England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT MARTIAL APPEAL COURT
ON APPEAL FROM The Military Court Centre Sennelager
Judge Hunter (Vice Judge Advocate General)
CM 28-13

		Royal Courts of Justice Strand, London, WC2A 2LL
		25/09/2015

Lord Justice Fulford :

Introduction

Introduction

1. On 24 October 2013 at the Military Court Centre, Sennelager, Germany before Judge Hunter (Vice Judge Advocate General) and a military board (Court Martial), the appellants were convicted of the offences described hereafter, save that Lee pleaded guilty to the charge of assault occasioning actual bodily harm in advance of the trial.
2. Each charge involved committing a criminal offence on 2 February 2011 contrary to section 42 Armed Forces Act 2006. Charge 1 was kidnapping, contrary to common law; charge 2, sexual assault contrary to section 3(1) Sexual Offences Act 2003; charge 3, theft (as an alternative to robbery) contrary to section 1 Theft Act 1968; and charge 4, assault occasioning actual bodily harm contrary to section 47 Offences Against the Person Act 1861.
3. The sentence passed by the judge on all the appellants included their dismissal with disgrace from Her Majesty's armed services. Mayende and Lee were sentenced to concurrent sentences of 4 years' imprisonment on count 1, 8 years' imprisonment on count 2, 1 year's imprisonment on count 3 and 3 years' imprisonment on count 4. Muir and Field were sentenced to concurrent sentences of 4 years' imprisonment on count 1, 7 years' imprisonment on count 2, 1 year's imprisonment on count 3 and 3 years' imprisonment on count 4. The total sentence on Mayende and Lee was 8 years' imprisonment and on Muir and Field, 7 years' imprisonment.
4. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this case. No matter relating to the complainant shall during his lifetime be included in any publication if it is likely to lead members of the public to identify him as the victim of charge 2. Provided his name is not included, this judgment need not otherwise be anonymised.
5. All four appellants appeal to this court against their convictions and sentence by leave of the single judge. Lee, Muir and Field apply for leave to introduce fresh evidence.

