No: 200903941 A9 
Neutral Citation Number: [2009] EWCA Crim 1922
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Friday, 28th August 2009

B e f o r e:

LADY JUSTICE HALLETT DBE  

MR JUSTICE TEARE 

HIS HONOUR JUDGE ROOK QC
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) 
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R E G I N A 

v 

SULTAN AL‑SAYED
 
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Ms N Akudolu appeared on behalf of the Appellant
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J U D G M E N T
1.	HIS HONOUR JUDGE ROOK QC:  This appellant appeals against sentence with the permission of the Single Judge.  He is a married man aged 30.  He is a national of Saudi Arabia.  
2.	On 24th June 2009, at Chelmsford Crown Court, he was convicted of an offence of attempted voyeurism.  On 28th July 2009, he was sentenced by HHJ Hayward‑Smith QC to nine weeks' imprisonment.  He was required to comply with notification provisions for seven years.  He was disqualified from working with children for life and a recommendation for deportation was made.
3.	Only a brief recital of the facts is necessary.  On 6th September 2008 a ten year old girl was getting changed in a leisure centre in Colchester.  She was with her family.  As she finished getting changed, she saw a mirror slide underneath the cubicle door.  When she looked in the mirror she saw the appellant's face in the mirror.  The appellant then withdrew the mirror.  The girl then crouched down and looked and saw the appellant place the mirror under two other cubicle doors.  
4.	The girl told her mother.  Police officers who happened to be at the leisure centre at the time were informed.  The changing area was searched and the appellant was arrested.  When interviewed, he denied that he was trying to observe anyone.  He said that he was at the leisure centre to look for a mobile phone he had lost.  He went into a cubicle to rest as his leg was hurting.  He also had a toothache and, to ease the pain, he rested his face on the cold floor.  He used the mirror to check on his tooth at the same time.  This was the account that the appellant put forward throughout his trial.
5.	The girl's mother had provided a victim statement in which she states that the offence has had a emotional impact upon the child.  The child tends to feel scared and nervous when she thinks about the offence and her independence has, for the time being, had to be curtailed by her parents.
6.	In his sentencing remarks, the judge noted that the appellant had shown no regret or empathy.  He had deliberately taken the mirror to the leisure centre to spy upon people.  The ten year old girl he had spied upon had been required to give evidence and she had said that the appellant had tried to look into other cubicles.  The judge took the view that the offence was too serious for him to adopt the recommendation in the pre‑sentence report, a suspended sentence.  The offence was aggravated by the pre‑planning involved, which including taking the mirror to spy on the cubicles.  The judge accepted that the mirror was not a sophisticated piece of equipment and the appellant had not specifically targeted children.  However, he regarded the fact that the offence related to a ten year old girl as an aggravating feature.
7.	In the light of these aggravating features, the judge identified the case as falling between level 1 and level 2 in the Sexual Offences Act 2003 definitive guideline for sexual offences for the sentencing of such offences.  It was too serious for any disposal other than a custodial sentence and he took into account the appellant's previous character.
8.	In a pre‑sentence report dated 13th July 2009, its author, Sally Hall, states that the appellant was employed in government management as a supervisor in Saudi Arabia.  He has been staying in this country accompanying his wife, who is currently studying at Hull University until 2010.  He does not have permission to work in this country.  In the view of the author of the report, the appellant has absolutely no understanding of the seriousness of his situation and exhibits a complete lack of remorse and victim empathy.  His level of denial and the language barrier excludes him from participating in specific targeted sex offender programme work whilst either in custody or in the community.  She concludes it is difficult to assess the appellant in terms of risk of serious harm but the present risk is assessed as medium and indeed a suspended sentence with the relevant requirement is proposed.
9.	In the grounds of appeal, it is contended by Ms Akudolu that the sentence imposed was manifestly excessive as the case fell within level 1 of the definitive guidelines.  It is submitted that this was a single instance of spying, the mirror was not sophisticated technology and there was no breach of trust.  Furthermore, it is submitted that the recommendation for deportation should not have been made as the appellant's continued presence in this jurisdiction would not be detrimental to society.
