Ayeva, R v

Sentencing guidelines require a court to begin with a category that matches the sexual activity actually proved. A category requiring genital contact between offender and victim cannot be selected where that contact did not occur.

Guideline ranges remain flexible. A court may move within or between them where the individual aggravating and mitigating features justify it. Serious coercive conduct, ejaculation, persistence, substantial harm to the victim, a relevant prior incident and continued denial may justify a sentence above the usual range for the initially applicable category. A late guilty plea may attract limited credit where the offender continues to deny the admitted conduct.

The appellant pleaded guilty at Peterborough Crown Court to causing a person to engage in sexual activity without consent, contrary to section 4 of the Sexual Offences Act 2003. He had forced a young woman to masturbate him after persistently following and restraining her.

The Crown Court imposed three years and six months’ imprisonment and an indefinite notification requirement under Part 2 of the Act. The appellant appealed, with the single judge’s leave, contending that the judge had used an inapplicable sentencing-guideline category. The central issue was the proper sentence once the applicable guideline category and the aggravating features were correctly assessed.

1. Appeal allowed to the extent stated. The court substituted a sentence of two years and three months’ imprisonment for the sentence of three years and six months.

2. The sentencing judge had adopted the guideline range of two to five years’ custody. On its face, that category was inapplicable because it required contact between the offender’s naked genitalia and the victim’s naked genitalia, which had not occurred. The judge gave no explanation for treating the case as falling within it. He had therefore proceeded on a wrong basis.

3. The correct starting category was the less serious category concerning contact between the offender’s naked genitalia and another part of the victim’s body. That did not, however, restrict the court to its usual range. Paragraph 1.3 of the sexual-offences guidelines required flexibility and permitted movement within and between ranges according to the particular aggravating and mitigating features.

4. The aggravation was substantial. The appellant persisted despite clear rejection, restrained the victim, subjected her to more than one unwanted sexual contact, and ejaculated. The offence had serious immediate and continuing effects on the victim. His relevant earlier caution, lack of frankness, and continued denial in the pre-sentence report also bore on culpability, risk and the limited credit available for his late plea.

5. A sentence after trial in the region of 30 months’ imprisonment would have been appropriate. Allowing limited credit for the plea, the proper sentence was two years and three months. As a consequence, the indefinite notification requirement under Part 2 of the Sexual Offences Act 2003 could not stand and was varied to a period of 10 years.

• Court of Appeal (Criminal Division): In [2009] EWCA Crim 2640, allowed the sentence appeal to the extent of substituting a shorter custodial term and varying the Part 2 notification period.
• Peterborough Crown Court: Following a guilty plea, imposed three years and six months’ imprisonment and an indefinite notification requirement.