R v Santosh Rai

In sentencing serious sexual offences, a victim’s particular vulnerability is assessed at the time of the offending and is distinct from whether the offender specifically targeted that vulnerability. Where both particular vulnerability and severe psychological harm are present, the sentence must reflect both features. A downward adjustment from the guideline starting point may therefore be unjustified, even where the harm is not at its highest level. Additional criminality from a separate sexual assault, including ejaculation, must also be reflected. An offender must take the victim as found; the court should not speculate that harm caused by one offender is reduced by harm caused by another. Previous good character normally carries little weight in a serious assault by penetration case.

The Attorney General referred the sentence under section 36 of the Criminal Justice Act 1988. The offender had been convicted at the Crown Court at Isleworth of assault by penetration and sexual assault, after a defence of consent was rejected.

The sentencing judge imposed three years and nine months’ imprisonment for assault by penetration, with a concurrent sentence of two years and six months for sexual assault. The Attorney General contended that the total sentence was unduly lenient, particularly in light of the victim’s vulnerability, severe psychological harm and the additional criminality involved. The central issue was whether the sentence properly reflected the guideline features, aggravating circumstances and mitigation.

1. The court granted leave for the Attorney General’s reference and held that the sentence was unduly lenient. The sentences below were quashed and replaced by six years’ imprisonment for assault by penetration and three years’ imprisonment for sexual assault, concurrent with each other.
2. Under both relevant sentencing guidelines, particular vulnerability due to personal circumstances is a step 1 harm feature. It is distinct from the step 2 aggravating factor of specific targeting of a particularly vulnerable victim. Evidence about variations in the victim’s appearance during the evening was relevant to specific targeting, but not to whether she was particularly vulnerable when taken into the alleyway. At that time, she was alone, intoxicated, with a stranger, and unable to recall what had happened.
3. The assault by penetration involved two Category 2 harm features: particular vulnerability and severe psychological harm. Although the psychological harm was below the highest end of the relevant range, there was no proper basis for reducing the six-year starting point. Any modest reduction would at least have been offset by the need to reflect both harm features.
4. The sentence also had to reflect the additional criminality of the sexual assault. The offender’s ejaculation was an aggravating feature. The brief duration of the digital penetration was no more than the absence of an aggravating feature and could justify only a modest reduction.
5. The offender’s mental health, business consequences and previous good character were relevant mitigation. However, the applicable guideline stated that previous good character should not normally receive significant weight or justify a reduction in a serious assault by penetration case.
6. The court reaffirmed that an offender must take the victim as found. It was impermissible to speculate that the harm caused by this offender should be reduced because the victim had also been sexually offended against by another person.

• Crown Court at Isleworth: the offender was convicted of assault by penetration and sexual assault and sentenced to a total of three years and nine months’ imprisonment, with concurrent sentences.
• Court of Appeal (Criminal Division): on a reference under section 36 of the Criminal Justice Act 1988, leave was granted. The sentences were quashed and substituted with a total sentence of six years’ imprisonment.