R v David Mboma

For sentencing sexual offences, a victim may be particularly vulnerable due to personal circumstances where the victim is a child, has consumed alcohol and is asleep. That combination required category 2A, rather than category 3A, under the assault by penetration guideline. The circumstances and duration of penetration are always material; a sentencing judge must not minimise penetration by merely describing the acts. An appellate court should respect factual findings made by the trial judge, especially where the judge heard the evidence and viewed the relevant material, unless recognised grounds for intervention exist. An Attorney General’s Reference may correct a sentence outside the reasonable sentencing range. The Reference was allowed and the sentence increased to 3½ years’ immediate imprisonment.

After a trial before the Crown Court, R v David Mboma was convicted of two assaults by penetration and six sexual assaults concerning a 15½-year-old complainant. The offences followed consensual intercourse, alcohol consumption and the complainant falling asleep; the offending was recorded on his phone. He was acquitted of two voyeurism counts. The trial judge imposed concurrent two-year sentences of imprisonment suspended for 24 months. The Solicitor General sought leave under section 36 of the Criminal Justice Act 1988, contending that the sentence was unduly lenient. The issues included the guideline categorisation, the relevance of the extent of penetration, an image sent before the meeting, degradation or humiliation, and alleged reliance on irrelevant considerations.

1. Reference and applicable approach. The Court granted leave under section 36 of the Criminal Justice Act 1988. Applying Attorney-General’s Reference No 4 of 1989 (1989) 11 Cr App R(S) 517, it treated the reference jurisdiction as permitting correction of a gross sentencing error where the sentence fell outside the range that could reasonably be considered appropriate after applying all relevant factors.
2. Vulnerability and guideline category. The Court considered R v Bunyan [2017] EWCA Crim 872, R v Sepulvida-Gomez [2019] EWCA Crim 872 [2020] 4 WLR 11, and R v Husband [2021] EWCA Crim 1240. The authorities concerned whether a sleeping or intoxicated victim was particularly vulnerable due to personal circumstances. Although one case involved an unusual consensual scripted-sexual-activity context, the circumstances here were materially different. The complainant was a child aged 15½, had consumed alcohol and was asleep. She was therefore particularly vulnerable, and the assaults by penetration should have been categorised as category 2A rather than category 3A. The sexual assaults also fell within category 2A.
3. Other grounds. The circumstances in which penetration occurred, including its duration, were always relevant. A judge must not downplay penetration merely by referring to descriptions of the acts. The trial judge was entitled to find that the complainant had sent an image before the meeting; the appellate court would intervene only on a proper basis such as inconsistency, contradiction by an incontrovertible fact or irrationality. The Court would not go behind the trial judge’s finding that the filming caused no additional degradation or humiliation, given his conduct of the trial and repeated viewing of the material. The judge’s reference to the absence of evidence about hypothetical consent while the complainant was awake did not show a misdirection or reliance on an irrelevant consideration.
4. Re-sentencing and order. The category 2A starting point was eight years’ custody. Taking the offending together, mitigation including youth, immaturity and good character reduced the sentence to 4½ years. The inordinate and inexcusable delay justified a further reduction of one year. The Court allowed the Reference, quashed the two assault-by-penetration sentences and imposed concurrent sentences of 3½ years’ imprisonment. The sexual-assault sentences remained concurrent but were no longer suspended. The overall sentence was 3½ years’ imprisonment.

1. Court of Appeal (Criminal Division): On the Solicitor General’s reference under section 36 of the Criminal Justice Act 1988, the Court granted leave, allowed the Reference and substituted concurrent sentences of 3½ years’ imprisonment. [2024] EWCA Crim 110
2. Crown Court: Following conviction, the trial judge imposed concurrent two-year sentences of imprisonment suspended for 24 months.