R v Cole Riley

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 1992 Act. Accordingly, this judgment is anonymised.

The respondent was born on 27 September 2004. At the time of the offence, in June 2023, he was 18 years old. On 5 September 2025 in the Crown Court at Nottingham, the offender pleaded guilty to an offence of assault by penetration, contrary to section 2(1) of the Sexual Offences Act 2003. On 11 November 2025, at the same Crown Court, he was sentenced by HHJ Warburton to a sentence of 2 years' imprisonment suspended for 2 years. To the suspended sentence order there was attached a requirement of 20 days RAR and 200 hours' unpaid work. A sexual harm prevention order was imposed to last for 10 years. A restraining order was imposed to last until further order.

Having been convicted of an offence listed in Schedule 3 to the Sexual Offences Act 2003, the offender was required to comply with the provisions of Part 2 of that Act for a period of 10 years relating to notification to the police. Having been convicted of an offence specified in the schedule to the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009, the offender will or may be included in the relevant list by the Disclosure and Barring Service.

In this Court the Registrar has drawn our attention to the fact that the record sheet in the Crown Court records that a surcharge was imposed in the sum of £187. However, it would appear from the sentencing remarks that the judge did not actually impose that, although she had a duty to do so pursuant to section 42 of the Sentencing Act 2020 (or the Sentencing Code). On authority of this Court, in an earlier decision, it is clear that the surcharge cannot be imposed administratively. This Court does not have the power to impose one now. We accordingly direct that the Crown Court record should be corrected to reflect the accurate position.

We should also note that the imposition of a sentence of "imprisonment" on a person aged under 21 is prohibited by section 227 of the Sentencing Code. In this case the respondent was aged 20 at the date of conviction. The sentence was wrongly pronounced to be a sentence of imprisonment and the Crown Court record sheet records it as such. Again, we direct that the record should be corrected because the sentence was in fact a sentence of detention in a young offender institution.

His Majesty's Solicitor General now applies for leave under section 36 of the Criminal Justice Act 1988 ("the 1988 Act") to refer the sentence to this Court on the ground that it was unduly lenient.

The facts are not in dispute for present purposes and are summarised in the Final Reference at paragraphs 6 to 17. The victim in this case ("C") was born on 28 June 2008 and was aged 14 at the time of the offence. The respondent and C were known to each other as their families had been long-standing friends and used to spend a lot of time together. C was friends with the offender's sister (aged 15) and at the time of the incident they had been friends for around 8 years. There had never been any suggestion of romantic involvement between C and the offender. At the relevant time C had a boyfriend and the offender had a girlfriend.

On the evening of Friday 23 June 2023, C had travelled to the offender's sister's house and was to stay there overnight. During the course of the evening the offender, his girlfriend, his older brother and some of their other friends were at the address socialising. The offender was drinking alcohol, doing "bongs" of cannabis and taking cocaine. C and his sister had not consumed any alcohol or taken any drugs. The offender's father was present at the address.

In the early hours of Saturday morning C and the offender's sister went to bed. They were sharing a double bed in the mother's bedroom as she was away. The sister fell asleep around 3 o'clock in the morning and C did so sometime before. At some time around 6.00 or 7.00 in the morning C heard somebody (in fact this offender) enter the bedroom and walk back and forth. Prior to this C had been asleep. She was facing away from the person. The offender walked to the bed and behind where C was lying on her side. She was wearing pyjamas which consisted of a pair of shorts and a top. He did not get onto the bed but appeared to kneel behind C and whispered her name. She recognised the voice as belonging to the offender. She did not turn around. He moved the covers and ran his hands across her body touching her bottom. While doing so he repeated: "Don't tell anybody. Please don’t tell anybody". C's body froze. The touching of her body lasted around 2 minutes. C continued to face away from the offender and then felt him pull her shorts and underwear to one side. She felt him put something inside her vagina. She was not sure whether this was his penis or his hands and it was inside her for approximately 5 seconds. She said it hurt. He then said to her: "You should come round more often and we can do this." C did not respond at any stage and simply lay there. She said that after around 5 minutes the offender left the room. Once he had left C started crying hysterically and woke his sister up. C immediately told her what had happened. The sister texted her mother what C had told her and she also told her older brother who had been sleeping in her bedroom that night. He confronted the offender which prompted the offender to confront C and ask her why she had made such allegations. Shortly afterwards the offender placed bricks into his pockets and jumped into a canal close to the rear garden of the address. Both his brother and his father assisted in retrieving him from the canal. When asked why he had jumped into the water he said: "Didn't want to live with the name of being a rapist". The police were called and intimate swabs were taken from C. Subsequent forensic analysis showed a trace level of the offender's sperm cells on vaginal swabs taken from her.

