England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London WC2A 2LL
		6 December 2023

LADY JUSTICE WHIPPLE:

1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall, during that person's lifetime, be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.

Background

2. On 17 April 2023, the applicant was sentenced by HHJ Swinnerton at Liverpool Crown Court to an extended sentence of 28 years, comprising a custodial element of 20 years and an extended licence period of 8 years. The sentence was imposed for two counts of rape. The applicant was then aged 27. The usual consequential orders were made. The applicant now renews his application for leave to appeal.

The Facts

3. The facts are set out in the Criminal Appeal Office summary and do not need to be set out fully here.
4. The applicant committed the rapes on his partner, who we shall call "C1". C1 suffered various forms of ill-health and was vulnerable. At times, because of her health problems, which included undergoing back surgery, she had to take strong tablets which put her into a deep sleep. The applicant raped her while she was asleep. She only discovered that she had been raped when she woke. On one occasion she woke to find her incontinence pads removed and that she had in consequence wet the bed. She repeatedly asked the applicant to stop doing what he was doing but he carried on.
5. Count 1 reflected the first instance of rape. Count 2 reflected rape committed by the applicant on no fewer than ten subsequent occasions over 3½ years.
6. This Court has read the victim impact statements which were also before the judge on sentence. The effect on C1 has been profound and long lasting, leaving her with emotional and psychological consequences.

Sentence

7. The sentencing judge concluded that these offences fell within category 1A, bearing in mind the severe psychological harm, degradation and humiliation inflicted and the fact that this was a sustained pattern over some years. C1 was vulnerable because of her physical health problems but also because she had Asperger's. The culpability was high because of the breach of trust. Further, he found the applicant was dangerous taking account of the pre-sentence report, the psychiatric report, the applicant's previous convictions, some of which involved offences against women with whom the applicant had been in a relationship, and indeed the circumstances of this offence.
8. The judge arrived at a notional sentence after trial of 24 years on count 2, the lead count. He gave credit of 4 years or around 16 per cent for the guilty plea which was entered just before the section 28 hearing was due to take place. The resulting sentence was one of 20 years in custody with 12 years' custody concurrent on count 1. He considered a lengthy period of licence was necessary to protect any partner the applicant might have after release and imposed the 8-year extension.

Grounds of Appeal

9. By grounds of appeal drafted by his counsel, the applicant submits that this sentence was manifestly excessive for the following reasons:

1. It was manifestly excessive given the facts of the case and the overall criminality involved.

2. The imposition of an extended sentence on the applicant was unnecessary given the length of the custodial sentence.

Discussion

10. We deal with the second point first. The judge had good reason to impose an extended sentence in this case. The applicant plainly does present a real danger to the public and particularly to women with whom he is associated or with whom he is in a relationship. The 8-year extension period is a safeguard against further serious offending and its consequences, and we see no error in the judge's imposition of such an extension period.
11. We turn then to the applicant's main point, which is that the sentence was just too long. We are not able to accept that submission even arguably.
12. The judge was entitled to put these rapes into category 1. The argument that they should fall into category 2 is unrealistic on the facts. Further, they are in category A for culpability given the abuse of trust which was significant and striking. The argument that they were category B is also unrealistic.
13. The starting point under the relevant guideline is 15 years within a range of 13 to 19 years for a single incident of rape. The guideline states that:

"Offences may be of such severity, for example involving a campaign of rape, that sentences of 20 years and above may be appropriate."

14. The index offences are very severe. Their repeated nature makes it reasonable to go above the upper limit of that category by some margin. This sentence was for a series of rapes (at least eleven) over a lengthy period, committed despite C1 asking the applicant to stop and expressing her deep upset at what was occurring. These rapes were committed while she was asleep and unable to resist and while she was in her own home which she shared with the applicant.
15. A term of imprisonment of this length is not arguably manifestly excessive. We therefore agree with the single judge that this application must be refused.