Summary of Opinion by Judge Pepperall

Factual and Procedural Background

The judgment was delivered by Judge Pepperall. The appellant was sentenced on 5 June 2025 in the Crown Court at The City by Judge Patrick to 20 months' imprisonment for two offences of sexual assault contrary to section 3 of the Sexual Offences Act 2003, and ordered to pay the statutory surcharge. The appellant, having obtained leave from a single judge, appealed against sentence.

The offences occurred on 24 February 2024. At that time the appellant, aged 38, was the store manager of Company A in The City. The victim, a student employed as a shop assistant at the store, did not attend a work social event; the appellant messaged her and later messaged her housemate saying he would be sleeping with the victim. At about 2am he attended the property uninvited, entered the victim's bedroom, climbed into her bed, attempted to pull her close and to turn her, persisted after she told him to leave, and touched her breasts and buttocks, including under her clothing. The victim resisted and eventually extricated herself and left the house. She reported subsequent psychological harm, loss of confidence, anxiety, disruption to studies and a need to move accommodation. The appellant had no previous convictions, provided a pre-sentence report in which he accepted drinking too much and expressed remorse, and pleaded guilty.

Legal Issues Presented

1. Whether the judge was correct to find that the offending involved an abuse of trust, thereby increasing culpability (and adopting a higher sentencing category).
2. Whether the sentence of 20 months' immediate custody was manifestly excessive and should be reduced.
3. Whether, if the sentence is reduced, it should be suspended.

Arguments of the Parties

Appellant's Arguments (Attorney Heggadon)

• The judge was wrong to find that the offences amounted to an abuse of trust and therefore erred in treating the case as higher culpability.
• Because the judge adopted an incorrectly high starting point, the overall sentence of 20 months' imprisonment was manifestly excessive.
• The sentence should have been suspended rather than immediate custody.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by reviewing the sentencing judge's categorisation and reasoning. The sentencing judge had applied the Sentencing Council guideline for sexual assault and found medium harm because the offences involved touching the victim's naked breasts and the incident was sustained. The sentencing judge treated the case as higher culpability on the basis that the appellant had acted in breach of trust as the victim's manager and had done so in her home, resulting in a category 2A starting point (two years' imprisonment; range one to four years).

The appellate court analysed the aggravating feature "abuse of trust" against the guidance in the Sentencing Council explanation quoted in the judgment and the authorities collected by the court (Case A–D). The court emphasised the fact-specific enquiry required and the authorities that demonstrate that an employer/employee relationship is not, by itself, sufficient to establish abuse of trust.

Applying those authorities to the facts, the court accepted that several aggravating features were present: the significant difference in age and status between the appellant (38, manager) and the victim (student, junior employee); the offences occurring in the victim's home at night after the appellant entered uninvited; persistence despite clear refusal; and serious psychological harm to the victim. However, the court concluded that those factors did not justify a finding of abuse of trust. The court therefore re-categorised the offending as category 2B, with a proper starting point of 12 months' imprisonment and a range up to two years.

The court then recalculated an appropriate sentence. Weighing the aggravating features (location, timing, compelled to leave home, psychological harm, drinking) and the mitigating features identified by the sentencing judge (previous good character, remorse, steps to reduce alcohol intake, family responsibilities, continued employment prospects), the appellate court concluded that the proper sentence after trial would have been in the region of 18 months' imprisonment. After credit for the appellant's early guilty pleas, the just and proportionate sentence would have been 12 months' imprisonment. The court found that the sentencing judge's error in assessing culpability produced a manifestly excessive sentence.

The court then reconsidered whether the sentence should be suspended. It noted the original judge's consideration of the imposition guideline (no risk to public, realistic prospect of rehabilitation, harmful impact on others) but observed that the sentencing judge had partly relied on the erroneous breach of trust finding and that the appellate court should reassess the need for immediate custody in light of the reduced sentence. After rehearing the matter afresh, the appellate court nonetheless concluded that the offending was so serious that appropriate punishment could only be achieved by immediate imprisonment.

Holding and Implications

APPEAL ALLOWED.

The court quashed the original sentences on both counts and imposed concurrent sentences of 12 months' imprisonment for each sexual assault offence, producing a total effective sentence of 12 months' imprisonment.

Implications: The direct effect is that the appellant's sentence has been reduced from 20 months to a concurrent total of 12 months' immediate imprisonment. The court corrected an error in categorisation by finding that an abuse of trust had not been established on these facts and applied established authorities to reach that conclusion. The opinion does not purport to establish a new broad precedent beyond the application of existing authorities to the particular facts of this case.