R v BAB

In sentencing for rape, vulnerability may affect both harm and culpability. A victim need not meet the guideline threshold of particular vulnerability for fear, isolation or exploitation of a power imbalance to carry serious aggravating weight. Harm extending beyond the ordinary psychological impact of rape may likewise aggravate sentence without elevating the offence into a higher harm category. Dishonest premeditated trickery used to procure apparent consent and ejaculation are aggravating features. Good character, health, delay and professional consequences must be weighed realistically; loss of career caused by the offending is not mitigation. Sentencing guidelines are not tramlines: the court must stand back and assess the appropriate sentence in the round.

BAB was convicted of rape after a trial in the Crown Court at Nottingham and sentenced by the Recorder on 16 February 2024 to 54 months’ imprisonment. The Attorney General applied for leave to refer the sentence under s.36 of the Criminal Justice Act 1988 as unduly lenient.

The recorder placed the offence in Category 3B under the rape sentencing guideline. He treated ejaculation, some premeditation and persistent unwelcome comments as aggravating, but gave substantial weight to good character, delay, medical conditions and professional consequences. The central issue was whether the sentence fell outside the proper range because the victim’s vulnerability, the power imbalance, the psychological harm and the other aggravating features had been insufficiently assessed.

1. Disposition. The court granted leave, held that the sentence was unduly lenient, quashed the term of 54 months and substituted eight years’ imprisonment.
2. Vulnerability. Vulnerability was relevant to both harm and culpability. The offender had identified that the victim was unlikely to resist or report his unwanted advances. Her fear of challenging him, together with being alone and isolated in the office on a Saturday evening, increased her vulnerability. Even if those matters did not meet the threshold of particular vulnerability for categorisation, they were seriously aggravating features which had to be considered at the later sentencing stage.
3. Power imbalance. Although the case did not involve abuse of trust in the technical categorisation sense, there was a real imbalance between a senior partner and a more junior colleague whose professional position was precarious. That imbalance aggravated the offending for policy reasons analogous to those underlying abuse of trust.
4. Harm and aggravation. The victim’s continuing suicidal ideation, cultural and family shame, and lasting damage to her parenting and her children went beyond the psychological harm inherent in rape. They were weighty aggravating features, even though severe psychological harm sufficient to elevate the offence to Harm Category 2 was not argued. The dishonest and premeditated trickery involved in the sham marriage ceremony, and ejaculation, were further aggravating features.
5. Mitigation. Delay carried little weight. Good character was less significant in a serious offence, and the offender’s medical condition did not meet the guideline threshold for substantial medical mitigation. The loss of his professional career resulted from the offending and was not mitigation. The court explained that R v Ali [2023] EWCA Crim 232, [2023] 2 Cr App R (S) (25) was concerned primarily with short sentences and the ability to suspend them.
6. Overall assessment. The recorder’s conclusion that mitigation outweighed aggravation was outside the range of evaluative judgments available to him by a considerable margin. It was unnecessary to debate whether the offence should be recategorised or whether the aggravating features should elevate the sentence from the Category 3B starting point. The guidelines were not to be treated as rigid tramlines; the appropriate sentence had to be assessed in the round. That sentence was at least eight years.

1. Court of Appeal (Criminal Division): On the Attorney General’s reference under s.36 of the Criminal Justice Act 1988, leave was granted, the sentence was held to be unduly lenient, and an eight-year sentence was substituted.
2. Crown Court at Nottingham: Following conviction for rape, the Recorder sentenced BAB on 16 February 2024 to 54 months’ imprisonment.