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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 >> Green, R. v [2025] EWCA Crim 462 (28 March 2025)
URL: https://www.bailii.org/ew/cases/EWCA/Crim/2025/462.html
Cite as: [2025] EWCA Crim 462

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WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.

Neutral Citation Number: [2025] EWCA Crim 462
CASE NO 202500349/A4

IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT AT LEEDS
HHJ BAYLISS 13WD0134824

Royal Courts of Justice
Strand
London
WC2A 2LL
28 March 2025

B e f o r e :

LORD JUSTICE STUART-SMITH
MR JUSTICE BRYAN
HIS HONOUR JUDGE ANDREW LEES
(Sitting as a Judge of the CACD)

____________________

REX
- v -
MICHAEL GREEN

____________________

MR M DAVLIN appeared on behalf of the Appellant.
____________________

HTML VERSION OF APPROVED JUDGMENT
____________________

Crown Copyright ©

    MR JUSTICE BRYAN:

  1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act, and this judgment has been anonymised accordingly.
  2. On 27 November 2024 in the Crown Court at Leeds, the appellant (then aged 40) pleaded guilty to one count of sexual assault, contrary to section 3 of the Sexual Offences Act 2003, and on 6 January 2025 His Honour Judge Bayliss KC sentenced the appellant to 16 months' imprisonment.
  3. The appellant appeals against sentence by leave of the single judge on the ground that the sentence passed was arguably manifestly excessive in that the starting point adopted was too high and the custodial sentence should have been suspended.
  4. Turning to the facts of the appellant's offending. At 16:50 on 26 January 2024 a 15-year-old female (who we shall refer to as "C1") and her friend boarded a bus travelling from Wakefield towards Castleford. There were seven or eight other passengers. The girls sat at the rear of the bus.
  5. Approximately 10 minutes later the appellant boarded. He was under the influence of alcohol. The appellant turned in his seat and tried to engage C1 in conversation. He asked about her day, whether she had a boyfriend, and if she thought he looked 40.
  6. The appellant asked C1 how old she was. In an attempt to put him off speaking with her further C1 said she was 13. The appellant replied, "No you are not, you're older." He then said he liked "young pussy". The appellant told C1 that she looked sexy in her pink leggings and began to stroke her thigh. He told C1's friend that he would have "a threesome with you and your mate."
  7. The appellant got up a number of times and at one stage went to the front of the bus to speak with the driver before returning to sit next to C1.
  8. He stroked C1's thigh for a second time, moving his hand into her inner thigh using his full left hand and stroked her thigh with his thumb in a manner that C1 felt was clearly sexual touching. C1's friend told her to budge up away from him.
  9. The appellant took a telephone call and then stroked C1's thigh again, calling her "sexy bird, beautiful and shagg-able", which is caught on a short video clip C1 made on her mobile telephone. C1 wanted to move away from the appellant but was scared to as she had to pass him to do so.
  10. When the appellant rolled a cigarette the girls took the opportunity to move towards the front of the bus. However the appellant followed and sat in the seat across the aisle from them.
  11. C1 climbed over the seat to get away from the appellant as she was in fear of him, using the seats in front as stepping stones, and at this point the female bus driver stopped the bus to ask what was going on. C1 was visibly upset and was crying. When C1 told her what had happened the bus driver contacted the police, and the appellant was arrested at the bus station. The offending took place across an extended period of time of some 40 minutes.
  12. There was a victim personal statement from C1 made on 27 January 2024. In it C1 stated that she was scared when she thought about the assault, and that she no longer went out to see friends, that she did not think she was going to go on public transport again as she did not want it to happen again, and if her parents could not take her she would not be able to do anything, or get out or see her friends. She was also worried about it coming up at school as that would make her feel awkward.
  13. The appellant was not of previous good character and had 10 previous convictions for 13 offences spanning from 22 September 1999 to 10 June 2015, one of which was a previous conviction of indecent assault on a female under 16 from 1999 when he was aged 15, and it appears this involved him touching a girl's breast.
  14. There was both a pre-sentence report and a psychiatric report in relation to the appellant that had been provided in advance of the appellant's guilty plea. The author of the pre-sentence report identified that the appellant had been subject to sexual abuse as a young child and said that he had never had a sexual relationship, and considered it probable that the appellant was motivated by some degree of sexual interest in the victim and the fact that she was a young teenager might have allowed him to feel more confident in approaching her, due to his own sexual inexperience and low self-esteem. The author assessed the appellant as posing a high risk of harm to children, namely teenage girls, the nature of the risk being sexual harassment and sexual assault, with the risk being the greatest if he encountered a potential victim he found attractive and at a time when he was under the influence of alcohol which may have a disinhibiting effect on his behaviour. The author also identified that given the fact the offence occurred in full view on public transport, it appeared that the appellant had poor internal controls with a raised likelihood of further similar offending. The author recognised the possibility of an immediate custodial sentence, but in the event that the court felt able to pass a community-based sentence recommended a community order with a sexual offending programme, a Rehabilitation Activity Requirement, Alcohol Abstinence Monitoring Requirement and a Curfew.
