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England and Wales Court of Appeal (Criminal Division) Decisions
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Revill, R. v [2025] EWCA Crim 762 (20 May 2025)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2025/762.html
Cite as:
[2025] EWCA Crim 762
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The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence.
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Neutral Citation Number: [2025] EWCA Crim 762 |
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Case No: 202500954 A3 |
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
THE CROWN COURT AT NOTTINGHAM
Mr Recorder Simon King
31CF0477723
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988
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Royal Courts of Justice Strand, London, WC2A 2LL |
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20 May 2025 |
B e f o r e :
LORD JUSTICE STUART-SMITH
MRS JUSTICE YIP
and
MR JUSTICE MURRAY
____________________
Between:
____________________
Julia Faure-Walker appeared on behalf of the Solicitor General
Lesley Pidcock appeared on behalf of the Offender Respondent
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HTML VERSION OF JUDGMENT APPROVED
____________________
Crown Copyright ©
Lord Justice Stuart-Smith:
- The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where an allegation has been made that a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act. For the avoidance of any doubt, we do not waive or lift the prohibition.
- His Majesty's Solicitor General seeks leave to refer to the court a sentence which she regards as unduly lenient.
- The aggregate sentence of 42 months was imposed on the offender on 14 February 2025 by Mr Recorder King in the Crown Court at Nottingham, following the offender's conviction of serious sexual offences.
- He was convicted of four counts of a five-count indictment:
i) On count 2, which was an offence of rape, upon his conviction he was sentenced to 32 months' imprisonment.
ii) On count 3, which was a single incident offence of assault by penetration, upon his conviction, he was sentenced to 27 months concurrent.
iii) On count 4, which was a further offence of assault by penetration, the particulars being of a multi-incident offence on at least two separate occasions, upon his conviction he was sentenced to 27 months concurrent.
iv) On count 5, which was a further count of rape, upon his conviction, he was sentenced to 42 months concurrent.
The aggregate sentence, therefore, was 42 months' imprisonment. It should have been specified as being a period of custody in detention and not imprisonment. Ancillary orders were made to which we do not need to refer. We give leave.
The factual background
- The victim (who we shall call V) and the offender started a relationship when she was aged 15 and he was aged 17, having met via Snapchat. He was working as a bricklayer and she was still at school. V had never had a boyfriend before.
- The timeframe for the offences was late 2021 to early 2023, when V was aged 16 to 17 and the offender was aged 18 to 19.
- Count 2 referred to a specific occasion in October 2022 when the offender raped V while she was awake. The offender came to her house having consumed alcohol after a football match that day. He was carrying two Magnum Tonic Wine drinks. He drank one, and V hid the other because she did not want him to become "nasty". She was playing a video game and made a joke that one of the cars in the game looked like one he had previously damaged. He fell asleep. She accidentally woke him up. She kissed him and apologised for her joke. He then forced himself on her. She said no and said that she did not want it. He pulled down her pyjama bottoms, moved her pants to the side, and penetrated her vagina with his penis for about three minutes. While it was happening, he told her he did not love her. In the morning he was apologetic but made her feel that it was her fault and told her that if she told anyone it would ruin his life.
- Counts 3 and 4 related to at least three occasions on which the offender penetrated V's vagina with his finger while V was asleep. She would tell him it was wrong, and he would say that he knew.
- Count 5 represents an occasion when V was asleep but woke up to find the offender penetrating her vagina with his penis.
- According to V, the offender would video himself raping or sexually assaulting her, saving the videos in his "my eyes only" camera roll, accessible only with his PIN within Snapchat. When the police later examined the contents of the offender's phone, they found a 17-second video of V being raped while she was asleep with a young child's voice in the background. V also said that the offender had ejaculated.
- He would apologise in response to her accusing him of rape. However, he would make V feel guilty by accusing her of not being attracted to him, threatening to sleep with other people, and demanding to know why she was not "enjoying it". He would confuse her by saying that he loved her, then say the opposite. He said if they broke up, he would kill himself. He made her promise not to tell anyone about what was happening. He was aggressive towards her.
- She finally ended the relationship in early 2023. She told her mother and friends that the offender had raped her. Her mother contacted the police.
The offender
- The offender had no previous convictions or cautions. He had the benefit of eleven character references, all of which we have read and considered carefully. The references come from a spread of people who have known him in various contexts and in many cases for significant periods. They paint a picture of a hard-working and conscientious young man. Others described him as decent, gentle, quiet, caring, compassionate, polite and kind. It is on any view an impressive body of character evidence for one so young.
Pre-sentence report
- The court sentenced with the benefit of a pre-sentence report. In retrospect, he had come to see the relationship with V as toxic as they argued all the time. He felt he had been doing his best in the relationship. He accepted the verdict of the jury (while not agreeing with it) and presented as remorseful and sorry for his conduct. The writer of the report conducted a maturity assessment, which indicated no concerns about maturity, though the writer thought he presented as rather immature and naive in respect of the relationship. The risk of his reoffending was assessed as being low.
