Court: England and Wales Court of Appeal (Criminal Division)

Date: 29 October 2025

Citation: [2025] EWCA Crim 1470

Procedural posture: Reference by His Majesty’s Solicitor General for an unduly lenient sentence (leave granted).

Anonymity: The complainant retains lifelong anonymity under the Sexual Offences (Amendment) Act 1992. This commentary avoids any information likely to identify the complainant, consistent with the Court’s express reminder at paragraph 1.

Introduction

This judgment addresses two central sentencing questions in sexual offences: first, the correct categorisation of harm where a complainant is acutely intoxicated and exploited for sexual offending; second, how a sentencer should reflect the additional criminality of multiple penetrative offences arising in a single incident when passing concurrent sentences under the totality principle.

The offender, aged 26 at the time, was convicted after trial of rape and assault by penetration against a 16-year-old complainant (referred to as V). At first instance, the judge adopted harm Category 3B for both counts and imposed concurrent sentences amounting to an aggregate of six years and six months’ imprisonment. On the Solicitor General’s reference, the Court of Appeal held the sentence to be unduly lenient, recategorised both counts as Category 2B and, crucially, articulated a clear method for uplifting the lead sentence to reflect the second penetrative count even where both offences form part of a single episode.

The case therefore refines three points of practical importance to sentencers: (1) extreme intoxication rendering a complainant unable to protect herself places rape and assault by penetration in harm Category 2; (2) “targeting a particularly vulnerable victim” may be applied as an aggravator in addition to Category 2 harm, with only limited overlap; and (3) where concurrent sentences are imposed for multiple penetrative offences, the lead sentence must be uplifted to reflect the additional criminality, guided by the bespoke question posed by the Court at paragraph 28.

Summary of the Judgment

• The first-instance categorisation of both offences as Category 3B was plainly wrong; both offences fell within Category 2B because V was “particularly vulnerable due to personal circumstances,” namely extreme intoxication (para 21; applying R v BN [2022] 1 Cr App R (S) 37 [25]).
• There were five significant aggravating features: targeted vulnerability; public park location; early-hours timing; offender intoxication through alcohol and drugs; and the complainant’s age (16), known to the offender (para 22).
• The offender’s positive good character and lack of relevant convictions did not outweigh the aggravating features (para 23).
• Vulnerability was relevant both to harm categorisation (Category 2) and to the separate aggravator of “targeting a particularly vulnerable victim”; the Court clarified that any overlap was limited because the aggravator concerns the offender’s choice to exploit known vulnerability (para 24).
• Viewing the rape count alone, the Court held that a sentence “in the region of nine years” was the lowest properly open (paras 25–26). For assault by penetration alone, the proper sentence approached seven years (para 26).
• Applying the totality principle to concurrent sentences, the Court held it was an error of principle not to uplift the lead sentence (rape) to reflect the additional criminality of the assault by penetration (para 27). The Court formulated a structured question: “To what extent does the [additional] offence of penetration make the overall seriousness of the offender’s conduct worse?” (para 28).
• Outcome: the sentence on the rape count was quashed and substituted with 10 years and six months’ imprisonment; no change was necessary to the concurrent sentence on the assault by penetration count (paras 29–30).

Analysis

1) The legal framework and issues

The case engages the Sentencing Council’s Definitive Guidelines for rape and assault by penetration and the totality guideline governing multiple offences. It also arises under the Unduly Lenient Sentence (ULS) reference scheme, by which the Solicitor General may invite the Court of Appeal to review a sentence that falls outside the range a judge could reasonably impose. The key issues were:

• Whether acute intoxication placing a complainant beyond meaningful self-protection mandates harm Category 2 rather than Category 3.
• How to treat “targeted vulnerability” where vulnerability already informs the harm categorisation.
• How to calibrate the lead sentence when two penetrative offences occur in the same incident and sentences are concurrent.

