R v Cail Sweetland

The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where an allegation has been made that 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 section 3 of the Act. This judgment will avoid referencing personal details that might identify the victim.

On 4 November 2024 in the Crown Court at Cardiff the appellant was sentenced to a total of eight years one month's imprisonment for offences of assault by penetration, unlawful wounding and assault occasioning actual bodily harm. He had pleaded guilty to those offences at an earlier hearing when the matter was listed for trial. The unlawful wounding charge was added to the indictment on the day of trial, the appellant having initially been charged with causing grievous bodily harm with intent. The appellant appeals against his sentence with the leave of the single judge.

All the offences arose out of a single incident in March 2023. The appellant and the victim had been in an on/off relationship. On the night in question they had both been drinking and they had argued. They travelled from Bridgend to Cardiff where they went to stay in a hotel. The arguments continued.

While in the hotel room the appellant was abusive and insulting to the victim. During the argument she fell to the floor by accident. The appellant then assaulted her, ripping off her bodysuit, leaving her naked on the floor. He pulled her hair, slapped her and kicked her. When the victim began crying the appellant became angrier. The victim began calling him a woman beater and a monster, which led to the appellant becoming angrier and pouring drinks over her. He also emptied the contents of her handbag over her. The victim described herself as being on the bed, naked, cold and shivering. During the attack the appellant bit her to her legs. When she screamed he bit harder. The victim pleaded with the appellant to stop but described that there was no getting through to him.

The appellant left the room on more than one occasion but returned and persisted in the attack, during which he struck the victim to the head and put his fingers up her anus. The victim described him stretching her anus and hurting her. This caused her to cry further and to scream. The appellant left again. When he returned the victim was hiding behind the door. As she walked towards the bed the appellant struck her with a vodka bottle which smashed and left her bleeding with a cut to the head. She described the pain as excruciating. She believed that she had lost consciousness at that point. She woke up to see the appellant was still there. He left again. By the time he returned the victim had been able to lock the door keeping him out and he then left the hotel.

The hotel receptionist found the victim lying on the floor with blood and glass in her hair. She described the victim as being in a state of extreme distress. The room was messy with glass on the floor and blood on the walls. The victim was taken to hospital where it was noted that she had a headache and bruising to her forehead and scalp. She had bite wounds to her thigh and to the left shin.

In a victim personal statement prepared 18 months after the event, the victim described the significant psychological effect the assault had had on her. She had suffered a deterioration in her mental health for which she sought treatment. Her son had also been impacted and she had received help from social services.

When arrested and interviewed the appellant provided a prepared statement claiming that the victim had a history of making up allegations. He alleged that they had had consensual sexual intercourse before arguing and he denied causing any injuries to her.

The appellant, who was aged 22 at the date of the offending and 24 when sentenced, had only one previous conviction relating to road traffic offences. A pre-sentence report noted that he was somewhat immature. He had a history of post-traumatic stress as a result of a humiliating attack on him when he was aged 16 and was on anti-depressant medication. He smoked cannabis regularly and had a tendency to binge drink but reported that he had reduced his intake of alcohol since the offence, being aware of the impact it had on him. He was assessed as posing a high risk of causing serious harm to future intimate partners, particularly after drinking. Character references placed before the court showed that there was a more positive side to him.

The judge explained that the three offences represented one course of conduct and treated the sexual assault by penetration as the lead offence, taking account of the totality of the sexual and physical violence. Applying the sentencing guidelines for assault by penetration he said there were multiple Category 2 factors. This was a prolonged and sustained incident lasting around two hours, but it was the nature of the significant violence that was particularly concerning. That went far beyond what was inherent in the offence. The victim was repeatedly assaulted by slapping, striking and biting her as reflected in the assault occasioning actual bodily harm count. The appellant had also smashed a bottle over her head as reflected in the section 20 wounding. The judge then said that there were further Category 2 factors namely "the surrounding circumstances, the nature of the anal penetration, the way in which she was left naked and vulnerable in the room." He said that the combination of harm Category 2 factors put this "into the top of harm Category 2, if not in fact into harm Category 1." Culpability was placed into Category B about which no complaint is made.

The judge then said that the upper end of Category B2 did not actually reflect the totality of the appellant's offending. He said that a sentence in the B1 range of 10 to 15 years arguably better reflected all that the appellant had done. He said that he was not double-counting but reflected the overall picture of the course of conduct to move into Category B1. The fact that the offence was committed under the influence of alcohol and that the victim was intoxicated and vulnerable further aggravated the offending. However the judge acknowledged that there was mitigation. He accepted the appellant was genuinely ashamed of what he had done and had genuine remorse. He took account of the lack of any relevant previous convictions and the character references. He said that the strongest mitigation related to the appellant's age and immaturity and his own mental health issues which had been exacerbated by a period on remand in relation to a matter that was not proceeded with. The judge relied upon the mitigation to bring the sentence which he would have passed after trial down from the B1 category to the top of Category B2, that is nine years' imprisonment. He allowed 10 per cent credit for the guilty pleas entered on the day of trial to arrive at the sentence of eight years one month. In respect of the other offences, that is the assault occasioning actual bodily harm and the section 20 wounding the judge passed concurrent sentences of two years' imprisonment on each count.

