England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		12th October 2010

1. LORD JUSTICE RICHARDS: On 27th August 2009, after a trial at Reading Crown Court presided over by His Honour Judge Terence Maher sitting as a Deputy Circuit Judge, the appellant was convicted of two counts of rape, one of assault by penetration, one of causing a child to engage in sexual activity and one of sexual assault. On 15th October 2009 he was sentenced by the same judge to concurrent extended sentences of imprisonment of 15 years, comprising a custodial term of 10 years and an extension period of 5 years on the counts of rape. Concurrent sentences of between 12 months and 2 years were imposed for the other offences. It was directed that 203 days spent on remand should count towards sentence. Appeals are now brought against conviction and sentence by leave of the single judge. We deal at this stage with the appeal against conviction.
2. The complainant was a 14 year old girl, C. On 23rd October 2008 she arrived in Slough to see her sister. She walked through a park on the way to her sister's house. In the park she met the appellant, whom she did not know. She alleged that he waylaid her and accused her of stealing his sister's mobile phone. By threats and intimidation he made her go into some bushes where he penetrated her vagina with his fingers, forced her to masturbate him and raped her. He then forced her by a series of threats to go back to his flat, where he again raped her and submitted her to a further sexual assault by making her expose her breasts so that he could kiss them. He then walked the complainant to her sister's house, where she was in a state of considerable distress and made a complaint to her sister and her mother whom the sister had called. The police were then called. The complainant was interviewed and was medically examined.
3. The appellant was arrested the same evening and was interviewed. He denied the complainant's allegations. He said that he had seen her in the park talking to his friend "Becky" (Rebecca Bourne) and a man called Jordan. They had all come back to his flat. There had been no sexual contact with the complainant.
4. Among the developments prior to the trial was a witness statement from Rebecca Bourne saying that she had been in the park with her ex-boyfriend, Carl, and she had seen the appellant but she made no mention of having seen the complainant. She denied having gone back to the appellant's flat that day. There was also forensic evidence from examination of samples taken from the appellant that the complainant's DNA was on the appellant's penis.
5. At the trial the complainant's evidence in-chief was given in the form of a video-taped interview by the police in which she had given a very detailed account of the assaults she alleged had taken place in the park and in the appellant's flat and of the general surrounding circumstances. Among specific points that it is relevant to note are these.
6. It was not entirely clear from her account of the sexual intercourse that took place in the park how deep was the alleged penetration on that occasion. Her account was that the appellant said to her: "I'm going to fuck you right now", took her trousers down, made her bend down and had intercourse with her. He then said: "No, that's deep, I ain't going to do that to you, I ain't going to do that, I am not a rapist or anything."
7. With regard to the sexual intercourse that took place in the flat, she gave this account. She said that the appellant said to her: "Fuck it, I'm going to rape you again". He made her take off her trousers and threatened to break her ribs if she did not do as he wanted. She kept getting off him because it hurt so much but he threatened that if she moved again he would stab her, so she sat on his erect penis as he wanted and it really hurt. When she got off there was blood everywhere. He asked her if she was a virgin and she said she was.
8. She was cross-examined at length on her account of what happened in the park and in the flat and on inconsistencies in what she had said at various times. She was also cross-examined about an incident in January 2009, when it was alleged that she had made a false complaint of rape: she had been out with a group of friends and had been very drunk; an ambulance had been called and the police had become involved; she said at one point she had been forced to perform oral sex on two boys, but she did not pursue any complaint to that effect. Her reaction when this was put to her in cross-examination was she could not remember much about it because she was so drunk at that time.
9. The complainant's elder sister gave evidence about phone calls she had received from the complainant in the course of the day and about the complainant's distress and complaint on arrival at the sister's house.
10. There was evidence from a doctor that on her medical examination of the complainant, she believed from the blood which she saw that there was a fresh injury to the posterior wall of the vagina which was consistent with non-consensual sexual intercourse. She could not rule out that the cause was consensual intercourse but such injuries in consensual intercourse were, in her view, very rare.
11. Rebecca Bourne gave evidence in-chief that she had seen the appellant in the park that afternoon but had not gone to his flat. In cross-examination by defence counsel she said that she had seen the complainant with her ex-boyfriend, Carl, in the park and that the appellant had invited them all back to his flat. In the light of that evidence the prosecution applied successfully for leave to treat Rebecca as a hostile witness. In further cross-examination by the prosecution, she accepted that in her initial statements she had said nothing about seeing the complainant in the park. She also admitted having received a letter from the appellant which had been intercepted by the Prison Service. It seems a copy had been made or retained of only one page of the letter. It included the following passage:

"write your statement out for you what you must say, so try to remember it LOL. But hun on the day you come court, plz you need a straight head, you'll probably give evidence may be on Wednesday, I'll find out but don't come in the courtroom coz you'll fuck up the whole case."

