England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Monday, 20 October 2008

1. MR JUSTICE CRANSTON: The appellant pleaded guilty to three counts of rape. In January 2007 His Honour Judge Rivlin QC sentenced him to life imprisonment on each of those counts, to be served concurrently. The period of four years six months less 372 days spent on remand was specified as the minimum period before which he could be considered by the Parole Board. He appeals now by leave of the single judge who also granted the necessary extension of time.
2. In brief the background to the offence appears as follows. The victim was 18 years old at the time of the offence and was a friend of the appellant's girlfriend. There had been an arrangement to go out together on New Year's Eve 2005 but the appellant's girlfriend went off elsewhere. The victim telephoned the joint mobile phone the appellant shared with his girlfriend and he said that she was with him at his home address. The victim went there and found the appellant alone in the premises. They stayed a short time and while there the appellant asked her to pose in her party clothes by bending over the bed so he could take some photographs.
3. The appellant suggested that his girlfriend might be at her mother's home, so they took a taxi there. They had some drinks but it became apparent to the victim that her friend had gone out with someone else. Although the appellant suggested they join them, the victim decided she wanted to go home and as her mother was away arrangements were made for her to stay with her aunt. She asked the appellant to order two taxis so that they could go their separate ways. By this time it was about 3 am. Only one taxi arrived so they both took it and the appellant asked the driver to take them to Clapton where he lived and then on to Walthamstow where the victim was to spend the night. During the journey there was an argument between the pair and he punched her in the face.
4. Once at his flat he forced her to leave the taxi with their bags in it and enter the flat with him, threatening her with violence. When inside he made her take her coat off. He picked up a kitchen knife with an eight inch blade and threatened her with it. He told her to bend over the bed and slapped her buttocks with the blade of the knife, saying he did not want intercourse but was being paid by someone to take photographs. She begged him to stop but he would not. He then pulled down his own trousers and raped her as he forced her to bend over in front of him. She was then forced to lie in a different position and he raped her vaginally again. He took photographs. He then told her to squat on top of him and raped her vaginally again. She was terrified. On two occasions he anally raped her. He punched her and threatened her with the knife. She thought she was going to die. He did not ejaculate inside her, but told her to wash herself. She thought she would be allowed to leave but he said he needed more pictures. She was made to part her legs and was told to suck his penis. More photographs were taken as he ejaculated in her mouth. He instructed her to take another shower. Around 5 am he allowed her to leave the flat. He was still aggressive and smashed his phone at the taxi cab office. An employee of the firm saw the victim looking frightened. She contacted her mother and told her what had happened. She went to her aunt's home and also told her what had happened. Initially she was too terrified to call the police, but later did so.
5. In his careful sentencing remarks His Honour Judge Rivlin QC identified the aggravating features: the difference in their ages (he was 27, she was 18), his size (he was a large man), the violence he had used from an early stage, the threats with the long-bladed kitchen knife, the physical violence (in particular the punch in the face), the bizarre way he had talked while committing the offences so that she thought he was hallucinating, the repeated and prolonged nature of the assaults and the fact that she was trapped in his flat. The learned judge noted that he had been in trouble previously. He had offences of robbery and attempted robbery, a section 18 grievous bodily harm offence and also a two year community rehabilitation order for possession of an offensive weapon. The learned judge noted that for a long time it was considered he had suffered from paranoid schizophrenia but it now appeared he did not have any mental illness. Counsel had accepted there were only two realistic options since he was clearly dangerous, either a life sentence or imprisonment for public protection. The learned judge concluded that the sentence of life imprisonment had to be imposed in view of four factors:

1. The seriousness and cruelty of the crimes.

2. His previous offences involving violence, including the use of a knife on one occasion and possession of a broken-neck bottle on another.

3. The fact he had previously been remanded in custody for rape, and although he was subsequently cleared of it, it should have acted as a warning to him.

4. The contents of the psychiatric report.

6. The judge noted that despite his request the psychiatric report contained no clear assessment of risk, but he went on to note that the appellant's counsel had said that he did not believe it was necessary to adjourn the matter for further clarification. The judge agreed, for two reasons. First of all he took the report as a whole and it was clear that the appellant had very little appreciation of the seriousness of his behaviour. Secondly, it was in any event properly accepted on behalf of the appellant that there was ample material before the court which would justify the judge in coming to the conclusion (if he considered it right to do so) that he did present a risk and that there was, looking at the whole of the case, material from which he could draw the reasonable inference that it amounted to a significant risk of very serious harm to the public in particular, women.
7. For the sake of completeness we note that a post probation sentence report stated inter alia that the underlying factors leading to the offence included sexual motivation, anger and a desire to humiliate the victim, although she had not been specifically targeted; that he had accepted responsibility for his crimes and did not minimise or blame others; and that the OASys assessment indicated a medium risk of general reoffending with a raised risk of sexual or violent criminal reoffending and that there was a high risk of harm towards the public, specifically females, and a medium risk towards his partner.
8. The grounds of appeal have now been narrowed by Mr Lahiffe who has, in our view, sensibly conceded that the appellant was dangerous. Mr Lahiffe now grounds the appeal on the basis that a life sentence was not appropriate. Given the peculiar nature of the offending the other type of indeterminate sentence, namely imprisonment for public protection, was more apposite for this appellant. Mr Lahiffe submits that with the introduction of imprisonment for public protection, cases which would previously have been dealt with by a discretionary life sentence should now be sentenced in that way. Life sentences should be reserved for the most serious of cases as the more severe of indeterminate sentences.
9. The legal basis of the judge's sentence is section 225 of the Criminal Justice Act 2003. The relevant pre-conditions for deciding that a life sentence is appropriate are, first, that the appellant must have been convicted of a serious offence punishable with life imprisonment; secondly, the court has to be satisfied that there is a significant risk to members of the public of serious harm occasioned by the commission of further specified offences; and thirdly, that the court must consider that the seriousness of the offence or of the offence and one or more offences associated with it is such as to justify the imposition of a sentence of imprisonment for life. Serious harm is defined in section 224(3) of the Act as meaning death or serious personal injury, whether physical or psychological. In the leading decision of R v Lang [2006] 1 WLR 2509 the court at paragraph 17 says that the risk has to be significant, ie more than a possibility, and that in assessing the risk of further offending the sentencer should take into account the nature and circumstances of the current offence, the offender's history of offending, his social and economic background, his thinking and attitude towards offending and his emotional state.
10. To revert to the application of section 225 in the light of the statutory definition of serious harm and the consideration by this court in Lang, we take the view that the judge was entitled to conclude that there was a significant risk to members of the public of serious harm, which derives both from the nature of this offence and the appellant's past behaviour. In particular we would highlight the passage in the post sentence probation report of a high risk of harm. The seriousness of these offences justified the imposition of a sentence of life imprisonment. We cannot fault this very experienced judge in his approach to sentencing in this case. The analysis he rehearsed in his sentencing remarks amply demonstrates that the seriousness of these offences justified life imprisonment, not imprisonment for public protection. The gross nature of the offending over this two hour period when this 18-year-old victim was detained and subjected to a succession of rapes justified, in our view, the imposition of a sentence of life imprisonment. We dismiss the appeal.