R v Oswald Greenaway [2025] EWCA Crim 1568

[2025] EWCA Crim 1568Case No 202503022 A4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT WOOD GREEN
His Honour Judge Aaronberg KC
01GD1352923
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 3 December 2025
Before
LORD JUSTICE STUART-SMITHMRS JUSTICE TIPPLESHER HONOUR JUDGE LEIGHSitting as a Judge of the CACD)
Between
REXAppellantOSWALD GREENAWAYRespondent
REFERENCE BY THE ATTORNEY GENERAL UNDER s.36 CRIMINAL JUSTICE ACT 1988
Frederick Hookway for CrownVishal Misra for RespondentHearing Hearing date: 30 October 2025
The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence.Approved JudgmentThis judgment was handed down remotely at 10.30am on 3 December 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with s.3 of the Act. For the avoidance of any doubt, we do not waive or lift the prohibition.[2]His Majesty’s Solicitor General applies for leave to refer a sentence which she regards as unduly lenient. The sentence was imposed by HHJ Aaronberg KC sitting at Wood Green Crown Court on 28 July 2025 after the offender had been convicted of four offences. On Count 1 of the indictment, which was an offence of kidnapping, he was sentenced to 3 years and 9 months’ imprisonment. On Count 3, which was an offence of sexual assault, he was sentenced to 1 year’s imprisonment, concurrent. On Count 4, which was an offence of assault occasioning actual bodily harm, he was sentenced to 1 year’s imprisonment, also concurrent. On Count 5, which was an offence of having a bladed article, he was sentenced to 6 month’s imprisonment, consecutive. The Crown Court also concerned itself with an alleged offence of breaching bail, to which we do not need to refer again. The overall sentence was therefore 4 years and 3 months’ imprisonment.[3]The trial that culminated on 28 July 2025 was a retrial. At the original trial, the offender had been convicted on count 5 but the jury had been unable to agree on the other counts that the offender faced. The sentence of 6 months on Count 5 was a mandatory minimum sentence pursuant to section 315 of the Sentencing Act 2020 because of a previous conviction in 2002 of possessing an offensive weapon in a public place.[4]It should be noted that his carrying of the bladed article the subject of Count 5 played no part in the offences of kidnapping, sexual assault or assault occasioning actual bodily harm under Counts 1, 3 and 4. It should also be noted that, although convicted of the offences that we have listed, the offender was acquitted of count 2 on the indictment, which alleged the committing of an offence of kidnap with intent to commit a sexual offence.[5]The Solicitor General’s challenge to the sentence is founded on the submission that the judge wrongly categorised the offence of kidnapping as being within category 2C when it ought to have been at least 2B because the offender’s victim was targeted due to her particular vulnerability. That would have generated a Starting Point of 5 years imprisonment for Count 1 alone.[6]We give leave.

