Mboma, R. v [2024] EWCA Crim 110 (30 January 2024)

Mboma, R. v [2024] EWCA Crim 110 (30 January 2024)

The sentencing judge erred in failing to find the complainant was particularly vulnerable due to her age, intoxication, and being asleep, and thus miscategorised the offence as category 3A rather than 2A under the Sentencing Guidelines. The correct categorisation required a higher starting point for sentence. After considering mitigation and inordinate delay, the appropriate sentence was 3½ years' imprisonment, which could not be suspended.

Citation
[2024] EWCA Crim 110
Parties
Prosecution: Rex; Offender/respondent: David Mboma
Jurisdiction
England and Wales
Judgment Date
30 January 2024
Procedural Posture
Criminal Reference (attorney General's Reference Under S.36 Criminal Justice Act 1988) / Court of Appeal Judgment on Reference of Sentence as Unduly Lenient
Outcome
Reference allowed; original sentences quashed; new sentences imposed.
Legal Topics
Assault by Penetration, Sexual Assault, Sentencing Guidelines, Unduly Lenient Sentences, Delay in Prosecution
Criminal Law Sentencing Assault by Penetration Sexual Assault Sentencing Guidelines Unduly Lenient Sentences Delay in Prosecution

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Parties

Rex

Prosecution

David Mboma

Offender/respondent

Procedural Posture

Criminal Reference (attorney General's Reference Under S.36 Criminal Justice Act 1988) / Court of Appeal Judgment on Reference of Sentence as Unduly Lenient

Legal Issues

  1. 1 Whether the sentencing judge erred in categorising the assault by penetration as category 3A rather than 2A under the Sentencing Guidelines
  2. 2 Whether the extent of penetration was a relevant factor in sentencing
  3. 3 Whether the judge's findings regarding an image sent by the complainant were appropriate

Ratio Decidendi

The sentencing judge erred in failing to find the complainant was particularly vulnerable due to her age, intoxication, and being asleep, and thus miscategorised the offence as category 3A rather than 2A under the Sentencing Guidelines. The correct categorisation required a higher starting point for sentence. After considering mitigation and inordinate delay, the appropriate sentence was 3½ years' imprisonment, which could not be suspended.

Court Disposition

Reference allowed; original sentences quashed; new sentences imposed.

Orders

  • Sentences of 2 years' imprisonment suspended for 24 months on assault by penetration counts quashed.
  • Sentences of 3½ years' imprisonment imposed on each of the two counts of assault by penetration, concurrent.