REGINA v AUSTIN GACHERU

For sentencing rape, a sleeping victim is not automatically particularly vulnerable due to personal circumstances. The court must assess all relevant circumstances. The reason for sleep, including tiredness, intoxication or medication, is not by itself determinative because the relevant rationale is that a sleeping victim is defenceless.

Where the circumstances show particular vulnerability, the offence falls within the applicable higher category under the sentencing guideline. Exceptional delay and other mitigation may justify a reduction within the guideline range, but do not ordinarily justify going below that range absent proper justification. The weight given to previous good character should normally diminish as the seriousness of the offence increases.

The appellant was convicted of rape in the Crown Court at Kingston-upon-Thames and sentenced to seven years’ imprisonment. He appealed against sentence, arguing that the judge had started too high within the relevant Sentencing Council guideline range and had insufficiently allowed for exceptional delay, mitigation and prison conditions.

The appellant no longer challenged the categorisation of the offence. The central issue was whether a victim raped while asleep could be particularly vulnerable due to personal circumstances where the sleep was not caused by drink, drugs or medication, and whether the sentence was manifestly excessive.

1. Appeal dismissed. The sentence of seven years’ imprisonment was neither manifestly excessive nor wrong in principle.
2. The court followed the approach in R v AWA [2021] EWCA Crim 1877: a sleeping victim is not automatically particularly vulnerable due to personal circumstances, and the assessment depends on all relevant circumstances. There is no distinction of principle between being asleep through tiredness and being asleep through drink, drugs or medication. The determining consideration is the victim’s defencelessness.
3. The court found no conflict with R v Behdarvani-Aidi [2021] EWCA Crim 582; [2022] 1 Cr.App.R (S) 1, and adopted the rationale described in R v Sepulvida-Gomez [2020] EWCA Crim 2174; [2020] 4 WLR 11. Here, the victim was asleep and undressed after consensual intercourse with her partner, and the appellant took advantage of the partner’s temporary absence. She was particularly defenceless.
4. The offence was therefore properly placed in Category 2B, with a starting point of eight years and a range of seven to nine years. The judge’s reduction of 12 months adequately reflected the exceptional delay, the pandemic’s impact and the other mitigation. There was no justification for reducing the sentence below the category range.
5. Previous good character carried limited weight. The guideline stated that, for more serious offences, it should normally attract less weight and should not normally justify reducing the otherwise appropriate sentence.

• Crown Court at Kingston-upon-Thames: The appellant was convicted of rape on 10 December 2021 and sentenced to seven years’ imprisonment on 17 January 2022.
• Court of Appeal (Criminal Division): [2022] EWCA Crim 1090. The appeal against sentence was dismissed. The court upheld the Category 2B categorisation and the seven-year sentence.