Riley, R. v — Age Alone Does Not Rigidly Mandate “Particularly Vulnerable” Harm Categorisation in Assault by Penetration Sentencing

3.1 Precedents Cited

R v Clarke [2018] EWCA Crim 185; [2018] 1 Cr App R(S) 52

The Court relied on Clarke for the proposition that turning 18 is not a “cliff edge” for sentencing. It reinforced the legitimacy of treating “young adults” (18–25) as a developmental cohort whose maturity, impulsivity, and capacity for change may properly influence both sentence length and the custody/community boundary.

In this case, the respondent’s youth at offending (18) and conviction (20) was not a peripheral detail; it was part of the sentencing architecture that supported the judge’s conclusion that rehabilitation in the community could be prioritised without crossing into undue leniency.

R v M [2025] EWCA Crim 872; [2025] 2 Cr App R(S) 42

The Solicitor General deployed M to argue that a child complainant’s age should, of itself, make the victim “particularly vulnerable due to personal circumstances,” pulling the case into harm category 2. The Court’s treatment of M is the judgment’s key doctrinal contribution: it resisted reading M as laying down a fixed rule.

The Court distinguished the factual setting (a 13-year-old in M), but more importantly clarified that guideline application is not a mechanical exercise. What Edis LJ said at [45] in M was not elevated into a universal principle that age alone inevitably triggers category 2. Instead, the sentencing judge must assess “the specific facts of an individual case.”

Attorney-General's Reference (BN) [2021] EWCA Crim 1250; [2022] 1 Cr App R(S) 37

The respondent relied on BN to illustrate how vulnerability factors operate as context-specific rather than age-automatic. In BN, vulnerability was found because the child was asleep, with the Court indicating that but for that factor the case would have fallen into category 3. The citation supported the respondent’s position that a child’s age may be treated as an aggravating factor without necessarily requiring category 2 harm, depending on the overall factual matrix.

Attorney-General's Reference (Egan) [2022] EWCA Crim 1751; [2023] 2 Cr App R(S) 16

Egan was cited for its summary of the stringent principles governing section 36 references. It framed the Court’s approach: deference to the trial judge’s evaluative role, the “range” test, the exceptional nature of intervention, and the concept of “gross error.”

Attorney-General's Reference No 4 of 1989 (1990) 90 Cr App R 366

This authority remains foundational for unduly lenient references. The Court reiterated two controlling ideas:

• Parliament did not intend offenders to face sentence increases merely because the Court of Appeal would have sentenced differently; the test is whether the sentence is outside the reasonable range.
• Even if undue leniency is found, the appellate court retains a discretion whether to increase the sentence.

The invocation of mercy (“leniency is not in itself a vice”) is significant in cases like this, where the sentence can appear low relative to offence seriousness but still sit within the permitted range after factoring youth, rehabilitation prospects, plea credit, and judicial evaluation.

Attorney-General's Reference No 132 of 2001 (Bryn Dorian Johnson) [2002] EWCA Crim 1418; [2003] 1 Cr App R(S) 41

The Court referenced Potter LJ’s “gross error” formulation to stress how high the section 36 threshold is. The case served as a reminder that appellate intervention is not a fine-tuning jurisdiction; it is reserved for sentences that are not merely lenient but unduly so.

3.2 Legal Reasoning

(a) Guideline categorisation: harm category 2 vs 3

The sentencing guideline for assault by penetration requires categorisation by culpability and harm. Culpability was accepted as category B. The dispute centred on harm:

• Category 2 (relevant here): where the victim is “particularly vulnerable due to personal circumstances.”
• Category 3: where factors in categories 1 and 2 are not present.

The Court upheld the trial judge’s conclusion that, on these facts, the case properly fell into category 3 harm. Crucially, it rejected the submission that M compelled a category 2 classification simply because the complainant was 14.

The reasoning is not that age is irrelevant—indeed, the judge treated age as an aggravating factor once not used in categorisation—but that “particularly vulnerable” is evaluative and fact-dependent. The Court thereby reaffirmed judicial discretion within guideline structure.

(b) Aggravation/mitigation and the custodial term

Even in category 3B (starting point 2 years’ custody; range high-level community order to 4 years), the judge made a material upward move to a notional post-trial sentence of 2 years 8 months, citing aggravation including:

• C’s age (not used in categorisation)
• Location: offending in a home where C should have felt safe
• Offender intoxication (alcohol and drugs)
• Impact on C beyond the inherent distress of the offence type

Mitigation included youth, no previous convictions, remorse, delay not attributable to the offender, and plea. Applying 25% credit produced 2 years.

The Court concluded that this evaluative balancing was within the wide ambit accorded to sentencers and could not be characterised as “gross error.”

(c) Suspension: “immediate custody unavoidable” and rehabilitation

The Solicitor General argued that punishment for such offending demanded immediate custody even if the term was 2 years. The Court upheld the decision to suspend by reference to the Imposition of Custodial Sentences guideline:

• the judge found immediate custody not “unavoidable”
• there was a realistic prospect of rehabilitation in the community
• risk of reoffending was assessed as low
• suspended sentence requirements provided a punitive component (unpaid work; RAR)

The Court’s acceptance of suspension does not trivialise the offence; it reflects the section 36 posture: the question is not what the Court of Appeal would do, but whether the trial judge’s choice was outside the reasonable range.

(d) Correcting the record: surcharge and “imprisonment”

Two technical points carry practical importance:

• Although section 42 of the Sentencing Act 2020 imposed a duty to impose a surcharge, the judge did not do so in sentencing remarks. The Court stressed that a surcharge cannot be imposed “administratively,” and it could not be added by the Court of Appeal at this stage. The remedy was correction of the record to reflect what was actually imposed.
• By section 227 of the Sentencing Code, “imprisonment” is prohibited for those under 21. The sentence should have been recorded as detention in a young offender institution. Again, the Court directed record correction.

These points underscore the constitutional and procedural principle that penalties must be imposed openly and lawfully by the sentencing court, not later via clerical practice.

3.3 Impact

• No automatic age rule for “particularly vulnerable”: The judgment cautions against treating R v M as creating an age-threshold formula. Sentencers remain required to assess “particularly vulnerable” in context, and may treat age as aggravation rather than a categorisation driver, depending on the facts.
• Reinforcement of the high section 36 bar: The decision is a reminder that even serious sexual offending sentences may survive an unduly lenient challenge where the judge has correctly directed themselves, applied guidelines conscientiously, and reached an outcome within range.
• Suspension remains legally available (within range) even for grave offences: The Court did not endorse suspension as the norm for assault by penetration; rather, it affirmed that suspension can be permissible where guideline criteria are met, particularly involving young adults and rehabilitation prospects.
• Administrative “tidying up” cannot create punishment: The surcharge and YOI corrections highlight that legality and transparency in sentencing formalities matter, and appellate courts may correct records but cannot always retrofit missing penal components.