This is a case that has not made the headlines, but is an interesting one in relation to sentencing of sexual offences and prosecution appeals.
It’s an AG Reference from a Court Martial (and so the Court of Appeal (Criminal Division) was sitting as the Courts Martial Appeal Court), but that makes no difference to the actual issues for a sentence of 9 month imprisonment for two counts of assault by penetration.
The Defendant and Victim were both in the navy and were on a “Leading Rates Leadership Course, and all participants were treated as being on equal footing irrespective of rank“. When the course finished there was a party where a fair amount of alcohol was involved.
At the end of the evening “The offender asked the victim if she was “coming for a cuddle” but the victim declined, saying: “No, I’m going to bed. Goodnight.” Instead of leaving it there, “A few minutes later, without permission, the offender entered the victim’s room
The victim said: “I don’t think that’s a good idea”. But she accepted in her evidence that she acquiesced to her being there and may have lifted the duvet cover to provide space for her to get into bed with her. The victim did not think it was normal but did not feel threatened because the offender was drunk and they were friends. She did not believe that there was any sexual intent. The victim fell asleep but was awoken when the offender tried to touch her breasts. The victim clasped her arms to her sides in order to prevent this whereupon the offender put her hand inside the victim’s underwear and touched her vagina. Again on this occasion, the victim tensed her legs to prevent any further assault but the offender persisted and penetrated her vagina. The victim immediately grabbed the offender’s forearm and pushed the offender’s hand away and said: “I think you should stop”, and “You need to stop. No”. As soon as this happened the offender stopped.”
The victim let the offender stay, but “soon after, however, there was a more serious assault. The victim woke to find the offender had locked her leg around one of the victim’s legs and was penetrating her vagina. This was causing her pain. The victim stated that she was “really scared” and shocked“.
The offender declined to leave, but the victim went back to sleep and nothing further happened. A complaint was made the next morning.
There was a trial. The defence was consent, but this was rejected. By the time of the sentence the offender showed a level of remorse and was sentenced to a total sentence of 9 months (1 month and 8 months consecutive).
The Guidelines are at page 15 of the Definitive Guidelines. The Court accepted that it was in Cat 3B giving a starting point of 2 years with a very wide range (a Community Order up to 4 years). The Court held that there were aggravating features of the offender entering the victim’s room uninvited and a vulnerable victim was targeted.
There was fresh evidence relating to the offender’s mental state, which the Court held gave rise to an additional mitigating factor.
In light of that, whilst the Court concluded that the sentence was unduly lenient, having regard to the new material, and the principle of double jeopardy, decided to increase the sentence.
When is a victim vulnerable?
The victim being drunk is taken as an aggravating feature, which is standard (although when the defendant is equally drunk, it may perhaps be of less significance).
One line that caught my mind was what could appear to be a throw away line at para 3 “The victim was married although in the process of divorcing her partner and was, in consequence, vulnerable”. Vulnerability is an aggravating factor, but is it right to categorise someone in the process of a divorce as being inherently vulnerable?
Double Jeopardy; the idea that if someone is being re-sentenced by the Court of Appeal then they should receive a discount of some sort due to the wait and stress of re-sentencing) was something that was deeply rooted in jurisprudence. It did however start to get whittled away in the last couple of years, to the extent that it seemed to have as old fashioned as a right to silence.
The latest was Afzal  EWCA Crim 1566 (sadly not on BAILII). The Court responded to criticisms that the principle of double jeopardy was not being referred to in judgments any more, stating that “the practice has evolved that no reference is made to it, save in the category of case in which it is likely to arise. For the reasons we have endeavoured to state, those cases have become, and are likely to remain, rare“.
This referred back to the case of AG Ref (No 14 and 15 of 2006 – French & Webster)  EWCA Crim 1335. It is not clear that the current conclusion was warranted. In French and Webster the Courts held that there was almost always a place for a discount for double jeopardy (typically between 12 and 30%, the exact amount depending on the facts). This was so even where there is a indeterminate sentence (apart from murder where it is specifically excluded), although the discount would be smaller.
Afzal has somehow moved this to a position where discounts for double jeopardy are rare. No indications are given as to when they would be applied, or any real reasons as to why double jeopardy no longer applies. In para 19 we see the reasons as being:
(1) As a result of the work of the Sentencing Guidelines Council and of the Sentencing Council, there is much greater clarity and uniformity in relation to sentencing for most offences. The starting points and ranges are set out in clear, comprehensive guidelines.
(2) Where a judge has departed from those guidelines without explanation or good reason, it should be readily apparent to the advocate advising an offender that the sentence might be referred to this court. Advocates no doubt advise of that risk.
(3) Rapid consideration is given to any sentence by the Attorney General so that it is quickly referred to this court.
(4) This court is more conscious of the position of victims than it was in 2006.
Although this superficially looks appealing, (3) has always been the case, it is not clear why (4) is relevant as a general principle (Afzal itself was a drugs case where there is not a specific victim) (1) and (2) are stronger points, although Sentencing Guidelines have been around for a while, they do not apply to all offences and they are ‘guidelines not tramlines‘ as we are so often told. In any event, the principles behind double jeopardy should still apply to these cases, albeit to a lesser extent.
So, it is good to see here an unequivocal statement that double jeopardy applies not only to non-custodial sentence, but “Furthermore, it is beyond argument that in relation to short sentences, or sentences where a non-custodial sentence may be replaced by a custodial sentence, the principal of double jeopardy remains available to the offender. This sets out the court’s recognition of the offender’s anxiety and trauma at being re-sentenced particularly where the end of the sentence is within the immediate future.”
This shows the fallacy behind points (1) and (2) as set out in Afzal. No doubt the offender in this case would have been told that it was outside the guidelines, and for reasons that were vulnerable to challenge, but the stress and anxiety would remain all the same.
Hopefully this represents the first green shoots of the recovery of double jeopardy.