Sentencing Guideline for Sexual Violation Offences: Assessing Vulnerability of the Victim and Breach of Trust

Abstract

The sentencing guideline judgment established by the Court of Appeal in R v AM provides a crucial tool for judges faced with the task of establishing sentences for sexual violation offences. Judges must consider the presence of aggravating factors, including vulnerability of the victim and breach of trust. Given the diverse nature of sexual violation offending, comprehensive and clear guidance is imperative. The overall issue this paper considers is the lack of consistency and transparency across cases applying the guideline judgment in R v AM. In the examination of R v AM and the inconsistencies arising in the cases applying it, this paper argues that, in order to attain a higher degree of consistency and transparency, the Court of Appeal must provide more specific and precise guidance pertaining to the identification, application of, and relationship between the aggravating factors of vulnerability of the victim and breach of trust. This paper argues that a structured and systematic analysis is required to identify aggravating factors and their degree of seriousness. Once this assessment is complete, judges should step back and undertake a holistic analysis. This is required for each individual case to ensure the Judge’s assessment of the aggravating factors, as increasing the offender’s culpability, is proportionate to the overall seriousness of the offending. When the Court of Appeal reviews R v AM, provision of this further guidance will result in subsequent consistent and transparent sentences for sexual violation offences.