The Facts

6. The prosecution's case was that in the early hours of 2 February 2011, "H" (who was in his early 20s and a member of the British armed forces stationed in Germany) encountered the four appellants (who were serving with the Princess of Wales's Royal Regiment) in a kebab shop in Paderborn, Germany. Mayende, who was the only black man in the group, approached him and told him that he could take a bite from his kebab. H said that his own food was on order. Mayende thereupon accused H of not showing him respect. They took the complainant to a nearby alleyway where he was assaulted, sexually and otherwise. H was kicked and punched; he was pushed to the ground; the four men individually either held him or punched and kicked him; his trousers were lowered; and at least one of the assailants rubbed his penis across H's backside, where marks – reddening and abrasions – were later found. H afterwards described what occurred to him as rape, although in his first ABE interview (which took place on the same day) he set out how he had been confronted, sexually assaulted and repeatedly kicked to the head until he lost consciousness. In an ABE interview on 17 February 2011 he explained that he was unaware as to whether or not he had been raped because he had passed out. The pockets to his jacket had been ripped and his wallet, mobile telephone and means of identification had been stolen. He walked back to his barracks. It was the prosecution's case that this was a joint enterprise attack.
7. There was evidence from a number of witnesses as to H's extremely distressed state immediately after the incident and his somewhat inconsistent account of what had occurred. There was medical evidence from a Senior Medical Officer (Lieutenant Colonel Hodgson) who saw the complainant within hours of the attack, Dr Standen who saw H approximately a week later and a forensic pathologist (Dr Delaney) who examined the photographs that had been taken of all but one of H's injuries. When Dr Hodgson saw H shortly after the incident he noticed many sites of bruising, reddening and lacerations (which were photographed). In particular, he identified a dark area of superficial reddening to the skin, which was inflamed, together with a graze in the area of H's anus. Dr Hodgson and the forensic pathologist were of the view that the pattern of injuries were consistent with what they understood to be H's account. The prosecution suggested that Dr Standen's evidence – she observed fewer injuries than Dr Hodgson – was not inconsistent with the prosecution case because of the delay before she conducted her examination.
8. An issue arose in the trial as to whether the men forced H to withdraw money from a cash machine, in that CCTV footage tended to contradict H's evidence on this issue. Indeed, during cross-examination H accepted that he had not been forced to withdraw money from a cash machine. He had, instead, earlier withdrawn €300 because he owed €150 to another rifleman, an event that he had been reluctant to admit because it was against the rules to lend money to other soldiers. He accepted that he had been drinking and was "merry drunk".
9. The prosecution alleged that CCTV footage showed all four appellants passing a cash machine adjacent to the alleyway. Identity was not in issue as regards Lee, Muir and Field whilst Mayende denied in interview that he had been present at, or involved in, this incident. He accepted that he had been drinking in Paderborn that night, but he suggested that he was elsewhere at the time of the attack on H. Lee's case was that he punched H to the head from behind when he was with H and Mayende in the alleyway. When H fell to the ground, Lee punched his head three further times. On his account he then ran back down the alleyway, and travelled to the barracks by taxi. Muir accepted that he had been in the area but he denied entering the alleyway and he suggested that he had been unaware of any attack. Field originally denied that he had been present, but in due course he accepted that he witnessed Mayende and Lee attacking H, and he saw Mayende search H's pockets.
10. H picked out Mayende during a video identification procedure.
11. Mayende did not give evidence at trial and relied on the account he had provided in interview. His defence was that of alibi.
12. Lee relied on a statement from his solicitor, Joanne Coomber, which was read to the court. He accepted that he was with three friends in the Kebab shop, and that there was an exchange with the complainant. H left the premises with one of Lee's companions, and they all went into the alleyway. Lee punched H on the side of his head, and he punched him on the thigh after he fell to the floor. Lee then got into a taxi with his three companions. On this basis, he had pleaded guilty to assault occasioning actual bodily harm but he denied the other charges.
13. Muir gave evidence. He said he was the last to leave the kebab shop, and although he followed the others to the alleyway, Mayende, Lee and the complainant were out of his sight when the violence occurred. He merely stood around and waited. Accordingly, his defence involved a denial of involvement in any of these events.
14. Field also gave evidence. He agreed he had been in the kebab shop with Mayende, Lee and Muir, and he saw an incident in which Mayende gave H a "jokey" slap, which was not very hard. Lee or Mayende left first, dragging the complainant with them, and he saw the two of them attack H in the alleyway. Lee kicked H all over his body and stamped on him. He saw Mayende kick the complainant. He was aware that Mayende took H's telephone and wallet.
15. The trial was delayed principally because Mayende fled the jurisdiction on 4 or 5 March 2011. A decision was made that steps should be taken to extradite him before the trial commenced, on the basis that it was in the interests of justice for the four accused to be tried together. Indeed, it was the prosecution's case that Mayende was the leader of the group in this attack. He surrendered to his unit, when on exercise in Kenya, on 4 March 2013.

Disclosure

16. It is accepted by the prosecution that there were failings as regards disclosure, and the single judge gave leave to appeal on this basis. He set out his conclusions as follows:

My view that permission should be granted is due to my concern, which evolved over the course of reading all four Applications, as to the manner in which the police conducted the pre-trial investigation and the refusal of the judge to accept that this had, or could have had, an effect upon the fairness of the trial. Not all points advanced are framed in terms of a nexus between the matter complained of and the prior police failures but many could be framed in this way. This is the only issue that in my view warrants consideration by the Full Court. […]"

Later in his ruling, the single judge concluded:

I am granting permission in relation to all grounds which are based upon the allegation of prior police failings. I am concerned that the arguably poor manner in which the police investigation was conducted impacted adversely upon the prosecution conduct of the case and the failure of the trial procedure. I have also become increasingly concerned at the cursory way in which the Judge dismissed the police failings. The Full Court will however expect all advocates to exercise real judgment in filleting out their weaker arguments and in focussing only upon their very best points. The Court will also expect all advocates to identify in greater detail than has been done to date (a) exactly what each alleged failure amounted to and (b) how it might have impacted upon the fairness of the trial.