The offender was arrested on 24 June 2023 and was interviewed that day. In interview he accepted going into the bedroom, lying on the bed and putting his arm over C but denied any form of penetration. He accepted drinking and that he had probably smoked a spliff of cannabis and may have done a line of cocaine. He was unable to account for the DNA findings. C provided a video recorded interview on 2 December 2023. The offender was charged with an offence of rape and sexual assault on 6 February 2025. On 13 March 2025, at the Derby Justice Centre, he was sent for trial at Nottingham Crown Court. On 10 April 2025, at the plea and trial preparation hearing (or PTPH) the offender was not arraigned on the then two-count indictment. At that stage, the offender offered to plead guilty to an alternative offence of assault by penetration, and the prosecution were given time to consider their position.

On 13 May 2025, at the adjourned PTPH, the prosecution applied to amend the indictment by the deletion of count 1 (an offence of sexual assault) and indicated that they would proceed on the single count of rape. The offender was arraigned and entered a not guilty plea. The prosecution further indicated that a plea to the offence of assault by penetration was not at that time acceptable. A trial date was fixed for September 2026. The matter was listed for mention on 11 July 2025, so that an update could be obtained on the forensic evidence in the case. By 11 July 2025 the forensic work had still not been completed and the matter was again listed for mention on 5 September 2025. By that date the forensic work had been completed. It did not advance a case of rape. Consequently the prosecution indicated that a plea to assault by penetration was acceptable. This charge was added to the indictment as count 2. The offender entered a guilty plea. A pre-sentence report was ordered and the matter was adjourned for sentence, at that time to 7 September 2025. In fact he was sentenced on 11 November 2025. At the end of the sentencing hearing the prosecution offered no evidence in respect of the offence of rape on count 1 and a not guilty verdict was recorded on that.

The maximum sentence for an offence of assault by penetration is life imprisonment. The Sentencing Council has promulgated a Definitive Guideline on this kind of offence. That guideline requires the sentencing court to determine the offence category by reference to culpability and harm.

So far as culpability is concerned, it is common ground that none of the culpability A factors was present in this case. This case fell into culpability category B.

Note should also be made of the Guideline on Sentencing Children and Young People and the general guideline: Overarching Principles, which particularly makes reference to young adults who are aged between 18 and 25. Finally, reference should be made to the guideline on the Imposition of Custodial Sentences which will be relevant to our consideration of whether it was appropriate to impose a suspended sentence order.

In R v Clarke [2018] EWCA Crim 185; [2018] 1 Cr App R(S) 52 at [5], in giving the judgment of this Court, Lord Burnett CJ emphasised that reaching the age of 18 has many legal consequences but it does not present "a cliff edge" for the purposes of sentencing. He said:

The offender had no previous convictions, cautions, reprimands or warnings recorded against him. The sentencing court had, as this Court has been able to consider, various documents. There was a Sentencing Note prepared by the prosecution and one for the defence. There was a pre-sentence report.

There was a victim personal statement from C. This stated that she suffered paranoia through trauma. She had become suspicious of everyone including her mother and had lost trust in everyone. The offence had led to arguments and disruption at home. She had moved out of her house and went to live with her father as she needed to get away from thoughts of what had happened. She had left her friends and everything she knew. She was no longer friends with the offender's sister. She was accused by other people of lying and this had caused great distress. She had struggled to stay in school and then completely dropped out consequently attaining only one GCSE although she was now studying in college again. She had developed fear and anxiety related to any male being behind her including her boyfriend.

In her sentencing remarks the judge said that she had considered the guidelines for this offending with the utmost care, because this type of offending inevitably causes serious distress and anxiety which can in some individuals last for a long period of time. It was not at all uncommon, she said, for victims of sexual assaults to have the sort of reaction that was described by C. She took the view that this was not a case which falls within the territory of severe psychological harm. She did not in saying that intend to diminish the impact on C but she had to put it into the context of comparison to other cases of this type. She also said that there is no other factor which placed this offence into category 2 harm. She did not consider that C's age of itself was a factor which made her particularly vulnerable in the context of this case. Nonetheless, the judge said that she would bear that factor in mind in assessing the seriousness of the offence. Accordingly, the judge concluded that the case fell within category 3B and it was within the range recommended in that category that she had to consider what the appropriate sentence would be. The judge then took into account aggravating factors and mitigating factors. These included on the aggravation side, C's age, as that had not been taken into account in categorisation of the offence, the location of the offence, given that C was in a home that she was entitled to feel safe in and that the offender was under the influence of alcohol and drugs. She also took into account the impact on C insofar as that had not already been taken into account in categorisation of the offence. On the mitigation side, the judge took into account the offender's age, the lack of previous convictions, his remorse, the delay which there had been in the proceedings and credit for his plea of guilty. The judge mentioned in her sentencing remarks that there had been a considerable delay. The offence had occurred in June 2023 but the offender had not been charged until February 2025. He was only 18 at the time of the offending. The judge noted that he had never been in trouble before and had not been in trouble since.