10.	Voyeurism is of course a relatively new offence created by section 67 of the 2003 Act.  It involves, for the purposes of obtaining sexual gratification and knowing that another person does not consent to being observed, observing another person engaged in a private act.  A private act is defined in the context of this offence as an act carried out in a place which in the circumstances would be reasonably expected to provide privacy and where the victim's genitals, buttocks or breasts are exposed or covered in underwear.  The harm inherent in this offence is the intrusion of the victim's privacy.  
11.	The type or nature of the activity covered by level 1 of the guideline includes the basic offence, assuming no aggravating or mitigating factors.  The example given in the guideline is where an offender spies through a hole he has made in a changing room wall.  Here the suggested sentence is a starting point of community order.  The next category, level 2, is designed to cover the offence, the basic offence, with aggravating factors such as recording sexual activity and showing it to others.  Here the starting point is 26 weeks custody with a sentencing range of four weeks to 18 months custody.  The list of aggravating features is clearly not exhaustive and we have no doubt that observing a child can be an aggravating feature which can put an offence into level 2.  The third and most serious category covers the offence with serious aggravating features such as recording sexual activity and placing it on a website or circulating it for a commercial gain.  Here the starting point is 12 months custody and a sentencing range of 26 weeks to two years in custody.  There is no question of this offence falling in that category.
12.	The trial judge took the view that this case fell between category 1 and category 2 of the guidelines in that it had certain features rendering it more serious than the basic offence envisaged as falling in category 1.  It followed that in his view it was too serious for any disposal other than immediate custodial sentence.
13.	We consider that the judge was perfectly entitled to take this view.  The offence does not full neatly into either of the categories but there are significant factors which bring it towards the lower end of category 2.  Whether a child was targeted or not, the complainant was a vulnerable ten year old child.  The appellant took his chance as to the age of the person he was seeking to observe.  It was simply good fortune that the child was clothed.  The fact that this offence was an attempt amounts to limited mitigation.  The appellant, when unsuccessful, was apparently undeterred and continued to try and observe others in other cubicles.  Further, the offence must have involved a measure of planning in that the appellant went to the cubicles equipped with a mirror. It involved significant intrusion on a young child's privacy and the result was potentially disturbing for the child.
14.	As for the length of sentence, the judge was well within the range of sentence suggested in the guideline. He took into account the appellant's previous good character.  There is nothing to suggest that he treated the appellant's risible defence and the fact that a ten year old girl had had to give evidence as an aggravating feature.  It simply meant that the appellant was not entitled to any discount for a plea of guilty.  He made it clear that the sentence would have been longer had he taken the view that the appellant was specifically targeting children.  In these circumstances, we do not consider there is any merit in the argument that the sentence was manifestly excessive.
15.	As to the judge's recommendation that the appellant should be deported, we are invited to have regard to the fact that the appellant's wife is a sponsored student and the couple's stay is being funded by the Saudi government.  Ms Akudolu has very candidly stated that there are matters here which were not deployed before the sentencing judge.  The appellant is not a drain upon the sources of society.  Deportation inevitably will have a dramatic effect upon the appellant's wife, who is to remain here until she completes her studies in microbiology in 2010.  Further, her stay here is dependent upon the appellant being here with her as a chaperon.  
16.	We remind ourselves that the offence involves an intrusion into a child's privacy rather than physical touching.  Serious though this offence was, as well as being potentially disturbing for the victim, we are unable to say one way or the other on the strength of this conviction that this appellant's continued presence in this country is detrimental to society.  This is confirmed by the fact that the author of the pre‑sentence report found great difficulties in assessing the appellant.  We give no view as to whether deportation is appropriate in this case.  That will be a matter for decision by the Home Office.  
17.	It follows that this appeal is allowed to the limited extent that we quash the recommendation for deportation.  The prison sentence and the other ancillary orders all remain.