Kbrom, R v

A violent sexual assault without any elevated culpability factor could properly fall within category 1B of the applicable sentencing guideline. The aggravating factor of specific targeting of a particularly vulnerable victim requires evidence of such targeting. A victim’s being alone at night and having consumed alcohol does not, without more, establish it. A custodial sentence may be suspended where appropriate punishment and protection can be achieved by rigorous community requirements. On the particular facts, a 19-month detention sentence, suspended for two years, was not unduly lenient.

The offender pleaded guilty in the Crown Court at Maidstone to sexual assault contrary to section 3(1) of the Sexual Offences Act 2003. He had assaulted a woman outside a fast-food restaurant after both had attended a nightclub. The assault involved strangulation, attempts to pull her towards him, and sexual touching.

The sentencing judge imposed 19 months’ detention in a young offender institution, suspended for two years, with unpaid work, rehabilitation activity and an electronically monitored curfew. The Solicitor General sought leave under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient. The principal issues were the correct guideline category, whether the victim had been specifically targeted as particularly vulnerable, and whether suspension was justified.

Held

1. Disposition. The court refused leave to refer the sentence. The sentence was not unduly lenient.
2. The sentencing judge had correctly placed the offence in category 1B. The attempted strangulation was violence and properly informed the assessment of harm. However, there were no category A elevated culpability factors. The applicable starting point was therefore two years and six months’ custody, with a range of two to four years.
3. The proposed aggravating factor of specific targeting of a particularly vulnerable victim did not arise. The CCTV and circumstances showed alcohol-fuelled, persistently unwelcome conduct, rather than selection of the victim because of a particular vulnerability. The victim had consumed alcohol and was alone at night, but was not drunk, was in a well-lit public place and was able promptly to seek help. Attorney General’s Reference No 51 of 2015 (R v Whitmore), [2015] EWCA Crim 1699, was materially different: its victim was obviously and seriously intoxicated.
4. The judge was entitled to treat the offender’s youth, immaturity, previous good character, remorse, steps to address his behaviour and exceptionally difficult background as strong mitigation. A two-year term, reduced by 20 per cent for the guilty plea to 19 months, was appropriate.
5. Suspension was also within the judge’s discretion. Appropriate punishment could be achieved without immediate custody, particularly given the stringent unpaid-work, curfew and rehabilitation requirements, monthly reviews, and the offender’s inability to undertake a sex-offender treatment programme in custody because of his limited English.

• Court of Appeal (Criminal Division). On a reference under section 36 of the Criminal Justice Act 1988, the court refused leave to refer the sentence as unduly lenient.
• Crown Court at Maidstone. On 20 April 2018, the judge imposed 19 months’ detention in a young offender institution, suspended for two years, for sexual assault.