R v Roy Mackenzie

The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. 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 the offence. This prohibition applies in respect of the victim in this case. She will not be named in this public judgment.

On 5 June 2025, in the Crown Court at Bristol, His Honour Judge James Patrick sentenced the appellant to 20 months' imprisonment for two offences of sexual assault on a female, contrary to section 3 of the Sexual Offences Act 2003. Further, the appellant was ordered to pay the statutory surcharge.

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

At the time of these offences, the appellant was the store manager of the Co-op store in Bath. He was then aged 38. The victim was a university student who was working at the store as a shop assistant. On 24 February 2024, the victim did not attend a work social event. The appellant contacted her via WhatsApp and asked why she was not there. He had been drinking since mid-afternoon and was watching rugby. The appellant suggested in a message that the victim would make a great hooker. He explained that "hooker" is a rugby position and added that he thought she would be an expert on positions. He said that he could say worse but that he would get into trouble and did not want an HR complainant against him.

Later in the evening, the appellant messaged the victim's housemate and said that he was on his way to their house and that he would be sleeping with the victim. At about 2 am, the appellant turned up at the house and was let in by the housemate. He then entered the victim's bedroom and climbed into her bed. He tried to pull her close and turn her around. She repeatedly told him to leave, but he refused claiming that she was in denial. The victim bit the appellant's arm as hard as she could, but he persisted. He then ran his hands over her shoulder and down across her breasts and underneath her top. He moved his hands down to the victim's pyjama shorts, first over her clothing and buttocks and then under her clothing. The victim tried multiple times to get the appellant to stop, but he kept telling her to be quiet and insisting that she was in denial. She was eventually able to extricate herself from the situation. She told her housemate that she did not feel safe, and she left to go to a friend's house.

Subsequently, the victim reported sick for work. The appellant texted her, saying that he appreciated that she might not want to talk to him. He said that he was really sorry if he had upset her or made her feel uncomfortable in any way. He said that he would like to talk to her and volunteered that he had paid her for two weeks' sick leave.

When he was interviewed by the police, the appellant said that he had needed somewhere to sleep that night. He claimed that his messages were banter and that his comment about sleeping with the victim was nothing more than a joke. He said that the victim had not given any indication that his getting into her bed was a problem. He said that he did not recall touching her breasts or bottom.

In a victim personal statement, the victim described how she had struggled with her mental health following this incident. She had lost all her confidence. She felt overwhelmed and suffered anxiety attacks. She lost all trust in other people, struggled to socialise, and fell behind with her university studies. She had been prescribed medication, but found that it made her feel very numb. The victim said that she had not felt able to go back to the house where the offences had taken place. She had moved back onto campus and into university accommodation, even though she was contractually committed to paying rent on her house until August. In the following academic year, she had rented a more expensive house with greater security.

The appellant had no previous convictions.

The judge had a pre-sentence report. The appellant told the author of the report that he had drunk too much on the night of these offences and had missed his last train home. He said that there was workplace banter, but that he understood the importance of professional boundaries. He expressed his remorse.

The judge considered the guidelines issued by the Sentencing Council for offences of sexual assault. He found this to be a case of medium harm in that the offences involved the touching of the victim's naked breasts and the incident was sustained. The judge found this to be a higher culpability case because he said that the appellant acted in breach of trust as the victim's manager and did so in her own home.

The starting point for a category 2A offence was two years' imprisonment with a category range of one to four years. The judge said that the offending was aggravated by the location and timing. The judge also took into account that the victim had been compelled to leave her home, and the significant psychological effect upon her.

Turning to mitigation, the judge said that the appellant was a hardworking man of previous good character. In addition, the judge identified a number of other mitigating features: remorse; the steps taken by the appellant to reduce his alcohol intake; his active role in his son's life; and the fact that he was in a relationship and cared for young children.

After taking into account the aggravating and mitigating factors, the judge concluded that the sentence after trial would have been three years' imprisonment. After full credit for his guilty pleas, the judge indicated that the appropriate sentence would be two years' imprisonment. The judge then made a further reduction to reflect the delay in the criminal proceedings and the effect of current prison conditions, to arrive at the final sentence of 20 months' imprisonment.

The judge next considered the imposition guideline in order to determine whether the sentence should be suspended. He accepted that the appellant did not pose a risk of danger to the public; that there was no history of non-compliance with court orders; that there was a realistic prospect of rehabilitation; and that the appellant's imprisonment would have a harmful impact on others. He concluded, however, that appropriate punishment could only be achieved by the imposition of an immediate custodial sentence.

In her able and clear submissions, Emily Heggadon, who appears for the appellant as she did below, argues that the judge was wrong to find that this offence amounted to an abuse of trust and therefore to find higher culpability. She argues that the judge consequently adopted a starting point that was too high and that the sentence of 20 months' imprisonment was manifestly excessive. Further, she argues that the sentence should have been suspended.