17. We regret to observe that in the 45 page skeleton argument advanced by Ms Edington, counsel for Lee, Muir and Field (37 pages of which purportedly deal with this issue), there is a somewhat surprising absence of any meaningful identification of each of the suggested failures and how they might individually have affected the fairness of the trial. Instead, the court has received what can only be described as a discursive list of complaints about the trial process, in which there is only partial focus on the matters carefully identified by the single judge. Equally, Mayende's advocate, Mr Wallis, by way of general complaint submits that there was a failure to retain police notes, a failure to disclose the case diary, and a failure to disclose medical notes. It is submitted in the most broad sense that these errors deprived Mayende of the opportunity to cross-examine the prosecution witnesses as effectively as may otherwise have been the case, but no particulars have been provided as to the lines of cross-examination that were lost or the effect these alleged failings otherwise had on the safety of the conviction.
18. Ms Edington, additionally, has to a significant extent rehearsed many of the submissions concerning the facts of the case on which the appellants placed reliance at trial. There is, for instance, particular attention paid to the way the account of H emerged during the course of his ABE interviews, and the various contradictions that are apparent – at least on certain issues – between some of those interviews as to the circumstances of the attack. The judge is criticised for having confused an anal injury with a perianal injury, albeit we note that the difference between those two descriptions is slight, given the extensive degree of overlap: the Oxford English Dictionary definition of perianal is "situated or occurring around the anus". The skeleton argument contains extensive analysis of the evidence of the various doctors and other medical witnesses, in particular as to whether their observations and findings were consistent with the account or accounts of the complainant. All of these matters, which were known to the appellants, were available for use at trial.
19. It is argued that the prosecution prematurely, and potentially incorrectly, excluded as suspects 5 or 6 other soldiers who were arrested before the four accused; in this context, it is argued that DNA samples from those other individuals should have been compared with the intimate swabs taken from the complainant and his clothing. It is highlighted that there was no DNA or other scientific match between the accused and any relevant samples secured by the police. Again, the appellants knew about all of these matters at the time of trial. The judge is alleged to have tried to persuade one of the doctors to "change his medical opinion", and he is criticised for pursuing various lines of questioning with certain witnesses. The judge is alleged to have impermissibly revealed his view that the appellants should have been charged with rape. The judge's summing up is criticised in a number of respects that are irrelevant to this ground of appeal, although it is also suggested that his direction on the difficulties with disclosure was inadequate. The judge said "As you have heard, statements were changed; the statement of the crime scene investigators some 16 times. The explanation for that is that someone else was taking over as officer in the case. There had already been three, and this was done for administrative reasons. This was highly irregular but you may think, it is a matter for you – there was no suggestion here of bad faith of the police, and you may think, it is a matter for you, that it does not affect the case". In particular, it is argued that contrary to this direction the appellants had suggested mala fides. It is submitted that the police focused on the allegation that there had been a sexual assault to the detriment of the other charges, albeit no particulars are provided in support of this broad contention.
20. However, we have been able to identify the following principal contentions that are of potential relevance to the ground of appeal on which leave has been granted:

General propositions

i) The investigation did not assist the complainant or the appellants.

ii) The manner in which the case was investigated adversely affected the way the prosecution conducted the trial.

iii) The appellants only received the final version of the MG6c after the trial.

iv) An early decision that these four appellants were responsible for this attack prejudiced a full and proper investigation.