The factual background

[7]On the evening of 29-30 September 2023 the victim, who we shall call V, had been at her friend’s house in Shadwell for a birthday party. They had pizza and were drinking alcohol; V thought she’d had three or four drinks of whisky mixed with Coca-Cola. She felt drunk, but was still able to hold a conversation and play football with her friends inside the venue.[8]Despite that assessment, her memory of leaving the party was only partial; but she did remember leaving alone and standing on a busy street carrying her handbag and a Sainsbury’s carrier bag. She was then approached by a man, who was the offender. He asked if she wanted a lift home. This was the first time they had ever met. During his evidence the offender asserted this meeting was close to a bar.[9]This meeting led to V getting into the offender’s van. He then drove her away. V remembered him driving, “quite fast”. But instead of taking V home (which was a short distance), he drove to his own house.[10]Cell site analysis showed the offender had been in the vicinity of his home that night until he had left shortly before 1:00 a.m. Phone evidence suggested the offender first co-located with V relatively close to her home address at about 3:15-3:18 a.m. Phone evidence showed they arrived back in the vicinity of the offender’s address at around 3:40 a.m.[11]V next remembered having been taken to a bedroom. There was a double bed and a bedside table with drinks on it. V sat on the bed with the offender, and said she remembered feeling uncomfortable. The offender then said something about sex, and was touching his crotch area. V said she did not want sex and that she had a partner.[12]V’s memory of what followed was again only partial, but she remembered the offender holding her down by the wrists with his legs pressed over the top of her legs. This meant she could not move, although she was trying to fight him off. The offender continued to rub his crotch, and then ran his hand up V’s leg. She was wearing a dress. She said he rubbed her outer thigh and it was not under her dress. V could not remember what the offender was saying, but she did remember him laughing. By this point, she was crying and pleading with the offender not to rape her. V said she felt very scared. In response, she remembered the offender saying he was not going to rape her. V was getting increasingly desperate, but eventually the offender stopped holding her left hand. She went to grab a glass or bottle that was on the bedside table, but the offender stopped her from using it to hit him.[13]At some point during the incident V’s head was struck; she described it as her head being, “smashed” on something by the offender, possibly a piece of furniture. This caused bruising to her forehead. She also remembered trying to use her phone to contact her friends. She remembered the offender taking it from her, though there was evidence of her having managed to send the following messages to various contacts: i) At 3:39/3:40 a.m (about the time they got to the offender’s home): ‘Are any of you awake?’ and ‘I’ve got myself in a situation’; ii) At 3:49 a.m: ‘I am not in a safe situation at all so I’m sending you my location’ and ‘Some white van driver picked me up’; iii) At 4:07 a.m: ‘Help me’ and ‘He’s pinning me down’.[14]One of her friends who received one of these messages called the police at 4:00 a.m. A short time later police found V walking along a street with the offender. We have seen body worn footage from the police who attended. V did not remember how she had got out of the offender’s house, though she had some recollection of being pulled. At the scene, she made accusations the offender had assaulted her and stolen her bag and keys. She then started to cry.[15]The offender was holding V’s carrier bag and keys. He said V was crazy and had attempted to assault him. He would not tell the police where he lived and tried to leave. He was then arrested. After being arrested, the offender was searched. In his jacket, police found a stainless steel kitchen knife with a blade approximately 11cm long and a red makeshift cover.[16]The offender’s van was then searched. Two packets of Viagra in oral jelly form, three condoms, and eight disposable plastic gloves were found together. One of the packets of Viagra was open.[17]The offender was interviewed under caution and answered no comment to all questions asked. He did provide a prepared statement which said there was no sexual contact between him and V. The statement also asserted that he believed V’s allegation had been made because of her “heavily intoxicated nature”.[18]V participated in a Video Recorded Interview on 1 October 2023. During that interview she gave evidence about the state she was in: “And, then I decided to go home, don’t know how, I’ve no recollection at all leaving or I don’t know if Alessia walked with me or any of it. And, then the next thing I remember is being on a street, feels like it was a busy street, I’ve no idea where it was, I don’t know how I got there and then this guy asked me if I wanted a lift home”.[19]In answer to what the last thing was she remembered at her friend’s flat, she said:
“I remember being sat on the couch and I remember we were talking about one of the other girls who had been there, fancying Tiz and if she should do anything about it or leave it, um, and just having that conversation, I don’t – that’s it, that’s the last thing I…. Yeah, I had alcohol, I was drinking whisky and coke and I’ve pouring them myself, so, I think I’d had three or four glasses, um, yeah. … I think I was probably drunk but, um, I was fine, like I was all right, I was able to hold a conversation, we’d been playing football in the flat, … . I don’t know, don’t know how I would have got home.”
[20]Then, in answer to questions about what she remembered of the street, where she was going when she met the offender, and whether the offender crossed the road to her:
“Um, there was, um, lights, …, street lights, …, and there was other people around cos there was cars on the road as well, …, that’s about it to be honest, I don’t even remember any – there were shops and houses, it just felt like …, if I remember like a busy street. [I] would have been heading home … I think I was alone. I don’t know [if he crossed the road to me]. I just – it’s quite blurry, but I remember him definitely coming up to me”
[21]In answer to questions about their conversation she said:
“I remember him distinctly asking if I wanted a lift home, but I don’t remember if there was anything either side of that, I know when I’ve had drinks that I have like a homing device opposite my bed, I just remember, …, wanting to go home.”
[22]In answer to questions about how she felt in the van and whether she remembered leaving it, she said:
“I think I felt confused and it may be at the point that I messaged my friends, but I’m not sure. … I don’t [remember leaving the car]. It’s like I’ve got almost like these set images of things that happened.”
[23]After the appeal hearing, Counsel provided detailed notes about what V had said about the offender approaching her. We summarise the position as being that, although she said clearly that she remembered the offender coming up to her and approaching her, her evidence about whether he crossed the road was more equivocal – the high point being that she said he must have done, though she was not sure.[24]In cross-examination V was asked where she was on a scale of 1-10 where 1 was absolutely sober and 10 was “black out drunk”. Her answer was that she was 4 – she was under the influence, able to hold a conversation, had been playing football in the flat (where she had been to a party) and had eaten a lot of food that night. She said that the reason why she couldn’t remember large parts of the night was because of the assault and that she had been diagnosed with PTSD because of the trauma. She rejected the suggestion that she could not remember because she was very drunk.[25]Although V said that she did not remember telling the offender details about her life, V confirmed a significant amount of personal information about herself in cross-examination that the offender could realistically only have got from her in conversation: details such as that she was originally from Bristol, that she supported Bristol City, that she needed to find a new women’s football team because her old one had folded, where she worked and what her work involved, and that she had been at a party having brough a blow-up sex doll and banana condoms for the party. She reiterated that she could remember the party, and was able to walk about and hold a conversation..

