Bishop, R v

A sexual offence committed within a domestic relationship is not less serious because of that relationship. Personal autonomy applies equally within and outside intimate relationships.

A sentencing judge must explain the applicable guideline category and give reasons, as required by Criminal Justice Act 2003. In assessing an assault by penetration, historic violence against the complainant may justify a lower-culpability category where it substantially predates the index offence and the relationship continued for many years. Where the applicable guideline requires consideration of suspension, the court must undertake that assessment.

The Solicitor General referred as unduly lenient a four-month immediate sentence imposed at Snaresbrook Crown Court for assault by penetration, contrary to section 2 of the Sexual Offences Act 2003.

The offender had pleaded guilty during his trial. The complainant was his long-term domestic partner. The sentencing judge considered that the prosecution should not have been brought, referred to the domestic context, and imposed a term that resulted in the offender’s immediate release. The reference concerned the correct guideline category, the relevance of earlier violence against the complainant, and whether the sentence was unduly lenient.

1. The court granted leave and held that the four-month immediate custodial sentence was unduly lenient. It substituted 21 months’ imprisonment suspended for 24 months.

2. The sentencing judge’s remarks risked suggesting that the prosecution was inappropriate because the offence arose within a long domestic relationship. That was erroneous in principle. An individual’s right to personal autonomy applies within a relationship, and domestic-context offending is no less serious than comparable non-domestic offending.

3. The judge had not explained how the definitive sentencing guideline was applied, or given reasons for the sentence, as required by section 174 of the Criminal Justice Act 2003.

4. The offence fell within category 3B. Although there had been previous violence against the complainant, it substantially pre-dated the index offence and the relationship continued for many years. The category 3B starting point was two years’ custody. Alcohol was an aggravating factor. The guilty plea, entered after trial had begun, warranted ten per cent credit.

5. The applicable guideline required consideration of suspension for a category 3B offence. On the full circumstances, suspension was both available and appropriate.

• Court of Appeal (Criminal Division): leave was granted under section 36 of the Criminal Justice Act 1988. The court held the Snaresbrook Crown Court sentence unduly lenient and substituted a suspended sentence of 21 months’ imprisonment.
• Crown Court at Snaresbrook: on 15 May 2018, Her Honour Judge Kamill imposed four months’ immediate imprisonment for assault by penetration.