No. 2017/04638/A42
Neutral Citation Number: [2017] EWCA Crim 2507
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Tuesday  12th  December  2017

B e f o r e:

LORD  JUSTICE  SIMON

MRS  JUSTICE  YIP  DBE

and

HIS  HONOUR   JUDGE  LUCRAFT  QC
(Sitting as a Judge of the Court of Appeal Criminal Division)

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ATTORNEY  GENERAL'S  REFERENCE

UNDER  SECTION  36  OF

THE  CRIMINAL  JUSTICE  ACT  1988

R E G I N A
 
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J  J  R

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Miss L Oakley appeared on behalf of the Attorney General

Mr N Rooke appeared on behalf of the Offender

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J U D G M E N T
LORD JUSTICE SIMON:
1.   A reporting restriction under section 45 of the Youth Justice and Criminal Evidence Act 1999 is in force in relation to the identity of the offender; and the provisions of the Sexual Offences (Amendment) Act 1992 apply to the identification of the victim of the crime that was committed in this case.

2.  Her Majesty's Solicitor General seeks leave under section 36 of the Criminal Justice Act 1988 to refer to this court a sentence which he considers to be unduly lenient.  We grant leave.

3.  On 10th August 2017, in the Crown Court at Newcastle, the offender (aged 17) pleaded guilty to an offence of rape, contrary to section 1(1) of the Sexual Offences Act 2003.  On 26th September 2017, he was sentenced by His Honour Judge Gittins to an extended sentence of seven and a half years, under section 226B of the Criminal Justice Act 2003.  This comprised a custodial term of five and a half years' youth detention and a two year extended period of licence.  He also became the subject of various requirements after his release from detention.

4.  The victim, "RC", was aged 20.  On 4th July 2017, she returned to her home in Newcastle, having been out for a meal with friends.  She lived alone in a first floor flat.  She had not consumed any alcohol.  Once inside, she locked the only door to her flat before she went to bed.  Once in bed, she spoke to various friends on social media, before falling asleep with the television on.

5.  Shortly after 1am the victim was woken by the sensation of tightening around her neck.  The offender had wrapped a length of cable around her throat, which he pulled so tight that it caused her to lose consciousness.  During this period of unconsciousness, the offender removed her knickers.  When she regained consciousness, she was positioned on her stomach and was aware of a pain in her anus.  At this point the offender again pulled the length of cable he had wrapped around her throat until she again became unconscious.  She did not know if he was wearing a condom or if he ejaculated.  

6.  The offender then dragged her, still unconscious, from her bed onto the floor.  She described coming round for the second time and finding that she was on her bedroom floor next to the door.  She could see the offender kneeling over her, but was unable to see his face as he had pulled a hood over it.  He repeatedly hit her about the head and body.  She tried her best to fight back and at one point was able to kick him in the face, causing him to leave the room.  She heard him move into her kitchen, where she could hear him rummaging around.  She thought that he might have been searching for a knife.  She was so frightened that she was unable to move.  She used her mobile phone to call 999.  The call was logged as received at 01.50 hours.  She informed the police that she had been raped.

7.  Whilst she was speaking, the offender returned to the bedroom.  His hood was still over his face.  She screamed at him to get out, which he did, but not before grabbing from the bed the cable he had used to strangle her.  He left the flat via an insecure kitchen window.

8.  The police arrived at the flat and forced entry at 02.15.  Once inside they found the victim in her bedroom in a distressed state.  She had been so scared that she had been unable to move from her bedroom to open the door for them.  

9.  As a result of the incident, she sustained bruising to her neck, chest and the left side of her body, swollen lips, a petechial haemorrhage to her eyes and scratches to her back and shoulders.  She also had soreness to her vagina and anus.

10.  She described what her assailant had been wearing and the cable, which was approximately 1cm thick and similar in appearance to an extension cable.

