Heeney, R v

Sentencing guidelines for sexual offences must be applied with flexibility. Their ranges and listed aggravating factors do not displace the court’s duty to assess the particular gravity of the offending.

Gravity requires consideration of harm, deterrence, risk to society and culpability. A non-consensual, coercive or exploitative sexual assault has high culpability. An assault that is limited in physical duration may nevertheless merit a substantially higher sentence where surrounding circumstances, such as night-time intrusion into a victim’s home, make it markedly more serious than the sexual activity viewed alone.

The offender entered the home of a woman living alone during the night and sexually assaulted her in her bedroom, causing bruising. He was originally charged with attempted rape. That charge was discontinued after the prosecution sought, unsuccessfully, to substitute counts including trespass with intent to commit a sexual assault. Following a retrial, he was convicted of sexual assault contrary to section 3 of the Sexual Offences Act 2003.

The Crown Court sentenced him to two years’ imprisonment. The Solicitor General referred the sentence under section 36 of the Criminal Justice Act 1988, contending that it was unduly lenient. The central issue was whether the sentence sufficiently reflected the aggravated circumstances of the assault.

Held

1. The court granted leave and allowed the Solicitor General’s reference. The two-year sentence was unduly lenient. It was quashed and replaced with four years’ imprisonment, with credit for time spent in custody.

2. The seriousness of a sexual offence must be assessed by reference to the harm caused, the need for deterrence, the risk posed to society and the offender’s culpability. Culpability is high where the proved sexual activity is non-consensual, coercive or exploitative.

3. The Definitive Guideline on the Sexual Offences Act 2003 did not require a rigid sentence based solely on the category of sexual activity. Its ranges permit movement within and between categories, and its additional aggravating factors are not exhaustive. A rigid application could cause injustice to either an offender or a victim.

4. The offending was materially more serious than a straightforward sexual assault. The offender had entered a lone woman’s home at night as a trespasser and, shortly afterwards, formed the intention to commit a sexual assault. Although he had not been convicted under section 63 of the Sexual Offences Act 2003, those circumstances made the case analogous in seriousness to that offence. The limited duration and extent of the assault did not reduce the grave significance of its setting, the victim’s fear and injury, and the offender’s high culpability.

5. The offender was ordered to surrender to the police station by midday on 8 June 2009. The increased sentence also resulted in an indefinite police-notification requirement.

• Court of Appeal (Criminal Division) — In [2009] EWCA Crim 1393, the court granted leave on the Solicitor General’s reference under section 36 of the Criminal Justice Act 1988, found the sentence unduly lenient, and substituted four years’ imprisonment.
• Crown Court at Manchester (Minshull Street) — Following a retrial, the offender was convicted of sexual assault on 10 December 2008 and was sentenced to two years’ imprisonment on 23 February 2009. No lower-court citation was stated.