Summary of Tribunal Opinion

Factual and Procedural Background

This is the hearing of an application by the Attorney General for leave to refer a sentence considered to be unduly lenient. The application challenges the sentence imposed on the Defendant following conviction by jury on 8 January 2025 in the Crown Court (referred to here as "The Crown Court") for two counts of rape (section 1, Sexual Offences Act 2003), assault by penetration (section 2) and two counts of sexual assault (section 3). The victim (aged 23 at the time) had lifelong anonymity under the Sexual Offences (Amendment) Act 1992.

The offending occurred on the morning of 5 July 2024. As described in the trial judge's findings, the Defendant grabbed the Victim as she approached a bridge, threatened her with a knife, dragged her to bushes, committed multiple sexual acts including sexual touching, assault by penetration, vaginal rape and oral rape, and threatened further violence to prevent reporting. The Victim disclosed immediately; forensic evidence (sperm and saliva DNA, matching the Defendant) and CCTV linked the Defendant to the scene. The Defendant was on licence for earlier robbery convictions at the time of these offences.

The Defendant was arrested on 7 July 2024, interviewed (no comment) and was sent for trial after appearing at The Magistrates' Court on 11 July 2024. He was convicted after trial and sentenced on 30 April 2025 to a total of 15 years 6 months' custody, described as a custodial term of 12 years 6 months plus a 3-year extended licence period; concurrent sentences were imposed for the other offences. The Attorney General sought leave to refer the sentence as unduly lenient.

Legal Issues Presented

1. Whether the sentence imposed on the lead count (rape) was unduly lenient such that leave should be granted to refer the sentence to increase it.
2. Whether the trial judge erred in categorising the lead offence's harm level (whether it was correctly placed in harm category 2 rather than category 1 under the sentencing guideline).
3. Whether the sentencing judge failed to give adequate uplift or explanation to reflect the totality of the separate offences committed against the same Victim (application of the Totality Overarching Guideline and concurrent sentencing principles).

Arguments of the Parties

Attorney Robertson's Arguments (for the Attorney General)

• The lead rape was wrongly categorised as category 2 harm; it should have been category 1 given the severity and multiple harm factors present.
• If retained as category 2, the lead offence should have been placed at or near the top of category 2A because multiple category 2 harm factors applied (including sustained detention and additional degradation/humiliation linked to the other offences and the kissing).
• The judge failed to reflect aggravating factors adequately, gave excessive weight to mitigation, and did not impose sufficient uplift for the other offences committed against the Victim.

Attorney Bernstein's Arguments (for the Defendant)

• The trial judge, having seen the Defendant and the evidence, was best placed to assess harm and sentence; the judge was entitled to place the lead rape in category 2 and to apply the mitigation identified.
• The judge properly accounted for multiple harm factors and aggravating features and had lawfully exercised sentencing discretion; at worst the sentence was lenient but not unduly lenient.
• The structure of concurrent sentences was appropriate and it was not possible to discern any clear error that would justify increasing the sentence as unduly lenient.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

Judge Dingemans (Senior President of Tribunals) conducted a structured review of the sentencing exercise as follows:

1. The court accepted the factual findings made by the sentencing judge: planning by the Defendant (planning over approximately six months), threats of violence exceeding the violence inherent in the offence, abduction to an isolated path, ejaculation, and the presence of multiple separate sexual offences against the same Victim.
2. The panel agreed that the lead offence properly fell within culpability A (significant degree of planning) and that a category 2 harm factor (threats of violence beyond the inherent violence) was present. The court also recognised that the totality of the offending could amount to a "sustained incident" and "additional degradation and humiliation." However, the sentencing judge had decided not to treat some of those features as part of the lead offence because the other offending had been charged separately.
3. The court analysed the sentencing judge's application of the Offence Specific Guideline and the Totality Overarching Guideline. It accepted that the sentencing judge properly identified aggravating and mitigating factors, and that the sentencing judge was entitled to take into account the Defendant's youth, mental health history (including ADHD) and lack of maturity under the guideline for offenders with mental disorders. The sentencing judge's assessment of dangerousness was not challenged on the Reference.
4. Critical to the panel's conclusion was the question whether the sentencing judge gave sufficient uplift to the lead sentence to reflect the separate offences committed against the same Victim. The panel found that the sentencing remarks did not make clear what, if any, uplift had been applied to reflect the separate rape, assault by penetration and two sexual assaults. The structure of the sentencing remarks suggested only a minor uplift had been applied.
5. Applying the Totality Overarching Guideline and the principles governing concurrent sentences, the panel accepted that it would be inappropriate simply to add separate terms for each offence in full. Nevertheless, the panel concluded that the combined criminality in the separate counts amounted to an overall level of seriousness that required a materially higher determinate custodial sentence for the lead count than that passed by the sentencing judge.
6. Weighing the seriousness of all the offending together (including the sustained nature and additional degradation), the panel concluded that the least appropriate determinate custodial sentence for the lead count, after trial, was 17 years' imprisonment (with the previously imposed 3-year extended licence to remain). That represented an increase of approximately 4½ years to the custodial component imposed by the sentencing judge.

Holding and Implications

Reference GRANTED; Sentence Increased

Holding:

• Leave to refer the sentence was granted.
• The court increased the custodial element of the sentence on the lead count (rape) from 12 years 6 months to 17 years' imprisonment. The previously imposed 3-year extended licence period remains unchanged.
• The sentences imposed for the other offences were left as before and remain concurrent with the lead sentence.

Implications:

• Direct effect: the Defendant's custodial term for the lead count is increased to reflect the aggregate seriousness of all offences committed against the Victim; other sentences remain concurrent.
• The decision reflects the court's application of the Totality Overarching Guideline: while concurrent sentences were appropriate, the lead sentence must adequately reflect the totality of criminality when other offences against the same Victim are separately charged.
• No new case-law precedent is stated to have been established by the panel; the outcome arises from applying existing sentencing guidelines and principles to the facts as found by the sentencing judge.

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Administrative notes: The opinion records the court's gratitude to Attorney Robertson and Attorney Bernstein for their written and oral submissions. The sentencing judge's findings, the forensic and CCTV evidence, and the Victim's and family statements are recorded in the trial and sentencing material relied upon by the court.