England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		22 June 2011

1. LADY JUSTICE HALLETT: On 8th December 2010 at the Blackfriars Crown Court the appellant pleaded guilty to an offence of assault by penetration, contrary to section 2 of the Sexual Offences Act 2003. On 11th January 2011 His Honour Judge Worsley QC sentenced him to five years' detention in a young offender institution, with a direction under section 240 of the Criminal Justice Act 2003 that 109 days should count towards sentence. He appeals against sentence by leave of the single judge. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence and therefore nothing should be reported which might lead to the identification of the complainant.
2. The offence occurred in the early hours of 5th September 2009. The complainant had been for a night out and she returned on the night bus. She got off the bus alone and she made her way to a local kebab shop before going home. The appellant was loitering in the vicinity of the kebab shop and saw the complainant enter and leave. As the complainant walked home the appellant followed her. He approached her and tried to engage her in conversation. The complainant was not interested but remained polite. As she got to her front door she said "goodbye" to the appellant, saying, "Well have a good night." She then entered her flat, but when she went to lock the door behind her she realised that the appellant had hold of the handle from the outside preventing her from locking the door. He said to her that he just wanted to talk. He also asked for her telephone number. The complainant quickly made up a number, but the appellant called it and realised that she had given a false number. By this stage the complainant was getting worried and she told the appellant to "Fuck off". The appellant pushed the door and knocked the complainant over. He forced his way into the flat and knelt on top of the complainant. He put his hand up her skirt and tried to remove her underwear. He then penetrated her vagina with his fingers. The complainant thought the appellant was about to unzip his trousers and rape her. She called out for her housemates, but no one heard her and so she tried to get the appellant to stop by asking him how he would feel if it was his sister or mother being attacked. Initially this did not deter him but he eventually stopped and left the premises. The complainant described the whole incident as lasting about 10 minutes.
3. The police were called and a DNA sample was found on the complainant's underwear. In September 2010 the appellant was arrested on a separate matter and a DNA match was made. He was also captured on CCTV footage outside the kebab shop. On arrest he made a no comment interview, despite the damning evidence against him.
4. The appellant's background is that he was born in Eritrea in April 1990 and he has no previous convictions in this country. He fled Eritrea and was granted asylum until 2012 on the basis of his religion, which may seem strange to some given the nature of this offence. At the time of the offence he was homeless, lived rough and was unemployed. He said he had little recollection of the offence because unusually he had drunk heavily before it. He had done so after receiving the news that his brother had died back in Eritrea. He told the author of the pre-sentence report that he was angry with himself and ashamed. He accepted he had committed the offence but he attempted to minimise his culpability by stating that his actions were underpinned by alcohol. He was assessed by the author as possessing a high risk of further sexual offending and medium risk of violent offending. There was also said to be a medium risk of serious harm to females.
5. Mr Newcombe on behalf of the appellant argued in sensible and succinct submissions three grounds of appeal. First, that the judge erred in placing the case in the top sentencing bracket for the purposes of the Sentencing Guidelines Council's definitive guideline on the Sexual Offences Act 2003 published April 2007; second, that the offence fell within the lowest sentencing bracket, and third, in all the circumstances, given the appellant's background and the circumstances of the offence, five years was manifestly excessive.
6. Mr Newcombe reminded the court that the appellant is still a young man of 20 years of age. His actions, it was said, were out of character and could be explained by the reaction to the death of his brother. He sought solace in the bottle and as an infrequent drinker the alcohol affected him considerably. Mr Newcombe asked us to accept that the appellant entirely misinterpreted the victim's initial friendliness as something more. Thus it was that fuelled by alcohol and encouraged by politeness he perpetrated a serious sexual assault. We would observe that one would not have to be too familiar with the customs and culture of any country to interpret the shutting of a door in one's face correctly. There were by this stage, as it seems to us, no signals to misunderstand. The complainant made her position perfectly plain. The appellant was not welcome. Nevertheless, he persisted.
7. Mr Newcombe also reminded us of the report from the probation service which identified contrition on the part of the appellant and which Mr Newcombe described as generally positive. He took us through the categories of assault by penetration in some detail as they appear at pages 28 and 29 of the definitive guideline. 7.1. Mr Newcombe placed emphasis on the additional aggravating factors listed as if they were an exhaustive list and submitted that none of the aggravating features identified are relevant to the appellant's case. He also reminded the court there was no evidence of lasting physical harm and he submitted no evidence of lasting psychological harm. He very much emphasised that the penetration was minimal or for a short duration. He insisted there was no evidence that the offence was planned as opposed to a spontaneous and opportunist attack.
8. In his written submissions, Mr Newcombe referred us to previous decisions of this court in relation to offences of this kind, but they were very much fact-specific and were appeals in which sentences were upheld. No principles or particular guidance could be derived from them but he sought to rely upon them for the proposition that sentences of 5 years or more should be reserved for the more serious cases.
9. In our judgment Mr Newcombe's submissions seriously underestimate the gravity of this offence. The complainant left the night bus and walked home alone. The appellant spotted her, not only alone but particularly vulnerable at night. He deliberately followed her. He tried to engage her in conversation and despite her making clear that she had had enough of his company, he forced his way into her home as she tried to close the door against him. Having got her to the ground he set about assaulting her in a way that would and did make her think he was going to rape her in her own home. The attack may not have lasted that long, but it was a sustained attack and a terrifying ordeal for the complainant. There may not have been any specific evidence of the victim's having suffered lasting harm over and above what is to be expected following an offence of this kind, but what is to be expected is bad enough. As the Sentencing Guidelines Council made plain, any non-consensual sexual offence is inherently harmful. One committed in these circumstances even more so. The appellant may have stopped short of penile rape, but he still penetrated the complainant in a violent fashion. He persisted in the attack despite her shouts for help. In those circumstances, as the single judge observed, it would be unrealistic to describe the offence as opportunistic. There was here clearly a degree of calculation to the appellant's behaviour. It would also be unrealistic to argue that the offender's culpability falls into the lowest category of offences.
10. The relevance of an offence of this kind being committed in the complainant's own home was highlighted by the Lord Chief Justice, Lord Judge, giving the judgment of the court in Attorney General's Reference (Nos 73, 75 and 03 of 2010) [2011] EWCA Crim 633. At paragraph 3 he said this:

