No. 2009/05708/A4
Neutral Citation Number: [2009] EWCA Crim 2610
IN  THE  COURT  OF  APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London WC2

Thursday 26 November 2009

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)

MR  JUSTICE  SIMON

and

MR  JUSTICE  ROYCE
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ATTORNEY GENERAL'S REFERENCE No. 90 of 2009

UNDER  SECTION  36  OF

THE  CRIMINAL  JUSTICE  ACT  1988

R E G I N A

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STEVEN  ROSS
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Mr B Altman QC appeared on behalf of the Attorney General
Mr R Jones appeared on behalf of the Offender
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J U D G M E N T
Thursday  26  November  2009

THE LORD CHIEF JUSTICE:
1.  This is an application by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988 for leave to refer to this court a sentence which she considers to be unduly lenient.  We grant leave.

2.  The offender is Steven Ross.  He was born in April 1973.  He has many previous convictions.

3.  On 2 October 2009, following a trial in the Crown Court at Blackfriars, before His Honour Judge Martineau and a jury, the offender was convicted of an offence of rape and an offence of assault by penetration.  Before those verdicts were returned, and at the close of the case for the prosecution at trial, he pleaded guilty to an offence of inflicting grievous bodily harm as an alternative to the allegation of causing grievous bodily harm with intent.  He was sentenced to ten years' imprisonment for the offence of rape, to ten years' imprisonment for the offence of assault by penetration, and to four years' imprisonment for the offence of inflicting grievous bodily harm.  All those sentences were ordered to run concurrently, making ten years' imprisonment in all.  The offender was ordered to comply with notification requirements.

4.  The victim of the three offences was the offender's partner.  There was a history of domestic violence.

5.  In the early hours of 20 December 2008, while in the victim's home, the offender threatened to, and cut the victim with a knife.  He then punched her with such force that she fell backwards and suffered a blow to her head.  The immediate effect of that was to cause, among other injuries, a fracture in the region of the neck which produced complete paralysis from the neck downwards.  Although she said to him that she was unable to move, the offender demanded sex.  He picked her up, placed her over the bed, raped her anally and then inserted a deodorant spray canister into her rectum with sufficient force to cause internal injuries.  For a period of about thirty hours he refused to heed her pleas that an ambulance should be called.  He wanted her to agree, and she did eventually agree, to give the authorities a wholly untruthful account of how she had come by her injuries in a way which would exonerate him and implicate a completely fictitious taxi driver as the perpetrator.

6.  The offender is 6ft 4in tall, a strong, well-built man.  He weighed about 18 stones.  The victim is 27 years old, 5ft 7in in height and 7 and a half stones in weight.  She is a citizen of the Czech Republic.  She has been in this country for five years studying English and working part-time.  The owners of the place where she worked developed a loving and caring relationship towards her.  They regarded her as a conscientious employee, reliable and popular.  

7.  The ground floor of their premises is used as a gym.  One of its patrons was the offender.  Gradually a relationship developed between the offender and the victim.

8.  In August 2007 someone in the gym informed the owners of the premises that the victim was being assaulted.  The victim had a split lip.  The police were called and the offender was arrested.  In March 2008 he pleaded guilty to common assault.  A community order was imposed with a supervision requirement of twelve months' duration, together with an order for costs and compensation.  At the time the victim complained that she had been assaulted five or six times during their relationship.  After this incident she told her employer that she had ended her relationship with the offender.  The employer did not believe her.  Thereafter the victim turned up for work with different injuries.  She gave "improbable accounts" of how she had come by them.

9.  The victim's mother lived in the Czech Republic.  She came to England to see her daughter.  She first met the offender in May 2007 in London.  Between the end of 2007 and the beginning of 2008 the offender and the victim visited her mother's family in the Czech Republic.  In October 2008 the victims' parents visited her in London.  On both occasions the victim's mother witnessed acts of violence by the offender towards her daughter.  Her parents described an occasion in October 2008 when the offender became angry and threatened the victim with a knife.

10.  At about 1pm on Sunday 21 December 2008, nursing staff at Hammersmith Hospital reported to the police that a female patient had just been admitted to the Accident and Emergency Department.  The patient was this victim.  She had been delivered to hospital in a private taxi.  She was accompanied by the offender.  He gave the name Steven James.  The report to the police was that the victim had injuries to her face and her ribs.  She complained of pain in her back and extremities.  Police officers who attended the hospital observed that she had scratch marks over her face and a black eye, and that she was unable to move.

