Case No: 2006/03682/A5

Neutral Citation Number: [2006] EWCA Crim 2305
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
AG Ref No. 80 of 2006

Royal Courts of Justice
Strand, London, WC2A 2LL

Friday 06th October 2006 
Before :

THE RIGHT HONOURABLE LORD JUSTICE HOOPER
THE HONOURABLE MR JUSTICE SIMON
and
THE HONOURABLE MR JUSTICE LLOYD JONES
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APPLICATION BY THE ATTORNEY GENERAL FOR LEAVE TO MAKE A REFERENCE UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988
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(Transcript of the Handed Down Judgment of
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Mr J Ryan for the Offender
Mr C Aylett for the Attorney General

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Judgment

LORD JUSTICE HOOPER : 
1.	This is an Attorney General's reference under section 36 of the Criminal Justice Act 1988.  At the conclusion of the hearing on Tuesday we announced that the Attorney General was granted leave to make the reference but that also we had decided not to interfere with the sentence passed.  We now give our reasons.
2.	On 8 June 2006 the offender pleaded guilty to an offence of rape.  On 29 June 2006 he was sentenced by Mr Recorder Murphy QC to two and a half years’ imprisonment.  The victim of the rape was the offender's wife, Barbara Frowen, born on 18 July 1966.  The offender and his wife were married in 1984.  They had three children who are now grown up, two daughters and a son.  The parties separated in 2004. Both were heavy drinkers. The offender had no relevant convictions.  Sadly on 3 June, five days before the offender pleaded guilty, his wife died.  Her death was in no way linked to her rape on 15 January 2006.  One daughter had lived with the offender for some two years and the other was living with the offender after her mother’s death. 
3.	Mrs Frowen said in her statement that early on the evening of that day she had been feeling unwell.  She was lying down on the bed watching television.  She had taken pain killers.  She had also drunk about six cans of lager.  According to her account the offender suddenly appeared in the bedroom.  It was clear that he had been drinking.  He began getting undressed.  Mrs Frowen told the offender that she was not feeling well and that she did not want to have sex with him.  Mrs Frowen repeatedly told the offender that she did not want to have sex.  Mrs Frowen then rang 999 on a telephone that was along side the bed.  The offender did not realise this and he carried on having sexual intercourse with Mrs Frowen.  Her screams and protestations can be heard on that tape.  They include the following:
You can't do this to me no more, will you stop, get away, will you just stop, go away, please go away, get away from me, stop, stop, just stop, you are hurting me, stop it's agony, please, I can't breath.
Sounds of whimpering and crying can be heard on the tape.  During this time the offender said:  "Another two minutes now and I'll be finished". This was followed shortly by "next thing you know it will be done".
4.	Mrs Frowen said that her leg was hurting. She asked to be able to sit up to which the response was "it will be done in the next few minutes". She said: "My leg is hurting I can't breath, you have got to get up I can't breathe".  After ejaculation the offender told her that he loved her.  
5.	There was then a conversation with the 999 operator in which Mrs Frowen said that everything was ok, that she would be alright and that she did not need an ambulance.  However, it appears that the offender was still in the room at that time.  The offender went to a public house where he was arrested.  
6.	When interviewed by a police officer he said that he had continued to have sexual intercourse with his wife after they had separated: "Once a week, once a fortnight, sometimes we might go a month ... ".  He said that he had been drinking all afternoon, he had taken some cans of lager around to his wife's home and the effect of his answers was that what had happened was consensual.  He was granted bail but he was rearrested on 28 March and the tape recording was played to him.  We have to say that we found the tape recording difficult to follow.  Invited to comment about the tape recording he said: "I can't recall none of that at all so there is nothing I can say about it".  Asked if he had raped his wife he said that he had not and that she had given her consent. The offender was then charged with the rape of his wife.  
7.	The Recorder accepted that the offender would not have acted as he did “had he not been considerably worse for drink”. 
8.	Mrs Frowen then made a statement.  She said that she had various physical ailments including asthma and arthritis.  She had the support of social services who had helped her with anxiety management.  She said that physically she found it very difficult to leave the house and she was reliant on others to support her in a practical way, for example shopping.  She said: 
"My estranged husband has retained keys to this property that I live in and is in the habit of coming and going as and when he chooses.  Most of the time there is no problem, particularly if there are other people present.  However, on occasion, if I am alone, he will force physical attention on me and has indulged in sexual advances towards me which have been uninvited and unwelcome.  I feel powerless to resist and penetrative vaginal intercourse has occurred, I estimate, once a week."  
