R v Sobijorn Boltaev

Whether a victim was particularly vulnerable for an offence-specific sentencing guideline is a fact-sensitive assessment made by reference to all the circumstances. A victim’s ability to escape after an assault does not, by itself, negate earlier particular vulnerability.

An appellate court will usually respect a sentencing judge’s factual and evaluative findings. It may intervene where uncontroverted facts were not properly reflected. Within a guideline category, the degree of particular vulnerability may justify adjustment of the starting point, while avoiding double counting. An extended sentence requires a significant risk of serious harm from further specified offences; a risk that is not significant is insufficient.

Following an eight-day jury trial at Snaresbrook Crown Court, the respondent was convicted of sexual assault and assault by penetration. The offences were committed against a woman who had consumed substantial alcohol, left a bar without her possessions, and was alone on a remote road at night.

The Recorder treated her as vulnerable but not particularly vulnerable. He therefore sentenced the respondent to three years’ imprisonment for assault by penetration and a concurrent three months for sexual assault.

The Solicitor General referred the sentences under section 36 of the Criminal Justice Act 1988 as unduly lenient. The central issues were whether the victim was particularly vulnerable under the applicable guidelines and whether the respondent was dangerous for the purposes of an extended sentence under the Sentencing Act 2020.

Decision

1. The court granted leave and allowed the Solicitor General’s reference. It held that the Recorder had been wrong to find that the victim was vulnerable, but not particularly vulnerable. The original sentences were therefore unduly lenient.

2. The offence-specific guidelines were to be given their ordinary meaning. Whether a victim is particularly vulnerable depends on the whole factual situation. The court accepted the guidance that a woman who is alone at night and intoxicated may be particularly vulnerable, including that in R v Sepulvida-Gomez [2019] EWCA Crim 2174 and R v Sabato [2021] EWCA Crim 940. The latter authority did not establish that intoxication and solitude always meet the threshold.

3. The Recorder had placed undue weight on the victim’s ability to walk, escape, and obtain help after the assault. A fair evaluation also required account of uncontroverted facts: she was uncharacteristically drunk, had fallen over, had left without her phone and possessions, had no memory of events, and had wandered alone in the rain to a deserted location. Those facts met the high threshold of particular vulnerability.

4. The court recognised degrees within particular vulnerability. Although category 2B had a six-year starting point, five years fairly reflected the features identified by the Recorder. Location, timing, and targeting could not be counted again where they had already informed the vulnerability assessment. The appropriate sentence for assault by penetration was five years and six months’ imprisonment, with a concurrent nine months for sexual assault.

5. Under sections 279 and 280 of the Sentencing Act 2020, the four-year custodial threshold for an extended sentence was met. Nevertheless, the evidence established no more than a risk of further offending, not a significant risk of serious harm from further specified offences. The court made no finding of dangerousness and imposed no extended sentence.

• Court of Appeal (Criminal Division): On the Solicitor General’s reference under section 36 of the Criminal Justice Act 1988, the court granted leave and allowed the reference. It substituted five years and six months’ imprisonment for assault by penetration and a concurrent nine months for sexual assault: [2025] EWCA Crim 207.

• Crown Court at Snaresbrook: Following a jury trial, the respondent was convicted on 21 June 2024. On 29 November 2024, the Recorder imposed three years’ imprisonment for assault by penetration and a concurrent three months for sexual assault.