Minshull, R v

Earlier sentencing decisions concerning indecent assault involving digital penetration are no longer authoritative for the distinct offence of assault by penetration under Sexual Offences Act 2003, section 2. For an adult offender, the ordinary starting point is likely to be about four years' imprisonment. A substantially higher starting point may be justified by serious aggravating features, including the complainant's age and particular vulnerability, a breach of trust, and relevant previous convictions.

The applicant pleaded guilty at Warrington Crown Court to assault by penetration contrary to section 2 of the Sexual Offences Act 2003. The complainant was a 13-year-old girl with severe learning difficulties and sensory disabilities. The applicant, a family friend entrusted to supervise her briefly, digitally penetrated her and continued despite her distress.

He had previous convictions for indecent assaults on girls under 14. The sentencing judge adopted a starting point of seven years after a trial and imposed five years' imprisonment for the prompt guilty plea. The applicant sought leave to appeal against sentence, contending that the starting point was excessive by reference to earlier indecent-assault sentencing decisions.

1. The application for leave to appeal against sentence was refused. The five-year sentence was unimpeachable.
2. Earlier decisions concerning the appropriate sentence for indecent assault involving digital penetration could no longer be regarded as authoritative after the enactment of section 2 of the Sexual Offences Act 2003. The statutory offence of assault by penetration carried a maximum sentence of life imprisonment and had to be approached on its own sentencing basis.
3. Applying the approach elaborated in Garvey, the ordinary starting point for an adult offender convicted of assault by penetration was likely to be about four years' imprisonment. That starting point was not determinative where substantial aggravation was present.
4. Here, the complainant's young age and particular vulnerability, the applicant's breach of the trust placed in him, and his previous convictions for indecent assaults on girls under 14 were all significant aggravating features. They justified the judge's seven-year starting point on the basis of a trial. The reduction to five years for the prompt plea was therefore proper.

• Court of Appeal (Criminal Division): Refused the application for leave to appeal against sentence: [2004] EWCA Crim 2673.
• Warrington Crown Court: On 6 September 2004, following a guilty plea to assault by penetration contrary to section 2 of the Sexual Offences Act 2003, sentenced the applicant to five years' imprisonment.