11.  During her Achieving Best Evidence interview on 6th July, she told the police that on 2nd July (three nights before the rape) she had returned alone on foot to the flat between 2.30 and 3.30am and had been followed by a male who was wearing similar clothing to her attacker – a grey hooded top, grey tracksuit bottoms and black training shoes – and that she was 70 per cent certain that it was the same man.

12.  Forensic examination of the flat revealed that she had left her kitchen window partially open with a gap of between 2 and 3 centimetres, although it was secured with a safety catch.  Access to the window was possible by positioning a wheelie bin underneath the roof of an outbuilding.

13.  The offender's fingerprints were recovered from inside the kitchen window.  In addition, footwear marks which came from Nike Air Max training shoes were found inside the kitchen and on a wheelie bin lid found on the ground floor.

14.  At 17.05 on 11th July 2017, following the identification of his fingerprints on the kitchen window, police attended the offender's home address and arrested him on suspicion of rape.  He made no reply to the caution and was taken to the police station.

15.  His home address was located about 500 metres from the victim's flat.  The offender's home address was searched and a pair of black Nike Air Max training shoes belonging to him were seized from a downstairs cupboard.  A grey Crosshatch hooded top and a pair of grey Slazenger jogging bottoms had been hidden in the loft.

16.  CCTV images recording events on 4th and 5th July were seized from the Shell petrol station located approximately 15 minutes from the home addresses of both the victim and the offender.  This revealed that at 00.13 hours on 5th July the offender entered the petrol station and purchased a can of drink before leaving in the direction of his and the victim's home addresses.

17.  He was interviewed on two separate occasions in respect of the allegations of rape.  During the first interview, he denied committing any offence and advanced a false alibi.  When asked about his clothing, he told the police that nobody else wore that clothing at his home address and that he kept all his clothing under the stairs.  He denied that there was any reason why his fingerprints or DNA would be present at the victim's address.

18.  During the course of a second interview, he began by saying that all that he had said in his first interview was correct.  Photographs of the victim's address were then shown to the offender and he said that he now recognised the address as being the previous address of a friend of his and that he used to go to it in 2015/2016 every two weeks or so.  He also said that this would account for the presence of his fingerprints inside the victim's flat.  

19.  During further investigations, the police traced and spoke to the previous occupants of this address, including the one who had been named by the offender.  None of them knew the offender.

20.  Following further unsatisfactory answers to questions, he gave "no comment" answers.  He was subsequently charged with rape.

21.  He had four convictions recorded against him for seven offences.  Of particular relevance were convictions in September 2014 for an offence of battery and in July 2015 for four offences of exposure.  

22.  In September 2014, the offender pleaded guilty at the Youth Court to battery, for which he received a twelve month conditional discharge.  The victim was a female member of staff at the school the offender attended.  He had banged a door against her, causing her to fall to the floor.  In interview, he accepted that he had assaulted her.

23.  In July 2015 he was convicted after trial of four offences of exposure.  In August 2015 he was sentenced to a Youth Rehabilitation Order, with a supervision requirement.  These offences were committed over a three month period beginning in November 2014 and ending in February 2015.  He was aged 14 at the time of all the offences.  They were committed against the same lone female at around 10pm when the offender exposed his penis.

24.  A pre-sentence report dated 21st August 2017 was prepared by Ben Hogg, a probation officer with the Northumberland Youth Offending Service.  He was also the case manager at Northumberland Youth Offending Service.  As such, he had access to the offender's case records and Children's Services' records.

25.  It is clear from the pre-sentence report that the offender has had a troubled young life.  Although he had suffered throughout his childhood from persistent bullying and from neglect, there was nothing in the report which would explain the commission of this offence.  His consumption of cannabis and diazepam plainly did not explain it.  The offender told the author of the report that he did not want his victim to have to go through the ordeal of a trial and wanted to apologise to her.  Mr Hogg concluded that, without treatment, he presented a significant risk of committing further similar offences and posed a high risk of harm to others.

