Brief Sexual Touching Can Attract Category 2 Harm Where the Wider Incident Is Sustained

1. Introduction

This judgment concerns the correct sentencing approach where a sexual assault involves brief touching but forms part of a longer episode of persistent, unwanted attention. The Court of Appeal confirmed that the assessment of a sustained incident under the Sexual Assault Guideline is not confined to the duration of the sexual touching itself. The wider incident may justify Category 2 harm, while the brevity of the touching remains relevant to the appropriate sentence within that category.

The appellant challenged a total sentence of 14 months’ immediate imprisonment for two sexual assaults against different complainants. He argued that the sentencing judge had selected the wrong harm category, imposed an excessive overall sentence and wrongly refused suspension. The appeal was dismissed.

The decision principally applies established authority rather than creating an entirely new sentencing test. Its significance lies in its clear separation of the duration of the sexual contact from the sustained nature of the surrounding conduct, together with its reaffirmation of the limited basis for appellate interference with a reasoned refusal to suspend imprisonment.

The complainants are referred to as C1 and C2. The judgment records that the anonymity provisions of the Sexual Offences (Amendment) Act 1992 apply.

2. Background and Issues

The offending

The two offences occurred approximately six months apart in night-time social settings. In the first incident, the appellant repeatedly approached C1 and her companions despite indications that they did not wish to engage with him. He subsequently touched C1’s bottom and moved his fingers along her back as she moved away. Mobile telephone footage captured the incident.

In the second incident, the appellant repeatedly approached C2 and her friend at a nightclub and followed them to a takeaway. There, despite C2 rejecting his requests to accompany him home, he stroked her hip and bottom. CCTV recorded the encounter. The Court of Appeal considered that C2 was clearly intoxicated and particularly vulnerable in the circumstances.

C2’s victim personal statement described continuing effects on her confidence and freedom to socialise. She felt vulnerable and less able to go out or walk alone.

The appellant’s position and assessment

The appellant pleaded guilty on the first day of trial to two offences of sexual assault contrary to section 3 of the Sexual Offences Act 2003. He had no recorded convictions in this country; his earlier antecedent history was unknown.

The pre-sentence report identified a recurring pattern of unwanted approaches, disregard for personal boundaries and failure to respond appropriately to verbal and non-verbal rejection. Although the appellant expressed regret, he continued to deny important aspects of conduct recorded on video and disputed its sexual character.

The report assessed him as presenting a medium risk of serious harm to adult women in social settings. His limited insight, victim-blaming and incomplete acceptance of responsibility were relevant to the assessment of future risk and rehabilitation. If immediate custody were avoided, the report considered that a highly intensive and restrictive community order would be necessary.

The disputed sentencing questions

1. Could brief sexual touching constitute part of a sustained incident justifying Category 2 harm?
2. Did C2’s engagement with the appellant at the takeaway reduce the seriousness of the second offence?
3. Was the aggregate sentence proportionate to the two offences?
4. Should the custodial sentences have been suspended?

3. Summary of the Judgment

The Court of Appeal upheld both the harm categorisation and the sentence. Its principal conclusions were:

• The incident must be considered as a whole. Sustained unwanted attention before and around the assault could justify Category 2 harm even though the touching itself was brief.
• Brevity remained relevant. The sentencing judge correctly moved below the ordinary Category B2 starting point to reflect the limited duration of the sexual contact.
• C2’s engagement did not reduce seriousness. Given her intoxication, vulnerability and earlier rejection of the appellant’s attention, her interaction with him in the takeaway did not undermine the sentencing assessment.
• Totality had been properly addressed. The judge reduced the proposed consecutive terms to produce a proportionate overall sentence for offending against two separate victims.
• Immediate imprisonment was justified. The judge was entitled to reject suspension after considering the Imposition Guideline, the pre-sentence report and the limited factors supporting a community-based outcome.

The appeal against the total sentence of 14 months’ imprisonment was therefore dismissed.

4. The Guideline Framework and Sentencing Calculation

Both parties accepted that the offences fell within Culpability B because no Culpability A factors were present. The dispute concerned harm:

The sentencing judge found that each wider incident was sustained, although the touching was not. He therefore selected Category B2 but moved below its ordinary starting point to reflect the brevity of the assaults.

