England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		1 May 2018

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1. MR JUSTICE JEREMY BAKER: On 2nd June 2017 in the Crown Court at Liverpool the applicant, who is 52 years of age, was convicted, at count 1, of an offence of rape and, at count 2, of an offence of putting a person in fear of violence by harassment, contrary to section 4(1) of the Protection from Harassment Act 1997. He was sentenced to eleven years' imprisonment on count 1 and a concurrent term of two-and-a-half years' imprisonment on count 2. A restraining order under section 5 of the 1997 Act was also made prohibiting him, until further order, from having any contact with the complainant.
2. The applicant seeks an extension of time - some 111 days - in which to apply for permission to appeal against sentence. His application has been referred to the full court by the single judge.
3. The provisions of the Sexual Offences (Amendment) Act 1992 apply to the offence of rape. No matter relating to the complainant shall during her lifetime be included in any publication if it is likely to lead members of the public to identify her as the victim of the offence.
4. The applicant and the complainant, who had known each other for a number of years, commenced a relationship together in about 2008/2009 and had lived together since that time. Although initially the relationship prospered, the complainant stated that matters soon deteriorated due to the applicant's regular consumption of excessive amounts of alcohol. On these occasions, the applicant would become aggressive and violent towards the complainant. In her evidence she indicated that this was a regular feature of her life over a period of about fifteen years, such that it was difficult for her to recall specific incidents. However, because of the serious nature of some of those incidents, she was able to recall about six of them in some detail.
5. The first of these took place the day before a christening which the applicant and the complainant were due to attend. On this occasion the beating which she received from the applicant was such that she was covered in bruises to the extent that it would have been obvious to anyone attending the christening that she had been assaulted and she therefore declined to attend the occasion.
6. There were two further such episodes whilst the parties were living at the first address, which they occupied in Southport.
7. After they had moved to a new address together, there was an occasion when the extent of bruising which the complainant received as a result of the applicant's behaviour was such that she attended hospital in relation to the injuries to her chest, and it was found she had suffered internal damage to one of her lungs.
8. There was also an occasion when she was assaulted and her son sought to intervene to assist her, and he too suffered injuries to his neck.
9. The final incident took place in February 2016 when, following their return home after having been out for a meal, the applicant "waded into" the complainant, pummeling her and punching her to the extent that she was so fearful that she urinated on herself, before managing to escape from the house. She climbed over the adjoining fence into her next-door neighbour's home and took refuge there. Her son attended at the neighbour's home soon after and persuaded his mother to finally attend the police station.
10. It was during the course of her ABE interview with the police that the complainant disclosed that, in addition to these incidents of violence, the applicant had also raped her on one occasion. This had taken place on 6th September 2012 when, late at night, she was on her way to the bedroom having come out of the bathroom. The applicant was in drink and was waiting for her on the upstairs landing. He grabbed hold of her and pulled her down to the floor, whereupon he forcibly pulled her jeans down around her ankles and anally raped her, during the course of which he ejaculated inside her anus. The complainant stated that this incident lasted for about ten minutes, immediately after which she went to her bedroom and curled up in a ball. She had then stayed there for the next two days, seeking to recover from the ordeal.
11. The applicant was arrested in February of 2016. In the course of the subsequent interview he denied the repeated acts of violence against the complainant and complained that the complainant had made a false allegation of rape against him.
12. In his sentencing remarks the judge noted that, although the applicant had been considerate and caring when sober, when he was drunk he was violent, abusive, demanding and cruel to the complainant. In relation to the offence of rape he stated:

"I am entirely satisfied that this is a Category 2A offence. This anal rape was particularly humiliating. It is accompanied by violence and she was vulnerable in the context, as the jury found, of a violent and controlling relationship. She has been the subject of previous violence against [her by you] and she was your partner, who had forgiven you on countless occasions for your drunken behaviour and hoped for better, only each time for you to let her down. So there is in addition, in my judgment, an element of abuse of trust here as well.

I have read and listened to the Victim Personal Statement that she has provided. I have no doubt at all that the consequences of your behaviour will live with her for many years."

The judge went on to say:

"I am conscious that the offences and the characteristics of them inform each other of the seriousness of the offence and so rather than pass consecutive sentences, there will be concurrent sentences..."

13. A number of issues are raised in the grounds of appeal, the most significant being the criticism of the judge's categorisation of the offence of rape within the sentencing guidelines. It is submitted that the judge miscategorised this offence as falling within 2A, in that the complainant was not particularly vulnerable due to personal circumstances, nor was this a situation where there was an abuse of trust. It is submitted that his conviction on count 2 was insufficient in itself to establish that the jury had been sure that there had been previous acts of violence, and that the judge had failed to determine these matters for himself to the criminal standard of proof. It is also argued that the judge took too little account of the mitigation available to the applicant, whilst taking too much account of his previous convictions. In the circumstances it is argued that the total sentence of eleven years for this offending is manifestly excessive.
14. Miss Smart, who now appears on behalf of the applicant, had informed us in writing that, during the course of the jury's deliberations, the jury asked a question, namely if they found that the applicant had caused fear of violence but did not engage in controlling behaviour, whether they could still convict the applicant on count 2. The particulars of offence relating to count 2 were in these terms:

"[The applicant] between the 17th day of February 2009 and the 17th day of February 2016 caused [the complainant] to fear that violence would be used against her by his course of conduct which he knew or ought to have known would cause fear of violence to [the complainant] on each occasion in that he assaulted [the complainant] on a number of occasions and engaged in controlling behaviour towards her."