26.  In addition to the pre-sentence report, there was a psychiatric report from Dr Ravi Lingam, who had been asked to address the offender's mental state at the time of the offence.  He described his current presentation as consistent with a borderline personality disorder, with a restricted capacity to understand the nature of the offence, which was related to his emotional and psychological immaturity.  He, too, considered that, without treatment the offender presented a significant risk of committing a serious specified offence which was likely to involve serious or very serious harm to others.

27.  Miss Oakley, who appears for the Solicitor General, rightly acknowledges that the judge was faced with a difficult sentencing exercise.  There was a clear need to impose a significant custodial sentence, reflecting the level of culpability and harm, but with a need to have due regard to the offender's age, maturity and mental health, as well as his guilty plea.  

28.  So far as the starting point of the custodial element of the sentence is concerned, Miss Oakley refers to the observations of Lord Judge CJ in Attorney General's Reference Nos 73 and 75 of 2010 and No 3 of 2011 [2011] EWCA Crim 633:

3.  … It is bad enough to be the victim of burglary even when the occupant is away from the house; worse still to wake up to the chilling discovery that a burglar has made his way into the house and then for the occupant to remember that she is on her own, vulnerable and, if there is any confrontation, defenceless.  But to be burgled and then subjected to the dreadful indignity of a violent sexual offence is to become the victim of a pitiless, wicked crime. Because these are pitiless, life-scarring, deliberately committed crimes, while of course every allowance should be made for such genuine mitigation as there may be (and often there will be none), there is no room in the sentencing process for mercy, save for an appropriate sentencing discount for those who plead guilty, face up to what they have done, and spare their victims the further ordeal of having to give evidence in a public court.

Lord Judge further stated:
4.  … As the culpability of the criminal is at its highest and the harm done to the victim is at its most grave, sexual offences committed by a burglar should be approached as if they were among the most serious offences of their kind.

He went on to say:
8.  Dealing with the matter very generally, in a case where rape has been committed after or in the course of burglary in a home – even if there are no additional features beyond the rape and the burglary – the starting point will rarely be less than twelve years' imprisonment.

29.  The points about the nature of such an offence are clear.  The reference to a term of twelve years highlights that these observations, pertinent though they are, were made before the current Sentencing Council's guidelines came into effect.  If the rape is properly characterised as being in the highest category of harm and culpability, the starting point is now a term of fifteen years' custody.

30.  The judge recognised in his sentencing remarks the very serious nature of the offence.  There was violence beyond what was inherent in the offence itself, and it was marked by severe psychological and physical harm to the victim.  He said:

It has left her psychologically devastated, distressed from the outset.  Vulnerable as she was at the time, it was, in reality, you putting that young woman through the worst nightmare for a female: attacked in her own bedroom by an unknown intruder and, undoubtedly, fearing the worst.  She has continued to have flashbacks.

31.   In addition, the judge noted that the victim was particularly vulnerable at the time of the offence since she had been rendered unconscious during the commission of the crime.  It was a sustained incident.  The offence was committed in the course of a burglary and it involved the use of a weapon.  

32.  The Solicitor General submits that these factors brought the offence into category 1A of the guidelines and that there were a number of additional aggravating features that should have increased the starting point within the guideline range of 13 to 19 years' custody for a category 1A offence: the offender's previous offending; the use of a hood to disguise himself; and the fact that the victim had been compelled to leave her home as a consequence of the offence.  The Solicitor General also acknowledges that there were mitigating factors: there was evidence of a degree of remorse and that the offender suffered from a mental disorder.  

33.  Importantly, Miss Oakley recognises that there were two particularly significant mitigating factors.  First, the offender was 17 years of age and was relatively immature.  The Sentencing Council guideline for the sentencing of children and young people came into force with respect to those sentenced after 1st June 2017.  Secondly, and most importantly, he pleaded guilty.  The plea was not entered at the first available opportunity but at the plea and trial preparation hearing.  She submits that this entitled him to credit of 25 per cent and not the 30 per cent that the judge allowed.