11.  When the victim first spoke to the police she gave them a detailed, but untruthful, account of what had happened.  There can be no doubt that she did so in an effort to cover up what the offender had done, almost certainly because she was terrified.  Her explanation was that she had been working in a bar on the evening of Friday 19 December.  She had left at about 3am on 20 December.  She was unable to catch a cab from a local minicab firm and got into a minicab which pulled up at the side of the road.  When the cab arrived a few doors away from her home, the driver stopped the car, locked the doors, jumped into the back of the vehicle, kissed her neck and produced a knife which he placed against her forehead and her neck.  She managed to escape, but she was followed by the driver who kicked her in the back.

12.  A second police officer spoke to the offender.  He provided a story which dove-tailed with that offered to the police by the victim.  He said that he found her outside on the pavement, a few doors away from her home.  She could not get up, so he carried her to the house.  She did not want an ambulance but wanted to go to bed.  Later that day, although she was still unable to move, she had refused to go to hospital.  On the Sunday he insisted that he would take her to hospital.  He ordered a taxi which took them both to the Accident and Emergency Department.

13.  Later that evening the victim was transferred by ambulance to Charing Cross Hospital for specialist treatment.  

14.  We must go back.  On the night of Friday 19 December the victim went to work as usual.  She was in good spirits.  She left work just after 3am on the Saturday.  Later that day, about half an hour before she was due to start work, one of the owners of her place of employment received a text message from a number that she did not recognise.  That message gave the information that the victim was in hospital, having twisted her ankle, and thus provided an excuse for her inability to arrive at work.  At about 4.30pm the co-owner of the premises received a text message in similar terms.  In fact, the text messages were sent by the offender at the behest of the victim, who sent them in the hope that the very fact that she was sending text messages rather than telephoning her employers (which is what she would normally have done) and their content might alert them to her plight.

15.  At 2.15pm on the Saturday afternoon a text message was sent to the victim's telephone enquiring after her.  The offender telephoned one of the victim's employers.  He was crying.  He gave the false account which was later to be given to the police of an assault and an attempted rape by a taxi driver.

16.  None of this was sufficient to fool very sceptical, inquiring police officers.  On the Sunday, in Charing Cross Hospital, the victim was re-interviewed.  Although she gave an untruthful account, some discrepancies had emerged.

17.  The offender was seen again.  He confirmed his earlier account in broad terms.  The officers then accompanied the offender to the victim's flat in order to obtain some clothing for her.  There they found a significant amount of blood on the bedroom floor, on the bed sheets and on some items of furniture.  The offender claimed that he had cut his finger on a knife and that was why the blood was there to be seen in the bedroom.  After the departure of the officers, he attempted to clean the flat and he disposed of the items of bloodstained clothing that the victim had been wearing.  He was arrested later that day outside Charing Cross Hospital on suspicion of causing grievous bodily harm.  In interview he declined to answer questions.  He provided a prepared statement in which he denied any assault on the victim.

18.  Thereafter, a specialist search was conducted of the flat and the surrounding area.  Among other items the police recovered from a metal bin several doors away from the victim's home, and in the opposite direction to where the offender claimed to have found the victim on the pavement, a bra and three ladies' tops.  The victim later identified them as items of clothing she had been wearing on the Friday and Saturday.  

19.  From inside the victim's home the police recovered a deodorant spray canister measuring 4cm in diameter and 7cm in length.  The spray head of the canister carried blood and faecal material.  Scientific analysis confirmed that the DNA from both the blood and the faecal material matched the DNA profile of the victim.

20.  In the meantime the victim's mother arrived in this country.  She immediately went to see her daughter, who was in a critical condition.  Her condition had deteriorated after her admission to hospital.  At this stage she still supported the offender's false story.  However, she gradually revealed to her mother that it was the offender who had been responsible for her injuries.  In a short interview a few days later she confirmed that she had been punched by the offender in the eye.  That was consistent with her black eye, which was there to be seen.

21.  The offender was re-interviewed under caution.  He declined to answer questions.  He provided a second prepared statement in which he expressed concern that the victim was being put under pressure when she was unfit for interview.  

22.  The victim was interviewed again at her own request, and then again later.  The interviews were conducted under ABE conditions.  They were admitted as her evidence in-chief at the subsequent trial and she was cross-examined unscreened.

