Factual and Procedural Background
The Attorney General referred as unduly lenient a five-year sentence imposed on the Defendant after conviction at trial for two rapes committed against the Victim on 18 March 2023. [1][2]
The Victim was heavily intoxicated when the Defendant encountered him on the street, took him to the Defendant’s flat, and sexually assaulted him. The Victim reported the incident, received medical attention, and made a police interview statement the following day. [3][4][5][6]
The Defendant maintained that the sexual activity was consensual. He was charged on 6 June 2024, convicted after trial, and sentenced on the same day without reports being sought. [7][8][9][10]
Legal Issues Presented
- Whether the sentencing judge incorrectly categorised the offences under the applicable sentencing guideline by failing to treat the Victim as “particularly vulnerable.” [11][12]
- Whether the sentence was unduly lenient and should be increased by the Court of Appeal. [13]
- Whether psychological harm, abduction, sustained detention, and the Defendant’s electronically tagged curfew affected the appropriate sentence. [14][15][16][17]
Arguments of the Parties
Solicitor General’s Arguments
- The offending involved additional category 2 factors: severe psychological harm, prolonged detention or a sustained incident, and abduction. [14][18]
- The combination of those factors could elevate the offending to category 1 or require a substantial increase within category 2. [15]
- The allowance of four months for the electronically tagged curfew was criticised in the written reference. [17]
Defendant’s Arguments
- The Victim was intoxicated but was not “particularly vulnerable” within the guideline and the harm fell within category 3. [11]
- The sentencing judge was better placed to assess the Victim’s awareness and ability to protest or resist because the judge had presided over the trial and viewed the CCTV evidence. [19]
- The Victim had conversed with others, walked before entering the vehicle and flat, and retained some ability to ask the Defendant to slow down or stop. [20][21]
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Attorney-General's Reference (R v Boltaev) [2025] EWCA Crim 207; [2025] 2 Cr App R (S) 9 |
Guidance concerning “particular vulnerability” in cases involving intoxicated victims. |
The Court considered it alongside the other authorities in explaining that particular vulnerability is a high threshold but may arise from intoxication short of unconsciousness. [22][23] |
| Attorney-General's Reference (R v Greenaway) [2025] EWCA Crim 1568; [2026] 1 Cr App R (S) 42 |
General approach to assessing particular vulnerability. |
The Court relied on the authorities collectively to emphasise that the issue is one of fact and degree, focusing on the victim’s ability to protest or resist. [22][23] |
| Attorney-General's Reference (R v BN) [2021] EWCA Crim 1250; [2022] 1 Cr App (S) 37 |
Guidance concerning particular vulnerability and intoxication. |
The Court treated the cited authorities as supporting the applicable evaluative approach and limited appellate intervention to cases involving ignored facts or an assessment outside the reasonable range. [22][23] |
Court's Reasoning and Analysis
The Court held that “particular vulnerability” is a high threshold. A person who is insensible or powerless to protest or resist will ordinarily meet it, while lesser intoxication may also suffice when combined with other circumstances. The assessment is one of fact and degree for the sentencing court. [23]
The sentencing judge had not expressly found that the Victim was not particularly vulnerable and had not explained how that conclusion could be reconciled with the finding that the Victim was “very vulnerable” and had been targeted because of that vulnerability. [12]
The Court identified several factors supporting categorisation as particularly vulnerable: the Victim had been described as very vulnerable when targeted; his vulnerability increased when he was isolated in the Defendant’s vehicle and flat; and the evidence indicated highly impaired, if not largely absent, consciousness and ability to resist during an incident lasting several hours. [24][25][26]
The Court therefore concluded that the correct guideline starting point was eight years rather than five years. [27]
The Court rejected a further increase for abduction or sustained detention because taking the Victim from the street and keeping him in the flat had already been reflected in the categorisation of the Victim as particularly vulnerable. [16]
The Court also upheld the four-month reduction for the electronically tagged curfew, finding that, although generous, it was within the sentencing judge’s discretion because the curfew involved a real deprivation of liberty. [28][17]
Holding and Implications
APPEAL ALLOWED; SENTENCE INCREASED. The Court found an error of principle in the categorisation of the offences and held that the original sentence was unduly lenient. [13]
The sentences on both counts were quashed and replaced with concurrent sentences of eight years’ imprisonment on each count. [29][30]
The direct consequence was an increase in the Defendant’s custodial sentence. The opinion does not identify broader implications or state that a new precedent was set.