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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Teklu, R. v [2017] EWCA Crim 1477 (22 September 2017) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2017/1477.html Cite as: [2017] EWCA Crim 1477

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		22nd September 2017

MR JUSTICE HADDON-CAVE: I shall ask Mrs Justice Simler to give the judgment of the court.

MRS JUSTICE SIMLER:

1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence so that the usual reporting restrictions apply.
2. On 17^th March 2017, in the Crown Court at Cardiff, before Mr Recorder Ball QC and a jury, the appellant was convicted of one offence of sexual assault, contrary to section 3 of the Sexual Offences Act 2003. He was sentenced to four years' imprisonment.
3. He appeals against that sentence with leave of the single judge. He has been ably represented by Mr Jones of counsel.
4. The facts are these. At 10.45pm on 15^th September 2016, the complainant, a 21 year old medical student, was making her way home, having finished work and had drinks with colleagues in Cardiff. Her route home took her past a wall in Museum Place where the appellant was sitting. He offered her a cigarette. She accepted and sat down beside him. There was a brief conversation between them, during which names were exchanged. He asked if there was any CCTV in the area. At that point, she said that she was leaving. He began to walk alongside her making her feel uncomfortable. He indicated that he wished to exchange telephone numbers. She agreed to take the appellant's number, believing she would then be able to say goodbye. He, however, remained with her as they continued to walk. He put his arm around her. He put his hand inside her blouse and rested his hand on her upper breast. He told her he was strong and that she was a good girl. He lifted her glasses and kissed her on the lips. He then put his arm around her, guided her along and held her against a wall. He kissed her again. He put his hand down the back of her trousers inside her underwear and touched her buttock. He used his other hand to rub her crotch area. He then moved his hand from her buttock and placed it inside her blouse and bra, groping her right breast hard, while continuing to kiss her. She said "No". She tried to push him back. He said it was okay. He put his arm around her and manoeuvred her into an alleyway. He asked her if she was happy. She walked briskly away and stopped a man on the street a short distance away. She told him that the appellant had tried to rape her. When the appellant had gone, she telephoned her boyfriend and was helped back home. The appellant was subsequently identified from images shown to the police.
5. In interview the appellant did not deny touching the complainant, but said that she was the instigator and that she had kissed him. She had controlled his hands and directed his movements. He said that it was a joint decision to go down the alleyway and that they left when the lights came on.
6. The appellant was aged 31 at the date of sentence and was of previous good character. The judge proceeded to sentence without a pre-sentence report. We do not consider in all the circumstances that a pre-sentence report was or is necessary. The judge had available to him a Victim Personal Statement from the complainant.
7. In passing sentence the judge observed that the appellant had never explained why he was sitting on the wall. He drew the inference that the appellant was there deliberately, planning to chat up young women making their way home. Having accepted the offer of a cigarette, the appellant pursued the complainant. He went a considerable distance out of his way in a direction different to his own way home. He followed the complainant to a more discrete area where she was indecently assaulted twice. During the course of that journey he asked her about CCTV, which caused her alarm. She became more distressed at his persistence. The judge concluded that the appellant planned and was determined to have sexual contact with the complainant. He had kissed her and indecently assaulted her, then manoeuvred her across the road where the assault became more serious. He had fondled her buttocks and breasts in an aggressive way, and had then manoeuvred her into the alleyway. She was not there for long, and it was apparent from the way that she exited the alleyway that she wanted nothing to do with him.
8. The judge referred to the fact that the appellant's defence had been to cast aspersions in relation to the complainant. He had alleged that she had been the driving force behind the sexual activity, when it was plain that the appellant was the predator. The judge identified a number of aggravating features: the degree of planning; the fact that the offence took place at night; the fact that the complainant was a vulnerable young woman; the attack was persistent; and it took place late at night in a public street. The judge concluded that it was a category 2A offence within the sentencing guidelines, with a range of one to four years' imprisonment and a starting point of two years. The sentence passed ultimately, as we have already identified, was one of four years' imprisonment.
9. In grounds of appeal, both in writing and developed before us by Mr Jones, two principal points are taken. First, Mr Jones contends that the judge was wrong to conclude that the offence displayed a significant degree of planning, so that it fell within category 2A. Mr Jones referred to the fact that the appellant gave his name, phone number and Cardiff street address to the complainant, which tells against planning. Moreover, he argues that the word "significant" is absolute, and that on any view this offence could not be described as one involving significant planning. Secondly, Mr Jones submits that, even if category 2A was correct, the judge's sentence of four years' imprisonment was manifestly excessive and made no allowance whatever for the appellant's previous good character and absence of previous convictions.
10. We have considered those submissions with care, but do not accept them. In our view, the judge, who presided over this trial and heard the evidence, was well-placed to assess the extent to which this offence involved planning. "Significant" is not an absolute concept. In the context of this offence – a sexual assault that can be committed without implements or tools or any sophisticated planning – we consider that lying in wait, in a position that is perfectly designed to prey on lone young women (particularly given the timing) who have had a night out and are on their way home, did involve a significant degree of planning in context. The judge was amply entitled in those circumstances to conclude that this was a category 2A offence.
11. Moreover in our view, the complainant was particularly vulnerable. Mr Jones submitted that the appellant can have had no knowledge of any personal characteristics that might have made the complainant vulnerable. But that seems to us to be an unrealistic submission that entirely misses the point. This was a single young woman, alone late at night, and targeted as such. In our judgment, that made her vulnerable. Men preying on lone young women, particularly in university towns on their way home after a night out, is a serious problem. The judge no doubt had that well in mind when he concluded that she was particularly vulnerable.
12. There were aggravating features: the location and the timing of the offence, close to the alleyway. This was a sustained attack in which the complainant was pursued and manoeuvred towards the alleyway. It must have been terrifying and she was, do doubt, in considerable fear that she would be raped. In our judgment, the judge was amply entitled to conclude that these aggravating features took the offence to the top of the category.
13. Mr Jones complains about the judge's reference to the appellant casting aspersions on the complainant in the course of the trial. True it is that he did. The judge concluded that indicated a complete lack of remorse shown by the appellant. We do not read his remarks as indicating that he ignored the appellant's positive good character and lack of previous convictions. On the contrary, the judge expressly recognised that the appellant was a man of good character. We are satisfied that the judge had that well in mind in reaching the ultimate conclusion that the sentence should be one of four years' imprisonment.
14. In the result, we consider that the sentence passed was open to this judge who presided over the trial. We can see no basis for interfering with this sentence as manifestly excessive. For all those reasons, notwithstanding the forceful submissions made by Mr Jones, the appeal is accordingly dismissed.
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