R v Rai [2025] EWCA Crim 1224: Particular Vulnerability is a Step‑1 Harm Factor (Independent of Targeting) and Multiple Step‑1 Harm Features Preclude Downward Movement from the Guideline Starting Point

Introduction

This Court of Appeal (Criminal Division) decision addresses the proper application of the Sentencing Council’s sexual offences guidelines in the context of an Unduly Lenient Sentence (ULS) reference under section 36 of the Criminal Justice Act 1988. The case concerns serious sexual offences committed by Santosh Rai against a young woman (V), who is entitled to lifetime anonymity under the Sexual Offences (Amendment) Act 1992.

After trial, the offender was acquitted of rape but convicted of sexual assault (Sexual Offences Act 2003, section 3) and assault by penetration (section 2). The trial judge imposed a total sentence of three years and nine months’ imprisonment (three years nine months for assault by penetration and two years six months concurrent for sexual assault). The Solicitor General sought review, arguing the sentence was unduly lenient. The Court of Appeal agreed, quashing the sentence and substituting six years’ imprisonment for assault by penetration and three years concurrent for sexual assault (total six years).

The decision clarifies two key areas of sentencing practice:

How to treat “particular vulnerability” at Step 1 of the guideline as a harm factor, independently of any Step 2 aggravation based on “specific targeting” of a vulnerable victim.
How the presence of multiple Step‑1 harm features (here, particular vulnerability and severe psychological harm) affects movement from the guideline starting point.

Summary of the Judgment

The Court held the original sentence was unduly lenient. It emphasized that V was a particularly vulnerable victim at the time of the offending and that she suffered severe psychological harm. Those are both Step‑1 harm factors for the assault by penetration guideline (para 32).
The Court rejected the trial judge’s suggestion that severe psychological harm lay “towards the lower end” of the severe spectrum as justifying a downward move from the starting point. The presence of two Step‑1 harm features required, at a minimum, adherence to the starting point with a strong case for upward movement (paras 32–33).
Additional criminality in the separate sexual assault (including ejaculation, a significant aggravating feature) warranted an upward adjustment on totality, but this was ultimately balanced by mitigation so that the Court settled on the Category 2B starting point of six years for assault by penetration, with three years concurrent on the sexual assault (paras 34, 37–39).
The Court reaffirmed that an offender “must take his victim as he finds her,” rejecting any suggestion that the harm here should be discounted because V had been targeted and assaulted earlier by another offender (para 36).
Previous good character is of limited weight for serious sexual offences of this kind, consistent with the guideline’s express direction (para 35).

Factual and Procedural Background

V (aged 19) was out celebrating a friend’s birthday. Her drink was surreptitiously spiked with ketamine and morphine by an unknown person. Her intoxication was largely involuntary. After a sequence of events that included an assault by a passing motorist (Patel), V entered a public house, where she encountered Rai (aged 50, of previous good character). CCTV showed V was unsteady and that Rai followed her from the pub, ultimately leading her into an alleyway. Rai emerged 17 minutes later adjusting his trousers. V later discovered her trousers were inside out and her underwear and personal items were found in the alleyway. Forensics identified semen and DNA from two male contributors, including Rai and Patel. At trial, Rai’s defence was consent; the jury rejected it.

At first instance, the judge categorized the sexual assault as Category 1B (starting point 2.5 years; range 2–4 years) and the assault by penetration as Category 2B (starting point 6 years; range 4–9 years). Despite finding severe psychological harm and particular vulnerability, and notwithstanding the aggravating feature of ejaculation in the sexual assault, the judge applied strong mitigation (including exemplary character and difficult personal circumstances) and imposed a total term well below the starting point for the lead offence. The Solicitor General referred the sentence for review as unduly lenient.

Analysis

Precedents and Framework Relied Upon

No specific prior authorities were cited by name in the judgment. The Court’s reasoning was anchored in three main legal frameworks and settled principles:

Section 36 Criminal Justice Act 1988: the Unduly Lenient Sentence reference jurisdiction.
Sentencing Council definitive guidelines for sexual assault and assault by penetration: notably the Step‑1 harm categories and Step‑2 aggravating/mitigating factors, including online explanatory material referenced by the Court (paras 29–31).
The well‑established principle that an offender must take the victim as he finds her, which precludes discounting harm due to pre-existing vulnerability or prior victimization by another offender (para 36).

