Neutral Citation Number: [2018] EWCA Crim 1708
Case No: 201801971/A3 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
  Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Friday, 6 July 2018 
 
B e f o r e:

LORD JUSTICE DAVIS 

MR JUSTICE RUSSELL DBE 
 
MRS JUSTICE McGOWAN DBE 
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988 
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R E G I N A 
v 
JAVED ZAHEER 
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Computer Aided Transcript of the Stenograph Notes of
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Mr J Polnay appeared on behalf of the Attorney General
Mr D Smith appeared on behalf of the Offender
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J U D G M E N T (As Approved by the Court)
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1.	LORD JUSTICE DAVIS:  This is an application on behalf of the Solicitor General, seeking to challenge a sentence on the ground that it is unduly lenient.  We grant leave.
	The offender, Javed Zaheer, is a man now aged 25, having been born on 7 June 1993.  On 19 April 2018, after a trial before a Recorder of the Crown Court and a jury, sitting in the Crown Court at Wood Green, he was convicted of a count of attempted rape.  The following day he was sentenced by the Recorder to a term of 3 years and 9 months' imprisonment and in addition there were various other consequential orders made.
	2.	The background facts leading up to the offender's conviction by the jury are these.  The offender owned and managed a mobile telephone repair shop on the High Road in Wood Green, in London.  It would appear in fact that the offender was at that time relatively successful in business, having a turnover of some hundreds of thousands of pounds and employing a number of people.
	3.	On Friday 6 January 2017 the victim, who may be called "A" and who was 16 years old at the time, took a mobile telephone to the offender's shop to be repaired.  She left her telephone with one of the employees, who promised to telephone her when it was ready to be collected. 
	4	.	After school, on Monday 9 January 2017, A returned to the shop to ask if there had been any progress with the telephone.  She spoke to the offender.  He told her to return at around 7.30 to 8.00 pm when he had carried out a software update.  A noted that the shop was about to close but the offender assured her that the shop would still be open later that evening.
	5.	At 7.40 pm the offender contacted A to tell her that her handset was ready to be picked up.  She returned to the store at around 7.45 pm.  The shop was glass fronted and the shutters were half down.  A walked in through the open front door to the shop.  No other members of staff were present.
	6.	Much of what happened subsequently was caught on the shop's CCTV.  The offender himself was behind the counter.  A sat on a low bench in view of the street, in the public area of the shop.  For the first 10 minutes or so the offender remained behind the counter, then he moved to the customer side.  He told her that in fact the telephone would not be ready for a further 10 minutes.  He then flirted with her, complimenting her on her appearance and in effect attempting to endear himself to her.  A told the offender that it was cold and drafty and asked him to shut the front door to the shop.  He went over and shut the front door and locked it.  He then turned off some lights in the shop.  Then, on her evidence, he put his arm round her and said: "I can do a very good deal because I think you're a pretty girl.  I want to have a friendship with you".  She was uncomfortable and told him that she was just there for her telephone.  However, he continued to flirt with her, asking her for a hug, as he claimed that he had relationship problems.  As A was to say, she felt sorry for him and did give him a hug but as she did so he put his arms around her and under her outer clothing.  He then took her to the rear of the shop and showed her some of the jewellery that he sold.  He invited her further back towards the rear of the shop and turned some more lights off.  She followed him.  He patted the seat next to where he was beckoning her to sit beside him and she did so. He then said, on her evidence: "You're very pretty, we can work something out".  She replied in effect saying: "No, no.  Thank you".  He then placed his arm around her, and she said: "No, don't touch me". He then kissed her and took her by the arm and led her to a separate area at the rear of the premises used for storage and drew a curtain so that they could not be seen from the front of the shop.  He then placed his hands all over her body.  She was to say that she was scared for her life.  It is to be noted that she had had no prior sexual experience of any sort.  
	7.	He then said that he needed to go to the lavatory and he came out from behind the curtain to the part of the shop where the toilet was located.  Whilst he was there she left the store room and headed for the door but only got halfway.  On exiting the lavatory he asked her what she was doing and she pretended to be looking at items for sale in the shop.  He then asked her to come back and led her by the arm back behind the curtain and into the storeroom area.  This particular area was not covered by CCTV but the footage demonstrated that she did not wish to re‑enter the storeroom area.  Before the curtain was drawn across again he undid his trousers and dropped them to his knees whilst he was standing behind with his body up against her.  He put his hands under her top and touched her bra.  She then went to the lavatory followed separately by him.  When he was in the lavatory, she ran to the front door of the shop in order to try to escape but was unable to do so as the door was locked.  She then, as appears from the CCTV, can be observed in effect with resignation returning to the rear of the shop.  The offender himself went back to the storeroom.  She begged him: "Please don't do this". However, he bent her over, lifted up her skirt and pulled her knickers down.  He then placed his fingers around her vagina.  In her first complaint to the police it is recorded that she said that: 
"... he tried to insert his penis into her vagina...  he could not get it in but he made several attempts and eventually rubbed his penis against her vagina and possibly anal area." 
In her ABE interview A said: 
"... and then for a split second I felt his penis wanting to penetrate me ... then in a way I made it not go in...  I noticed he was getting a bit angry by the fact that he wasn't getting anywhere with me and then he stopped."  
8.	She then asked him why he would do this.  He said that he was sorry and that his girlfriend had broken up with him.  She told him that she would not tell anyone about what had happened and he gave her a £20 note and returned her phone and unlocked the door.  CCTV shows her becoming visibly upset at this point.  However, she regained her composure and asked him to delete her telephone number from his own mobile handset.  She then checked his phone to satisfy herself that he had indeed done so before she left the shop, taking her own mobile telephone with her.  After she left the shop she telephoned the police.