Other potential attackers

v) Two months after the present events, a male soldier complained that he had been raped by a man who was apparently of Turkish extraction, and this incident was not disclosed to the appellants and, as far as they are aware, it was never investigated.

vi) The appellants were provided with certain information concerning the arrests, the physical descriptions and the detail of the clothing of the 5 or 6 other people who had been arrested midway through the trial (16 October 2013). It was then revealed that one of these men had blood marks on his duvet. (The trial, we note, lasted from 7 – 24 October 2013.)

vii) Certain, albeit unspecified, material concerning these other men who were arrested and the appellants was only disclosed after the trial and prior to sentencing.

viii) The interviews with the other men who were arrested (setting out complete alibis) have never been disclosed.

ix) The prosecution only disclosed on 17 October 2013 that "the alleyway/car park is littered with old rubbish, dead birds, cigarette butts, bird faeces, moss and muddy sludge". It is suggested that given nothing was found on the complainant's clothing corresponding to any of these items, it is conceivable that he was attacked at an entirely different location.

The scene

x) Captain Penman, the senior investigating officer, failed to ensure there were notes or other contemporaneous records of certain conversations with the complainant, and she requested that no photographs were taken of the injury to H's perianal area. However, these suggested failings were known at the time of the trial.

xi) Because of an inadequate approach to disclosure, it is impossible to determine the identity of the person who took the first photographs of the scene of the attack.

xii) The appellants only realised at a late stage during the trial that the German Civil Police had visited the crime scene of the incident, vehicles had been moved and photographs had been taken by an unknown photographer.

xiii) It is suggested that "the CCTV cameras in the street were not correctly accounted for or checked". Any available CCTV evidence, however, was recovered by the police and disclosed in advance of the trial, and no evidence has been produced to this court that demonstrates otherwise.

Failure to record information

xiv) The disclosure officer, WO2 O'Leary, originally failed to reveal that the statements of certain police officers and the civilian crime scene investigator (Mr Barrett) had been amended during the course of the investigation in order – as the prosecution contends – to address the continuity of exhibits and certain minor typographical and formatting problems. It appears that this occurred, in the main, because Mr O'Leary realised that various statements needed to be amended in order to describe the circumstances in which the various witnesses handled certain exhibits. Mr O'Leary suggests that he sent each of the amended statements to the relevant witness for signature. Focussing on Mr Barrett, it is said that Mr O'Leary made a significant number of alterations to his statement in his role as case manager. Mr Barrett was unaware that this had occurred, and the original copy of his statement was only provided to the court when he attended to give evidence. Once counsel conducting the prosecution became aware of these changes, he asked Mr O'Leary to list every event of this kind on a revised schedule of unused material. Furthermore, the appellants were provided with the detail of every change that had been made of this kind. It would appear, therefore, that during the trial the complete history of what occurred was revealed to the appellants. However, it appears to be the case that a few of the original statements no longer exist, although the changes made to them were revealed during the trial. In addition to continuity and grammar, the only other changes related the fact that the cordon at the scene had been moved, German investigators attended at the scene and photographs by an unknown photographer had been taken. The appellants knew about all of these matters at the time of trial. Although a point is taken on the description being changed as regards the main perpetrator prior to Mayende's identification procedure, he now accepts that he was present during these events. Accordingly, this point is now without substance on this appeal.

xv) When the complainant was taken to the scene by Sergeant McKenna, and was asked by the officer to view photographs, no contemporaneous log or note was taken of the discussions that then occurred. This failure was known at trial and Mr McKenna was in a position to inform the court as to what the complainant had said, not least because he had made a note shortly afterwards in his notebook.

Medical notes

xvi) The notes of Drs Hodgson and Standen were only disclosed when they gave their evidence.