9.	She then recounted the events of the rape.  She said that physically she was in a lot of pain. Her husband was holding her arms and forcing her legs apart.  She was fighting for breath and "he was really hurting my legs when he was forcing them apart."  "Nigel has behaved like this many times and up to now I haven't been able to report it, my family don't believe this happens and Nigel makes me feel that it is my fault."  She went on to say: "Nigel has on other occasions taken no notice of my protests, he simply takes what he wants."  She referred to the fact that it was difficult for her to say much to the 999 operator because he was in the room but she said that her husband kept saying "sorry".  She continued: 
“I am not strong physically or emotionally, I am in poor health, I do not wish to attend court and I do not want a medical/forensic examination, I want to feel safe in my home and I want help with the security and support with sorting out my finances and regaining my independence.  I feel isolated and not in control which is why Nigel takes what he wants from me physically.  I know he raped me and that is wrong, but I also know that I can't cope with the court process even if I am supported. I make this decision of my own free will without influence from any other person.  I have had all my questions answered and different courses of action have been explained to me.  I also understand that it would be very difficult to secure evidence without medical examination which would make it very difficult to make a formal complaint at a later date, I am determined and decided that I won't attend court."
10.	Deborah Lawrence, Barbara Frowen’s sister, described her as a hermit, downtrodden, depressed, lacking confidence and near-suicidal. Barbara told her that Nigel had been raping her for quite a while. She said that Barbara’s confidence and self-esteem in the two months since her husband had not been in contact with her. 
11.	In addition to these statement served by the prosecution, the Recorder was given a bundle of documents by the defence. In addition to a number of character references there were statements/letters from the two daughters, the son and the parents of a disabled child. We set those out nearly almost in full.
“Letter dated 25th June 2006 written by Joanne Frowen
My name is Joanne Frowen, I am twenty years of age, and I am the daughter of Nigel Frowen.  I have also got a seventeen year old sister, Donna.  Up until two years ago my dad was living with us at Ystrad Deri.  My dad moved out because my mum and dad were always arguing, they argued the most when my mum had a drink.  My mum was an alcoholic.  When they argued I can honestly say my dad was never violent, on a few occasions my mum would throw things not intentionally to hit you but maybe it would hit the wall by you, again she was only like this when she had a drink or when we couldn't afford the drink.  After my dad moved out they argued less but my mum became more depressed and drunk more.  This was when she cut herself more as well.  On more than one occasion me and my sister had to help our mother with the wounds and once she cut herself in front of my sister and we had to take her to hospital.  When we were down the hospital my mum was less depressed it is strange but I think she just wanted attention not in a bad way, maybe she wanted someone.  Also since my dad left my mum has phoned 999 on a number of occasions because she couldn't breathe yet when she was down the hospital she was fine and had a fag, again I think it was for attention.
My mum and dad have a special bond.  Even tho they were not living together they still were together and loved each other.  They have both told me they loved each other, and it's funny but the only people who could help them is each other.  Like when my Nan died my dad became depressed he told me he couldn't speak to me.  I knew only mum could help him.
In the last six months I have lost my uncle, my two nans and my mum.  My mother's mother only recently passed away and her funeral is on Monday 26th June.
My dad has become more depressed because of this situation he is in, and it's hard to understand what's happening.  But I can honestly say that I don't think my dad did it.
He's my dad, he has looked after me and my sister.  Even tho he moved out my dad seen my mum every day and if she needed anything done he did it.  Also if she didn't have any money he would help her out.  Me and my sister love our dad very much and we need him now more then ever because we have lost our mum.
I work 18 hours a week as a trainee, I get paid £94-00 a week.  My sister Donna was in college but because of what's happened she is no longer in education and does not receive any benefits.  If any thing happens to my dad there is no way I could support myself or my sister, financially or emotionally.  At the moment me and my sister have no where to live if anything happens to my dad.
I don't know any words to describe what I want to say but please don't take our dad away as well.

