Z, R v

For assault by penetration involving a finger and no physical injury, the applicable definitive guideline gives a starting point of two years’ imprisonment and a range of one to four years. Brief penetration may justify a materially lower sentence, but does not compel one. Sentencers must assess all features of the offending, including whether it was planned, opportunistic or impulsive, the number of penetrations, and the circumstances in which the victim was targeted.

An opportunistic and impulsive offence may nevertheless justify a substantial custodial sentence where it involves repeated penetration of a sleeping complainant. Personal mitigation, including youth, good character and the hardship of imprisonment abroad, may be reflected in sentence without making a sentence within the guideline range manifestly excessive.

The appellant was convicted at the Central Criminal Court, by a 10–2 jury majority, of assault by penetration. He had entered a bedroom while the complainant was asleep and her boyfriend had temporarily left the room. The prosecution case was that he penetrated her anus with a finger or thumb three times.

Recorder Farrer QC imposed 27 months’ imprisonment, with time on remand credited. The appellant appealed against sentence only. He contended that the sentence was manifestly excessive because the offending was momentary, impulsive, involved no physical injury, and attracted substantial personal mitigation.

The central issue was whether the sentence properly reflected the definitive sentencing guideline and was manifestly excessive.

1. Appeal dismissed. The sentence of 27 months’ imprisonment was not manifestly excessive.

2. The court applied the definitive guideline on the Sexual Offences Act 2003. For penetration with a finger and no physical harm, it specified a two-year starting point and a one-to-four-year range. It required account to be taken of whether offending was planned, opportunistic or impulsive. Brief penetration with fingers could produce a significantly lower sentence where no physical harm was caused.

3. The offending was opportunistic and impulsive rather than planned. That mitigating feature did not determine the sentence. The penetration occurred three times, albeit within a short period. The appellant had entered the complainant’s bedroom while she was asleep and her boyfriend was briefly absent. Those circumstances made the conduct degrading and seriously offensive.

4. Whether penetration occurred through clothing was not a major consideration on these facts. The absence of previous convictions and good character were already reflected in guideline sentencing for a first-time offender convicted after trial. The Recorder had also taken account of the appellant’s youth and the particular hardship of serving a sentence in England with little English and away from family in Italy.

5. The court directed that the complainant’s anonymity should continue.

• Court of Appeal (Criminal Division): dismissed the appeal against the 27-month sentence.
• Central Criminal Court: the appellant was convicted of assault by penetration by a 10–2 jury majority and sentenced by Recorder Farrer QC to 27 months’ imprisonment.