R v Farrell Huband

On an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the Court of Appeal held that attempted sexual activity with a victim who was unconscious through drink fell within Category 2 of the relevant sentencing guideline. The victim’s relationship with the offender, familiarity with the premises and possible expectation of sexual activity did not remove her particular vulnerability. Strong mitigation arising from learning disabilities had to be connected to culpability, but did not justify ignoring the guideline’s starting point and range. A sentence may be suspended only where the custodial term is otherwise justified. The two-year sentence was unduly lenient and was replaced with four years’ custody.

The Attorney General referred an attempted rape sentence under section 36 of the Criminal Justice Act 1988. The offender had pleaded guilty after attempting to rape his unconscious former girlfriend, who had become unconscious through alcohol. The Crown Court at Lewes imposed two years’ imprisonment, suspended for two years, with rehabilitation and programme requirements, together with protective orders and notification requirements.

The Attorney General argued that the offending was Category 2B, involving a particularly vulnerable victim, and that the sentence failed to reflect the seriousness of the offending. The offender relied on his intellectual and learning difficulties. The central issues were the correct guideline categorisation, the weight of mitigation, and whether the sentence was unduly lenient.

1. Reference allowed. The sentence of two years’ custody was quashed and four years’ custody substituted. The victim surcharge order was quashed for variation to the appropriate level, and the notification requirements became indefinite.
2. References under section 36 of the Criminal Justice Act 1988 address gross error, widespread public concern and public confidence. The threshold is high. A sentence must be not merely lenient but unduly lenient before appellate intervention is justified: Attorney General’s Reference No 132 of 2001 (R v Johnson) [2002] EWCA Crim 1418; R v Mohammed Arfan [2022] EWCA Crim 1416.
3. The offending was Category 2 for the purposes of the guideline. Whether a victim is particularly vulnerable because of personal circumstances is fact-specific. Sleep does not automatically establish particular vulnerability, but the assessment must consider all relevant circumstances: R v AWA [2021] EWCA Crim 1877 at [33]. The reasoning in R v BN [2021] EWCA Crim 1250 was applied. The victim was unconscious through drink and could hardly have been more vulnerable. Her relationship with the offender, familiarity with the house and possible expectation of sexual activity did not reduce that vulnerability.
4. Category 3 harm was therefore precluded. The applicable starting point for Category 2B offending was eight years, with a range of seven to nine years. The attempt was almost complete, so only a limited reduction was available. The domestic context, violation of relationship-based trust and security, duration of the incident and alcohol use aggravated the offence, subject to avoiding double-counting. No separate abuse of trust was established, following R v Forbes [2016] EWCA Crim 1388.
5. The offender’s learning disabilities and mild intellectual difficulties provided strong mitigation because they were likely to cause difficulty in situations requiring judgment or decision-making. They did not extinguish culpability, particularly given the voluntary intoxication. Previous good character did not normally justify a reduction for this type of offending.
6. After standing back, a term of at least six years before guilty-plea credit was required. A one-third reduction produced four years. The judge was not entitled to depart completely from the guideline merely because the case had unusual features. Nor could suspension of the sentence justify selecting a custodial term below that required by the seriousness of the offence. The two-year term was far outside the reasonably open range and was unduly lenient.

• Court of Appeal (Criminal Division): On the Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the reference was allowed. The Crown Court sentence was quashed and a four-year custodial term substituted.
• Crown Court at Lewes: His Honour Judge Gold KC sentenced the offender on 12 January 2023 to two years’ imprisonment suspended for two years, with rehabilitation and programme requirements.