23.  She told the jury that after leaving work she had collected the offender by cab.  The offender had been angry.  He was still angry when she met him.  The offender had struck her.  This had caused her to fall backwards and to strike her head on a portable electrical plug assembly.  She added that, before striking her, the offender had armed himself with a knife with which he had threatened her and that he had cut her face with it.  It was the blow and the fall that had caused her to suffer a heavily bruised eye, a collapsed lung and a cervical spine fracture which produced complete paralysis from the neck downwards.  Unsurprisingly, the victim feared that she was seriously injured.  She begged the offender to pick her up and put her on the bed.  He disbelieved her.  She complained that she was immobile.  He demanded sex.  He placed her onto her knees beside the bed with the top of her body leaning over the bed.  She was unable to feel anything, but she was aware that he was behind her.  She could feel him moving.  It did not hurt because of the damage she had already suffered.  She was unaware of how her trousers and knickers had been removed, but they were never recovered.  It was clear from the scientific findings that the canister had been inserted by the offender into her rectum, causing bleeding.

24.  Thereafter, the offender must have known of the pain and catastrophic condition of the victim.  At one stage he carried her and placed her in a bath, fully clothed.  She was incapable of getting out of the bath.  During the rest of the Saturday and into the Sunday she pleaded with him to call for an ambulance.  He would not do so until he secured her agrement that she would give the hospital and the police the untruthful, agreed account of how she had received her injuries, which she eventually offered to the police.

25.  In evidence at trial the offender was asked why he had not called for an ambulance and had called instead for a taxi when he eventually called for assistance.  He said that if he had called an ambulance, the ambulance staff would have been alerted and the police would have come to the conclusion that the explanation given to them was untrue.  That would have led to his arrest and possible prosecution.

26.  At one point in this ordeal the offender told the victim that he proposed to leave her unattended but would leave a mobile phone by her side.  She told him that she was frightened that if he carried out this threat she would die because she was quite incapable of operating a mobile phone.  This was one of the reasons why she agreed to tell the false story to the police.

27.  For a period of about thirty hours the offender did absolutely nothing to assist the victim.  All he was interested in was saving his own skin and getting her to agree to a false story.

28.  On 24 February 2009 the offender was arrested on suspicion of rape.  He was interviewed under caution.  A prepared statement was produced.  The allegation of rape was denied.  He denied having had sexual intercourse with the victim.  However, he made certain assertions about the nature of their sexual relationship.  He claimed that they had regular consensual vaginal intercourse and regular consensual anal intercourse.  When the victim was told of this assertion she strenuously denied any regular consensual anal intercourse.  She said that on one previous occasion the offender, who was very keen to have such intercourse, attempted anal sex with her.  She found it painful and repugnant, and had refused any repetition.  On that basis the occasion of anal intercourse at the time of this rape was forced on her when the offender knew perfectly well that that was a form of sexual activity which she disliked intensely.

29.  In evidence at trial, the offender admitted that he knew that the victim had been unable to move following the assault.  He accepted that she had told him so.  He claimed that he did not believe her.  He denied any sexual activity.  He admitted disposing of her clothing.  He admitted failing to call an ambulance.  He asserted that during their relationship the victim regularly inserted objects into her anal passage for her own sexual gratification.  That, too, was a falsehood.

30.  In hospital the victim was intubated and placed on a ventilator.  Scans and X-rays were performed.  Her left lung had collapsed.  Air was discovered in the tissues under the skin in the lower neck, upper chest, in the mid-part of the chest and in the abdominal cavity.  There were multiple pockets of free air in the pelvis, which suggested vaginal or rectal injury consequent on the insertion of the canister into her anus.  There was a cervical spine fracture at level C5 to C6 (the lower part of the neck).  This resulted in complete paralysis from the neck downwards, as well as all the consequent indignities in relation to bowel and bladder movements.  Further description of the injuries to her genitalia and rectum is unnecessary.  She developed deep vein thrombosis which led to blood clotting in the lungs.

31.  Three rib fractures were discovered on X-ray.  These were healing fractures, probably two months old.  In her evidence the victim said that they had been caused by the offender when he had assaulted her.  However, she also said that she had been persuaded by him to say that the injuries had been caused accidentally in a fall in the bathroom.  The radiologist who gave evidence at trial expressed the view that the earlier rib fractures might have caused the lung to collapse during the fall from the blows on 20 December.  An alternative explanation for the collapsed lung was the insertion of a tracheostomy tube on her arrival at the Accident and Emergency Department.

