R v Philip Henry Mai [2025] EWCA Crim 516

[2025] EWCA Crim 516Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 11 April 2025
Before
LORD JUSTICE STUART-SMITHMR JUSTICE BRYANHIS HONOUR JUDGE MANSELL KC(Sitting as a Judge of the CACD)
Between
REXCrown- v -
Between
PHILIP HENRY MAI_____________________Mr B Williams appeared for Appellant____________________The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where an allegation has been made that 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 s.3 of the Act. The prohibition has not been waived or lifted in this case.Approved Judgment

Introduction

[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. There must be no identification of the victim.[2]On 20 December 2024, following a trial in the Crown Court at Wolverhampton before His Honour Judge Butterfield KC and a jury, the appellant, who was then aged 63, was convicted by a majority of 10:2 of one offence of sexual assault, contrary to section 3 of the Sexual Offences Act 2003 (count 2). No evidence was offered against him on count 1 (sexual assault), and a not guilty verdict was entered, pursuant to section 17 of the Criminal Justice Act 1967. The appellant was acquitted, on the judge's direction, on counts 3, 4, 5 (sexual assault) and 6 (stalking involving serious alarm or distress)[3]On 6 February 2025, the appellant was sentenced by the trial judge to 12 months' imprisonment. Ancillary orders were made.[4]The appellant now appeals against sentence by leave of the single judge.[5]The facts of the appellant's acquittal on the other counts is material to the submissions made on his behalf by Mr Williams who has represented the appellant before us as he did in the court below.

The Facts

[6]The sexual assault of which the appellant was convicted can be shortly described. On or about 2 December 2020, while at their place of work, the appellant moved behind his victim, "V", and placed his hands on her buttocks over her clothing. V described that assault as a "proper grab".[7]We shall refer in a moment to the judge's view of the context in which the sexual assault took place. In a note for the sentencing hearing, the prosecution put it this way:
"2. In brief, the [appellant] and [V] worked together … He was her manager … In her evidence she stated that he would make inappropriate sexualised remarks about both her and her relationship with her partner. He would offer to buy her clothes. … 3. The department was based in an office … At about 6 am on 2 December, [V] was printing out some labels and was bending over the printer. The [appellant] came into the office and touched her bottom over her clothing."
[8]The assault was witnessed by another work colleague who described entering the office and seeing the appellant crouching over V and touching her bottom. He noticed that she appeared to be in shock. The appellant left when the witness entered.[9]V made a Victim Personal Statement on 11 March 2023 (just over two years after the assault and 21 months before the trial), in which she said:
"I feel as though I used to be such a trusting person, but after this incident I feel as though I can't trust anyone. It feels like every man sees me in a sexual way and not as a friendly way, which has affected my relationship with people. I feel as though I have been betrayed."
[10]The appellant was aged 63 at the date of conviction. He had one unrelated conviction some 45 years before. He was otherwise of previous good character. He had worked for many years in a managerial position.[11]The judge had four character references from people who knew the appellant well and over long periods. They included one from his daughter and one from an ex-partner and mother of his child. All of the references attested to the appellant's strong work ethic, his willingness to help others where needed, and his position as an upstanding member of the community. His daughter considered him to be a good and caring person, although that could sometimes be hidden behind his determined work ethic.[12]The appellant maintained his innocence to the author of the pre-sentence report. There was, therefore, no question of remorse or acceptance of responsibility, and there was a lack of empathy for V. The author considered that the circumstances of the offence involved a significant abuse of power and a need to exert such power over the victim. The author expressed the view that the appellant's actions showed sexual preoccupation and distorted sexual thinking, and said that the appellant needed to complete structured intervention to address those issues if he was to avoid further offending. That said, the author considered that the risk of re-offending was low, except in relation to V, where the medium risk was recognised to be attenuated by the fact that the appellant had lost his job and would therefore not have contact with her. If the court was prepared to consider a sentence which did not involve immediate custody, the author of the pre-sentence report proposed a community order for 18 to 24 months, with the following requirements: first, a Rehabilitation Activity Requirement of 55 days to complete the Maps for Change Toolkit on a one to one basis; and second, if a punitive element were thought to be necessary, an unpaid work requirement.

