R v Callum Ross Kelly Johnstone

Extreme intoxication may make a victim particularly vulnerable for sentencing purposes and place rape in harm Category 2 where she cannot influence events or protect herself. With culpability factor B, the offence falls within Category 2B. Vulnerability may also aggravate sentence where the offender targeted the victim knowing that she was particularly vulnerable; the limited overlap between those considerations does not prevent both being taken into account. Where concurrent offences form one course of conduct, totality prevents simple aggregation of the sentences appropriate for each offence alone. It nevertheless requires a proper adjustment for additional criminality, assessed by asking how far the additional offence worsens the overall seriousness.

R v Callum Ross Kelly Johnstone concerned an Attorney General’s reference concerning a sentence imposed by the Crown Court at Carlisle. The offender had been convicted of rape and assault by penetration against a 16-year-old victim who was extremely intoxicated.

The sentencing judge categorised both offences as Category 3B and imposed concurrent sentences, with an aggregate sentence of six years and six months’ imprisonment. The Attorney General submitted that both offences fell within Category 2B, that aggravating features required an upward adjustment, and that the sentence failed to reflect the additional criminality of the assault by penetration. The central issues were the correct guideline categorisation and the adjustment required by totality.

The court granted leave for the Attorney General’s reference under section 36 of the Criminal Justice Act 1988. The statutory reporting restriction under the Sexual Offences (Amendment) Act 1992 was not waived or lifted.

1. Guideline categorisation. The sentencing judge had found that the victim was particularly vulnerable because of her extreme intoxication and was unable to influence events or protect herself. That finding alone placed the rape in harm Category 2, as supported by R v BN [2022] 1 Cr.App.R (S) 37 at [25]. Psychological harm provided a further indication of Category 2. Culpability factor B was undisputed, so the rape fell within Category 2B, with an eight-year starting point. The assault by penetration was also Category 2B, with a six-year starting point.
2. Aggravation and mitigation. Significant aggravating features included targeting a particularly vulnerable victim, the public location, the early-morning timing, the offender’s use of alcohol and drugs, and the victim’s age. The victim’s vulnerability was relevant both to harm categorisation and to the aggravating feature of targeting her because of that vulnerability. The overlap was limited because the aggravating feature concerned the offender’s knowledge and conduct. The available mitigation could not outweigh the aggravation. The rape sentence, considered alone, therefore required an upward adjustment of at least one year.
3. Totality. Concurrent sentences were appropriate because the offences formed part of one course of conduct. Totality nevertheless prohibited simply aggregating the two standalone sentences. The court assessed both how far the assault by penetration worsened the overall seriousness and the overall effect of the additional offence. Because the rape was the more serious offence, the least sentence capable of reflecting the total criminality was ten years and six months.
4. Order. The sentence on count 1 was quashed and replaced with one of ten years and six months’ imprisonment. No adjustment to the sentence on count 2 was necessary.

• Court of Appeal (Criminal Division): On the Attorney General’s reference under section 36 of the Criminal Justice Act 1988, leave was granted. The sentence on count 1 was quashed and replaced with a sentence of ten years and six months’ imprisonment.
• Crown Court at Carlisle: His Honour Judge Barker imposed concurrent sentences producing an aggregate sentence of six years and six months’ imprisonment following convictions for rape and assault by penetration.