Mai, R. v

Factual and Procedural Background

On or about 2 December 2020, at their workplace, the appellant, aged 63 at conviction, sexually assaulted the victim ("V") by placing his hands on her buttocks over her clothing. The assault was witnessed by a colleague who saw the appellant crouching over V, who appeared shocked. V later provided a Victim Personal Statement expressing the lasting impact of the incident on her trust and personal relationships.

The appellant was tried in the Crown Court at Wolverhampton before Judge Butterfield KC and a jury on multiple counts related to sexual assault and stalking. He was convicted by a majority of 10:2 on one count of sexual assault and acquitted on the other counts, either by no evidence or judge's direction. On 6 February 2025, the appellant was sentenced to 12 months' imprisonment with ancillary orders. The appellant now appeals against the sentence by leave of a single judge.

Legal Issues Presented

1. Whether the sentencing judge erred in re-categorising the offence and sentencing the appellant for a course of conduct for which he had been acquitted.
2. Whether the judge failed to give sufficient weight to the appellant's mitigation, including his good character and loss of employment.
3. Whether the sentence imposed was manifestly excessive and wrong in principle.

Arguments of the Parties

Appellant's Arguments

• The sentencing judge improperly sentenced the appellant for a broader course of conduct rather than solely the offence of conviction.
• The judge wrongly re-categorised the offence from category 3B to category 2A, increasing the severity of the sentence.
• The judge failed to adequately consider the appellant's mitigation, including his previous good character and the fact he lost his job due to the conviction.
• For these reasons, the sentence was excessive and incorrect in principle.

Prosecution's Arguments

• The offence fell within category 3B, with a starting point of a high level community order and a sentencing range up to 26 weeks' custody.
• The victim was not "particularly vulnerable," but the appellant's targeting of the victim was an aggravating factor.
• The appropriate sentence should reflect the seriousness of the offence within the specified category range.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court carefully reviewed the sentencing remarks and acknowledged the sentencing judge's advantage in having presided over the trial. It accepted that an imbalance of power between the appellant and the victim was an aggravating feature, as was the abuse of the appellant's managerial position. However, the court found the judge's characterization of the victim as "particularly vulnerable" was not clearly supported within the guideline's meaning. The court also considered the judge's treatment of the offence as involving "abuse of trust" to be an overstretch of the guideline's typical application.

The court concluded that the sentencing judge had taken too harsh a view of the offence itself and insufficiently weighed the appellant's significant mitigation, including his previous good character and loss of employment. The vehemence of the judge's language and the re-categorisation of the offence indicated that the judge effectively sentenced the appellant for conduct beyond the single offence of conviction, which was improper.

Taking into account the two months already served in custody, the court found the appropriate sentence to be in line with the pre-sentence report's recommendation of a community order with rehabilitation and unpaid work requirements.

Holding and Implications

The court QUASHED the appellant's original custodial sentence and substituted it with a community order for 12 months, including a Rehabilitation Activity Requirement of 55 days and 100 hours of unpaid work.

The appellant was directed to report to the duty officer at the Tamworth Probation Office by a specified date. The appeal against sentence was therefore allowed to this extent.

The decision directly affects the appellant by reducing the sentence from imprisonment to a community order but does not establish new precedent beyond clarifying the limits of sentencing based on acquitted conduct and proper application of sentencing guidelines.