England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		14 June 2018

1. THE VICE PRESIDENT: Reporting restrictions apply to publication of anything that might lead to the identification of the complainant.

Background

2. On 25 April 2017, at the Kingston Crown Court before Her Honour Judge Tapping, the appellant was convicted of an offence of rape and assault by penetration. He was sentenced to 8 years' detention in a Young Offender Institution on the rape charge and 4 years concurrent on the assault by penetration.
3. The single judge refused leave to appeal against conviction and sentence but leave was granted on renewal by the full court.

The facts

4. The appellant, then aged 17, and the complainant (whom we shall call X), then aged 14, met on social media at the end of November 2016. Within a very short time their online conversation became sexual with the appellant pressing the complainant for details of her previous sexual history. He asked her the number of boys with whom she had had intercourse and she told him none. He expressed disappointment at that information because he wished to have intercourse with her. She protested that he did not seem interested in her, only in having intercourse with her and explained that she would not have sex with a boy unless she was in a relationship with him. She did agree that if they developed a relationship and she and the boy "were together" sexual activity might occur. One of the questions that the appellant asked her was whether she had been "fingered", namely experienced digital penetration. She replied that she had but just the once. He asked other intimate details.
5. They met for the first time on 30 November 2016 at about 6.00 pm in a children's playground. The prosecution alleged that after a consensual kiss and hug they moved to a part of a playground where the appellant digitally penetrated X's vagina against her will despite her saying no and pushing his hand away. He then raped her anally and ejaculated externally.
6. The prosecution case was that the complainant did not consent. She had made it clear in her WhatsApp messaging that she was only interested in sex with the appellant once they had met and she had got to know him. She did not want to "beat and delete", that is for them to have casual sex and then for the appellant to leave her.
7. The defence case was that all sexual activity which had taken place had been consensual and/or that the appellant reasonably believed that X was consenting. The appellant also argued that he believed the appellant was over 16.

Rulings

8. Two of the trial judge's rulings are relevant to the appeal against conviction. First, there was a ruling on an application under section 41 of the Youth and Criminal Evidence Act 1999 in relation to some of the contents of the WhatsApp messaging.
9. The Crown, represented by Mr Douglas, intended to adduce evidence of most of the messaging, which included references to the complainant's telling the appellant she was a virgin, in response to his questions. However, Mr Douglas considered he should apply under section 41 to exclude references to the complainant's having experienced digital penetration in the past.
10. The judge observed that any evidence sought to be adduced had to be relevant to the issues in the case. In this case the issues were consent, reasonable belief in consent and belief that the complainant was over 16. She ruled that X's responses to the appellant's questions about her previous sexual experience that she had been "fingered" by one boy on an earlier occasion was irrelevant to those issues. As a result, lines on the WhatsApp messages numbered 304 to 325 and 477 and 478 were to be deleted. The lines also included the complainant's response to some of the other questioning the appellant had made of X in relation to other sexual activity in the past. The judge also ruled that Mr Weetch, who appeared on behalf of the defence, would not be able to cross-examine about previous sexual experience.
11. The second ruling with which we are concerned is the ruling on bad character. The prosecution applied to admit under section 101(1)(d) of the Criminal Justice Act 2003 evidence of the appellant's previous convictions for similar sexual offences committed in 2013. The facts of those offences were that when the appellant was 14, he met a 14-year-old girl (whom we shall call Y) at a nightclub. They began chatting on social media. Having done so, they met in a nearby park in the late afternoon/early evening when it was dark. Having kissed Y, he penetrated her vagina digitally and then forced her to perform oral sex on him and attempted vaginal rape. Y did not consent and complained immediately. After lengthy delays, for which there was no explanation before us and for which we can see no cause, there was a trial in the Youth Court in October 2015. He was convicted on 11 February 2016 of one offence of rape, attempted rape and two offences of sexual assault on a female by penetration. He was made subject to a youth rehabilitation order, which was ongoing at the time of the present offences.
12. The judge ruled evidence of the convictions admissible as evidence of propensity. She noted the time between the two sets of allegations, but she also noted that they were virtually identical offences committed in very similar circumstances. She accepted the Crown's argument that it would be a considerable coincidence that two 14-year-old girls unknown to each other should make similar complaints about the appellant wholly independently of one another.

