England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988

REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988

		Royal Courts of Justice Strand London, WC2A 2LL
		13 March 2018

1. LORD JUSTICE DAVIS: This is an application brought on behalf of Her Majesty's Solicitor General seeking to challenge sentences on the grounds that they are unduly lenient. We grant leave.
2. The first offender, Andrei-Catalan Mamaliga is now 29 years of age, having been born on 12th January 1989. The second offender, his brother, Ovidiou Mamaliga is 30 years of age, having been born on 30th March 1987. On 1st December 2017, following trial at the Isleworth Crown Court, the offenders were sentenced by the Recorder who had conducted the trial in respect of a number of matters. On count 1 they were sentenced, each of them, to an extended sentence of 20 years pursuant to section 326A of the Criminal Justice Act 2003 made up of a custodial term of 12 years and an extended period of licence of eight years. Count 1 was a count of rape. On count 2, a count of assault by penetration, they were sentenced to concurrent terms of 10 years' imprisonment. On count 3, a count of attempted rape, they were sentenced to a concurrent term of eight years' imprisonment. On count 4, a count of theft to which they had pleaded guilty at the date of trial, they were sentenced to a concurrent term of three years' imprisonment. On count 5, to which they had also pleaded guilty, they were sentenced to a concurrent term of two years and eight months' imprisonment. The total sentence therefore was in effect reflected in the extended sentence passed on count 1.
3. The background facts leading up to the sentences need to be set out in some detail.
4. The female victim, who may be called R, owned and lived on a narrow boat. On 9th May 2017 R had moored her narrow boat on the Grand Union Canal close to a bar and restaurant in Acton. During the night and in the early hours of the morning it seems that she had been drinking alcohol.
5. That morning, on 10th May 2017, at around 7.15 am, the victim, R, met the two offenders who were walking on the towpath towards Acton. She at the time was sitting on the deck of her narrow boat. They engaged in conversation with her for about five minutes before continuing on their way. It appears from what R was subsequently to say that they appeared to be presentable and friendly. At all events, shortly after this conversation the two offenders were seen on CCTV walking along the towpath.
6. A few hours later they walked back in the opposite direction. They again are caught on the same CCTV camera. Again they spoke to R on the boat. It was the prosecution case at trial, and specifically accepted by the Recorder when he came to pass sentence, that before their return the offenders had planned to attack and sexually assault R. At all events she then invited them onto the narrow boat and they all sat at the front of the boat smoking. At one stage they asked her if she wanted them to go off and buy some alcohol and she said that she did not.
7. A discussion took place about swimming. R was to say that she had always wanted to go swimming in the canal and at all events after discussion she went and changed and put on a swimming costume, as well also, for modesty purposes, a top and some leggings. R then got into the water and swam from one side of the canal to the other. One of the offenders then helped her to get back into the boat.
8. R then went to her bedroom on the narrow boat in order to change. At that stage the first offender came into her bedroom and asked if he could use her toilet. She pointed him to the bushes opposite the barge instead.
9. At this point the first offender proceeded to attack R. The second offender then also came into the bedroom. The first offender had grabbed R and placed her face down on the bed. The two of them then tied her hands behind her back. A towel was forced into her mouth and her face was pushed into a pillow to stop her calling out. She was convinced that she was going to be suffocated. Her tights and swimming costume were ripped off her. Her ankles were then tied together. Both her hands and legs were bound with shoelaces that had been brought for this purpose to the scene by the offenders.
10. During the course of the sexual assault that followed, R was held whilst one of the offenders inserted his fingers into her vagina, before then raping her vaginally whilst she was held down. In addition, an attempt was made to rape her anally, whereby one offender parted her buttocks and the other attempted penile penetration. The attempt only failed because she struggled, screamed and convulsed her body throughout. During the course of the attack, she was physically assaulted on a number of occasions and received a number of scratches and bruises to her body, neck and face - this being reflected in the count of actual bodily harm.
11. This lasted for around 25 minutes, during which the victim, R, sought to put up a valiant struggle. The two offenders then made off. They did so having stolen various possessions including, in particular, rings which had previously belonged to the mother of R and which had very great sentimental value to her. The jewellery has never been recovered.
12. The offenders were in due course identified by reason of a DNA match between DNA from the scene on cigarettes and on shoelaces and on a male bracelet found in R's bedroom and their DNA profiles held on the French DNA database. They were arrested on 6th June 2017 and were interviewed under caution. They provided prepared statements. The first offender was to say that he had nothing to do with the incident and claimed that he was completely innocent and that he was in the United Kingdom to live a decent life. The second offender was to say that on the day of the incident he had gone to work. He denied all the allegations. He was to claim that he only had come to the United Kingdom to make a living and send money to a sick parent in Romania.
