R v BPK [2025] EWCA Crim 711

WARNING: reporting restrictions apply to the contents transcribed in this document, as explained in paragraph 3 of the judgment, because the case concerned a sexual offence. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.[2025] EWCA Crim 711Venue Royal Courts of JusticeStrandLondonWC2A 2LLDate Tuesday 15 April 2025
Before
THE VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISIONLORD JUSTICE HOLROYDEMRS JUSTICE EADYMR JUSTICE BENNATHANReference by HM Attorney General under section 36 Criminal Justice Act 1988
Between
REXCrownv
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BPK__________Computer Aided Transcript of Epiq Europe Ltd,Lower Ground, 46 Chancery Lane, London WC2A 1JETel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)_________MS SARAH PRZYBLSKA appeared for Solicitor GeneralMS SHIRLIE DUCKWORTH appeared for Respondent Offender_________JUDGMENTTHE VICE-PRESIDENT:
[1]The offender (as we shall refer to him) pleaded guilty to an offence of assault by penetration, contrary to section 2 of the Sexual Offences Act 2003 (count 2) and an offence of disclosing private sexual photographs, contrary to section 33(1) of the Criminal Justice and Courts Act 2015 (count 3).[2]On 31 January 2025, in the Crown Court at Manchester, Crown Square, he was sentenced on count 2 to 2 years' imprisonment suspended for 2 years, with requirements of unpaid work, rehabilitation activity and drug rehabilitation. On count 3, he was sentenced to a concurrent term of 12 months' imprisonment suspended for 2 years. His Majesty's Solicitor General believes the total sentence to be unduly lenient. Application is accordingly made, pursuant to section 36 of the Criminal Justice Act 1988, for leave to refer the case to this court so that the sentencing may be reviewed.[3]The victim of the offences is entitled to the life-long protection of the provisions of the Sexual Offences (Amendment) Act 1992. Accordingly, during her lifetime no matter may be included in any publication if it is likely to lead members of the public to identify her as the victim of a sexual offence. We shall refer to her as C. In order to avoid the risk of indirect identification of C, the offender's name must be anonymised in any report of these proceedings. We direct that he be not named or otherwise identified and be referred to only by the randomly-chosen letters BPK.[4]The offender and C began a relationship whilst still at school. The relationship became sexual. In 2020 and early 2021 they were living together in the home of the offender's mother. At the material time the offender was aged 19; C was 18.[5]The offence of assault by penetration was committed in early 2021. C's evidence was that by that time the relationship had ceased to be sexual, but they remained friends and continued to share a bed.[6]On the night of the offence, as they were watching television in bed together, the offender asked C if she wanted to have sex with him. She said she did not. He asked if she wanted to engage in sexual activity later. She again said she did not. The offender became moody. They watched television for a time and then C fell asleep.[7]C woke to feel the offender's finger or fingers inside her vagina. He had moved one of her legs as she slept and had put his hand inside her pants from the front. After about 30 seconds of what she describes as quite gentle thrusting with his fingers, she rolled away from him. She said and did nothing to indicate to the offender that she was awake and knew what he had done. The offender then moved across the bed to her, put his hand inside her pants from the back and again penetrated her vagina with one or more fingers. After a few seconds she got up and went to the bathroom.[8]At a later date, C ended the relationship. The offender was unhappy about this. He sent messages, some of which were abusive. In a response, C confronted the offender about what he had done. He admitted that he had sexually assaulted her. However, he persisted in his unwelcome attempts to resume their relationship.[9]The second offence was committed in late May 2021. The offender thought that C was seeing another man and was jealous. On an evening when C had gone out with a female friend, whom we will call F, the offender made repeated attempts to contact C by calling F's phone. F told him not to, but he persisted through the night, making more than 20 calls between midnight and 5 am. He then sent a number of intimate photographs of C to F and to C's father and stepmother. In some of the images, C was either naked or wearing very little. Some showed her in sexualised poses. One showed the offender performing oral sex on C.[10]The offender was charged with the offences to which we have referred and was also charged in count 1 with an offence of rape in December 2020. He indicated his guilt of the count 3 offence at the first opportunity. He pleaded not guilty to the other charges. He served a defence statement in which he specifically denied that he had digitally penetrated C's vagina while she was asleep.[11]The offender made his first appearance in the Crown Court in July 2022. There was, regrettably, delay before a trial in June 2024. That trial ended when it became necessary to discharge the jury, because it emerged that there were some messages between C and the offender which had not been provided to the police. A retrial was fixed for December 2024. On the day of that trial the offender pleaded guilty to count 2. Count 1 was ordered to lie on the file.[12]At the sentencing hearing C read out two victim personal statements in which she described the continuing effects of the offences which had caused her difficulty in forming personal relationships. She also said that the offender had "stripped her trust away" by disclosing the images. She referred to the distress which she had suffered because, until the day when he entered his very late guilty plea to count 2, the offender had been denying that offence to their mutual friends and accusing C of lying.[13]The offender was of previous good character and had not offended during the long period between these crimes and his sentencing. He was in work. He provided references for the court, which spoke well of him. The judge had the assistance of a pre-sentence report.