2) Precedents and authorities cited

R v BN [2022] 1 Cr App R (S) 37 at [25] was the express appellate authority applied. It confirms that a complainant who is “particularly vulnerable due to personal circumstances” falls within harm Category 2. Johnstone extends and applies BN by underscoring that extreme intoxication which renders a person unable to influence events or protect herself is a paradigmatic example of Category 2 vulnerability.

While the Court did not cite the Totality guideline by name, its analysis is consistent with the Sentencing Council’s approach: where multiple offences are sentenced concurrently because they form part of a single incident or course of conduct, the sentencer must still ensure the overall sentence reflects the total offending. Johnstone contributes a focused articulation for penetrative sexual offences occurring in a single episode.

3) The Court’s legal reasoning

a) Correct categorisation: Category 2B, not 3B

The trial judge adopted Category 3B for both counts notwithstanding agreement below that the rape fell within 2B. The Court of Appeal held this to be “clearly wrong” (para 21). The reasoning proceeded in two linked steps:

• Particular vulnerability due to personal circumstances: On the judge’s own findings, V was “highly intoxicated,” “extremely drunk,” and “in no position to influence events or protect herself” (paras 16, 21). That finding alone placed the case in Category 2 for harm, per BN.
• Psychological harm as a reinforcing factor: The Court added that the psychological harm evidenced (as accepted by the judge) further supported Category 2 harm (para 21). Although the Court did not need to resolve whether the harm rose to the level of “severe psychological harm,” it emphasised the sufficiency of vulnerability alone.

For rape, Category 2B carries a starting point of eight years (range: seven to nine). For assault by penetration, Category 2B carries a starting point of six years (range: four to nine). These are the guideline anchors from which adjustments are made.

b) Aggravating and mitigating features: limited overlap and net upward movement

The Court identified five aggravating features (para 22):

• Specific targeting of a particularly vulnerable victim
• Public park location
• Early-hours timing
• Offender intoxication (alcohol and drugs)
• Complainant’s age (16) and the offender’s knowledge of it

Against that, mitigation was limited to the offender’s lack of relevant convictions and extensive evidence of positive good character (para 23). The Court held this could not “come close” to outweighing the aggravation. Importantly, it addressed the risk of double counting: vulnerability is a basis for Category 2 harm, but “targeting a particularly vulnerable victim” focuses on the offender’s conscious exploitation of that vulnerability. The Court explained the overlap between the two is “limited” (para 24). This is a practical clarification for sentencers wary of double counting.

c) The totality principle and concurrent penetrative offences: a structured uplift question

The Court recognised that both offences formed part of a single episode and that concurrency was appropriate (para 27). Yet it was an error of principle to treat the lead offence sentence as unchanged by the existence of the second penetrative offence. The Court provided a structured approach when two penetrative offences occur within one incident:

• Identify the standalone sentences for each count applying correct categorisation and adjustments. Here, rape alone required “not less than” about nine years; assault by penetration alone approached seven years (paras 25–26).
• Apply totality to avoid simply aggregating the standalone sentences for a single-incident series. However, do not ignore the “significantly greater” criminality arising from committing both penetrative offences (para 27).
• Pose the tailored question (para 28): “To what extent does the offence of penetration make the overall seriousness of the offender’s conduct worse?” That question is considered with full awareness of standalone starting points, but the answer turns on the “overall effect” of the second count within the compass of totality.
• Calibrate an uplift to the lead count that fairly reflects the additional criminality without double counting harm or mechanically adding standalone sentences.

Applying this method, the Court fixed the least proper sentence on the rape count, after reflecting the second count, at 10 years and six months (para 29), quashed the six-and-a-half-year sentence, and substituted the higher term (para 30).

d) The worked sentencing pathway distilled from the judgment

• Rape (lead count):
  • Category 2B starting point: 8 years
  • Aggravation outweighs mitigation: net upward movement of at least 1 year
  • Rape alone: “in the region of 9 years” lowest proper sentence (paras 25)
• Assault by penetration:
  • Category 2B starting point: 6 years
  • Similar aggravation and mitigation: “approaching 7 years” if standalone (para 26)
• Totality:
  • Concurrent sentences as part of one incident, but uplift required to reflect additional criminality of the second penetrative offence (paras 27–28)
  • Final lead sentence: 10 years and 6 months (para 29)

