England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Tuesday, 19th January 2010

1. SIR CHRISTOPHER HOLLAND: Alan Nightingale is now aged 39.
2. On 14th November 2008 at Maidstone Crown Court, following a trial, he was convicted of the vaginal rape of a lady to whom we shall refer to as KL, on 21st December 2006. He was thereupon sentenced to eight-and-a-half years' imprisonment. He subsequently applied for leave to appeal against conviction and for leave to appeal against sentence. Both applications were rejected by the single judge. The application for leave to appeal against sentence has been renewed to this court with the aid of short trenchant submissions by Mrs Davies. In the upshot we give leave.
3. Turning to the short facts giving rise to this matter they are as follows. On the evening of 20th December 2006 the complainant, KL, and the appellant, who did not know each other, attended their respective works' Christmas parties. At around 11.00 pm they came to be in the same bar in Ashford town centre. The complainant was in the company of her work colleagues and the applicant was with his two sons, Danny and Tommy, a work colleague and friend, Chris Smith, and his son's (Danny's) girlfriend, Gemma Whitehead. The complainant began chatting with Chris Smith and subsequently left the bar with him. At that stage she had consumed a fair amount of alcohol and she was described by a work colleague as being "unsteady on her feet". She accompanied Chris Smith, the applicant and the rest of the party to a second bar in Ashford. At this bar it was apparent that Smith was paying considerable attention to her. In the event the complainant and Smith left the bar together. It seems that both went to his hotel room in a hotel in Ashford.
4. At about 2.00 am Smith telephoned Danny Nightingale to say that he, Smith, had had sex with KL and that she had been sick in the hotel room. He asked Danny and the others to come to the hotel to help clean the room because he was worried about the hotel and what would be said at work.
5. In the event it was Gemma Whitehead who was first in the room. She said that she saw the complainant lying fully clothed on the bed. The room smelt of vomit. She addressed the complainant, asking if there was anyone she could telephone for her. She passed the complainant her handbag and she then left the room, with Smith, Danny and Tommy Nightingale, leaving the appellant behind in order to clean up. Some 25 minutes later the appellant joined his son, Tommy, and told him he had cleaned up the room and that the complainant was well.
6. As far as the complainant is concerned however, she was far from well. Indeed she appears to have been completely comatose until 7 o'clock the following morning. On waking she found that she had on her top but she was not wearing any underwear or indeed her trousers. She got up to look for her clothes but she discovered she was bleeding from her vagina. At that stage she could not recall what had happened the previous night. Some two days later, on 22nd December, she started to recall some of the events of the night. She recalled a man matching the appellant's description moving up and down on top of her and she told her sister and her mother that she thought she might have been raped. It was on the 29th December that she reported the matter to the police, and following further enquiries the appellant was arrested.
7. When interviewed he admitted his presence in the hotel room but at that stage denied having any sexual contact with the complainant. He said he had cleaned the room up for her and he had run a bath for her. He said they had chatted and she had then fallen asleep. He was released on bail pending further enquiries.
8. Some 3 weeks later he contacted the police. He was interviewed further. He admitted that he had had sex with the complainant and contended that it was consensual. He said he had lied about this earlier because he was a married man with children.
9. As far as Smith was concerned, he was arrested and interviewed but a decision was taken not to prosecute.
10. Turning to the other matters bearing upon sentence, the appellant was a man of no previous convictions, with a good work record and the sentencing proceeded without the aid of a pre-sentence report.
11. Turning to the way in which the judge approached the matter, it was in these terms. He drew attention, first of all, to the condition of KL when she arrived at the hotel, pointing out that she was considerably under the influence and so much so that she had no longer the capacity to agree to sex. He indicated that he appreciated that the appellant was not responsible for that state of affairs. He then went on:

"Mr Smith took advantage of her condition and when she was appallingly sick, he rang your son. I am satisfied from what I have heard and read that you knew that Smith had had sex with her. Once you were there, you realised that you too could have sex with her and under the guise of helping clear up the room and assist her, you were able to ensure that you remained at the hotel alone with her. You then had sex with her.

Whatever happened is something that we shall never learn, but we know that for at least the remainder of that week, she was extremely painful, hardly being able to sit up while she met her friend, Monica, on the Friday at midday. She continued to bleed from her vagina.

The offence was a gross breach of her vulnerable condition.

The sentence I pass is slightly reduced for the delay which was no cause of yours, but the minimum proper sentence is one of eight-and-a-half years."

12. Turning to the approach of this court to this appeal, we focus on the sentencing guidelines with respect to rape. They categorise rape under three headings. It is only the first two that we are concerned with. Thus, the guidelines start with "single offence of rape by a single offender", for which a starting point of 5 years is specified, with a sentencing range of 4 to 8. The next category is rape accompanied by various specified aggravating features. For such, the starting point is 8 years and the range is expressed to be 6 to 11.
13. Turning from those guidelines to what appears to have been the approach of the sentencing judge, we are satisfied and accept that the sentence can only be explained by a decision to categorise this as rape accompanied by aggravating features. That gave him a starting point of 8 years, for reasons that he thought appropriate. He thereafter raised that to 9 years and then discounted it, as he said he had done, from 9 years down to eight-and-a-half years, to take into account the delay that had preceded the trial before him, which delay, as he pointed out, had been through no fault of the appellant. That then is our analysis of the way in which he approached the matter.
14. On behalf of the appellant Miss Davies submits that the problem was that he "pitched it too high". Having given careful consideration to all material, we agree with that submission. Granted that one of the aggravated features that causes a defence to be put in the higher category is "abuse of trust", there is no other factor that, as we can conceive could justify that higher categorisation and we respectfully doubt whether the abuse of trust, albeit here, was sufficiently serious to elevate this matter from the lower category to the next higher category.
15. What is our approach? Our approach is to start by looking at the starting point for the initial category, that is 5 years. There are, we readily discern, factors which serve to raise the sentence from that starting point. One such being what in effect is the abuse of trust, that is the decision by the appellant to take advantage of the condition of KL so that he could have the same recompense that Smith had earlier in the same bedroom. That, in our judgment, would raise the appropriate sentence from 5 years to 7 years. Then however we take into account the point that the judge thought appropriate, that is the discount to reflect the delay that meant that this matter hung over the appellant for an unacceptable period of time and we reduce the 7 years to six-and-a-half years. Thus it is that we quash the sentence of eight-and-a-half years, we substitute in its place a sentence of six-and-a-half years. To that extent this appeal is allowed.