Her explanation of that letter was that she could not remember in detail what she had said to the police and she had raised this with the appellant, who said he would copy out her original statement for her.

12. The appellant himself gave evidence. In his evidence he gave an account which was in important respects materially different from that given in his interview. He still said that he had met Rebecca in the park talking to the complainant. He said that Rebecca's ex-boyfriend, Carl, was there (the man he had previously called Jordan) and he thought the complainant was with Carl. He accepted, however, that he had lied to the police in interview about the presence of Rebecca and Carl at the flat. He said that there was no sexual contact between him and the complainant in the park and that all her allegations relating to the park were false. In the flat she had given him a peck on the cheek and taken the initiative. They had kissed and she had put her hand on his trousers. She stroked his penis and he put his hand in her knickers. She did not object. She told him she was a virgin. She took his hand to lead him into the bedroom but he wanted to remain on the sofa. He remained seated and she sat on his erect penis and almost immediately cried out in pain. When she got off there was blood on his penis and on her. His reaction was that they should not have been doing this, and they cleaned themselves up. It had all been entirely consensual.
13. He agreed that he had lied in interview about not having had sex with the complainant and about Rebecca and Carl having been in the flat. He said that he heard the complainant tell Rebecca that she was aged 16 but once he was told that she was only 14 years old he thought he was going to be in trouble if he admitted he had sex with her. He was concerned about the effect this would have on him as he was on tagged curfew at the time. He said he simply wanted to get out of the police station.
14. Leave to appeal was granted on one ground, to the effect that the judge's summing-up was unbalanced and contained improper comment adverse to the appellant, with the result that it caused unfairness to the appellant and rendered the convictions unsafe. The ground has been developed in argument before us by Miss May on behalf of the appellant. We are grateful to her for her submissions, expressed very clearly in writing and underlined by succinct and focused oral argument.
15. Before we come to the summing-up itself we should mention one matter relied on by way of background. There was an issue at trial about the admissibility of references in the complainant's interview to the appellant wearing a tag, that is to say a curfew tag. Through no fault of defence counsel it came to be raised by the defence at a late stage, at a time when the interview was actually being played to the jury. The jury were asked to retire. After legal argument the judge refused the defence application that the references be cut out. Leave to appeal in respect of that ruling has been refused and is not renewed. What is relied on, however, as illustrative of the judge's approach to the case is the way he went on to deal with the point in front of the jury. He had told counsel that he would tell the jury not to speculate as to why the curfew was reinforced by a tag and he did in fact eventually give such a direction in his summing-up. But complaint is made of the fact that when the jury came back into court immediately after the ruling, the judge referred to the legal argument that had taken place in their absence, saying:

"The reason is that there was a problem identified which has now resolved in the transcript of the interview. You will see what it was when we get to it because there is a reference to the defendant being tagged as part of a curfew. The mention of curfew and tagging suggests obviously that somebody was on bail for something else at the time. It is actually totally irrelevant in one sense to the rights and wrongs of this case although I've given my reasons for dealing with it and I will give you a further direction on it."

16. Miss May submits that the judge should not have informed the jury of the nature of legal argument and in any event he should not have expressed himself in terms that by implying the defence did not wish the jury to know of the fact of a tagged curfew would have left the jury with the impression that this was something significant and damaging to the defence. We do not think there is any great force in that point. It was not inappropriate for the judge to give the jury an explanation along those lines straightaway, while the video of the interview was being played, since they were about to hear about the curfew and the tag and there was also evidence by the complainant that the appellant had told her he had been to prison and had stabbed people. The judge was right to tell the jury that it was irrelevant and to refer to the fact that he would give them a further direction about it as in due course he did.
17. Turning to the summing-up itself, Miss May submits that the judge made numerous comments and used unnecessarily emotive language and that the overall tenor of the summing-up was to cast scepticism on the defence points while bolstering the prosecution case.
18. The first passage referred to is early on in the summing-up, when the judge told the jury that they could accept or reject part of a witness's evidence and did not need to decide every question. He continued:

"It is a rare trial where every issue explored is answered in one direction or the other. As you have seen the most minute questions are asked of all sorts of matters, major and minor. And whether some of the matters of detail, pursued relentlessly at times, are of any help to you can be left to your good old common sense.

