R v Morteza Azizi-Safa

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.

On 15^th March 2023, following a trial in the Crown Court at Bradford, the appellant (then aged 68) was convicted of indecent assault, contrary to section 14(1) of the Sexual Offences Act 1956. He was acquitted of counts 1 and 2 (rape) and count 4 (indecent assault).

On 15^th May 2023, he was sentenced to three years' imprisonment and made subject to a restraining order, pursuant to section 360 of the Sentencing Act 2020, for five years.

The appellant now appeals against sentence by leave of the single judge.

At the date of his sentence, the appellant was aged 68. He had no previous convictions.

The events charged in the indictment were alleged to have taken place between 8^th July 1996 and 8^th July 1997, when the complainant was aged 15. The count upon which the appellant was convicted was therefore one of a number of charges of a more serious character of which he was acquitted. Count 3, of which he was convicted, read thus:

All four counts were tried together. Count 3, on which the appellant was convicted, was an allegation concerning the first time that the complainant and the appellant had allegedly had sexual intercourse. There was no charge of having sexual intercourse, the Crown explained, because by the date of the indictment the offence of having unlawful sexual intercourse was statute barred. The alleged offences were charged under the then contemporary statute, namely section 14 of the Sexual Offences Act 1956, indecent assault on a woman, for which the maximum penalty was ten years' imprisonment. That section was in force between 1^st January 1957 and 30^th April 2004.

The way in which the case was put against the appellant by the prosecution at trial was as follows. When the complainant was aged 14, she began working for the appellant. The appellant would give her gifts such as cigarettes, money, necklaces and earrings. He was generally very nice to her and always said that she looked beautiful and he called her his "baby". She said that he would touch her ears and neck and come up behind her when she was opening the fridge.

When the complainant was aged 15, she and the appellant entered into a relationship. The first sexual encounter between them was alleged to have taken place around 1996 or 1997, when he was aged 41 or 42. He took her back to his bungalow and whilst they were in bed together, he pressed his penis against her vagina (on the outside) and simulated sex until he ejaculated. That was the count 3 allegation. They went on to have sexual intercourse, to which the complainant did not say she was unwilling, but to which she could not in law consent.

Their relationship continued and they went on to have further consensual sexual intercourse. The complainant and the appellant gave very different accounts of the relationship.

Following his conviction, a pre-sentence report was prepared. Its author assessed the appellant as posing a low risk of general offending and a low risk of serious re-offending. As a result of the fact of this conviction, he was necessarily regarded as a medium risk to female children. He was not assessed as posing any significant risk of harm to the public. The report recorded his fear that he would die of shame in prison. It recognised the possibility of a custodial sentence, but made a recommendation that he be made subject to a community order for a period of 18 months, with a requirement of a number of days of rehabilitation activity.

The evidence before the court on mitigating matters revealed that the appellant had health problems and suffered with depression. He had been prescribed antidepressant medication, Sertraline and a number of other medications. He also suffered with angina, diabetes and high blood pressure.

The Guideline for historic sex cases – Sexual Offences Historical: Sentencing – indicates that a section 14 offence of indecent assault on a woman had a maximum sentence of ten years' imprisonment. That offence did connote penetration. Further, the definition of a child has changed over time. The note to the guidance indicates that on 11^th January 2001 the age definition of a child increased from under 14 to under 16; hence the charge under section 14. Offences of this character are now dealt with by section 9 of the Sexual Offences Act 2003, which provides so far as material:

The applicable guidance referred to by counsel before us provides:

Mitigating factors include: no previous or no relevant/recent convictions, and serious medical conditions which require urgent, intensive or long-term treatment.

For the purposes of sentence, the Crown produced a note indicating that the maximum sentence at the time of the offence was ten years' imprisonment. They invited the court to consider the equivalent offence under the Sexual Offences Act 2003, which was the section 9 offence. They submitted that harm was category 1: penetration of the vagina; and culpability A: there was grooming behaviour (the jewellery and other such gifts). The starting point was therefore five years' imprisonment, with a range of four to ten years.