21. The appellants applied to the court below for the trial to be stayed on the basis that the statements by prosecution witnesses had been "watered down" and generally because of disclosure issues of the kind rehearsed above. The judge refused the application, although he acknowledged that the disclosure processes had been significantly flawed. In his assessment, notwithstanding the difficulties, he considered the accused would receive a fair trial. He ordered the prosecution to ensure that appropriate steps were taken to ensure that the past problems were fully rectified and that there was no risk of repetition.
22. It is the prosecution's contention that notwithstanding the delays and the haphazard nature in which disclosure occurred, by the time of the trial everything that came within the prosecution's disclosure obligations had been provided to the appellants, and that they had sufficient time to utilise this material, even if delivered late.
23. The Criminal Procedure and Investigations Act 1996 (Code of Practice) (Armed Forces) Order 2009 (S.I. 2009 No.989) brought a code of practice into force on 31 October 2009 for the conduct of service investigations by service policemen. The code is equivalent to that in respect of criminal investigations issued under section 23(1) of the 1996 Act, subject to modifications to take account of the structure and operation of service courts and of the service police.
24. There can be no doubt that the disclosure procedures in this case had a very unhappy history. We note, especially, that there appears to have been a failure, certainly on occasion, to comply with the requirement imposed on investigators to make and/or retain contemporaneous records of material obtained in a service investigation which may be relevant to the investigation (see paragraphs 4 and 5 of the Code). A notable event that exemplifies this point is the failure to record properly the many changes that were made to the statements of some of the witnesses, and to retain all the original drafts.
25. The question, however, for this court is whether these failings by the prosecution render the convictions unsafe, and in our judgment, none of the matters listed above in roman numerals i) – xvi) had any material impact on the safety of these convictions.

General propositions

26. The points raised in i) – iv) above are put in such broad terms that it is impossible to gauge whether they contain any argument of merit. To the extent that particulars have been provided, they fail to reveal any persuasive reasons for concluding that the conviction is unsafe.

Other potential attackers

27. The other complaints made by the appellants cannot be viewed in a vacuum but instead they need to be understood in the context of the identified issues in the case. There was no challenge to the suggestion that H had been attacked. Lee accepted he punched the complainant to the head in the alleyway and to the thigh once he fell to the ground. His evidence was that the three other appellants admitted to him in the taxi that they had given H "a shoeing". Muir said that although Mayende and Lee went with H into the alleyway, he (Muir) was not involved in any violence. Field said that Mayende slapped H at the outset, and that having dragged H into the alleyway, Lee and Mayende then punched and hit him. He agreed that all four accused had been present when H was on the ground and Lee and Mayende kicked him, and Lee stamped on him. He saw Mayende going through H's pockets. On his evidence, it was clear that Lee feared he had killed H. Mayende merely said that he was elsewhere at the time of any attack, albeit he accepted he had been drinking in Paderborn.
28. On this basis, the other 5 or 6 men who were originally arrested, and a man of apparent Turkish extraction who committed an offence of rape on another occasion, are wholly irrelevant to the circumstances of this case. There was no credible basis for a suggestion that H had been attacked by an entirely different group of men: this would simply have constituted unfounded speculation. There was no evidence that any of the other men had been involved in an attack on H. Lee and Field accepted unequivocally that H had been attacked by some of the accused, and Muir accepted that Mayende and Lee went into the alleyway with H. Mayende essentially disputed that he was the black man present in the kebab shop at the beginning of the incident and in the alleyway during the attack. His defence was alibi. It follows that all of the complaints about disclosure in this regard are without substance.

Failure to record information

29. The changes to the statements of various prosecution witnesses appear, as set out above, to relate solely to matters that concern continuity and some minor grammatical and formatting issues, and although not every conversation with H was necessarily contemporaneously recorded, the overwhelming majority of the interviews conducted with him were correctly conducted. The appellants had a considerable and unassailable record of the developments in his account, together with the extent to which it was undermined by internal contradictions.

The scene

30. There is no basis for the suggestion that the prosecution mishandled the CCTV footage, or that the German Police tampered or interfered with the scene of the attack in a way that renders this trial unfair. Similarly, given the real issues in the case, the identity of the person who first photographed the scene is essentially irrelevant. There was no dispute that H went to the ground in the alleyway.