There is one thing that is as plain as a pikestaff here. One person or another in this trial is absolutely lying themselves blind. There is no way in which the two principal accounts which have been laid before you can be reconciled, so one or the other is lying.

As far as [Mr Joseph] is concerned there are a good number of lies admitted by him and I will give you a direction on that in due course. As to [C], there is areas where it is said she is lying, there are no admitted lies and you will have to deal with the attack on her as best as you can."

19. It is submitted that that passage contains an implied criticism of the defence conduct of the trial, potentially prejudicing the jury against the appellant at the outset, and that the way he flagged up the appellant's lies at this early stage was likewise prejudicial to the defence case. That prejudice is said to have been increased shortly afterwards by these remarks (6-7C):

"Although the defence have said to you, entirely reasonably, that in one sense this case will involve the weighing in the balance of one person's word, [C] against [Mr Joseph], there are other factors here which may be of assistance to you, upon which I will give you a direction, I repeat, namely, (1) the lies which he told, which are capable of being unhelpful to a defendant, and (2) an inference which you may draw that the defence put forward in the course of this trial is a late invention to fit in with the facts of the prosecution case. So those are two matters which we will be exploring, whether today or tomorrow I do not know."

20. Attention is also drawn to the very different approach taken by the judge when he referred to the defence case that the complainant herself had told lies. Having referred to the complainant's interview and the cross-examination of her, the judge said that the jury had had the chance to ask themselves whether they were hearing a truthful and reliable witness. He went on at page 14G to 15D:

"The nature of the attack on her is rather stark. It is that every detail damaging to the defendant about what happened in the park is totally made up and apart from, to put it neutrally, the act of sexual intercourse in the flat, her account almost entirely is a tissue of lies. And that in the way that really makes one's blood run cold, she has lied to her sister and her mother, has lied over an extended period to the police in the video interview and kept up those lies over a number of hours in your presence when she was being cross-examined. She is 14. You must decide what you make of that. It is a very serious accusation to make against her of course. I do not lose sight of the serious nature of charges against the defendant."

21. Miss May goes on to refer to various comments made by the judge on the details of the complainant's evidence. In relation to cross-examination of her to the effect that even on her account she had ample opportunity to escape from the appellant, the judge stressed her young age and contrasted her physical attributes with those of the appellant, saying that physical differences might be of assistance to the jury in dealing with the many questions put to the complainant as to why she did not do this or that. It is submitted that the effect of the judge's remarks was to express exasperation about a proper and important line of questioning and to diminish it in the eyes of the jury. It is also said that the judge was wrong to express his own opinion on comparative physical attributes.
22. A further submission is that the judge made comments effectively suggesting the apparent truthfulness of the complainant's evidence. For example, he referred to the detail of her account, saying (page 20D to E):

"This is the account -- I am not going to go into this detail with everything -- but one of the matters you must have to decide is: all this mass of detail on many fronts, is it all pure invention or made up because that is what the defence case is. She has not just generally said I was touched up in the park and raped by someone, she has surrounded with this mass of detail."

A little later, in relation to the defence challenge to aspects of her account the judge said this (page 21C to E):

"If she is as cold bloodily calculating as this, do you not think it would have been obvious to her if she is going through this mental process that she would be saying, now if I tell the police that he touched me up, made me lift up my top in the park as opposed to the bushes maybe I better not say that because the obvious question to be put to me is the one that wasn't put, so this was happening not in the bushes but on the path when other people are going by."

23. In dealing with evidence as to recent complaint and the issue of apparent inconsistencies between the account given to the complainant's mother and what the complainant subsequently told the police, the judge observed that the mother had found the experience of listening to what her daughter was saying deeply dressing and had found going through court distressing:

"When you are distressed this may make it all the more difficulty for you to recall with any accuracy what was said and so on and so forth."