[14]Submissions were made as to the relevant sentencing guidelines. In relation to count 2 there was an issue between prosecution and defence as to whether, at the time of the assault by penetration, C was"particularly vulnerable due to personal circumstances". The prosecution submitted that she was, and that the offence therefore fell within category 2B of the relevant guideline, which has a starting point of 6 years' custody and a range from 4 to 9 years. The defence submitted that she was not, and that the appropriate category was 3B, with a starting point of 2 years' custody and a range from a high-level community order to 4 years' custody. Reference was made by counsel to a number of previous decisions of this court.[15]The judge in his sentencing remarks concluded that the case fell "right on the cusp" of being characterised as one of particular vulnerability. In reaching that conclusion he took into account the short duration and gentle nature of the assault and the fact that C was awake after the initial contact.[16]In relation to count 3, the judge agreed with counsel that the offence fell within category A1 of the relevant guideline, because the offender's conduct had been intended to maximise the distress and/or humiliation it caused to C, and the offence did in fact cause her very serious distress. The starting point for that category is 1 year's custody with a range from 26 weeks to 1 year 6 months.[17]The judge observed that the passage of a long time before the case was concluded had had a significant impact on the offender as well as on C, because throughout that period the offender had faced the allegation of rape. He said that it was clear from the material he had read that the offender had been immature at the time of the offence and in the intervening period had matured both generally and in relation to sexual offences. The judge allowed 25% credit for the guilty plea to count 3. In relation to count 2, he stated that an early plea to that count would not have avoided a trial because the Crown would have pursued count 1. He said that"in all the circumstances" he would allow credit modestly in excess of the normal 10%.[18]The judge held that the offending clearly passed the custody threshold. He said that a sentence of immediate imprisonment would not provide an opportunity for the work which he felt needed to be done with the offender to reduce the risk of future harm. He also expressed concern that the offender was assessed in the pre-sentence report as being easily influenced by negative peers, which could happen if he was sentenced to immediate imprisonment. The judge concluded that a suspended sentence of imprisonment was appropriate. On count 2, as we have said, he imposed a sentence of 2 years' imprisonment suspended for 2 years with the requirements we have mentioned. On count 3 he imposed a concurrent sentence of 12 months' imprisonment.[19]For His Majesty's Solicitor General, Ms Przybylska submits that the total sentence was unduly lenient. She repeats the submissions as to categorisation which were made by the prosecution in the court below and invites our attention to relevant sentencing guidelines and to case law. She submits that the judge was entitled to move downwards from the starting point indicated in the guideline for an offence committed against a person who was particularly vulnerable; but, she argues, it is impossible for that downwards adjustment and any further mitigating factors to result in a total sentence for both offences which was only half the very bottom of the category 2B range to which we have referred.[20]Ms Przybylska identifies the following aggravating and mitigating factors in relation to count 2. Aggravating factors were the repeated or persistent nature of the assault after C had initially moved away; the significant psychological impact of the offending on C; and the assertion to mutual friends by the offender that C was making false allegations against him. Mitigating factors were the absence of previous convictions and of offending in a period of about 3 years 6 months since the offences, and the offender's age and/or lack of maturity.[21]In relation to count 3, she submits that the aggravating factors were that multiple images were sent and images were sent to more than one recipient. The mitigating factors were, again, the absence of previous convictions, and age and/or lack of maturity.[22]Ms Przybylska submits that the sentence was unduly lenient because the judge fell into error in four respects:• he failed to increase the starting point to reflect the aggravating factors• he gave too much weight to the mitigating factors• he erred in giving more than 10% credit for the guilty plea to count 2• he erred in making count 3 concurrent or, in the alternative, in failing adequately to elevate the sentence on count 2 to reflect the separate offending on count 3.[23]For the offender, Ms Duckworth submits that the judge properly assessed all relevant factors and was entitled to reach the conclusions he did. She too repeats the arguments as to categorisation of count 2 which were advanced below, and she too invites our attention to case law. She submits that in the circumstances of this case, even if particular vulnerability were found, the judge was right to move very considerably downwards from the guideline starting point, and to give priority to a type of sentence aimed at the offender's rehabilitation and thus the reduction of future risk.[24]We are grateful to both counsel for admirably focused and well-presented submissions. We have reflected on those submissions. We have considered the full transcript of the sentencing hearing. We have also been assisted by a pre-appeal report by a probation officer, which refers to some encouraging signs in the offender's response to the suspended sentence order but also notes some areas of concern.[25]Our conclusions are as follows.[26]First, we regret to have to say that case provides yet another example of the difficulties which arise when incorrect and inconsistent use is made of the phrase "the starting point". Each of the offences under consideration is the subject of an offence-specific guideline issued by the Sentencing Council. We therefore repeat the summary given in R v Naqvi [2024] EWCA Crim 958 at [34]:
"In the circumstances of this case the guideline duty in section 59 of the Sentencing Code included by section 60(4)(a) a duty to decide which of the guideline categories most resemble the applicant's [case] in order to identify the appropriate starting point. The proper approach is to identify that starting point and thereafter to adjust it upwards or downwards if necessary to reflect particular features of culpability and harm, before considering aggravating and mitigating factors. We reiterate once again that it is therefore unhelpful to use the term 'starting point' to refer to anything other than the starting point initially identified. Everything from that point onwards is an adjustment of the starting point."
