R v Faiyaz Bajwa

The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. 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.

This is an appeal with the leave of the Single Judge. On 2 September 2024, in the Crown Court at Reading, the appellant (then aged 23) pleaded guilty to six different offences. His basis of plea was accepted by the Crown and the court, which was that all the offending took place on one day, namely 28 January 2021, when the defendant was aged 19.

On 1 November 2024, at the same court, the appellant was sentenced by HHJ Rowley as follows and all the sentences passed were concurrent sentences:

The relevant facts of the offending are as follows. The index offences occurred in 2021, when the complainant, who lived in Sweden with her parents and older brother, was 8 years old. On 28 January 2021, the complainant was unwell and not at school and her father was working from home. Her father noticed that she kept going into the bathroom and subsequently the complainant gave her mobile phone to her father who was shocked by what he saw on the phone. The complainant's father took a screenshot of the appellant's profile and some of the conversation which had been taking place between the appellant and the complainant. The complainant's father discovered that the appellant was based in Reading and attended Reading College. When the complainant's mother arrived home she contacted the police and provided the photographs which had been taken.

On 4 March 2021, police officers attended the appellant's address where he was arrested. The appellant responded by stating that he had not done anything wrong and a number of electronic devices were subsequently seized by the police including a mobile phone. In interview, the appellant provided a prepared statement denying the offences and stating he had engaged in a conversation on Snapchat with a female who told him that she was 18 years old.

The appellant stated that he did not ask the female to digitally to penetrate herself but asked to see her breasts. He thereafter answered "No comment" to questions asked by the police. His phone was subsequently analysed and the index offences were found.

Count 1 related to sexual communication with a child where the appellant asked the complainant if she wanted to see the appellant's "dick" and the appellant went on to ask the complainant to make a video of "your pussy or your boobs" and the complainant sent the appellant a video. There then followed a sexualised conversation in which the appellant asked the complainant to take a picture of her full body naked. Count 2 related to the complainant asking the appellant if he wanted her to digitally penetrate herself and the appellant responded "Yeah". Count 3 involved the appellant asking the complainant if she had something to suck on like a banana and the complainant then sent a photograph of her sucking a banana. Count 4 related to the appellant asking the complainant to take and send indecent images of herself. Counts 5 and 6 related to two such images that had been recovered and were described on a Thompsonschedule.

By the time the matter came before the court for sentence the defendant was aged 23. He was born on 13 March 2002. He was of previous good character. The court was provided with a pre-sentence report and a psychological assessment.

At the sentencing hearing the complainant's mother attended in person and read out a victim impact statement which explained the impact the appellant's offending had had on the complainant but also on the complainant's family as a whole. The Crown and defence provided the judge with Sentencing Notes. The Crown referred the judge to all the relevant Sentencing Council Guidelines in respect of all the offences the appellant had pleaded guilty to. The Crown submitted that in determining the level of harm this was a case where the complainant had suffered severe psychological harm and was also particularly vulnerable due to extreme youth.

Taking the counts on the indictment the Crown submitted as follows. Count 1, which was sexual communication with a child, that this case fell within 1A of the guideline as there was significant psychological harm or distress to the victim and targeting of a particularlyvulnerable child. 1A has a starting point of 8 months' custody with a category range of 9 months to 2 years' custody. Counts 2 and 3, inciting a child to engage in sexual activity. The Crown submitted this case fell within category 2B of the guideline which has a starting point of 6 years with a range of 3 to 9 years. Count 4, causing a child to engage in sexual activity. The Crown submitted this case fell within category A for culpability because sexual images of the complainant were retained. As to harm the case fell within category 2 for reasons we have explained. The relevant guideline provides that a 2A case has a starting point of 8 years with a range of 5 to 10 years. Count 5 permitting indecent photographs to be taken of a child, one moving category B indecent photograph. The Crown submitted this has a starting point of 26 weeks' custody and a range of high-level community order to 18 months in custody. Count 6, permitting indecent photographs to be taken of a child. Two moving category C indecent photographs. The Crown submitted that this has a starting point of a high-level community order and a range of a medium community order to 26 weeks' in custody. The Crown reminded the sentencing judge of the totality principle.