The judge had found high culpability on the basis that these offences amounted to an abuse of trust. In its guideline, the Sentencing Council gives this further explanation of this aggravating feature:

This court has considered this aggravating factor in a number of cases. The modern leading authority is R v Forbes [2016] EWCA Crim 1388; [2016] 2 Cr App R(S) 44. But particularly useful guidance was given to the proper application of this aggravating factor to managers who assault more junior employees in R v Ashton [2015] EWCA Crim 1799; [2016] 1 Cr App R(S) 32, and R v Nilmoni Singh [2020] EWCA Crim 1366. Further, there is a useful review of the authorities in this area by Popplewell LJ in R v Oprea [2021] EWCA Crim 1695.

In Ashton, Mr Ashton ran a bar with his partner. He had come to know the victim, who was half his age, as a customer. Subsequently, Mr Ashton offered the younger man bar work before he went on to commit serious sexual offences against him. This court found that the judge had been wrong to find that the case involved a breach of trust although it stressed that there was not total equality between the two men and that the difference in age and circumstances should properly have been reflected as aggravating factors.

In Singh, Mr Singh was a restaurant manager who sexually assaulted a waitress in his restaurant. In giving the judgment of the court in Singh, Holroyde LJ stressed, at [39], the fact-specific nature of the inquiry, but added that Ashton illustrated the important point that the mere existence of an employer/employee relationship was not of itself sufficient to justify a finding that there was a breach of trust. In Singh, this court again concluded that the judge had been wrong to find an abuse of trust.

In this case the judge explained there was an abuse of trust in these terms:

We certainly agree that the significant difference in age and status, and the fact that these offences were committed in the victim's home were very serious aggravating factors. In our judgment they were not, however, sufficient justification for a finding of an abuse of trust. After a careful consideration of the facts of this case, we conclude that the judge was wrong to make a finding of abuse of trust and that these were category 2B offences. Accordingly, the proper starting point was 12 months' imprisonment, with a sentencing range up to two years.

As the judge identified, there were then a number of serious aggravating features: location, in that the offences were committed when the appellant entered, uninvited, and refused to leave the victim's own bedroom, where she should have been safe; timing, in that the offences were committed in the middle of the night as she slept in her bed; the fact that she felt compelled to leave her home; and the serious psychological harm caused to her. In addition, the appellant committed the offences in drink. Having put these matters to one side in determining the proper categorisation of the offences, it is then necessary to take account of the significant difference in age and status between the 38 year old manager and the student shop assistant.

As well as the mitigating factors expressly identified by the judge, Ms Heggadon submits that the appellant's job remains open to him and she stresses that he was under particular work and financial pressures at the time of the offences. We do not accept that such work and financial pressures even begin to explain this offending, but we do take into account the fact that the job apparently for the moment remains open to him.

Taking that matter into account, and weighed together with the appellant's other mitigating features identified by the judge, we consider that the proper sentence after trial was in the region of 18 months' imprisonment. Accordingly, after credit for the early guilty pleas, the just and proportionate sentence would have been 12 months' imprisonment. We conclude that the error in assessing the appellant's culpability led the judge to impose a sentence that was manifestly excessive.

That leaves the question of whether this court should now suspend such sentence, as Ms Heggadon argues on ground 2. The judge carefully considered the imposition guideline. In concluding that appropriate punishment could only be achieved through an immediate custodial sentence, the judge said:

In our judgment, it is appropriate for us to revisit that assessment for two reasons. First, the judge will have viewed this case through the lens of his sentence of 20 months' imprisonment, which now falls to be reduced. Secondly, the judge, in part, relied on his erroneous finding that this case involved a breach of trust.

In undertaking the exercise afresh, like the judge we take into account the fact that there is no risk of danger to the public; that there is no history of non-compliance with court orders; that there is a realistic prospect of rehabilitation; and the impact upon others.

As to that last point, in her oral submissions Ms Heggadon stressed the impact that the sentence has had in practice upon the appellant and those who care for him. She submits that he has been in prison many miles from home with the effect that visiting has been impossible and it has taken many weeks before the first video call could be arranged. Further, she submits that he has missed major life events.

Much of what Ms Heggadon describes is inherent in a sentence of imprisonment. As to the difficulty in visiting the appellant in the prison, the placement of prisoners within the prison estate is not a matter for this court but for the Prison Service. Accordingly, we cannot take that matter into account.

Reconsidering the issues for ourselves, we consider that the judge was right to regard these as very serious offences in which a significantly older and drunken manager entered uninvited the bedroom of a much younger student employed in a junior role in his store in the middle of the night and persisted in sexually assaulting her with the consequence that she has suffered serious psychological harm and has been forced to leave her home. In our judgment, the judge was right to conclude that this case was so serious that appropriate punishment could only be achieved by imposing a sentence of immediate imprisonment.

For these reasons, we allow this appeal against sentence. We quash the sentences on both counts and impose sentences of 12 months' imprisonment for each of the offences of sexual assault. Those sentences will run concurrently with each other, making a total sentence of 12 months' imprisonment.