34.  In summary, the Solicitor General submits that the custodial part of the sentence of five and a half years' youth detention was unduly lenient.  In addition, Miss Oakley submits that the extension period was insufficient.  The contents of the pre-sentence report and psychiatric report, as well as the nature of the offence itself, indicated that an extended sentence was appropriate.  However, she submits that the two year extended licence was insufficient for the protection of the public in the light of the uncertainty of the risk of future serious harm, despite the signs of "hope" that the judge had identified.  The risk that the offender posed to future harm to the public was unknown.

35.  For the offender, Mr Rooke submits that the judge placed the offending within the appropriate category (category 1A), with a range of 13 to 19 years' custody.  His starting point was within that range.  The judge then went on to apply a discount for the offender's age and maturity, which was within the broad range set out in the youth guidelines, and allowed a further discount for the guilty plea, which cannot be said to be unreasonable in the circumstances.  He acknowledges that “at first blush an extended licence of two years seems an unusual figure at which to arrive”; but he submits that the judge's reasons were explained in terms of the time that would actually be served by the offender and the combined impact of the ordinary licence and the extended period that he imposed.  On this basis the judge was justified in concluding that progress had been made and would continue to be made; that the custodial sentence would see the offender through his most formative years; and that the ancillary protective orders would serve to monitor and supervise the offender after his release. 

36.  In summary, Mr Rooke submits that the judge exercised a judgment in accordance with the guidelines and that his sentencing remarks were exemplary in their clarity.

37.  We should say at once that we agree with this last observation.  The judge addressed the difficult sentencing issues both clearly and logically.  

38.   There is no issue that this offence was properly characterised as a category 1A offence of rape within the Sentencing Council definitive guidelines.   It was category 1 harm in view of the existence of more than one characteristic of harm: the forced entry into the victim's home and the gratuitous violence that went beyond the commission of the offence itself.  It was category A culpability because of the significant planning and the fact that the offence was committed in the course of a burglary.  The starting point for an adult would therefore have been a term of 15 years' imprisonment, and a range of 12 to 19 years.  

39.  However, as the judge recognised, the crime was committed by someone who was under the age of 18 at the time he committed it, at the first hearing before the Crown Court and at the date of sentence.  The judge was bound, therefore, to have regard to the sentencing principles set out in the Sentencing Council guidelines on sentencing children and young persons and the need to have regard to the principle aim of the youth justice system to prevent offending by young people and to the welfare of the young person.  Paragraph 6.46 of the guideline draws attention to the importance of the emotional and developmental age and maturity of a young person as being at least as important as their chronological age, and against that background indicates that "when considering the relevant adult guideline, the court may feel it appropriate to apply a sentence broadly within the region of half to two-thirds of the adult sentence for those aged 15 to 17".

40.  Although complaint is made that the judge should have only given 25 per cent, matters of credit for plea are particularly within the province of the sentencing judge, who in this context would have borne in mind that he was not dealing with an adult, but with a young person.

41.  From what we have said so far, it is apparent that there were a number of variables and different ways in which the sentence might have been structured.  The judge took a starting point of fourteen years.  But he reduced this term to eight years to take into account the offender's age (a reduction of approximately 43 per cent), before giving credit of 30 per cent for the guilty plea.  In this way he reached the determinate sentence of five years and six months.

42.  We accept that the starting point of fourteen years might be said to be too low, but it might also be argued that the allowance for his age and maturity was insufficient.  On any view, there needed to be a further reduction to reflect his plea.  All this might have resulted in a sentence that was more than five and a half years; but not, in our judgment, to such an extent as to call for the intervention by this court.

43.  However, we form a different view about the period of extended licence.  In the light of the nature of the offence, the serious escalation of previous offending that this involved, as well as the contents of the pre-sentence and psychiatric reports, the protection of the public called for an extension period of significantly more than two years, even with the post-release protections that the judge had in mind.  

44.  Accordingly, we quash the extension period of two years, which we regard as resulting in an unduly lenient sentence, and substitute a period of five years.  The custodial term of five and a half years will remain unaffected.  The sentence will therefore be a sentence of ten and a half years, made up in the way we have described.