Although the prosecution could not be criticised for wanting to be certain that they had the correct charge on the basis of appropriate forensic evidence, the judge said that that did not mean that the delay was in any way the fault of the offender. For the guilty plea the judge gave credit of 25 per cent. No issue is taken about that on this application.

In terms of the risk of reoffending, the pre-sentence report indicated that the assessment tools that were used gave a finding that the offender posed a low risk of reoffending. Furthermore, more than 2 years had now passed since the offence and, as the judge had previously mentioned, he had not committed further offences.

The judge noted that although the probation officer's view was that his risk may be slightly higher than the assessment tool suggests, she did indicate that she would agree with the low risk assessment were the offender to be given the opportunity to complete courses that are designed and directed specifically to address his offending behaviour and the sort of attitude that can underpin this type of offending.

In the light of everything she had read about the offender the judge believed that she could properly conclude that this is very likely to have been a one-off incident which is unlikely ever to be repeated and one that was caused or contributed to in a significant proportion by the consumption of alcohol and drugs. She had been told that he had now given those up since the birth of his son who was at that stage 6 months old.

The judge said that the appropriate sentence after trial would have been one of 2 years 8 months' imprisonment. She then reduced that to take account of the 25 per cent reduction for the guilty plea resulting in a sentence of 2 years' custody. She then suspended that sentence having regard to what is said in the Imposition Guideline. She had come to the conclusion this was not a case where immediate custody is unavoidable, there was not a risk of breach of court orders and there was a prospect of rehabilitation.

On behalf of the Solicitor General Ms Dhadda submits that the sentence was unduly lenient. Whilst she acknowledges that the judge was correct to make measured reference to the Guideline on Assault by Penetration, she submits that the judge failed to pass a sentence that reflected the seriousness of this offending. Ms Dhadda advances three main submission before this Court.

First, she submits that the offence ought to have been placed in category 2B. No issue is taken with the judge's assessment of culpability, that is category B, but it is submitted that the judge erred in placing the offence into category 3 harm because of the victim's particular vulnerability due to personal circumstances, namely her age. No reliance is placed on any other category 2 harm factor.

Reliance is placed in this context on the decision of this Court in R v M [2025] EWCA Crim 872; [2025] 2 Cr App R(S) 42, which concerned a 13-year-old victim. This Court said that she was capable of being regarded as being particularly vulnerable due to personal circumstances on the basis of her age. Reliance is placed in particular on what was said by Edis LJ at [45]:

Secondly Ms Dhadda submits that, even if the offence was properly categorised as falling within category 3B, a significant upward adjustment was warranted given the significant aggravating factors, in particular age, location and timing of the offence and also the impact on C over and above that which is inherent in this kind of offence. Further, the offence was committed under the influence of alcohol and drugs. Ms Dhadda submits that either insufficient weight was given by the judge to those aggravating factors, or undue weight was given to the mitigating factors. Accordingly, Ms Dhadda submits the custodial sentence ought to have been one of such length that it would not be capable in law of suspension; that is a sentence of over 2 years' custody.

However thirdly, Ms Dhadda submits that even if a custodial sentence of 2 years was appropriate, the judge ought not to have suspended it. She acknowledges that the judge was right to have regard to the realistic prospect of rehabilitation in the community, and that the offender did not present a high risk of reoffending or harm, but she submits the nature of this offence was such that appropriate punishment could only be achieved by immediate custody having regard to the Imposition Guideline.

On behalf of the respondent Ms Pitman submits that the length and type of sentence in this case were not unduly lenient. She submits that the judge is highly experienced and took great care in her sentencing remarks. She was entitled to place this offence within category 3 harm. Ms Pitman points out that the victim was 14 years old, having been born on 28 June 2008 and would reach the age of 15 four days after the offence. She therefore seeks to draw a distinction between this case and R v M, which concerned a 13-year-old victim. She submits that the judge was entitled to take the approach which she did, was not to ignore this factor of the case but to regard it as an aggravating factor whilst not placing the case into category 2 harm.

Ms Pitman also relies on the decision of this Court in Attorney-General's Reference (BN) [2021] EWCA Crim 1250; [2022] 1 Cr App R(S) 37, in which there were offences of sexual assault against two children under the age of 13. In giving the judgment of this Court, at [25] Holroyde LJ regarded a child in that case as being particularly vulnerable due to personal circumstances because the child was asleep. But at [26] he said that but for her being asleep the case would have fallen into category 3.

