In order for the Crown to prove assault by penetration, they will have to satisfy a jury that:
- The Defendant intentionally penetrated the vagina or anus of another person with a part of his body or anything else;
- The penetration was sexual;
- The other person did not consent to the penetration; and
- The Defendant did not reasonably believe that the second person consents.
Your case may be that you have been mistakenly identified, or that the alleged victim consented, or that you reasonably believed that the alleged victim consented. What each of these has in common is the need for skillful cross examination, and you want to make sure that you have the best criminal barrister to defend you.
Appeal Court decisions in relation to cases of assault by penetration
Despite inadmissible opinion evidence from prosecution witnesses having been adduced before the jury, convictions for sexual assault and assault by penetration were safe.
Despite the absence of certain evidence at trial, the appellant’s convictions for sexual assault and rape of his half-sister were safe, because the totality of the trial process including the directions given and the summing up was fair.
A grandfather’s convictions for the sexual abuse of his granddaughter were upheld. There was no proper basis for rejecting the granddaughter’s original complaints, which had been detailed in her ABE interview and maintained throughout the trial, and the reliability of a retraction statement she made shortly after sentencing had to be rejected.
The Criminal Cases Review Commission had been justified in refusing to refer the claimant’s two convictions for sexual offences to the Court of Appeal. The fresh evidence on which he had sought to rely did not give rise to a real possibility that the convictions would not be upheld.
A total extended sentence of seven years and six months’ imprisonment for historic offences of attempted buggery, indecency with a child and indecent assault on a man committed by an individual aged 20-25 against his neighbour aged 10-14, whilst lenient, was not unduly so. Although aspects of the judge’s reasoning had been flawed, the offences had very unpleasant features and there had been an element of grooming, no violence had been used.
A sentence of four months’ imprisonment for assault by penetration by an individual against his partner of 23 years was unduly lenient; offences committed in the domestic context were no less serious than those committed in a non-domestic context. The sentence was quashed and was replaced by one of 21 months’ imprisonment suspended for 24 months.
Evidence of a step-father’s controlling behaviour towards his wife and step-son had been relevant evidence at his trial for 16 sexual offences against his step-daughter, as his defence was that his step-daughter was lying and exaggerating his controlling behaviour and the evidence was relevant to the issue of her credibility. A total sentence of 22 years’ imprisonment was not manifestly excessive.
It was appropriate to reduce an extended sentence of 19 years’ imprisonment imposed on a offender following his guilty plea to assault by penetration where he had lain in wait for a victim in a car park late at night and then assaulted a lone female and threatened to kill her. Despite the significant degree of planning, the element of opportunism and lack of sophistication in the offence had to be borne in mind, and in those circumstances an overall extended sentence of 15 years’ imprisonment was appropriate.
Sentences of nine years’ imprisonment were neither unduly lenient nor manifestly excessive for two offenders who had raped an intoxicated young woman in an alleyway outside a nightclub. It had been appropriate not to impose a consecutive sentence for digital anal penetration by one of the offenders.
A suspended sentence of two years’ imprisonment was increased by lifting the suspended element and imposing an immediate two-year custodial sentence, for an offender who had pleaded guilty to ten counts of historic sexual abuse. The court noted that this was an exceptional case, in which the offender had volunteered the fact of a second victim, and said it should not be treated as a precedent.
An acquittal on counts of rape and assault by penetration would be quashed and a retrial ordered where the complainant had left the country after giving an achieving best evidence interview and the Crown had offered no evidence at trial. There was new and compelling evidence in the form of the complainant’s evidence which was available when she returned to the country, and a retrial would be in the interests of justice.
A total sentence of four-and-a-half years’ imprisonment imposed on an offender following his conviction for a number of sexual offences committed against his stepdaughter over a five-year period was unduly lenient. The sentence was increased to seven years’ imprisonment.
An offender’s conviction for assault by penetration of the vagina had not been inconsistent with his acquittal for offences of attempted rape and sexual assault by anal penetration. Nor could his conviction be overturned on the grounds that the judge had given the jury a Watson direction at the same time as a majority verdict direction, as there was no evidence that the jury had been pressured into delivering compromise verdicts.
A discretionary life sentence imposed under the Powers of Criminal Courts (Sentencing) Act 2000 for assault on a child under 13 by penetration was not excessive. The offender was a predatory paedophile with previous convictions for sexual offences against children and the offence was of sufficient seriousness to warrant life imprisonment.
A sentence of detention for public protection with a minimum term of four years imposed on an offender for attempted rape and assault by penetration was unduly lenient and a minimum term of six years was substituted.
Although imprisonment for public protection was a sentence of last resort, it was appropriate where there was nothing to say that the risk posed by a dangerous defendant would be significantly reduced by the time of the projected release date from a determinate or extended sentence.
The court upheld the convictions of a male nurse for several counts of sexual assault upon women patients who were coming round after general anaesthetic in circumstances where the offender claimed that the complainants had experienced false memories as a side effect of the anaesthetic and the judge had given an appropriate direction to a jury in relation to its consideration of the evidence of several complainants for an assessment of the likelihood of the coincidence.
It could not be emphasised too much that where a woman was too ill or too unfit, for whatever reason, to consent to sexual activity she had to be left alone, and the exploitation of her vulnerability would be an aggravating rather than a mitigating feature.
A notional determinate sentence that equated to 30 years’ imprisonment before a one-third reduction for guilty pleas, which had formed the basis for calculating the specified minimum term of a life sentence imposed for 28 counts relating to the sexual abuse of five boys, was excessive and reduced to 20 years.
A sentence of six years’ imprisonment imposed following a guilty plea to an offence of assault on a child by penetration was manifestly excessive as, despite the abuse of a position of trust, the penetration had been minimal and there had been no physical harm caused to the two-year-old victim.
A sentence of 20 years’ imprisonment for 13 counts of sexual offences involving young children, including rape, was not manifestly excessive as although R. v Millberry (William Christopher)  EWCA Crim 2891,  1 W.L.R. 546 indicated that the appropriate starting point for a campaign of rape was 15 years, that was a starting point and not a finishing point, and the definitive sentencing guidelines applied.
A judge had been entitled to recommend the deportation of an offender despite a failure to provide notice as required by the Immigration Act 1971 s.6(2), since the offender and his counsel had been aware of the issue and had made submissions at the relevant time.
A community sentence was not unduly lenient where the offender had pleaded of guilty to an offence of assault by penetration contrary to the Sexual Offences Act 2003 s.2(1) on the basis that he was mistaken as to the identity of the victim, believing her to be somebody else, who would have consented to his advances.
The absolute discharge of a mentally-impaired defendant following convictions for indecent assault committed many years in the past was unduly lenient in that it failed sufficiently to take into account the interests of the victims.