The Victim

[26]The Judge had the benefit of two victim personal statements from V which spoke eloquently of the profound effect that the offences had had on her. The first was made in June 2024, some nine months after the offences were committed. She spoke of debilitating panic attacks, low mood and hopelessness, inability to work, trouble sleeping, flashbacks and an inability to take exercise, which had previously been important to her. Her second statement was made on 12 July 2025, shortly before the trial. Her feelings of hopelessness had led her to make an attempt on her life after which she spent a considerable time in hospital. She had now been diagnosed as suffering from PTSD. She does not expect ever to feel safe again and has made the decision to move home and leave the area where she was currently living.

The offender

[27]The offender is now aged 60. He has 16 convictions for 25 offences. Most are old and of limited relevance; but they include convictions for offences of violence and, of most immediate relevance, the conviction in 2002 to which we have referred above.

The sentencing hearing

[28]The judge sentenced the offender without the benefit of a Pre-Sentence Report. We are satisfied that none was necessary then and that none is necessary now. When discussing with Counsel whether there was a need for a PSR, the Judge gave a preliminary indication of his thinking:
“Well, when you talk about his thinking, he has accepted that he is a man who was hoping on a relevant day to have sexual intercourse with his girlfriend. He had taken some Viagra and she was not interested. She wanted an early night. He then goes out a few hours later, driving around streets in the early hours and as the jury have found and I am bound, obviously, to work on their finding, kidnaps the complainant. Not necessarily having in mind then that he is going to force her to engage in any sexual activity, but when an opportunity presents itself, as the jury are found, he sexually assaulted her.”
In reply, defence Counsel indicated that he was happy to proceed immediately if the Judge wished.[29]Later during Counsel’s submissions on behalf of the offender,

the Judge gave a further indication of his view of the offence by saying:

“Well, I think it seems to me that there is a plan to go out, ride around and see if there is somebody who might want to go home with him. That is probably what it amounted to. … And then he took advantage of somebody who had had too much to drink.”
[30]The Judge heard submissions on the proper categorisation of the offences. Dealing first with the offence of kidnapping the prosecution submitted that it fell into Category A2: culpability category A because it involved deliberate targeting of a particularly vulnerable victim and harm category 2 because of the serious psychological harm or serious distress caused to V. If the offence was category A2, the Starting Point would be 7 years’ custody with a category range of 5-10 years’ custody. If not category A2, then the prosecution submitted it should be category B2 because the offence was planned. If it were category B2, the Starting Point would be 5 years’ custody with a category range of 2-7 years’ custody. For the offender it was accepted that the offence fell within harm category 2; but it was submitted that it was an opportunistic and not a planned offence, there was no significant force or violence and no weapon was used or threatened. If there was any planning it was limited; and the duration was limited. Accordingly it was submitted that the offence fell within culpability category C2, which would have a Starting Point of 2 years’ custody with a category range from 1 to 3 years’ custody.[31]Turning to the sexual assault, the prosecution submitted that if fell within category 2B: harm category 2 because V was particularly vulnerable due to personal circumstances; and culpability category B because none of the factors indicating category A were present. On that basis the Starting Point would be 1 year’s custody with a category range up to 2 years’ custody. The defence submitted that it was category 3 or perhaps straddling categories 2 and 3 because, although it was accepted that she was vulnerable, V was not “particularly vulnerable due to personal circumstances”. The Judge pointed out that, if the case did not come within category 2 because of “particularly vulnerable due to personal circumstances”, it could be an aggravating feature that the offender had specifically targeted a particularly vulnerable victim, pointing to the drop-down box that referred to a victim being isolated, incapacitated through drink or being in an unfamiliar situation, pointing out that at an early stage the offender had described V as being “heavily intoxicated”.[32]In relation to the ABH, the prosecution contended that it was an offence falling within category A2: culpability category A because V was obviously vulnerable due to age, personal characteristics or circumstances, being isolated in the offender’s house as well as being drunk; harm category 2 as the case fell between categories 1 and 3. On that basis the Starting Point would be 1 year 6 month’s custody with a category range from 36 weeks’ to 2 years 6 months’ custody.[33]When he came to sentence the offender,

the Judge gave a clear and detailed resume of the facts, as follows:

“I am quite sure what happened was that on the evening of 29 September, as you admitted in your evidence before the jury, you had taken some Viagra ahead of going to visit your girlfriend. When you got your girlfriend's home, she was not interested in participating in any sexual activity with you. She wanted an early night, and so you left her home and went back to your own flat. Unable to sleep, and went out looking for company in the early hours of the 13 September and after driving around streets, there came a point when you parked up near a wine bar in the early hours, either because you saw [V] walking along the road or in the hope of finding somebody there that might want to keep company with you and whom, for all I know, you believed might have wanted to engage in some sort of sexual activity with you. The position is not entirely clear. What is clear is, to me, is that [V] was the worse for wear; she had been at a party with friends, she had several drinks and it is evident to me that you were aware that she was somebody who might be willing to succumb to what in effect was a fraud that you practised upon her, because you offered her a lift home in your van. And because of the state that she was in, she got in thinking that you were going to drive her home, but in fact you drove her to your own home. And the jury have found, that was the offence of kidnapping. She got in to that van as a result of the fraud that you perhaps told her that you were going to take her to her own home. You took her back to your home, no doubt hoping that she might be willing to engage in some sexual activity with you, although the jury have acquitted you, and I respect their verdict in respect to count two on this indictment, which alleged that the specific purpose of your kidnapping was in order to commit a sexual offence, of that you have been found not guilty. But having got back to your flat, more alcohol was drunk. She was substantially inebriated. And then you decided that you would see what you could get away with, and that involved putting your hand on her thigh, trying to move it up under her skirt, and that was the sexual assault on which the jury have convicted you. She remonstrated and some sort of scuffle ensued. All of the details are a bit lost in the mists of time and she, in particular, was unable to recollect exactly what occurred because she remembers being hit with some force on her head, and either as a result of that or because of, as she told the jury, her subsequent suffering from PTSD or a combination of both, she cannot be sure exactly what happens. But what is clear is that you did, as the jury have found, inflict damage to her in the form of a large bruise that came up on her head. Fortunately for her, it was not anything worse than that. She also had a couple of grazes on her knees, but they add little to the overall impact on what occurred. She was petrified during this incident. She managed to get hold of her mobile phone and sent messages to friends who called the police. And it was as a result of that, that when she did get to your flat, and I accept that you did not try and keep her in the flat against the will, you left with her intending, you say, to take her up the road to a main road from where she might get a bus. But the police came upon you, her sitting in the road crying, distraught, distressed, accusing you of having assaulted her, and you tried to pretend that she was crazy and run away from the police. And when you were arrested, the knife that I have already mentioned was found in your pocket, and then you were taken to a police station, questioned, refused to answer any questions the police asked you.”
[34]The Judge then referred to the offender’s prepared statement in which he had described V as “heavily intoxicated” which, having heard the trial, he accepted as the true position.[35]Having said that he intended to make Count 1 as the lead offence, the Judge reiterated that the bladed article must lead to a consecutive sentence because it was unconnected with the kidnapping and the other two offences. He then turned to categorise the various offences.[36]First, the kidnapping.

