England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		27/06/2012

Mr Justice Hamblen:

1. On 23 November 2011 in the Crown Court at Preston the appellants each pleaded guilty to two counts of rape contrary to s.1 (1) Sexual Offences Act 2003. They were both sentenced by the Recorder of Preston, HH Judge Russell QC, to Imprisonment for Public Protection (an "IPP") with a specified minimum period of 6 years, less time spent in custody. They appeal against that sentence with leave of the single judge on the grounds that the imposition of an IPP was wrong in principle and/or that the minimum of the notional determinate sentence was manifestly excessive. The appellant Ibrahim also contends that he should have received more than 25% credit for his guilty plea and that he should have been distinguished from his co-accused.
2. The essential facts are as follows. The 24 year old victim, L, spent the evening of 25 June 2011 with her brother and some of her brother's friends from America. They visited a number of bars and clubs in Preston and L became quite drunk. She also took some cocaine. She became separated from the group and at about 4am on 26 June, she left a nightclub on her own. She started to walk down the main street in Preston when she came across the appellants and another man. She became involved in a conversation with Ibrahim and then accompanied them back to Nouri's flat, which was nearby.
3. Her next recollection was of waking up in the flat. She was naked and three men were in the room with her. Ibrahim was standing over her as she recovered consciousness and he put his penis into her mouth. He pinned her down by the shoulders and she tried to push him off. Whilst this going on, another man was raping her vaginally. She thought Ibrahim ejaculated. She constantly told them she did not want to have intercourse with them but they ignored her. Both men were laughing. Ibrahim then lay on top of her and raped her vaginally. She said that Nouri then entered the room and grabbed hold of L and dragged her into the bedroom. It was Nouri's case that she passed through his bedroom and that he did not take her to it.
4. Once in the bedroom, Nouri raped her vaginally. L believed she passed out again but remembered telling him she wanted to leave. He told her she had nowhere to go and shouted at her not to be silly as he raped her. She believed he ejaculated inside her. She was then pushed into a bathroom, where she found her clothes. Nouri told her to get out. She dressed and left the premises, but then realised she had forgotten her phone. She believed it was still in the flat and banged on the window and asked to be let back in, so she could retrieve it. She was admitted and found the phone on the bed. As she bent down to pick it up, Nouri pinned her down by her shoulders, pulled her pants down to her knees and raped her vaginally again. When he had finished, he pulled up her clothing and pushed her out of the flat.
5. L made her way towards the railway station. She was in a very distressed state. She came across a group of males and told them she had been raped. They called the emergency services and they attended very quickly. L was taken to hospital where she was medically examined. The appellants' DNA was found on her clothing.
6. The appellants were arrested. When interviewed, Ibrahim denied having intercourse with L but could not explain the DNA evidence. Nouri admitted having intercourse with her but claimed it was consensual.
7. As the Judge observed in his sentencing remarks, L was subjected to a horrific ordeal. She was effectively gang raped by the appellants and another.
8. The Judge concluded that the fact and circumstances of the offences established that the appellants were dangerous. He said that they had been out of control and people who could get out of control in this way were dangerous and that this view was reinforced by what the probation officers had found. He considered that an extended sentence was not sufficient to protect the public and therefore they would be sentenced to imprisonment for public protection. He also considered that the offences fell into the top category of the sentencing guidelines and that the appropriate determinate sentence would have been 16 years following a trial.
9. We propose to consider first the issue of whether a determinate sentence of 16 years after a trial was manifestly excessive for this offending.
10. It was submitted that such a sentence is manifestly excessive as it wrongly treated the offences as falling within category 1 of the Sentencing Guidelines whereas they are more appropriately to be considered as falling within category 2.
11. Category 1 is for "repeated rape of the same victim over a course of time or rape involving multiple victims". It has a starting point of 15 years custody and a sentencing range of 13-19 years custody.
12. Category 2 is for rape accompanied by any one of various listed features which include abduction or detention, more than one offender acting together, and sustained attack. Where any of those features are present the recommended starting point is 8 years and the sentencing range is 6-11 years. The Guidelines indicate at para. 2A.4 that "the existence of aggravating features may significantly increase the sentence".
13. We consider that there is force in the submission made that, where there is a single victim, Category 1 is mainly directed at a campaign of rape committed over a period of time. That is not this case.
14. However, we agree with the Judge that this was a case which had more than one of the features, any one of which put the rape into category 2. There was, as the Judge found, an element of abduction or detention. The appellants took her to the flat knowing that she was in no real condition to resist. They ignored her pleas to be allowed to leave. There was also a sustained attack. This was in effect a gang rape with the appellants taking turns to rape the victim. It was also a case of more than one offender acting together. This was so in relation to the offending generally and specifically during the oral rape of the victim by Ibrahim.
15. A number of the listed aggravating features were also present. There was ejaculation (A1). There was an element of abduction and detention (A5). Even if drugs or alcohol was not provided to facilitate the offence, the appellants took advantage of the drugged and drunken state of L in order to carry out the offence (A3).
16. Further, for both appellants there were two counts of rape.
17. As the Judge stated and found:

