England and Wales Court of Appeal (Criminal Division) Decisions

1. Her Majesty's Attorney-General seeks leave to refer to the Court a sentence which he considers unduly lenient pursuant to section 36 of the Criminal Justice Act 1988. We grant leave.

2. The offender, Jason Halliley, is 30 years old. On 2April 2001, he appeared before the Crown Court at Leeds to stand trial having previously entered pleas of Not Guilty to an offence of causing grievous bodily harm with intent, contrary to section 18 of the Offences against the Person Act 1861, to an alternative count of inflicting grievous bodily harm contrary to section 20 of the same Act, and to counts of rape and anal rape. At the commencement of the trial he changed his plea to the alternative offence of inflicting grievous bodily harm to guilty but that plea was not accepted by the Crown at that stage. On the fourth day of the trial, he changed his plea to the counts of rape and anal rape to Guilty and the Crown then decided to accept his Not Guilty plea to causing grievous bodily harm with intent. Sentence was adjourned.

3. On 9 May 2001, he was sentenced by the trial judge, His Honour Judge Norman Jones, Q.C., to 18 months imprisonment for inflicting grievous bodily harm, and to 9 months concurrent for each of the rape and anal rape offences, all sentences to run concurrently.

4. The facts of this case are highly unusual on any view, and in our judgment it is unlikely that they would ever arise again. The victim of the three offences admitted by the offender was a 27 year old woman who had lived with the offender for 10 years. It appears that each had problems with drinking to excess and the offender at the time was being treated for alcoholism with medication to ease the withdrawal symptoms.

5. On 2 September 1999 the offender gave the victim a lift to a bar in Halifax where she had arranged to meet some colleagues from work. Only one male colleague turned up and the victim spent the evening with him drinking and dancing. The victim drank six bottles of beer and was described as being "very drunk".

6. The offender had agreed to collect her but she was late. He waited for her for 15 minutes and then drove around to find her. He had given up and was heading for home, when he found her still with the male colleague.

7. The offender had himself drunk two cans of strong cider and whilst in the car he had a third. He was annoyed by what he had found and told the victim that he had decided to end their relationship. At that stage, she did not react, but on the way home asked the offender to stop the car so that she could urinate by the car. When he had stopped, she opened the door and fell to the ground causing minor injuries to her forehead and nose. The offender's response was to drive off but he relented, returned, picked her up and drove home.

8. When they were home, the offender repeated that it was his intention to end the relationship. The victim told him that she would kill herself if he left. Sometime later, the victim, without the offender being aware of the fact took an overdose of Librium and Heminevrin, drugs used in the treatment of alcoholism. She gradually lost consciousness. The offender continued his drinking consuming more cider, lager and a bottle of Martini.

9. At about 5 a.m., the offender tried unsuccessfully to arouse the victim pouring water over her as she sat in the sitting room. Although she made some movement she did not wake up. In his drunken state, he then in his own words "got carried away" and poured four buckets of water over her. He thought that she was being stubborn so he removed her wet clothes, put a bucket over her head and photographed her in that state. These photos were later recovered and a pathologist concluded from them that she was deeply unconscious.

10. The offender carried her through into the bedroom and covered her with a duvet. He drank another can of beer, took two sleeping tablets, and after undressing got into the bed with the victim.

11. The offender and the victim had enjoyed what was described as a "sexually adventurous" relationship. They practised anal intercourse as well as vaginal intercourse, and from time to time employed a vibrator and a dildo in their love-making.

12. The offender described how, having got into bed, he cuddled the victim and how in his words she "moaned in a kind of appreciative way". As he cuddled her, he inserted his fingers into her vagina and anus and then used the vibrator and the dildo in similar fashion.

13. In doing so the offender caused serious injury to the victim's rectum and colon. This was in the form of bruises, lacerations, stripping of the colonic mucosa, bleeding in the pelvic cavity, and an area of colonic prolapse.

14. The offender then penetrated both the victim's vagina and her anus with his penis. He said at the time that throughout she was making noises, which he took to be an indication that she was enjoying what he was doing. He said that he then realised that she was too sleepy to carry on, and so he rolled over and went to sleep.

