Marius Gustavson & Ors v R

Consent does not turn serious violence into lawful conduct. Where conduct causing grievous bodily harm remains unlawful, the relevant Sentencing Council guideline applies, subject to the statutory power in the Sentencing Act 2020 to depart where justice requires.

The judge should assess harm and culpability under the guideline, select the applicable category range, and then make a case-specific adjustment for consent before allowing for mitigation and guilty plea. Consent is more likely to reduce culpability than physical harm. Its weight depends on how genuine and informed it was and is likely to be limited in particularly serious cases. Physical consequences and risks remain relevant. Positive psychological consequences cannot move the harm category under the current guideline. No fixed scale of consent reductions is required.

Ten defendants were sentenced in the Central Criminal Court for conspiracy to cause grievous bodily harm and substantive offences of causing grievous bodily harm with intent. The offending involved consensual extreme body modifications, including castration, removal of the penis and amputation of a leg. Six defendants appealed their sentences.

The appeals challenged the applicability of the grievous bodily harm sentencing guideline, the categorisation of harm and culpability, the reductions for consent and guilty pleas, sentencing disparity, and, in Gustavson’s case, the life sentence and minimum term. The central issue was how consensual but unlawful grievous bodily harm should be sentenced.

1. Disposition. All six appeals against sentence were dismissed. The sentences were not manifestly excessive or wrong in principle.
2. Applicability of the guideline. The Court relied on the fundamental proposition in R v Brown and others [1994] 1 AC 212 that consent does not provide a defence to violence causing significant injury. Consensual body modification causing grievous bodily harm therefore remains unlawful and falls within the relevant sentencing guideline. Section 59(1) of the Sentencing Act 2020 requires a court to follow a relevant guideline unless doing so would be contrary to the interests of justice.
3. Sentencing approach. The guideline is flexible. The judge should assess harm and culpability, select the appropriate category range and starting point, and then make a case-specific adjustment for consent before considering mitigation and credit for plea. There was no basis for creating a fourth culpability column or a fixed scale of reductions for consent. The weight of consent depends on the individual circumstances and is likely to be limited where the injuries are particularly serious.
4. Harm and culpability. The Court distinguished Noor [2024] EWCA Crim 714, because it concerned a different offence, an analogous guideline and limited medical evidence. Psychological wellbeing may have limited relevance, but the physical injury and risks of serious complications remain central and wellbeing cannot move the harm category. Following McCarthy [2019] EWCA Crim 2202, the use of a knife in these circumstances was not itself a higher-culpability factor. However, significant advance planning, monetisation and prolonged assaults justified high culpability.
5. Individual cases. Gustavson’s life sentence was justified under section 285(3) of the Sentencing Act 2020. His dangerousness and grave continuing risk to vulnerable people made the case a paradigm example of the public-protection rationale discussed in Burinskas [2014] EWCA Crim 334. His mental disorder did not significantly reduce culpability. The reductions for consent and pleas in the other cases were matters for individual assessment. The principle in Saliuka [2014] EWCA Crim 1907 meant that any leniency in one sentence could not justify repeating the error. Delaying pleas to test a consent argument which was bound to fail did not warrant full credit.

• Court of Appeal (Criminal Division) — Six sentence appeals were dismissed. The Court held that the relevant sentencing guideline applied to consensual but unlawful grievous bodily harm: [2025] EWCA Crim 493.
• Central Criminal Court — The Recorder of London sentenced the defendants on 15 January and 9 May 2024 after guilty pleas. The sentences included a life sentence with a 22-year minimum term for Gustavson.