Letter written by Donna Frowen 25th  June 2006

My name is Donna Frowen.  I have read my sisters letter but there are something's that I would like to add.  When my dad moved out I stayed with my mum and on a number of occasions she would tell me how much she still loved my dad.  After losing my uncle, my two nans and my mother in such a short time the thought of losing my dad as well is unbearable.  Now there is only me and my sister.  I left my studies in college because of all the stress and grief.  Both my sister and I are extremely vulnerable at the moment.
My dad works hard at two jobs and he supports both me and my sister financially and emotionally.  I love my dad very much and don't want to grow up without him around.  I know that my dad is a good person who would rather help a person than hurt them.
Like my sister said in her letter I don't know how to describe in words how I feel about the current situation and the prospect of losing my dad on top of everything else.  Joanne and I both need our dad and I don't know how we will cope without him.
Please, please don't take our dad away from us.

Letter written by Stuart Frowen – 27th June 2006
My name is Stuart Frowen.  Nigel Frowen is my father, I have been away in university for the past three years so I can only comment on the occasions I have seen my dad on my visits back.  He has supported me through everything that I have done and to me he is of great character.  After losing two grandmothers and a mother my father was there to support me and my two sisters through it all and life without will not be the same.  I have no facts on the current situation but I feel the family, my two sisters especially need him more than ever at this tough time.

