Prestbury, R v

A sentencing court should follow the applicable sentencing guideline unless a proper basis exists for departure in the interests of justice. The brief and shallow nature of penetration, and the offender’s failure to maintain an erection, did not take a rape outside the relevant guideline or justify a substantial reduction from its category 3B starting point. Where rape follows a separate digital penetration during the same incident, the overall sentence must reflect the totality of both acts of sexual violence.

The Attorney General referred the offender’s sentences as unduly lenient under section 36 of the Criminal Justice Act 1988. Following a jury trial at Croydon Crown Court, the offender was convicted of rape and assault by penetration, and was sentenced to two years and nine months’ imprisonment for rape with a concurrent sentence of 18 months for assault by penetration.

The sentencing judge treated both offences as category 3B under the Sentencing Council’s Definitive Guidelines for Sexual Offences. Although the rape guideline starting point was five years, the judge considered that term excessive because the penetration was shallow and brief. The central issue was whether the total sentence was unduly lenient and whether there was a proper basis to depart from the guideline.

1. The court granted leave and held that the sentences were unduly lenient. It quashed the sentence of two years and nine months’ imprisonment for rape and substituted five years’ imprisonment. The concurrent 18-month sentence for assault by penetration was unaffected.

2. There was no proper basis for departing from the Sentencing Council’s guideline. The rape was correctly categorised as category 3B, for which the stated starting point was five years’ imprisonment and the range was four to seven years.

3. The offences occurred over a short period and the rape involved shallow and brief penetration. Those features did not justify treating the rape as falling wholly outside the guideline. The degree to which the offender maintained an erection, and the degree of penetration, had been given excessive weight.

4. The sentencing exercise had to reflect the two connected acts of sexual violence. The earlier digital penetration, together with the rape, meant that an overall term of five years’ imprisonment on the rape count was appropriate and properly reflected totality. There was no guilty-plea credit.

• Court of Appeal (Criminal Division): The Attorney General’s reference under section 36 of the Criminal Justice Act 1988 was allowed. The rape sentence was quashed and replaced with five years’ imprisonment.

• Crown Court at Croydon: On 5 September 2017, following convictions after trial, the Recorder imposed two years and nine months’ imprisonment for rape and a concurrent 18 months for assault by penetration.