This is submitted to have been unnecessarily and detrimentally emotive language especially when combined with the judge's observation in relation to two of the discrepancies relied on by the defence:

"It can be left to your common sense to evaluate that as to whether the defence have identified something sinister or whether it is hair splitting."

24. It was necessary to adjourn for the day part way through the summing-up. At the end of that day the judge asked counsel if there was anything they wished to raise. The appellant's counsel asked if she could have overnight to consider her position and on the following morning she asked the judge to highlight certain points of inconsistency in the complainant's evidence which had not been mentioned in the judge's summary of that evidence. The judge duly reminded the jury of those matters at the beginning of the following day but complaint is made of the fact that he told the jury that the defence had asked him to bring those points to their attention, and of the fact that after reminding the jury of those points he said this (page 23E of next transcript):

"What the defendant are endeavouring to do is to see if there any inconsistencies there which might help you in assessing her reliability. I repeat the comment I made yesterday that where someone is interviewed as they were here over two hours and then cross-examined about a year later over a fairly extensive period, it is inevitable that there are going to be some differences. No-one will ever give the same account in the same words and where there are differences and I highlighted these at the request of the defence, the real question for you is well is that not what one would expect or are there differences which are significant and important and that can be left to your good sense."

25. It is submitted that the effect of the judge's approach was to water down any legitimate defence point and to repeat scepticism already expressed as to the defence arguments.
26. Criticism is also made about what the judge said about Rebecca Bourne's evidence. He wrongly described a hostile witness as "a witness who in effect has not told the truth", though he went on to make clear to the jury that they had to decide whether the prosecution was right that Rebecca was lying at the behest of the defence or whether the defence were right and she was telling the truth. In relation to the prosecution cross-examination of her by reference to the omission from her witness statement of any reference to having seen the complainant in the park and her explanation that the complainant's presence did not seems to her to be important, the judge said that:

"The prosecution attack on her was that is an absolute tissue of absurdities."

Miss May submits that this was inappropriately strong emotive language.

27. Before dealing with the appellant's police interview the judge referred to evidence of an unsolicited comment allegedly made by the appellant while in the police car after his arrest, namely: "Why the fuck would I rape some little girl, I've got my own Mrs to play with?" The appellant denied making that remark, and the judge recorded this denial and also reminded the jury that the correct procedures had not been followed and that the remark had not been put to the appellant at the time it should have been put to him. Complaint is nonetheless made that the judge referred to the remark at length and in terms that suggested that the remark had been unhelpful or detrimental to the appellant, whilst making only passing reference to the defence case on the issue.
28. In closing submissions the defence mentioned that the appellant did not have to give evidence but that he had chosen to do so and that his evidence was to be approached in precisely the same way as the evidence of the prosecution witnesses. Complaint is made of a comment made by the judge on that issue. He said (page 39D to 40A):

"It is entirely true, as the defence said, he did not have to respond to questions when interviewed at the police station. Nor did he have to give evidence before you but where the law is mentioned it is perhaps best if it is mentioned accurately and fully, a defendant is told at the police station,... you do not [have] to say anything but if you fail to mention now something which you later rely on in this court it may harm your defence. That is the real position. Exactly the same goes for evidence in court. The defendant does not have to give evidence. It does not arise in this case, but he did. But the correct position is a defendant who fails to give evidence may hear a jury being told in appropriate circumstances you can hold it against the defendant that has not gone in the witness box. That is the correct position. I simply mention that because baldly to say he did not have to give evidence is not quite the entire position but here he did give evidence."

The judge's comment, it is submitted, was superfluous and inappropriate.

29. During his actual interview the appellant identified a second person present in the park, who at that time he called Jordan, but he did not provide the police with details that enabled the person to be found. In cross-examination, for the first time, he gave a better description and identified the person concerned as Rebecca Bourne's ex-boyfriend, Carl. The judge dealt with this point in some detail in the summing-up, referring to the vagueness of the description given in interview and why the police were unable to find the person. The judge went on to say that now the man was said to be Rebecca's ex-boyfriend, Carl, and the jury might think it would not be too difficult for him to be identified. But they should not ask why the defence had not called Carl to give evidence. They must not hold against the appellant that Carl had not made an appearance in the trial and they must not speculate as to what he would or would not have said. Nevertheless the judge said next that they could be confident that if Carl had given evidence he would not have maintained the appellant's account that he was in the flat at the material time, because the appellant now agreed that Carl was not there. The judge concluded on this topic by saying (page 48G to 49D):

"You may think there is something in the question put by the prosecution to Mr Joseph which was in essence look on your account this man Jordan/Carl can actually say a number of very helpful things to you about what was going on in the park and the obvious answer to that is yes, but he is not here and you must do the best you can as you have been told with the evidence as it is.

