Lee Fox [2019] EWCA Crim 1459

The offender pleaded guilty to sexual assault and sentenced to a community order of 120 hours unpaid work. HM Solicitor General believed the sentence to be unduly lenient and applied to refer the case for the sentence to be reviewed.

The victim of the offence was heavily intoxicated and asked to leave a nightclub as a result. She was seen lying face down on the pavement with her bottom exposed. The offender was seen by a security guard to move her thong to one side and touch her vagina, the security guard intervened and the offender was detained. When interviewed he said he had no recollection of the incident and appeared shocked and distressed by what he could be seen to have done on CCTV. The offender had no previous convictions and pleaded guilty at the first opportunity.

Held: the sentence was unduly lenient; it was not properly open to the judge to pass anything other than a custodial sentence. The sentence was quashed and substituted was a sentence of 12 months’ imprisonment suspended for 2 years with a requirement to complete 120 hours of unpaid work.