13. There was a moving victim personal statement put in by R. Amongst other things she said that her life was "in ruins" as a result of the attack. She had thought that during the assault she was going to die by being asphyxiated. She had been unable to return to her narrow boat because of the attack. The whole attack was had a psychological effect upon her. Moreover, she is extremely upset about the loss of the jewellery, including her mother's rings which she referred to as "irreplaceable".
14. It is a further very disconcerting feature of this very disconcerting case that both offenders have a relevant and similar previous conviction in France, the conviction being in 2012. The conviction was for an offence of rape of a stranger on 18th July 2009. They were convicted of an offence of aggravated rape and were sentenced to 10 years' imprisonment for that offence. The information supplied indicated that the female victim in that particular case had been hitch-hiking in the Rouen area of France when she was picked up at about 10 o'clock in the evening by the two offenders. They had then driven her out of the town, parked the car and then one of them held the victim down, while the other removed her trousers and knickers and vaginally raped her and then the other likewise vaginally raped the victim. It seems that the offenders had been released from serving their sentence in France only relatively shortly before they came to the United Kingdom, having in the meantime briefly returned to Romania.
15. It may be noted that at trial the prosecution had sought to adduce the French conviction as bad character evidence. However, the Recorder refused the application, essentially on the basis of its overwhelming prejudicial impact on the trial.
16. Pre-sentence reports had been obtained in respect of each offender. Suffice it to say each offender showed little or no remorse for what they had done, or any real acceptance of guilt, indeed seemed to have shown little in the way of comprehension of the gravity of their offending, offending which they did not appear to acknowledge.
17. At the sentencing hearing, counsel then appearing for the prosecution appeared to advance the position in what may be described as a somewhat low key way. It is right to say, however, that all relevant points were identified in a detailed written sentencing note which prosecution counsel had conscientiously prepared. By reference to the definitive guideline on sexual offences, to which we will turn very shortly, prosecution counsel suggested that "at least" the case resided at the top of Category 2A, albeit it was a matter for the court whether the multiplicity of factors involved put the case into Category 1A. At all events, prosecuting counsel was not conceding that this was a Category 2A case. Counsel appearing for the defendants said that it was in effect a matter for the Recorder as to whether or not the case "crept" into Category 1A. Indeed, at that stage counsel for the defendants, appreciating the potential gravity of this case, were concerned to submit that this was not an appropriate case for a life sentence. There was no real dispute but that the dangerousness provisions were in the circumstances satisfied.
18. Turning then to the guideline relating to offences of rape, in terms of harm Category 1 is styled as this: "The extreme nature of one or more Category 2 factors or the extreme impact caused by a combination of Category 2 factors may elevate to Category 1." Category 2 then contains a number of matters. These amongst other things include prolonged detention/sustained incident, violence or threats of violence beyond that which is inherent in the offence and forced uninvited entry into the victim's home. There was and could be no dispute that in terms of culpability this was a category A matter, indeed it was a category A matter for a number of reasons. What occurred here was, as the Recorder found, among other things premeditated and the two had acted together.
19. The Recorder in the course of his sentence remarks summarised the facts as he found them to be very fully and thoroughly and did so in a way consistent with the jury verdicts. Having recited those facts in considerable detail, the Recorder, in entirely appropriate language, described what happened as "beyond hideous, beyond horrific, beyond heinous" - sentiments with which this court agrees. However, notwithstanding his recital of the facts and his identification of numerous aggravating factors attending this case, the Recorder, having rightly reminded himself about the risk of double-counting matters, went on to say that what had occurred "clearly elevates this into a Category 2 case." The Recorder in fact also was to say that he regarded R as particularly vulnerable due to personal circumstances, a matter which, with respect, we would rather doubt. Certainly R was vulnerable, but we think it difficult to say she was particularly vulnerable due to personal circumstance within the meaning of the guideline.
20. The judge then having selected Category 2A as the appropriate categorisation for this offending, said that he was satisfied that there must be a starting point of 10 years which indeed is the starting point indicated in the sentencing guideline for Category 2A offending. In this context the starting point for Category 2A offending is 10 years' custody with a range of nine to 13 years' custody. For Category 1A, on the other hand, the starting point is 15 years' custody with a category range of 13 to 19 years' custody.
21. The judge then turned to the other offences comprising counts 4 and 5 on the indictment. He went on to make unassailable findings of dangerousness and in the result imposed, overall, an extended sentence of 20 years, comprising 12 years custodial element and eight years extended licence period, the maximum available, in the way we have indicated.
