||All England Reporter
|| All ER (D) 383 (Oct)
|| EWCA Crim 2626
||Court of Appeal, Criminal Division
Hooper LJ, Aikens and Lloyd Jones JJ
||Jane Gow (instructed by Bailey Nicholson Grayson) for the offender.
||Sarah Whitehouse (instructed by the Treasury Solicitor) for the Attorney General.
||31 October 2006
Sentence - Supervision order - Seriousness of offence - Assault by penetration - Mistaken identity - Offender believing complainant to be another person with whom activity would be consensual - Reasonable belief in consent - Whether sentence unduly lenient - , ss 1, 2, 3.
In the instant case, where the offender had got into a bed and digitally penetrated the complainant's vagina, whilst believing the complainant to be a person, S, whom he believed would have consented and where it had to be taken that he would not have been committing any offence had S been in the bed and that a reasonable and sober person would have realised that the person in the bed was not S, it could not be said that the sentence of four years' imprisonment (as suggested by the Attorney General on a reference of a supervision order) was the proper sentence on a guilty plea to assault by penetration contrary to s2 of the . The instant case was far from the normal case. In all the circumstances, including the offender's mitigation, it could not be said that the sentence was arguably unduly lenient.
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