Ong, R. v

Factual and Procedural Background

On 30th March 2021, following a trial in the Crown Court at The City, the Applicant was convicted of one offence of common assault contrary to section 39 of the Criminal Justice Act 1988 (count 1), and one offence of assault by penetration contrary to section 2 of the Sexual Offences Act 2003 (count 6). On 31st May 2022, the Applicant was sentenced to two years and eight months' detention in a young offender institution on count 6, with a consecutive term of three months' detention on count 1, totaling two years and eleven months' detention.

The Applicant, along with two complainants referred to as C1 (victim of common assault) and C2 (victim of assault by penetration), were students at a residential ballet school. Male and female students were accommodated separately but socialised together.

In May 2019, when the Applicant was 16 years and 7 months old, he engaged in inappropriate physical conduct towards C1 and another female student, including biting C1 twice. The following evening, the Applicant went to C2's room after an exchange of messages and committed the assault by penetration despite repeated refusals from C2 to stop.

The Applicant also faced other charges resulting in jury disagreements and retrials, delaying sentencing until May 2022. By sentencing, the Applicant was 19 years old.

Victim personal statements indicated significant emotional and psychological harm to both complainants. The Applicant’s pre-sentence report noted his young age, lack of insight at the time of offending, limited remorse, and recommended a community order. Medical evidence showed he was prescribed medication for Attention Deficit Hyperactivity Disorder and had a peanut allergy requiring an EpiPen.

The sentencing judge categorized the sexual offence as category 3B under the Sentencing Council’s guideline, starting at two years' custody with a range up to four years, placing the offence at the top of the range but reducing the sentence by one third for the Applicant’s age.

Legal Issues Presented

1. Whether the sentencing judge erred in moving upwards from the guideline starting point for the assault by penetration.
2. Whether the sentence imposed was manifestly excessive, particularly considering the Applicant’s age at the time of the offence.
3. Appropriate application of sentencing principles for young offenders, including the correct reduction to reflect the Applicant's youth.
4. Whether an immediate custodial sentence was necessary for the offences committed.

Arguments of the Parties

Appellant's Arguments

• The judge was wrong to increase the sentence above the guideline starting point of two years for count 6.
• The sentence should have been reduced by half to reflect the Applicant’s age at the time of the offence.
• The total sentence was manifestly excessive.
• Either a community order or a shorter, suspended sentence would have been appropriate.
• The common assault merited a short consecutive sentence, limited by the principle of totality.

Respondent's Arguments

• The sentencing judge was best placed to assess the harm suffered by the victims, having seen and heard all the trial evidence.
• The judge’s reference to C2’s particular sensitivity was supported by text message evidence between the Applicant and C2.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully analyzed the sentencing judge’s application of the Sentencing Council’s guidelines and the principles applicable to young offenders. It upheld the categorization of the assault by penetration as category 3B and accepted the judge’s identification of serious aggravating factors, including the breach of trust by exploiting C2’s kindness and the high level of harm within category 3.

However, the court found that the mitigating factors—such as the Applicant’s good character, loss of scholarship and visa, delay in proceedings, and the difficulties of custodial sentences during the Covid pandemic—were not adequately balanced against the aggravating features. The judge did not clearly justify the sentence at the top of the category range.

The court emphasized the importance of sentencing based on the offender’s age at the time of the offence, citing leading authorities including R v Limon and others, which confirm that passage of time does not increase culpability. It agreed with the judge’s application of a one-third reduction to reflect youth but found no basis for a greater reduction.

While the court accepted that the seriousness of the assault by penetration justified immediate custody, it concluded that the total sentence imposed was manifestly excessive, particularly in light of the principle of totality and the Applicant’s youth.

Holding and Implications

The court granted leave to appeal and allowed the appeal. It QUASHED the sentences imposed below and SUBSTITUTED the following sentences:

• Count 6 (assault by penetration): 16 months' detention in a young offender institution.
• Count 1 (common assault): 2 months' detention, to run consecutively.

The total sentence was thus reduced to 18 months' detention in a young offender institution.

This decision directly affects the Applicant by reducing the custodial sentence to reflect appropriate sentencing principles for young offenders and the balance of aggravating and mitigating factors. No new precedent was established beyond the application of existing sentencing guidelines and authorities.