No: 200402771/A6 
Neutral Citation Number: [2004] EWCA Crim 2038
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Wednesday, 30th June 2004
 
B E F O R E:

LORD JUSTICE KENNEDY 

MR JUSTICE HENRIQUES 

MR JUSTICE GROSS 

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

ATTORNEY-GENERAL's REFERENCE NO 44 OF 2004 
(KEITH ELLIS) 
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Computer Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
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MISS B CHEEMA appeared on behalf of the ATTORNEY GENERAL
MR B COX appeared on behalf of the OFFENDER
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J U D G M E N T
1.	LORD JUSTICE KENNEDY:  Her Majesty Solicitor-General, on behalf of the Attorney-General, seeks leave of this Court to refer to the Court, under section 36 of the Criminal Justice Act 1988, a sentence which she considers to be unduly lenient.  We grant that leave.
2.	The offender is Keith Ellis, who is 43 years of age. On 24th March 2004 he was convicted of rape, the offence itself being committed on 20th March 2003.  He was then sentenced to 3 years' imprisonment.  The sentencing judge being His Honour Judge Worstenholme sitting at Leeds Crown Court.
3.	The victim, whom we will refer to only as ASB, is 33 years of age.  She was the adult daughter of the woman with whom the offender had previously had a relationship for a number of years.  At the end of 2002 the offender allowed the victim to move into his spare bedroom after she had fallen out with her mother, with whom his relationship had come to an end.
4.	Between January 2003 and the date of the offence in March a sexual relationship developed between the victim and the offender.  The offender found the victim work with his employer and he agreed that she should use his bank account for her wages and initially she used the spare bedroom.  But they drank together after work and one night, apparently in January, she let him have sexual intercourse with her.  She said that she immediately regretted it and returned to her own bedroom thereafter but he continued his suit and eventually she agreed to share his bed.  Thereafter sexual intercourse took place regularly and, she accepted, when she refused his approach he respected her decision and they simply slept together in the same bed.
5.	One of the problems undoubtedly was that they were both abusing alcohol.  No doubt that fuelled arguments between them. On 18th March 2003 she went to bed earlier and the offender eventually followed her.  He had been drinking; he wanted to have sexual intercourse and was persistent but she refused.  On that occasion he began to use a certain amount of force, grabbing her and trying to prise her legs open. She resisted.  She ran downstairs. She had a cigarette and then went upstairs and told him that she did not want to have intercourse that night and he accepted her decision.
6.	The next day he refused to give her any more money and after work she slept on the sofa.  Then the two of them spent the evening in the house eating and drinking.  The offender, it seems, was drunk by the end of the night. She claims to have been somewhat less so.  They argued.  He retired first.  When she went upstairs he put his arm round her and tried to kiss her. She resisted him and told him she did not want that to happen.  He then became violent. He pulled her by her arms but she got free and ran to the far corner of the room.  She was by this stage crying.  He got out of bed, and she saw that he was naked.  He went towards her with his fist raised and told her: "I could fucking do you" and pulled her to the bed by her hair. He then forced her pyjama bottoms off and when she put her hand between her legs he pulled them out, pinned her arms to the bed by pressing his hands on her upper arms. He then used his knees to prise her legs open and to insert his penis into her vagina.  He then continued to commit the offence of rape.
7.	She was saying to him not to do it, but in fact he did. Then after he had completed the act of intercourse and ceased to have contact with her he apologised, saying: "I'm sorry chuck.  You won't tell anyone at work about this, will you?" She said: "About what?" He said: "I raped you".  She commenting "thank you for admitting it". He apologised again the following morning before leaving for work.  When she went to work she found that she was unable to concentrate and she reported the rape to her supervisor, who took her home. She then went to the doctor's surgery and spoke to a practice nurse who arranged for the police to be called. Both of those people gave evidence at the trial of her appearance of distress.
8.	She was medically examined. There were fingertip bruising to her upper arms, bruising to her shoulders and some bruising to her inner thighs. We have seen the photographs of that bruising and compared with many other regrettable cases in this case the bruising is relatively slight.
9.	The offender was arrested later that day. He accepted that intercourse had taken place but said, at that stage, the victim had consented.  He said that she had been drunk at the time and really, as he put it, lost it.
10.	In November 2003, some 8 months after this incident in March, the victim provided an impact statement, which set out a number of matters: that she had been through five jobs in 6 months; that initially after March she had indulged in binge drinking; she had been on antidepressants and tried to avoid leaving home at all and that she was having difficulty in a then existing relationship because she could not trust her boyfriend.  She also said that she was concerned about her personal safety. She was very subdued and unable to socialise as she had previously.  She had become afraid of the dark and had to sleep with the light on. All of this, or at any rate some of it, was explored in cross-examination on the basis that really she was exaggerating the effect of the incident upon her.
