Lee Fox [2019] EWCA Crim 1459

In R v Lee Fox [2019] EWCA Crim 1459 the Court of Appeal held that a community order imposed for sexual assault of a vulnerable woman was unduly lenient and substituted a suspended sentence of imprisonment, though only by a narrow margin.

Mr Fox pleaded guilty before the magistrates to sexual assault contrary to section 3 of the Sexual Offences Act 2003 and was committed for sentence to the Crown Court at Plymouth, where on 22 May 2019 he was sentenced to a community order for 12 months with a requirement to perform 120 hours of unpaid work. Her Majesty’s Solicitor General referred the sentence as unduly lenient under section 36 of the Criminal Justice Act 1988.

On a Saturday night in June 2018 the victim, who may be referred to as W, attended a nightclub at a leisure park in Plymouth with a female friend. She drank heavily and consumed MDMA. She became so intoxicated that she was asked to leave and became separated from her friend. Mr Fox, a stranger to W, was also at the leisure park. He too had been drinking heavily and had taken cocaine. Around two o’clock in the morning a security officer witnessed activity captured on CCTV. W was lying face down on the pavement, clearly incapacitated by drink and drugs. Her dress was pulled up exposing her bottom and the thong she was wearing. Mr Fox was crouching beside her. He moved her thong to one side, exposing her vagina, which he then touched for several seconds in what appeared to be a fingering movement, though penetration was not alleged. W kicked out in what appeared to be an attempt to stop what was happening. When a taxi passed, its headlights illuminating the scene, Mr Fox stopped until it had gone and then resumed touching between W’s legs despite her trying to roll away. The security guard could see that Mr Fox’s trousers were undone and heard him saying that W “tasted so good”. The guard intervened and asked W if she was all right. Mr Fox falsely claimed that W was with him and that he knew her name. He indicated that she was heavily intoxicated, which she obviously was. When she was helped up from the ground she could not stand or walk without assistance and the CCTV footage showed her falling over several times. She appeared to have vomited and was plainly quite incapable of giving valid consent to sexual activity. Mr Fox walked away with her and was heard to say “Do you want to suck this dick”.

The security guard then established that Mr Fox and W were strangers. He told Mr Fox to leave, which he did. W was helped to the security office and thence to hospital. Mr Fox was detained by other security staff a short distance from the scene. The police were called. He was belligerent towards them and en route to the custody suite threatened to find and rape the children of one of the officers. When interviewed under caution Mr Fox said he had no recollection of the incident. He was shown the CCTV footage and said that he could not tell that W was drunk, though the court noted that no one viewing the footage could be in a moment’s doubt that she was heavily intoxicated. He appeared shocked and distressed by what he could be seen to have done but neither expressly denied nor admitted the offence. He was released under investigation. Six months later a forensic scientist matched W’s DNA profile with cellular material recovered from Mr Fox’s hands at the time of his arrest. Two months later, in February 2019, Mr Fox was interviewed again and made no comment. He was charged in mid-April 2019, ten months after the incident. He pleaded guilty at his first appearance before the magistrates in May and was committed for sentence on unconditional bail.

In her victim personal statement W said that she had lost her trust in men, felt unable to go back to the leisure park, had become anxious to take part in activities which had previously been normal and was anxious that what had happened to her at the hands of a stranger might happen again. Mr Fox had no previous convictions. He had received a formal police caution in May 2016 for an offence under the Public Order Act 1986 but otherwise had not come to the attention of the police. A pre-sentence report assessed him as presenting a low risk of further offending, though a medium risk of sexual offences, and a low risk of harm. The author recorded that Mr Fox was very remorseful, that the offence appeared wholly out of character and that it had been committed at a time when he had suffered a number of very unhappy events in his personal life which had led to his consuming more alcohol and drugs than previously. The report also recorded that since committing the offence Mr Fox had voluntarily sought counselling and had stopped drinking and refrained from taking drugs. A number of testimonial letters spoke highly of Mr Fox and made it clear that he was a hard-working man and a reliable employee. Without exception the authors expressed astonishment that the man known to them could have committed such an offence, which in their view was wholly out of character. One of the testimonials came from his former partner, with whom he had been in a committed relationship since they were teenagers and who was in a position to speak favourably about his attitude towards women. The breakup with that partner had been one of the unhappy events in his life mentioned in the pre-sentence report.