Grounds of Appeal

13. Appeal against conviction

13. The grounds of appeal against conviction advanced by Mr Weetch before us today were twofold. Ground 1 related to the judge's ruling as to the WhatsApp messages, which Mr Weetch described as wrong in law. He argued that the judge fell into error in allowing the prosecution to remove all references to X having been "fingered" on a previous occasion. It was his contention that they were relevant and admissible on two bases. One, they were relevant and admissible to the appellant's reasonable belief that the complainant was consenting. Two, they were admissible under section 41(5) on the basis that they ought to have been included to enable the defence to rebut or explain the evidence adduced by the prosecution to the effect that X was a virgin. Mr Weetch described the judge's ruling to exclude references to digital penetration as creating an injustice.
14. Mr Weetch conceded that X's previous experience of digital penetration would not have been admissible as such but drew a distinction between the fact that the complainant had experienced digital penetration in the past and the fact that she informed the appellant that she had experienced digital penetration in the past. On that basis he insisted the evidence was admissible.
15. The result of the judge's ruling, Mr Weetch claimed, was that the jury were misled as to the content, tone and totality of the messages sent and received and the jury may well have been left with the impression that because the complainant was a virgin and 14 years old, she would not have consented to sexual activity that she had not experienced before, yet she had experienced digital penetration. The defence were therefore denied the ability to challenge the Crown's reliance on the statements about her virginity and the appellant himself was precluded from explaining to the jury the impact of the content of the messages on him.
16. In ground 2, Mr Weetch attacked the judge's ruling in relation to the admission of the bad character evidence. He accepted the previous convictions were capable of establishing a propensity and of amounting to an important matter in issue. In principle, therefore they came within the section but prayed in aid subsection 101 (3) arguing that the admission of the evidence fundamentally undermined the fairness of the trial. He described the prosecution case as fundamentally weak and unsupported and therefore the bad character evidence did no more than bolster a weak case. He claims the effect of the admission of the evidence was profound and so prejudicial that it vastly outweighed any probative value, given the specific issues raised in the case of consent and reasonable belief in consent.
17. In his written submissions, he provided for the court a list of inconsistencies in X's accounts in support of his contention that she was an unreliable witness. These included WhatsApp messages from her exchanged after the meeting. He argues these messages were totally inconsistent with the proposition that she had not consented and that the appellant had not reasonably believed that she consented. Mr Weetch insists there was a clear reason for her to fabricate some of what she had said given the nature of the activity, namely anal intercourse. X had not wished to complain about the activity, it was a friend of hers who had told a teacher against her express wishes. When X first complained, she did not suggest that she had said no, albeit she insisted she had said no to the appellant in her subsequent accounts.

Response

18. In his grounds of opposition, Mr Douglas explained his approach to the editing of the WhatsApp messages. He rejected Mr Weetch's assertions that the jury would have reached inappropriate conclusions because they had not been informed that X had experienced digital penetration. He placed considerable emphasis on the fact that more than once in the messaging X made it plain in response to pressure from the appellant that she was prepared to indulge in sexual activity with him once they had met and were "together". He argued it was irrelevant that she had experienced digital penetration in the past and invited us to find that this is exactly the kind of activity at which section 41 was targeted.
19. As far as the bad character ruling is concerned, Mr Douglas did not accept that the evidence was weak. X gave a detailed account of being raped. There was medical evidence showing abrasions around her anus and forensic evidence showing the appellant's semen on the playground where the alleged rape took place. Even if there had been no supporting evidence, however, he insisted the prosecution case was not weak. All the matters drawn to our attention by way of alleged inconsistencies, Mr Douglas explained, were explored during the trial and the jury invited to consider them.

