Neutral Citation Number: [2013] EWCA Crim 2408
Case No: 201300122 C2 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Friday, 29 November 2013
 
B e f o r e:

LORD JUSTICE McCOMBE 

MR JUSTICE MITTING 
 
MR JUSTICE PHILLIPS 
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R E G I N A 

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JA 
 
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Mr AK Montgomery appeared on behalf of the Applicant 
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J U D G M E N T
1.	MR JUSTICE MITTING:  The applicant is now aged 32.  He has previous convictions but nothing of immediate relevance.  On 6 December 2012, at the Inner London Crown Court before HHJ Grobel and a jury, the appellant was convicted of rape and on the same day sentenced to 8 years' imprisonment.
2.	The facts which gave rise to the charge against him were that on 12 June 2011 he was at the home address of the complainant MM, his former partner.  They had spent the day together with their son aged 3 years.  MM's evidence was that in the evening, after an uneventful day, the applicant became verbally abusive about a matter, which was completely trivial: leaving on the television picture while they were out.  MM asked him to calm down.  He accused her of never listening and then began to become violent.  He pulled her hair and slapped her in the face.  She was wearing at the time her dressing gown with a cord around the middle.  He took the cord from the dressing gown and began to strangle her with it.  He dragged her on to the bed by the cord.  He then removed her lower clothing, ripped her top and knickers and engaged in vaginal sexual intercourse, during which he ejaculated all without her consent.
3.	Afterwards, according to her, he asked her what it felt like to be raped.  He threatened to keep her in the flat for three days and call his friend so that he could also rape her.  He said he would rape her again and in a vivid phrase, to which the judge referred when sentencing him, said that whenever in the future she had sexual intercourse she would see his face and remember the rape.
4.	Throughout this incident their three‑year‑old son was in the adjoining room.  He heard MM and she heard him crying.  After the attack she went to comfort him.  The applicant then left.  MM contacted a friend by text and told her that she had been raped by him.  On her friend's advice she summoned the police and while being taken from her flat by the police and the ambulance service she was contacted by the applicant on her mobile telephone.  
5.	A medical examination at lunchtime on 13 June revealed injuries consistent with strangulation by the dressing gown cord, bruising to her neck left by the cord, the visible imprint of her necklace on the flesh of her neck caused by the pressure of the cord on the necklace, and petechial spots below the right eye.  There were also bruises on her neck, to her lips, arms, legs, back and abdomen and an abrasion on her buttocks.  There were no genital injuries.  The ripped top and knickers were retained by the police and exhibited at the trial.
6.	The applicant was arrested on 27 June.  In interview he denied any wrongdoing.  He said that he and MM had remained sexual partners right up until 12 June and had enjoyed a harmonious relationship.  He said that they had had consensual intercourse on 12 June.  He was unable to explain in interview, or in the evidence that he gave subsequently at the trial, how MM had come by the injuries to which we have referred.  He tendered an explanation about the ripped clothing.
7.	At the start of the trial the judge was invited to rule upon a prosecution application to adduce evidence from MM, which she had given in her interview, about previous domestic violence at the hands of the applicant occurring over many years.  The judge acceded to the application on the basis that it was capable of demonstrating a propensity to violence.  In due course he gave correct directions about the manner in which the jury should treat these earlier alleged incidents and summed them up at moderate length in the course of a comprehensive summing‑up, which must have been helpful to the jury in focusing their attention upon the critical issue in the case, namely whether or not the sexual intercourse on 12 June occurred with or without the consent of MM, and whether or not the applicant knew that she was not consenting or lacked any reasonable belief in the fact that she was.
8.	Mr Montgomery, who appeared for the applicant at the trial, renews his application for permission to appeal against conviction on the basis that the judge should not have admitted evidence of previous domestic violence.  He submits that it distracted attention, or was capable of distracting attention, from the principal issue in the case and caused prejudice to the applicant, which he could not readily deal with because MM had made no contemporaneous complaints to friends or to the authorities about the incidents of violence of which she had spoken.  He submits that in summary the attention of the jury may well have been distracted from the critical issues so rendering the conviction unsafe.
9.	We do not accept that proposition.  Although we have not been shown the defence case statement, from what the applicant said in interview and from what he said in evidence, it was his case that a harmonious relationship had existed between him and MM up until 12 June.  In those circumstances it was unsurprising that the Crown and the judge thought that it was desirable that the jury should hear evidence about the background.  Further, and critically, this rape on the complainant's evidence was not a rape in which violence had been used to secure the submission of the victim for the purpose of sexual gratification of the offender, it was a rape in which penetration was used as a means of enforcing the will of the assailant upon his victim.  In other words, it was one of those rapes on the complainant's evidence which was, in truth, an offence of violence, at least as much as, if not more than, it was an offence of non‑consensual sex.
10.	Furthermore, the case against the applicant was overwhelming.  The injuries sustained by the complainant, together with her torn up clothing, were only explicable by the circumstances of which she gave evidence.  He, the applicant, had no counter and offered no explanation for the allegations that the injury had been caused by the application of force by the dressing gown cord on her throat.  In those circumstances we have no doubt that this conviction is safe and like the Single Judge refuse this application.
11.	Mr Montgomery submits that the sentence of 8 years' imprisonment imposed was manifestly excessive, or at least arguably so.  Again we reject that submission.  In his sentencing remarks the judge made the following observations: 
"You forced her into sexual intercourse by your violence using her dressing gown cord around her neck, half choking her, which was very frightening for her, and slapping her around the face. 
You tore off her knickers. All the time she tried to resist, begging you not to penetrate her.  You did and you ejaculated.  Immediately after you asked her how it felt being raped, and you told her that if she slept with another man she would see your face.  You threatened to get your friend to rape her.  And finally you told her all she could now do was hang and kill herself.  
This was the mother of your three year old son who was in the room next door at the time.  
The facts of your rape in my view speak for themselves.  Violent, deliberately callous, deliberately cruel and no remorse.  There is no victim impact statement from the victim, but the traumatic effect on her was obvious at the time and remained obvious throughout the ordeal for her of giving evidence."  
12.	In our judgment, the judge was fully entitled to pass the sentence that he did.  He was right subsequently to observe that this was sustained personal violence, even thought it may have occurred in a relatively short compass of time.  The aggravating features which he correctly identified put this at the very least at the top of the lowest category, rape of an adult, and arguably into the second category.
13.	Finally, Mr Montgomery submits that because the applicant was serving a sentence of just over 2 years for handling imposed for an offence committed during the 2011 London riots, so this sentence offended against the principle of totality.  We disagree.  This was a justified sentence for a wholly separate offence.  The fact that the applicant had been earlier convicted and properly sentenced for a different offence does not make the imposition of this sentence arguably excessive.  
14.	For those reasons this renewed application is refused.