No: 201704381 A4 
Neutral Citation Number: [2017] EWCA Crim 2495
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Thursday, 16 November 2017 
 
B e f o r e:

LORD JUSTICE SIMON

MR JUSTICE GOSS 

HER HONOUR JUDGE WALDEN‑SMITH 
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
 
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 
LEE PRESTBURY 

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Mr J Evans appeared on behalf of the Attorney General

Mr D Cooke appeared on behalf of the Offender

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Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street  London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court)

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J U D G M E N T
This transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.

If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached.  This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.
LORD JUSTICE SIMON:  
1.   Her Majesty's Attorney General seeks leave to refer sentences passed on the offender, now aged 43, at the Crown Court at Croydon on 5 September 2017 under section 36 of the Criminal Justice Act 1988 as being unduly lenient.

2.   On 28 July, after a four day trial, the offender was convicted before Mr Recorder Featherby QC and a jury on two counts in an indictment: Count 1, rape contrary to section 1(1) of the Sexual Offences Act 2003; and Count 2, assault by penetration contrary to section 2 of the 2003 Act.  He was acquitted of a further offence of assault by penetration, Count 3.  Sentencing was then adjourned for the preparation of a pre‑sentence report, and on 5 September he was sentenced on Count 1 to a term of two years and nine months' imprisonment, and on Count 2 to a concurrent term of 18 months.  The total term was therefore two years and nine months' imprisonment.

3.   The victim and the offender were acquaintances from their work at a charity shop.  He worked as a volunteer at the shop and she helped out occasionally.  In late 2014, she was suffering from stress and depression, and on occasions was binge drinking.  The manager of the shop was an acquaintance of hers.  His evidence, together with the victim's medical notes, confirmed that she had a drink problem.  At the time of the incident, she was quite isolated socially and did not go out very much.  She worked in the charity shop and was also involved in a church group.  In his sentencing remarks, the Recorder noted that she was a vulnerable woman in that she had had an unhappy private life and had a serious drink problem.  He did not find that she was particularly vulnerable within the meaning of the sentencing guidelines.  

4.   Before the incident, the offender had been to her flat at least once to deliver items that she had purchased in the charity shop: a television set and a Christmas tree stand.  They had kissed and hugged each other on one occasion, and they had once met in a pub.  Prior to the incident on 30 July 2015, they had not had any sort of sexual relationship with each other.  They described each other as acquaintances rather than friends.  

5.   On that day, the offender turned up at her flat unannounced.  Prior to his arrival he had been drinking.  He asked her if she would come to a pub with him.  She declined.  He then asked her for £10. In his sentencing remarks, the Recorder noted that he had gone to her address on the false pretence of needing to borrow a small sum of money.  According to her evidence, the offender followed her into the property when she left to get some money.  She said she had not invited him in and that he would not leave.  According to his evidence, she invited him inside, and gave him some money at the top of the stairs. He said that she did not ask him to leave and he did not think she was unhappy with him being there.  She offered to make some coffee.  He began to drink some wine, and she began to drink wine with him.  According to her, the offender asked for a drink.  Initially she said no, but she relented.

6.   Some time later he went into her bedroom.  According to her, he jumped on her bed and was looking at items in the flat.  She had not invited him there and did not want him there.  He removed his shirt and asked for a massage.  According to him, she did not ask him to leave.  He had threatened to jump on her bed because the room was so tidy.  At some point, the two of them were sitting together.  

7.   The Recorder found that (1) he kissed her on the neck; (2) she did not reciprocate; (3) he moved immediately to put his hand under her skirt, into her underwear, and digitally penetrated her vagina (assault by penetration, Count 2); (4) there was no evidence that the penetration had been prolonged and there was no physical injury.  

8.   He digitally penetrated her vagina without her consent.  According to her account, she had said "no".  At trial, the offender accepted that he had digitally penetrated her vagina, but said he believed that she was consenting.  He said that they had been sitting on the windowsill drinking wine and that he had kissed her before the digit penetration occurred.  According to her, the offender then penetrated her vagina with his tongue, again without her consent.  He denied that this sexual activity had occurred, and he was found not guilty in relation to this allegation, assault by penetration, Count 3.