Legal Reasoning

1) The distinct roles of “particular vulnerability” (Step 1) and “specific targeting” (Step 2)

The judgment’s central clarification concerns how vulnerability is treated within the guidelines:

At Step 1 (categorization of harm), “victim is particularly vulnerable due to personal circumstances” is a harm factor. It is assessed by reference to the victim’s condition at the time of the offence.
At Step 2 (aggravation/mitigation), “specific targeting of a particularly vulnerable victim” is a separate factor requiring proof the offender exploited that vulnerability in selecting the victim.

The Court accepted that the judge was not persuaded that Rai specifically targeted a vulnerable victim (a Step‑2 aggravator), and it deferred to the trial judge’s vantage point on that factual issue (para 30). However, and critically, the Court held that any debate about how V appeared at earlier points in the evening was “irrelevant” to Step 1 (para 31). On the facts at the time of the alleyway offence—V’s intoxication (largely involuntary), isolation at night with a stranger, and post-event amnesia—she was plainly “particularly vulnerable” (paras 31–32).

2) Multiple Step‑1 harm features and movement from the starting point

For assault by penetration, the Court identified two Step‑1 harm features: (i) particular vulnerability and (ii) severe psychological harm (paras 32–33). The Court expressly rejected an initial downward move from the Category 2B starting point of six years on the basis that severe psychological harm might be at the “lower end” of the severe spectrum. It reasoned that any modest downward pull from that nuance is at least offset—and in practice outweighed—by the presence of a second Step‑1 harm feature. The proper approach, the Court said, is to recognize that multiple Step‑1 harms require, at a minimum, the starting point, with a strong case for an upward adjustment (paras 32–33, 37).

3) Totality and the additional criminality of the sexual assault

The Court held that the separate sexual assault, which featured ejaculation, added criminality requiring an upward adjustment from the lead offence’s starting point (para 34). The guideline treats ejaculation as a significant aggravating feature in sexual offending. Although the Court ultimately concluded that mitigation could, taking the most favourable view to the offender, only balance the pull upward from these aggravating aspects, the total sentence could not properly fall below the starting point for the lead offence (paras 34, 37–38).

4) Mitigation: limited weight of previous good character and “brief duration”

The Court recognized powerful mitigation—previous impeccable character, mental health difficulties, family and business impact, and the practical hardships of prison. Even so, it reiterated the guideline’s clear direction: previous good character typically carries limited weight in serious sexual offences of this kind and will not normally justify a reduction (para 35). It further explained that the “brief duration” of digital penetration is not a mitigation but rather the absence of an additional aggravating factor; at most it could justify a very modest reduction (para 35).

5) The “take your victim as you find her” principle and overlapping harm

Where a victim has been harmed by another offender around the same time, the sentencing court must not discount the index offending’s harm on some apportionment theory. The Court firmly rejected any attempt to reduce Rai’s sentence on the basis that V had also been assaulted by Patel (para 36). The victim’s condition, however caused, is part of the Step‑1 harm assessment; the offender must take the victim as he finds her.

Impact and Significance

Clarified guideline mechanics: The judgment draws a bright line between Step‑1 harm (particular vulnerability) and Step‑2 aggravation (targeting of the vulnerable), and cautions against conflating the two. Sentencers must assess vulnerability at the time of the offence and resist arguments based on earlier appearances or fluctuating presentation.
Sentencing starting points: Where two Step‑1 harm features are present in assault by penetration (e.g., particular vulnerability and severe psychological harm), downwards movement from the Category 2B starting point will rarely be justifiable. The default is the starting point with a real prospect of upward movement unless mitigation truly and demonstrably outweighs the additional harm factors.
Concurrent counts and totality: Additional sexual offending (especially with aggravating features like ejaculation) should ordinarily increase the overall sentence from the lead count’s starting point unless—and only to the extent that—genuine mitigation counterbalances that increase.
Limited value of good character: For serious sexual offences, previous impeccable character will usually carry minimal weight and will not normally justify a reduction below the appropriate guideline level.
No apportionment of harm: The presence of another offender’s wrongdoing does not diminish the harm assessment for the index offender. This fortifies the orthodox approach to vulnerability and harm in multi-offender or temporally proximate offending sequences.
Practical reminder: The Court expressly referenced the online guideline’s explanatory notes (the “drop‑down” materials). Sentencers are encouraged to consult those explanations when applying Step‑2 aggravators (para 29).

