1. Introduction
This judgment addresses an important question of sentencing proportionality: when two sexual offences form a single, uninterrupted course of conduct against the same victim, does the existence of two convictions require additional punishment? The Court of Appeal held that, in the circumstances before it, it did not. Separate charges did not justify increasing concurrent sentences where the resulting punishment would exceed what was just and proportionate for the offending as a whole.
The decision also confirms that dismissal from military service is a punishment whose effects must be considered when fixing the overall sentence, even where dismissal is virtually inevitable. It therefore brings together two aspects of the totality principle: the relationship between multiple offences and the combined impact of different forms of punishment.
Ms Justice Norton delivered the judgment of the court, sitting with Lord Justice Edis and Mr Justice Griffiths. The appeal concerned sentence only; the convictions were not challenged.
2. Background and Issues
The offending and convictions
The appellant was a serving soldier, aged 25 at the time of the offences, with eight years’ service and a recent promotion to corporal. Both he and the victim were serving overseas. After socialising and drinking, they shared a bed with the victim’s agreement. Although there had been a consensual kiss, she expressly ruled out further sexual activity and rejected subsequent advances.
After the victim fell asleep, the appellant digitally penetrated her anus and vagina. The court treated these acts as a single course of conduct, against one victim, without a temporal gap. Her agreement to share a bed did not amount to consent to those acts.
The appellant was convicted of two offences of assault by penetration under section 2 of the Sexual Offences Act 2003, dealt with in the service proceedings under section 41 of the Armed Forces Act 2006. He was acquitted of attempted rape.
The original sentence
The sentencing court classified both offences as category 2B under the relevant sentencing guideline. That classification carried a starting point of six years’ imprisonment. After balancing aggravating and mitigating factors, the court arrived at five years, but then increased the sentence to seven years on each count to reflect the existence of two offences. Those sentences were concurrent. The appellant was also dismissed from service.
The appeal
On appeal, the appellant no longer disputed the guideline classification, the necessity of immediate imprisonment, or dismissal. His principal arguments were that:
- the increase from five to seven years was unnecessary to reflect the two convictions; and
- the overall sentence did not adequately account for the punitive effect of dismissal.
The respondent maintained that the initial reduction to five years had already accommodated the relevant mitigation and dismissal, and that the additional two years fairly reflected the second offence.
3. Summary of the Judgment
The Court of Appeal allowed the appeal. It quashed the seven-year sentence on each count and substituted five years’ imprisonment on each count, to run concurrently. All other orders remained unaffected.
The court’s principal conclusions were:
- Category 2B was appropriate. The sleeping victim was particularly vulnerable in the circumstances, and no culpability A factor applied.
- The service context aggravated the offending. The difference in rank and, more importantly, the breach of trust between service personnel were relevant.
- The appellant had substantial mitigation. His age, previous good character and exemplary military record justified significant weight.
- Dismissal remained a punishment. Its near inevitability did not remove the need to consider its effects.
- The second count did not require an uplift. The two forms of penetration constituted one uninterrupted course of conduct, and five-year concurrent sentences adequately reflected the whole incident.
The distinction between the sentencing stages is central:
| Stage |
Sentence assessment |
| Category 2B starting point |
Six years |
| Original assessment after aggravation and mitigation |
Five years |
| Original uplift for the second offence |
Seven years on each count, concurrently |
| Final appellate sentence |
Five years on each count, concurrently |
4. Precedent and Sentencing Guidance
R v BPK [2005] EWCA Crim 71
The only individually identified judicial precedent in the supplied judgment is R v BPK [2005] EWCA Crim 71. The sentencing court expressly applied it when finding that the victim was particularly vulnerable because she was asleep.
Its significance in this judgment lies in the relationship between vulnerability and the victim’s practical ability to protect herself. Before falling asleep, the victim had communicated her refusal and physically rejected an advance. Once asleep, she could take no further protective action. The appellant exploited that condition.
The Court of Appeal endorsed this reasoning. Neither permission to share the bed nor the presence of another sleeping person reduced the vulnerability identified. Those circumstances did not restore the victim’s ability to respond to the appellant’s conduct while asleep.
The judgment does not describe the underlying facts or full reasoning of R v BPK [2005] EWCA Crim 71. Its influence can therefore be stated confidently as support for the vulnerability assessment adopted here, rather than as authority for a broader proposition that every offence against a sleeping person must invariably receive the same harm classification.
The Judge Advocate General’s sentencing guidance
The court also relied on the Judge Advocate General’s guidance on sentencing in the Service Courts. Paragraph 6.1 indicates that dismissal will be appropriate in all but the most exceptional case involving sexual offending.
The guidance explains the particular seriousness of sexual offending within the armed forces: it damages the trust necessary between personnel and can affect morale and operational effectiveness. At the same time, it requires the effects of dismissal to be considered in determining sentence. The court treated these propositions as complementary, not contradictory: service discipline may demand dismissal, while proportionality still requires recognition of its punitive impact.
5. Analysis of the Court’s Legal Reasoning
A. Vulnerability justified category 2 harm
The court’s assessment focused on the victim’s actual circumstances. She was asleep in her own bed, remained affected by alcohol, and could not take protective action. The appellant’s knowledge that she had already refused further sexual activity reinforced the significance of his subsequent exploitation of her sleep.