The judge in his sentencing remarks rightly described the incident as “quite disgraceful”. He said that W was plainly vulnerable and that she had been significantly affected by the offence. Under the Sentencing Council’s Definitive Guideline the judge concluded that it was a category 2B offence with a starting point of 12 months’ custody and a range from a high level community order to two years’ custody. The offence was aggravated by the offender’s intoxication with drink and drugs. However, said the judge, there were four factors which made it possible to avoid a sentence of immediate imprisonment. First, Mr Fox was a man with no previous convictions whose only formal caution related to a very different type of offence and who was a hard-working man with very good references. Secondly, he had at the time been going through a bad patch in his life and had turned to the drink and drugs which had led him to behave out of character. Thirdly, there had been a long delay before the prosecution which the judge said was in no way the fault of the offender. During that period Mr Fox had voluntarily taken successful steps to address his underlying problems. Fourthly, the judge was satisfied that there was genuine remorse and shame. The judge indicated that he would not impose immediate custody in any event but concluded that a community order was appropriate.

For the Solicitor General, Mr Schofield submitted that the sentence was unduly lenient. Under the Sentencing Guideline he suggested that there were three factors pointing to category 2 harm: touching of naked genitalia, a sustained incident and that the victim was particularly vulnerable due to personal circumstances. That combination of factors, he submitted, merited an upward movement from the guideline starting point even before addressing the aggravating features. Those aggravating features were that Mr Fox had targeted a vulnerable victim, that he committed the offence in an area where the victim could be seen by others, thus increasing her embarrassment when she sobered up and realised what had happened, and his own intoxication. Mr Schofield accepted that there was significant personal mitigation to set against the aggravating features. He acknowledged that a note in the Definitive Guideline stated that where there was a sufficient prospect of rehabilitation, a community order with a sex offender treatment programme requirement could be a proper alternative to a short or moderate length custodial sentence.

Mr Rafati, appearing for Mr Fox, submitted that the judge properly considered and weighed all relevant matters and was entitled to reach the conclusion he did as to the appropriate form of sentence. He argued that there was no evidential basis for any inference that Mr Fox’s trousers were unfastened with sexual intent as opposed to relieving himself. He submitted that Mr Fox was not responsible for the lengthy delay in prosecution. An updated pre-sentence report showed that Mr Fox had already made good progress in performing his hours of unpaid work to a high standard and had completed nearly half of the ordered hours. He continued to do well at work and his employers had funded training which should shortly lead to his qualifying as a large goods vehicle driver. He continued to abstain from drink and drugs and from social activity. The report noted that he had described himself as being so disgusted by what he did that he wanted to avoid any similar situation in the future. He was fearful of custody, which would end his employment and add to certain debts which he was currently slowly repaying. The report assessed him as being suitable for a particular type of offence-focused work during supervision sessions.

Lord Justice Holroyde, giving the judgment of the court, said that Mr Fox was right to be ashamed about this serious offence. The court saw no evidence that he deliberately targeted a vulnerable victim in the sense of going out looking for one, but when he encountered a young woman who plainly was very vulnerable he shamelessly took advantage of her. His own intoxication was an aggravating feature. The court accepted that the offence was wholly out of character, but noted that Mr Fox had persisted in committing it even when interrupted by the passing taxi and that even after the intervention of the security officer he was still walking away with W inviting her to give him oral sex. The court did not agree with Mr Schofield that the duration of the offence came into the category of a sustained incident for the purposes of the guideline, but did agree that it was a relevant consideration that Mr Fox was stopped in his commission of the offence rather than choosing to stop of his own accord. Plainly there was substantial personal mitigation to be set against the aggravating features.