Victim personal statements
- V made two personal statements. In her first, which was dated 9 June 2024, V said that what the offender had done had a "massive impact". She still experienced flashbacks and felt physically sick when she thought about it. She was having to cope with feelings of hating herself and was having therapy and counselling to deal with it. She felt she was seen as an object by the offender and so felt worthless. She had vivid dreams of the offender and other men raping her and would often wake up crying. She often missed college from feeling so depressed that she could not leave the house and so eventually dropped out and had only recently been able to return but was now a full year behind her peers. She could not now let anyone get close to her. She could not think of having a sexual relationship and pushed away boys who tried to talk to her because she was scared that they would abuse her.
- In a further victim personal statement dated 13 January 2025 after the offender's conviction, she referred to the offences having had a "completely devastating" effect on her life. Her life had been "put on hold" for two years, and her confidence was so low that she could not enjoy being a young woman. She had sleepless nights and nightmares, which only stopped once the trial was complete. She was scared to leave the house for fear of encountering the offender. She would only occasionally see her friends. She blamed herself for a long time and felt the offender had manipulated her into not reporting the offences to police immediately. She could not see how she would ever be in a relationship with someone again. She was currently on a waiting list for therapy.
Sentencing remarks
- The Recorder started by saying that what the offender had done and what he had been convicted of arose from the particular circumstances of the relationship that he had had with V at the time, and he identified what he described as "a substantial degree of immaturity on your part at that time", which he made plain was not an excuse but was a factor to be taken into account.
- The Recorder treated the rape charged under count 5, starting when V was asleep, recording the incident and ejaculating, as the most serious offence. He treated it as falling within category 3A, which provided for a starting point of 7 years and a category range which he said was 6 to 9 years, stating that the offence came towards the bottom end of the bracket. He did not treat V as being particularly vulnerable within the meaning of the relevant guideline.
- As mitigation, the Recorder identified the offender's substantial degree of remorse, his positive good character, and his immaturity. This caused him to reduce the sentence he would otherwise have passed "by something in the broad region of 25 percent". On that basis he passed the sentence of 42 months on count 5.
- Turning to the other counts, first, he treated count 2 (the other offence of rape) as falling within category 3B of the guideline, which would indicate a starting point of 5 years and a category range of 4 to 7 years. The Recorder took a notional sentence of 4 years, which he then reduced by 25 percent to reach the sentence of 36 months on that count, which he ordered to be served concurrently.
- When dealing with counts 3 and 4, he said that he saw no reason to distinguish between them, and concluded that the notional sentence, before applying the 25 percent reduction that he was applying overall, would have been 36 months on each, which he reduced to 26 months concurrent. By this route he reached the aggregate sentence of 42 months.
- Two things may be immediately noted. First, the Recorder does not appear to have made any adjustment to the sentence on count 5 to reflect the additional criminality involved in counts 2 to 4; and, second, we are told that the Recorder was not referred by the prosecution to the considerable line of authority to the effect that a victim of such offences who is asleep for whatever reason is to be treated as "particularly vulnerable" for the purpose of categorising harm under the guideline.
- On 31 March 2025 the case was relisted before the Recorder under the slip rule. It was submitted on the basis of cited authority that V had been particularly vulnerable because she had been asleep. The Recorder declined to alter the sentences he had passed. He also declined to adjust the sentence on count 5, where a reduction of 25 percent from 6 years should have led to a sentence of 54 months (not the 42 months he had imposed). In doing so he cited the fact that the date of this hearing had been set and that this court could make any necessary adjustments.
The Solicitor General's submissions
- The Solicitor General's submissions may be shortly summarised.
i) First, counts 3 to 5 should have been treated as falling within harm category 2 because V, being asleep, was "particularly vulnerable due to personal circumstances". Furthermore, counts 3 to 5 should have been treated as falling within culpability category A because the offences were recorded. On that basis, the starting point for counts 3 and 4 would have been 8 years, with a category range of 5 to 13 years, bearing in mind that count 3 was a single incident count while count 4 involved at least two further incidents.
ii) Second, it is submitted that insufficient weight was given to the aggravating features of the offending and/or excessive weight was placed on mitigating features.
a) The aggravating features are said to be, first, the commission of the count 2 offence of rape when under the influence of alcohol; second, ejaculation; third, the offences were committed in a domestic context; and fourth, steps were taken to prevent V from reporting the incidents by his manipulative comments.
b) Next, the mitigating features are said to be, first, the offender's youth, 18 or 19; second, his previous good character, though it is submitted that this carries limited weight in the face of very serious offending which was carried out in a domestic context; next, no weight should in the Solicitor General's submission be afforded to remorse given that he pleaded not guilty and still did not accept significant parts of the prosecution's case when interviewed by the PSR writer after his conviction.
iii) Third, the Recorder failed to reflect the overall offending conduct within the sentence imposed on count 5. If consecutive sentences were not to be imposed, there needed to be a substantial uplift applied to the sentence that would otherwise be passed on count 5.
