Smith, R. v

Factual and Procedural Background

This is a renewed application for leave to appeal against sentence following refusal by a single judge. The Appellant was re-arraigned and pleaded guilty on 12 August 2024 to one count of assault by penetration (section 2, Sexual Offences Act 2003) and one count of assault occasioning actual bodily harm (section 47, Offences against the Person Act 1861) on indictment I0U55053323. On 7 May 2025, on re-arraignment, the Appellant pleaded guilty to one count of criminal damage (section 1(1), Criminal Damage Act 1971) and one count of having an article with a blade or point (section 139(1), Criminal Justice Act 1988) on indictment I0U50003223.

On 21 July 2025 Her Honour Judge Clemitson sentenced the Appellant to an extended sentence of seven years for the assault by penetration, comprising a custodial term of four years and an extended licence period of three years. Concurrent terms were imposed of eight months for the assault occasioning actual bodily harm, one month for criminal damage, and 16 months for having a bladed article. A six‑year restraining order was also made.

The factual background in the judgment: the victim and the Appellant were in a relationship from 2018 until December 2022. The index sexual offences occurred on 7 May 2022 after arguments; the Appellant allegedly forced the victim against a wall, placed his hand around her neck, and inserted fingers into her vagina. The later offences occurred on or about 3 January 2023 when the victim's kitchen window was smashed and a knife was found in the garden; the Appellant admitted having a knife but offered a basis that it was to assist opening the window. The Appellant was interviewed and provided varying denials and later an accepted basis of plea.

A pre‑sentence report recorded prior convictions (15 convictions for 24 offences between 1998 and 2023), a conditional discharge in February 2023 for stalking, and a November 2023 Crown Court sentence in Durham of 32 months for controlling and coercive behaviour plus a consecutive 28 months for perverting the course of justice; the Appellant remained in custody awaiting sentence for the index matters. The report assessed a high risk of causing serious harm to current and future intimate partners.

Legal Issues Presented

1. Whether the sentencing judge erred in categorising the assault by penetration as category 2B rather than category 3B under the relevant sentencing guideline (and whether the notional sentence after trial was too high).
2. Whether the judge failed adequately to apply the principle of totality in passing the aggregate sentence given the Appellant's prior concurrent custody and earlier Crown Court sentence.
3. Whether the judge was wrong to find the Appellant to be dangerous and therefore to impose an extended sentence with an extended licence period.

Arguments of the Parties

Appellant's Arguments

• Attorney Hall submitted that the sexual assault was of very short duration and the violence was not beyond that inherent in the offence, so it should have been categorised as 3B (starting point two years, range high community order to four years). If 2B applied, there should have been a significant further reduction for the basis of plea, delay to trial, and substantial mitigation in the Appellant's work in custody.
• It was submitted that the judge did not sufficiently apply the principle of totality; the effective reduction for time already in custody (16 months) was insufficient, particularly in light of the earlier custodial term.
• It was argued that the judge was wrong to find the Appellant dangerous and to impose an extended sentence; alternatives to immediate custody showed he could be managed in the community and, even if the dangerousness test were met, there were reasons not to impose an extended sentence.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court of Appeal reviewed the sentencing judge's findings and reasoning and concluded as follows:

• The sentencing judge was entitled to place the assault by penetration in category 2B. The judge found that the squeezing of the victim's neck, even for a short time, amounted to violence beyond that inherent in the offence; the appellate court agreed that this was open to the judge.
• The court observed that even if the offence had been placed in category 3B, the appropriate sentence would have reached the top of that range and the judge had made a significant reduction for the short duration of the assault and for mitigation (including the accepted basis of plea and work in custody). The custodial term of four years for the sexual offence was not manifestly excessive.
• The judge's finding of dangerousness was sustained. The Appellant's pattern of offending against various partners supported the judge's view that the Appellant posed a risk; the judge was entitled to require an extended licence period to provide protection pending evidence that custody interventions had durable effect in the community.
• On totality, the judge expressly recognised the Appellant had been in custody on other matters and adjusted sentences accordingly by ordering the bladed article and criminal damage sentences to run concurrently where otherwise they would have been consecutive; the appellate court considered this a sufficient allowance for totality in the judge's stated approach.
• For these reasons the appellate court found the grounds advanced were not arguable: the categorisation, dangerousness finding, application of totality, and resulting aggregate sentence were not shown to be manifestly excessive or wrong in principle.

Holding and Implications

APPLICATION FOR LEAVE TO APPEAL REFUSED

Direct effect: the sentence imposed by Her Honour Judge Clemitson on 21 July 2025 remains in force (extended sentence of seven years: four years custody and three years extended licence; concurrent terms for the other offences; six‑year restraining order). The renewed application for leave to appeal against sentence was refused.

The opinion does not purport to establish a new principle of law; it upholds the sentencing judge's application of sentencing categories, the dangerousness assessment, and the approach to totality in the circumstances of this case.

Anonymization note: parties and non‑judicial entities have been replaced with generic placeholders for consistency with the source text requirements.