Undated letter written by Clive and Lindsey Jones
We have known Nigel for a number of years. He takes our special needs son, Rory, out for days, has we have no help from our own families, as they cannot handle Rory.
He is very patient and understanding of our son's needs.
Rory has cerebral palsy (mild), wears two hearing-aid and is fed through a gastrostomy tube (feeding tube via the stomach wall.).  He is also autistic and suffers from severe behaviour problems.  Nigel is one of the few people who can calm Rory down, straight away.
They have a very special bond, between them.  Rory absolutely idolizes Nigel and vice the versa.  Nigel is even teaching him to ride a horse.
Many times, we have called on Nigel to help calm Rory down.  I can honestly say that we know no harm would come to Rory, under Nigel's care.  We trust him sincerely with our son.  
Nigel is always there for our son and our family and if he can help anyone, he will.”
12.	In passing sentence the experienced Recorder said:
“This is a tragic case.  You have pleaded guilty and your counsel has helpfully taken me through the chronology of the Court appearances so I am satisfied that you pleaded guilty at the first opportunity and I propose to give you full credit for your plea of guilty. It is necessary to recite some of the background because you and your wife were married in 1984 and you have three children of your marriage who are now aged 21 years to 17 years old.
You lived together until about three years ago and then you left, leaving your wife in what was the former matrimonial home, and thereafter you were a frequent visitor to what had been your mutual home.  I have no doubt that on many occasions you were a welcome visitor.  That is apparent from the letters that I have read from your children, who describe that you and your wife both told them that you loved one another and you were both able to help one another with any difficulties that you had.
The particular difficulties that your late wife had were due to her health, suffering as she did from a variety of problems.  The most significant of which seem to have been asthma and arthritis and also considerable anxiety.  You had keys to the property and you came and went on many occasions and as I say I have do doubt that many of those visits were welcome visits and your children speak of seeing you and your wife together on happy occasions.
The was however a dark side to the reasons for your visits to your late wife and that was sexual and it is apparent from her statement that on a number of occasions sexual activities took place, which generally speaking were unwelcome to her.
That is by way of background; of course I sentence you for what you pleaded guilty to doing on 15th January 2006.  On that day you were significantly drunk and I am quite satisfied that you would not have behaved as you did, later that evening, had you not been so drunk.  But that evening you turned up at your wife's home, you were drunk, she had had quite a good deal to drink herself, about six cans of fairly strong lager and she had retired early to bed, when you came in indicating that you wanted to have sex with her.  She said, "No" and then she switched on her mobile telephone and dialled 999, leaving the phone by the bed.  You, presumably because of your drunken condition, were unaware that you proceeded to force yourself upon your wife and had full sexual intercourse with her.
The transcript of that makes troubling reading and it is even more troubling to listen to what your wife was going through during a period of about eight or ten minutes when you were raping her.  She was crying in pain and distress and making it absolutely and utterly obvious that she did not want you to do what you were doing.  She was begging you to stop, but in your drunken lust you persisted, telling her well into the rape, that it would only take a couple of minutes more before you gratified yourself, and gratify yourself you did.  And so this is clearly a serious offence of rape.
I do take this into account, that clearly in your case it was not just pure lust because you did have a genuine affection for you wife and even when this sexual act was over you asked her to give you a cuddle and then you told her that you loved her.  You said; "I might not show it any more but I do love you", and you said that you loved her with all your heart.  And so that is a factor that I take into account.
There are guidelines in cases like this and I must choose of course to follow those guidelines.  I regard this, looking at all the facts, that although your wife was a vulnerable person she was not so vulnerable as to cause this case to start with a higher starting point.  In my judgment on the guideline case of Millberry the appropriate starting point for you, on a contested case, would have been five years imprisonment.  As I say, you have full credit for a plea of guilty.  I do not regard there as being any aggravating features as listed in that case and there are in my judgment two features that are important in mitigation.
I take into account that in effect you are a man of good character, but more importantly in fixing sentence, I take into account that here you have very considerable remorse, both for what you have done and for the profound effect that that will have on your family and in particular your loving children.