The reasoning separates permission for one form of interaction from consent to another. Sharing a bed, or having previously kissed, did not diminish the importance of her refusal or make the later penetration consensual. The presence of another person asleep in the room likewise provided no effective protection.
B. Guideline factors and service aggravation were kept distinct
The Court of Appeal identified no additional aggravating factors under the ordinary sentencing guideline. The location and timing of the offending already formed part of the vulnerability assessment that placed the offences in category 2.
This avoided counting the same circumstances twice. Features used to establish the offence category should not simply be repackaged as additional aggravation.
Separate service-related aggravation nevertheless existed. The appellant’s higher rank carried an expectation of appropriate conduct, although the difference was recent and limited. Greater weight attached to the breach of trust between personnel serving together overseas, where close living arrangements and separation from ordinary support networks make mutual confidence particularly important.
C. Good character and military service amounted to substantial mitigation
The appellant had no previous convictions or disciplinary entries, consistently positive appraisals and supportive character references. The pre-sentence report assessed him as presenting a low risk of reoffending.
The court expressly noted that his good character had not enabled him to commit the offences. It therefore treated both his lack of previous convictions and his exemplary service as substantial mitigation. His age also formed part of the assessment.
This was not a finding that a strong military record neutralises serious sexual offending. Rather, the court distinguished the institutional harm caused by the offence from the offender’s individual mitigation. On the facts, the mitigating factors outweighed the aggravating factors sufficiently to justify moving below the six-year starting point.
D. Inevitable dismissal still counts as punishment
The court rejected any assumption that a consequence ceases to matter merely because it is expected. Dismissal is a punishment in its own right. Its effects must therefore enter the assessment of what constitutes a just and proportionate sentence.
The judgment does not establish a fixed reduction in imprisonment whenever dismissal is imposed. It requires an overall assessment, not a numerical conversion between dismissal and custody. Nor does it weaken the guidance that dismissal will ordinarily follow sexual offending.
E. Totality concerns the offending, not simply the number of counts
The decisive reasoning appears in paragraph 13. The court asked whether an increase was necessary to reflect the two separate offences. It concluded that it was not: the acts involved the same victim, formed a single course of conduct and occurred without any temporal gap.
Both convictions remained valid. The sentencing error was treating their separate existence as requiring additional punishment in these particular circumstances.
The judgment also demonstrates that concurrent sentences are not automatically proportionate. Although concurrent terms run together, an unjustified increase in their length still increases the effective punishment. Totality therefore requires examination of both the structure of the sentences and their actual duration.
6. Scope and Potential Impact
A fact-sensitive limit on multiple-count uplifts
The decision provides a clear basis for scrutinising uplifts where several counts divide a single, uninterrupted incident into separate offences. Sentencers should explain why the overall criminality requires additional punishment rather than assume that another conviction necessarily requires another increment.
Its scope is nevertheless limited. It does not establish that offences against the same victim must always attract concurrent sentences without an uplift. Separate episodes, a temporal interval, additional victims or materially distinct harm may call for a different assessment. The governing question remains whether the final sentence fairly reflects the offending as a whole.
Relevance to service sentencing
For service courts, the judgment requires an explicit balance between institutional seriousness and individual proportionality. Breaches of military trust can aggravate sexual offending, but they do not displace ordinary mitigation or eliminate the need to account for dismissal.
Continuing consequences
The successful appeal reduced imprisonment, not the seriousness of the convictions or their wider legal consequences. Dismissal remained in place. The judgment also recorded indefinite notification requirements under Part 2 of the Sexual Offences Act 2003 and possible barring consequences under the Safeguarding Vulnerable Groups Act 2006.
The victim’s lifelong anonymity under the Sexual Offences (Amendment) Act 1992 remained unaffected.
7. Complex Concepts Simplified
- Totality
- The requirement that the combined punishment for all offences and sentencing orders must be fair and proportionate overall.
- Concurrent sentences
- Prison terms served at the same time. Two concurrent five-year terms ordinarily produce a five-year overall custodial term, not ten years.
- Consecutive sentences
- Prison terms served one after another, increasing the combined term.
- Uplift
- An increase in sentence to reflect additional offending or seriousness. Here, the disputed uplift was the increase from five to seven years to mark the second offence.
- Category 2B
- A guideline classification combining harm category 2 with culpability category B. It supplied the six-year starting point used in this case.
- Starting point
- The guideline’s initial sentence before adjustments for the relevant aggravating and mitigating circumstances.
- Double counting
- Giving the same feature repeated weight when assessing seriousness—for example, using it both to select a higher category and again to increase the sentence without a distinct justification.
- Manifestly excessive
- A sentence sufficiently excessive to justify appellate intervention, rather than merely a sentence the appeal court might have expressed differently.
8. Conclusion
The central lesson of [2026] EWCA Crim 926 is that separate convictions do not automatically justify additional punishment. Where offences form one uninterrupted course of conduct, the court must assess the criminality as a whole rather than mechanically increase the sentence by reference to the number of counts.
The decision also confirms that dismissal from service must be considered as punishment even when virtually inevitable. By reducing the concurrent terms from seven years to five, the Court of Appeal preserved the gravity of the offending while correcting a disproportionate uplift.