On behalf of the appellant, the defence, acknowledging that it was culpability A, submitted that it was category 2: touching, or exposure, of naked genitalia, not penetration. As counsel pointed out orally to the Recorder, the Crown had put its case as non-penetrative activity; sexual intercourse was not charged. That is clear from the extract from the indictment which we have set out above.

Before the Recorder, there was admitted by the defence to be a significant disparity of age (27 years) and grooming behaviour. The defence had also submitted in terms that the appellant had been convicted only of count 3. Category 2, culpability A had a starting point after trial of three years' imprisonment, and a category range of two to six years. It was submitted that this would clearly have been appropriate.

Counsel submitted to the Recorder that the sentence should be suspended. She said:

When he passed sentence, the Recorder said:

On behalf of the appellant, Miss Shepherd argued in her application that the Recorder failed to have sufficient regard to the jury's acquittal on counts 1, 2 and 4 and the resulting sentence was manifestly excessive. She submits that the offence for which he was sentenced was a single, isolated offence; that the aggravating feature of grooming was less apposite to the single count of indecent assault, rather than to a multiple incident count; that there was an element of double counting in citing the disparity of age as an aggravating factor (which determined the sentencing character); that no regard was had to the maximum sentence, which was ten years' imprisonment for the offence of indecent assault, (as opposed to the maximum sentence of 14 years' imprisonment for sexual activity with a child), which should have attracted a downward reduction from the starting point; that in light of the appellant's previous good character and personal mitigation, the sentence should have been reduced to two years' imprisonment or less; and that the sentence should have been suspended. Further, it is said that an immediate custodial sentence of three years' imprisonment was not inevitable or warranted; the starting point should have been 24 months or less.

In admirably succinct submissions before us this morning, Miss Shepherd has repeated the framework of her appeal.

We say at once that we accept that the Recorder has fallen into error. We accept that he failed to have sufficient regard to the acquittal of the appellant on counts 1, 2 and 4. Further, and importantly for the purposes of categorisation, count 3 did not allege penetration. It was an allegation under the 1956 Act and quite distinct in scope, and different in terms of penalty.

It appears to us from his remarks that the Recorder may have been encouraged to consider an offence which was in truth not equivalent to the 1956 Act offence. Category 1A considerations under the 2003 Act guidance were relied upon by the Crown, which did not apply to the facts of this charge. Correctly, reference was made to the maximum sentence of ten years' imprisonment under the 1956 Act. We understand that the conclusion reached by the Recorder may well have been as to a sentence by reference to category 2A of the modern guidelines, although it is not entirely clear to us that that is the case.

Accordingly, we accept the submission that the Recorder fell into error in taking too high a starting point. Essentially, he failed to give weight to the fact that the appellant had been convicted of a single count. The circumstances clearly put the offence within category 2A, as had been submitted at first instance.

As a single, isolated offence, it was said the aggravating factor was less apposite, given that the appellant was convicted of only the one offence. Nonetheless, we bear in mind that the grooming aspect was a real part of the nature of the offence which was charged. We are however of the view that, in any event, the sentence was too long in the circumstances. In light of the appellant's previous good character and his personal mitigation, in our view the offence should have attracted a starting point of two years' imprisonment. Further, there is no indication that the mitigation advanced was taken into consideration. We would reduce that sentence further by reason of the mitigation, as it was advanced to the Recorder, and as we have set it out.

In the present case there was an argument for a suspended sentence. It was said that the offence took place took place a long time ago, and there had been no previous, nor indeed subsequent, offending. Further, the appellant was not considered to be a danger to the public.

However, the circumstances of the sexual activity, although unusual, were serious. They were aggravated by the age disparity and also the fact that the appellant was the complainant's employer. The age disparity was a very significant feature in this case and does not connote, as was tentatively suggested, an element of double counting in the circumstances of this particular case.

Accordingly, we have come to the conclusion that the circumstances are so serious that we are unable to say that there was an error in the Recorder's refusal to suspend the appellant's sentence.

However, we consider that the sentence of three years' imprisonment was manifestly excessive. We quash it and we substitute for it a sentence of 18 months' imprisonment. The restraining order remains in place. Accordingly, the appellant will very shortly be released.