Scott Marjoram [2019] EWCA Crim 1913

Scott Roydon Marjoram [2019] EWCA Crim 1913 was an appeal before Lord Justice Davis, Mrs Justice Simler and His Honour Judge Hilliard QC sitting in the Court of Appeal Criminal Division, which dismissed the appeal against a total sentence of 24 months’ imprisonment for five offences of sexual assault.

Mr Marjoram pleaded guilty in the magistrates’ court on 1 August 2018 to two offences of sexual assault contrary to section 3 of the Sexual Offences Act 2003 and was committed to the Crown Court for sentence. On 10 December 2018 he pleaded guilty in the Crown Court at Norwich to three further offences of the same kind. On 23 January 2019 he was sentenced to concurrent terms of 10 months’ imprisonment for each of the two committal offences and concurrent terms of 14 months’ imprisonment for each of the three indicted offences, with the two sets running consecutively to produce the overall term of 24 months. A five-year restraining order was also made under the Protection from Harassment Act 1997.

The offences concerned four separate victims at or connected with a multi-occupancy house where Mr Marjoram lived. On 30 July 2018 he assaulted complainant A, who had just returned from hospital. He placed his hands on her breasts over her clothing; she shrugged him off and told him not to touch her. As she walked downstairs he grabbed her in a bear hug, said he wanted to make love to her, and dragged her towards his room. She struggled free but feared she was going to be raped. Later that evening Mr Marjoram visited complainant B at her home. She suffered from anxiety and depression, facts known to him. He sat very close to her on the sofa, put his arm around her shoulders and kissed the top of her right shoulder. She froze, having been the victim of a previous sexual assault of which Mr Marjoram was aware. He blocked her from standing when she said she wanted to telephone her mother, told her to leave him alone, pulled down her top to expose her bra, put his hands inside her leggings from behind and tried to pull the leggings down. She managed to reach her bedroom and shut the door. The police attended and found Mr Marjoram lying outside by the bins surrounded by clothing. He was interviewed, admitted both offences and was bailed.

The three further offences related to complainant C, another resident in the same accommodation, and a staff member D. Between 30 July and 3 August, Mr Marjoram knocked on C’s door and when she opened it and backed away he moved forward, touched her between her legs and grabbed her. On 3 August he grabbed at her breast in the kitchen area. She said she knew he was ill but that his behaviour was inappropriate. She returned to her room where she cried and self-harmed. On 9 August, with C in the main reception area, Mr Marjoram followed her despite being told not to come any closer. Staff member D came out of the office and told him to leave C alone. Mr Marjoram then grabbed D’s breast and squeezed it firmly. When interviewed he said he could not remember the incidents relating to C and then became abusive, which may have been a consequence of his psychiatric condition at the time.

Mr Marjoram was 40 years old at sentence and had relevant previous convictions consisting of 14 offences of sexual assault in 2010 for which he had received a community order. Those earlier offences had involved touching female victims unknown to him in public. A psychiatric report dated 30 November 2018 stated that he had presented with an acute mental disorder whilst in custody on remand, probably an acute psychosis, which had responded to treatment in hospital. There was a previous diagnosis of depression and a history of polysubstance misuse. He had poor coping skills which left him at risk of deterioration in his mental state, which was considered fragile. Cocaine and methadone had been found in his blood on 5 August and he also admitted to having used Spice. A pre-sentence report indicated that Mr Marjoram believed the driver for the offences was the deterioration in his mental state, although there was no expert evidence making a connection between his mental state and the offending. He was assessed as posing a high risk of reconviction for a sexual crime and said that he had a high sex drive. The author recommended, if the court was prepared to suspend a sentence or make a community order, a 36-month community order with a rehabilitation activity requirement and attendance at a sex offender treatment programme, if his mental health permitted. A mental health treatment requirement was not said to be an available option. A prison report dated 24 April 2019 recorded that Mr Marjoram believed he had been experiencing mental illness at the time of the offending, that he could not think rationally and was not compliant with his medication, but that medication was now keeping his mood stable.

The sentencing judge said that the first two victims were particularly vulnerable and that Mr Marjoram knew about their personal problems. Whilst he may have had mental health issues, he had simply not learned the lessons from his 2010 offending. There was an element of persistence about the offences. Having pleaded guilty at the first opportunity and been bailed, he had offended again. He knew that C was vulnerable because of her own difficulties and he had then assaulted a member of staff who had come to her assistance, again demonstrating persistence. The judge correctly categorised the offences as falling within category 2B of the Sexual Offences Sentencing Guidelines because of the vulnerability of the victims. One such offence had a starting point of 12 months’ custody with a range from a high level community order to two years’ custody. The judge said that there had to be an immediate custodial sentence, as Mr Marjoram had not taken the chance he was given in 2010 and had to understand that this type of behaviour could not be tolerated.

On appeal Mr Marjoram submitted that the judge failed to give sufficient regard to the possibility of a non-custodial sentence and to his mental health at the time the offences were committed. In any event, it was argued that a period of three years’ custody before discounting for the pleas of guilty was manifestly excessive. The single judge granted permission to appeal.

The Court of Appeal considered the definitive guideline for the imposition of community and custodial sentences and held that the custody threshold had been passed in this case notwithstanding Mr Marjoram’s own difficulties. The offences were so serious in combination that a community sentence could not be justified. There were a number of vulnerable victims and a member of staff involved. The judge was right to identify persistence in the offences and Mr Marjoram had caused very significant distress and turmoil. A sentence of imprisonment was unavoidable. The offender did present a risk in the future, particularly if he did not come to appreciate the seriousness of what he had done. Appropriate punishment required immediate custody.

As to length, the Court observed that the category range for one category 2B offence extends up to two years’ imprisonment. In this case there were five offences with a number of victims who were particularly vulnerable and to Mr Marjoram’s own knowledge, and one victim who was performing a public service. Even taking account of his own difficulties, the fact was that he knew right from wrong and having begun the assaults, they were persisted in for a time and in a way which added to their seriousness. Having been arrested and interviewed, he then went on to commit the second set of offences. Nor could his previous convictions be left out of account. In all those circumstances the Court held that the total sentence of two years’ imprisonment could not properly be said to be either wrong in principle or manifestly excessive. In short, the appeal was dismissed on the basis that immediate custody was inevitable given the combination of multiple vulnerable victims, the persistence of the offending including whilst on bail, and the appellant’s failure to learn from a previous community penalty for similar conduct.