The Judge said:

“In respect of kidnapping, that was the most serious of the offences. It is under the sentencing counsel's guideline, in my judgment, a Category 2C case, a case in which there was limited planning and duration, but a case in which you caused serious psychological harm and distress, as evidenced by [V’s] account of what happened to her at a time in her AV interview. But also I have heard today victim impact statements, the one made last year and an up-to-date version, and there is no doubt at all in my mind that this lady has suffered long-term psychological distress as a result of your conduct on the 30 September 2023.”
That meant that the Starting Point was 2 years custody with a Category Range from 1-3 years. The Judge concluded that, if Count 1 were the only offence, the appropriate sentence would be 2 years and 6 months.[37]Next, the sexual assault.

The Judge said:

“In respect to the sexual assault, that is a Category 2B offence. Again, the harm being greater than it would otherwise be because the victim was particularly vulnerable through drink. In respect of that, the sentencing guidelines suggest a starting point of one year, with a range going up as high as two years. I would nominally set that as one year and add on to the two years and six months, so as to take it up to three years and six months.”
[38]The Judge then turned to the Assault Occasioning Actual Bodily Harm, categorising it as falling within B2, with a Starting Point of 9 months and a Category Range going up to 18 months. He added a further 12 months to allow for the ABH, and the fact that the offence was committed under the influence of alcohol. That took him to 4 years and six months which he reduced to three years and 9 months for totality because, as he said, he “must not over-punish you for conduct that occurred within the space of a couple of hours on the same occasions.” He thereby arrived at the weighted sentence that he imposed on Count 1. He then passed the consecutive sentence of 12 months on Count 6 and thereby arrived at the aggregate sentence we have outlined at the start of this judgment.

The Solicitor General’s submissions

[39]The Solicitor General’s submission may be shortly stated. It is submitted that V was “particularly vulnerable” within the meaning of the kidnapping guideline and that the offender’s conduct amounted to “deliberate targeting of [a] particularly vulnerable victim”. On that basis the Solicitor General’s primary submission is that Count 1 was a category 2A case; though the Reference acknowledges that it might have been justifiable to place the case in category 2B. Failing that, the Solicitor General submits that the Judge failed to give adequate weight to V’s vulnerability as an aggravating factor.

The offender’s submissions

[40]The offender submits that the mere fact that he went to be near a bar around closing time does not compel the conclusion that V was deliberately targeted as a person who was particularly vulnerable. The Judge was right to regard the case as one with “limited planning or duration”. The case should not be treated as category 2A. If (which the offender does not accept) it is a category 2B case, the Judge’s sentence fell within the category range and was a sentence that was open to him reasonably to impose. It is not unduly lenient.

