Neutral Citation Number: [2009] EWCA Crim 1949
Case No: 200901071 A9; 200901072 A9 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Date: Thursday, 6th August 2009
 
B e f o r e:

LORD JUSTICE GOLDRING 

MR JUSTICE BEAN 

RECORDER OF KINGSTON‑UPON‑HULL 
(Sitting as a judge of the Court of Appeal Criminal Division) 
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REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 OF THE CRIMINAL JUSTICE ACT 1988 

ATTORNEY‑GENERAL'S REFERENCE NO 21 & 22 OF 2009   
 
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Mr P Wright QC appeared on behalf of the Attorney General 
Mr A Roxborough appeared on behalf of the First Offender
Miss A Johnson appeared on behalf of the Second Offender 
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J U D G M E N T 

1.	LORD JUSTICE GOLDRING:  This is an application by the Attorney‑General for leave to refer sentences of five years' detention in a young offender institution imposed by His Honour Judge Knopf at Bolton Crown Court as unduly lenient.  We grant leave.
2.	Although there is some, possibly significant, uncertainty about it, the ages of the offenders were taken by the judge as 18.  As we read the transcripts, that is how in the final analysis they appeared to the court to be.  In the circumstances therefore, and Mr Wright QC on behalf of the Attorney accepts it, we treat them as 18.
3.	Ali is from Kashmir.  Madi is from Algeria.  Each arrived in this country claiming asylum.  On 7th November 2008 each pleaded guilty at the plea and case management hearing to the offence of rape.  The rapes were committed on 5th July 2008.  The victim was a 17 year old girl whom we shall refer to as "RD".  Madi pleaded guilty to her vaginal rape.  Ali pleaded guilty to her anal rape on the same occasion.  Each was sentenced on 4th February 2009.  263 days served on remand was set off against that sentence.  Each was placed on the Sex Offenders Register for life.
4.	RD was born on 2nd April 1991.  On the evening of 4th July she went to the flat of a friend in Rochdale town centre.  She had something to drink.  She had a disagreement with the friends who were there, and at about 2 o'clock in the morning of 5th July she left the flat and began to walk home.  She was alone.
5.	The offenders lived in a nearby hostel in Rochdale.  As she left the block of flats and walked across the road they saw her.  They followed her.  They called out to her and approached her.  She ignored them and carried on walking home.  They grabbed her and pushed her against a fence before leading her out of sight of some close circuit television cameras situated in the vicinity and towards an area known as Century Gardens.  They then pushed her down an alleyway and onto the floor.  She landed on her knees and sustained minor abrasions and injury.  She struggled as they tried to pin her down.  Ali indecently assaulted her by digitally penetrating her vagina.  She continued to struggle.  She managed to get away from her assailants.  She started to run in the direction of her home.  They pursued her.  They caught up with her and pushed her into some bushes in the vicinity of a car park.  She landed on the ground and was held by her shoulders as she was raped, Ali, as we have said, anally and Madi, vaginally.  Immediately prior to the anal rape Ali spat on her bottom.  During the anal and vaginal rapes both men ejaculated inside her.  They ran off when they were disturbed by a passer‑by.  RD sought assistance from a passer‑by and a nearby garage employee but without success.  Eventually she made her way home and raised the alarm.
6.	Upon examination she was found to have sustained abrasions, bruising, swelling to her forearms, her legs and her head.  An anal swab revealed the DNA profile of Ali.
7.	The two were arrested on 14th July 2008.  Each was interviewed.  Ali denied presence and purported to give an alibi.  Madi admitted presence.  He said he had been in Ali's company.  They had seen RD leaving the block of flats from the hostel at which they were living.  They had followed her.  There was conversation and then there was consensual sex involving both of them.
8.	In her victim impact statement RD says this:
"Following the night it happened I tried to forget about what happened by drinking.  I would drink every day and want to drink from morning to night, which helped me forget but as soon as I was sober it all came back again.  
I am depressed and thought about taking my own life but know this is not the answer as I do not want to leave my family and it would upset them.  
Before the assault on me I had regular appointments regarding further education and was on a course ... Since the incident I have not been able to go back as I have been so messed up and had got so far behind... 
I had wanted to go to college to be a dancer but now I feel I do not have any confidence to stand up in front of anyone and dance.  
I am trying to get my life in some sort of direction and plan to try and get a job or qualifications in childcare."
She finally refers to the flashbacks and nightmares of what happened and to waking up crying.
9.	There were reports before the judge in respect of each of the offenders.  Ali was assessed, by virtue of the offence, as presenting a high risk of harm to the public.  It was said it was difficult to assess accurately the risk he presents and the imminence of further offending.  The author concluded that, taking into account that there is no pattern of previous similar behaviour on the basis of which accurately to determine dangerousness, he could be managed through a determinate sentence.
10.	Madi, it was said, did not display a high level of victim empathy.  He minimised his behaviour.  He showed little remorse.  He presented a significant risk to members of the public of serious harm.  There was also a psychological report in respect of Madi.
