R v P.D.

On a reference under section 36 of the Criminal Justice Act 1988, sentence categorisation must reflect the actual harm and culpability of non-consensual sexual offending, rather than assumptions drawn from marriage or earlier consensual sexual activity. Detailed, consistent evidence may establish severe psychological harm without medical evidence. Additional degradation, violence beyond the force inherent in the offence, particular vulnerability and a sustained assault may aggravate harm. A victim’s vulnerability is assessed substantively and is not reduced by the offender’s own health problems. Abuse of marital and caring trust, and previous violence, may place culpability in the highest relevant category. Concurrent sentences must reflect totality. The reference was allowed and the sentences increased.

The offender, aged 73, was convicted after trial at Cardiff Crown Court of sexual assault, common assault and assault by penetration against his wife. On 21 April 2022, the judge imposed three concurrent years’ imprisonment, together with notification requirements and a restraining order.

The Attorney General sought leave to refer the sentences under section 36 of the Criminal Justice Act 1988 on the ground that they were unduly lenient. The issues were whether the assault by penetration should have been placed in Category 2A rather than Category 3B, whether the sexual assault should have been Category 2A rather than Category 2B, and whether the concurrent sentence adequately reflected the totality of the offending.

The court granted leave and allowed the reference. The sentence was unduly lenient because the judge materially underestimated both the harm and culpability involved.

1. References under section 36 of the Criminal Justice Act 1988 address gross error, widespread public concern about apparently unduly lenient sentences, and substantial departures from ordinary sentencing norms: Attorney General’s Reference No 132 of 2001 (R v Johnson) [2003] 1 Cr.App.R (S) 41 at [25].
2. Count 6, assault by penetration contrary to section 2 of the Sexual Offences Act 2003, was properly Category 2A and towards the upper end. The court identified five Category 2 harm factors: severe psychological harm, additional degradation and humiliation, violence, particular vulnerability and a sustained assault. Medical evidence was not required where detailed and consistent evidence established severe psychological harm. Prior consensual sexual activity did not lessen the degrading character of a non-consensual act. Violence beyond that inherent in the offence, including restraining, biting and preventing escape, was relevant. The wife’s age, health and reliance on the offender made her substantively vulnerable; his own vulnerabilities did not alter that assessment. The phased attack remained a sustained assault.
3. The marital relationship and the offender’s caring role constituted an abuse of trust. The sexual assault on the previous day was previous violence for culpability purposes. Count 6 therefore involved Category A culpability. Its starting point was eight years, and an appropriate sentence, after taking account of aggravation, mitigation and totality, was nine years’ custody.
4. Count 3 was correctly placed in Category 2 harm but should have been Category A culpability because of the abuse of trust. Two years’ custody was appropriate. The offender’s age and significant health problems provided substantial mitigation, but did not justify the original sentence.
5. The sentences on counts 3 and 6 were quashed and replaced by two years and nine years respectively. All sentences remained concurrent. The offender would serve two thirds of the overall custodial term before consideration for release by the Parole Board. Notification requirements and other ancillary orders remained undisturbed.

• Court of Appeal (Criminal Division) — In [2022] EWCA Crim 992, leave was granted under section 36 of the Criminal Justice Act 1988. The reference was allowed and the sentences on counts 3 and 6 were increased, while remaining concurrent.
• Cardiff Crown Court — Following convictions after trial, the offender was sentenced on 21 April 2022 to three years’ imprisonment for three offences, with notification requirements and a restraining order.