Discussion and resolution

[41]We have set out above the Judge’s resume of the facts as he found them, which is consistent with the general view he had expressed during submissions, as also set out above. His description of the offender is of a person who was on the lookout for someone who might be willing to engage in some sort of sexual activity with him. Although the Judge found that she was the worse for wear and, because of the state she was in, she got into his car thinking he would drive her home, he characterised the offender’s state of mind as being “aware that she was somebody who might be willing to succumb to what in effect was a fraud … upon her” because the offender offered her a lift home in his van. That said, the Judge had to be and was true to the Jury’s verdict in acquitting him of having a specific purpose in kidnapping her of committing a sexual offence. Consistently with that verdict was the general picture he had painted and accepted that the kidnapping was a case involving limited planning.[42]The outcome of this reference depends on the resolution of two questions. First, when kidnapped, was V “particularly vulnerable” within the meaning of the kidnapping guideline? Second, if she was, was this a case of “deliberate targeting of [a] particularly vulnerable victim? If both of these questions are answered in the affirmative then the Judge miscategorised the kidnapping offence by placing it within culpability category C.[43]In clear and carefully constructed sentencing remarks, the Judge clearly recognised that V was vulnerable throughout; and in relation to the offence of sexual assault he made an express finding that she was at that time particularly vulnerable: see [37] above. He did not, however, make a finding that V was particularly vulnerable at the time of the offence of kidnapping was committed or that the kidnapping involved deliberate targeting of a particularly vulnerable victim. His conclusion that this was a case of limited planning and duration is not challenged in the present reference, but it is not determinative of the issues we have to decide: it is entirely possible and conceivable in the abstract that a kidnapping involves limited planning while at the same time involving the deliberate targeting of a particularly vulnerable victim. We address the issues on the basis that the judge rejected the prosecution’s case that this kidnapping involved deliberate targeting of a particularly vulnerable victim but it is not clear whether that was because(a) he took the view that V was not “particularly vulnerable” in relation to the kidnapping, or(b) he took the view that, although V was particularly vulnerable there had been no deliberate targeting associated with her being particularly vulnerable, or(c) a combination of both (a) and (b).

Was V “particularly vulnerable” within the meaning of the kidnap guideline?

