R v Hoien Youself Nedjad

On 29 September 2021 in the Crown Court at Newcastle upon Tyne, the applicant was tried and convicted in his absence of sexual assault. The sentence was adjourned and a warrant not backed for bail was issued for the applicant's arrest.

On 17 November 2024 at the same court the applicant was produced, having been extradited from Germany. He pleaded guilty to an offence of failing to surrender to bail. On 28 April 2025, again at Newcastle Crown Court, the applicant was sentenced to an extended sentence of eight years for the offence of sexual assault, comprising a four-year custodial element with an extended licence period of four years. A four-week sentence of imprisonment was imposed in respect of the Bail Act offence to run concurrently with the extended sentence.

Before us today is (1) an application for an extension of time of 223 days, together with leave to appeal against the applicant's conviction for the Bail Act offence and (2) an application for leave to appeal against sentence. Both applications have been referred to the full court by the Registrar.

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. We shall refer to the complainant as "C" in this judgment.

C was a student in Newcastle. Late in the evening of 11 May 2019, C had been drinking with friends and they went to the Soho Rooms on Moseley Street in Newcastle where C was drunk and became separated from her companions. The applicant was also in the Soho Rooms. He took the opportunity of C being on her own to grab her and put his hands down the front of her jeans. He then started to grab at the complainant's vaginal area. The complainant asked him not to and tried to push his hands away. The applicant then grabbed C's arms, pushed her forward onto the bar and pulled her jeans further down. She reported that she felt a warm liquid on her bottom - the applicant had ejaculated onto her. After this the applicant left. C, in great distress, pulled her trousers back up and walked outside where she told a friend that she had been sexually assaulted.

The jeans that C was wearing that night were forensically tested. Semen was found on the crotch area of the jeans and a DNA test confirmed that this was a match for the applicant. He was arrested and interviewed on 19 March 2020. In interview he said that he did not know where the Soho Rooms were, he denied committing any offence and thereafter answered all questions "no comment".

The applicant was released on conditional bail but thereafter left the United Kingdom in breach of bail and went to Germany where he remained for the next three-and-a-half years. As we have indicated, his trial proceeded in his absence and the jury convicted him. He was found in Germany in 2024 and extradited to the UK where, as we have said, he admitted the Bail Act offence.

The applicant was aged 42 at the date of sentence. He had five previous convictions for nine offences between 2011 and 2020. Two of those convictions were for sexual assaults, one predating the offence and one committed after it but before the sentencing hearing.

The judge had a pre-sentence report and victim impact statements from C which we have read carefully. We have seen an updated statement submitted for this hearing. We have also seen a report from the prison where the applicant is currently serving his sentence.

The judge placed the offence in Category 1 harm in the relevant Sentencing Council guideline concluding that C had suffered severe psychological harm, noting also that three of the Category 2 factors were present, namely touching naked genitalia, additional degradation of ejaculating onto C and the vulnerability of C due to her drunken state. He placed the culpability into Category B finding that none of the Category A factors were present.

Turning to the aggravating factors, the judge referred to the following: location and timing of the offence, the fact that the applicant was himself under the influence of drink, the presence of others in the nightclub, the applicant's previous convictions for similar offences, the ejaculation and the fact that the applicant was subject to notification requirements at the time. The judge said he was conscious that some of these aggravating factors had already been taken into account in arriving at the proper category for the offending and said that he would take care to avoid double-counting.

As to mitigation, the judge noted that the applicant had been embarrassed and remorseful upon his arrest and return and that there had been no offending in the years he had resided in Germany. He had stopped drinking and had made good progress in prison.

The judge considered dangerousness. He referred to the previous convictions for sexual assault in 2014 and 2020 committed in very similar circumstances. He found that the applicant demonstrated a pattern of targeting lone and vulnerable women. Two reports had expressed the view that the applicant posed a high risk of harm to women from sexual offending. He concluded that the applicant was a dangerous offender, going on to pass the eight-year extended sentence which we have noted above.

