The Court of Appeal has quashed D.H.’s sentence for sexual assault and resentenced him to three years’ imprisonment, with the final 18 months suspended for 18 months on the same terms and conditions as the sentencing court imposed. He remains on the sex offender’s register.
The appeal concerned the severity of the sentence imposed on 1 February 2023. D.H. had received four-and-a-half years’ imprisonment, with the final 18 months suspended. The Court of Appeal, in a judgment delivered on 29 February 2024, found that the sentencing judge erred by setting a headline sentence of six years and six months, which placed the offence above the appropriate point in the mid-range.
The assault occurred at a party on 7 June 2020 at the home of the victim’s girlfriend, where D.H. also lived. The court’s account said D.H. invited the victim to continue drinking in his bedroom and offered him cannabis. The victim said he fell asleep, fully clothed, after consuming cannabis and alcohol. His girlfriend later found D.H. beside him, holding his penis. Forensic examination of the victim’s underwear found D.H.’s DNA in the form of saliva.
D.H. denied the offence when interviewed. He pleaded guilty two days after a jury was empanelled, but before the trial began and before evidence was heard. At the original sentencing, the judge identified the victim’s vulnerability, breach of trust and the significant impact on him as aggravating factors. Mitigation included D.H.’s clean record, cooperation, remorse and guilty plea. The sentencing court also considered a substantial financial gesture funded from mortgage savings and money borrowed from his parents.
On appeal, D.H. argued that the headline sentence was excessive, citing the single incident, the absence of force or violence, and the fact that the assault stopped when the victim’s girlfriend entered. The Director of Public Prosecutions argued that the original sentence was within the sentencing judge’s discretion, emphasising that the victim was unconscious and unable to consent after D.H. had provided cannabis.
The appeal court said the offence was serious: D.H. had taken advantage of a victim made vulnerable by cannabis and alcohol, and the victim was deeply asleep. It also noted that the assault was a single incident, there was no additional violence, and the breach of trust was not in the same category as in some sexual assault cases. The court placed the offence in the mid-range, which it said spans 40 to 60 months, and set a headline sentence of four-and-a-half years.
Taking account of mitigation, including D.H.’s remorse and progress in prison, the court reduced the sentence to three years. It suspended the final 18 months to support his rehabilitation. The judgment does not specify the terms of the suspended portion beyond stating that they are the same as those imposed below.