"The court has said before, and repeats in words which resonate now over the centuries, that the home should be, in the vivid words of Sir Edward Cooke CJ, our safest refuge. It is the place above all which should be inviolable, where we can be left undisturbed and at peace. It is bad enough to be the victim of a burglary even when the occupant is away from the house; worse still to wake up to the chilling discovery that a burglar has made his way into the house and then for the occupant to remember that she is on her own, vulnerable and, if there is any confrontation, defenceless. But to be burgled and then subjected to the dreadful indignity of a violent sexual offence is to become the victim of a pitiless, wicked crime. Because these are pitiless, life-scarring, deliberately committed crimes, while of course every allowance should be made for such genuine mitigation as there may be (and often there will be none), there is no room in the sentencing process for mercy, save for an appropriate sentencing discount for those who plead guilty, face up to what they have done, and spare their victims the further ordeal of having to give evidence in a public court."

The Lord Chief Justice continued by describing the impact of such crimes upon the victims and gave some guidance as to the level of sentence that is to be expected where a rape is committed after or in the course of a burglary in a home.

Thus, although the aggravating feature of a sexual offence being committed in a complainant's home does not feature within the definitive guideline as such, this court has come firmly to the conclusion that it is a significantly aggravating feature and we have no doubt that this approach accords with the guideline itself. The Sentencing Guidelines Council states in its introduction under the heading "General Principles" that for sexual offences more than others the sentencing process must allow for "flexibility and variability". The suggested starting points and sentencing ranges are not rigid and the list of aggravating features is not intended to be exhaustive.

12. Mr Newcombe took exception to the judge's having indicated that he believed there was a case for saying that the appropriate starting point before a plea of guilty for this case would be eight years. However, to our mind there are a number of ways in which the judge could have reached such a figure. One way was to select the top category given the gravely aggravating feature of this appellant's having followed a woman home, forced his way into her home and committed a sustained sexual assault upon her. Another approach would have been to select a figure of five years from a lower category, increase it to reflect the aggravating features. Whatever approach is and was adopted, in our judgment given all the circumstances of the offence and the offender the figure of five years was not outside the permissible range for offences of this kind, having allowed for the plea of guilty.
13. Finally, we mention one aspect of the case not directly pertinent to this appeal, but for the information of sentencing judges. His Honour Judge Worsley indicated in his sentencing remarks that there was "no point in considering the need for an extended sentence, that is an extended licence period, because you will be deported automatically at the end of your term of imprisonment as part of the overall sentence." The provisions described as "automatic deportation" in fact do not necessarily lead to the automatic deportation of an offender. The provisions lead to a liability for deportation. Judges should not, therefore, pass a shorter sentence or a sentence different in nature from one they would otherwise have passed on the basis they have been informed that the offender is liable to automatic deportation.
14. Having said that, and having made those observations, for the reasons given we are satisfied that the sentence was not excessive and the appeal must be dismissed.