Medical notes

31. It is not suggested that the appellants were hampered in the presentation of their cases because the notes of Drs Hodgson and Standen were disclosed when they gave their evidence.
32. It follows that we are unpersuaded that the convictions are unsafe on the sole ground on which leave to appeal against conviction was granted.

Fresh Evidence

33. It is contended that shortly after his conviction, Mayende admitted he had been present throughout the incident. He apparently made remarks to the Defence Assisting Officer for Lee and Muir (Captain Giles Walsh) and to the appellant Muir to this effect. He is alleged to have suggested to Muir that he "should not be there as he had done nothing". Mayende's stance regarding Muir was to change. Captain Walsh visited him on two occasions following his conviction and he suggests that Mayende "blamed the physical assault and the theft on the other 3 defendants". An application is now made to call Captain Walsh to give evidence of this admission by Mayende, which involved, at one stage, an exculpatory remark concerning Muir. We note that Mayende accepted to a representative of the probation service that he had been present, and he suggested he had not been involved in the incident. Of some particular significance, however, given the present application, he blamed Lee, Muir and Field for the assault on the victim and he failed to differentiate Muir in this context: "he saw Ex-LCpl Lee and Privates Muir and Field assault (the complainant)".
34. We are unhesitatingly of the view that this material does not pass the test for the introduction of fresh evidence, in that there is no prospect it would have an effect on the safety of the conviction. Mayende consistently denied that he had been present at any stage during these events. It was open to him to change that account at any stage prior to the end of the trial. This suggested change of heart following his conviction does not provide evidence on which this court would rely in these circumstances. Defendants are not permitted to run serial trials in which they deploy different tactics or different accounts in the hope that eventually one will lead to his acquittal or the acquittal of one of his co-defendants. We are fortified in this view by the incriminating account that Mayende gave to the probation officer and to Captain Walsh, some time after his conviction, concerning Muir.
35. It is additionally suggested that one of the Board Members made a remark to Captain Hunter, in a social situation, to the effect that "it had been obvious to (the Board) from very early on that all four of them had been involved, with three of them pinning the victim down and the fourth man assaulting him". If this observation by a Board Member was made, it was wholly inappropriate and is to be deprecated. He should not have discussed any aspect of their deliberations with anyone who was not a member of the Board. We highlight that this remark is said to have been uttered in a bar some weeks after the trial. We are of the view that it does not reveal evidence that has a prospect of undermining the safety of these convictions. This was an extremely strong case against these appellants, and an expression of this kind is likely to represent no more than the early realisation by one or more of the Board Members that each of the accused faced powerful evidence. An off-the-cuff remark of this kind does not reveal, on a prima facie basis, that the Board approached this important obligation of trying the accused in an inappropriate way. We agree with the single judge that (as the appellants accepted during the course of argument) the evidence of this witness is essentially ambiguous and it fails to establish bias, a predetermination of the issues or other misconduct on the part of a member, or members, of the Board.
36. In the event, we refused leave to call either of these witnesses because their testimony does not provide an arguable ground of appeal, and accordingly it is not necessary or expedient in the interests of justice to receive this evidence.

