No. 2007/05377/A7
Neutral Citation Number: [2008] EWCA Crim 201
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Wednesday 22 January 2008

B e f o r e:

LORD  JUSTICE  HOOPER

MR  JUSTICE  SILBER

and

MR  JUSTICE  UNDERHILL
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R E G I N A

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KEVIN  DAVIES
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Miss A Brown appeared on behalf of the Appellant

Mr M Maitland appeared on behalf of the Crown
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Judgment

LORD JUSTICE HOOPER:  I will ask Mr Justice Underhill to give the judgment of the court.

MR JUSTICE UNDERHILL:
1.  On 24 August 2007, at the Crown Court at Bournemouth, the appellant, who is aged 29, pleaded guilty to one count of rape (in the form of oral penetration).  On 20 September 2007, he was sentenced by His Honour Judge Beashel to six years' imprisonment (less days spent in custody on remand).  He appeals against sentence with the leave of the single judge.

2.  The facts may be summarised as follows.  The appellant and the complainant had been in a relationship for about seven years.  They had a six-year old son.  Although there had been difficulties in the relationship in the past and the complainant had gone to live at a women's refuge for a while, at the time of the offence they were living together.  On the evening of 5 June 2007 the appellant arrived home drunk.  A row developed because the appellant felt jealous of a male friend of the complainant.  He struck the complainant several times hard on the shoulder and face.  She put up her hand to protect herself and received a blow on the hand which caused significant damage.  He then demanded that she give him oral sex.  She did not want to, but because of the violence which she had just suffered she did so.  After a short while she desisted prior to ejaculation on his part.  He said that in that case she would have to masturbate him with her hands, which she then did.  This short account of the facts, which has been helpfully supplied by Miss Brown for the appellant, has been accepted as accurate by Mr Maitland on behalf of the Crown.

3.  The day following the rape, the complainant left home and told the police what had occurred.  The appellant was arrested.  He made an immediate confession of the essential facts.  He said that he had acted under the influence of drink and that he was ashamed of himself for hitting the complainant, although he said that he had not done so in order to make her have sex with him and had not appreciated that she only did so out of fear.  He pleaded guilty at the earliest opportunity.

4.  Not surprisingly, the episode had a serious impact on the complainant.  The physical injury to her hand took several weeks to heal and resulted in a substantial loss of earnings.  In a victim impact statement she said that she continued to feel vulnerable and tearful.  She said:

		"My self-esteem and confidence wasn't great anyway.  It's now rock bottom as at the time of the crime Kevin hurled verbal abuse at me which has made me feel totally worthless."

5.  The appellant is a man of previous good character.  He had been in regular employment.  A pre-sentence report recorded that he "assumes total blame for these offences", that he recognised that the complainant felt "pressured by and terrified of him" and that he would have to live with his shame for the rest of his life.  He was assessed as a quiet individual who had acted as he did because he was disinhibited by alcohol.  The author of the report noted:

		"15.  At no time has this defendant attempted to minimise, deny or shift responsibility for his actions.  He is able to calculate the long-term effects on his victim and has spent time examining his behaviour."

A prison report states that he has shown an interest in addressing his offending behaviour.  He has been referred for assessment for three programmes: the Enhanced Thinking Skills Programme, the Sex Offender Treatment Programme and the Healthy Relationships Programme.

6.  In his sentencing remarks the judge made it clear that he proposed to give the appellant maximum credit for his early plea of guilty.  He then said:

		"In your written basis of plea you admit that the oral rape was accompanied by violence in that you struck your victim with your open hand.  You accept causing her injuries and included amongst those injuries was damage to the ligaments of her wrist.  It is of note that you are about 6 ft 2 in; she, your former partner, was 5 ft 3 in.  I take into account in your favour the fact that you have never before been before the courts.  It is to your credit that you accept responsibility for this dreadful offence.

		There are many aggravating features about the case: your young child was in the home when the offence took place; you had been drinking heavily; and it is plain from the evidence that you showed your partner no compassion, no humanity at all.  You humiliated her, terrorised her and raped her, and the violence to which you subjected her was over and above that necessary to commit the offence of rape.  You were a powerful man; she was a slight woman quite unable to do anything to protect herself from the degrading and violent conduct towards her."

The judge held that the appellant was not a dangerous offender for the purpose of the Criminal Justice Act 2003.  In that connection he observed that his expressions of remorse appeared entirely genuine.  It should be noted that the judge does not expressly refer to the Sentencing Guidelines Council's Guideline on Sexual Offences.  Nor does it appear that he was referred to them by counsel, as he should have been.

7.  In her clear and succinct submissions on behalf of the appellant Miss Brown points out that the sentence imposed by the judge is equivalent to a term of nine years after a trial.  Her straightforward submission is that that was wrong in principle since this was a case with none of the features bringing it into the more serious bracket identified in the Sentencing Guidelines Council's guidance.  It was a case which should have attracted the standard five-year starting point first identified by this court in R v Millberry [2002] EWCA Crim 2891, [2003] 2 Cr App R(S) 142 (which was expressly endorsed by the Sentencing Guidelines Council).  Miss Brown accepts that there were aggravating features, as found by the judge -- although she asks us to note that the violence committed by the appellant was not immediately or specifically carried out in order to effect the rape, and also that the couple's child was asleep in bed and did not witness what occurred.  However, she submits that those are to some extent balanced by the mitigating circumstances to which the judge referred, including, significantly, the appellant's previous good character and genuine remorse.  Even if the aggravating features predominate, they could not justify raising the starting point by more than a year or so.

8.  We accept those submissions.  This was a disgraceful offence which has had a serious impact on the complainant; but there was nothing about it to take it out of the primary bracket identified in the Guideline.  In our view the correct sentence in this case after a trial would have been one of six years' imprisonment.  The degree of violence used and the other circumstances identified by the judge take it significantly above the starting point; but the mitigating features to which we have referred have some weight in the opposite balance.  Giving the appellant credit for his guilty plea, that produces a sentence of four years' imprisonment.  The appeal is allowed to that extent.

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