No. 2017/04829/A2
Neutral Citation Number: [2017] EWCA Crim 2510
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Friday  15th  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)

ATTORNEY  GENERAL'S  REFERENCE

UNDER  SECTION  36  OF

THE  CRIMINAL  JUSTICE  ACT  1988

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R E G I N A
 
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MICHAEL  ADJEI

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Mr P Jarvis appeared on behalf of the Attorney General

Mrs M Smullen appeared on behalf of the Offender

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J U D G M E N T
LORD JUSTICE SIMON:

1.   This is an application by Her Majesty's Solicitor General, under section 36 of the Criminal Justice Act 1998, for leave to refer to this court a sentence which he considered to be unduly lenient.  We grant leave.

2.  The provisions of the Sexual Offence (Amendment) Act 1992 apply to this case.  Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person during that person's lifetime may be included in any publication if it is likely to lead members of the public to identify that person as the victim of the offence.

3.  On 11th September 2017, following a trial in the Crown Court at Wood Green, the offender (now aged 25) was convicted on three counts: count 1, rape, contrary to section 1(1) of the Sexual Offences Act 2003; count 2, attempted rape, contrary to section 1(1) of the Criminal Attempts Act 1981; and count 3, theft, contrary to section 1(1) of the Theft Act 1968.  The sentences were passed by Mr Recorder Peart QC, who had presided over the trial.  On count 1 the sentence was a term of five years' imprisonment; on count 2, a term of five years' imprisonment concurrent; and on count 3, 18 months' imprisonment also concurrent.  The total term was one of five years' imprisonment.

4.  The offences occurred in the early hours of the morning of 20th February 2012 at a time when the offender was aged 19.  The victim, "FC", was a 20 year old woman.  She had been out with her friends in the West End of London.  At about 3.30am she and her friends left the nightclub where they had been and went their separate ways.  FC caught a night bus to Seven Sisters, with the intention of staying at the home address of a friend of hers.  She got off the bus and walked towards her friend's flat.

5.  The offender had seen her getting off the bus.  Unknown to her, he followed her as she walked towards her friend's home.  She took the keys from her pocket to open the front door, when suddenly someone came up behind her and jumped on her back.  That person was the offender.  She fell sideways and landed between two parked cars, hitting her face as she did so.  She was able to turn around and saw the offender on top of her.  She tried to shout for help, but he told her to "shut up" and placed his hand over her mouth.  She pleaded with him to let her go.  He then struck her head against the ground.

6.  He removed his erect penis from inside his trousers and instructed her to suck it.  By now she was in tears.  She tried to pull away from him, but he grabbed her head and forced his penis into her mouth.  It was there for between 15 and 20 seconds, while he pushed her head backwards and forwards.  He then tried to pull down her leggings.  She shouted out.  He told her to keep quiet.  He was disturbed by the sound of someone approaching.  He asked his victim if she had any money.  She said that she did not.  He then grabbed her handbag and ran off.

7.  She got to her feet.  She was in tears.  She ran towards her friend's flat and managed to enter.  Her friend came back to the flat to find her sobbing on the sofa.  She told her friend what had happened.  Her friend then called the police.

8.  She had swelling to her face, scratches to her chest, neck and knees and other injuries to her breast and buttocks.  A possible semen stain was detected on the front of her leggings.  A DNA profile was taken from that stain.  It came back as a match for the offender.

9.  He was arrested at his home address on 25th October 2013, 20 months after the attack.  He lived about 20 minutes away from the scene of the offences.  During the course of the police interview he declined to comment.  He was released on bail pending further enquiries.  At a further interview on 29th April 2014, he again declined to comment.  He was finally charged with the offences on 21st April 2016.  There is no clear explanation as to the delays involved in charging.

10.  His defence at trial was that he had approached the victim in the street and asked her for oral sex.  She agreed.  Afterwards, they went their separate ways.  

11.  The offender has 16 previous convictions from six court appearances.  All of his convictions pre-dated the commission of the index offences.  Of particular relevance was an appearance at Haringey Magistrates' Court on 6th April 2011, when he was sentenced to concurrent youth rehabilitation orders for 18 months in respect of a number of offences, including offences of sexual assault.  He was subject to those sentences when he committed the index offences.  The facts of these offences were as follows.  