Sentence

37. The judge concluded that the effects of these attacks had been nothing less than life changing for the complainant. The medical evidence as to his psychological condition showed that the appellants had come close to ruining H's life. The attack was so severe that Lee believed that he may have killed H. Shortly before the trial, H sought out the appellants and "went berserk"; as a result, he was placed under a mental health order. There was an element of deliberate lying on the part of the appellants at the outset of this incident, as revealed by the deception they deployed as to their regiment. They kidnapped the complainant in order to assault, sexually humiliate and rob him. As the judge observed, this was a sustained attack during which a great deal of gratuitous violence was used.
38. Mayende is 33 years of age, and he served in the army for nearly 7 years. He has no civilian cautions or convictions, but he has a military conviction for two service offences of being absent without leave. We have seen the character reference from Company Sergeant Robson that was before the judge.
39. Lee is 27 years old. He held the rank of Lance Corporal. He has no military convictions or cautions. He has, however, five civilian convictions for six offences: two offences contrary section 5 Public Order Act 1986 (in 2006 and 2010); an offence of common assault in 2006; theft from the person in 2011; and one offences of making off without payment in 2013. We have seen the character references from Captain Walsh and David Tunbridge that were before the judge.
40. Muir is 23 years old. He served in the army for nearly 5 years. He has no previous military convictions or cautions, and he received a civilian caution in 2009 for an offence under section 4 Public Order Act 1986. We have seen the character references from Major Deane and Company Sergeant Page that were before the judge.
41. Field is 23 years old. He served in the army for nearly 6 years. He has not military convictions or cautions and he has one civilian conviction in November 2011 for an offence of assault (for which he was fined).
42. The judge decided that a sentence in excess of the guidelines for a sexual assault was called for, given the far-reaching consequences of this attack. The victim believed he was about to be raped.
43. Mayende was found to have taken the lead. There was unchallenged evidence that the day after the incident, Mayende directed the driver to the scene of the attack when he was with Lee and Field, and he instructed the others as regards a false alibi. He was caught on the CCTV footage holding the complainant. Lee, as a Lance Corporal, could have prevented this violence from developing but instead he took a leading part. Indeed, he started the assault by squashing the kebab on the complainant's head. Because he pleaded guilty to assault on a markedly limited basis, for tactical reasons, the court declined to afford him any credit for his plea.
44. On behalf of Mayende it is argued the judge should have remained within the ranges identified by the Sentencing Guidelines Council, and, additionally, that a sentence of 4 years' imprisonment for kidnapping was manifestly excessive given this was a short-lived incident and there were no aggravating features. It is contended that the judge placed the offence of sexual assault in the wrong sentencing bracket, and that the sentence should have been midway in the bracket below that identified by the judge. It is finally submitted that the sentences of 3 years' imprisonment for assault and 1 year's imprisonment for theft were manifestly excessive.
45. Lee advances similar arguments, and additionally submits that the judge did not give him credit to which he was entitled for his plea to the assault charge.
46. Muir and Field rely on the submissions set out above, and they also submit that the judge failed to give them sufficient credit for their age and rank, and the delay in bringing the case on for trial. It is suggested they had a low or minimal role and that the judge inadequately explained how the sentence in their cases was structured.
47. In our judgment, the circumstances of this case need to be considered in their entirety in order to determine whether the sentence was manifestly excessive. The victim was entirely blameless; he was picked on, seemingly at random, and forcibly taken to a discreet location in order for all four appellants to assault, rob and sexually assault him. He was repeatedly punched, kicked and stamped on; his property was taken; he was sexually assaulted; and he lost consciousness. Lee returned to the scene the following day because he apprehended he might have killed H. We accept that sentences of 8 years' and 7 years' on charge 2 were arguably manifestly excessive. The relevant bracket in the Sentencing Guidelines Council's Definitive Guideline is 1 – 4 years' with a starting point of 2 years' when there is "contact between naked genitalia of offender and another part of the victim's body". However, whether or not the individual sentences were of appropriate length, total sentences of 8 years' imprisonment in the case of Mayende and Lee and 7 years' imprisonment in the case of Muir and Field were entirely within the ambit of the judge's legitimate discretion. This overall result could have been achieved by shorter consecutive sentences, within the range identified for each offence, and the critical factor is that sentences of this overall length would not offend the principle of totality. We repeat that this random violence has had a profound effect on the victim – it came close to destroying his life – and following a trial these sentences were not manifestly excessive. The judge gave an appropriate discount for the relatively slight distinction in the roles of Mayende and Lee, on the one hand, and Muir and Field, on the other. There was strong evidence that they each played a full part in the violence in the alleyway. There was some delay, but it was not excessive and in any event it was the direct result of the actions of one of the accused who absconded.

Conclusion

48. These appeals against conviction and sentence are dismissed.