R v Callum Ross Kelly Johnstone

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 the offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act. For the avoidance of doubt we do not waive or lift the prohibition.

His Majesty's Solicitor General applies for leave to refer a sentence that she considers to be unduly lenient. The sentence was passed by His Honour Judge Barker in the Crown Court at Carlisle after the offender had been convicted by the jury of one offence of rape and one offence of assault by penetration. The aggregate sentence was one of six years and six months' imprisonment. We give leave.

The offender was 26 when he committed the offences and is 29 now. Apart from one relatively minor matter he was effectively of previous good character and there was a significant body of evidence attesting to his positive good character, all of which we have read and have taken into account.

On Saturday 20 August 2022 into the early hours of Sunday 21 August 2022 the victim, whom we shall refer as V, who was then aged 16 years, went on a night out with her friends in Whitehaven. She visited a number of bars in the town with her friends. She drank a large amount of alcohol and consequently became very intoxicated.

The offender was also on a night out in Whitehaven. He too had drunk an excessive amount of alcohol and had taken a small amount of cocaine.

After 2.00am the offender and V had been taking a selfie video clip on her mobile phone when the offender walked up behind her and said: "I'd shag you."

CCTV footage captured from inside the club showed that the offender was in the company of V for more than 20 minutes. The offender sat next to her in a booth. The CCTV footage showed that V was obviously intoxicated. Her head was rocking and going down. At other times it showed that she was lying back and appeared to be going in and out of sleep. V’s brother approached the offender and told him that V was only 16 years old and that she was very drunk. V’s brother also told the offender that he did not want the offender to express any sexual interest towards his sister. The offender replied that he was not interested in V in that way and was only looking out for her. As the judge found, that was a deception by the offender.

V and the offender left the nightclub when it closed shortly after 3.00 am. In the street outside the nightclub V was stumbling about and flailing her arms. She walked in a direction that was not towards her home, although that was where she hoped or intended to go. The offender followed her and then guided her to St James park. In the park the offender removed V’s underwear, digitally penetrated her vagina with his fingers and then vaginally raped her. The victim's knickers were left in the park where they were found later by the police.

After the offence was committed, V returned to the area of the town where she saw her friend and her brother and made an immediate complaint that she had been sexually assaulted. The offender was quickly identified through the video clip from the previous week in which he had made the "I would shag you" comment. He was arrested at his home address at 4.55 am. He told the arresting officer that he had been inside all day and all night.

In interview under caution the offender admitted that he had engaged in penetrative sexual activity with V in the park but he asserted that it had been consensual and that it had been led by V. He said she had given him a "blow job" before she had "jumped on top of us". He said that he had taken steps to ensure that she was consenting by telling her that it was okay if she wanted to stop, which he had done at least five times. He said that he did not ejaculate and he did not wear a condom. He admitted that he had been drunk, listing in excess of 30 drinks over the course of the night, and that he had also taken a small amount of cocaine.

On 1 September 2022, V gave a video recorded interview in which she described her recollection of events. She had little of either the journey to the park or what happened inside the park. She did recall being digitally penetrated and it being painful and her not wanting it to happen. She also recalled the offender's penis being inside her vagina and she recalled not wanting that to happen. She said that she could have said "no" but she never did because she was scared, in case the offender did anything. She said that she had never had sex before the incident.

The offender was charged with the two offences on 31 August 2023. On 14 March 2024, V attended court for a pre-recorded cross-examination. Over a year later the trial took place from 22 to 25 April 2025 at the conclusion of which the offender was convicted by the jury.

No pre-sentence report was prepared for the sentencing hearing. In our judgment none was required then and none is required now.

V had made a victim personal statement after the offender's conviction. She said that since the incident her self-confidence had completely disappeared. She had tried to pretend that it had never happened but it would always be in the back of her mind. She said that she still could not do the things she used to be able to do such as walking alone anywhere. She said that although she had started college she had started skipping lessons because she was not in the lessons with friends and eventually she made the decision to leave college because she could no longer cope with it. She had begun working in November 2023. She said that she now drank a lot less and paid more attention to what she was drinking. She had been with her partner for the last eight months and had found it hard to trust him and to feel safe around him. She still felt that the incident was raw and it felt as though it would always be hanging over her. She still felt scared of the offender and was worried that she would bump into him in the local area.

Her mother also made a statement endorsing what V had said and eloquently describing the effect of the offending on V's wider family.

In his sentencing remarks the judge made a number of important findings. The offender's previous convictions were relatively minor and did not make the situation worse. He accepted that the offender would normally present quite differently from how he had behaved on the night in question, being described by the character witnesses as gentle and loyal and having difficulties in understanding people. But on that night he had drunk excessively and was different. V was, he said, "highly intoxicated" by the time the offender came upon her in the bar. It was obvious to anyone that she was "extremely drunk". Her brother had told the offender that V was only 16 and that the offender should not express any interest in her in a sexual way. After they left the bar, she was again obviously drunk. When she set off in the wrong direction the offender followed her and it was his idea and choice to go to the park. She had little choice or involvement. The offender had specifically targeted her knowing that she was a "particularly vulnerable victim" because of her extreme intoxication. The offender himself was intoxicated which played no small part in his behaviour. The effect on V had been profound.

The judge then turned to the guidelines. Dealing first with the offence of rape, he said:

The Solicitor General submits that the judge was wrong to categorise the offence as falling within Category 3B and should instead have categorised both offences as falling within Category 2B. That would indicate a starting point for the rape offence of eight years with a category range of seven to nine years and a starting point for the assault by penetration of six years with a category range of four to nine years.