4) Impact and significance

This judgment delivers three impactful clarifications likely to shape sentencing practice in sexual offence cases, especially those arising from night-time social settings where intoxication frequently features:

• Harm categorisation: When a complainant’s intoxication materially impairs self-protection or influence over events, the correct categorisation is harm Category 2. This will tend to raise starting points and category ranges in many “night out” cases where vulnerability is exploited.
• Aggravation for targeting vulnerability: Sentencers can confidently apply both Category 2 harm and the aggravator of targeting a particularly vulnerable victim. Johnstone’s clarification that the overlap is “limited” reduces uncertainty and the risk of under-sentencing through over-cautious double-counting concerns.
• Totality with multiple penetrative offences: The Court’s bespoke question—assessing how the additional penetration changes “overall seriousness”—offers a practical, principled tool for avoiding both under- and over-inflation when imposing concurrent sentences. It recognises that concurrent sentencing remains appropriate for single-incident offending, yet demands a meaningful uplift in the lead sentence to reflect additional harm and culpability.

More broadly, the decision may prompt:

• Prosecutorial approaches: Clearer submissions on Category 2 when exploiting intoxication; structured advocacy on totality uplifts for additional penetrative counts.
• Defence advocacy: Focus on challenging “targeting” evidence where vulnerability is already acknowledged, and on demonstrating why any uplift for additional counts should be moderated by the degree of temporal and situational unity in the episode.
• Judicial sentencing practice: More transparent pathways that identify the standalone sentences for each count, the net adjustment for aggravation/mitigation, and a reasoned totality uplift to the lead sentence.

5) Complex concepts simplified

• Unduly lenient sentence (ULS) reference: The Solicitor General can ask the Court of Appeal to review a Crown Court sentence that is said to be outside the range reasonably open to the judge. If the Court agrees, it can increase the sentence.
• Sentencing categories (e.g., 2B, 3B): The Sentencing Council’s guidelines use harm categories (1–3) and culpability levels (A–C). Category 2 usually means greater harm or particular vulnerability; B culpability typically denotes a mid-range of blameworthiness. Each category pairing has a “starting point” and a “range.” Judges then adjust up or down for aggravating and mitigating features.
• Aggravating vs mitigating features: Aggravating features make the offence more serious (e.g., targeting a vulnerable person, committing the offence at night in a public place, being under the influence). Mitigating features may reduce culpability or reflect good character.
• Totality principle: When sentencing multiple offences, courts ensure the overall sentence is just and proportionate to the total offending. If offences are part of one incident, concurrent sentences are common, but the lead sentence is often increased to reflect additional criminality.
• Double counting: Using the same fact twice to increase a sentence is impermissible. Johnstone explains why Category 2 harm (vulnerability) and the aggravator of “targeting a vulnerable victim” are not the same: one concerns the victim’s state, the other concerns the offender’s decision to exploit that state.

Conclusion

Johnstone provides clear, useable guidance for sentencers dealing with sexual offences arising from the exploitation of intoxicated complainants and for cases involving multiple penetrative acts in a single episode. Its three core contributions are:

• Harm Category 2 for acute intoxication: Where intoxication renders the complainant unable to protect herself or influence events, Category 2 is the default, consistent with R v BN.
• Limited overlap between harm and aggravation: Vulnerability can inform both harm categorisation and the separate aggravator of “targeting” without impermissible double counting.
• Structured totality uplift: When concurrent sentences are imposed for multiple penetrative offences, the lead sentence must be uplifted to reflect the added criminality, guided by the Court’s targeted question at paragraph 28.

Applying those principles, the Court corrected a sentence that had started from an unduly low category, failed to give sufficient weight to significant aggravation, and did not reflect the additional criminality of a second penetrative offence. The substituted sentence—10 years and six months on the rape count—signals a more robust and consistent approach to sentencing where offenders exploit the vulnerability of intoxicated complainants and commit multiple penetrative acts in a single incident.