9.   The offender then stood between her legs, removed her underwear, and penetrated her vagina with his penis.  According to her, his penis was soft, but penetration occurred.  That was the charge of rape, Count 1.  He denied there had been any such penetration.  According to his account, he did not have an erection.  He said that he planned to have sexual intercourse with her, but could not get an erection.  In interview, he said that he could not maintain an erection, but thought he might have penetrated her.  At trial, he denied that any such penetrative activity had taken place, and maintained that any sexual activity that had occurred had been consensual.

10.  At the sentencing hearing, the Recorder summarised the rape offence as follows: (1) after the digital penetration had occurred, the offender more or less immediately removed her underwear and took out his penis.  (2) This was done in a standing or leaning position, not lying down.  (3) He did this in a hurry, because he perceived that her consent was not forthcoming.  (4) He failed to achieve a full erection and his penis was flaccid, as described by the victim.  (5) He advanced his penis towards her vagina and placed it between her labia, amounting to penetration.  (6) He did not, as the victim had asserted, part her labia.  (7) He was unable to insert his penis any deeper.  (8) No trace of his semen was found near or in her vagina.  (9) The jury had not accepted her account that the offender achieved fuller intercourse, short of ejaculation.  (10) The penetration had been shallow and brief, but was still rape.  (11) She had been too drunk and too frightened to physically resist him.  (12) She had told him to stop, which he had chosen to ignore, perhaps in the hope that she would change her mind.  (13)  It was his flaccidity that had caused him to desist.

11.  The victim ran downstairs, opened the front door, and asked the offender to leave.  He did not do so, and as a result she went back into the room.  There was a further conversation which took place between them, before he walked past her and left via the front door.  The evidence suggested that the offender had been in the victim's flat for about an hour before any sexual activity occurred.  

12.  Later that evening, the victim told a friend what had happened.  It appears that she had informed the friend by text that she was being raped and spoke to her friend the next day.  The following day she reported the incident to the police, and was subsequently interviewed.  On 1 August, the offender was arrested.  In interview he accepted that there had been sexual activity between him and the victim.  He said it had all been consensual.  He accepted that he had digitally penetrated her vagina.  He said that he had attempted to penetrate her vagina with his penis, but had been unable to do so because his penis was not erect.  He denied that any other sexual activity had taken place.

13.  In her personal statement, the victim spoke of the considerable effect that the offences had upon her.  She felt unsafe in her flat, and had bought various security devices to make her feel safer.  She had been prescribed antidepressant medication and had suffered nightmares.  She feared intimacy and feared being around other people.

14.  The offender was effectively of good character.  A pre‑sentence report was available to the Recorder at the time of sentence.  The writer of the report noted that the offender exhibited no empathy towards the victim and maintained that all sexual activity had been consensual.  He accepted that he had digitally penetrated her, and attributed his behaviour to the alcohol he had consumed.  He denied attempting to insert his penis into her vagina, and denied feeling intoxicated at the time.  He said that the victim had fabricated the allegation because she desired revenge.  He said that he had been sexually attracted to her and that she had misinterpreted his behaviour.  In the opinion of the author of the report, a sense of male privilege and an underlying negative attitude towards women were the major factors in this offending.

15.  The likelihood of committing further offences of a similar nature was assessed as no lower than medium.  Regardless of whether he had been able to obtain an erection on the night of the offence, his intent had been clear, and the victim had likely suffered significant emotional harm.  He admitted that he wished to enter into a relationship with her, and his behaviour was assessed to be a direct result of this wish.  Partners with whom the offender hoped to enter into a relationship were at a particular risk.  However, while there were identifiable indicators of a risk of serious harm, there was little to suggest imminence.  As such, the risk of sexual harm posed was assessed as medium.  He did not meet the dangerousness test and there was nothing to suggest a risk of harm to others.  The author could see no alternative to a determinate custodial sentence.

16.  On behalf of the offender, letters and references were provided to the sentencing court.  These spoke very positively of his general character.  This court, too, has seen the material.

17.  Prior to sentence, discussions were held between the Recorder and counsel for the prosecution and defence as to the correct categorisation of the offences by reference to the Sentencing Council's Definitive Guidelines for Sexual Offences.  The Recorder concluded that in relation to each of Counts 1 and 2, the applicable category was 3B, the category of least harm and culpability.  The Recorder rejected the prosecution argument that the victim was particularly vulnerable or that there was forced or uninvited entry into her home, factors that would have elevated the offending into the intermediate level of harm.  

