No: 200706630 A9 
Neutral Citation Number: [2008] EWCA Crim 727
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Date: Tuesday, 4th March 2008

B e f o r e:

LORD JUSTICE LAWS 

HIS HONOUR JUDGE RADFORD 
- - - - - - - - - - - - - - - - - - - - -

R E G I N A 

v 

OMED MORAD
- - - - - - - - - - - - - - - - - - - - -

Computer Aided Transcript of the Stenograph Notes of  
WordWave International Limited
A Merrill Communications Company 
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr I Rees appeared on behalf of the Appellant 
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T 

1.	JUDGE RADFORD:  This appellant is now aged 34, having been born on 1st September 1997.  He entered this country in 2001 from Iraq as a political refugee.  He was later granted indefinite leave to remain in the United Kingdom.  On 2nd November 2007, at the Crown Court at Cardiff, he pleaded guilty and on 4th December of the same year was sentenced for two offences by His Honour Judge Hopkins QC, the first offence being one included in count 1 of the indictment of sexual assault, an offence committed by him on 24th June 2007, for which he received a sentence of two years' imprisonment, and the second offence, count 2 on the indictment, an offence of assault occasioning actual bodily harm committed on 25th August 2007, for which he received a sentence of 12 months' imprisonment which was ordered to run consecutively.  Appropriate orders were made in relation to a direction under section 240 of the 2003 Act.  It is to be noted that these were the appellant's first ever convictions.  He now appeals to this court against the sentences passed by leave of the single judge.  Mr Rees, who appears for him today, has made clear that the observations of the single judge are the basis upon which he submits to the court that the overall length of these sentences should be reduced.
2.	The facts of the offences can be shortly stated.  Dealing first with count 1, on the evening of 23rd June last year a woman went to a nightclub in Newport with a friend.  She had been drinking alcohol.  At about 2.30 in the morning she left the club to look for some food.  She set off walking down the street and came across the appellant, who was sitting on the ground with his back against a shop window.  He stared at her and had a big grin on his face.  That made her uneasy.  He got to his feet and stood in front of her, barring her way.  She tried to get past him but he kept blocking her path before he invited her to his home.  The woman told him she was going home with a friend and tried to walk off, but the appellant grabbed hold of her wrist and pulled her.  As a result she fell over.  She managed though to get to her feet and sent a text message on her phone, seeking assistance from a friend.  She also telephoned her boyfriend.  He arrived.  He told the appellant to go away.  There was then an argument between the woman and the boyfriend, and the boyfriend then walked away.  The friend of the woman, who had also arrived, also walked off with the boyfriend.  That gave the appellant, unfortunately, the opportunity to approach the woman again and ask her to come back home with him.  He then touched her vagina over her clothing and tried to put his hand down inside her trousers.  She resisted.  He then started to pull at her top with both hands and managed to touch her breasts.  He tried to kiss her and she tried to wriggle free as he wrapped his arms around her.  At that point, fortunately, the woman's boyfriend returned and the appellant broke off from the assault.  By this time the woman he had assaulted was crying hysterically and later she was comforted by the boyfriend's mother who arrived in a car.  
3.	The police arrived at the scene and the appellant was arrested.  He was later interviewed.  In the interview he claimed he had done nothing wrong, but said that he had drunk a considerable amount that evening.  He was subsequently charged and released on police bail.  The offence in count 2 was therefore committed whilst he was on bail.  
4.	The facts are that at about 1 o'clock in the morning on 25th August 2007 the victim, a woman, and her friend left a nightclub in Newport.  They noticed the appellant, who was following them.  One of the women needed to use a toilet and as a result she went into a block of flats.  The appellant invited her to use the toilet in his flat which was in that block of apartments.  When the woman came out of the toilet the appellant grabbed her by the wrist and punched her several times to the face, before throwing her to the ground, and then kicked her a number of times to the ribs.  Her friend picked up a knife and held it towards the appellant, who desisted from the assault.  The two women, the victim and her friend, ran out of the flat and sought out police officers.  They told them what had happened.
5.	The victim of the offence, it is to be noted, received a large bump to her forehead and bruising to her ribs as a result of this assault.  
