Azizi-Safa, R. v

Factual and Procedural Background

The appellant, aged 68 at the time of sentencing, was convicted on 15th March 2023 of indecent assault contrary to section 14(1) of the Sexual Offences Act 1956, following a trial in the Crown Court at The City. He was acquitted of three other counts, including two counts of rape and one additional count of indecent assault. The offence for which he was convicted related to events alleged to have occurred between 8th July 1996 and 8th July 1997, when the complainant was 15 years old. The conviction pertained to an allegation that the appellant pressed his penis against the complainant's vagina on the first occasion of their sexual encounter, which was not charged as penetrative intercourse due to statutory limitations.

At sentencing on 15th May 2023, the appellant received a three-year imprisonment term and a five-year restraining order under section 360 of the Sentencing Act 2020. The appellant appealed the sentence by leave of the single judge.

The appellant had no previous convictions and suffered from multiple health conditions, including depression, angina, diabetes, and high blood pressure. A pre-sentence report assessed him as posing a low risk of general and serious reoffending, but a medium risk to female children due to the nature of the conviction.

Legal Issues Presented

1. Whether the sentencing judge erred in failing to give sufficient regard to the appellant’s acquittals on other counts and thereby imposed a manifestly excessive sentence.
2. Whether the correct categorisation of the offence under the relevant sentencing guidelines was applied, particularly concerning the distinction between penetration and non-penetration offences.
3. Whether the sentence should have been suspended given the appellant’s personal mitigation and the nature of the offence.

Arguments of the Parties

Appellant's Arguments

• The sentencing judge failed to properly consider the acquittals on three counts, resulting in an excessive sentence based on multiple offences rather than a single offence.
• The grooming aggravating factor was less applicable to the single count of indecent assault than to multiple incident counts.
• The age disparity was improperly double counted as an aggravating factor affecting sentencing category.
• The maximum sentence applicable under the 1956 Act was ten years, not fourteen years as under the 2003 Act, warranting a downward adjustment from the starting point.
• Given the appellant’s previous good character and serious health issues, the sentence should have been reduced to two years or less and suspended.
• An immediate custodial sentence of three years was neither inevitable nor justified; a starting point of 24 months or less was appropriate.

Prosecution's Arguments

• The offence involved grooming behaviour and penetration, placing it in category 1A of the sentencing guidelines with a starting point of five years’ imprisonment.
• The seriousness of the offence and aggravating factors justified a custodial sentence within the range of four to ten years.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court accepted that the sentencing judge erred by not giving sufficient weight to the appellant’s acquittals on counts 1, 2, and 4, and by misapplying the sentencing category. The offence for which the appellant was convicted was under the 1956 Act and did not involve penetration, distinguishing it from the category 1A offence under the 2003 Act guidelines relied upon by the prosecution.

The court found that the offence fell within category 2A (touching or exposure of naked genitalia) with culpability A (aggravating factors present). The grooming aspect remained relevant despite the offence being isolated. The sentencing judge’s starting point was too high, and insufficient weight was given to the appellant’s mitigation, including his good character and serious health issues.

The court also considered the possibility of a suspended sentence but concluded that the seriousness of the offence, aggravated by the significant age disparity and the appellant’s position as employer, warranted a custodial sentence. However, the original three-year sentence was deemed manifestly excessive.

Holding and Implications

The court QUASHED the original three-year custodial sentence and substituted it with a sentence of 18 months’ imprisonment. The five-year restraining order imposed by the sentencing judge remains in place. The appellant is to be released shortly.

The decision directly affects the appellant by reducing his custodial term but upholds the restraining order. No new legal precedent was established by this ruling.