18.  So far as Count 1 was concerned, the Recorder acknowledged that the starting point for a rape in category 3B was five years, with a range of four to seven years.  He considered that there were no aggravating features and that the offender's lack of previous convictions was a mitigating factor.  Having recognised that the starting point for a rape in category 3B was five years, he nevertheless concluded that this would be "excessive, if not grossly so".  He then imposed the sentences to which we have referred.
19.  Mr Evans, who appears for the Attorney General, submitted that four aggravating features were present: first, the victim was vulnerable, given her social isolation, her depression and her use of alcohol.  Second, as indicated in her victim statement, she suffered a degree of psychological harm.  Third, the offences took place in her home, where she was entitled to feel safe.  Fourth, the offender committed the offence while under the influence of alcohol.  He acknowledged two mitigating features: first, the absence of previous convictions for serious offences and his effective good character.  Second, in relation to the rape, the penetration was relatively limited and of short duration, and he did not ejaculate.  

20.  He submits that the overall sentence of two years and nine months' imprisonment was unduly lenient, in that it failed adequately to reflect the gravity of the offences.  The offence of rape, Count 1, fell to be assessed a category 3B offence, carrying a starting point of five years' imprisonment, with a category range of four to seven years.  The offence of assault by penetration, Count 2, fell to be assessed as a category 3B offence, carrying a starting point of two years' custody, and a range of a high level community order to four years' imprisonment.  This was not a case where the Recorder should have concluded that it was in the interests of justice not to follow the sentencing guideline.  He gave insufficient weight to the cumulative effect of the aggravating features present and too much weight to the mitigating features present.  He also gave too much weight to the effect of the acquittal on Count 3.  In short, the Recorder failed to pass an overall sentence that adequately reflected the seriousness of the offending as a whole.  He should have imposed a longer total sentence, either by imposing an enhanced sentence on Count 1 and ordering the sentence on Count 2 to run concurrently, or by imposing consecutive sentences duly adjusted for totality.  In his oral submissions, Mr Evans conceded that that latter proposal was the less desirable of the two.

21.  Mr Cooke, who appears for the offender, submits that the Recorder was faced with a difficult task when deciding the evidential basis of sentencing, but he had the advantage of presiding over the trial and hearing the evidence.  He was entitled to find that the whole incident was short lived and involved a single incidence of digital penetration, almost immediately followed by the offender placing his flaccid penis between the victim's labia.  Although section 125(1) of the Coroners and Justice Act 2009 provides that courts must follow the relevant guideline, there is a proviso:

"... unless the court is satisfied that it would be contrary to the interests of justice to do so."

22.  The guidelines for offences of rape do not envisage the rape that was committed in this case, "short lived, with a shallow penetration," as Mr Cooke described it.  Such an offence does not fit easily in the guidelines.

23.  Finally, he submits that the judge was right to conclude that a sentence of five years would be excessive, if not grossly so, in all the circumstances; the circumstances including the delay of 16 months between arrest and charge and his previous positive good character.

24.  In our view, the sentences passed for these offences were unduly lenient, and we grant leave to refer.  We acknowledge that the Recorder's sentencing remarks were carefully expressed and took into account a number of factors that were material to the sentence: first, that it was necessary to consider the criminality involved in Counts 1 and 2 together.  Both offences took place within a relatively short time span.  Secondly, that the jury had acquitted the offender on Count 3.  Thirdly, that it was safe to infer from the evidence and the verdict on Count 2 that, however drunk the victim was, she had made it clear that she did not want any physical contact with the offender and he knew this.  Despite this, he had inserted his finger into her vagina.  Nevertheless, the incident was not prolonged and there was no physical injury.  Fourthly, he set out the 13 factors to which we have already referred that were potentially relevant to the seriousness of the rape and the sentence on Count 1.

25.  In our judgment, there was no proper basis for going outside the sentencing guidelines in this case.  The offences may have taken place over a short period of time, but there were two acts of sexual violence against the victim, and the extent to which the offender's erection was maintained and the degree of penetration should not have carried such weight in the sentencing exercise as to take the seriousness of the rape entirely outside the guidelines and to such a significant extent.  The rape should have been characterised as falling within category 3B, with a starting point of five years and a range of four to seven years.  There could be no credit for a guilty plea. Furthermore, in the light of the prior digital penetration of the victim's vagina, the appropriate overall term, which took into account the totality of the offending, should have been a term of five years' imprisonment on Count 1.  

26.  Accordingly, we quash the term of two years and nine months on Count 1 and substitute a term of five years.  The sentence on Count 2 will be unaffected.