By his grounds of appeal the appellant contended that the judge erred in treating the assault by penetration as the lead offence. It was submitted that the penetration was incidental to the drunken assault rather than the assault laying the ground for the digital penetration. It was also submitted that it was wrong to elevate the offence from Category 2 harm to Category 1. Further, the appellant submitted that the judge failed to allow sufficient credit for his guilty pleas and for his mitigation, including his genuine remorse and shame, his immaturity at the time of the offence, his mental health, the steps he had taken since his arrest to address his excessive drinking, his lack of relevant previous convictions and the character references.

Miss Lewis in her oral submissions to us did not maintain the first ground, namely that the judge was wrong in treating the assault by penetration as the lead offence. She did however maintain the two other lines of argument. In doing so she acknowledged that it was open to the judge to take account of the surrounding violence in arriving at the total sentence but she argued that the judge then effectively double-counted by relying on some of the factors that he had relied on to elevate the assault by penetration from Category 2 to Category 1 harm and by then uplifting the sentence further to take account of the physical assault. She also argued that insufficient account was taken of the significant personal mitigation in this case and that the judge failed to allow the appellant sufficient credit for his guilty plea in circumstances where the first time that the appellant faced the section 20 charge and the first time that the prosecution acknowledged that they could not maintain the original section 18 charge, which related to an allegedly more serious injury, was the date of trial when the appellant entered his plea.

We consider that the judge was right to structure the sentence in the way that he did. The deliberate digital penetration of the victim's anus cannot properly be described as merely incidental to the other violence. It was a serious sexual assault causing the victim pain and humiliation in the context of an extended episode of violence. The judge was right to identify this offence as the lead offence and to pass a sentence on that count which reflected the totality of the offending. We also consider that the judge was correct in his approach to credit for the guilty pleas. We acknowledge that the count representing the section 20 wounding was not added to the indictment until the day of trial. However up until that point the appellant had entered not guilty pleas to all matters, apparently maintaining the stance he had taken in interview that he had done nothing wrong and caused no injury whatsoever to the victim.

While it would have been open to him to indicate that he would plead guilty to section 20 wounding at an earlier stage, we are prepared to accept that he is entitled to full credit in relation to that one count since he pleaded guilty when it was first put to him.

Nevertheless, we are unable to accept that this translated into an entitlement for greater credit in relation to the overall sentence. Credit of 10 per cent overall in our judgment properly reflects the stage at which the appellant first acknowledged his guilt in relation to the matters for which he was sentenced.

The individual sentences for the assault and wounding offences were each within the appropriate range having regard to the sentencing guidelines and even after allowing full credit for the guilty plea on the section 20 matter.

The only issue that remains is whether the overall sentence which the judge passed for this sexual assault by penetration was manifestly excessive. The factors identified by the judge, namely the surrounding prolonged violence, additional degradation and the victim's vulnerability placed this offence into harm Category 2. The starting point in the guidelines for a Category 2B offence is six years with a range of four to the nine years.

This, in our view, was not the easiest sentencing exercise. As the judge properly identified, there was a need to avoid double-counting. Although the appellant was sentenced for three offences, the surrounding violence was a significant part of the justification for placing the offence into Category 2B. Individually the factors identified as justifying placing the offence in that category were not extreme in the context of this type of offending. However, the fact that there were multiple Category 2 factors undoubtedly made the offending more serious. We agree with the judge that this required a starting point above the Category 2B starting point of six years.

Where we find ourselves in respectful disagreement with the judge is in relation to his view that the combination of Category 2 factors were such as to elevate the offence into Category 1. We consider that it was appropriate to sentence within the Category 2B range, albeit that the offending fell towards the upper end of the range represented by that category.

After taking account of the appellant's personal mitigation, including his age, his lack of maturity and his mental health condition, the absence of any relevant previous convictions and his character references, his remorse and the fact that he had begun to address his drinking behaviour, we consider that an appropriate sentence after trial would have been one of seven-and-a-half years' imprisonment. After allowing credit of 10 per cent for the guilty plea, this reduces the overall sentence to six years nine months' imprisonment.

We accordingly reduce the sentence on count 4 to six years nine months' imprisonment. The sentences on counts 1 and 3 remain two years' imprisonment on each count concurrent to the sentence on count 4 and, as before, 150 days will count towards the sentence reflecting time on an electronically monitored curfew. To that extent this appeal is allowed.