R v Bounekhla

R v Bounekhla [2006] EWCA Crim 1217

Starting point for sentencing sexual assault

Facts

The defendant was convicted of three counts of sexual assault after he deliberately and surreptitiously ejaculated on women while dancing with them, distressing them considerably. He was given two concurrent sentences of imprisonment for public protection under s.225 of the Criminal Justice Act 2003, with a minimum custodial term of two and a half years, and a third concurrent custodial sentence of four years.

Issues

The defendant argued that the sentences given were excessive, and should be reduced.

Decision/Outcome

The Court of Appeal allowed the appeal, quashing and substituting the sentences. The Court of Appeal explained that the judge had effectively treated the starting point for sentencing the first two offences as a seven and a half year custodial sentence, with a one-third discount for an early guilty plea, half of which would be served in custody and half on parole.

Previous case law had identified the starting point for sentencing an unmitigated and non-aggravated case of rape as five years custody (Millberry [2003] 2 Cr App R(S) 142), while the starting point for assault by penetration was four years (Attorney General’s Reference No 104 of 2004 [2005] 1 Cr App R(S) 117). The defendant’s acts of sexual assault were obviously less serious than these two offences, and so such a high starting point was patently inappropriate.

As to the third sentence, the court believed it was more ‘straightforward’ to use the same notional determinate sentence as was used for the first two offences.

As a result, all three sentences were quashed and substituted with a notional determinate sentence of three years (taking into account the one-third discount for an early guilty plea) and thus a minimum custodial period of 18 months.