32.  The injuries suffered by the victim are of a permanent and significantly disabling nature.  She has been undergoing a rehabilitation programme delivered by a multi-disciplinary team.  Although there has been progress in the movement of her upper limbs, the prognosis is that the victim will never walk again and will have to spend the rest of her life in a wheelchair. 

33.  The judge took the view that there was insufficient evidence to justify leaving to the jury the count of causing grievous bodily harm with intent.  Accordingly, the only direct offence of which the offender was convicted was inflicting grievous bodily harm contrary to section 20 of the Offences against the Person Act 1861, for which the maximum sentence is five years' imprisonment.  However, we must examine, as the judge had to examine, this case in its overall context.  Even if the section 18 offence was not established, the fact was that the victim was subjected to these awful indignities at a time when she was helpless as a result of the violence meted out to her by the offender.

34.  In addition to his conviction for common assault to which reference was made much earlier in this judgment, the offender has a number of relevant previous convictions.  In total there are a total of 78 offences in the course of 38 appearances over a period of about twenty years.  It is true, as the judge observed, that none was for sexual crime.  The most significant are that in 1989 he was convicted of robbery; 1990, assault on the police and possessing an offensive weapon; 1996, affray; 1997, having a bladed article in a public place; 2002, possessing an imitation firearm with intent to cause fear of violence; 2004, disorderly behaviour; 2005, assault on the police; and 2007, assault.

35.  In his sentencing remarks the judge analysed the way in which the offence had occurred.  He noted the victim's paralysis and her helplessness when the offender "decided to indulge in anal sexual intercourse" -- something he enjoyed but she hated.  After that, by way of sexual gratification or as punishment for her, the deodorant can had been inserted.  He said:

		"Your self-regard and total lack of humanity is astounding and utterly deplorable."

With that observation we entirely agree.

36.  The question is not whether that observation is accurate, but whether the sentencing decision which followed the judge's analysis of the crucial facts in the case was unduly lenient.  We have no doubt that it was.

37.  The aggravating features of these offences are self-evident from our description of what happened to this young woman.  We propose to summarise them again.  There is the background history of violence by the offender towards the woman with whom he had an intimate relationship.  In March 2008 he was convicted of common assault on her.  He has the other previous convictions which we have recently narrated.  On the occasion with which we are concerned, he struck her with such force that she fell to the floor.  That produced the grave and disabling injuries which in the context of the rape offence rendered her completely defenceless.  Before he struck her, he had been armed with a knife which he had used to threaten her and to cut her face.  Knowing that the consequences of the violent blow he had administered and her resulting fall had been paralysis, he raped her anally.  He then degraded her further by using a deodorant canister to penetrate her anus, in turn causing serious internal injuries.  These offences were a grave breach of trust, not merely in the context of their personal relationship, but also because he knew that the victim found anal sex painful, distasteful and unacceptable to her.  He carried out the attack when she could do nothing.  He was completely merciless.  He showed her no mercy whatever.  Afterwards he refused to call an ambulance in order to see if something could be done to help her in her physical condition.  Instead, he concocted a story which he required her to join so as to avoid any possible link between him as the man responsible for her injuries and passing that over to some unknown stranger.  This young woman has been left seriously and permanently disabled as a result of the attack.  The injuries are catastrophic.

38.  When we look for any elements of mitigation, as to the offences of rape and sexual assault there is none.  In relation to the offence of violence, there is the limited mitigation that the offender pleaded guilty.

39.  We have read a letter written by the offender and we have looked at some of the qualifications he is seeking to achieve while in custody.

40.  Anyone listening to this judgment will regard this as a truly appalling case of heartless brutality.  These were offences of the utmost gravity.  The evidence clearly demonstrated that the offender is dangerous and that he will continue to represent a long-term danger for the indefinite future.  A sentence of imprisonment for public protection is the least possible sentence that is consistent with the safety of the public.  That order is now made.

41.  We turn to consider the period which must expire before the Parole Board can even begin to consider the possibility of release on the basis that the offender has ceased to be a danger.  There are some cases, and this is one of them, in which the culpability and criminality of the offender are beyond the ambit of any guideline case or definitive guideline issued by the Sentencing Guidelines Council. It is not possible to cater for a crime like this.  

42.  The offender showed no mercy to this young woman.  He merits none from this court.  We shall assess the determinate sentence as 18 years' imprisonment.  It follows from that that under statute the minimum prescribed period will be nine years.  The time spent in custody on remand will count towards sentence.

43.  The end result is that the offender must be kept in custody until it is safe for him to be released.

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