15. The offender's pleas of guilty to rape and anal rape were entered, and accepted by the Crown and by the court, on the basis that he had an honest but drunken belief that the victim was consenting, but that he was in all the circumstances reckless.

16. Next day the offender awoke about mid-day, he discovered that the victim was dead. The cause of death was the overdose that she had taken.

17. The offender immediately went to a police station and reported what had happened. The only significant fact that he omitted was the taking of the photographs.

18. The offender has a number of previous convictions, many of which involve driving with excess alcohol and driving whilst disqualified from driving. He has served two short sentences of imprisonment. He had no previous convictions for violence or sexual offences.

19. His convictions on this occasion put him in breach of a combination order consisting of 80 hours community service and 36 months probation imposed on 30 June 1999.

20. The Attorney-General has indicated through counsel that he does not seek to argue that the sentence of 18 months imprisonment for inflicting grievous bodily harm is unduly lenient. He characterises that sentence as lenient but not outside the range of sentences that could properly be passed. Each member of this court would, it should be recorded, have passed a longer sentence for that offence. Notwithstanding the lack of any intention to cause injury, to behave in such a drunken manner and to cause such injury made that a serious matter and the judge was right to mark it with a sentence of imprisonment. In the light of the concession made on behalf of the Attorney-General, we, whilst sharing the view that that element of the sentence was lenient, are not required to consider whether such leniency could be described as undue leniency.

21. The submissions made on behalf of the Attorney-General are confined to two propositions that the sentences for the rape and anal rape should have been consecutive to the sentence for inflicting grievous bodily harm and that in any event 9 months was too short a sentence for such offending.

22. It is submitted that there were two aggravating features of this case. First the rapes were committed after he humiliated the victim and then caused serious injuries to her vagina and anus. Second that the offender was at the time the subject of a combination order.

23. It is acknowledged that there are mitigating features present in this case. The reference identifies two, that the offender believed the victim to be consenting, and his pleas of guilty albeit late in the day. We think, as counsel for the offender submits that there were other mitigating features, which uncharacteristically, have not been recognised in the reference. There was the fact that the offender reported the matter to the police as soon as he was in a position to do so, and gave an account that was surprisingly frank in all the circumstances. There were in addition a number of findings of fact made by the trial judge upon which counsel for the offender relies and we must look at these.

24. The judge's findings of fact were made after four days of evidence. It seemed to us that there was no proper basis upon which we could go behind those findings even if, without the advantage of hearing any evidence, we thought that there was a possibility that they were too favourable to the offender.. Counsel readily accepted that this was so and accordingly in reviewing the sentences passed we are obliged to work on the basis that they represent the true state of affairs.

25. The judge made clear, what was undoubtedly correct, that Rachel Mooney's death was in no way attributable to anything done by the offender. He also expressly found that there was no evidence that the offender was aware that the victim had taken the overdose that proved to be fatal.

26. In the course of his sentencing remarks, he observed:

"I am satisfied on what I have heard during the course of the trial, that, had Rachel had full control of her senses, she would in all probability have welcomed your advances as a peacemaking move. In the event she was unable to do so, a factor you probably did not appreciate because of your drunken state."

27. Later he continued:

"Sounds from Rachel led you to believe she was indicating consent, whereas they were probably moans caused by pain, sensed in her virtually unconscious state. I have no doubt had she been alert she would have protested and you would have desisted. However, you were too drunk to appreciate her true condition and in your drunken condition believed she was consenting and failed to realise the force you were using and the injuries you were causing. It is of course true that she did not consent to sexual intercourse and you have accepted that your behaviour in relation to lack of consent was reckless. But this is not a refusal to consent on her part, but a lack of consent because of her condition. As I have said, I am satisfied it is likely she would have consented to sexual intercourse had she been conscious and also to other sexual acts. In this respect the rape allegations are, as I have remarked ... already almost technical. What she would not have permitted was the degree of force used inserting the vibrator. That constitutes a serious assault on her person."