6.	The police went to the appellant's flat and arrested him there.  He denied the offence in interview, saying that the woman had come to his flat to use the toilet and said that they had then demanded money for sexual services.
7.	A pre‑sentence report was before the sentencing judge.  In it the writer of the report noted the appellant's explanation that he had been drunk prior to each of these offences.  The reporting officer said that the appellant had minimised the seriousness of his behaviour.  He was assessed in the report as having only a low risk of re‑offending, but a medium risk of further sexual or violent offences being committed by him.  A community order with various requirements was recommended.
8.	In sentencing the appellant for these matters, the judge made clear, as was indeed the case, that both women were complete strangers to the appellant and that he was on bail, as we have said, when he committed the second of the offences.  The judge recounted how the first victim had been very shocked and distressed by the appellant's assault and that the experience had been both frightening and humiliating for her.  The judge also stated that the second attack was unprovoked and seemingly motiveless.  He made clear though that the victim of that assault had not been seriously injured, but nevertheless had been very upset and frightened by what had occurred.  The learned judge indicated that custody was inevitable.  He said that he took account of the appellant's mitigation, notably his early pleas of guilty to the offences, his previous good character, the contents of the report and the letter from the appellant that was before the judge.
9.	In the grounds of appeal settled by counsel who appeared for the appellant in the court below it is submitted that the sentences were manifestly excessive having regard to the appellant's guilty pleas, his previous good character, the effect of the Sentencing Guidelines Council's Definitive Guideline on sexual offence sentencing and the principle of totality.  
10.	The learned single judge, in granting leave, drew attention to the Definitive Guideline in relation to count 1 and the matters of relevance to the second count and the sentence passed on that.
11.	The essential matters drawn to our attention relate, firstly, to the merits of the point made as to the application of the Sentencing Guidelines Council's Definitive Guideline.  We agree, with respect, with the single judge that the appropriate bracket into which this offence fell was the bracket of those kinds of offences of sexual assault for which 26 weeks to two years would be the appropriate starting point in respect of a contested case.  Having regard to the matters of mitigation, not least the appellant's prompt pleas of guilty, the fact that it appears that no serious injury was occasioned and the fact that the degree of the sexual nature of the assault was limited, we are of the view that a total sentence of two years' imprisonment for that offence was manifestly excessive.  We accede to the submission that is made to us that the sentence should be reduced.  In our judgment, having regard to the aggravating and mitigating factors and the application of the appropriate guideline, the appropriate length of sentence would be one of 15 months' imprisonment in respect of that count, and to that extent in relation to that sentence the appeal is allowed.
12.	We now turn to the submissions made to us in respect of the offence of assault occasioning actual bodily harm and the sentence of 12 months' imprisonment consecutively that was passed in relation to that offence.  As has been conceded properly by Mr Rees in submissions to us, it was wholly appropriate for a consecutive sentence to have been passed for that offence: the offence having been committed on bail and being a wholly separate matter from the offence which gave rise to the matter charged in the first count of the indictment.  It involved clearly too an unpleasant and persistent violent assault on a young woman, and in our judgment again plainly merited immediate custody.  The facts are though, happily, that only minor physical injury was occasioned to the victim.  Of course she was frightened and stressed, but no long‑lasting effect appears from the papers that we have seen.  
13.	Given the need to have in mind the principle of totality, in our judgment it was right that the sentence be somewhat less than was passed by the learned judge, taking into account the overall sentences passed and the fact that the appellant had never previously served any sentence of imprisonment.  Given those factors, we are of the view that the sentence in relation to count 2 should be reduced from 12 months' imprisonment to 9 months' imprisonment, and to that extent the appeal in relation to sentence on that count is allowed.  
14.	The effect of our decision is that the overall sentence to be served is reduced from three years' imprisonment to one of two years' imprisonment, made up as we have said.