R v BPK

For an offence-specific sentencing guideline, the court must first identify the category that most resembles the case and use the single starting point specified for that category. It must then adjust that point for culpability and harm before considering aggravating and mitigating factors. An adjusted figure should not be called a starting point. A sleeping victim will generally be particularly vulnerable when sexual activity begins, but vulnerability depends on the circumstances and is not automatic. Short-lived vulnerability may justify a significant downward adjustment without changing the category. Credit for a late guilty plea cannot be increased by speculation about another count. Distinct later offending must be reflected in the overall sentence, by consecutive sentences or a significant increase in the principal sentence.

The offender pleaded guilty to assault by penetration and to disclosing private sexual photographs. The Crown Court at Manchester imposed concurrent suspended sentences of two years and twelve months respectively. The Solicitor General referred the sentence under section 36 of the Criminal Justice Act 1988, arguing that it was unduly lenient.

The reference concerned the correct harm category for the assault, the effect of the victim’s sleeping and subsequent waking, the assessment of aggravating and mitigating factors, guilty plea credit, and the treatment of the separate disclosure offence under the totality principle.

1. Disposition. The court granted leave to refer the case, held that the sentences were unduly lenient, quashed them and substituted terms of imprisonment of two years and nine months on the assault count and eight months on the disclosure count. The terms were concurrent, producing a total sentence of two years and nine months. The restraining order remained unchanged, and the offender became subject indefinitely to notification requirements.
2. Guideline methodology. Applying the approach summarised in R v Naqvi [2024] EWCA Crim 958 at [34], the court explained that the guideline duty under sections 59 and 60(4)(a) of the Sentencing Code requires selection of the category most resembling the case. The specified starting point for that category must then be adjusted for culpability and harm before aggravating and mitigating factors are considered. It is misleading to describe a later adjusted figure as another starting point.
3. Assault by penetration. The appropriate category was category 2 because the victim was asleep when the assault began. The authorities did not establish an inflexible rule that every sleeping victim is particularly vulnerable, but they showed that a person who is asleep will generally be unable to know what is happening or resist or protest. The court applied the qualification recognised in R v AWA [2021] EWCA Crim 1877 at [33]: the assessment depends on the circumstances. Here, the victim had refused sexual activity while awake, and the offender could penetrate her only because she was asleep. The six-year category 2 starting point therefore applied, subject to an initial downward adjustment because the particular vulnerability was short-lived and she awoke and moved away.
4. Aggravation, mitigation and plea. Continuing the assault after the victim moved away was a significant aggravating factor. Immaturity was mitigating, but its weight could not be substantial because the offender knew of her refusal and his conduct reflected selfishness as well as immaturity. After trial, the sentence on count 2 could not properly have been less than three years. Credit for the very late plea could not exceed 10%; speculation about what might have happened to another count if the plea had been earlier was irrelevant. The resulting sentence before totality was not less than two years and nine months.
5. Domestic context and totality. The domestic context and breach of trust increased the seriousness of the offending, subject to avoiding double counting where the category already reflected the victim’s vulnerability. The disclosure offence was separate, later and vindictive, and added significantly to the overall criminality. It therefore required either a consecutive sentence or a significant increase in the sentence for count 2. Viewed alone, count 3 warranted at least twelve months after trial, reduced to eight months for the early indication of guilt.
6. Custody. Rehabilitation and compliance with the suspended sentence order justified some further reduction, but the seriousness of the offending meant that only immediate imprisonment for a term exceeding two years was justified. The final concurrent total was accordingly fixed at two years and nine months.

• Court of Appeal (Criminal Division) ([2025] EWCA Crim 711): On a reference under section 36 of the Criminal Justice Act 1988, the court granted leave, quashed the sentences and substituted terms of imprisonment.
• Crown Court at Manchester (Crown Square): On 31 January 2025, the offender received concurrent suspended sentences of two years for assault by penetration and twelve months for disclosing private sexual photographs.