Furthermore, Ms Pitman points out that in the present case the judge made a significant upward adjustment from a starting point in the guideline of 2 years' custody to a notional sentence after trial of 2 years and 8 months. She specifically identified the age of the victim as a factor which increased the seriousness of the offence. The judge set out all other relevant aggravating factors in her sentencing remarks and also identified the relevant mitigating features. The judge then gave appropriate credit of 25 per cent for the guilty plea. As we have said, there is no criticism of that made by the Solicitor General.

Furthermore, Ms Pitman submits the judge properly had regard to the Imposition Guideline and was entitled to conclude that in the circumstances of this case the sentence could and should be suspended. She reminds this Court that sentencing is an art rather than a science. She submits that the judge dealt with this case in a careful and measured manner. The sentence cannot properly be described as unduly lenient. Where there is a real prospect of rehabilitation, she submits, both the Sentencing Council and this Court have encouraged that course to be taken rather than necessarily imposing a relatively short period of immediate custody. The judge was entitled, she submits, to form the view that the public interest in this case would be better served by facilitating the respondent's rehabilitation in the community and, further, there was an element of punishment by the requirement of unpaid work. In practice, she observes, the respondent has intensive supervision and intervention by a probation officer which is different from what is often available in a custodial setting.

Ms Pitman has drawn our attention to the progress report provided to this Court in a document dated 7 January 2026 but she submits that the risk that the offender poses can be managed in the community. She submits that it was not the intention of Parliament to subject defendants to the risk of having their sentences increased merely because a sentence was less than another court or this Court might have imposed.

Finally, in the event that this Court does grant leave to refer the sentence, Ms Pitman invites this Court not to exercise its discretion to increase the custodial term of the sentence.

The principles which govern an application under section 36 of the 1988 Act are well established and were summarised, for example, in Attorney-General's Reference (Egan) [2022] EWCA Crim 1751; [2023] 2 Cr App R(S) 16 at [3-6]. Reference was made to the earlier decisions of this Court in Attorney-General's Reference No 4 of 1989 (1990) 90 Cr App R 366, to which we will return and also to the judgment of Potter LJ in Attorney-General’s Reference No 132 of 2001 (Bryn Dorian Johnson) [2002] EWCA Crim 1418; [2003] 1 Cr App R(S) 41 at [24]. The Court summarised the principles as follows:

In the decision in Attorney-General's Reference No 4 of 1989 at page 371, Lord Lane CJ set out two features of the scheme for referring sentences to this Court as being unduly lenient under section 36 of the 1988 Act. First, he said that it cannot have been the intention of Parliament to subject defendants to the risk of having their sentences increased merely because, in the opinion of this Court, the sentence was less than this Court would have imposed. A sentence is unduly lenient where it falls outside the range of sentences which the judge applying his mind to all the relevant factors could reasonably consider appropriate. He said that it must always be remembered that sentencing is an art rather than a science, that the trial judge is particularly well placed to assess the weight to be given to various competing considerations and that leniency is not in itself a vice that mercy should season justice. The second thing he observed was that even where this Court considers a sentence was unduly lenient, this Court still has a discretion as to whether to exercise its powers to increase that sentence.

Turning to the circumstances of this case, we have formed the view that this was undoubtedly a difficult sentencing exercise in which the judge had to deal both with a victim who was a child aged 14 at the time of the offence, but also an offender who was relatively young himself at that time. The judge approached that difficult exercise with care and sensitivity. She did not underestimate the impact of this offence on the victim, and nor do we. However, we have reached the conclusion that this is not a case in which this Court can properly interfere with the sentence on the ground that it was unduly lenient.

We consider that the judge was entitled to reach the assessment that the harm fell into category 3, not category 2. We do not accept the submission that the effect of the decision in M is that on grounds of age alone the victim in this case must necessarily be regarded as particularly vulnerable due to her circumstances; we note that case was a case about a 13-year-old victim. But in any event we do not understand what Edis LJ said at [45] to suggest that there is a rigid principle to be applied across the board. Rather the approach which needs to be taken in applying the guidelines is to consider carefully the specific facts of an individual case. That the judge did in this case.

We also consider that the judge was entitled to balance the aggravating and mitigating features of this case, as she did. We note that she went up from the category starting point of 2 years' custody before coming down again to take account of the guilty plea. No complaint is or could be made about the 25 per cent credit given for that plea. The judge then carefully considered whether the custodial sentence of 2 years could be suspended having regard to the Imposition Guideline. We consider that she was entitled to reach the conclusion that she did, particularly having regard to the age of the respondent and the prospect of rehabilitation in the community. The requirements which the judge attached to the suspended sentence order did include an element of punishment. Accordingly, the sentence passed in this case can be regarded as merciful but was not, in our view, unduly lenient.

For the reasons we have given the application on behalf of the Solicitor General, for leave under section 36 of the 1988 Act, is refused.