Attorney Generals Reference No. 120 of 2009

Where a complainant is too ill or unfit, including through intoxication, to consent to sexual activity, there is no consent. An offender must leave that person alone. Exploiting such vulnerability is an aggravating, rather than mitigating, feature of a sexual offence.

For a serious sexual assault involving digital penetration of a sleeping and intoxicated complainant in her home, previous good character and an early guilty plea did not amount to exceptional circumstances justifying avoidance of immediate custody. A community order was unduly lenient.

The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient a sentence imposed at Bristol Crown Court.

The offender had pleaded guilty, at the trial date, to assault by digital penetration contrary to section 2 of the Sexual Offences Act 2003. The judge imposed a three-year community order, a sexual offenders programme and a prohibited activity order.

The victim was intoxicated and asleep in her family home when the offender, a trusted family friend, sexually assaulted her. The central issue was whether the non-custodial sentence was unduly lenient and whether the victim’s intoxication could reduce the seriousness of the offence.

1. Leave was granted and the reference succeeded. The community order was quashed and replaced with 18 months’ imprisonment.

2. The sentencing judge had correctly identified that the offender knowingly took advantage of a young woman who was severely affected by drink. However, he then misdirected himself by treating the parties’ intoxication, and the fact that the offender had not supplied the drink to facilitate rape, as capable of mitigating the offence.

3. This was not a case in which intoxication caused the victim to agree to sexual activity that she would otherwise have refused. She did not consent and gave the offender no reason to think that she might consent. She was asleep, defenceless and in her own home. The offender exploited her vulnerability and the trust placed in him as a friend of the family.

4. Where a woman is too ill or unfit to consent to sexual familiarities, she is not consenting. Exploitation of that condition is aggravating, particularly where it occurs in her home. The digital penetration was not a minor aspect of the offending.

5. The offender’s good character, early guilty plea, compliance with the community order, and injuries sustained in an unrelated later assault were taken into account. They did not justify the absence of custody. The sentence was seriously unduly lenient and an immediate custodial term of 18 months was appropriate.

6. The offender was ordered to surrender to Southmead Police Station by 4 pm that day. The notification requirements under section 80 of the Sexual Offences Act 2003 were ordered to apply for ten years.

• Court of Appeal (Criminal Division): In [2010] EWCA Crim 576, granted the Attorney General leave to refer the sentence, held it seriously unduly lenient, and substituted 18 months’ imprisonment.

• Bristol Crown Court: On 1 December 2009, imposed a three-year community order following the offender’s guilty plea to assault by digital penetration.