337.14Defendant Aged 14-15Multiple Rapessingle Victim

RapeVolume 2

337.14Defendant aged 14-15Multiple rapesSingle victim

R v Morrissey 2011 EWCA Crim 3332 D was convicted of attempted rape and five rapes. V worked under the instruction of D’s mother, at horses’ stables. D rode horses and worked at various stables. Between June 2006 and August 2007, he repeatedly raped V, aged 11-12. He pushed her against the stable walls when no-one could see. He pulled her hair and tried to make her suck his penis. He also raped her in a horse box. D was 4½ years older than V, and much stronger. V as powerless to resist. The Judge said had D been an adult, the sentence would have been 15 years. Held. These are very serious offences indeed. 10 years appropriately represented D’s age and immaturity.

337.17Defendant aged 16-17 Cases

R v J 2012 EWCA Crim 1008D pleaded to rape on rearraignment. V, aged 22, had been drinking with a friend. The friend had gone to a club, but V had decided to go home. V encountered D, who had asked if she wanted assistance in getting home. D was aged 16, turning 17 the following day. They went to a taxi rank. V masturbated D and he ejaculated. D and V kissed and cuddled and proceeded to have intercourse. After intercourse had been going on for a little time, V asked D to stop. He did not stop but withdrew prior to ejaculation. V reported the incident to her father when she returned home in the early hours of the morning. She could remember very little, but recalled D being on top of her, with her saying “No, stop, I don’t want that to happen.” D, aged 16 at the time of the offence, had nine previous convictions and was subject to a YRO (armed robbery). The pre-sentence report stated D did not accept full responsibility for the offence and presented a high risk of causing serious harm to the public. Held. The initial consensual intercourse was an important mitigating feature. 4 years was the appropriate starting point for an adult. The proper starting point for a man of almost 17 years, even with D’s record, was a little less than 3 years. 18-month DTO would have been correct. Because of time served, 4-month DTO.

337.29Attempted rapeCases

See also: R v Poor 2011 EWCA Crim 2472, 2012 1 Cr App R (S) 110 (p 660) (Plea. Attempted rape. Full credit. Aged 25. After drinking in a nightclub and, later, a pub. Ran and grabbed a woman in the street. Hands over her mouth, grabbed her breast and pulled her jeans down. Victim punched him three or four times. Victim bruised and grazed. Attacker ran away. Good character. 4 years 10 months not 7 years 4 months.)

337.30Breach of trust/In a position of responsibility to the victimGuideline remark

R v Thompson 2012 EWCA Crim 1727 D pleaded to the rape of his step sister, C. C woke her mother up and told her she had been woken by D on top of her having sex with her. Both had been drinking. Held. We are not convinced that this is an abuse of trust. That phrase, in our experience, contemplates, for example, teacher/student, parent/child relationships. This was two step-siblings in a familial context, not an abuse of trust. There was, for example, no duty of care on D.

*R v Jones 2012 EWCA Crim 2268 D was convicted of causing another to engage in sexual activity. He stayed in a hotel with his 29-year-old daughter’s ex-partner, V, when they both worked as shopfitters. D abused V. The Judge treated the offence as a breach of trust. Held. Abuse of trust is not defined in the guidelines. It requires a relationship involving inequality between the parties to some substantive degree. D did not stand in loco parentis to V. It was a relationship of equal adults. Sentence reduced.

337.31Breach of trust/In a position of responsibility to the victim

R v Singh 2012 EWCA Crim 1274D was convicted of assault by penetration. As a taxi driver he picked up V, a 22-year-old student, who was a virgin. V was not drunk but was affected by drink. D began to make suggestive remarks and touched her leg. He then drove to an abandoned petrol station where he exposed her breasts and fondled them. Next he put his hand in her underwear and digitally penetrated her vagina. She continually asked him to stop and eventually he did. D was married with four children and had been a self-employed taxi driver for most of his life. The Judge considered the major factor was the breach of trust. Held. It is important that passengers in taxis feel safe. The Judge was not wrong to place the offence at the very top of category 2 and the bottom end of category 2. A starting point of 7-8 years would not be out of line. Taking into account the fleeting act of penetration, the fact it was not premeditated, the element of late remorse and the good character 5 years.

337.33aDigital penetrationGuideline remarks

R v Singh 2012 EWCA Crim 1274 D was convicted of assault by penetration. He digitally penetrated the victim’s vagina. Held. The proposition that non-penile penetration case should be sentenced less severely not least because there was no risk of impregnation or infection is self-evident. Att-Gen’s Ref No 104 of 2004 2004 EWCA Crim 2672 and R v P 2008 EWCA Crim 1806 applied.