The net effect of these submissions would be that the starting point for count 5 as a category 2A offence of rape should have been 10 years, which then fell to be increased to reflect the aggravating features, followed by a reduction for the offender's age and immaturity. There should then have been a further adjustment to the sentence on count 5 to reflect the additional criminality involved in counts 2 to 4.
The offender's submissions
- The offender accepts that V was "particularly vulnerable" within the meaning of the guideline for counts 3 to 5. He does not, however, accept that all of the offences should have been treated as falling into culpability category A on account of recording the offences. One video only was found on his phone. It has not been established that the offences under counts 2 to 4 were recorded.
- The offender places great weight on his positive good character and submits that little weight should be attributed to his conduct that tended to prevent V from reporting the offending.
- Pointing to the guideline's advice that "when sentencing young adult offenders (typically aged 18 to 25) consideration should also be given to the guidance on the mitigating factor relating to age and lack of maturity when considering the significance of such conduct", the offender emphasises the importance rightly attached by the Recorder to his age and immaturity. He draws our attention to the guideline's acceptance that immaturity and naivety are not necessarily a function of chronological age and that they may affect the offender's responsibility for the offence and the effect of the sentence on the offender; and on the offender's behalf Ms Pidcock refers again to the well-known passage from Clarke [2018] EWCA Crim 185.
- Overall, the offender submits that, despite acknowledged mischaracterisation, there is scope for ample reduction in sentence on account of his personal mitigation.
Discussion and resolution
- This was a course of serious sexual offending over a period. It had a very serious effect on V, even if one can detect in her victim personal statements a slight degree of light and hope for the future. Had the offender been fully mature and short of personal mitigation, these five offences (at least because of count 4 being a multiple incident count) would have called for severe sentences, singly and cumulatively.
- The commencement of any discussion must be that it is accepted on all fronts that the Recorder's categorisation of offences 3 to 5 was wrong for the reasons we have given. That said, this is a difficult sentencing exercise, with an ever-present risk of an overlong sentence emerging from a mechanistic approach to the guidelines and authorities that are in play. We therefore propose to address the exercise with a fairly broad brush, determined always to arrive, if we can, at a sentence that is just and proportionate for all concerned.
- Before making any adjustments, the starting point for count 5 would be 10 years. V's vulnerability and the recording of the offence are the reasons why this starting point is so high and do not support a further upward adjustment. Nor do we consider that the other aggravating features identified by the Solicitor General, though properly identified, would require any further upward adjustment to the starting point. That said, the additional criminality involved in counts 2 to 4 do require a significant uplift to the notional sentence on count 5. The unadjusted starting points for those counts are 5 years (count 2) and 8 years (counts 3 and 4). For an adult of full age and maturity and lacking in personal mitigation, we consider that the court imposing concurrent sentences on a stand-alone basis should as a reasonable minimum have arrived at something in the region of 6 years for count 2; 8 years for each of counts 3 and 4; and 10 years for count 5.
- What should then have been the uplift to count 5 to reflect the additional criminality involved in counts 2 to 4? Clearly a very substantial adjustment for totality would be required. But we cannot envisage circumstances in which an aggregate sentence of less than 15 (or conceivably 14 years) would be a sufficiently "weighted" sentence on count 5.
- Adopting this route, what reduction should be made for the offender's personal mitigation? Both the Recorder and the writer of the PSR commented on the offender's immaturity and naivety, suggesting that a reduction greater than that simply suggested by his chronological age would be appropriate, both by reference to its impact on his culpability and the effect on him of an extended sentence of detention. In addition, we consider that his youth and immaturity enable us to give more weight to his positive character, not least because his positive good character also suggests that his immaturity played a significant part in his offending as he did.
- The Recorder allowed 25 percent for the offender's youth and immaturity. In our judgment, once he took fully into account the impressive evidence about the offender's general character, he could reasonably have gone further. Had he done so, he could properly have passed an aggregate sentence in the region of 9-and-a-half years. We cannot in all conscience justify a lower sentence than that. For these reasons we conclude that the sentence passed by the Recorder was unduly lenient.
- In our judgment the end result of all these considerations should be that the sentence on count 2 should be 4 years; the sentence on counts 3 and 4 should each be 4-and-a-half years; and on count 5 should be 9-and-a-half years, all of those being concurrent. Those sentences are sentences of detention not imprisonment.
- We have previously dealt with a question arising out of the surcharge and need say no more about it. That concludes this judgment.