When he was a little further pressed on this matter the defendant said to you he did not actually see why Jordan should be brought into his issues (I think that was his expression) at all. He was not in any real sense trying to throw them off the scent, just did not see why he should be brought into the picture. So there we are.

Not surprising the police could not find him. Could you find anyone on the basis of the description given in the defendant's statements?"

30. Various criticisms are made of the judge's approach to this issue, including that it amounted to speculation as to the assistance the witness could have given and that the judge was wrong to criticise the appellant for not having called such evidence even though the appellant bore no burden to prove his case. It is said that the judge's approach detracted from the admittedly correct direction he had give on the burden of proof. If any comments along these lines were to be made the judge should have followed them by a clear reminder that it was for the prosecution to prove its case and not for the appellant to disprove it or to prove his own defence.
31. We have gone through the various detailed criticisms made. Miss May relies on the cumulative effect of the matters to which she has referred. She has reinforced her case with citation of authority on the need to strike a fair balance in the summing-up between the prosecution case and the defence case and to avoid leaving the impression that the judge favours the prosecution rather than the defence. She refers to R v Bailey [2001] 1 Cr App R(S) 21 and R v Bryant [2005] EWCA 2079. As to the need to avoid extravagant language and comments that are the stuff of advocacy, she refers to R v Wood [1996] 1 Cr App R 239. With regard to need to avoid comments that detract from the burden of proof, she refers to R v Wright [2000] Crim LR 510.
32. We accept that the summing-up in this case is open to criticism in a number of the respects put forward by Miss May. It is however to be stressed, as Miss May accepted, that the judge gave the jury conventional and appropriate directions at an early stage in his summing-up that it was for them to decide the facts and to assess the truthfulness and reliability of the witnesses and that the jury should disregard any comment or observation the judge might make if they found it unhelpful or disagreed with it, because the only view on the facts in a criminal case was the view formed by the jury. The judge's various comments on individual topics need to be seen in that context.
33. Turning then to the comments of which specific criticism has been made: first, the judge was entitled to highlight the appellant's admitted lies as an important feature of the evidence in the case. Indeed we are told that the appellant had been taken through each suggested lie in cross-examination. It is also to be noted that in due course the judge gave the jury a Lucas direction, in conventional terms, making it clear it was for the jury to assess the significance of all lies told by the appellant. Nevertheless we do accept that the early and repeated references to the appellant's admitted lies went further than was necessary or appropriate. We also accept that what the judge said about the defence case that the complainant had told lies was expressed in very strong terms and might have been taken as indicating some judicial hostility towards that case.
34. As to the specific comments concerning the complainant's evidence, there is little substance in the criticism concerning the judge's expression of opinion about the respective physical attributes of the complainant and the appellant. The jury had seen the complainant give evidence on the video and from behind a screen in court. They had also seen the appellant in the video of his police interview and in court. They were well able to form their own view about physical attributes. The judge was entitled to draw attention to this factor as a plainly relevant consideration. The way that he did so did not, in our judgment, involve an expression of exasperation about the defence case, as has been submitted.
35. What he said about the distress of the complainant's mother and the difficulty of recollection when distressed was also, in our view, unexceptionable. On the other hand, it certainly would have been better to avoid extreme language such as "sinister" and "hair splitting" when directing the jury to consider the significance of any discrepancies between what the complainant had told her mother and sister and what she told the police. The way in which the judge described the defence case as to the complainant's lies, namely that she had lied "in the way that really makes one's blood run cold", is another example of unduly strong language.
36. As to his comments when at the beginning of the second day of the summing-up he was asked to and did draw attention to certain inconsistencies in the complainant's evidence, we agree that it would have been better not to state in terms that he was doing so at the request of the defence rather than, for example, stating this was an aspect of the defence case to which they should have regard. There was nothing fundamentally wrong with reminding the jury that they had to decide whether the inconsistencies were significant but we accept that the repetition of this and the manner of repetition might have suggested that the judge himself considered the inconsistencies to be insignificant.
