Revising and Updating Rape Sentencing Guidelines R v Millberry; R v Morgan; R v Lackenby

“Internet Law Book Reviews” Provided by Rob Jerrard LLB LLM

R v Millberry; R v Morgan; R v Lackenby

Revising and Updating Rape Sentencing Guidelines

Court of Appeal, Criminal Division (2002) The Times, 11 December

Keywords

Sexual offences; rape; relationship and acquaintance rape; Sexual Offences Act 1993, s. 1; Criminal Justice and Public Order Act 1994, s. 142; R v Billam [1986];

Sentencing Guidelines

The statutes

Rape of woman or man Sexual Offences Act 1956, s. 1, as substituted by the Criminal Justice and Public Order Act 1994, s. 142:

(1) It is an offence for a man to rape a woman or another man.

(2) A man commits rape if

(a) he has sexual intercourse with a person (whether vaginal or anal) who at the time of the intercourse does not consent to it; and

(b) at the time he knows that the person does not consent to the intercourse or is reckless as to whether that person consents to it.

(3) A man also commits rape if he induces a married woman to have sexual intercourse with him by impersonating her husband.

(4) Subsection (2) applies for the purpose of any enactment.

Abolition of presumption of sexual incapacitySexual Offences Act 1993, s. 1:

The presumption of criminal law that a boy under the age of 14 is incapable of sexual intercourse (whether natural or unnatural) is hereby abolished.

The legislative changes were: the Sexual Offences Act 1993, which allowed boys under 14 to be convicted of rape; the recognition of marital rape as an offence: see R v R [1991] 4 All ER 481 (the rule that a husband cannot be criminally liable for raping his wife if he has sexual intercourse with her without her consent no longer forms part of the law of England), and the Criminal Justice and Public Order Act 1994; the recognition of male rape as an offence by s. 142 of the 1994 Act; and s. 109 of the Powers of Criminal Courts (Sentencing) Act 2000 that made a second conviction for a serious offence, including rape or attempted rape, in the absence of exceptional circumstances, attract an automatic life sentence.

The guidelines

Three dimensions of the offence The Lord Chief Justice, giving the judgment of the court, said that the Sentencing Advisory Panel had proposed a revision of the current sentencing practice for offences of rape. In its advice the panel retained the basic structure established in R v Billam [1986] 1 All ER 985 but with some significant modifications to take account of both new legislation and changes in the nature of the offence since those guidelines were issued.

The panel suggested that there were, broadly, three dimensions to consider in assessing the gravity of an individual offence of rape:

(1) the degree of harm to the victim;

(2) the level of culpability of the offender; and

(3) the level of risk posed by the offender to society.

Their Lordships accepted that courts should consider each of those dimensions whenever a sentence for rape was imposed. While rape would always be a most serious offence, its gravity would depend very much upon the circumstances of the particular case and it would always be necessary to consider an individual case as a whole taking into account those three dimensions.

Relationship and acquaintance rape. The panel stated:

it is important that any . . . guidance . . . should deal explicitly with the question of sentencing levels for 'relationship rape' and 'acquaintance rape' as well as 'stranger rape'.

We use the term 'relationship rape' to include both marital rape and cases where the offender and victim were or had been partners in a consensual sexual relationship at the time of the offence.

We use the term 'acquaintance rape' in preference to `date rape' because it covers a wider range of situations, and also because the latter is sometimes taken as belittling the seriousness of the offence ...

The Court of Appeal should make a clear statement to the effect that the starting point for sentence is that cases of `relationship rape' and 'acquaintance rape' are to be treated as being of equal seriousness to cases of 'stranger rape', with the sentence increased or reduced, in each case, by the presence of specific aggravating or mitigating factors.

Their Lordships generally agreed with those propositions.

Male rape

The panel also considered the position of male rape, the rape by a male upon another male, and proposed that the same guidelines should apply in principle to male and female rape, with factors relevant to only one gender, such as pregnancy resulting from the rape of a woman, taken into account on a case-by-case basis. Their Lordships agreed.

Anal rape

The panel proposed that the new guidelines should make it clear that there was no inherent distinction for sentencing purposes between anal and vaginal rape and that

where a victim is raped both vaginally and anally by the offender that would be treated as repeated rape, for the purposes of the higher starting point for sentence. Again, their Lordships agreed.