  15. The author of the psychiatric report identified that in the appellant's medical school records there was reference to aggressive outbursts at school and "inappropriate sexual behaviour" and a headteacher's letter (from when he was around 10) that, "He is very sexually aware and has frequently touched girls and once a teacher inappropriately" with references to him exposing himself, including on a bus. He had had previous diagnoses of mild learning disability and conduct disorder and had been sectioned from 2001 to November 2016, and behaviours during this time included references to sexual assault, with references to "at times sexually inappropriate behaviour" after his release back into the community, as well as mood swings and difficulties managing his anger. The author found the appellant fit to plead. He concluded that the appellant demonstrated traits of mixed personality disorder with prominent features including a low frustration tolerance, emotional instability, poor impulse control and difficulties maintaining interpersonal relationships.
  16. In his sentencing remarks the Learned Judge identified that the appellant was disinhibited by drink having drunk 3 or 4 pints of lager, and addressed the circumstances of the finding (rightly) considering it to be a persistent incident involving sexual touching of a child that the appellant knew was a child and whom as such, was extremely vulnerable. He referred to the victim personal statement and identified that it must have been an ordeal for C1. As for the appellant he made express and detailed reference to the psychiatrist's report, and noted that the psychiatrist had referred to the appellant's behaviours "goal-directed and purposeful", and had not considered that his understanding was impaired by his learning disability or any other mental disorder and did not consider his culpability to have been reduced. He concluded that it was Category 2 offending as a sustained and persistent offending, and the victim was vulnerable due to her personal circumstances as a teenage girl on a bus, with culpability B, resulting in a starting point of one year's custody and a range up to two years custody. Aggravating factors included the fact that another child witnessed the assault and lived through the ordeal, and the appellant was under the influence of alcohol. The Learned Judge made express reference to the mitigation as advanced by counsel.
  17. The Learned Judge referred to the Imposition Guideline, and weighed the factors for and against suspension including the prospect of rehabilitation if a community-based sentence was passed when weighed against the fact that the appellant had been assessed as posing a high risk of sexual harassment and sexual harm to teenage girls, and the fact that it was a persistent course of sexualised behaviour in public and in the presence of another child, and concluded that the appropriate punishment could only be achieved by immediate custody, which would have been 2 years' imprisonment after trial, 16 months' after full credit for guilty plea.
  18. In the Grounds of Appeal prepared by Mr Davlin, who has appeared before us today, it is accepted that the offending was rightly categorised as a B2 offence with a starting point of 1 year's imprisonment and a range up to 2 years' imprisonment, and it is further accepted that the Complainant was vulnerable, and that the incident was sustained. However, Mr Davlin submitted that the part of the psychiatric report that the Learned Judge referred to was in the context of the appellant's capacity to understand the nature of what he was doing and his ability to form intent, and submitted that the mental disorder that had developed from the horrendous abuse that the appellant had suffered as a child should have been regarded as reducing culpability. It was also pointed out that the appellant had expressed remorse, and there was also substantial mitigation (which he acknowledged the Learned Judge had referenced).
  19. There is now also a prison report in relation to the appellant from HMP Leeds. The appellant's behaviour has been generally good. It has not been possible to transfer him from HMP Leeds (which is a remand prison) to a suitable establishment due to limited space within the prison estate and as a remand prison it has not been possible to facilitate any offender behaviour work. As such no sex offender programme has been completed by the applicant and he has not been working with the prison's Drug and Alcohol Services during his time in custody.
  20. The real gravamen of Mr Davlin's submissions was that the Learned Judge was not justified in going to the very top of the sentencing range, and that the Learned Judge erred in not imposing a suspended sentence with appropriate requirements submitting that the Accredited Sexual Offence Programme and 55 RAR days would be as likely to have a positive impact as immediate custody, and suggesting there was a realistic prospect of rehabilitation when coupled with the expressions of remorse and the disproportionate impact on the appellant of an immediate custodial sentence for someone with the appellant's mental disorders.