22. Mr Little QC on behalf of the Solicitor General submits that the Recorder mis-categorised this offending and that this case should firmly have been assigned to Category 1A because of the extreme nature of one or more Category 2 factors involved. As an alternative argument he says that at all events, and even acknowledging the need to avoid double-counting, the aggravating factors here were such that (as is consistent with the text of the guideline) the aggravating factors would cause the case to move outside the identified category range being, according to the Recorder, Category 2A. He says that in the result the Recorder in the case of each offender passed an unduly lenient sentence.
23. On behalf of the offenders, it is submitted by Mr Selby and Miss Ivens that this was a Recorder who had had the benefit of conducting the trial, this was a Recorder who had fully set out the relevant facts and the relevant factors and that, even if the sentence was to be regarded as lenient, it was not to be regarded as unduly lenient and this court should not interfere.
24. With all respect to the Recorder, we are in no doubt at all that this case was properly to be categorised as Category 1A. It was Category 1 in terms of harm just because, as Mr Little submitted, of the extreme nature of one or more Category 2 factors or the extreme impact caused by a combination of them. Here on any view this incident was to be described as sustained. Here on any view the violence or threats of violence went beyond that which was inherent in the offence. Moreover, the circumstances were accompanied by the fact, and it is a fact, that the offenders had not been invited into the victim's bedroom, even if they had been invited into the narrow boat itself. Moreover, there were a number of features which placed this in culpability A categorisation to be taken into account as well.
25. On that footing, this was a case, since it properly was to be placed in Category 1A, which under the guideline required a starting point of 15 years' custody with a category range of 13 to 19 years' custody.
26. In this context and whilst the Recorder was right to be alert to the risk of double-counting of matters going to categorisation as being also treated as aggravating factors, there were here over and above the matters going to categorisation further significant aggravating factors. Here there had at the least been the targeting of R, indeed it might be said that the friendly conversation in the morning in effect had become a sort of grooming which enabled them then to be friendly to her in the afternoon resulting in them being invited onto the boat. What had occurred here was in the victim's own home, in the form of a boat, and indeed what happened occurred in the privacy of her own bedroom. The ties and towel had been used to frighten and restrain her. The consequence upon her has been profound and indeed she has been compelled to leave her home. There are overall significant matters by way of aggravation over and above the matters which go to categorisation.
27. In particular, of course, there is the highly relevant matter of the previous conviction for rape with regard to the offence in France. Moreover, it is to be borne in mind that this sustained incident had involved three forms of penetration or attempted penetration. Further, there must not be overlooked, in terms of assessing the appropriate overall sentence, that the two offenders had then stolen valuable items of irreplaceable sentimental value just before they left. That matter too required to be reflected in the total sentence.
28. Taking the facts overall, in our view the aggravating features here are such as to require a significant upward adjustment from the starting point of 15 years' custody indicated as appropriate for one offence after a trial in the definitive guideline. In our view of all the relevant matters indeed require a significant increase above the starting point. As for mitigation, there was scarcely any, as the Recorder noted, which could be identified. The pre-sentence report indicates no real remorse. It is said that the two offenders had had very troubled childhoods and upbringings. They had had a very difficult start to life. But as to that, as the Recorder himself crisply said, "Many people do and yet do not commit offences of this type." We should however perhaps in fairness add that prison reports recently obtained would indicate that the two offenders are behaving themselves properly in prison, as indeed they should.
29. Taking matters overall, we are in no doubt that these sentences are unduly lenient. With all respect to the Recorder, we are in no doubt that this case should have been placed into Category 1A. Taking into account all the circumstances and taking into account all the aggravating factors over and above those matters inherent in the guideline categorisation, we think that the least custodial element appropriate to this appalling offending is one of 18 years' imprisonment in each case. Furthermore, the finding of dangerousness, as we have said, was entirely justified. There will be an extended licence period; but in the circumstances we will adjust the extended licence period to one of six years in the case of each offender. The other sentences as imposed by the Recorder will stand; but on count 1 in the case of each offender we substitute an extended sentence of 24 years' imprisonment made up of a custodial element of 18 years and an extended licence period of six years. The appeal is allowed accordingly.

WordWave International Ltd trading as DTI hereby certify that the above is an accurate and complete record of the proceedings or part thereof.

165 Fleet Street, London EC4A 2DY

Tel No: 020 7404 1400