England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		21 January 2009

Wednesday 21 January 2009

THE LORD CHIEF JUSTICE:

1. This is an application by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988 for leave to refer to this court for review a sentence which she considers to be unduly lenient. We grant leave. The sentence was imposed on 10 October 2008 by His Honour Judge Cripps sitting at Aylesbury Crown Court.
2. The offender is 28 years old. He was born in November 1979. He has no previous convictions.
3. The indictment contained three counts. On 29 September the jury at trial were unable to agree on count 1, which alleged rape. They were discharged from returning a verdict. On count 2 they convicted the offender of rape involving penetration of the anus, and count 3, rape involving penetration of the vagina. The victim on both counts was the offender's wife and the mother of his two young children. They were separated.
4. On the night of 28 September 2007 they both ended up in a bar in Milton Keynes. During the evening the offender called his wife a "whore", something he was to repeat to her in a text message later that evening. She went home. The children were staying with her parents. The offender pushed his way into the house. He was aggressive and under the influence of drink. The sexual offences then took place.
5. The relationship had lasted for about ten years. They had lived together for nine years and they had been married for nearly five. They had two children: a girl aged 4 and a boy aged about 18 months. Some of the difficulties in their relationship arose because of the debts the offender had incurred in buying petrol on his wife's credit card.
6. In August 2006, following a car crash in which he was injured, the offender needed physiotherapy. After the accident he appeared to his wife to be less interested in their marriage and so they separated.
7. They continued to speak from time to time. There were occasions when their contact caused conflict; abusive words were used and there were emotional exchanges between them.
8. On the day before the offence the offender threatened to leave for Spain, having failed an exam and left his job.
9. On the evening of 28 September 2007 they ended up in the same bar. The offender was under the impression that his wife was there deliberately in order to make life difficult for him and to create embarrassment because this bar was a place to which he went. He objected to her presence. He objected to what he perceived to be her behaviour. He was upset and called her a "whore".
10. In the early hours of the following morning he sent her some text messages which included:

"If you want to act like a whore, fine, just don't do it in front of me. I thought better of you. By the way, after you left we found out what the six guys wanted."

"By the way, told them you don't do blow jobs or anal."

11. Having returned home, she was disturbed by the offender banging on the door. She let him in. An argument developed about the bar being "his place", his sanctuary from her. Again he called her a "whore". To get away from him she went upstairs, but he followed her. Sexual intercourse then took place. The Crown's case was that it was rape. The offender's case was that it was consensual. The jury was unable to agree. That count disappears from consideration, save and except that sexual intercourse already had taken place when those offences occurred.
12. The offender continued to complain about the way in which he perceived the victim behaved at the bar. We do not propose to go into great detail about what happened then. By not doing so we do not minimise the gravity of what actually happened. The victim was lying on the bed. The offender undid her belt. He pulled off her jeans and knickers. He took off his trousers. He penetrated her anus with his penis, despite her pleas with him not to do so. He accepted later that this was something which she never let him do in the ordinary way of their marriage. She screamed. To stop her screaming he put her knickers into her mouth. He thrust with great force, causing her severe pain. She was uncertain whether he had ejaculated, but his semen was later found on anal swabs. This was a forced buggery. The offender knew perfectly well that this was a form of sexual activity which had never been included as part of their own sexual relationship and that she would never have consented to it. She was, not surprisingly, distraught and humiliated.
13. The offender emptied his pockets and told her not to ignore him. He then said, "I will make you not ignore me". Again he raped her. This time he penetrated her vagina.
14. The victim tried to call the police, but the offender pulled the telephone out of its socket. He threatened to kill himself and fled the scene. That was after he realised that the victim had managed to contact the police on her mobile phone. The call received by the police was harrowing in its terms.
15. This sexual attack lasted in excess of an hour. Having fled the scene, some two hours later, a long way away, the offender was involved in a traffic accident. He was taken to hospital suffering from concussion.
16. The victim inevitably had to be medically examined.
17. The case went to trial and was fully contested. Of itself that is irrelevant to sentencing, but we must record a feature which the judge noted. The offender's defence was that the victim had been rubbing men up in the club; that she should not have been there anyway; and that he had asked her to stay away. When he had gone to the family home they had consensual sexual intercourse during which he had ejaculated on her back. That was how the semen was eventually found on the anal swab because during foreplay he had penetrated her anus digitally. He claimed that they had later rowed and went for a drive. The victim had staged the scene at home. She was play-acting. She had deliberately injured her own anus, and had planted the semen there and saliva on her own knickers.
18. The judge observed that during the course of the trial the offender enjoyed the distress caused to the victim by the conduct of defence counsel on the basis of the offender's clear and explicit instructions. A number of assertions had been put to her which were totally without foundation and the opposite of the truth.
19. At the conclusion of the trial the judge indicated that he did not consider that the offender met the criteria for dangerousness sufficient to require the imposition of imprisonment for public protection. But he said in his sentencing remarks that the offender had been convicted of a particularly nasty series of rapes. He noted that the victim had screamed so loudly at the pain caused by the forced buggery that the offender had tried to gag her with her own underwear. He noted the length of her ordeal and he was of the view that the offender had enjoyed her distress at trial.
20. The aggravating features of the case are obvious. The mitigation was non-existent, beyond the fact that the offender was a man of good character with no previous convictions.
21. This is an extreme case of its kind: rape by a husband of his wife from whom he was separated. The facts that we have narrated demonstrate, and the conduct of his defence confirms, that the offender deliberately chose to use sexual intercourse with his wife without her consent as a weapon with which to dominate and humiliate her. This was the woman with whom he had once had a relationship of genuine affection and who had borne him two children. There was a grave breach of trust. The offender used the kind of knowledge that couples have of each other, which he would have acquired during their moments of warm intimacy, about a sexual practice that she found wholly unacceptable. With that knowledge he forced her to submit to it. Apart from the sheer humiliation and horror, she suffered physical pain. Having done that, he added to her degradation by raping her vaginally. The offender's actions were quite merciless.
22. There is no room here for the exercise of mercy. We acknowledge that this very experienced judge had presided over the trial, but in view of the remarks he made about the conduct of the defence and the way in which the offender enjoyed the humiliation to which the victim was subjected in the witness box, we see no room for taking the view that the sentence was lenient because the judge exercised the judgment he would have been entitled to exercise based on specific features of the case.
23. This sentence was unduly lenient. At the end of this trial punishment of very great severity was required. As we said earlier in this judgment, this was an extreme case of its kind. The sentence imposed on the offender will be quashed and we will replace it with a sentence of ten years' imprisonment.