Save for counts 5 and 6, the issue between the parties at the sentencing hearing was whether it was correct, as the prosecution had submitted, that to categorise the appellant's offending on the basis that in the relevant guidelines there was significant psychological harm and/or the complainant was particularlyvulnerable due to extreme youth or personal circumstances. The judge having heard submissions from counsel considered each offence in turn and accepted the Crown's submission, together with the starting points the Crown have identified for each offence by reference to the relevant guidelines. The judge identified that count 4 was the most serious offence.

The judge also referred in her sentencing remarks to all the mitigation which had been placed before her, which included the pre-sentence report, the psychological report of Michelle O'Sullivan, that the appellant had struggled at school, the character references from the appellant's family, that the appellant had expressed genuine remorse, the support provided by the appellant's family, that he had recently sought professional help from an addiction specialist and therapist and that he had no previous convictions. The psychological report identified that there were limitations to the appellant's communication and that he had scores which were potentially suggestive of autism-related characteristics and neurodevelopmental presentations. The judge said that she balanced that evidence against the fact that the appellant was 19 at the time he committed the offences.

Then in passing sentence the judge said this:

The judge then continued by saying:

The judge then explained what that sentence meant to the appellant.

The appellant appeals against sentence on the ground that the judge's starting points for sentence were too high before reductions for the guilty pleas and other mitigation and as a result the sentence imposed should have been 2 years' imprisonment or less which could then have been suspended. In his submissions to us today, Mr Phillips has recognised that the sentence which would have been more appropriate was one that was more in line with 3 years' imprisonment, and has not pursued the point about suspension. The appellant does not take issue with the sentences passed on counts 5 and 6. Mr Phillips for the appellant submits as follows. First, there was no evidence to suggest the complainant suffered significant psychological harm or distress and the judge's categorisation of count 1 as category 1A was wrong. It should have been 2A with a starting point of 1 year’s custody. Mr Phillips submits that on the facts of this case 1 year’s custody was the correct starting point before discount for personal mitigation and guilty plea. Second, the victim was aged 8 and there is no evidence that she was particularly vulnerabledue to extreme youth and/or personal circumstances and there is no evidence of severe psychological harm. This means that judge’s categorisation of counts 3 and 4 as 2B was also wrong. The judge, on the evidence before her, should have characterised this offending as 3B under the guideline which has a starting point of 2 years' custody. That Mr Phillips submits was the correct starting point for discount for mitigation and guilty plea. Third, making the same points on evidence in relation to harm, Mr Phillips submits that the judge's categorisation of count 4 was wrong. The appellant accepts that this was a culpability A case, as sexual images of the complainant were recorded and retained. However, he maintains that, on the evidence before the judge, there were no category 1 or 2 factors present as to harm and she should have categorised this as an offence 3A which has a starting point of 5 years' custody and a range of 3 to 8 years' custody. Mr Phillips maintains that in relation to count 4 the correct starting point was 4 years' custody before discount for mitigation and guilty plea. Fourth, Mr Phillips submits that applying the principle of totality, this meant that the overall sentence on indictment before taking into account questions of mitigation for credit for early guilty plea should not have exceeded 4 years. That was not a submission he pursued in his oral submissions as we have explained. He did not pursue the point that this was a sentence which could have been suspended.

The judge was correct to identify count 4 as the most serious offence. This is a case where it was accepted that all the offending took place on one day. In terms of structuring the sentence the judge could have identified count 4 as the lead offence and regarded all the other offending as aggravating that offence. The judge did not take that approach and the question we have to decide is whether the sentence of 4 years' imprisonment was manifestly excessive having regard to the seriousness of the appellant's overall offending. The answer to that question in this case turns on whether the judge correctly assessed the harm caused to the complainant based on the evidence before her and whether the judge correctly assessed the complainant's level of vulnerability.

