Factual and Procedural Background
The Defendant pleaded guilty to two offences: assault by penetration contrary to section 2 of the Sexual Offences Act 2003 (count 2), and disclosing private sexual photographs contrary to section 33(1) of the Criminal Justice and Courts Act 2015 (count 3). The offences occurred while the Defendant and the victim, referred to as C, were in a relationship that began at school and became sexual. The assault by penetration took place in early 2021 when C was asleep and the Defendant digitally penetrated her vagina without consent. The second offence involved the Defendant sending intimate photographs of C to multiple recipients in late May 2021, motivated by jealousy.
The Defendant was sentenced on 31 January 2025 at the Crown Court at Manchester, Crown Square. For count 2, he received a 2-year imprisonment sentence suspended for 2 years with requirements including unpaid work and rehabilitation. For count 3, he received a concurrent 12-month suspended sentence. The Solicitor General considered the total sentence unduly lenient and applied for leave to refer the case for review pursuant to section 36 of the Criminal Justice Act 1988.
C is entitled to lifelong anonymity under the Sexual Offences (Amendment) Act 1992, and the Defendant’s identity is anonymised as BPK to prevent identification.
The Defendant initially pleaded not guilty to the assault by penetration but later entered a guilty plea at a retrial date in December 2024. The rape charge (count 1) was ordered to lie on the file. There was notable delay before trial due to undisclosed messages between C and the Defendant.
At sentencing, victim personal statements described ongoing psychological harm and distress caused by the offences and the Defendant’s conduct post-offence. The Defendant was noted to have previous good character, no offending during the intervening period, and was employed at the time of sentencing. The sentencing judge considered relevant guidelines and made findings on the categorisation of the offences and appropriate sentencing ranges, ultimately imposing suspended sentences to support rehabilitation.
Legal Issues Presented
- Whether the sentencing judge correctly categorised the assault by penetration offence under the relevant sentencing guidelines, particularly in relation to the victim’s vulnerability.
- Whether the sentence imposed was unduly lenient given the aggravating and mitigating factors.
- Whether the sentencing judge erred in the amount of credit given for the Defendant’s guilty plea.
- Whether the concurrent sentence for the disclosure offence appropriately reflected the overall criminality or whether a consecutive sentence or an uplift was warranted.
Arguments of the Parties
Solicitor General’s Arguments
- The total sentence was unduly lenient, given the seriousness of the offences and the relevant sentencing guidelines.
- The victim was particularly vulnerable at the time of the assault, placing the offence in category 2B with a starting point of 6 years’ custody.
- The judge failed to properly increase the starting point to reflect aggravating factors such as the persistence of the assault, psychological impact on the victim, and the Defendant’s false assertions to mutual friends.
- The judge gave excessive weight to mitigating factors, including immaturity and previous good character.
- The judge erred by awarding more than 10% credit for the late guilty plea to count 2.
- The judge erred in imposing a concurrent sentence for count 3 or, alternatively, failed to elevate the sentence on count 2 to reflect the separate offending on count 3.
Defendant’s Counsel’s Arguments
- The judge properly assessed all relevant factors and was entitled to reach the conclusions on categorisation and sentencing.
- Even if the victim was particularly vulnerable, it was appropriate to move downwards from the guideline starting point due to the circumstances.
- Priority was rightly given to a rehabilitative sentence aimed at reducing future risk rather than immediate custody.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Naqvi [2024] EWCA Crim 958 |
Clarification on the proper use of "starting point" in sentencing guidelines under the Sentencing Code. |
The court reiterated that once the appropriate category is identified, there is a single starting point which may be adjusted upwards or downwards; it is incorrect to treat adjusted points as new starting points. |
| R v BN [2021] EWCA Crim 1250; [2022] 1 Cr App R (S) 37 |
Definition and application of "particular vulnerability" in sexual offence sentencing. |
The court accepted that a victim asleep at the time of sexual activity is generally particularly vulnerable, but this is not an inflexible rule; the victim’s actual circumstances matter. |
| R v Husband [2021] EWCA Crim 1240 |
Similar principle regarding vulnerability of victims who are asleep or intoxicated. |
Supported the view that vulnerability depends on circumstances, not a rigid rule. |
| R v AWA [2021] EWCA Crim 1877 |
Confirmed that sleeping alone does not automatically confer particular vulnerability; context is critical. |
Used to illustrate that vulnerability must be assessed case-by-case. |
| R v Iqbal [2024] EWCA Crim 689 |
Further illustration of the principle that vulnerability depends on circumstances. |
Referenced to support nuanced approach to vulnerability. |
Court's Reasoning and Analysis
The court carefully analysed the categorisation of the assault by penetration offence under the Sentencing Council guidelines. It emphasised that the victim was particularly vulnerable at the moment the assault began, as she was asleep and unaware, which justified placing the offence in category 2B with a starting point of 6 years’ custody. The court clarified that the judge’s reference to the case being "on the cusp" of vulnerability was incorrect, as once a category is identified, the starting point is fixed and adjustments are made from there.
The court accepted that the judge was entitled to make a downward adjustment from the starting point to reflect the short duration of the victim’s vulnerability once she awoke and moved away. However, the judge erred by treating this as a different starting point rather than an adjustment.
Regarding aggravating and mitigating factors, the court found that while immaturity was a mitigating factor, it should not have been given substantial weight given the Defendant’s knowledge of the victim’s refusal and his selfish conduct. The continuation of the assault after the victim moved away was a significant aggravating factor. The court concluded the mitigating factors did outweigh the aggravating ones but not to the extent found by the judge.
The court determined that the appropriate sentence after trial for count 2 should not be less than 3 years’ imprisonment and that the credit for the guilty plea should not exceed 10%, rejecting the judge’s allowance of a higher credit. The court also stressed the domestic context increased the seriousness of the offence.
For count 3, the court held that the judge erred by imposing a concurrent sentence without sufficient explanation or uplift to reflect the separate criminality. The appropriate sentence for count 3 after trial was at least 12 months, reduced to 8 months for the early guilty plea.
Considering totality and mitigation, the court found that a total sentence of less than 3 years was unjustified. It acknowledged the judge’s desire to support rehabilitation but concluded that immediate custody was necessary given the seriousness of the offences.
The court also addressed procedural matters, including the Defendant’s obligation to surrender to the police station promptly following the decision.
Holding and Implications
The court granted leave to refer and held that the sentences imposed by the Crown Court judge were unduly lenient.
The court quashed the previous sentences and substituted the following terms of imprisonment: 2 years 9 months on count 2 and 8 months on count 3, to run concurrently for a total effective sentence of 2 years 9 months’ imprisonment.
As a result, the Defendant is liable indefinitely to notification requirements. The restraining order imposed below remains unchanged.
The direct effect is that the Defendant must surrender to the designated police station without delay. No new legal precedent was established beyond the application of existing sentencing principles to the facts of this case.