We address the conviction appeal first which solely concerns the applicant's conviction for failing to appear. Thanks to the diligence of the Criminal Appeal Office lawyer who raised it, a point has now been taken by Mr Walker for the applicant as to the lawfulness of the applicant's conviction for that offence. The applicant was extradited from Germany on a warrant, but that warrant did not specify the Bail Act offence. By reason of the Rule of Specialty the court here thus had no jurisdiction to deal with the offence of failing to appear: R v Shepherd [2019] EWCA Crim 1062. It follows that, notwithstanding the applicant's plea of guilty to that offence the conviction for the Bail Act offence is a nullity and must be quashed. The prosecution does not seek to suggest otherwise.

Mr Walker's principal point is that whilst he accepts that the judge was entitled to find that the applicant presented a significant risk of causing serious harm by the commission of further specified offences, a custodial sentence of four years was simply too high for this offence of sexual assault. He submits that had the judge arrived at an appropriate term of less than four years, as he should have done, then he could not have passed an extended sentence under section 250 of the Sentencing Act 2020. Nor does Mr Walker seek to find fault with the judge's categorisation of the offending as falling into Category 1B where there is a starting point of two-and-a-half years and a range of two to four years. His argument is that the judge erred in placing the offending at the top of the range, suggesting that he did so by putting what he perceived as a need for an extended sentence before addressing the proper custodial sentence for the particular offending. Mr Walker argues that location, timing and presence of others were no more than incidents of the applicant and C both being in a nightclub and could not properly be said to aggravate the offence. Moreover, whilst the presence of others might be said to be degrading or humiliating these are all Category 2 factors which the judge had already taken into account in determining that harm fell into Category 1. Mr Walker points out that committing an offence whilst under notification requirements should not be treated as an additional aggravating factor given that notification is an incident of the applicant's previous convictions which are taken into account as statutory aggravating factors. Mr Walker accepts that the applicant being under the influence of drink, taken together with his previous convictions, did justify some uplift from the starting point in the guideline but not to the highest point in the range.

As we have noted above, the prosecution agrees that the conviction for the Bail Act offence is a nullity. We grant the necessary extension of time, together with leave and allow that appeal, quashing the conviction for the Bail Act offence.

Despite Mr Walker's valiant submissions, we are not persuaded that the eight-year extended sentence for the sexual assault offence was manifestly excessive. As he has frankly accepted, the judge was entitled (a) to find the applicant dangerous, (b) to place the offending in Category 1B and (c) to move up the guideline range by reason of a number of aggravating features. The statutory aggravating features include a number of relevant previous offences which Mr Walker has helpfully identified in his advice and grounds and which include (1) a conviction for sexual assault in 2014 which involved the applicant leaving a nightclub and going to a chicken shop where he met a young woman whom he followed, pushed against some railings, kissed, touched her breasts and put his hands down the front and back of her shorts, unbuttoning his clothing before she managed to escape; (2) a conviction for sexual assault in 2020 arising from an incident on the dance floor of a nightclub, where the applicant stood behind a young woman and lifted her dress exposing her buttocks.

We accept that location, timing and presence of others were on the facts of this case matters at least partially encompassed by the placing of harm into Category 1. Nevertheless, the presence of three Category 2 factors increased the seriousness of an offence which the judge had already rightly placed into Category 1.

We also accept that offending whilst subject to notification requirements is not to be treated as an aggravating factor separate from and additional to the previous convictions to which the notification requirement attached. However, the fact that the applicant was drinking was a further aggravating factor properly to be reflected in a rise above the starting point in the guideline. Further, despite our quashing of the Bail Act offence, it remains the case that the applicant evaded justice by leaving the country and remaining away for three-and-a-half years until his extradition, for all of which time his victim was left anxiously wondering where he was and awaiting justice. We regard this and the impact upon the justice system of the applicant's evasion as a further and a weighty aggravating factor.

For these reasons we are unable to conclude that a custodial term at the top of the guideline range was excessive. Accordingly, we refuse leave and the appeal against sentence is dismissed.