REGINA v JOEY SAUNDERS

For sexual offences sentencing, the guideline factor of particular vulnerability due to personal circumstances is a harm factor, not a culpability factor. It is not confined to enduring characteristics or circumstances limiting the victim’s ability to avoid, protest against or report the offence. Religious, social and mental-health circumstances may expose a victim to substantially greater harm. The sentencer must assess the circumstances carefully, give proper weight to the threshold of particular vulnerability and avoid double counting. A victim’s religious commitment to preserving virginity, together with an inability to obtain support because of that background, may justify the more serious sentencing category.

The appellant appealed by leave of a single judge against a seven-year sentence for rape. The victim and appellant were university students. The victim had consented to some sexual activity but not to vaginal intercourse, and her religious beliefs made preserving her virginity important. The sentencing judge placed the offence in category 2B under the Sentencing Council’s definitive guideline for rape offences, finding that the victim was particularly vulnerable due to personal circumstances. The appellant argued that category 3B was appropriate because the victim had been capable of making choices, had socialised and consumed alcohol, and had consented to some sexual activity. The central issue was whether her religious and social circumstances could amount to particular vulnerability as a harm factor.

1. Appeal dismissed. The sentencing judge had been entitled to place the offence in category 2B and impose seven years’ imprisonment.
2. The factor of particular vulnerability due to personal circumstances appears in the sexual offences guidelines as a harm factor, rather than a culpability factor. Specific targeting of a vulnerable victim is instead relevant to culpability at step 2. The harm factor permits consideration of circumstances which increase the harm caused, intended or foreseeably likely to be caused. Although relevant circumstances often limit the ability to avoid, protest against or report offending, they may also make a victim vulnerable to greater harm than other victims of a similar offence.
3. The relevant circumstances need not be enduring characteristics. R v Rak [2016] EWCA Crim 882, R v Bunyan [2017] EWCA Crim 872 and R v Behdarvani-Aidi [2021] EWCA Crim 582 illustrate that contextual circumstances may suffice. Mental-health, religious and societal circumstances may be relevant where they exacerbate harm, strike at faith or expose the victim to condemnation or loss of support.
4. The sentencer must assess the circumstances carefully and give proper weight to the words “particularly vulnerable”, while avoiding double counting. Vulnerability falling short of that threshold may nevertheless be treated as an aggravating factor at step 2.
5. On the facts, the victim’s desire to preserve her virginity and the religious importance of doing so, together with her religious and social background, made the loss of her virginity a particularly heavy blow and left her unable to seek support from her parents and friends. The judge was therefore entitled to find particular vulnerability. The sentence was heavy but neither wrong in principle nor manifestly excessive.

• Court of Appeal (Criminal Division): [2022] EWCA Crim 264. Appeal by leave of a single judge dismissed.
• Sentencing court: Court not stated in the judgment. Following conviction for rape, the appellant was sentenced to seven years’ imprisonment after the offence was placed in category 2B.