11.	On behalf of the Attorney-General Miss Cheema admits that the previous convictions of the offender are, in this case, of relatively little relevance and with that we agree.  Many years ago he did have some convictions, but for present purposes we have no doubt that he should be regarded as a man of no relevant previous convictions.
12.	But it is submitted that there are features to which any sentencing judge should have regard.  Miss Cheema was careful to point out that they are not aggravating features as envisaged by the leading case of R v Millberry [2003] 1 Cr App R(S) 396.  She submits that the force and threats which were used went beyond what was necessary for the commission of the offence and she points out that the victim had to re-live her ordeal and subject herself to cross-examination about her medical history, drinking habits and her psychiatric state.  That point has to be approached with some care.
13.	It is the right of a defendant, in a criminal case, to contest his or her guilt.  If he or she puts forward the defence in a proper way, as was unquestionably done in this case, it is not the place of the prosecution, in a Reference, to start being critical of the fact that the case was contested.
14.	There is here, in our judgment, no element of breach of trust beyond that to be found in every case of tape by a cohabitee, and, although there is clearly evidence that the impact on this victim was of significance, it may be, as was put to her in cross-examination, that there is some degree of exaggeration in the victim impact statement.
15.	As we have indicated, this was a man who was, for all practical purposes, of good character.  He had no history of sexual offending and, on his behalf, a number of things are put forward by Mr Cox.  Mr Cox accepts that the sentence of the learned judge was lenient but he submits that it was not unduly lenient.
16.	In relation to the leading case of Millberry, Mr Cox accepts that it was appropriate for the sentencing judge to start by thinking in terms, after a contested case, of a sentence of 5 years' imprisonment.  But he emphasises that that decision did not seek to do more than suggest guidelines and that any sentencing judge should have a degree of latitude.  He seeks to draw some support from a case which was referred to during the decision of the Court in Millberry, namely the case of R v M (1965) 16 Cr App R(S) 770.  Suffice it to say, that we do not regard that case as being of particular assistance after the decision in Millberry itself.
17.	However, we do accept Mr Cox's further submission that, in the present case, although there was during the actual course of the rape a degree of violence, there was not the sort of violence which is normally an aggravating feature when one is talking in those terms. This was a very dreadful incident so long as it lasted.  But it did not, for example, lead to very significant bruising and the way in which the victim conducted herself for the rest of that night is perhaps some indication of the immediate impact of the force upon her.
18.	There was also, as Mr Cox has rightly pointed out, the complicating factor here of the effect of drink, something which affected both of the parties and which the sentencing judge was able to evaluate during the course of the trial.  We accept that after the decision in Millberry it is inappropriate to have any particular regard to the relationship which exists between an offender and a victim.  The fact that such a relationship does exist cannot, of itself, be regarded as a mitigating factor.  That, for example, is made clear in the case of Price [2003] 2 Cr App R(S) 73, to which our attention has been helpfully invited (see in particular paragraph 10).  But having said that, any case of this kind does have to be approached with a degree of common sense.  The learned sentencing judge here had advantages which we do not enjoy.
19.	In delivering the judgment of this Court in Millberry, the Lord Chief Justice, at paragraph 26, said this: 
"There can be situations where the offender and victim are sharing the same bed on a regular basis and prior to retiring to bed both had been out drinking and because of the drink that the offender consumed he failed to show the restraint he should have.  It would be contrary to common sense to treat such a category of rape as equivalent to stranger rape as on one interpretation of the research material panel would appear to be suggesting."
With that we respectfully agree.  It seems to us that that must have been a matter to which the sentencing judge had regard when he was sentencing in the present case.
20.	We agree with the concession made by Mr Cox, that this sentence was lenient.  If we had been passing sentence in this case, we would have passed a sentence of 4 years' imprisonment.  However, in our judgment, the sentence which was imposed was not unduly lenient and, furthermore, if we were to approach this matter in the way which we normally approach a reference before us by the Attorney-General, we would inevitably have to bear in mind, now, in passing sentence the element of double jeopardy.  Accordingly, we do not interfere with the sentence which was imposed.