337.34Digital penetrationCases

R v Singh 2012 EWCA Crim 1274D was convicted of assault by penetration. As a taxi driver he picked up a 22-year-old student, V who was a virgin. V was not drunk but was affected by drink. D began to make suggestive remarks and touched her leg. He then drove to an abandoned petrol station where he exposed her breasts and fondled them. Next he put his hand in her underwear and digitally penetrated her vagina. She continually asked him to stop and eventually he did. D was married with four children and had been a self-employed taxi driver for most of his life. The Judge considered the major factor was the breach of trust. Held. It is important that passengers in taxis feel safe. The Judge was not wrong to place the offence at the very top of category 2 and the bottom end of category 1. A starting point of 7-8 years would not be out of line. Taking into account the fleeting act of penetration, the fact it was not premeditated, the element of late remorse and the good character 5 years.

337.36Fathers/Stepfathers etc.

See also: R v DP 2012 EWCA Crim 1203 (Convicted. Sample abuse counts against daughter when aged 4-16, abuse against son when aged 2-13, abuse against second daughter when she was aged 12-13 and abuse against friend aged 14. Sample rapes counts involving first daughter when it (appears) she was aged 11 onwards. 24 years in all not excessive.) R v TR 2012 EWCA Crim 1542 (Convicted of rape, sexual assaults and making indecent photographs. Regularly assaulted his daughter when aged 8-15. Raped her from when she was less than 13. Digitally penetrated and attempted to rape his niece when aged 7-8. Touched chest and bottom of his daughter’s friend. 51 images at levels 1-4, mostly at lower end. Required the most severe punishment. Because of totality, 20 years not 24 in all.)

337.38General (i.e. no aggravating or special features)

R v Thompson 2012 EWCA Crim 1727D pleaded to rape (full credit). He was on holiday in Portugal with his father, step-mother and step-sister, C aged 17. They spent the evening together and had a number of drinks, after which they went to their apartments. C later woke her mother, shaking and crying, telling her that she had woken to find D on top of her having sex. Her mother found D in the next door apartment, apparently asleep. She woke him and asked him if he had had sex with C. He said, “I can’t remember. Maybe.” C’s anus was torn and her blood was on D’s underwear. The incident ended by D getting off her and walking out of the room, back to the sofa on which he was sleeping. D explained in interview that he had had a considerable amount to drink and could not remember anything, but that it was entirely possible that something had happened. C was badly affected and suffered from depression. There was a significant delay between the incident and sentence as D’s defence team sought expert evidence into sleepwalking and other psychiatric difficulties. It was made clear to C that she would not have to give evidence. It was accepted that the delay was no fault of D. D, aged 18 (21at the appeal), was of good character. The Judge sentenced the case as a category 2 offence with breach of trust. Held. This was not a breach of trust case as there was, for example, no duty of care on the appellant. The offence fell squarely into the lowest category of the guidelines. There was no violence, no threat, no ejaculation and the incident ended by D walking out of the room. The starting point was 5 years, making 3½ years’ detention with the plea and mitigation, not 6.

337.47aPersistent offenders

R v Phillips 2012 EWCA Crim 2072 D was convicted of assault by penetration andexposure (×2). Twice in three days, he was seen by different women standing in an alcove near the sea frontmasturbating. Two to three weeks later, at around 3am, V was walking back to a nightclub. D approached her, grabbed her and forced her to the ground. He put his hands under her dress and inserted his fingers into her vagina. He then ran off. D, aged 35, had convictions for indecent assault and indecent exposure in 1993 (aged 16, supervision order) and two rapes (2002, 10 years). Following his release from the sentence for rape, he was convicted of indecent exposure (×2) (12 months) and recalled to prison. Held. The offence was premeditated and he had targeted a lone female at night. He caused serious vaginal injury.Although the offence did not go as far as attempted rape, that was clearly in his mind. The offence was the culmination of predatory behaviour spanning 2-3 weeks. There was also the seriously aggravating factor of his previous convictions. Following conviction, 12 years determinate was appropriate. The offences of exposure, committed in the context of the previous offending and predatory behaviour each justified the maximum sentence. There could have been no complaint if those sentences were consecutive, however with regard to totality, they ought to be consecutive to the 12 years, but concurrent to one another. Therefore, the notional determinate term would be 14 years. Therefore 7 years’ IPP, not 8½ years’ IPP.

337.53Relationship rapeLiving together

R v Thompson 2011 EWCA Crim 3278D pleaded to two rapes, false imprisonment and ABH. He posed as a wealthy businessman when he was actually of limited means and started a relationship with V. V said she wanted to end the relationship and D pretended he was suffering from cancer. On his release from hospital he spat at V and repeatedly punched her. From July to August, D continued the pretence and insisted V took time off work to be with him. He prevented V from leaving (the false imprisonment). D’s violence worsened. Between July and November, D regularly raped V with violence which aroused him. She begged him not to ejaculate as she did not want children but he did so. V was punched, kicked, had her clothes ripped off and had tea thrown over her. D then targeted another woman, S, who was spat at and slapped. D then returned to V and subjected her to more violence. V was again stopped from going to work and slapped. When V tried to escape in a car, D jumped on the windscreen and broke it. In interview D tried to minimise his actions. In 2003, D assaulted an ex-partner (common assault) and caused ABH to his parents and assaulted his grandmother. In 2004, he committed common assault on his then partner. In 2008, he harassed and committed ‘unpleasant and significant sexual misconduct’ towards that same partner. The Judge considered the rapes brutal and the behaviour sadistic. Held. Starting at 21 years not 24 makes 14 years so 7 years IPP not 8.