[44]We make three general observations.[45]First, there are references in many of the guidelines either to a victim being “vulnerable” or to their being “particularly vulnerable”. Logically being “vulnerable” and “particularly vulnerable” are different, and there is a wide spectrum of circumstances ranging from where a person may be said to be marginally vulnerable to the extreme case where a person is, for whatever reason, quite incapable of responding to or defending themselves against an offender’s behaviour. As was said in R v Boltaev [2025] EWCA Crim 207 at [31]:
“The Sentencing Council guidelines are to be interpreted in accordance with the ordinary meaning of the words used. It is clear that a female who is alone at night and is intoxicated can be "particularly vulnerable":… . That will not be so in every case: … . Everything will depend on the particular circumstances. Further, the Court of Appeal Criminal Division will not interfere with findings of fact, including evaluative findings of fact, made for the purposes of sentencing by judges who have conducted trials, except in limited circumstances. One such circumstance where the court will interfere is where the judge has failed to reflect uncontroverted facts in findings and evaluative findings.”
[46]In our judgment, the most helpful guidance in authority is that a finding of “particular vulnerability” is subject to a “high threshold”: see Boltaev at [33]. We would add that interpretation of the terms “vulnerability” and “particular vulnerability” requires close attention to all the circumstances of the case that may serve to increase or decrease the particular victim’s vulnerability.[47]Some assistance can be derived from previous cases, provided they are treated as no more than examples of particular sets of circumstances that have been held to justify the finding that a victim is “particularly vulnerable” or not, as the case may be. Extreme examples of “particularly vulnerable” victims are those where the victim is asleep or comatose when attacked. Towards the extreme end of the spectrum would also fall the regrettably familiar case where a person is neither comatose nor asleep but is so intoxicated that they are not in any position to defend themselves, or is “powerless to resist or to protest”: see R v BN [2021] EWCA Crim 1250 at [25].[48]Towards the other, and potentially more difficult, end of the spectrum, lies the case of R v Sabato [2021] EWCA Crim 940. The assault happened at 4 a.m. in Manchester City Centre. The victim had been out drinking with friends and they had ordered a taxi to take them home. The victim needed to go to the toilet urgently and walked down a dark cobbled side street to urinate behind a parked police van. The appellant had spotted the victim and turned round to follow her down the side street. There he attempted to approach the victim while she was urinating but was waved away by another young woman. He persisted and took the victim’s hand, helping her to her feet. He then blocked her path out of the side street and assaulted her by digital penetration of her vagina. The Court of Appeal reversed the decision of the trial judge, which had been that the appellant had deliberately targeted a particularly vulnerable victim who had become detached from her friends. The Court said that “whilst [the victim] was in a vulnerable position due to the location and timing of the offence, she was not a particularly vulnerable victim. For example, she was not herself so much under the influence of alcohol as to be incapable of looking after herself.”[49]We do not consider the Court of Appeal in Sabato to have been saying that no finding of particular vulnerability could be made unless an intoxicated person was “incapable of looking after herself” by reason of drink. Rather, the passage we have cited was simply drawing a comparison between the facts of the instant case and the facts of other cases where victims were particularly vulnerable because they were so under the influence that they were incapable of looking after themselves. That said, the observation provides some points of reference that are of assistance in deciding how high threshold may be.[50]Another example is provided by the facts of Boltaev, where the trial judge declined to make a finding that the victim was “particularly vulnerable”, being influenced by the fact that the victim was walking, unaided, at a good pace, was able to extricate herself after being dragged into some bushes, and was able to flag down a passing vehicle. The Court of Appeal reversed the decision of the trial judge because he had failed to take account of the fact that the victim was “uncharacteristically drunk”, had fallen over while at the bar and had left the bar without her phone, her purse or her other personal effects and had walked to a remote location that she did not know where she was outside in the rain at night: see [32]. Once again, there are points of reference as well as points of distinction between that case and this.[51]Second, and following on from the first point, a person’s degree of vulnerability may change. So, for example, a person who gets into someone else’s car increases their vulnerability; and if a person finds themselves isolated (e.g. in someone else’s home) that may increase their vulnerability yet further. This is expressly recognised in the kidnapping guideline where the drop-down box below the aggravating feature “victim was particularly vulnerable …” includes the advice that “other factors such as the victim being isolated … or being in an unfamiliar situation may lead to a court considering that the offence is more serious.”[52]Third, different guidelines refer to vulnerability and particular vulnerability for different purposes and in different contexts. Thus, for example, the kidnapping guideline treats “deliberate targeting of a particularly vulnerable victim” as a feature indicating high culpability (Cat A) at Step 1. It also has “victim was particularly vulnerable (where not taken into account at step one)” as an aggravating feature. But note that this aggravating feature does not state or imply deliberate targeting of the particularly vulnerable victim. It is an aggravating feature if the victim is particularly vulnerable even if they were not specifically targeted as such.[53]By way of contrast, the Guideline for Sexual Assault at Step 1 treats “victim is particularly vulnerable due to personal circumstances” as a factor indicating that harm falls within category 2. Specific targeting of a particularly vulnerable victim is listed as an aggravating factor. Conversely, the ABH Guideline at Step 1 treats “victim obviously vulnerable due to age, personal characteristics or circumstances” as a factor indicating high culpability. The list of aggravating factors does not include reference to vulnerability or targeting.[54]We do not find it particularly helpful to refer to the Judge’s findings about V’s vulnerability later on when she was alone and isolated in his home having drunk yet more alcohol. Her vulnerability became more acute with time, first by her initial drinking, then on getting into his van, then on finding herself isolated in his home and finally as a result of drinking more alcohol, however that came about. What relevant on count 1 is her state when she was kidnapped, as to which the Judge accepted the offender’s initial assessment (from which he subsequently attempted to resile) that she was “heavily intoxicated.”[55]The Solicitor General relies upon the fact that V was “heavily intoxicated” and that she was on her own and isolated without means of transport when she was approached by the Defendant.[56]For the offender it is submitted that to describe V as “heavily intoxicated” provides only a partial insight into V’s condition and the circumstances in which she found herself. She herself estimated that her intoxication at that stage would register at 4 out of 10; and it is clear that, despite partial memory loss later that may or may not be affected by her intoxication, she had been functioning relatively normally: see [18]-[25] above. It is to be remembered that, by the time of the sexual assault, V had drunk more while at the offender’s home so that her condition then (which the Judge held rendered her particularly vulnerable in the context of the sexual assault) was not necessarily or even probably the same as it had been when the kidnap occurred.[57]We have not found this an easy issue to determine. There are obvious points of similarity with the facts of Sabato; but we consider that the combination of her intoxication, her isolation and the absence of any means of transport to get her home in the early hours of the morning tip the balance in favour of a finding that the high threshold is met and she was particularly vulnerable.