After considering the aggravating features and mitigation, the judge identified nine months’ imprisonment for each offence. Consecutive sentences would have produced 18 months. Applying totality, he reduced each term to seven months, producing 14 months overall.

The Court of Appeal expressly approved that reduction as an adjustment for totality. The judgment does not provide a separate quantified guilty-plea calculation, and the reduction from nine to seven months should not be described as such a discount.

5. Precedents Cited and Their Influence

R v Cicis (Ardzis) [2022] EWCA Crim 827

The court relied on paragraph 13 of this authority for the proposition that a sustained incident is assessed by examining the incident as a whole, rather than merely timing the sexual assault. It directly answered the appellant’s central submission that brief touching necessarily required Category 3 harm.

The authority’s function was interpretative: it explained the scope of the guideline factor. The present court applied it to repeated unwanted approaches and attention continuing despite rejection. The judgment does not reproduce the earlier case’s detailed facts, so its significance here should not be expanded beyond the proposition for which it was cited.

R v PD [2022] EWCA Crim 992

Paragraph 39 was cited alongside the preceding authority as further support for assessing the wider incident. Together, the two decisions established the doctrinal foundation for rejecting a narrow focus on the duration of physical contact.

The court observed similarities between the present offending and the types of conduct considered in those authorities. Their influence was therefore both legal and contextual: they supported treating persistent unwanted conduct surrounding a sexual assault as relevant to whether the incident was sustained.

R v Price [2023] EWCA Crim 1060

The court relied extensively on paragraph 12, concerning decisions whether to suspend imprisonment. That authority explains that suspension is not determined by counting the factors for and against it. Relevant considerations differ in nature and weight, making the decision an evaluative judgment rather than an arithmetic exercise.

It also establishes the appellate restraint applicable to that judgment. An appellant must show that refusing suspension was manifestly excessive or wrong in principle; it is insufficient merely to demonstrate that another judge might have reached a different conclusion.

This authority supported the refusal to revisit properly supported findings about rehabilitation, risk and mitigation simply because the appellant sought a more favourable assessment.

R v Aliaj [2026] EWCA Crim 1141

The court cited paragraph 14 for the proposition that the extension of the power to suspend sentences introduced by the legislation described as the “2026 Act” had not altered the established appellate approach.

Its significance is specific: wider sentencing powers do not, without more, replace the evaluative approach or the standard governing appellate intervention. The supplied judgment does not identify the Act’s full title or set out its detailed provisions. It therefore does not support broader conclusions about every condition, exception or consequence of that legislation.

6. Analysis of the Court’s Reasoning

A. Sustained conduct is not synonymous with sustained touching

The central distinction is between the sexual contact and the incident within which it occurred. The appellant’s approach treated the former as decisive. The court held that the guideline required consideration of the latter.

Both incidents involved unwanted attention continuing over time despite clear indications that it was neither welcomed nor reciprocated. The sexual touching was therefore not assessed as an isolated moment detached from the appellant’s preceding behaviour.

This does not mean that any conversation or approach before an assault automatically creates Category 2 harm. The court relied on the particular persistence, rejection and surrounding evidence in these incidents. Nor did it establish a minimum duration for a sustained incident.

B. Classification and sentence selection remain distinct

The court’s approach avoided two opposite errors: reducing the assessment to the seconds during which touching occurred, and treating every Category B2 offence as requiring its standard starting-point sentence.

The wider conduct determined the appropriate harm category. The brevity of the actual assaults then justified moving below the ordinary starting point before considering aggravating and mitigating factors. This preserves proportionality without artificially forcing the offence into a lower category.

C. Engagement was not equivalent to consent or mitigation

The appellant argued that C2 initiated contact at the takeaway, undermining the portrayal of persistent pursuit. The court rejected the suggested reduction in seriousness. Having viewed the footage, it emphasised her intoxication and particular vulnerability, together with her earlier rejection of the appellant’s attention.

The reasoning distinguishes social interaction from permission for sexual touching. Engagement with another person does not, by itself, neutralise an earlier refusal or make subsequent unwanted sexual contact less serious. This was a sentencing appeal following guilty pleas, not a reconsideration of whether the offences had been committed.