[27]In relation to count 2 in the present case, the judge had to decide whether the harm category which most resembled the offender's case was category 2, because C was particularly vulnerable due to her personal circumstances, or 3, because none of the factors in Categories 1 and 2 was present. He rightly held that it was Category 2.[28]The relevant principles established by the case law in this regard can be summarised briefly. In R v BN [2021] EWCA Crim 1250; [2022] 1 Cr App R (S) 37, this court considered a number of earlier decisions. At [25] the court rejected a submission that a victim could only be found to be particularly vulnerable in this context if both asleep and intoxicated at the material time. A similar point to the like effect was also made in R v Husband [2021] EWCA Crim 1240 at [19].[29]The court in BN went on to say at [25]:
"We find it difficult to see how a child or adult who is asleep when the sexual activity begins, and therefore does not know what is happening and so is powerless to resist or to protest, could generally be said to be anything other than particularly vulnerable due to their personal circumstances."
At [26] the court found on the facts in that case that there was Category 2 harm to the victim, but said:
"We accept, however, that but for her being asleep, the case would have fallen into category 3 and, in view of the nature and extent of the touching, would not have been a serious example of category 3 harm. We also accept that A was able to, and did, wake up when the sexual touching began. The guideline starting point can properly be adjusted downwards significantly to reflect those features."
[30]It will be noted that in the passage which we have cited from [25] the inclusion of the word "generally" makes it clear that the court was not purporting to lay down an inflexible rule.[31]In R v AWA [2021] EWCA Crim 1877 at [33] the court confirmed that it does not automatically follow that the victim of a sexual offence is particularly vulnerable due to personal circumstances whenever he or she is asleep; it depends on the circumstances, as both the facts of that case and the facts in R v Iqbal [2024] EWCA Crim 689 illustrate.[32]In the present case, as is generally so, the sleeping C was particularly vulnerable due to her personal circumstances when the assault began. Whilst awake, she had made clear her refusal of consent to any sexual activity. The offender was only able to penetrate her vagina with one or more fingers because she was asleep. That was why he felt he could do it, as is evident from his repeating the same conduct moments later in the mistaken belief that C was still asleep. C's vulnerability is illustrated by the fact that, although she could give evidence as to how long the contact lasted after she awoke, she cannot know for how long it had lasted whilst she was asleep.[33]The starting point for sentence was therefore 6 years' imprisonment. It was not some other point in the category range, nor was it a point on the cusp of two category ranges. We reiterate yet again that once the appropriate category has been identified in accordance with section 60(4)(a) of the Sentencing Code, there is only one starting point, namely that which the guideline specifies for that category. It was, however, appropriate to make an initial adjustment downwards from the starting point to reflect the fact that C's particular vulnerability was of short duration, because she awoke and was able to move away. But for that short period of particular vulnerability, the case would have fallen within category 3 harm. The judge was therefore correct to make such an adjustment, though he was incorrect to refer to it as taking a different starting point.[34]The judge then had to consider the aggravating and mitigating factors. In relation to count 2, the continuation of the assault after C had moved away was a significant aggravating factor. Although the judge was right to treat immaturity as a mitigating factor, the weight to be given to it could not be substantial. The offender knew that C did not want any sexual activity, and his taking advantage of her was as much a product of his selfishness as of his immaturity. In our view the mitigating factors outweighed the aggravating factors, though not to the extent which the judge appears to have found.[35]We conclude that after a trial the sentence for count 2, being as favourable as possible to the offender, could not properly be less than 3 years' imprisonment. We can see no justification for allowing credit of more than 10% for the very late guilty plea. Speculation as to what might have happened with count 1 if that plea had been entered earlier is of no relevance when considering what credit was appropriate for the plea to the count 2 offence. In truth, the offender could not have complained if credit of less than 10% had been allowed. Thus the appropriate sentence for count 2, before consideration of totality, was not less than 2 years 9 months' imprisonment.