15. The trial judge indicated to the jury that they could put a bracket around the words "controlling behaviour" within the particulars of offence and proceed to consider their verdict based upon the remaining particulars of the offence under count 2. In due course, the jury returned guilty verdicts in relation to both counts 1 and 2.
16. It is submitted that, because of this, all that the jury had found as a result of the verdict on count 2 was the act that the applicant had placed the complainant in fear of violence by harassment, and therefore, although it may have been open to the judge to have made specific findings as to the extent of any violent incidents, he failed to carry out this exercise, and certainly did not do so to the required criminal standard of proof.
17. In our judgment, this submission wholly leaves out of account the fact that, having directed the jury that they did not need to consider the issue of controlling behaviour - a matter which they may not have been satisfied about - in order to convict on count 2, they would have been required to be satisfied about the remaining part of the particulars of offence: namely that "he assaulted the complainant on a number of occasions". In our view, this was a conclusive finding made by the jury to the proposed criminal standard upon which the judge was entitled to rely, and there is nothing in his sentencing remarks to suggest that he did otherwise than faithfully follow the verdict of the jury on this count when considering the nature and extent of the history of the violence perpetrated by the applicant upon the complainant.
18. In relation to the categorisation of the offence of rape within the guidelines, although the judge in his sentencing remarks did mention that the victim was particularly vulnerable due to personal circumstances, he also noted the severity of the psychological harm that had been caused to the complainant, together with the degradation and humiliation which had been caused to the complainant by the circumstances of the anal rape, including the fact that he had ejaculated inside her.
19. Although this latter factor is a matter which can be an additional aggravating one after categorisation is determined, it is clear from the wording of that part of the guideline - namely "ejaculation (where not taken into account at step 1)" - that this is a matter which can also inform a judge's assessment of the nature and seriousness of the rape for the purposes of categorisation. We anticipate that it was this factor which caused the judge to determine that the anal rape was particularly humiliating in the circumstances in which it took place. In these circumstances we are satisfied, as the judge was, that he was entitled to place this in Category 2 so far as harm was concerned.
20. In regard to the issue of culpability, we have been referred to the case of O(D) [2014] EWCA Crim 2202, where this court made it clear that not every case of rape within an established relationship should be treated as a breach of trust.
21. We anticipate that this was not an authority which had been brought to the trial judge's attention. However, even in the absence of this factor, another aspect of category A culpability which was undoubtedly present in this case was that there had been previous violence against the complainant. In these circumstances we are satisfied that the judge was entitled to consider that this was a Category 2A offence of rape with an appropriate starting point of ten years' custody, and a range of between nine and thirteen years' custody.
22. In so far as mitigation was concerned, this was limited to the fact that the applicant is in his middle years and had a history of being in employment. Although he may not have had an extensive criminal record, and indeed had no previous convictions for sexual harm, he had, in 2009, been convicted of two offences of common assault, for which he received a suspended sentence of imprisonment for repeated violence which he had carried out on a previous partner. We, like the sentencing judge, consider that this was a significant aggravating feature in this case.
23. As a history of previous violence against the complainant is a factor placing the applicant's culpability in the higher bracket so far as the rape is concerned, it was necessary for the judge to avoid double counting, which, of course, he did in this case by ordering that the sentence of two-and-a-half years' custody in relation to count 2 would run concurrently (rather than might otherwise have been expected to run consecutively) to the term on count 1. However, in view of the nature and extent of the violence which had characterised the applicant's conduct towards the complainant over the course of many years, we do not consider that this was a matter which ought to have been left entirely out of account when the judge was determining where within the category range the circumstances of this offence of rape fell. In our judgment, given the fact that the applicant also had the aggravating feature of his similar previous convictions in relation to a former partner, the relatively modest increase from the appropriate starting point of ten years, which the ultimate sentence of eleven years reflected, was appropriate in this case to properly recognise the overall criminality of the applicant's conduct towards the complainant. In these circumstances, we are quite satisfied that the total sentence of eleven years imposed upon the applicant was appropriate and there are no arguable grounds of appeal against it.
24. Before leaving the case we should say a word about the application for an extension of time. If there had been merit in the application for permission to appeal against sentence we would have considered it in more detail. However, there was a very significant delay in this case, and the only explanation which has been provided to us is that after trial counsel had provided a negative advice on appeal against conviction and sentence the applicant sought an alternative opinion. The explanation for the main part of the delay is that those instructed by the applicant spent time dealing with matters in relation to a possible appeal against conviction, which was ultimately not pursued. Although that may have provided some explanation for any delay in pursuing an appeal against conviction, we do not consider that this would have been a sufficient explanation for the delay in pursuing an application for permission to appeal against sentence. Accordingly, and as we have found no merit in the application for permission to appeal against sentence, we decline the application for an extension of time.

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