37. We agree that the judge used strong language, and language that might be taken to have been taken to be favourable to the prosecution, when describing the prosecution attack upon the evidence of Rebecca Bourne. He made a meal of the evidence concerning the appellant's unsolicited comment in the police car after his arrest. We are told that the prosecution case was that the comment that the appellant was alleged to have made was indeed detrimental to the defence: it had been opened to the jury and it had been explained that at the time of making the comment the appellant had not been told the allegation related to a young girl, so his comment implied knowledge of the allegation and the circumstances. In our view, the judge was entitled to refer to the comment but he did not explain to the jury where if anywhere the point might be thought to lead. There is some force in the contention that he dealt with it in terms that were prejudicial to the appellant's case.
38. As to what the judge said about the inferences that could have been drawn if the appellant had not given evidence, the judge evidently saw himself as correcting an erroneous or incomplete statement about the law in the defence closing speech. Nonetheless the elaboration of his correction tended to water down any advantage defence counsel sought to derive from the fact that the appellant had actually given evidence. All were agreed, however, that since he had given evidence, that evidence had to be approached in the same way as any other evidence, and it seems to us that in practice the judge's comment can have caused little damage to the appellant's position.
39. As regards what the appellant had said about the man in the park he called Jordan or Carl, the judge was entitled to comment on the vagueness of the description that the appellant had given in interview and to warn against speculation. We accept, though, that he made rather too much of it and risked tempting the jury into speculating after all in a manner adverse to the appellant as to why the witness had not been called and what evidence he might have given. If the topic was to be dealt with, it would have been better dealt with much more crisply than the way in which the judge handled it.
40. In summary, the judge said some things he should not have said and by the use of some emotive or strong language about the appellant's case or the repetition of points adverse to the appellant, such as the appellant's admitted lies, he failed to maintain a perfect balance in his summing-up of the evidence. There was, however, no major gap in the summing-up, which drew attention to the relevant features of the defence case as well as of the prosecution case. Moreover, as we have said, the judge made clear to the jury that it was for them to decide the facts and that they should disregard his opinions if they considered them irrelevant or wrong. The fact that the jury retired for over six hours before reaching their verdicts is itself an indication that they took their task seriously and were giving full consideration to the evidence.
41. Further, and very importantly, it is plain, in our judgment, that the evidence against the appellant was in fact very strong. It may have been the judge's appreciation of this which caused him to go somewhat too far in his comments on the evidence, rather than leaving the evidence, as it would have been so much better for him to do, simply to speak for itself.
42. Looking at the case as a whole, we are not persuaded that the various points of criticism of the summing-up to which we have referred were such as to undermine the fairness of the appellant's trial or to cast doubt on the safety of his conviction. This is not a case where we feel even a lurking doubt, which we mention since Miss May deployed R v Cooper [1969] 1 QB 267 at the end of her submissions. For the reasons we have given the appeal again conviction is dismissed.
(Submissions re: sentence)
43. LORD JUSTICE RICHARDS: The court has dismissed the appellant's appeal against conviction. We now turn to the appeal against sentence. The sentence imposed by the judge in respect of the rape counts was, as we have already said, an extended sentence of 15 years, with relatively short concurrent sentences on the other counts.
44. The appellant was born on 2nd January 1988 and was 20 years old at the time of the offences. He had convictions for 23 previous offences including assault, criminal damage and possession of an offensive weapon. In 2004 he was sentenced to a 4 month detention and training order for an offence of unlawful wounding. In March 2009 he was sentenced to 3 months' imprisonment for common assault.
45. The pre-sentence report referred to the behavioural problems that he had as a child, as a result of physical abuse and emotional neglect. The author of the report considered him to show poor temper control and a tendency to react aggressively in difficult situations. There were concerns that he had insufficient control over his sexual desires, which should be addressed through the Sex Offender Treatment Programme. The section relating to assessment of risk is a little confusing. The application of the standard matrix was said to place the appellant at high risk of reconviction if released immediately, or medium risk if released after age 25. The indicators of violence were said to be very high at this time and higher if he was released after age 25. The author of the report, however, considered the dynamic risk factors to be lower than those presented by the matrix. The author's assessment was that "he does not pose a significant risk to members of the public of serious harm but does pose a high risk of serious harm to the public through the commission of further violent offences". Nonetheless he was not considered to meet the dangerousness criterion because, as it was put, the risks he posed were not imminent even if he were at large, nor would they necessarily result in serious harm. The report recommended that he be made subject to an extended sentence. It was evidently the view of the author of the report that the conditions for an extended sentence were met.
