R v NEL

For an offence of assault by penetration, category 2 harm is established where the evidence proves violence beyond that inherent in penetration. A significant genital injury caused by repeated digital penetration, together with biting, may satisfy that criterion. A sustained incident is a separate category 2 factor, although its sufficiency alone need not be decided where additional violence is established. Where a sentencing judge gives no reason for rejecting credible evidence accepted by the jury, particularly where it is supported by medical evidence, sentence should proceed on the basis of that evidence. The guideline category must be selected before aggravating and mitigating factors are balanced.

The Solicitor General referred the offender’s sentence to the Court of Appeal under section 36 of the Criminal Justice Act 1988, contending that a two-year sentence was unduly lenient. Following a jury trial at the Crown Court at Woolwich, the offender had received two years for assault by penetration, contrary to section 2 of the Sexual Offences Act 2003, and a concurrent one-year sentence for unlawful wounding, contrary to section 20 of the Offences Against the Person Act 1861. The jury acquitted him of intentional strangulation under section 75A of the Serious Crime Act 2015.

The issue was whether the assault by penetration involved category 2 or category 3 harm under the applicable sentencing guideline.

1. Reference allowed. The court quashed the sentences imposed by the Recorder and substituted five years’ imprisonment for assault by penetration. The concurrent one-year sentence for unlawful wounding was unaffected.
2. The category 2 harm factors for assault by penetration include severe psychological or physical harm, a sustained incident, violence beyond that inherent in the offence, and forced or uninvited entry into the victim’s home. The court found the incident sustained because the sexual offending continued over at least 10 minutes, included repeated digital penetration after a pause, and culminated in serious injury.
3. The decisive factor was violence beyond that inherent in penetration. Biting the victim’s neck was capable of satisfying that criterion. More significantly, the five-centimetre tear to the labia majora, requiring surgical repair, demonstrated a very significant degree of additional violence.
4. The jury had rejected the account that the injuries arose from consensual rough sex. The sentencing judge had not explained any rejection of the victim’s evidence. Where that evidence was supported by medical evidence, the proper course was to sentence on the basis of the account accepted by the jury.
5. Category 2B required a six-year starting point, within a range of four to nine years. The violence was already reflected in that starting point. Mitigation, including the offender’s conduct in obtaining medical assistance, his work record and lack of relevant previous convictions, reduced the starting point to five years. The sentence was nevertheless inescapable given the seriousness of the attack.
6. The court also observed that, after convictions engaging the dangerousness regime, a decision that an offender is not dangerous should usually be informed by a pre-sentence report. That issue was not under review in this reference.

• Crown Court at Woolwich: Following conviction, the Recorder imposed two years’ imprisonment for assault by penetration and a concurrent one-year sentence for unlawful wounding.
• Court of Appeal (Criminal Division): On the Solicitor General’s reference under section 36 of the Criminal Justice Act 1988, the court quashed the sentences and substituted five years for assault by penetration; the concurrent sentence was unaffected.