Factual and Procedural Background
This appeal concerns a conviction for rape and an application by the Solicitor General under section 36 of the Criminal Justice Act 1988 seeking leave to refer the sentence as unduly lenient. The Defendant was convicted by a jury at The Court on 24 January 2025 and was sentenced by Judge Kelleher on 15 April 2025 to 4 years and 6 months' imprisonment. The Defendant is 34 years old.
The offence arose from events in May 2021 in The City. The Defendant joined a group late in the evening; others, including the victim, had been drinking for longer. Some of the group later returned to the victim's flat to continue drinking. The victim became very intoxicated, passed out on a sofa and was later in bed. The Defendant was not invited to join her but was present; while the victim was asleep or incapacitated by alcohol and therefore unable to consent, the Defendant raped her vaginally and ejaculated. Semen and DNA evidence supported this finding. The victim set out significant psychological and personal consequences in a victim personal statement, which the court took into account.
Legal Issues Presented
- Whether the sentencing judge erred in categorising harm under the Rape guideline by failing to treat the victim's intoxicated or sleeping state as rendering her "particularly vulnerable due to personal circumstances," thereby placing the offence in category 2 rather than category 3.
- Whether, having identified the correct category and starting point, the sentence should be increased on the basis that the judge failed to make sufficient allowance for aggravating factors and made too great a reduction for mitigating factors.
Arguments of the Parties
Solicitor General's Arguments (Applicant)
- Attorney White submitted that the sentencing judge erred in identifying the relevant harm category under the Rape guideline by not treating the victim's intoxicated/incapacitated state as making her "particularly vulnerable due to personal circumstances," which should have placed the offence in category 2 rather than category 3.
- The Solicitor General also submitted that the judge failed to allow sufficiently for aggravating factors and gave too large a reduction for mitigation when imposing a sentence below the starting point for the category the judge selected.
Defendant's Arguments
The opinion does not contain a detailed account of the Defendant's legal arguments presented at the reference hearing.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Attorney-General's Reference (R v BN) [2021] EWCA Crim 1250 |
Established that a person who is asleep (particularly in their own bed) is in a condition of particular vulnerability because they are unaware, unable to protest or resist, or to summon assistance. |
The court relied on this authority to conclude that a victim who is asleep or unconscious through intoxication falls within the category 2 vulnerability factor for harm, regardless of how they came to be in that state or in that location. |
| R v Lister [2022] EWCA Crim 1560 |
Affirmed the principle that being asleep renders a victim particularly vulnerable for the purposes of the guideline. |
The court treated R v Lister as corroborative authority supporting the conclusion that sleep or unconsciousness due to intoxication engages the category 2 vulnerability factor. |
Court's Reasoning and Analysis
The court began by identifying the relevant Rape guideline categories: harm categories 2 and 3, and culpability categories A and B. It accepted that culpability was B (no factors elevating to A) and that the central dispute concerned whether the harm category was 2 or 3.
The court analysed the sentencing judge's reasoning, noting the judge concluded he was not satisfied the victim was "particularly vulnerable" within the guideline because of uncertainty about how she came to be in bed with the Defendant. The appellate court held that how the victim came to be in bed was immaterial: the relevant factor is that she was asleep or unconscious through intoxication and therefore unaware and unable to resist or summon assistance.
Relying on the authorities cited, the court concluded the sentencing judge made an identifiable error in classification by treating the victim's intoxicated/sleeping state as insufficient to establish the category 2 vulnerability factor. The court reclassified the offence as a category B, harm category 2 rape.
Applying the guideline, the court set the starting point for a category B2 adult rape at 8 years (range 7–9 years). It assessed the potency of the single category 2 factor present (adult victim unconscious through drink) as lesser than cases involving additional or more potent factors and adjusted the starting point down by one year to 7 years (the bottom of the range).
The court considered aggravation (including ejaculation) and concluded no further upward adjustment was required because a 7-year sentence adequately comprehended that fact. The court then considered mitigation: the Defendant's good character (including prior service in the police and Royal Marines) and delay between offence and conviction (about four years). These factors were deemed of limited weight but justified a modest reduction.
Accordingly, the court quashed the judge's sentence of 4 years and 6 months and replaced it with a custodial sentence of 6 years and 6 months. All other orders made by the sentencing judge were to remain in force.
Holding and Implications
The court quashed the original sentence and substituted a sentence of 6 years and 6 months' imprisonment.
Consequences: The direct effect is that the Defendant's sentence is increased from 4 years and 6 months to 6 years and 6 months; other orders made by the sentencing judge remain in place. The decision clarifies that a victim's state of sleep or unconsciousness due to intoxication engages the Rape guideline's category 2 vulnerability factor irrespective of how the victim came to be in that state. The opinion applies existing authorities rather than establishing a new legal principle.