The vulnerability finding was evidence-specific. The judgment should not be read as declaring that every person who has consumed alcohol is necessarily particularly vulnerable.

D. Separate victims justified an overall sentence reflecting both offences

The court stressed that the appellant was being sentenced for two separate offences against two separate complainants. The overall sentence had to reflect both, rather than treating the second offence as effectively absorbed by the first.

At the same time, consecutive sentences required a totality assessment. The reduction from 18 to 14 months demonstrated that the judge had considered the combined effect of the individual terms. The Court of Appeal regarded the resulting sentence as just and proportionate.

E. Rehabilitation required an evidence-based assessment

The refusal to suspend was closely connected to the pre-sentence report. Repeated behaviour, denial of recorded conduct, limited victim awareness and externalisation of responsibility undermined confidence in rehabilitation within the community.

Counsel informed the court that the appellant had subsequently recognised the factual nature and wrongfulness of his conduct. Nevertheless, the court held that the sentencing judge remained entitled to rely on the report’s assessment. Later acceptance did not compel a different conclusion.

The significance of limited insight lay in its implications for rehabilitation and risk. The judgment does not establish an automatic rule that every offender displaying incomplete remorse must receive immediate custody.

F. Suspension required judgment, not a checklist

The sentencing judge considered the Imposition Guideline and found few factors supporting suspension: there was no strong personal mitigation, no significant harmful impact on others from immediate custody, and insufficient confidence in community rehabilitation. Those considerations were weighed against serious sexual offending involving two victims and the identified risks.

The appellant also argued that a statutory presumption favouring suspension would apply if the appropriate sentence were 12 months or less. The court upheld the 14-month sentence and did not separately analyse the detailed operation of that asserted presumption. The decision should therefore not be treated as resolving every question about its scope or application to multiple sentences.

Its clear holding is that the refusal to suspend was properly reasoned and neither manifestly excessive nor wrong in principle.

7. Likely Impact

• Evidence must capture the wider incident. Footage, witness accounts and evidence of rejection may be central to harm classification, even where the touching itself is brief.
• Brief contact does not compel Category 3. A defence submission based solely on duration will not answer evidence of sustained unwanted conduct.
• Context does not eliminate proportionality. The limited duration and nature of contact can still materially reduce the sentence within Category B2.
• Suspension submissions need substance. Evidence addressing insight, rehabilitation, risk and the consequences of custody is more important than simply identifying several favourable factors.
• Appeals must identify a sentencing error. Re-presenting the same material in the hope of a different discretionary balance is unlikely to justify intervention.

The judgment’s broader contribution is therefore one of clarification and consistent application: sentencing should recognise persistent disregard of sexual boundaries without losing sight of the actual nature and duration of the assault.

8. Complex Concepts Simplified

Culpability and harm

Separate guideline assessments concerning the offender’s blameworthiness and the harm-related features of the offence. Here, culpability was agreed; harm classification was disputed.

Starting point

A guideline benchmark, not a compulsory final sentence. It must be adjusted to the circumstances of the offence and offender.

Totality

The requirement that the combined sentence for several offences be just and proportionate overall.

Consecutive sentences

Sentences served one after another, rather than at the same time.

Suspended sentence

A custodial sentence whose immediate operation is suspended subject to conditions. Deciding that custody is justified and deciding whether it should be suspended are distinct questions.

Manifestly excessive or wrong in principle

The principal grounds relevant here for appellate intervention: the sentence or decision must be clearly excessive or affected by a legal or principled error, not merely open to a different reasonable assessment.

9. Conclusion

The judgment confirms that brief sexual touching may properly fall within Category 2 harm when it forms part of a sustained episode of unwanted attention. The duration of the touching remains important, but it informs sentence selection rather than necessarily dictating the harm category.

It also reinforces that totality and suspension require reasoned, individual assessment. On the evidence, the consecutive terms, reduced to 14 months overall, and the refusal to suspend them were properly justified. The decision’s enduring significance is its contextual approach to seriousness, coupled with continued appellate restraint over sound sentencing judgments.