The Sentencing Hearing

[13]The prosecution provided a short note for the sentencing hearing. The prosecution submitted that the offence fell into category 3B. It was accepted that V could not be described as "particularly vulnerable" and that no features were present that would justify a finding of culpability category A. On that basis the starting point would be a high level community order, and a category range from a medium level community order to 26 weeks' custody.[14]The only aggravating feature relied upon by the prosecution was that V considered that she had been "targeted" by the appellant who had singled her out for his attentions. It was proposed that the appropriate starting point was a high level community order, with the category range that we have just set out.[15]The defence note for sentence also submitted that the case fell within category 3B. They pointed to the recommendation in the pre-sentence report in support of a submission that a community order was appropriate.

The Sentencing Remarks

[16]In light of the materials that we have outlined above, the judge's sentencing remarks were surprisingly vehement. While it is right that the judge had presided over the trial, it is also right that the appellant had been convicted of only the one offence for which he fell to be sentenced. The judge depicted a course of conduct in which the appellant persistently abused his position as V's manager by foisting on her his unwanted attentions over a prolonged period. At the same time, he intruded into her private life "relentlessly", demeaned her at every opportunity, subjected her to sexualised jokes, and attempted to get her to talk about her underwear. The judge then held that V had been "particularly vulnerable due to her personal circumstances" because, as a lone female in the department, she had to work with the appellant at close quarters and for protracted periods, and "as I have referred to, the relentless and oppressive campaign on your part to undermine her own freedom of choice when it came to personal matters".[17]The judge then went on to hold that the offence involved an abuse of trust, because V should have been supported by the appellant as her boss, rather than being isolated and undermined.[18]But this route, the judge determined that it was a category 2A offence, with a starting point of two years' imprisonment, and a category range of one to four years. He settled on a sentence of 12 months' imprisonment, but declined to suspend it. He identified a lack of "strong" mitigation, and he apparently concluded that this was an offence where only appropriate punishment could be achieved by a sentence of immediate custody.

The Appeal

[19]Mr Williams' essential submission is that, despite saying that he was only sentencing the appellant in respect of the single offence, the judge in fact sentenced him for a course of conduct in respect of which he had been acquitted, since the other counts on the indictment were intended to reflect an ongoing campaign, as described by the judge. Mr Williams submits that the judge was wrong to re-categorise the offence as falling within category 2A, failed to have sufficient regard to the appellant's mitigation, and for these reasons came to impose a sentence that was wrong in principle and manifestly excessive.

Discussion and Resolution

[20]Having given the sentencing remarks anxious consideration, and keeping constantly in mind the advantages that the judge had as a result of presiding over the trial, we consider that there is force in Mr Williams' submissions. In our judgment, the vehemence of the judge's language and his re-categorisation of the offence show that he went beyond what was legitimate reference to the contextual background to the offence and into the realms of sentencing the appellant for that background context, rather than, or in addition to, the offence of which the appellant was convicted.[21]We accept, unreservedly, that there was an imbalance of power as between the appellant and V, which is an aggravating feature of the offence of sexual assault. We find it more difficult to accept that V was "particularly vulnerable" within the meaning of the guideline. Equally, we accept that it was an abuse of the appellant's position to commit the offence, which is also an aggravating feature. But we consider that it was stretching language close to, or beyond, breaking point to treat this as a case of "abuse of trust", as normally understood in the context of the guideline.[22]We are left with the clear impression that, viewed overall, the judge adopted too serious a view of the offence itself and too limited a view of the appellant's considerable mitigation, not the least of which was his virtually unblemished previous good character and the fact that he had lost his job as a result of this conviction.[23]We take into account the fact that the appellant has served two months' imprisonment since being sentenced, until the hearing of this appeal. Taking that into account, we consider that the appropriate disposition would have been, and would be, to accept the proposal in the pre-sentence report, which we have set out above. Such a disposal remains available to us today.[24]We therefore quash the sentence imposed by the judge and in its place we impose a community order for 12 months, with a Rehabilitation Activity Requirement of 55 days and an unpaid work requirement of 100 hours.[25]We direct that the appellant is to report to the duty officer, Kimberley Morris, at the Tamworth Probation Office, Moor Street, Tamworth B79 7QZ by 10 am on Monday 14 April 2025.[26]Accordingly, and to that extent, the appeal against sentence is allowed.