11.	In imposing these sentences which he did, the judge first considered the issue of dangerousness.  He said that he was satisfied, taking into account all the circumstances and the information available, that he could exercise his discretion against imposing imprisonment or detention for public protection.  No issue is taken on behalf of the Attorney in respect of that.  
12.	He said this too:
"... so far as physical injuries are concerned, there is no evidence of force being used over and above the force that would normally be used in penetrating crimes of this nature."
He said that there were no threats offered to RD and that: 
"... it would appear, at the time or subsequently to that, there were no indignities over and behalf those which flowed from the offences themselves which were perpetrated against her.  So I take all these points into account when reaching the conclusion I have".  
He referred to the definitive guideline of the Sentencing Guidelines Council.  As to aggravating features, he referred to ejaculation.  He referred too to a situation of more than one offender acting together, unprotected sex and the consequences that this might have had.  He referred to the victim impact statement.  He took as the appropriate category under the guidelines the second.  No issue is taken as to that selection.  He seems to have taken as the appropriate sentence after trial one of about seven and a half years.
13.	In the submissions on behalf of the Attorney it is said that the following aggravating features were present: there was an element of abduction or detention; more than one offender was acting together; there was both anal and vaginal rape during the same incident; the nature of the attack was sustained; there was ejaculation and lack of protection; reference is made to the age and vulnerability of RD; the offence was committed at night; there was an additional sexual indignity; and the attack took place in a secluded location, albeit it was within the centre of the town.
14.	The mitigating features are said to be these, and they essentially coincide with those features relied upon by Mr Roxborough on behalf of Ali and Miss Johnson on behalf of Madi; namely, as far as Ali is concerned, his previous good character and his plea of guilty; as far as Madi is concerned, the early plea of guilty and the absence of a previous conviction for any similar offence.
15.	In his submissions on behalf of the Attorney, Mr Wright describes these as most grave offences involving, as they undoubtedly did, stranger rapes by two young men on a vulnerable young woman who was in effect forcibly taken off the street and raped both anally and vaginally.  He submitted that such facts called for a significant element of deterrence and that the level of culpability of the offenders was high.  He refers, and we shall shortly come to it, to those features which take the case into the second category.  He refers too to the fact that this was a young woman who was alone at night, who had obviously earlier been spotted before she was followed and overpowered.  Throughout, both of them were acting together.  
16.	In addition to the features in mitigation to which we have referred, our attention has been drawn to the difficulties in prison that both these men face.  Ali has limited English.  He has had to be placed, because he has been targetted, in solitary confinement and therefore the punitive element of any custodial sentence is particularly high.  The same applies to the second offender.
17.	Turning now to the guidelines, it is necessary to spell out those features which bring the case into that second category.  There are, as it seems to us, three: there was an element of abduction or detention; there was more than one offender acting together; and the attack in which together they were acting was sustained.  In other words, this was not a case of simply one element of those features, but three.  It is the case, as His Honour Judge Mettyear observed in argument, that a number of such different features can push a sentence up to the top of the range within those guidelines or above it.  There is, in addition, the specifically mentioned aggravating feature in the guidelines of the ejaculation, which was of course referred to by the judge.
18.	The starting point for an offender of 18 years or over is eight years' custody (after a trial).  The bracket is six to 11 years' custody.  In his submissions on behalf of the Attorney, Mr Wright submits that the appropriate sentence after trial would have been in the order of 12 years.
19.	We bear in mind those features to which we have just referred.  We agree with Mr Wright's analysis of the offending.  It seems to us that some account should be taken, in addition to the pleas of guilty, to the difficult circumstances in which any custodial sentences would be served.  
20.	It seems to us that an appropriate sentence in each case after trial would have been one of 11 years.  Taking into account the pleas of guilty and the other mitigating factors, we would reduce it to seven years.  It follows that we have concluded the sentences imposed were unduly lenient.  We substitute for the sentences of five years in a young offender institution, sentences of seven years. 
21.	MR WRIGHT:  May I deal with one technical matter.  So far as Ali is concerned, by virtue of section 28 of the Criminal Justice and Court Services Act 2000 he falls to be disqualified from working with children for life.  That is a mandatory disqualification in his case, he being 18 at the date of the offence. 
22.	MR ROXBOROUGH:  My Lord, I have no objection.
23.	LORD JUSTICE GOLDRING:  We make such an order, Mr Wright.  Thank you very much.