*337.54Relationship rapeLiving together

R v K 2012 EWCA Crim 1957 D was convicted of seven rapes and two assaults. In 2006 in Pakistan D had an arranged marriage with V1. V1 moved to the UK, became pregnant and gave birth to V2 in 2007. In 2009, V1 complained to police that she had been raped and assaulted over a period of 3 years and that V2 had been assaulted. The counts were specimen counts alleging oral and vaginal sex. On one occasion, the rape was carried out in front of V2 then 2 years old. D’s practice was to wake her up, slap or punch her, then have sex with her whether or not she consented. D kicked V2 on one occasion when she was obstructing his view of the television. D had also bitten V1. V1 was later forced to withdraw her complaints as a result of threats made by D and his family. V1 had knife wounds inflicted on different occasions. There were also bite wounds on the face. D, aged 28, had convictions for robbery (2000) and possession of an offensive weapon, among others. The Judge considered she was treated like a slave. Held. Starting at 16 years, albeit severe, was well within the guideline. D posed a real danger for the future.IPP was correct. 8 years’ IPP was not manifestly excessive.

337.57Series of rapes/Campaign of rapes

R v CB 2011 EWCA Crim 3187, 2012 1 Cr App R (S) 9 (p 37) D was convicted of six counts of rape. D met V at a nightclub and shortly after they began a relationship. Between August and November of 2009 and whilst they were living together, D raped V. D and V had sex every day, save for when she had a period, indulging in every sort of sexual activity. D did not like to have vaginal intercourse with V. The rapes related to when V was asleep. D liked to watch pornographic material on the TV whilst V was asleep. Whilst V was asleep, after sexually exciting himself by watching the pornography, he penetrated V’s vagina. V remained asleep. D then penetrated V’s anus, which caused her to wake. On the first occasion, she told him not to and he did so. She made it clear that she did not wish D to do it again. D told V, “If I want it, it goes in”. The conduct was repeated. Initially, V did not consider D’s actions as rape. Held. There is nothing in the guidelines which covers this type of offence. Counsel accepted that on one such count, D could expect a sentence of 4-5 years. The Judge was plainly right in substantially increasing the sentence to reflect the repeated acts of abuse over a 4-month period. Notwithstanding that, the correct sentence is 8 years on each count, concurrent, not 10 years.

337.60Street attack on victim

337.61Two or more men acting together

See also: R v Zotkevicius and Others 2012 EWCA Crim 384, 2 Cr App R (S) 79 (p 453) (Convicted. Three men stopped a woman leaving a party and over ¾ of an hour vaginally and orally raped her. No condoms. Threats made. No sex convictions for any of the three. Police arrived and arrested them. A severe sentence was called for. 12, 12 and 10½ years was justified.)

337.62Victim aged under 13 Guideline case

Note: The typesetters mis-set a footnote. The figure ‘2’ in the first box with text in it should read, ‘footnote 1192 This factor does not apply where the offence is assault by penetration.’

R v Charles and Others 2011 EWCA Crim 2153, 2012 1 Cr App R (S) 74 (p 414) The correct approach, although it predates the guidelines, is set out in R v Corran and Others 2005 EWCA Crim 192, (see the book).

Att-Gen’s Ref No’s 11 and 12 of 2012 2012 EWCA Crim 1119 (click here for the judgment) D and M pleaded to rape of a child under 13. The victim was aged 11. V was vaginally and orally penetrated in a group act which was videoed on a mobile phone. D and M were aged 20 and were sentenced on the basis that V was a ‘willing participant’. The Court considered that D and M could not have thought that V was older than 14 years of age. Held. While an offence contrary to section 5 (victim under 13) will always be a serious offence, section 5 embraces a wide range of seriousness. The Sentencing Guideline Council recognised the need to do justice by identifying the particular harm caused by and the culpability of the offender. The sentencing guideline does not expressly distinguish between the upper and lower ends of the range of seriousness, save by reference to the overall range of 8 to 19 years at page 25, but it does provide the sentencing judge with valuable assistance as to the correct approach to assessment. We would summarise relevant considerations are:

1 Careful analysis of the circumstances of a section 5 offence is always required and a Newton hearing may be necessary when the claim is made that the victim was consenting in fact and/or that the offender believed the victim to be significantly older than her chronological age. The prosecutor bears a burden of responsibility to ensure that factual concessions to a basis of plea or mitigation of the offence are made only when justified and that, if made, the precise import of the concession is understood by the offender and the court (see further para 3 below);