[2025] EWCA Crim 1470

Before the judge below it was common ground that the rape offence (count 1) fell within Category 2B. Despite that agreement the judge categorised it as falling within Category 3B. In our judgment he was clearly wrong to do so. As he had found in the course of his sentencing remarks, V was particularly vulnerable due to her personal circumstances, namely her extreme intoxication which meant that she was in no position to influence events or to protect herself. In the light of that finding alone the rape offence (count 1) fell into harm Category 2: see R v BN [2022] 1 Cr.App.R (S) 37 at [25]. In our judgment the evidence of the psychological harm suffered by V, as found by the judge, was another factor indicating that the case should fall within Category 2 for harm. There is no dispute that the offence fell within culpability factor B. Thus the appropriate starting point was a sentence of eight years. There is no information that suggests a lower point in the category range should be taken before considering aggravating and mitigating features.

The Solicitor General rightly points to five significant aggravating features. First, the offender specifically targeted a particularly vulnerable victim. Second, the location of the offence was a public park. Third, the timing of the offence was that it took place in the early hours of the morning. Fourth, the offence was committed while the offender was under the influence of alcohol and drugs. Fifth, V was 16 years old, as he knew having been warned by her brother.

Turning to the offender's personal mitigation, it was limited to his absence of relevant convictions and the considerable evidence of his positive good character. Making all due allowance for his mitigation, it cannot come close to outweighing the adverse effect of the aggravating features.

It is important to recognise that the vulnerability of V is reflected both in the categorisation of harm within Category 2 and in the aggravating feature that the offender specifically targeted V knowing that she was particularly vulnerable. While V's vulnerability is common to both, the essence of the aggravating feature is not so much that V was vulnerable but that the offender targeted her because, as he well knew, she was particularly vulnerable. The overlap between the two features is therefore limited.

In our judgment, taking the rape offence in isolation, the judge should have adopted a starting point of eight years and should have adjusted that upwards by not less than a year to reflect the net effect of the aggravating and mitigating features. Viewing the rape offence in isolation, the lowest sentence that could properly have been passed on count 1 was one in the region of nine years. However, the rape offence cannot be viewed in isolation because the judge chose to impose concurrent sentences with the rape offence being the lead offence. He was right to adopt that course but it meant that the sentence that was appropriate for count 1 in isolation had to be adjusted to reflect the additional criminality attributable to count 2, the offence of assault by penetration.

Once again we start by viewing the offence of assault by penetration in isolation. For the same reasons as we have given in relation to the rape offence, it fell within Category 2B. Thus the starting point was six years' custody. That sentence fell to be adjusted to reflect the aggravating and mitigating features, such that if the assault by penetration had stood on its own an appropriate sentence would have been not less than one approaching seven years' custody.

It does not appear from the sentencing remarks that the judge made any adjustment to the sentence he had determined to be appropriate for the rape offence when standing on its own. What adjustment should be made in these circumstances to reflect the additional criminality of count 2? The information that is available to us and was available to the judge indicates that both offences were committed by the offender within a short period as part and parcel of one incident with him raping her soon after he had assaulted her. To some extent therefore it is right to regard the two offences as forming part of one single course of criminal conduct. Accordingly, on totality grounds it would be wrong in principle simply to aggregate the two sentences that would have been appropriate if each offence had stood on its own. That said, the assault by penetration was itself a serious offence and the offender's criminality was significantly greater by reason of his having committed the two offences than it would have been had he committed only one of them. It was therefore an error of principle for the judge to have made no adjustment at all.

In our judgment, the correct approach to the question of adjustment is to ask the question: "To what extent does the offence of penetration make the overall seriousness of the offender's conduct worse?" We ask that question in full knowledge of the starting point and category range that would apply if count 2 were to stand alone; but in reaching our answer to that question we are less influenced by the standalone position than we are by the more general question applying the principle of totality: "What is the overall effect of the additional existence of count 2?"

In our judgment, recognising that the offence of rape was in every sense the most serious aspect of his offending, and making all due allowance for the principle of totality, the least sentence that could be passed on count 1 that would properly reflect the overall criminality of the offender's conduct was one of 10 years and six months. The sentence of six years and six months imposed by the judge was wrong in principle, both in terms of categorisation and in terms of weighting the sentence for the lead offence; and it was unduly lenient.

We therefore quash the sentence imposed by the judge on count 1 and impose a sentence of 10 years and six months' imprisonment. It is not necessary to adjust the sentence on count 2.