12.  On 1st March 2010, at 5.15pm, the victim boarded a bus heading towards Seven Sisters.  The offender boarded the bus behind her.  He sat beside her.  He pressed himself against her and asked her if she wanted to take off her top and touch her breasts.  He also asked her "How about I put my fingers up your pussy?"  He threatened to stab her and poke her in the eye if she screamed.  Another passenger on the bus intervened.  The victim alighted from the bus and alerted the police.

13.  On 11th March 2010, at 6.30pm, another victim boarded a bus in Oxford Street.  The offender was close to her at the time.  He touched her shoulder by her bra strap.  He then stroked her head and the bottom of another woman who stood close to her.  The victim challenged him, whereupon he stamped his foot and got off the bus.

14.  On 15th March 2010, at 5.30pm, another victim boarded a bus outside King's Cross Station.  The offender stood beside her as she sat down.  He stroked her hair, her body and her left breast.  He then sat behind her.  He stroked her hair before he spat in her hair.  He got off the bus.  The victim alerted the police.

15.  On 27th March 2010, in the late afternoon, the two victims of this offence boarded a bus at Lewisham.  During the course of the journey the offender got on to the bus.  He sat next to one of them and started to rub her thigh.  They stood up in order to get off the bus.  The offender stood up as well with his penis exposed.  The victims got off the bus.  The offender followed them and placed them both in a headlock.  One of them broke free.  As he was holding the other one, he groped her breasts.  A taxi driver intervened before the police were called.

16.  In respect of these offences the offender was arrested and charged in March 2010.  He was remanded in custody at Feltham Young Offender Institution.   In December 2010, while still on remand, he was sent to Sage Ward for treatment because of concerns about his mental health.  Following sentence on 6th April 2011, he committed an offence of common assault on 31st January 2012.  He committed the offences with which we are concerned less than one month later.  On 21st June 2012, he was sentenced to six months' detention in respect of the common assault.

17.  Two reports prepared on behalf of the defence assessed the offender's ability to participate in a trial.  Both concluded that he was able to do so.  The first was a report dated 24th October 2016 from a clinical psychologist, Dr Melora Wilson.  She noted that in 2005 he had been assessed as having a low level of intellectual functioning and that in 2011 he was assessed as having a full scale IQ of 77, which was consistent with borderline intellectual functioning.  Dr Wilson described him as a fairly immature young man who did not appreciate the gravity of his situation, but did not present as someone with significant cognitive impairment or a learning disability.

18.  The second report, dated 13th November 2016, was from Dr Alan Reid, a Consultant Forensic Psychiatrist.  He concluded that the offender did not suffer from any mental illness and appeared to have reasonable insight into his situation and the charges that he faced.  

19.  Following his conviction, the court had the benefit of a pre-sentence report by Peter Fung.  He recorded that the offender continued to deny the offences.  He had given the same exculpatory account to Mr Fung as he had given to the jury.  In addition, he maintained that all the victims of his 2010 offences were also liars.  In the opinion of Mr Fung, the offender presented as very rigid in his thinking.  The index offences amounted to an escalation in the seriousness of his offending.  His "unrealistic version of events and refusal to consider his culpability is concerning at this late stage".  His immaturity played a part in his offending, but he also presented as someone who "holds entrenched pro-criminal attitudes".

20. Mr Fung assessed the offender as posing a medium risk of sexual offending and a high risk of serious harm to females should he re-offend.  However, he did not consider that he was dangerous within the meaning of the relevant provisions of the Criminal Justice Act 2003.

21.  In her victim personal statement dated 29th September 2017, FC described her encounter with the offender as brutal.  It had been hanging over her for five years, and this had prevented her from moving on from what had been a horrific experience.  After the rape she had been unable to sleep, and when she did she had terrible dreams.  She could not go out at night when it was dark.  She was anxious when she was out and was fearful of strangers.  