Conclusions on conviction

20. We are satisfied that the judge's ruling under section 41 was correct. Section 41 prohibits evidence being called or the defence from asking questions about any sexual behaviour of the complainant without the leave of the court. Leave may only be given in strictly controlled circumstances.
21. We explored with counsel during submissions the question of whether evidence to the effect that X was a virgin was subject to the provisions of section 41. We do not need to decide whether it did apply because the parties agree the evidence was both relevant and admissible and would have fulfilled the requirements of section 41 in any event. In general terms the appellant's questioning of X, her responses and his insistence that he wished to be the first one to have intercourse with her all showed his intent and determination to have sexual intercourse with her and the pressure he put on her. The messages also showed X's response that she would have intercourse with him in certain circumstances, namely if they were together and he treated her properly.
22. The provisions of section 41 undoubtedly applied to the evidence of digital penetration. Therefore, the judge could only give leave for evidence of it to be adduced or questions to be asked in cross-examination if certain strict requirements were met. We consider the two bases argued for admission in turn.
23. As far as the issue of reasonable belief is concerned, as conceded by Mr Weetch, the fact that a complainant may have experienced sexual activity in the past does not support an assertion by a defendant that she would consent to the same activity with him. There must be something more. On the present facts the complainant only revealed that she had experienced digital penetration in the past in response to the appellant's questioning; she was not in any way engaged in flirtatious behaviour but rather reluctantly answering his questions. Her answers about her previous sexual history had nothing to do with the relationship between X and the appellant. We do not accept therefore the distinction that Mr Weetch attempted to draw.
24. The fact that the jury were told that she said she was a virgin did not carry with it the implication claimed by Mr Weetch. It was never suggested she would not consent to sex because she was she was only 14 and a virgin. On the contrary, the messages and the prosecution made clear that X indicated that she would consent to sex with the appellant in certain circumstances. Furthermore, there is a clear distinction to be made between having sexual intercourse and experiencing digital penetration, a distinction which the appellant and X both made themselves.
25. Therefore, we do not accept that a failure to inform the jury that she had experienced digital penetration on one occasion in the past had any relevance to the jury's overall assessment of the complainant, her consent or the appellant's belief in her consent, and it was not necessary to rebut any assertion or misleading impression given by the prosecution.
26. Accordingly, we are satisfied the judge was right to find that the provisions of section 41 applied. This was the kind of evidence at which that section was directed and none of the exceptional circumstances required to trigger the grant of leave existed.
27. As far as ground 2 is concerned, we are also satisfied that the judge's ruling on the admissibility of the appellant's bad character was a decision that was open to her. It was a case in which the ultimate issue was the credibility of the complainant but that does not make the prosecution case necessarily weak. There may have been inconsistencies in the complainant's account, but they were not at a level that significantly undermined it.
28. This appellant was plainly young at the time he committed the first series of offences but unfortunately the present allegations indicate that by 2016 he had not grown out of a propensity to get in touch with a young girl, groom them and then meet them for sexual activity, without their content if necessary.
29. It follows that we do not accept there were any flaws in the judge's approach, she applied the right principles, gave full and fair reasons and explained carefully why the evidence was either to be admitted or excluded.
30. The appeal against conviction must therefore fail.

Appeal against sentence

31. We turn to the appeal against sentence. The appellant was 18 and 3 months at the time of sentence. We have already referred to his previous convictions.
32. Mr Weetch argues that the overall figure of 8 years for the two offences was manifestly excessive. Although the appellant had turned 18 during the currency of the proceedings, he was only 17 at the time he committed the offences and they both occurred on the same occasion and as part and parcel of the same incident. He endorsed the judge's decision to reject Mr Douglas' attempts to categorise the offences as category 2A in the Sentencing Council's rape guideline. He insisted the judge was correct to adopt his own categorisation of category 3B. That has a starting point of 5 years and a range of 4 to 7.
33. The judge in her sentencing remarks concluded that a figure of 7 years was appropriate for the rape in general terms and then added a notional 3 years for the aggravating fact of the previous conviction. She then reduced the sentence again by 2 years to reflect his age.
34. Mr Weetch's argument is a straightforward one: if it was within the judge's discretion to take a figure of 7 years at the top of the range for category 3B offences, then it was manifestly excessive to add an additional 3 years to that figure for the previous offending.
35. He accepted the previous convictions were plainly relevant and similar but they had occurred when the appellant was very young: he was only 14. Adding 3 years to a starting point of 7 years was a dramatic increase and amounted to an uplift of approximately 40 per cent.

Conclusions on sentence

36. The sentencing exercise was far from straightforward. Fortunately, it is a rare event for a judge to have to sentence an offender of this appellant's age for offences of rape and assault by penetration where that offender has previous convictions for the same offences.
37. Both sets of offences were committed when he was still young: 14 for the first offences and 17 for the second. Although he had reached the age of 18 by the time of his conviction and sentence, the judge rightly acknowledged that the level of sentence she would have imposed for an older offender should be reduced.
38. We understand the argument that making an upward adjustment from 7 to 10 years solely for previous convictions may appear excessive. However, we must focus on whether the final sentence for this offender with his background and at his age was excessive.
39. In our view, it was stern but not excessive. Within months of being convicted by the Youth Court and given a very real and merciful chance to rehabilitate himself, he chose another victim and committed the same offences again. Arguably the judge was generous to him in placing the offence of rape in category 3B. If the harm was not considered sufficiently serious to make it category 2 and if his planning was not sufficiently significant to justify category A, there were undoubtedly aggravating features. The appellant groomed X online, he took her to a secluded place to have sex with her whatever her response, he penetrated her with his finger, he raped her anally to her great distress and he ejaculated.
40. The effect on her has been very substantial. She has been subjected to abuse and bullying and forced to take months out of school. She has changed dramatically, according to her stepmother. She is quick to anger and has violent mood swings.
41. Bearing all those factors in mind, we are satisfied the judge's sentence is not excessive or wrong in principle. One can only hope in the appellant's own interests as well as the interests of other young girls that such a sentence will give him time to mature and for people to work with him in a custodial setting.
42. Accordingly, the appeal against sentence is also dismissed.

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