We consider this question starting first with count 4. The relevant guideline is causing or inciting a child under 13 to engage in sexual activity. There is no dispute that this was culpability A. Severe psychological harm will place a case in category 2A. It has a starting point of 8 years. The dropdown box in the guideline as it appears on the Sentencing Council's website explains that the sentence levels in the guideline take into account a basic level of psychological harm which is inherent in the nature of the offence. The guideline goes on to explain that:

The evidence before the judge about the impact the offending had had on the complainant was contained in her mother's impact statement and she had travelled from Sweden to read this out in court. In this statement her mother explains that the complainant was scared and told her that it was open "all very scary" and that her daughter began to shut down and became scared of everything and that her daughter was not sure of who or what she could trust. Her mother explained that they as a family were faced with the worst time as they watched "our once very confident happy girl turn into somebody we didn't recognise" and that she did not laugh. Her laugh had been taken away. Her mother said that after what the appellant had done she had struggled to get her daughter to go to school for the next few years and that they had to work really hard at helping her heal and process what had happened. Her mother explained that, at 12 years now, the complainant still does not want to sleep alone and now that she is older:

The judge accepted this evidence and found that the complainant had been left unable to sleep in her own bed and had become scared of everything and a confident little girl had been turned into somebody her family did not recognise. The judge determined that this was severe psychological harm and therefore within category 2 harm.

Mr Phillips, for the appellant, submits that this does not provide evidence of severe psychological harm and that although there are features of serious psychological harm it does not meet the threshold of severe psychological harm. This he submits is because some of the features one would expect to see including self-harm are not present. However, in his submissions before us today Mr Phillips submits that this is one of those borderline cases which falls between categories 2A and 3A and this is a case which falls within the overlap of those two categories either being at top end of 3A or the bottom end of 2A.

In our view, this is a case where there was just sufficient evidence before the judge to categorise this as a case where the complainant had suffered severe psychological harm. However, once placed in category 2A in the guideline the starting point would need to be adjusted downwards to reflect the fact that there was just sufficient evidence to place the case in that category. Mr Phillips’s second point is that the complainant at the age of 8 was not a child who was particularly vulnerabledue to extreme youth and/or personal circumstances. We agree. On the facts of this case that is correct. This means that in relation to count 4, this was a category 2A offence, which has a starting point of 8 years' custody with a range of 5 to 10 years. If the judge had placed it in category 3A, there would have been a starting point of 5 years' custody and a range of 3 to 8 years and if the case had been placed in that category there would have needed to be an upward adjustment to reflect the serious impact the appellant's offending had had on the complainant.

In the light of those conclusions we can take the other counts more briefly. Turning now to counts 1 to 3 and 5 and 6. Count 1 should have been categorised as 1B offending under the Sentencing Council Guideline for Sexual Communication with a Child. This is because there are category harm 1 factors present but no category A culpability factors present. That gives a starting point of 1 year's custody with a category range of a high-level community order to 18 months' custody. Counts 2 and 3 should have been categorised as 2B offending under the Sentencing Council Guideline for causing or inciting a child under 13 to engage in sexual activity. This is because there are category 2 harm factors present and no category A culpability factors present. That gives a starting point of 6 years' custody and category range of 3 to 9 years' custody. There is no issue with categorisation of counts 5 and 6. The judge correctly identified all the mitigating features in this case.

Having considered all those matters the next question is whether the total sentence of 4 years' custody was manifestly excessive. This, as we explained is a case where the events all took place in one day, and we consider it would have been preferable to approach the sentencing by taking count 4 as the lead offence. We consider that once the offending on count 4 is placed in category 2A, there needs to be a downwards adjustment from the starting point of 8 years to 6 years to reflect the fact that we consider that although the judge was entitled to categorise this case as severe psychological harm the evidence only just met that threshold. The offending is then aggravated by the five further offences, which all took place on 28 January 2021 and reflect a course of conduct by the appellant. That takes the notional starting point up to somewhere in the region of 6½ years before discount for personal mitigation and guilty pleas. We agree with the judge's approach to the personal mitigation available to the appellant who at the time was only 19. Standing back and with totality in mind, we are of the view that the just and proportionate sentence in this case was 3 years 3 months. That means that the sentence on count 4 was manifestly excessive.

We therefore quash the sentences on counts 2, 3 and count 4. We impose a sentence of 2 years 6 months' imprisonment on count 2 and a sentence of 2 years 6 months' imprisonment on count 3. On count 4, we impose a sentence of 3 years 3 months' imprisonment. Those sentences are all to run concurrently.