22.   In passing sentence the Recorder said this:
… in addition to what I have read in the pre-sentence report, I take into account the helpful psychiatric and psychological reports I have read in your case.  It is clear to me that, although you are a young man of 24, your level of intellectual and emotional maturity falls well short of your chronological age, and it is clear that you faced many challenges because of that in your short life and I note that, at the time of these offences, you were a teenager who was, to some degree, off the rails.

I accept that the incident was not a particularly prolonged one, nor did it result in what could easily be categorised as severe psychological damage, but violence was used.  I take into account that, for the last five years, you appear to have turned your life [a]round in the sense that you have avoided offending against the criminal law in that time.

He then passed the sentences that we have described.

23.  The Recorder appears to have considered that the rape offence fell within category 3B of the Sentencing Council guidelines on rape, with a starting point of five years and a category range of four to seven years, and that the sentence on count 1 (five years' imprisonment) should be served concurrently with the terms of five years and 18 months for counts 2 and 3 respectively.

24.  Mr Jarvis, who appears for the Solicitor General, submits that this approach and the Recorder's conclusions were wrong.  He submits that the rape offences fell within category 2B, the intermediate level of harm.  First, the sentence on count 1 had to take into account the aggravation of the offender's conviction for two other offences.  Secondly, by jumping on the victim and forcing her to the ground so that she was injured and then banging her head on the ground, there was (to use the phrase of the guidelines) "violence beyond that which is inherent in the offence".  Alternatively, if it were a category 3B case, the aggravating features meant that it should have been treated as a category 2B case.  First, the offender targeted the victim, who was alone at night and in drink (albeit not drunk).  Second, he used violence against her that caused physical injuries to various parts of her body.  Third, he not only raped her, but he tried to rape her a second time and was only thwarted because of the presence of others.  Fourth, he then stole her bag when she refused to give him cash.  Fifth, she was traumatised by her experience.  Sixth, the offender has a criminal record for serious similar offences.  Seventh, he was subject to a youth rehabilitation order when he committed these offences.
 
25.  Mr Jarvis submits that there was limited mitigation in this case.  There was no remorse or insight, and the expert evidence did not disclose any mental illness that may have had an impact on the offender's culpability.

26.  For the offender, Mrs Smullen submits that the Recorder had presided over the trial and was entitled to conclude that the sentencing category was 3B and not 2B.  Contrary to what the Solicitor General asserted, the offences were neither sustained, nor was the violence beyond that inherent in the offence.  The victim was knocked down, but her physical injuries were not serious and the psychological harm was not severe.  She points out that the case was an old one, committed when the offender was aged 19.  His previous offending occurred during a short period in March 2010.  This offence was committed in January 2012.  There had been no convictions since then, although she acknowledges that for a substantial part of the period the offender had been on bail.  Finally, she points out that the offender has psychological issues and that this was a matter that the Recorder was entitled to, and did, bear in mind, in addition to his lack of maturity.

27.  We have considered these points.  Although the victim undoubtedly suffered psychological harm, the guidelines envisage a degree of harm comparable to the seriousness of the other category 2 factors which one described.  That did not exist here.

28.  However, there were a number of features of the rape offence that increased its seriousness.  So far as harm was concerned, there was the deliberate banging of the victim's head on the ground.  That was violence beyond what is inherent in the offence, although not of the most serious nature.  So far as culpability was concerned, there was the targeting of a lone woman at night.  These matters served to elevate the seriousness of the offence, so that in our view it fell more clearly within category 2B, with a starting point of eight years, than category 3B, with a starting point of five years.  Furthermore, there was the additional aggravating feature of the attempted rape (count 2) and the theft of the victim's bag (count 3), which was likely to have contained personal items identifying her.  In addition, there was the offender's prior record and the fact that he was subject to a youth rehabilitation order when he committed these offences.  

29.  Against this were the mitigating factors: the offender's relative youth and immaturity at the time of the offences and his psychological problems.  However, even with these matters of mitigation, the sentence of five years' imprisonment was, in our judgment, unduly lenient.  In our view, the right sentence on count 1, which would have taken into account the full seriousness of both this and the other offences, as well as the mitigation, was a term of seven years' imprisonment.

30.  Accordingly, we substitute for the term of five years on count 1 a term of seven years' imprisonment.  The other sentences will remain unaffected.