28. Thus to the list of mitigating factors in this case as listed in the reference must be added the judge's following findings. The first is that the actions of the offender would have been seen by the victim as a peacemaking move but for the fact that she did not have full control of her senses. There was evidence that might have been thought to contradict such a finding, but for the reasons already given, we do not consider that we are in a position to reach a different conclusion from the judge having not ourselves heard the evidence. The second is that as a peacemaking move his actions would in all probability have been welcomed by the victim. The third is that if the victim had been alert, she would have protested as soon as the excessive force was used and the offender would have desisted

29. These findings also diminish significantly the force of the point made in the reference that the rape offences were aggravated by the earlier humiliation. If, as the judge found, the acts of intercourse were to be seen as a peacemaking move, such actions are very different from those where a rapist deliberately humiliates his victim as a part of the build up to the act of rape, Pouring the water over his victim and taking the nude photographs of her with the bucket over her head, if properly to be seen as a part of a continuous build up to an act which could be seen as the extreme act of humiliation, namely rape, would undoubtedly be a serious aggravation of that offence. Where the act of intercourse was to be seen as peacemaking for what went before, it is difficult to see how such conduct can really be viewed as a part of a continuous act of humiliation.

30. All offences of rape are serious and the judge properly recognised that by passing sentences of imprisonment. However, this was in many ways, on the judge's findings of fact, an offence far short of what normally comes to mind when the charge is rape. Suppose the victim had not taken an overdose of drugs nor had the injury occurred and suppose when she awoke she had learnt what the offender had done and accepted it as a well-intentioned peacemaking move, it would nonetheless have been an act of rape. In the unlikely event that the police had ever heard of it and anyone had thought it sensible to prosecute, no custodial sentence could surely have followed. This was a more serious situation not because of any intention of the offender but because injury was caused to the victim, and because once that injury had been caused, if she had been able to do so she would obviously have rejected any suggestion of intercourse. The causing of the injury was the subject of the separate punishment for the offence of inflicting grievous bodily harm and cannot result in double punishment by increasing the penalty for rape. The factor that the intercourse occurred in circumstances where if either had known the true state of affairs consent would not have been forthcoming is the element that calls for punishment of the offender's recklessness.

31. We wish to make clear that the facts would not have had to be very different for the sentences to be clearly unduly lenient. If the defendant had realised that the victim had taken an overdose and knowingly took advantage of her state for his own sexual gratification, a significantly longer sentence would have been called for. If the sexual actions of the offender had been acts calculated to humiliate the victim because of the way she had behaved that night, again the sentence must inevitably have been much longer. If the offender had appreciated that the victim had suffered injury from the use of the vibrator and had callously continued with the sexual activity, once again no court could have viewed such circumstances as meriting other than greater punishment. However, none of those factual bases were the basis upon which the sentence was to be passed in this case.

32. We think that the trial judge was faced with an exceptionally difficult sentencing exercise. Different judges might have reacted differently to the circumstances but we remind ourselves that this was a very experienced judge, who had the considerable advantage of having heard evidence over a period of days and who had had the opportunity of observing the demeanour of the offender. He was in the best position to judge the true criminality of the offender and we have to recognise that in such a case we should not substitute our view for his unless his is clearly wrong.

33. Bearing in mind that if we were to alter the sentence, we would be obliged to make allowance for the fact that he would have faced sentence twice, the second time over two years after he voluntarily reported the facts to the police, we have come to the conclusion that even if we did view this sentence as unduly lenient, we would not consider the extent of the undue leniency merited any alteration in the sentence at this stage. One possibility that we might have considered if we were sentencing afresh might have been to make the sentences for the rape and the anal rape consecutive to the sentence for inflicting grievous bodily harm but the extent of the increase would be offset by the normal allowance made for being sentenced a second time. However, since these facts are in our judgment never likely to be replicated, we cannot see that it will serve any useful purpose to reach a firm conclusion as to whether the sentences, which we consider to be lenient, could properly be described as unduly lenient. For these reasons there will be no alteration to the sentences as passed in the Crown Court.