REGINA v AWA

A sleeping complainant is not automatically particularly vulnerable for sentencing purposes. The assessment depends on the circumstances, including the complainant’s level of intoxication, familiarity with the location and people present, and response to the offending. In this case the rape was properly placed in category 3B, with harm in category B. Recording the offence, ejaculation, alcohol and drugs did not aggravate culpability in the particular circumstances. The court also upheld a sentence that allowed slightly more than 10 per cent credit for a guilty plea because the plea avoided exceptionally difficult cross-examination. The sentence was not unduly lenient, and leave to refer it was refused.

Following guilty pleas, the Crown Court at Preston sentenced AWA to an aggregate term of three years and 10 months’ imprisonment for rape, possession of an imitation firearm, common assault, sexual assault and related offences. The rape sentence was three years and four months, based on a four-year sentence before credit for the guilty plea.

The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient. The central issues were whether the rape fell within category 2A rather than category 3B of the relevant guideline, whether the surrounding circumstances aggravated culpability or harm, and whether the guilty-plea reduction was impermissibly generous.

1. Application refused. The court refused leave to refer the sentence under section 36 of the Criminal Justice Act 1988. Neither the sentence for rape nor the overall sentence was unduly lenient.
2. A sleeping victim is not automatically particularly vulnerable within the meaning of the sentencing guideline. The question is fact-sensitive. Here, the complainant’s level of continuing intoxication was uncertain; the offence occurred hours after the drugs had been taken, in a familiar flat, among people known to her with whom she had had a prolonged sexual relationship. She woke during the intercourse and told the respondent to stop. The particular-vulnerability factor therefore did not apply and harm was in category B.
3. The court agreed with the sentencing judge’s culpability assessment. The recording did not aggravate the offence because the parties regularly recorded sexual activity and it was neither additionally intrusive nor upsetting. There was no abuse of trust. The alcohol and drugs had been taken to enhance earlier sexual activity, not to facilitate the rape. In the context of the relationship, neither ejaculation nor the respondent’s drinking and drug use the previous night aggravated the offence.
4. The judge was entitled to treat the offence as category 3B, with a guideline range of four to seven years and a five-year starting point. A four-year sentence before credit was not lenient. Although the guilty-plea reduction of slightly over 15 per cent was generous and the plea could have been entered earlier, it did not make the sentence unduly lenient because it avoided particularly difficult cross-examination for the complainant.
5. The sentencing exercise for the December incident was meticulous and disclosed no proper basis for interference. The court noted that the extended driving-disqualification period should have been 23 months rather than 16½ months, with remand dealt with through the discretionary period under R v Needham, but made no adjustment because the overall outcome would have been unchanged.

• Court of Appeal (Criminal Division): Leave to refer the sentence under section 36 of the Criminal Justice Act 1988 was refused. The sentence was not unduly lenient.
• Crown Court at Preston: AWA pleaded guilty and received an aggregate sentence of three years and 10 months’ imprisonment, including three years and four months for rape.