	9.	The CCTV was to show that she was in the shop for a total of 33 minutes.  Of that, approximately 19 minutes elapsed between the first unwanted physical contact and her leaving the shop.   He was arrested the following day.  When cautioned he replied: "Check the CCTV and you will see I wasn't there".  However, when interviewed he accepted that he had been there.  He told the police that A had told him that she was 20.  He claimed that she had initiated and consented to all sexual activity, claiming that she had masturbated him until he ejaculated.
	10.	So far as the offender is concerned, he had no previous convictions or cautions.  Not only had he also been a seemingly successful businessman but, in addition, there have, at least today, been put in references speaking positively about his characteristics.  In the event, no application for a pre‑sentence report was made and the Recorder decided it was not necessary to sentence with a pre‑sentence report.
	11.	Unsurprisingly, the incident has had an impact upon her A.  Amongst other things, in her personal statement she said this:  
"For the first 4 months I did not want to go out anywhere, not even with my family let alone on my own.  I quit my A levels at college as I could not cope with the added stress ... I felt ashamed and low in myself.  I became reclusive and I would not leave the house...  I began to have mini breakdowns where I would cry uncontrollably ... I could barely sleep after the incident.  As the trial was approaching I began to have sleepless nights again and flashbacks of what happened."
	12.	So far as the Definitive Guideline for Sexual Offences is concerned, the prosecution submitted, by reference to the substantive offence of rape, that the offence fell into category 2B of the Definitive Guideline.  The defence submitted that it was category 3B.  For a category 2B offence the starting point for a substantive offence is one of 8 years' custody with a range of 7 to 9 years' custody after a trial.  For a category 3B offence the starting point is 5 years' custody with a category range of 4 to 7 years' custody.
	13.	Mr Polnay, on behalf of the Solicitor General today, does not seek to depart from this in terms of culpability being properly categorised within category B.  In particular, although there was some element of planning, there was no evidence of a significant degree of planning with a view to rape.  However, it was sought to be said, as it was said before the judge, that here in particular there was severe psychological harm on the victim.  It was also noted that there had been a degree of detention in the back room of the shop.  At all events the Recorder decided (and he of course had had the benefit of hearing evidence at trial) that this was properly to be categorised as category 3B offending.  The Recorder recounted the facts carefully.  As he was to say, expressing his own conclusions: 
"... you are making the running ... There was a huge degree of reluctance on [A's] part ..."
	14.	In terms of failing to complete the penetration, the Recorder said this: 
"You were unable to do so, it seems, because she kept moving, so you could not penetrate and, eventually, you gave up."
	15.	Having placed this within category 3B the Recorder then said this: 
"Therefore, had this been a trial for the full offence in my view, the sentence would have been in the region of six years or so.  I also bear in mind that this was an attempt, although, it is pretty close to the full offence." 
16.	The judge then imposed the sentence of 3 years and 9 months' imprisonment as we have indicated.
	17.	Notwithstanding Mr Polnay's submissions, we think that the judge was entitled to place this within category 3B of the guideline.  Perhaps this came quite close, in all the circumstances of the case, to category 2B and certainly there were aggravating features in terms of some element of planning, the significant age difference between A and the offender and also the element of false imprisonment involved.  Perhaps in indicating a figure of 6 years, had there been a completed offence, the judge took a somewhat moderate course; but we certainly do not think that of itself would have been out of line.  In saying that, there is no doubt that there has been a real impact and inevitably so on A.  Mr Smith has made the point that, in the result of what happened she has not lost her virginity.  Well may be that is so. But her sense of utter violation is absolutely apparent and, again, understandably so.
	18.	However, whilst we reject Mr Polnay submissions that the judge erred in his categorisation, we think that he is on much stronger ground when he attacks the judge's discounting the notional figure of 6 years for the completed offence, down to 3 years 9 months in effect to reflect the fact that this was an attempt.  In our view, that simply does not sufficiently reflect what in fact happened here.
	19.	It is a general principle that a sentence for an attempted offence will ordinarily be less than a sentence for the substantive offence itself.  But the degree of reduction which is appropriate will depend on the circumstances, including the stage at which the attempt failed and the reason for non‑completion.  Here, the offender had, with his exposed penis, attempted to penetrate the victim.  He was only unable to do so because of her movements.  It is completely wrong to say that what he did was momentary.  Furthermore, he never voluntarily desisted.  He only stopped because she had succeeded in frustrating his designs.  As she had said, he had made several attempts at insertion, even if the actual direct contact of attempted penetration may have been for a split second.
	20.	With all respect to the Recorder, we think the reduction that he made to reflect the fact that this was, in law, an attempted offence of rape was far too much given the circumstances. In the result, it has caused there to be a sentence which was not simply, as Mr Smith himself candidly accepted, lenient but, in our judgment, has resulted in a sentence which was unduly lenient.  In our view, the sentence of 3 years 9 months simply does not reflect the gravity of this particular offending.  Indeed, the Recorder himself had said this was "pretty close to the full offence"; and then there are the other aggravating factors involved as well, of course, as the inevitable impact upon A.
	21.	In our view, the very least sentence that would have been appropriate following this trial for attempted rape and bearing in mind all that could be said on behalf of the offender, such as it was, is a term of 5 years and 6 months' imprisonment.  We quash the sentence imposed by the Recorder, substitute that sentence and allow the appeal accordingly. 

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