This is not a case where you offered any (inaudible) violence at all and as I say you get credit for pleading guilty at the first opportunity.  Accordingly I would say that on a contested case, having regard to those mitigating features the appropriate starting point would be four years imprisonment.  I give you full credit for your plea of guilty and I allow a further small discount for the new licensing regime and accordingly I reduce the sentence that I impose in this case to one of 30 months imprisonment.  The effect of that is that you will serve half of that term in prison and then you will be released on licence and that period of licence will operate until the end of the period o 30 months.  In effect, therefore, the second period of 15 months is really suspended provided you are of good behaviour and do not commit any other offences.
This is a serious offence and clearly no other sentence but custody could be imposed.  I do not regard you as representing a danger to women; it was only in the very particular circumstances in which you and your late wife found yourself, that this offence was committed.”
13.	It is submitted on behalf of the Attorney-General that the sentence was unduly lenient.  Mr Aylett makes three particular points.  He submits that the following aggravating features appear to be present:
“(i) By reason of her physical and mental condition, the victim was an especially vulnerable person;
(ii) The offender had repeatedly taken advantage of his wife by visiting her and having sexual intercourse with her when such sexual activity was unwelcome to her.”
14.	We start with the second of those.  Mr Ryan had submitted to the Recorder that Mr Frown had to be sentenced on the basis of the one incident: “It was never said to be a specimen”.  The Recorder agreed and said that he would have regard to the (alleged) prior unwelcome sexual activity as part of the background but not as an aggravating feature.  We are not sure how the allegation (unless accepted) helped or would have helped the Recorder to determine the proper sentence.  But we are sure that the Recorder was entitled not to regard this as an aggravating feature.  If he was minded to consider it as an aggravating feature then fairness would require that the defendant had an opportunity to meet the allegation that he had knowingly had unwelcome sexual intercourse with his wife. We stress that the offender could not be sentenced on the basis that he had previously had intercourse with his wife in circumstances which constituted rape. 
15.	We turn to the first alleged aggravating feature. In Millberry [2003] 2 Cr. App. R (S) 31 Lord Woolf C.J. giving the judgment of the Court said:
“The eight year starting point
This is recommended by the Panel after a contested trial where there is present any of the following features ... :
... 
ii. rape of a child, or a victim who is especially vulnerable because of physical frailty, mental impairment or disorder, or learning disability.”
16.	The Court in Millberry accepted this starting point where this feature was present.
17.	Mr Aylett submits that this was the proper starting point in the present case because Mrs Frowen was especially vulnerable.  In the course of opening the case, Miss Treherne drew to the Recorder’s attention the Millberry guidelines but did not ask for a finding on the issue of vulnerability.  She had earlier said:
“Mrs Frowen was 39 years of age.  She was a lady who was not in good health.  She had difficulties with agoraphobia.  She had physical ailments in relation to chronic asthma and chronic arthritis.  It is right to say that on 1st June I actually had a special measures meeting with her in order to discuss the observation at the end of her statement where she indicated reluctance to come to Court.  I spent an hour and a half in her home and I can confirm those physical ailments and also a wish not to leave the home.  She appears to have left the home very infrequently.  She is in fact left the home just to go to a short hospital appointment on the following day, and as your Honour knows on Saturday 3rd June she was found by a member of her family dead in her home.”
18.	Mr Ryan submitted that none of the aggravating features in Millberry applied.  The Recorder replied: “I agree none of the aggravating features in Millberry are there.”  He identified as the only aggravating feature the fact that the offender had persisted despite the obvious pain and distress of his wife. 
19.	We have no transcript of anything further said by Miss Treherne.  Mr Ryan, in the best traditions of the Bar, volunteered that Miss Treherne had, after Mr Ryan had completed his mitigation, raised the issue of Millberry vulnerability.  
20.	We have seen how in his sentencing remarks the Recorder decided that Mrs Frowen was a vulnerable person but not so vulnerable as to lead to a higher starting point.
21.	Mr Aylett submits that this conclusion was one that no reasonable judge could reach. He submitted further evidence, largely consisting of medical records, which had not been before the Recorder.  The submission of that evidence led to the offender’s legal representatives submitting to us two further statements from the daughters and a further statement from a third party supporting Joanne’s account of driving her mother the evening before her death to meet the offender. According to Joanne she had driven her mother at her mother’s insistence to meet the offender, although the meeting would be a breach of his bail conditions.  Indeed, according to Joanne, that was not the first time she had done that. According to Joanne, Mrs Frowen said that she had told the prosecution that she wanted to drop the charges and said “plead not guilty, you will be alright”.  As we have said he did plead guilty a few days later.  
