Custodial sentence - Sexual assault

R v Borrill: Court of Appeal, Criminal Division (Lord Justice Elias, Mr Justice Eady, Mr Justice Macduff): 21 September 2011

Around 8.20am one morning, the complainant, S, aged 20, was dropped off at a city centre by her boyfriend. She was with her friend at the time and together they went to use a cash machine. The boyfriend saw the defendant, aged 50, sitting on a bench in an intoxicated state.

The defendant got to his feet and stumbled to a lamp-post. As S was using the cash machine, she felt a hand rub the inside of her leg and touch her vagina. She heard someone say 'nice arse' and turned around to see the defendant standing behind her pulling his arm away. The defendant made off grinning. The police were called and the defendant, who was at the time the subject of a Sexual Offences Prevention Order (SOPO), was traced and arrested.

The defendant had a previous conviction in 1990 for rape and in 1994 for indecent assault. He pleaded guilty to sexual assault and to breach of the SOPO. The defendant was sentenced to an extended sentence comprising five years custody and an extended period of three years for the sexual assault, and to six months' imprisonment, to run concurrently, for the breach of the SOPO. Other ancillary orders were made. The defendant appealed against sentence.

He submitted that the sentence for the sexual assault was manifestly excessive in that insufficient account had been taken of the guilty plea, his personal mitigation and the nature of the offences, including its limited duration.

The appeal would be allowed.

In the instant case, whilst it was accepted that an extended sentence was appropriate to protect the public, vulnerable females in particular, the overall sentence was disproportionate having regard to the actual offence which had been committed.

The extended sentence of eight years would be quashed and substituted by an extended sentence of six years comprising three years custody and three years extended on licence. The other orders remained.

Andrew McInniss (assigned by the Registrar of Criminal Appeals) for the defendant.