that her level of intoxication helped to facilitate the commission of his offence. It is asserted that the offender was aware of the actions of his co-defendants (ie the multiple rapes over a prolonged period), that she had disclosed that she lived in a children's home, and that he could not have been unaware that she was particularly vulnerable; and it is submitted that the disparity in age is significant within the meaning of the guideline.[30]In oral submissions that were measured and all the more powerful for that, Ms Robertson for the Solicitor General highlighted the factors that could be said to go either to categorisation or to be taken into account as aggravating features. She maintained that category 1A would be correct but allowed that this might be a case that falls into the gap in category ranges that exists between a case falling into category 1A and one falling into 1B. Even if the case falls into the gap, she submits that the case is so serious that it was not possible properly to pass a sentence that was capable of being suspended.

The offender's submissions

[31]For the offender, Mr Byrne effectively repeats the submissions he made in mitigation, placing considerable weight on the fact that the judge had heard the trial and observed the offender throughout and was therefore in the best position to assess the seriousness of his offending and the prospects for rehabilitation. If it was open to the judge to pass a suspended sentence, he also relies upon a pre-appeal report which records that the offender has engaged throughout. He relies upon that report as providing a degree of retrospective support for the judge's approach.

Discussion and resolution

[32]The Solicitor General is of course not bound by the stance taken by the prosecution at trial. That said, the observations made by prosecution counsel were measured and are themselves a significant indicator of the true seriousness of the offender's conduct, coming from experienced and competent prosecuting counsel at the end of the trial. It is also to be remembered that on V's evidence, the manner and circumstances of the offender's conduct when committing the offence to which he pleaded guilty were markedly different from that inflicted on her routinely by his co-defendants. Third, there is force in the submission that the difficulties affecting the offender would have been present at the time and we do not think it was outlandish for Mr Byrne to submit that the offender's level of functioning would have been closer to that of the complainant than mere chronological age would suggest. The judge was entitled to accept that submission, as she did expressly in her sentencing remarks. None of these features is determinative of the outcome of the reference but all should be given considerable weight.[33]The purpose of the guideline is of course to provide a structured approach to assessing the seriousness of a defendant's conduct. In our judgment the discussion with prosecuting counsel provides a reasonable response to the features relied upon by the Solicitor General. There was no evidence that the offender himself used alcohol on V to facilitate the offence. We note in passing that V having consumed alcohol was rightly treated by the judge as an aggravating feature, but the evidence does not establish that V was highly intoxicated at the time of this offence; and it was accepted by trial prosecution counsel that because the offender's offence happened early on, the offender may not have been aware of the dreadful pattern that later developed. That is supported by prosecution counsel's observation that the offender was kept out of the loop and just happened to be there, which in turn feeds into the judge's consideration of specific targeting of a particularly vulnerable child. V was undoubtedly vulnerable, but the factual account set out earlier in the reference and in this judgment does not obviously or necessarily support a finding of specific targeting of V within the meaning of that provision of the guideline.[34]Lastly, although undoubtedly borderline, the discussion of the disparity of age with prosecution counsel and Mr Byrne's submission about chronological age requires a nuanced approach based upon the particular characteristics of the offender in addition to simple chronological age, not least because prosecution counsel accepted that the judge could take the view that the disparity in the present case was not sufficient to trigger that particular provision of the guideline.[35]For the avoidance of any doubt, we would unhesitatingly accept and endorse that in many if not most cases a disparity of ages between a 21-year-old offender and a 15-year-old victim will qualify as a significant disparity within the meaning of the guideline. We emphasise that our decision is specific to the facts and findings of the present case and cannot be relied upon as setting any form of precedent or establishing any sort of principle, save possibly to repeat what is well known, namely that in an individual case chronological age may not tell the whole story.[36]In these circumstances we consider that it was properly open to the judge to approach the factors relied upon by the Solicitor General in the manner suggested by trial prosecution counsel. Specifically, it was open to her to say that she was not obliged to treat the case as falling within category 1A for the reasons we have discussed. That would mean that the case was formally to be treated as falling within category 1B, with the starting point and category range that we have already identified. The judge properly recognised the aggravating features and was right to treat the case as falling towards the top end of category 1B.[37]This was a humane and carefully considered sentence by a judge who had observed the offender closely throughout the trial and was fully aware both of what he did to V and of his own personal characteristics and the aggravating and mitigating features that she had to balance. It may also be described as a lenient sentence. It was at the bottom end of the range of sentences that the judge could properly impose on him. It is properly arguable that it was unduly lenient, but if it was, we are not persuaded that we should intervene. We therefore give leave but dismiss the reference.

Cited in 1 later judgment