Lord Justice Holroyde considered it very regrettable that at no point in the hearing below did anyone seem to have referred to the Sentencing Council’s Definitive Guideline on the Imposition of Community and Custodial Sentences. That guideline provided the court with a structured approach to decisions as to the imposition and suspension of custodial sentences. At page seven it set four questions to be considered in appropriate sequence. First, the custody threshold had clearly been passed. Secondly, it was, in the court’s judgment, unavoidable that a sentence of imprisonment be imposed to mark the seriousness of the offence. This was not a case to which the note in the Sexual Offences Guideline applied. It was not the case of a sentencer being confronted with a difficult choice between a short or moderate length custodial sentence and a prospect of rehabilitation which could be achieved through a non-custodial sentence but not through a custodial sentence. Here, Mr Fox had already, to his credit, taken steps which had put him well on the road to achieving rehabilitation. Thirdly, strong though the personal mitigation was, it was outweighed by the factors justifying an uplift from the guideline starting point and then a further uplift to reflect the aggravating features of the case. The shortest sentence commensurate with the seriousness of the offence would, after trial, be one of 18 months’ imprisonment. Having regard to the prompt guilty plea, that should be reduced to 12 months’ imprisonment.

The court found the last of the four questions, namely whether the sentence could be suspended, by far the most difficult. The Guideline required the court to weigh certain specified factors in answering it. The strong personal mitigation and the realistic prospect of rehabilitation which Mr Fox was already well on the way to achieving were present as factors indicating that it might be appropriate to suspend the sentence. Of the three factors identified as indicating that it would not be appropriate to suspend the custodial sentence, two were plainly not present, namely that Mr Fox presented a risk or danger to the public and that he had a history of poor compliance with court orders. As to the first of those, the court noted Mr Schofield’s point that the instant offence was an opportunistic offence and in that sense very worrying, but was satisfied from the material before the court below and before the Court of Appeal that there was no significant continuing risk to the public.

The question therefore became whether the third of the factors militating in favour of immediate imprisonment, namely that appropriate punishment could only be achieved by immediate custody, applied so as to outweigh the factors in Mr Fox’s favour. The judge, as the court had said, did not specifically refer to the Imposition Guideline and his indication of the factors which enabled him to sentence as he did was given with express reference to the non-custodial sentence rather than to reasons for suspending a sentence of imprisonment. He had, however, also indicated that in any event he would not have found it necessary to impose an immediate sentence of imprisonment. The court was satisfied that he did consider all the relevant factors. He concluded that this was not a case in which appropriate punishment could only be achieved by immediate custody. That was a lenient, and indeed a very lenient, decision. However, after careful consideration, the court had concluded that, by a narrow margin, it was within the range of sentences properly open to him in the particular circumstances of this case.

Lord Justice Holroyde concluded that in all the circumstances it was not properly open to the judge to pass anything other than a custodial sentence. The imposition of a community order was therefore unduly lenient. The court accepted nonetheless that the judge properly considered and weighed the factors relevant to a decision as to whether a prison sentence of appropriate length could be suspended. The court further accepted that for the reasons which he gave the decision to suspend was one which was, just, properly open to him. The appropriate sentence was a suspended sentence of imprisonment with a requirement of unpaid work. The sentence would take effect from the date of the sentencing below and the court expected that those hours of unpaid work which Mr Fox had already performed would be counted towards the requirement imposed by the Court of Appeal.

The court granted leave to refer, quashed the sentence imposed below as being unduly lenient and substituted a sentence of 12 months’ imprisonment suspended for two years with a requirement that Mr Fox perform unpaid work for 120 hours. The effect of that sentence was to alter some of the consequential orders made below. The surcharge would now be £140 and the notification requirements would apply for ten years. In short, a community order for sexual assault of a vulnerable incapacitated woman was held to be unduly lenient and replaced with a suspended sentence of 12 months, though the Court of Appeal accepted by a narrow margin that suspension was properly open to the sentencing judge.