England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		15 April 2016

1. LORD JUSTICE McCOMBE: On 3rd August 2015 in the Crown Court at Derby before His Honour Judge Mooncey, on re-arraignment on the day fixed for his trial, the appellant changed his pleas of not guilty to four offences of rape charged in the indictment to pleas of guilty. On a fifth charge of the same offence it was ordered that that should remain on the file on the usual terms. On 3rd September 2015 he was sentenced for those offences by His Honour Judge Rafferty QC to concurrent sentences of nine years on three of the counts and on the fourth count to an extended sentence of 14 years, comprising a custodial term of nine years with an extended licence period of five years, to be served again concurrently with the other sentences. That gave rise to a total extended sentence of 14 years with a custodial term of nine years and an extension period of five years. He now appeals against that sentence by leave of the single judge.
2. The facts of the case were these.

Count 1

3. On the evening of 26th January 2015 the appellant and the complainant had an argument about a meal that she had cooked. Afterwards they sat down in front of the television. He pulled his trousers down and pushed his penis towards her face asking her to suck it. She said "no". He was laughing and started to hit her in the face with it. He masturbated in front of her. She put a blanket over her face to try to prevent his approaches. He pulled her arms apart to get her face out of the blanket and proceeded to lick and kiss her. He continued to masturbate until ejaculation.
4. She thought that that was the end of it but he then proceeded to ask her for a "blow-out". She went outside for some thinking time and had a cigarette in her car. She texted him to ask if he could put her uniform for work outside so that she could get dressed elsewhere and go to her father's to stay overnight. (Both the complainant and the appellant were student nurses at the time, aged 20. They had been in a relationship for about 18 months and were living together, although their relationship was in a state of hiatus.)
5. He refused to put the uniform out, so she returned to the flat. He would not leave her alone. He pulled her trousers down and proceeded to molest her orally. She said she did not want it, she just wanted to go to bed. In response he said "Fine, I'll fuck you". He got on top of her and began having intercourse with her against her will. She cried and he said: "It's nearly over" and proceeded to ejaculation.

Counts 3 and 4

6. The appellant took a knife to open the bathroom door into which the complainant had locked herself after the first incident which we have related. He said he was sorry and would not do it again. They went back to bed and the next morning she did not feel she could get to her work because she was still in a state of some shock over the event the night before. She rang into work to say she was unfit. The appellant woke up, was in a bad mood and said: "Can you do me a favour, please? Can you give me a blow job, please?" She said "No". He reacted by telling her in abusive terms to shut up. He raised his fists at her and she began crying. She was sitting on the floor. He picked her up and put her on the bed and repeatedly told her to shut up as he did not want the neighbours to hear her being upset. He proceeded to give her oral sex, in spite of her protestations. He pushed her onto the bed and she felt she had no choice but to appease him by doing what he wanted by way of oral sex. Before that he inserted his penis again into her vagina. She said: "If you loved me you would not do this to me." Again he told her to shut up. He ejaculated and when she thought this was all over, as she put it he put his penis into her throat and she said he was making her gag as he shoved his penis far down towards her throat. He stripped her of her clothes, prior to raping her vaginally and orally. He stopped but at that stage he refused to let her out of the house.
7. She said she needed a cigarette and on that pretext she got dressed and got into her car and drove around the corner. She realised then that she had to get to her work on the following morning because if she did not she might fail an assessment part of her course, so she had to try to retrieve her nurse's uniform and other related articles from the flat. She texted him back to say that she needed her belongings and she would go and stay at her father's. He texted back to her saying "You don't have to talk about it".

Count 5

8. After about an hour the complainant arrived at the flat, went into the bedroom to collect her uniform and security ID. He followed her and pinned her to the bed. He said he wanted her to affirm her love for him. She remained frightened that he would hurt her so said that if she had sex with him would he then let her go. He said yes and proceeded to penetrate her. He ejaculated. She collected her belongings and left. She never went back to the flat and five days later she reported the matter to the police.
9. In interview after his arrest the appellant said she had not freely given her consent and expressed remorse. He knew that she had been scared. He also texted the complainant on 27th January to apologise and made abusive comments about himself saying he deserved a lonely life and hoped that she had a good life.
10. There is a victim personal statement which tells, not unsurprisingly, of the graphic and unpleasant effect that all this had on this complainant.
11. The appellant is now 22 years old. He was 21 at the date of sentence. He had no previous convictions. The pre-sentence report informed the court that the appellant said that once this course of conduct had started he found that he could not stop what he was doing. He saw this as what he called "make up sex" following an argument with the victim. It appears, as Mr Aspinall has explained to us and as appears in the papers, that it was their habit after arguments to have intercourse and to some extent he thought that the same was happening here, although obviously it went far beyond that.
12. The reporting probation officer considered that the appellant had some understanding of the experiences suffered by the victim in the course of the offences, but that this was somewhat superficial. It was stated in the report that he was sexually preoccupied, placing his own sexual needs and desires above anything else or anyone else, but it was thought not being entirely honest about the nature of this preoccupation. The officer considered that the sustained incident involving threats of violence on a vulnerable victim was likely to have caused significant psychological harm to the victim. The appellant was assessed as posing a medium risk of offending "generally" but it was stated that "until Mr Gunn has addressed the factors linked to this offending I assess him as high risk of further offending using both static and actuarial factors." A little later in the report it was said that he behaved in a manipulatory manner and there was a clear level of recklessness and risk-taking behaviour without thought for the consequences. In a further passage the report's author stated the appellant displayed limited remorse and appeared to advocate the use of sexual violence as a means of self-gratification in sex. He was at that stage in the report assessed as posing a high risk of re-offending based upon the assessment at interview, coupled with his social and offending history -- a passage with which Mr Aspinall took issue in his advice being, he submitted, not entirely based upon the true history of the appellant's background. In paragraph 4.2 of the report the officer concluded as follows:

"It's my assessment at this time that until Mr Gunn gains a clear understanding of the circumstances that have lead to his offending behaviour, learns to identify situations in which he may pose a risk to others and develop strategies for the future which will reduce his risk, his risk of offending will remain as high. I would also assess Mr Gunn as posing a high risk of serious harm towards both [the complainant] and future intimate partners, the nature of this harm being of a sexual and emotionally distressing nature."

