R v BPK (2025): Clarifying the Singular “Starting Point” in Sentencing Guidelines and the Need to Recognise Separate Criminality

Introduction

In R v BPK ([2025] EWCA Crim 711) the Court of Appeal (Criminal Division), led by the Vice-President, considered a reference made by His Majesty’s Solicitor General under the “Unduly Lenient Sentence” (ULS) scheme. The offender, anonymised as BPK, had received wholly suspended sentences for:

Assault by penetration – s.2 Sexual Offences Act 2003 (“count 2”).
Disclosure of private sexual photographs – s.33 Criminal Justice and Courts Act 2015 (“count 3”).

The Crown argued that the sentences (2 years SSO on count 2, 12 months concurrent SSO on count 3) failed to reflect the gravity of the offending. The central issues for the Court were:

Whether the sentencer misapplied the relevant Sentencing Council guidelines, particularly the concept of a “starting point”.
Whether aggravating/mitigating factors and credit for plea were correctly calibrated.
Whether the offending on count 3 should have been given separate (consecutive or uplifted) effect.

Summary of the Judgment

The Court of Appeal found the original sentences “unduly lenient”. Key determinations were:

A victim who is asleep when sexual assault commences is normally “particularly vulnerable” (guideline Category 2), giving a fixed starting point of 6 years. Downgrading that starting point is an adjustment, not an invitation to choose a new baseline.
The judge’s downward movement, excessive plea credit, and concurrency decision produced a sentence “only half the very bottom” of the Category 2B range and could not stand.
An appropriate post-trial sentence was at least 3 years for count 2. After a strict 10 % plea discount and totality considerations, 2 years 9 months was required.
Count 3 added distinct criminality; 8 months (after discount) was appropriate, to be served concurrently but explicitly recognised within the total sentence.

The Court therefore quashed the suspended sentences and substituted an immediate custodial term of 2 years 9 months. It reiterated that any report must preserve the anonymity of both complainant (C) and offender (BPK).

Detailed Analysis

1. Precedents Cited

R v Naqvi [2024] EWCA Crim 958 – Re-stated the correct multi-stage guideline approach and condemned loose, overlapping uses of “starting point”.
R v BN [2021] EWCA Crim 1250 – Confirmed that a victim asleep at inception of sexual activity is generally “particularly vulnerable”, while allowing downward adjustment if sleep-vulnerability is brief.
R v Husband [2021] EWCA Crim 1240 – Similar endorsement of BN; intoxication or sleep each suffices for vulnerability.
R v AWA [2021] EWCA Crim 1877 & R v Iqbal [2024] EWCA Crim 689 – Explained that vulnerability when asleep is fact-sensitive, not automatic.

These authorities guided the Court in categorising harm, clarifying “particularly vulnerable”, and emphasising disciplined use of guideline language.

2. Legal Reasoning

Guideline categorisation • Because C was asleep when penetration started, Category 2 harm applied. • Only one starting point exists — 6 years — mandated by s.60(4)(a) Sentencing Code.
Adjustment vs. new baseline • The sentencing judge impermissibly spoke of being on the “cusp” of Categories 2 and 3, effectively inventing a new starting point. • Proper technique: start at 6 years, then adjust down for short-lived vulnerability.
Aggravation & mitigation • Aggravation: continuation after victim moved, psychological harm, post-offence denigration. • Mitigation: good character, maturity since offence, age (19). • The Court considered mitigation outweighed aggravation but not to the degree found below.
Plea credit • Guilty plea to count 2 was “very late” (morning of re-trial). The judge’s >10 % credit breached principle; 10 % was maximum allowable.
Separate criminality of count 3 • Sending intimate images to multiple recipients was “vindictive spite”. • Either consecutive sentencing or a clear uplift on count 2 is required for totality. The judge did neither.
Total sentence & rehabilitation • While rehabilitation is desirable, offences crossing the 2-year immediate custody threshold ordinarily defeat a suspended approach.

3. Likely Impact

Tightened guideline discipline. Practitioners and judges must treat guideline “starting points” as immutable within a chosen category; any movement is a post-starting adjustment. The Court’s emphatic language (“we reiterate yet again…”) will likely be cited frequently.
Domestic/relationship assaults. The judgment underscores that sleeping partners are “particularly vulnerable”, affirming Category 2 positioning for many acquaintance-rape/assault allegations.
Concurrent sentences scrutiny. Where separate offences add qualitatively different harm (e.g., “revenge porn”), failure to reflect that harm now carries heightened appellate risk.
Plea credit consistency. Sentencers who reduce more than 10 % for pleas entered after a trial date is set expose sentences to ULS referral.
ULS referrals. The case emboldens the Law Officers’ Department to challenge sentences that fall below even the bottom of category ranges after improper adjustments.

Complex Concepts Simplified

Starting Point vs. Range – The “starting point” is the midpoint used for a hypothetical, middle-case scenario within a guideline category. The “category range” is the room for adjustment up or down based on case-specific factors.
Unduly Lenient Sentence (ULS) Scheme – Allows the Attorney or Solicitor General to refer sentences for certain offences to the Court of Appeal if they appear too mild.
Concurrency vs. Consecutive Sentences – Concurrent sentences run at the same time; consecutive ones follow one after the other. Courts choose the structure to reflect the totality of criminality.
Plea Discount – Defendants who plead guilty early receive sentence reductions, recognising public saving of time and victim trauma. The later the plea, the smaller (sometimes nil) the discount.
Particularly Vulnerable Victim – Within sexual offences guidelines, victims who are asleep, very young, intoxicated, or otherwise unable to protect themselves are classed as “particularly vulnerable,” elevating starting points.

Conclusion

R v BPK cements two crucial sentencing principles:

Once a guideline category is identified, the prescribed starting point is sacrosanct; subsequent movements are adjustments, not fresh baselines.
Distinct offences that aggravate overall criminality (here, “revenge porn” alongside sexual assault) must be given tangible effect, either consecutively or by uplift.

By reinforcing methodological rigor, the Court of Appeal has provided clear direction to sentencers and practitioners, aiming to enhance consistency, transparency, and public confidence in the sentencing process. Future cases that underestimate starting points or obscure separate criminal harms now carry a heightened risk of appellate intervention.