Furthermore, it is submitted that there were serious aggravating features that outweighed the mitigation that was available to the offender and which should have led to a net upward adjustment from the starting point to the sentences to be passed. Lastly, there is no indication that the judge made any adjustment to the sentence passed on the offender for the offence of rape to reflect the additional criminality of the assault by penetration. These errors singly and in combination led the judge to pass the sentences he did which in the submission of the Solicitor General are not merely lenient but unduly lenient.

For the offender, Mr Levine, who did not represent the offender in the court below, has said all that could possibly be said on the offender's behalf. He submits that the sentence is not unduly lenient. The judge was entitled to decide that the offences fell within Category 3B and so did not start too low. None of the statutory aggravating features applied and there was no evidence of severe psychological harm. The offender is a 29-year-old man, 26 at the time of the offences, of positive good character and in all the circumstances the sentence imposed was proportionate and reasonable. If we are convinced that the sentence was unduly lenient, Mr Levine submits that we should exercise restraint and should not intervene or, if we do, should not intervene more than absolutely necessary.

Before the judge below it was common ground that the rape offence (count 1) fell within Category 2B. Despite that agreement the judge categorised it as falling within Category 3B. In our judgment he was clearly wrong to do so. As he had found in the course of his sentencing remarks, V was particularly vulnerable due to her personal circumstances, namely her extreme intoxication which meant that she was in no position to influence events or to protect herself. In the light of that finding alone the rape offence (count 1) fell into harm Category 2: see R v BN [2022] 1 Cr.App.R (S) 37 at [25]. In our judgment the evidence of the psychological harm suffered by V, as found by the judge, was another factor indicating that the case should fall within Category 2 for harm. There is no dispute that the offence fell within culpability factor B. Thus the appropriate starting point was a sentence of eight years. There is no information that suggests a lower point in the category range should be taken before considering aggravating and mitigating features.

The Solicitor General rightly points to five significant aggravating features. First, the offender specifically targeted a particularly vulnerable victim. Second, the location of the offence was a public park. Third, the timing of the offence was that it took place in the early hours of the morning. Fourth, the offence was committed while the offender was under the influence of alcohol and drugs. Fifth, V was 16 years old, as he knew having been warned by her brother.

Turning to the offender's personal mitigation, it was limited to his absence of relevant convictions and the considerable evidence of his positive good character. Making all due allowance for his mitigation, it cannot come close to outweighing the adverse effect of the aggravating features.

It is important to recognise that the vulnerability of V is reflected both in the categorisation of harm within Category 2 and in the aggravating feature that the offender specifically targeted V knowing that she was particularly vulnerable. While V's vulnerability is common to both, the essence of the aggravating feature is not so much that V was vulnerable but that the offender targeted her because, as he well knew, she was particularly vulnerable. The overlap between the two features is therefore limited.

In our judgment, taking the rape offence in isolation, the judge should have adopted a starting point of eight years and should have adjusted that upwards by not less than a year to reflect the net effect of the aggravating and mitigating features. Viewing the rape offence in isolation, the lowest sentence that could properly have been passed on count 1 was one in the region of nine years. However, the rape offence cannot be viewed in isolation because the judge chose to impose concurrent sentences with the rape offence being the lead offence. He was right to adopt that course but it meant that the sentence that was appropriate for count 1 in isolation had to be adjusted to reflect the additional criminality attributable to count 2, the offence of assault by penetration.

Once again we start by viewing the offence of assault by penetration in isolation. For the same reasons as we have given in relation to the rape offence, it fell within Category 2B. Thus the starting point was six years' custody. That sentence fell to be adjusted to reflect the aggravating and mitigating features, such that if the assault by penetration had stood on its own an appropriate sentence would have been not less than one approaching seven years' custody.

It does not appear from the sentencing remarks that the judge made any adjustment to the sentence he had determined to be appropriate for the rape offence when standing on its own. What adjustment should be made in these circumstances to reflect the additional criminality of count 2? The information that is available to us and was available to the judge indicates that both offences were committed by the offender within a short period as part and parcel of one incident with him raping her soon after he had assaulted her. To some extent therefore it is right to regard the two offences as forming part of one single course of criminal conduct. Accordingly, on totality grounds it would be wrong in principle simply to aggregate the two sentences that would have been appropriate if each offence had stood on its own. That said, the assault by penetration was itself a serious offence and the offender's criminality was significantly greater by reason of his having committed the two offences than it would have been had he committed only one of them. It was therefore an error of principle for the judge to have made no adjustment at all.

In our judgment, the correct approach to the question of adjustment is to ask the question: "To what extent does the offence of penetration make the overall seriousness of the offender's conduct worse?" We ask that question in full knowledge of the starting point and category range that would apply if count 2 were to stand alone; but in reaching our answer to that question we are less influenced by the standalone position than we are by the more general question applying the principle of totality: "What is the overall effect of the additional existence of count 2?"

In our judgment, recognising that the offence of rape was in every sense the most serious aspect of his offending, and making all due allowance for the principle of totality, the least sentence that could be passed on count 1 that would properly reflect the overall criminality of the offender's conduct was one of 10 years and six months. The sentence of six years and six months imposed by the judge was wrong in principle, both in terms of categorisation and in terms of weighting the sentence for the lead offence; and it was unduly lenient.

We therefore quash the sentence imposed by the judge on count 1 and impose a sentence of 10 years and six months' imprisonment. It is not necessary to adjust the sentence on count 2.