[36]We would add that the domestic context of this offending made it more serious. In the circumstances of this case it is necessary to be careful to avoid double counting; and in our view the placing of the offence into category 2 harm sufficiently reflects C's vulnerability, which stemmed in part from her feeling able to trust the offender not to assault her as she slept. But if the judge had, wrongly, placed the offence in category 3 harm, then the breach of trust and the domestic context of the offence would have necessitated a significant upwards adjustment from that guideline starting point.[37]As to count 3, we accept Ms Przybylska's submission that it was necessary for the judge either to impose a consecutive sentence or, if concurrent sentences were imposed, to make a significant increase in the count 2 sentence to reflect the overall criminality. The count 3 offence added significantly to the overall criminality, involving a different type of offence, at a later date, committed out of vindictive spite and adding to C's distress. The judge did not explain why he felt it appropriate to impose a sentence which did not add to the sentence on count 2.[38]In our view the appropriate sentence on count 3, viewed in isolation, was not less than 12 months' imprisonment after trial, with a reduction to 8 months to reflect the early indication of guilt. Making a generous allowance for totality and giving as much weight as we can to the offender's personal mitigation, we cannot see that a total sentence in the court below of less than 3 years' imprisonment can be justified.[39]We understand the judge's reasons for wanting to pass a sentence which would assist the offender's rehabilitation, and we do not want to discourage judges from leniency in an appropriate case. But here, in our view, the seriousness of the offending meant that only immediate imprisonment for a term longer than 2 years could be justified.[40]We recognise, of course, that this decision will be a difficult one for the offender to take. Conscious of that, and conscious also of the period which the offender has spent since sentence subject to and complying with the terms of the suspended sentence order, we can properly make some further reduction in the appropriate sentence which we have indicated.[41]We are nonetheless driven to the conclusion that the sentences imposed by the judge were unduly lenient. We therefore grant leave to refer. We quash the sentences imposed below. We substitute for them terms of imprisonment of 2 years 9 months on count 2 and 8 months on count 3. Those sentences will be concurrent, making a total of 2 years 9 months' imprisonment. As a consequence the offender becomes liable indefinitely to the notification requirements. The restraining order imposed below remains unaltered. Ms Duckworth, the practical consequence is that the offender must, as quickly as possible, surrender to the nearest police station. MS DUCKWORTH: Yes. THE VICE-PRESIDENT: Can you assist us with that? MS DUCKWORTH: It is Bolton Police Station. THE VICE-PRESIDENT: Yes. MS DUCKWORTH: I am very grateful to my learned friend, who has had communication from the officer in the case in relation to that. THE VICE-PRESIDENT: Yes. MS DUCKWORTH: The offender has been working away and was due to join this hearing via video link this morning. I know that he has not joined this afternoon. Would the court allow until perhaps tomorrow morning-- THE VICE-PRESIDENT: No. MS DUCKWORTH: -- for the offender to surrender? THE VICE-PRESIDENT: No. I am sorry. Where is he at the moment? MS DUCKWORTH: My instructing solicitor has been unable to confirm that for me through the course of the hearing. We had expected him to join. I have not had any further communication. He had been working actually in the south of England. THE VICE-PRESIDENT: Yes. MS DUCKWORTH: And we had given consideration to him attending in person, but arrangements would not have been possible for him to surrender to this court and so he would be surrendering to a local police station. THE VICE-PRESIDENT: Understood, and thank you for those efforts, but he has no doubt been advised of the court's powers and the risk that the outcome of the hearing might be a need to surrender. MS DUCKWORTH: He has been, yes, my Lord. THE VICE-PRESIDENT: And he no doubt has a mobile phone. MS DUCKWORTH: Yes, I understand so.42. (The Bench conferred.)43. Is there anything else you want to raise, or Ms Przybylska, anything else you want to raise? MS PRZYBLSKA: No.44. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof.45. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE46. Tel No: 020 7404 1400 Email: Rcj@epiqglobal.co.uk