Deliberate targeting of particularly vulnerable victim

[58]We consider it to be plain that this factor is addressing circumstances where the offender deliberately targets the victim because of an appreciation that they are particularly vulnerable. It is the causative nexus between appreciating the victim’s particular vulnerability and the decision to target them that affects the culpability of the offender. Once again, in our judgment, the threshold is high. That becomes clear when regard is had to the substantial uplift in Starting Point and Category Range where deliberate targeting of a particularly vulnerable victim is established and moves the case from one involving medium culpability to one involving high culpability. It is supported by reference to the other factors that may justify placing a case in culpability category A: detention over a protracted period of time; very sophisticated and highly planned nature of conduct; use of a highly dangerous weapon or weapon equivalent to inflict violence; prolonged or repeated extreme violence; and torture or sadistic conduct.[59]Once again, we do not find this an easy issue to determine. We acknowledge the Judge’s finding that the offence of kidnap involved limited planning but, for the reasons we have given, that is not determinative. We also bear in mind that the offender was acquitted on Count 2 and, consistent with that acquittal, the Judge approached the case on the basis that the offender went out looking for company and that his motivation for parking his van near to a wine bar was not entirely clear. However, we have found ourselves driven back to the passage in the Judge’s sentencing remarks where he said:
“What is clear is, to me, is that [V] was the worse for wear; she had been at a party with friends, she had several drinks and it is evident to me that you were aware that she was somebody who might be willing to succumb to what in effect was a fraud that you practised upon her, because you offered her a lift home in your van. ”
[60]In our judgment, this passage amounts to a finding that the offender targeted V because he thought her intoxication might lead her to succumb to his “fraudulent” offer (made without the intention at that stage to commit a sexual offence). Although the Judge did not expressly identify the other features that made her particularly vulnerable, it seems to us that the facts as found by the Judge are sufficient to amount to deliberate targeting of a particularly vulnerable witness. That said, it was far from the most serious example of such targeting and, when determining its impact upon the offender’s culpability, it does not sit altogether comfortably with the other factors increasing culpability that we have set out above.

Impact of finding of deliberate targeting

[61]The immediate impact of this finding is that the offence of kidnap may fall within category 2B because factors are present in categories A and C which balance each other out. This does not mean that we have to assume that the balancing exercise must result in a complete equilibrium such that the Starting Point of Category 2B is the beginning and end of the exercise. As we have made plain, this was a less serious case of deliberate targeting of a particularly vulnerable victim than many that come before the Court. In our judgment, viewed on its own, the least sentence that could properly be passed on Count 1 was a sentence of 4 years.[62]No separate criticism is made of the Judge’s decision to increase the sentence on Count 1 by 2 years to reflect Counts 3 and 4 and that the offences were committed under the influence of alcohol. Nor is any separate criticism made of the Judge’s reduction of 9 months for totality or the sentence of 6 months consecutive in respect of the bladed article offence. If those adjustments are replicated the resulting aggregate sentence would be one of 5 years and 9 months.[63]This is not simply a mathematical exercise. We stand back and ask ourselves whether an aggregate sentence of 5 years and 9 months is the lowest sentence that could properly be passed in respect of the overall criminality of the offender’s conduct. In our judgment, and not least because of the seriousness of the effect of the offending upon V, we consider that it is.[64]For these reasons, we quash the sentence on Count 1 and substitute a sentence of 5 years and 3 months. The sentences passed for the other offences remain unchanged. To that extent this reference is allowed.