Wisniewski, R v

For the new offence of battery with intent to commit a sexual offence, established sentencing guidance concerning sexual offending continues to assist sentencers. The assessment should address the force used, the actual and intended indecency, the victim’s vulnerability and harm, the duration and circumstances of the attack, and the risk to the public.

The statutory maximum of ten years means that, save where substantial violence is used, the appropriate sentence will generally be lower than for rape or attempted rape in comparable circumstances. Good character has limited mitigating effect. An earliest guilty plea warrants a substantial reduction, although earlier admissions may justify greater credit.

The appellant pleaded guilty at Central Devon Magistrates’ Court to two offences of battery with intent to commit a sexual offence under section 62 of the Sexual Offences Act 2003. He was committed to Exeter Crown Court for sentence and received consecutive terms of two and five years’ imprisonment, totalling seven years, together with a recommendation for deportation.

The offences occurred within a week. Each complainant was alone at night. The second assault involved greater and more prolonged force, an intended rape, and significant distress to the complainant. The appellant, who was of previous good character, appealed against sentence. The issues were whether the individual starting points, the credit for guilty pleas, and the overall term were excessive.

1. Appeal allowed in part. The seven-year total was manifestly excessive. The court quashed the two-year sentence for the first offence and substituted 18 months’ imprisonment. It quashed the five-year sentence for the second offence and substituted three years and six months’ imprisonment. The resulting total was five years’ imprisonment. The deportation order remained in force.

2. Although battery with intent to commit a sexual offence is a new statutory offence, earlier sentencing authorities on sexual offending should continue to guide sentencers. The relevant assessment includes the method and degree of force, the nature and extent of actual and intended indecency, the victim’s vulnerability and harm, the duration and circumstances of the attack, and the risk posed to the public.

3. Good character afforded only limited mitigation. The fact that two sexual attacks occurred within a week was seriously aggravating. The second attack was more serious because it involved greater and more prolonged violence, persistence in intended sexual activity, and an intention to rape.

4. The court emphasised the distinction between the statutory maximums. The maximum for the section 62 offence under the Sexual Offences Act 2003 is ten years, rather than life imprisonment for rape or attempted rape. Unless a great deal of violence is used, sentencing for battery with intent will generally be lower than for rape or attempted rape in similar circumstances.

5. A substantial reduction was required for the earliest possible guilty pleas. A greater reduction would have been available if the appellant had admitted the offences in interview before the identification procedure.

• Court of Appeal (Criminal Division): Allowed the sentence appeal in part and substituted concurrent? No: it substituted terms producing a total of five years’ imprisonment: [2004] EWCA Crim 3361.

• Exeter Crown Court: On 23 July 2004, imposed consecutive sentences of two and five years’ imprisonment, totalling seven years, and recommended deportation.

• Central Devon Magistrates’ Court: On 21 June 2004, accepted guilty pleas and committed the appellant to the Crown Court for sentence.