Gebru, R. v

For sentencing sexual offences, definitive-guideline starting points and ranges allow flexibility. The listed aggravating features are not exhaustive. A deliberate pursuit of a lone complainant, forced entry into her home and a sustained sexual assault there may substantially aggravate an assault by penetration and justify a sentence above an otherwise selected starting point. The absence of proved lasting harm does not detract from the inherent harm of non-consensual sexual offending.

A sentencing court must not reduce or alter sentence because it has been told that the offender will be automatically deported. The relevant provisions create a liability to deportation; they do not necessarily secure deportation.

The appellant pleaded guilty at Blackfriars Crown Court to assault by penetration, contrary to section 2 of the Sexual Offences Act 2003. He had followed the complainant home at night, forced his way into her flat and sexually assaulted her. The sentencing judge imposed five years’ detention in a young offender institution.

By leave of the single judge, he appealed against sentence. He contended that the judge had selected too high a guideline category, that the lowest category applied, and that five years was manifestly excessive. The appeal also prompted the court to correct the sentencing judge’s understanding of automatic deportation.

1. Appeal dismissed. The five-year sentence was within the permissible range after allowing for the guilty plea.

2. The appellant deliberately followed a lone and vulnerable complainant at night, forced entry into her home and carried out a sustained, violent sexual assault. The attack was terrifying and caused the complainant to fear rape. It was not realistically characterised as merely opportunistic, and the offender’s culpability did not fall within the lowest guideline category.

3. The court held that sexual offending in the complainant’s home was a significant aggravating feature. It endorsed the approach in Attorney General's Reference (Nos 73, 75 and 03 of 2010) [2011] EWCA Crim. 633. The home should be a place of safety, and its invasion materially increases the gravity of violent sexual offending.

4. The definitive guideline permits flexibility and variability. Its aggravating features are not exhaustive. The sentencing judge could therefore select the highest category because of the seriously aggravating features, or select a lower starting point and increase it for those features. Either route could support the sentence imposed.

5. Although not pertinent to the appeal’s disposal, the court stated that provisions described as automatic deportation create liability to deportation only. A sentencing judge must not impose a shorter or different sentence on an assumption that deportation will necessarily follow imprisonment.

• Court of Appeal (Criminal Division): dismissed the appeal against sentence in [2011] EWCA Crim 3321.

• Blackfriars Crown Court: following a guilty plea, imposed five years’ detention in a young offender institution for assault by penetration.