22.	It is sufficient to stay that both statements cast doubt on the level of vulnerability reflected in the statements and fresh evidence submitted by the Attorney General.
23.	In Attorney General's Reference No 19 of 2005 (WB) [2006] EWCA Crim 785 the Vice President said at paragraph 10:
“But it is not this Court's function, under section 36 of the Criminal Justice Act 1988, to substitute, in the light of new material, our view as to what the sentence ought now to be.  Our task, under section 36, is to decide whether the judge's sentence, in the light of the material before him, can properly be characterised as having been unduly lenient.”
24.	Quite apart from the issue of admissibility, it is in our view not necessary to consider the fresh evidence in any detail. It is sufficient to say that the Recorder was entitled to reach the conclusion which he did and, we could add, there is support for his conclusion in the statements submitted to this Court on behalf of the offender. 
25.	We turn to the other submission made by Mr Aylett: the judge was wrong to give full credit for plea.  He submits that full credit should only have been given to the offender if he had indicated his intention to plead guilty at the second interview when the tape was played. 
26.	Miss Treherne did not suggest that the offender was not entitled to full credit. The transcript of this part of the mitigation reads as follows:
"Mr Ryan: Your Honour, in terms of mitigation I pray in aid of course the timely guilty plea.  If I may set out in a little more detail the history of the matter in the Crown Court.  The Preliminary Hearing took place on 21st April of this year.  On that occasion papers were ordered to be served by 16th May.  I made a specific request that the 999 tape that your Honour has heard today, be included with those papers, as it seemed to me to be perhaps the most fundamental item of evidence that needed to be listened to.
The papers were served late on 25th May and the 999 tape was not included with those papers.  There seemed little point in me having a conference without the benefit of that material, so on 1st June when the matter was listed for Plea & Case Management Hearing, two things happened.  Firstly Mr Frowen did not attend because the case was brought forward and it was done so at such a late juncture that notification did not take place.  Secondly that the tape in question was handed to me at Court by my learned friend Ms Treherne and thirdly because of what was said at page six of the depositions, that Mrs Frowen was determined not to attend Court, my learned friend quite properly wanted to have a special measures meeting with her, because it was viewed at that point that if it were to be a not guilty plea, that the first step would be to see whether the avenue of witness summons etcetera should be gone down, as opposed to an application under the 2003 Act for Hearsay, etcetera.
It was therefore a joint application to adjourn for seven days, for me to listen to the tape and have a conference and for Mrs Treherne to speak to the complainant.  A conference did then take place and on 8th June a guilty plea was forthcoming.
Mr Rec. Murphy:  That is very helpful Mr Ryan, given that chronology I am quite satisfied that full credit should be given for the guilty plea here.”
27.	There is no challenge to the correctness of Mr Ryan’s outline subject to one point.  The transcript of the tape recording had been provided earlier.
28.	We were referred by Mr Aylett to the Sentencing Guidelines Council definitive guideline on Reduction in Sentence for a Guilty Plea, considered by another division of this Court presided over by Lord Phillips C.J. in French and Webster [2006] EWCA Crim 1335. The Court noted (in paragraph 47) a degree of conflict in the guidelines but went on to say that the Attorney General had not demonstrated that the judge erred in his conclusion that the offender had pleaded guilty at the first reasonable opportunity.  
29.	In our view the Recorder was entitled (although not driven) to reach the conclusion which he did.  On all the facts of this case (including the offender’s drunkenness at the time of the rape and the serious and unusual nature of the offence) a judge would be entitled to conclude that the first reasonable opportunity followed in point of time the delivery of the 999 tape and the legal advice then given. The absence of remorse in interview or admissions in interview would deny him a further deduction (see paragraph 2.3 of the Guidelines). On the other hand a plea of guilty after his wife’s death may well demonstrate remorse at that stage.  
30.	The Recorder was faced with a difficult task in sentencing the offender.  Mr Aylett opened the case with these words: “This is a difficult and sad case”. We agree. Mr Aylett also rightly accepted that the views of the daughters so powerfully expressed in their letters to the Recorder were a factor which the Recorder was entitled to take into account. 
31.	If the sentence can be described as lenient, it is not in our view unduly lenient.  
32.	We add a general comment.  Aggravating factors can have a very substantial impact on sentence.  The overriding objectives in Part I of the Criminal Procedure Rules apply to the sentencing stage as well as the trial stage. Fairness both to the defendant and to the victim and family is required at this stage. It may be important in cases where there could be a dispute about the existence of an aggravating factor that the defence know beforehand what aggravating factors the prosecution may advance to the judge. This will enable the defence to prepare the case and the parties can ensure that all relevant material is available at the time of the sentencing hearing. In this case the Recorder might well have helped by the fresh evidence put before us both by the Attorney-General and by the offender.