46. In sentencing him the judge described the offences as shocking. He said that one of the slightly disturbing aspects of the complainant's evidence was her description of how in a very volatile way the appellant would change very quickly from apparently being understanding and kind to being threatening and intimidating. The judge referred to the evidence of bleeding consistent with non-consensual sexual intercourse but accepted that there were no other marks of violence on the complainant. He said that he accepted the submission that the appellant was not dangerous so as to qualify for an indeterminate sentence but he considered that it was an appropriate case for an extended sentence, that is to say a sentence pursuant to section 227 of the Criminal Justice Act 2003 as amended. There was a significant risk to members of the public of serious harm occasioned by the appellant's commission of further specified offences. The judge noted and adopted the observations in the pre-sentence report. He said that in addition to the appellant's emotional difficulties, the appellant had been using cannabis for the past 6 or 7 years and had been drinking alcohol regularly. He had previously acted violently when he had more than enough to drink. The judge also referred to other aspects of the pre-sentence report in support of the conclusion he had reached. He made clear that rather than pass consecutive sentences for the other counts he was reflecting the appellant's overall criminality in the rape counts, and that is how he arrived at the sentence of 10 years. He said that if the appellant had been a much older man he would probably have looked at a sentence of something like 14 years.
47. Leave to appeal was granted on the narrow basis that whilst the judge was fully entitled to impose an extended sentence, it was arguable that the length of the extension period and thus the sentence as a whole was excessive, having regard in particular to the appellant's age and the length of the custodial term.
48. Miss May made clear in her oral submissions however, that she takes issue with the principle of an extended sentence as well as with the length of the extension period if an extended sentence is found to have been appropriate. Although there has been no formal renewal in respect of the challenge to the extended sentence itself, we have allowed her to put forward her submissions on that issue.
49. In support of the position for which she contends she draws attention to a number of matters: the appellant's age at the time of the offence, the fact that although he has an unenviable record he has no previous convictions for any sexual offence, and that the conviction he has for an offence of wounding was some time ago, when the appellant was aged only 15.
50. She tells us that the appellant is taking advantage of programmes in prison of the kind that it was indicated in the pre-sentence report he ought to engage in. It is said to be likely that he will complete all relevant programmes within the period that he has to serve in custody, that is to say by the end of the first half of the custodial term, and that there is no need for any extension of the licence period to encompass such programmes. The point is made to that the pre-sentence report indicated a reduction in risk once the appellant reaches the age of 25, though it is conceded that it is only a reduction to medium risk to which reference is made in the report.
51. Attention is drawn to the appellant's difficult background history, which again is developed in the pre-sentence report. As to the circumstances of the offence, perhaps the best point to be taken and the point on which Miss May focuses is that the offence was not pre-planned.
52. For those reasons, the submission is made that the extended sentence is wrong in principle, alternatively that the extension period is simply too long.
53. We disagree. Although we have referred to the confusion in the pre-sentence report about the issue of risk of serious harm, we are satisfied that the conditions for the imposition of an extended sentence of imprisonment were met in this case. Further, on the information before the court, we consider that an extension period of 5 years was not longer than necessary for the purpose of protecting members of the public from serious harm occasioned by the commission by the appellant of further specified offences.
54. It is true that the custodial term should be long enough to enable relevant course to be completed while in custody and we note the assessment in the pre-sentence report, even if rather confusingly expressed, that the risk posed by the appellant would be lower on his release after aged 25. There is, however, no assurance that the risk posed by the appellant will be reduced at that point to an acceptable level or that an extension period is either unnecessary or can be shorter than the 5 years fixed by the judge.
55. The conclusion to which we have come is that the sentence imposed was neither wrong in principle nor excessive. The appeal against sentence is therefore also dismissed.