As many people may know, the sentencing guidelines in relation to sexual offences relates to the Judicial and Governmental Guidelines in relation to how a person should be sentenced.
These guidelines often come with three categories of culpability (A, B and C) and two categories of harm (A and B).
The Allegation Against Our Client
We wish to give you an example of one of our clients who had been in a nightclub and “pinched the bottom” of a random female.
Of course he should not have done this. It is quite wrong for anyone to touch, sexually or otherwise, another person, especially one they do not know without the consent of the person being touched.
With that aside, many may say “He only pinched her bum”.
Whatever your view on this, you may feel that a custodial sentence would have been far too draconian and “over the top” for what is after all, “minor” offending when one considers the extent of sexual offences that one can commit.
The complainant indicated that she was wearing short shorts and leggings and that when our client had “pinched her bottom” one of his fingers had passed through the inner part of her shorts (close to her thigh), and pushed her leggings into her vagina, thereby penetrating her vagina with his finger.
There was CCTV of the incident which was unclear save and except for our client clearly touched the female’s bottom.
Negotiations With the Police and CPS
We negotiated with both the police and the CPS to the extent that our client accepted that he had pinched the female’s bottom and initially we sought to have the matter resolved by way of the client pleading guilty to a common assault.
The CPS would not accept a plea in these terms, particularly because the female in question, did not want this to be the case.
Sentencing Categories and Psychological Harm
The guidelines for such an offence, if in category 1A, include “severe psychological impact” on the complainant.
The complainant prepared a victim personal statement (VPS) which nearly all complainants (before somebody is convicted, and who become victims once someone has pleaded guilty or been found guilty) draft a VPS.
In this VPS she indicated that she was so traumatised that she dare not go out and so on and she provided one of the most extreme VPS’s that we have ever seen.
Psychiatric Evidence Before Sentence
Not only this, on the day that we attended at the sentencing hearing with the client having pleaded guilty to a sexual assault contrary to Section 3 of the Sexual Offences Act 2003 (a sexual assault without penetration) we were presented, 5 minutes before the court hearing, with a psychiatric report that had been self-commissioned by the complainant who indicated that she was so traumatised that she was suffering from “severe psychological impact” of the touching.
She continued to indicate in her VPS, despite the fact the client wasn’t charged with such an offence, that her vagina had been penetrated, through her shorts and leggings, by our client’s finger.
Our client was not charged with this and it was not before the Sentencing Judge for consideration.
Category 1 vs Category 3 Sentencing
However, because of the report that she had self-commissioned, the judge could not say that her alleged “severe psychological impact” was untrue whereas, without the report, we, as solicitors and barristers could have argued that there was no evidence whatsoever to support her finding and the client should have been sentenced in category 3A which would have given him no possibility of an immediate prison sentence.
A category 1 offence had a starting point of 4 years in custody after a trial (with a maximum one third credit for having pleaded guilty) and a range of between 3 and 7 years.
A category 3 offence had a starting point of 6 months in custody with a range of a High Level Community Order up to 1 year in prison.
The disparity is grave.
The Sentence Imposed
The judge eventually sentenced our client to a 16 month suspended prison sentence, suspended for 18 months together with a 200 hours Community Order, 20 rehabilitation days and a small amount to pay towards prosecution costs.
He accepts that he has done wrong and we accept that he did wrong however the nature of the sentence appears, on the face of it, excessive in relation to the nature of the offending.
Concerns About Future Cases
Our concern is two-fold. One, if and when this story becomes public knowledge, how many more complainants are going to draft a VPS in the same terms as this one and/or obtain psychiatric reports to say that they are suffering “psychological impact” simply in order to have a defendant potentially sentenced to a term of imprisonment as opposed to any other means of disposal.
Potential Appeal by the Attorney General
Two, the Attorney General, who is a senior solicitor in the country, has a right to appeal a sentence in the same way that someone who has been convicted has.
We are concerned that the Attorney General will look at the sentence as being too lenient in light of the fact that a suspended sentence has been ordered, and not even the maximum length of a suspended sentence is available to the court.
If the matter is referenced back by way of an appeal to the Court of Appeal in relation to the sentence, our client could yet face a term of immediate imprisonment.
Speak to Sutton Defence Lawyers
If you face any allegations of sexual offending, particularly those of sexual assault and especially those of sexual assault by penetration, and you require advice about this, please do not hesitate to contact our expert team.
You can contact us by emailing stuart@ssdll.co.uk or call 07798 753 720 to arrange a confidential discussion.
Frequently Asked Questions
What is a sexual assault offence?
Sexual assault involves unwanted sexual touching without consent under the Sexual Offences Act 2003.
Can a victim personal statement affect sentencing?
Yes. A VPS can influence how the court assesses harm and psychological impact.
What is the difference between Category 1 and Category 3 offences?
Category 1 offences are treated as more serious and carry much higher sentencing ranges.
Can the Attorney General appeal a sentence?
Yes. The Attorney General can refer a sentence to the Court of Appeal if considered too lenient.
Can CCTV evidence help in sexual offence cases?
Yes. CCTV footage can support or challenge allegations and may affect charging decisions.
What sentence can be given for sexual assault?
Sentences range from community orders to imprisonment depending on culpability and harm.
Can psychological reports influence sentencing?
Yes. Psychiatric or psychological evidence may affect how the court categorises harm.
Should I get legal advice if accused of a sexual offence?
Yes. Early legal advice can make a significant difference to the outcome of a case.
