NEL, R. v

Factual and Procedural Background

This is an application by the Solicitor General to refer a sentence under section 36 of the Criminal Justice Act 1988 as unduly lenient. The original sentence was imposed on 12 September 2025: a total term of 2 years' imprisonment. The Offender was convicted by a jury of two offences on an indictment: Count 1, assault by penetration contrary to section 2 of the Sexual Offences Act 2003 (2 years' imprisonment imposed); Count 2, unlawful wounding contrary to section 20 of the Offences Against the Person Act 1861 (concurrent term of 1 year). The Offender was acquitted of a third count alleging intentional strangulation contrary to section 75A of the Serious Crime Act 2015. The Offender was 45 at the time of the offences and 46 at sentencing. The sentencing judge proceeded immediately after verdict without a victim personal statement or a pre-sentence report. The court directed that the Offender surrender to custody (by attending the police station) to serve the substituted sentence.

Legal Issues Presented

1. Whether the assault by penetration should have been categorised for guideline purposes as Category 2 harm (specifically 2B) rather than Category 3, such that the original sentence was unduly lenient.
2. If the proper categorisation was Category 2B, what is the appropriate sentence following adjustment for aggravating and mitigating factors?

Arguments of the Parties

Applicant (Solicitor General / Prosecution submissions at sentence)

• The assault by penetration should be treated as the lead offence reflecting totality of criminality.
• The level of harm was Category 2: sustained incident, uninvited entry into the home, violence beyond that inherent in the offence.
• If Category 2 were accepted, the guideline starting point would be 6 years with a range of 4–9 years.
• The domestic context was an aggravating factor.
• Accepted mitigating features: lack of relevant previous convictions, conduct in taking the victim to hospital, and good work record.

Defence (Attorney Siddle)

• The assault by penetration should be categorised as Category 3B; the sentencing judge's findings did not justify Category 2B.
• The judge must have rejected parts of the victim's evidence; that affected categorisation and sentence length.
• Mitigation included caring responsibilities, recent bereavement, mental health issues, adverse effects of imprisonment on employment and mortgage.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court identified the sole determinative question as whether the assault by penetration should be classified as Category 2 or Category 3 for harm purposes. It set out the factors elevating an assault by penetration to Category 2 (including severe psychological or physical harm, sustained incident, violence beyond that inherent in the offence, forced or uninvited entry, etc.). The court noted some ambiguity in the sentencing judge's remarks about uninvited entry but found the incident was properly described as sustained: the Offender's account to police described 10–15 minutes of physical interaction and the medical evidence showed bite marks and a 5 cm tear to the labia majora requiring surgical repair. The jury rejected the 'rough sex'/consent defence. The court concluded the evidence (including medical evidence) required treating the offence as Category 2 because the violence exceeded that inherent in mere penetration and produced significant injury. As a result the sentencing judge used the wrong starting point. The court applied the guideline starting point for Category 2B (6 years, range 4–9 years), then allowed mitigation (post-offence conduct in seeking medical help, work record, lack of relevant convictions) to reduce the starting point from 6 years to 5 years. The court therefore quashed the original sentence and substituted a 5-year sentence for Count 1, leaving the concurrent term for Count 2 unaffected. The court also addressed the victim surcharge as likely correct unless adjustment were required.

Holding and Implications

The court quashed the original sentence and substituted a sentence of 5 years' imprisonment for Count 1 (assault by penetration). The concurrent term imposed for Count 2 remains unchanged. The Offender must surrender to custody to serve the balance of the substituted sentence (the court allowed a short period to surrender at the police station). The decision's direct consequence is an increased custodial term for the Offender; the opinion does not purport to establish a new legal precedent beyond applying sentencing guidelines to the facts of this case.