R v Chris Warren

When selecting a sentence from a guideline starting point, the court must weigh all relevant aggravating and mitigating features before applying the reduction for a guilty plea. A sentencing judge should not treat as significantly aggravating a location which the complainant voluntarily attended for consensual sexual activity, absent additional circumstances.

Severe and sustained psychological harm may justify categorisation as severe even where the victim’s account is emotive and some uncertainty remains about the precise causes of that harm. Intoxication may aggravate offending where it caused the offender to disregard clear and repeated withdrawal of consent.

The appellant pleaded guilty to two offences of assault by penetration contrary to section 2 of the Sexual Offences Act 2003. The offences occurred during an encounter which otherwise involved consensual sexual activity. The complainant sustained physical injuries and described serious, enduring psychological consequences.

On 26 June 2023, the Crown Court at Sheffield imposed concurrent sentences of four years’ imprisonment and an open-ended restraining order preventing contact with the complainant. With leave of the single judge, the appellant appealed against sentence. The principal issues were the correct harm category, the judge’s treatment and sequencing of aggravating and mitigating factors, and the duration of the restraining order.

1. Appeal allowed in part. The court held that the complainant’s enduring psychological harm was properly assessed as severe. The sentencing judge was therefore entitled to use the category 2B reference starting point of six years’ imprisonment under the sexual offences guideline.

2. The judge did not depart from the factual basis on which the appellant had pleaded guilty. A Newton hearing was unnecessary, and there was no indication that the judge subsequently sentenced on a different factual basis.

3. In moving from the guideline starting point, however, the judge was required to weigh all aggravating and mitigating features together. The appellant’s self-induced intoxication was aggravating because it prevented him from appreciating the complainant’s clear and repeated lack of consent. The fact that the offending occurred at his flat was not an additional significant aggravating feature: she had voluntarily gone there intending consensual sexual activity.

4. The judge erred by applying the guilty-plea reduction before taking account of the appellant’s mental health difficulties and delay. The proper method was to determine the gross sentence after the full balancing exercise and then apply the guilty-plea discount. On a fair assessment, a starting point reduced to four years and six months was appropriate. Applying a 25 per cent reduction and modest rounding produced concurrent sentences of three years and four months’ imprisonment.

5. An indefinite restraining order was disproportionate. The offending was a single incident and there was no evidence of deliberately intrusive contact thereafter. The order was varied to expire on 28 June 2028.

• Court of Appeal (Criminal Division) Allowed the appeal in part and varied both the custodial sentence and the restraining order: [2023] EWCA Crim 1645.
• Crown Court at Sheffield On 26 June 2023, imposed four years’ imprisonment on each of two counts, concurrently, and made an open-ended restraining order.