"The fact that there were three of you was particularly intimidating. In my judgment, this case does involve elements of abduction or detention of a vulnerable person whose guard was down because she had consumed alcohol. She was picked up in the street when she was in a vulnerable position and she was taken to a strange premises and kept there. This was a sustained attack and it was particularly humiliating and degrading because throughout the people who were perpetrating the offences were laughing. The forensic evidence confirms evidence of the victim that you ejaculated.

I have also read the victim statement and a letter from L's mother. The consequences of your crimes upon both the victim and her family have been devastating."

18. The Judge's conclusion was not that this was a category 1 offence, but that the combination of aggravating factors made it equivalent to a category 1 offence. As he stated: "the combination of factors which I have mentioned takes the case above the second category because there are several more than one of the relevant factors in category 2 present in this case". We agree.
19. We therefore reject the appellants' case that a determinate sentence of 16 years after a trial was manifestly excessive.
20. We also do not consider that there is any substance in the further points taken by Ibrahim. He did not enter a plea at the earliest possible opportunity and the Judge was therefore entitled in the exercise of his discretion to reduce the discount for his plea. The Judge was also entitled to conclude that there was no relevant differentiation between the offending of Nouri and Ibrahim. Whilst Nouri raped the victim on a second and to an extent discrete occasion, Ibrahim also raped the victim twice and did so, unlike Nouri, with another.
21. That leaves the issue of whether this was an appropriate case for an IPP. It was in order to consider this matter further that we decided to reserve judgment.
22. In order for an IPP to be imposed the Court has to be satisfied that there is a "significant risk" to members of the public of serious harm through the commission of further specified offences.
23. "Significant risk" is more than the mere possibility of occurrence and means "noteworthy, of considerable amount or importance" – see R v Lang [2005] 1 Cr App R(S) 34.
24. In the present case neither appellant had any record of prior offending and the Judge's conclusion that they posed such a risk was based on the circumstances of these offences and the PSRs.
25. We agree with the Judge that these were very serious offences which involved a lack of control and abuse of a vulnerable victim. The Judge's conclusion that the appellants were dangerous was also supported by the authors of the PSR.
26. The Judge's conclusion was that:

"In my judgment, the fact that you have committed these offences themselves establishes that you are dangerous. You were out of control and people who can get out of control are by that very fact dangerous. That view is reinforced by the assessment of the probation officers who prepared the pre-sentence reports upon you".

27. The main ground advanced for challenging the Judge's conclusion is that there was insufficient evidence that there was significant risk of further serious sexual offending by either appellant in the light of the absence of any prior offending, and that the circumstances of the present offending did not suffice in themselves. In this connection we were referred to the case of R v Xhelollari 2007 EWCA Crim 2052.
28. Having carefully considered the relevant evidence, the Judge's sentencing remarks, and the parties submissions, we consider that there is force in the appellants' arguments. These were very serious offences that demonstrated a callous abuse of a vulnerable victim. They involved, as the Judge observed a serious lack of control. However, there was little evidence to support the conclusion that there was a significant risk of like offending recurring other than the fact of the offences and the appellants' stated attitude to them. In particular, there was no real evidence that this offending formed part of any pattern of behaviour on the appellants' part. As the appellants pointed out, many rape cases involve a lack of control for which there is no proper explanation, but that does not generally in itself mean that there is a significant risk of it happening again. There is also force in the criticism of the Nouri PSR that it involved some factual misconceptions.
29. We accordingly conclude that there was insufficient evidence to justify the finding of dangerousness made and that an IPP should not therefore have been imposed. The sentence of an IPP will therefore be replaced with one of 12 years imprisonment, after giving the appellants, as the Judge did, credit of 25% for their pleas. To that extent the appeal is allowed.