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 IN THE COURT OF APPEAL CRIMINAL DIVISION [2024] EWCA Crim 1862 | No. 202303923 A5 |
Royal Courts of Justice
Before:
LORD JUSTICE EDIS
MR JUSTICE MORRIS
HIS HONOUR JUDGE PETER JOHNSON
REX
V
SADI-UL-HUQQ SADI
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REPORTING RESTRICTIONS:
THE PROVISIONS OF THE SEXUAL OFFENCES (AMENDMENT) ACT 1992 APPLY
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Ms. P. Brada appeared on behalf of the Applicant.
The Crown were not represented.
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JUDGMENT
MR JUSTICE MORRIS:
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.
This is a renewed application for leave to appeal against sentence, leave having been refused by the single judge.
On 15 April 2023 in the Crown Court at Birmingham the applicant was convicted of an offence of sexual activity with a child, contrary to section 9(1) of the Sexual Offences Act 2003. On 7 November 2023 the applicant was sentenced for that offence to 30 months' imprisonment.
The facts
In October 2018 the applicant began tutoring C1, who was then aged 15, in mathematics. Lessons took place at C1's home address. During a lesson on 30 November 2019 the applicant sexually assaulted her. As the lesson progressed, the applicant's inappropriate behaviour towards her escalated. He repeatedly moved her hair, touched and stroked her neck and slipped his hand inside her top, touching her right breast. C1 told the applicant, "No", and pushed his hand away. She quickly left the room, locking the applicant inside. The applicant banged on the door, asking to be let out, whilst saying, "She misunderstood me". The police were called and applicant was arrested at the property. During his police interview he denied the offence. The applicant was of previous good character.
The sentencing remarks
In her sentencing remarks the learned judge described the facts of the offence in some
detail. The applicant had no previous convictions, and she had read the numerous positive character statements which pointed to a positive good character. She took account of the letters from his family and the impact upon them of immediate incarceration. She also noted the on-going impact of the offence upon the complainant. She found that the offence fell within category A2 of the relevant sentencing guidelines. As regards culpability, there was abuse of trust, a significant disparity in age, and effectively, grooming behaviour. She found that the conversations leading up to the fateful day themselves stepped over the line. Category A2 has a starting point of 3 years' imprisonment.
The offence was aggravated because it took place in C1's home, where he had been invited in and he was trusted, not only by the complainant, but by her mother as well. The judge accepted that the applicant had lost his good name and his employment and had brought shame on his family, but she observed that he had let down fellow teachers, especially home tutors who provide a vital service to young people. The judge also noted that in the Pre-sentence Report the applicant continued to take limited responsibility for his actions.
The judge reduced the starting point from 3 years to reflect the fact that the sexual assault was short-lived and this was the first time he had crossed the line. As to whether to suspend the sentence, the learned judge said that she had reflected very carefully on this case but concluded that the offending was so serious that only an immediate sentence could follow.
The Grounds of Appeal
By his grounds of appeal, as developed in oral argument today by Ms Brada, the applicant contends, first, that the sentence was manifestly excessive; secondly, that the learned judge should have started at the bottom of the sentencing range, and thirdly, that the learned judge did not apply the factors in the Sentencing Guidelines for imposition of custodial and community sentences and the Pre-sentence Report had recommended a three-year community order as an alternative to immediate imprisonment. In addition, Ms Brada relies upon the case of R v Ali [2023] EWCA Crim 232, addressing the issue of the current high prison population.
In her succinct and helpful oral submissions today Miss Brada emphasised that the offence was one short-lived incident; it had taken four years before it came to trial; the incident had lasted less than an hour. She also submitted that whilst there had been grooming on the day, it had not been going on for a number of weeks. She drew attention again to the recommendation in the Pre-sentence Report.
Discussion
We do not consider that on the facts of this case a sentence of 2 years and 6 months was manifestly excessive. It is not disputed that the judge was correct to find the offence to fall within category A2 in the relevant guidelines with a starting point of 3 years. We note, in particular, that there were three distinct factors falling within the culpability A category. There was, additionally, at least one aggravating factor which would justify an increase above that starting point. The judge then properly took account of the relevant mitigation, including both no prior convictions and previous good character (even though the guidelines suggest that this latter factor is of limited weight in a case of this kind). Taking account of these matters, she reduced the sentence from the 3-year starting point to 2 years, 6 months. In our judgment, there was no justification for reducing the sentence below that to the bottom of the range, namely 2 years.
As regards the alternative of a community order, we consider that the judge was entitled to conclude that the case passed the custody threshold and that a custodial sentence was required. As regards suspension of the sentence, we respectfully agree with the single judge when he said in refusing leave:
"It may be that frank admissions at the outset, coupled with an early plea and remorse might have enabled a court to impose a suspended sentence. But thatdid not happen, and so that sort of mitigation was absent here."
Finally, even if the sentence had been reduced to two years, we do not consider that the case of R v Ali would justify suspension, as there are no independent exceptional factors in this case to support suspending the sentence, and given the length of imprisonment.
Accordingly, it is not arguable that the sentence was manifestly excessive or the failure to suspend was wrong in principle. For these reasons, we refuse leave to appeal.
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