Huband, R. v

Factual and Procedural Background

An application was made by the Attorney General seeking leave to refer a sentence considered unduly lenient. The Defendant, aged 27, pleaded guilty on 25 October 2022 to attempted rape contrary to section 1 of the Criminal Attempts Act 1981. On 12 January 2023, the Defendant was sentenced by Judge Gold KC at the Crown Court in Lewes to two years' imprisonment suspended for two years, alongside rehabilitation requirements and a sexual harm prevention order. The offence occurred in 2016 when the Defendant attempted to rape the victim, referred to as X, who was unconscious due to alcohol intoxication. The victim was the Defendant's then girlfriend, and the incident took place in a domestic context. The Defendant was subject to multiple assessments regarding intellectual capacity and fitness to plead, with findings indicating significant intellectual impairment but no serious mental disorder. The Defendant was deemed fit to plead and pleaded guilty. The sentencing judge took into account the Defendant's intellectual difficulties and granted a full one-third credit for the guilty plea, resulting in a suspended sentence. The Attorney General challenged the sentence as unduly lenient, arguing the seriousness of the offence was not properly reflected. The Court granted leave to refer the sentence and considered expert reports, probation assessments, and submissions from both parties before reaching a decision.

Legal Issues Presented

1. Whether the sentence imposed on the Defendant for attempted rape was unduly lenient.
2. The correct categorisation of the offending under the Sentencing Council Guidelines.
3. The appropriate weight to be given to the Defendant's intellectual disabilities and mitigating factors in sentencing.
4. Whether the sentencing judge was entitled to depart from the guideline range based on the Defendant's developmental disorders and other circumstances.

Arguments of the Parties

Attorney General's Arguments

• The offence should be categorised as Category 2B offending under the Sentencing Council Guidelines, carrying a starting point of eight years' imprisonment.
• The victim was unconscious at the time of the offence, making the offence particularly serious.
• The domestic abuse context and the Defendant's voluntary intoxication were aggravating factors warranting a higher sentence.
• The sentencing judge failed to properly scrutinise the connection between the Defendant's developmental disorders and his culpability.
• The reduction from the guideline starting point to a two-year suspended sentence was excessively lenient and unjustified.
• The sentencing judge was not entitled to disregard the guideline range without sufficient evidential basis.

Defendant's Arguments

• The Defendant's intellectual difficulties and developmental disorders justified a significant reduction in culpability and sentence.
• The sentencing judge conducted a careful analysis and reasonably categorised the offence as Category 3B, which carries a lower sentencing range.
• The Sentencing Council Guidelines are not statutory mandates and the judge was entitled to depart from them in the interests of justice.
• Reliance was placed on case law supporting judicial discretion in sentencing, including the unusual circumstances of the Defendant's intellectual impairments.
• The Probation Service's reports highlighted the Defendant's difficulties with temperance, responsibility, and perspective, supporting mitigation.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Attorney General's Reference No 132 of 2001 (R v Johnson) [2002] EWCA Crim 1418	Purpose of references under section 36 of the Criminal Justice Act 1988 to avoid gross error and preserve public confidence in sentencing.	Emphasised the high hurdle for appellate interference and the need for a sentence to be not only lenient but unduly so.
R v Mohammed Arfan [2022] EWCA Crim 1416	Sentencing is an art, not a science; leniency is not a vice.	Reinforced the principle that leniency alone does not justify appellate intervention.
R v Butterworth [2022] EWCA Crim 1821	Sentencing Council Guidelines are not statutes and judges have discretion to depart from them.	Supported the Defendant's argument that the sentencing judge was entitled to depart from the guideline in the interests of justice.
R v AWA [2021] EWCA Crim 1877	Assessment of victim vulnerability and sentencing discretion.	Clarified that a victim being asleep does not automatically equate to particular vulnerability under the guideline; fact-specific inquiry required.
R v BN [2021] EWCA Crim 1250	Definition of victim vulnerability in sexual offence cases.	Rejected the notion that vulnerability requires both intoxication and sleep; acknowledged that an asleep victim is generally particularly vulnerable.
R v Austin Gacheru [2022] EWCA Crim 1090	Consideration of victim vulnerability and sentencing.	Referenced in discussion of victim vulnerability; distinguished from the present case by victim's response and awareness.
R v Forbes [2016] EWCA Crim 1388	Guidance on abuse of trust and culpability in sexual offences.	Used to note absence of abuse of trust in this case and to confirm culpability level.

Court's Reasoning and Analysis

The court began by reaffirming the high threshold for appellate interference under section 36 of the Criminal Justice Act 1988, emphasizing that a sentence must be not only lenient but unduly so to justify intervention. The court noted that the sentencing judge did not have the benefit of comprehensive written sentencing notes and was not directed to relevant authorities or guidelines in detail. Both parties agreed that the offence fell within Category 2B of the Sentencing Council Guidelines, which carries a starting point of eight years' imprisonment. The court considered the victim's vulnerability, concluding that the victim, being unconscious due to alcohol, was unquestionably particularly vulnerable under the guideline, consistent with precedent in R v BN. The court rejected the sentencing judge's categorisation of the offence as Category 3B, finding that the facts supported the more serious Category 2B classification. The court acknowledged the mitigating factor of the Defendant's intellectual impairments but held that these did not justify a departure so significant as to reduce the custodial term to two years suspended. The court reasoned that the offence was very serious, involving almost complete commission of rape, a prolonged incident in a domestic context, and committed under the influence of alcohol. Taking into account the partial reduction for the guilty plea and mitigation, the court concluded that a custodial sentence of four years was appropriate. The court also considered whether the sentencing judge was entitled to depart entirely from the guideline range but found no sufficient justification for such a departure given the seriousness of the offence and the circumstances. The court thus allowed the Attorney General's reference, quashed the original sentence, and substituted a custodial term of four years, to be served half in custody and half on licence. The victim surcharge was also varied, and notification requirements extended indefinitely.

Holding and Implications

The court's final decision was to ALLOW THE REFERENCE by the Attorney General. The original sentence of two years' imprisonment suspended for two years was quashed and replaced with a custodial sentence of four years, with half to be served in custody and the remainder on licence. The victim surcharge order was quashed and varied to reflect the new sentence, and the Defendant's notification requirements were made indefinite.

The direct effect of this decision is to impose a significantly harsher custodial sentence on the Defendant, reflecting the seriousness of the offence and the vulnerability of the victim. The decision does not establish new legal precedent but reinforces the application of the Sentencing Council Guidelines and the high threshold for appellate interference in sentencing. It underscores the principle that while intellectual impairments may mitigate culpability, they do not justify a substantial departure from guideline sentencing ranges in serious sexual offences involving vulnerable victims.