13. In passing sentence, the learned judge referred to the remorse expressed at the time of sentence, no doubt referring to a letter to that effect written by the appellant and which we have seen and considered. He also mentioned the appellant's past good character, but noted the comments in the pre-sentence report about an unhealthy preoccupation on the part of the appellant with his own sexual gratification. He expressed the view that the repeated conduct to this victim caused great concern to his present risk and in the foreseeable future. The judge gave a summary of the facts of the case and to the deliberate prolongation of the conduct that was not wanted by the victim, much in the same terms as we have sought to relate earlier in this judgment. This was conduct for his own gratification in which the appellant had exercised power over the complainant and by time of the rape in count 4 the judge took the view that the victim remained in fear of him because of additional threats to hit her.
14. The appellant, said the judge, had shown no love or care for the victim and had enjoyed every single moment of the incident. He referred to the victim impact statement in which the complainant spoke of being damaged not just in the short term but in the long term. The judge concluded that the victim must have suffered severe psychological harm in all the circumstances. The repeated violations had, he said, cumulatively added to her degradation and humiliation.
15. The judge then proceeded to consider the question of whether the appellant should be regarded as a dangerous offender for sentencing purposes. He referred to a request by counsel that sentencing should be adjourned for the preparation of a psychiatric report in view of the judge's mention of the possibility of such a sentence as a dangerous offender in the course of argument before him. The judge considered that such a report was not required, having regard to the report prepared by the experienced probation officer which we have endeavoured to summarise. The judge took the view that the answer to the question of whether the appellant presented the relevant danger to members of the public was clear and that an extended sentence was appropriate.
16. Referring to the pleas of guilty, the judge said that if the court had been satisfied that the delay in entering the pleas had been all the appellant's own doing he would have afforded 10 per cent credit for those pleas. As it was he was prepared to apply a 25 per cent credit. He proceeded to pass the sentences to which we have referred. We will perhaps remark immediately that the present 25 per cent credit was to an extent generous.
17. In the present appeal, Mr Aspinall in his helpful submissions has argued that the sentence was manifestly excessive. He submits that the judge was wrong not to have acceded to the request for an adjournment for the preparation of a psychiatric report and he argues that the finding of dangerousness was based upon inadequate evidence in the pre-sentence report. Although in the written grounds Mr Aspinall submitted that the judge adopted too high a starting point for the purposes of the sentencing guidelines, his argument this morning accepts that the determinate term of the sentence, a nine year period of custody, in all the circumstances was not too high. He submits that the judge should have afforded a full one-third credit for the guilty plea.
18. Returning to that particular point, this plea was entered on the day fixed for trial. The appellant sought to blame his previous solicitors for advising him incorrectly. The judge declined to go down that route, as do we. The appellant knew from the outset what he had done. The victim would no doubt have expected until a very late stage that she would have to give oral evidence. The discount of 25 per cent given by the judge was in our view generous to the point of leniency.
19. So far as the principal grounds are concerned, we turn to the question of the extended sentence which has been the thrust of Mr Aspinall's cogent submissions to us this morning. He submits that the learned judge should have acceded to his application for an adjournment and indeed has presented to us this morning a report from a consultant psychiatrist on Mr Gunn's medical condition, which was not of course before the learned judge.
20. The thrust of the report appears in paragraph 15 of the psychiatrist's opinion. It is not necessary to repeat a great deal of that but the psychiatrist refers to a number of risk reducing factors in this appellant's case. There was no concern in relation to drug or alcohol misuse. He was a young man, intelligent as well, capable of benefiting from various therapies on offer and while being young may increase the statistical risk of future offences, given greater life expectancy (that no doubt he thought was a rather simplistic approach) it also means he has time to change. The doctor concluded that there was no evidence of mental disorder, nor was he mentally ill at the time of the relevant offences, there was no impairment of intelligence and there was no indication from the history that he had any personality disorder that the doctor could detect.
21. Standing back from those submissions, it appears to us that it might on reflection have been helpful had the learned judge acceded to the course that Mr Aspinall proposed in seeking a psychiatric report which could only have assisted an understanding of the important question of whether an extended sentence was indeed appropriate for this young man, given, as was conceded on all hands, a significant custodial sentence would be passed in which risk would be addressed and at which this young man could undergo suitable offender management courses and treatment. We note that the passage in the pre-sentence report, to which we have already referred, said that there was a risk until the appellant gained a clearer understanding of the circumstances of the offending. It seems to us that the psychiatric report that we now have might well have persuaded the judge that the lengthy custodial term that he envisaged in any event would be adequate to meet the risk of the public and also afford the necessary opportunity to the appellant to mend his ways.
22. This was clearly an absolutely appalling set of offences. This poor woman was disgracefully degraded. He could not have expected anything other than the severest determinate sentence and we can well understand why the judge on perhaps limited material thought that he could be properly categorised as dangerous. We do not criticise the learned judge's finding in that respect, but we think, standing back from the matter, that this may have been one of those cases in which and indeed we find it is one of those cases in which it was not necessary to pass an extended sentence and to that extent the sentence passed was excessive. We propose to allow the appeal, to quash the extension period of five years that was imposed by the learned judge but conserving the nine year determinate sentence which the learned judge had in mind. To that extent the appeal is allowed.