No: 200902726/A6 
Neutral Citation Number: [2009] EWCA Crim 1821
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 
 
Tuesday, 21st July 2009
 
B e f o r e:

SIR ANTHONY MAY
(PRESIDENT OF THE QUEEN'S BENCH DIVISION) 

MR JUSTICE RODERICK EVANS 
 
THE JUSTICE CRANSTON 
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R E G I N A 

v 

GIANVITON Z 
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Mr M Orsulik appeared on behalf of the Appellant
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J U D G M E N T
1.	MR JUSTICE CRANSTON:  On 23rd April 2009 at the Central Criminal Court the appellant was convicted by a 10 to 2 majority of a jury of one count of assault by penetration.  He was sentenced by Recorder Farrer QC to 27 months' imprisonment with a direction that 181 days that he had spent on remand would count towards the sentence.
2.	The background was this.  On the night of 22nd and 23rd October 2008 the complainant spent the night at the home of  her boyfriend.  She was 27 years old.  The property was above a shop.  The appellant also resided at the property.  He had come from Italy and had little English.  He was 21 years old at the time of the offence. The complainant knew him just to greet.
3.	At about 3 o'clock in the morning the complainant awoke to the sensation of a finger or thumb being inserted a short distance into her anus, three times, in quick succession.  She turned because she thought it was her boyfriend.  Instead in the half light she saw the appellant leaving the bedroom. He was fully dressed.  The complainant's boyfriend had risen to use the communal bathroom, leaving the bedroom door wide open.
4.	When interviewed the appellant gave a prepared statement.  He said he had been drunk.  He had mistakenly entered the bedroom, where the complainant was sleeping, having mistaken it for his own.  When he realised his mistake he left and returned to his own bedroom. He did not touch the complainant's body while he was in the bedroom.  Thereafter he made no comment to the questions the police put to him.
5.	In his defence statement early this year, he continued to maintain that he entered the room by mistake.  He approached the bed and began to feel where he was.  But he now conceded that he had touched the complainant's bottom by accident but did not touch her anus.  He did not know whom he had touched but he heard a female voice. Realising that he was in the wrong room he apologised and left.  The female did not seem distressed.  
6.	In sentencing him, following his conviction, the learned Recorder said that the offence was a serious one.  No doubt under the influence of drink he entered the bedroom that the complainant was sleeping in and performed a degrading and offensive act, quite against her will. In order to commit that offence he must have interfered with her clothing and penetrated her not once, but three times, in quite swift succession.  His entry into her room, regardless of the fact the door was open, was a serious breach of the offence.  He was a young man who had committed no offences previously.  He did not plan this offence but took advantage of the position on the spur of the moment. The learned Recorder said that he did not accept the appellant's description of his complicated manoeuvres before the offence.  It was much more likely that he spotted his chance when the complainant's boyfriend was out of the room.  The learned Recorder said that the appellant was sentenced on the basis that he caused no physical injury.  No doubt the shock and disgust which the complainant felt were very painful experiences to her.  The complainant had to relive her experiences in court. A substantial sentence of imprisonment was appropriate.  The sentence was reduced because it was likely he would spend most, if not all, the sentence a distance from his family and friends in Italy and in a sense in isolation.
7.	In his submissions before us this morning, Mr Orsulik contends that the sentence was manifestly excessive.  On his argument, insufficient account was taken of the Sentencing Guidelines Council's Guidelines on the Sexual Offences Act 2003, in particular the absence of any aggravating features.  Moreover, there was the presence of the mitigating feature mentioned in the guidelines, that the penetration was minimal, or for a short duration.  Moreover, Mr Orsulik pointed to the mitigating features personal to the appellant.  He was only 21 years of age at the time of the offence and had no previous convictions.  Moreover, his father had arranged a job for him in local government in his home town in Southern Italy, but that had consequently been lost.  The appellant speaks little or no English and so serving a sentence far from home was an additional punishment in itself.  Overall, the submission was that the learned Recorder had taken too high a starting point:  in the light of the personal mitigation, the Recorder had said he reduced the sentence to two‑and‑a‑quarter years, so he obviously must have started at a much higher point.  This was a spur of the moment momentary isolated offence, which caused no physical harm to the complainant.  
8.	The Sentencing Guidelines Council's Definitive Guideline specifies that where the penetration is with a finger and there is no physical harm to a victim, the starting point is 2 years, with a range of 1 to 4 years. Amongst the factors to be taken into account the guideline identifies whether the offence is planned, or opportunistic or impulsive.  The latter should attract a lower sentence.  The guideline also says:  
"Brief penetration with fingers ... may result in a significantly lower sentence where no physical harm is caused to the victim." 
9.	In our view, this offending was opportunistic and impulsive ‑‑ to use that characterisation ‑‑ rather than planned.  But the fact is that the penetration occurred three times, albeit over a short period.  We do not regard whether or not the penetration was through the complainant's clothing as a major consideration in this case.  The fact is that the appellant entered the complainant's bedroom when she was sleeping during the brief time that the boyfriend had left temporarily to go to the communal bathroom.  It was, as the learned Recorder said, a degrading and offensive act, quite against her will.  The appellant was of good character but that is taken into account by the guideline sentences because they apply for first‑time offenders convicted after a trial.  The learned Recorder took the appellant's personal circumstances into account, that he would have to spend his time in a foreign prison, far from his family and friends, when he had little English.  In our view, the sentence was not manifestly excessive and we dismiss the appeal. We also direct that the anonymity of the complainant should continue.