R v Jamie Rushton

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 life time, 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. The prohibition applies unless waived or lifted in accordance with section 3 of the Act.

On 9 December 2022 in the Crown Court at Wood Green before His Honour Judge Ezzat, the applicant changed his plea to guilty on one count of sexual assault contrary to section 3 of the Sexual Offences Act 2003. On 30 May 2023 he was sentenced by the same judge to a term of 18 months' imprisonment. A second count of voyeurism was ordered to lie on the file in the usual terms. He applies for an extension of time of 27 days in which to renew his application for leave to appeal against sentence following refusal by the single judge. The issue of whether time should be extended depends upon whether we consider the proposed appeal to be arguable.

The applicant and the complainant were colleagues working at a veterinary practice. On 24 June 2017 they and other colleagues attended an annual conference organised by their employer. The events ended in a black tie dinner. The applicant was a veterinary surgeon. The complainant had started out as a receptionist at the practice but she undertook training and became a veterinary nurse. The two of them worked together. They had a close and friendly working relationship.

On the night of 24 June, the complainant attended the black tie dinner. During the course of the evening she drank heavily. She did not recall the evening coming to an end. She next remembered waking up on the morning of 25 June in the applicant's bed, still wearing the red dress that she had worn the evening before. He was sitting on the opposite side of the room. The complainant concluded that she must have been drunk at the end of the evening and that the applicant had given up his bed for her. She went to breakfast with her friends and gave little further thought to the events of that night.

In 2019 the applicant's then wife found both moving and still images on a memory stick. These showed a woman in a red dress passed out or asleep, and the applicant touching her and adjusting her body so that he could see and feel her genitalia. It then took two years for the police to be able to establish who the person in the red dress was. It was the complainant.

The applicant was charged in relation to his behaviour on 2 February 2022. He initially denied the offence. He said that he had derived no sexual gratification from his actions and had reasonably believed that the complainant consented to his behaviour. He subsequently pleaded guilty three days before the date set for his trial, on a basis which asserted that he and the complainant had been involved in a consensual sexual relationship. That led to a Newton hearing, which took place on 15 May 2023. The judge rejected the applicant's contentions.

The applicant was aged 45 at sentence. Before this offence he was of previous good character. We have read the pre-sentence reports. The author said that the applicant is very articulate. He presents as an intense character and had bombarded her with huge amounts of information. It was clear that he was extremely anxious and did not want to be perceived as a sexual predator. However, in the view of the probation officer he intellectualised issues and she was not sure how much he truly understood the impact of his actions.

The author referred to images which have been found on devices belonging to the applicant. The applicant maintained that the photographs were not for sexual gratification. The author disagreed. The PSR also referred to the applicant's obsessive compulsive disorder and we have read a series of psychological and psychiatric reports in relation to the applicant.

In his sentencing remarks the judge referred to the delay in the case and said that this was attributable to the time it took for the images to be discovered on the applicant's phone, and for the victim to be identified. Any further delay thereafter had resulted from the way in which the applicant had conducted his defence.

In relation to the mitigation advanced on the applicant's behalf, the judge drew particular attention to the insight he had gained in listening to the applicant's evidence at the Newton hearing. He said that he did not detect any real remorse in the applicant. This was in part because he got the impression that the applicant did not really think he had done anything wrong. The guilty plea was an acceptance he had broken the law, but it was not an acceptance that what had happened was wrong. The judge referred to the serious effect the prosecution had had on the applicant's career, but he said that this was simply the result of his own conduct.

The judge then said this:

The judge then explained that the offence fell within category 2A, and how he arrived at the length of the custodial term. He made it clear that he did not hold in any way against the applicant the outcome of the Newton hearing. On the question of whether the sentence should be suspended ,the judge said that whilst the applicant was a man of previous good character, the offending was so serious that only an immediate term of imprisonment was appropriate.

The grounds of appeal, initially settled by counsel, raise two issues. First, it is said that in rejecting the applicant's personal mitigation, the judge failed to have regard to the absence of any further offending over a five year period since the offence took place, together with the evidence from psychologists of issues affecting the applicant and needing to be addressed, and which would be better addressed in the community. Second, it is submitted that the sentence should have been suspended.

In refusing leave to appeal against sentence, the single judge said this:

The applicant has subsequently submitted to the court grounds of appeal of his own composition in support of his renewed application. They are 31 pages long, and somewhat diffuse. We have considered them. In summary the applicant advances the following four points:

Those third and fourth grounds are entirely new grounds of appeal. According to R v James [2018] 1 WLR 2749 they should have been the subject of an application to amend the notice of appeal, with sufficient reasons identified to justify allowing such amendments. We have, nonetheless, considered whether either or both of those grounds are arguable.

As regards ground 3, this is misconceived. The judge made it clear in his sentencing remarks that he did not hold the fact that the applicant was unsuccessful in the Newton hearing against him. That did not prejudice him as regards the sentence imposed. In any event, the judge’s findings on lack of remorse are not open, sensibly, to challenge.

Ground 4 relates to the sexual harm prevention order which lasts for a period of 10 years. It was considered by the judge at the sentencing hearing. Leading counsel who then appeared for the applicant made limited submissions about only two of the provisions in the draft order. The judge accepted those submissions in the applicant's favour. It does not appear that there was any other criticism by counsel of the terms of the order. Nevertheless, we have reviewed those terms. They are provisions which frequently appear in orders of this nature. They arose out of the specific circumstances of this offence to which the applicant pleaded guilty, together with the images to which we have referred. In our judgment there is no conceivable basis upon which it could be argued that any of those terms were disproportionate, or otherwise inappropriate.

That simply leaves the first two proposed grounds of appeal. Despite the extensive submissions which the applicant has put forward in support of those arguments, we consider that there is no merit in them, essentially for the reasons given by the single judge. Accordingly, this renewed application for leave to appeal against sentence, together with any informal application for leave to amend the notice of appeal, are refused.