  21. We are grateful to Mr Davlin for the quality of his written submissions and the assistance he has provided to us. We address first the length of the sentence passed. There is no issue as to the appropriate characterisation of the offending, it was a Category B2 under the Sexual Offence Guideline. We consider that notwithstanding the appellant's learning disabilities and mental disorders the Learned Judge was entitled to conclude that these did not reduce his culpability to any significant extent.
  22. There were also a large number of aggravating factors that significantly outweighed the available mitigation and justified a very substantial increase from the starting point. First, the appellant was under the influence of, and was disinhibited by, drink, and not only was this a serious aggravating factor, but it provides the context for the offending itself. Secondly, this was a sustained and persistent course of sexual conduct. Thirdly, the offending was against a child who was vulnerable by her age and the location of the offending and who had to suffer an extended ordeal of inappropriate sexual touching at the appellant's hands. Fourthly, this was offending in a public place with others present, including C1's companion who understandably herself felt "uncomfortable and nervous" as the appellant proposed sexualised contact with her as well as C1.
  23. Balancing the aggravating and mitigating factors a sentence of 2 years' imprisonment (at the very top of the sentencing range) whilst severe, was not manifestly excessive.
  24. However there is, we consider, considerably more merit in the second ground. Whilst the Learned Judge did refer to the Imposition Guidelines, we do not consider that he fully grappled with the complexities of the appellant's background, and how the risks of his future offending could best be managed, so as to reduce such risks for the future, and maximise both the prospect of rehabilitation, and the protection of those to whom he presents a risk having regard to the content of the pre-sentence report and the psychiatric report.
  25. We note that the appellant had had no convictions since 2015 and had never received a custodial sentence. The clear picture that emerges from the pre-sentence report and the psychiatric report is of a history, particularly, as a youth, of sexualised behaviour, accompanied by a learning disability with nothing having been done to address such matters. At the same time the appellant had showed remorse and also a willingness to comply with any requirements that might be imposed (for example, there were accompanying staff with him on the day in question when he was drinking who were unexpectedly called away to deal with an emergency).
  26. We consider that a key consideration was how best to manage the appellant's risk of re-offending, and the high risk of harm that he presented of sexual harassment and sexual assault to teenage girls. Whilst the offending was very serious, the reality is that an immediate custodial sentence of the length imposed might not allow an opportunity for him to take part in a sex offender programme or to address his alcohol issues, as has proved to be the case from the Prison Report. In contrast, a suspended sentence order with a sexual offending programme would do so, whilst RAR and curfew would provide elements of punishment and an alcohol abstinence monitoring requirement would go towards addressing his issues in relation to alcohol.
  27. We consider that on the very particular facts of the present case, the Learned Judge did err in not passing a suspended sentence order with associated appropriate conditions.
  28. We accordingly quash the sentence of 16 months' immediate imprisonment and substitute a sentence of 16 months' imprisonment, suspended for 24 months on the following conditions:
  29. (1) During the next 24 months the appellant must not commit any kind of offence anywhere in the United Kingdom;
    (2) During the same period the appellant must keep in touch with an officer who will be responsible for his case.
    (3) The appellant must also comply with the following requirements, namely:
    (a) A residence requirement. During the next 24 months the appellant must reside at [REDACTED FROM JUDGMENT AS REPORTED] (the "Property").
    (b) An accredited sexual offending programme of up to 43 days. The appellant must complete this requirement within 24 months.
    (c) A Rehabilitation Activity Requirement, whereby the appellant must participate on 55 days in rehabilitation activities, including the Building Choices Programme, and whilst doing so must do as he is instructed by or on behalf of the person in charge. The appellant must complete this requirement within 24 months.
    (d) A curfew requirement. For the next 4 months the appellant must remain at the Property between the hours of 7.00pm and 7.00 am each day. Checks will be made by electronic monitoring equipment to see that the appellant is complying with this requirement. The checks will be made for all of the period of the requirement.
    (e) An Alcohol Abstinence Monitoring Requirement for the next 90 days.
  30. If the appellant keeps to these conditions, the sentence which has been suspended will not take effect. If the appellant breaks any of the conditions, a court could order the sentence to take effect in full or in part, or alter it to make it more demanding.
  31. Accordingly, and to that extent, this appeal against sentence is allowed.


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URL: https://www.bailii.org/ew/cases/EWCA/Crim/2025/462.html