Complex Concepts Simplified

Unduly Lenient Sentence (ULS) Reference: The Solicitor General can ask the Court of Appeal to review a Crown Court sentence that appears unduly lenient. If the Court agrees, it may quash and substitute a sentence it considers appropriate.
Step‑1 vs Step‑2 in Sentencing Guidelines:
- Step‑1: Categorises the offence’s seriousness by reference to harm and culpability. Here, “particularly vulnerable victim due to personal circumstances” and “severe psychological harm” are harm features that determine the category and starting point.
- Step‑2: Adjusts for aggravating and mitigating factors, such as “specific targeting of a vulnerable victim,” previous convictions, good character, remorse, mental ill‑health, etc.
Starting Point and Range: The guideline provides a starting point within a range for each category. Movement above or below the starting point must be justified by the presence and weight of aggravating and mitigating factors.
Particular Vulnerability (Step‑1): Focuses on the victim’s state at the time of the offence—e.g., intoxication, isolation, youth, disability—regardless of whether the offender deliberately targeted that vulnerability.
Specific Targeting (Step‑2): An aggravator requiring proof that the offender intentionally selected or exploited a victim’s vulnerability.
Severe Psychological Harm: Harm significantly beyond what is inherent in the offence type, often evidenced by persistent trauma, loss of functioning, prolonged therapy needs, or significant life disruption.
Digital Penetration: Penetration of the vagina or anus with fingers; in law it constitutes “assault by penetration” if done without consent and with the requisite mens rea.
“Take the Victim as You Find Her”: A principle that the offender bears responsibility for the harm actually caused to a victim in her real, existing condition; harm is not discounted because a victim was already vulnerable or had been harmed by another.
Concurrent Sentences and Totality: When offences arise from the same episode, sentences are often concurrent, but the seriousness of additional counts (e.g., sexual assault with ejaculation) must be reflected in the overall sentence.

Why the Original Sentence Was Unduly Lenient

The total sentence of three years nine months was below the Category 2B range for the assault by penetration alone (range 4–9 years; starting point 6). Given the two Step‑1 harm features and the additional serious sexual assault with ejaculation, there was no sound basis for a sentence below the starting point for the lead offence. Even taking the mitigation at its highest, the Court considered that mitigation could only neutralize, not outweigh, the upward pull from the multiple harm factors and additional criminality (paras 37–38). The substituted sentence—six years for assault by penetration and three years concurrent for sexual assault—re‑anchored the outcome to the guideline structure.

Practical Takeaways for Sentencers and Practitioners

Establish Step‑1 harm features clearly and treat them as determinative of the starting point. Do not dilute a Step‑1 finding (e.g., severe psychological harm) by placing it at the “lower end” and then using that to justify movement below the starting point where other Step‑1 features are present.
Keep Step‑1 and Step‑2 conceptually separate. Whether the victim was targeted (Step‑2) is a different question from whether the victim was vulnerable (Step‑1). A lack of targeting does not negate vulnerability.
In multi-count sexual offending, ensure the additional count(s) produce a meaningful impact on totality unless powerful mitigation genuinely counterbalances.
Approach previous good character with caution in serious sexual offences; it carries limited weight and rarely justifies a below‑starting‑point outcome.
Do not apportion harm between multiple offenders; take the victim as found and assess harm accordingly.
Consult the Sentencing Council’s online explanatory notes, which the Court explicitly referenced, when applying aggravators like “specific targeting.”

Conclusion

R v Rai provides clear, practical guidance on applying the sexual offences guidelines. It reinforces that:

Particular vulnerability is a Step‑1 harm factor assessed at the time of the offence and is wholly independent of any Step‑2 “targeting” aggravator.
Where multiple Step‑1 harm features are present, the sentence should not dip below the guideline starting point absent truly exceptional mitigation; indeed, upward movement will often be warranted.
Additional sexual offending and aggravating features such as ejaculation must be reflected in totality.
Good character and collateral hardship carry limited weight in the face of serious sexual offending.
The offender must take the victim as he finds her; harm is not discounted because of prior victimization by others.

In recalibrating the sentence to six years’ imprisonment (with three years concurrent on the sexual assault), the Court reaffirmed principled adherence to the guideline structure and delivered important clarification likely to influence future sentencing in sexual offence cases—especially those involving intoxicated, isolated victims and demonstrable severe psychological harm.