Giving effect to those proposals, their Lordships accepted and adopted the proposals of the panel based upon the relationship between offender and victim, whether the rape was on a male or female and as to anal rape. The way they should be given effect was to adopt the same starting point as appropriate, in the case of all kinds of rape. That did not mean that the sentence would be the same in the case of all offences to which the relevant starting point applied. All the circumstances of the offence, including the circumstances relating to the particular victim and the particular offender, were relevant.

Clearly, there could be mitigating circumstances. Where, for example, the offender was the husband of the victim there could, but not necessarily, be mitigating features that clearly could not apply to a rape by a stranger. On the other hand, because of the existence of a relationship the victim could feel particularly bitter about an offence of rape, regarding it as a breach of trust. That might, in a particular case, mean that looking at the offence from the victim's point of view, the offence was as bad as a `stranger rape'.

The court had the task of balancing any circumstances of mitigation against the aggravating circumstances. In drawing the balance it was not to be overlooked that the victim's fear could be increased because her assailant was an unknown quantity. Was he a murderer as well as a rapist? In addition, when a rape was committed by a stranger in a public place, not only was the offence horrific to the victim it could also frighten other members of the public. That element was less likely to be a factor that was particularly important in a case of marital rape where the parties to the marriage were living together.

The victim's behaviour

The panel dealt with the victim's behaviour in terms with which their Lordships would agree: `although rape is always a very serious crime, the extent of the offender's culpability inevitably differs from case to case'. Where, for example, the victim has consented to sexual familiarity with the defendant on the occasion in question, but has said `no' to sexual intercourse at the last moment, the offender's culpability for rape is somewhat less than it would have been if he had intended to rape the victim from the outset.

This is not to say that any responsibility for the rape attaches to the victim. It is simply to say that the offender's culpability is somewhat less than it otherwise would have been.

The degree of the offender's culpability should be reflected in the sentence, but, given the inherent gravity of the offence of rape, the sentence adjustment . . . should . . . be relatively small.

Historic cases

Their Lordships considered that the same starting points should apply to 'historic' cases, where the offence was reported many years after it occurred and where the offender at the time of sentencing could be even in his eighties. The fact that the offences were stale could be taken into account but only to a limited extent. It was, after all, always open to an offender to admit the offences and the fact that they were not reported earlier was often explained because of the relationship between the offender and the victim which was an aggravating factor of the offence.

A different factor that could cause the court to take a more lenient view was the consequences, which resulted from the offender's age. In those cases the experience was that the offender might be a danger only to members of the family with whom he had a relationship. So that was a dimension that could be taken into account if there was a reduced risk of reoffending. In addition, the court was always entitled to show a limited degree of mercy to an offender who was of advanced years because of the impact that a sentence of imprisonment could have on an offender of that age.

Length of custodial sentence

What should be the starting points for sentences after a contested trial? In Billam five years' imprisonment was the figure in a contested case where there was no aggravating feature, eight years' where there were certain aggravating features and 15 years' plus for a defendant who had carried out a campaign of rape.

Life imprisonment was not inappropriate if the offender's behaviour had manifested perverted or psychopathic tendencies or gross personality disorder where the offender was likely, if at large, to remain a danger to women for an indefinite time. The panel proposed that a custodial sentence of five years should continue to be appropriate for a single offence of rape on an adult victim by a single offender manifesting none of the features identified below that attracted a higher starting point.

The eight-year starting point was recommended after a contested trial where there were present any of the following features:

(1) the rape was committed by two or more offenders acting together;

(2) the offender was in a position of responsibility towards the victim, for example, medical practitioner and patient, teacher and pupil; or the offender was a person in whom the victim had placed his or her trust by virtue of his office or employment, for example a clergyman, an emergency services patrolman, a taxi driver, or a police officer;

(3) the offender abducted the victim and held him or her captive;

(4) rape of a child, or a victim who was especially vulnerable because of physical frailty, mental impairment or disorder, or learning disability;

(5) racially aggravated rape, and other cases where the victim had been targeted because of his or her membership of a vulnerable minority, for example homophobic rape;

(6) repeated rape in the course of one attack, including cases where the same victim had been both vaginally and anally raped;

(7) rape by a man who was knowingly suffering from a life-threatening sexually transmissible disease, whether or not he had told the victim of his condition and whether or not the disease was actually transmitted.

The panel emphasised that the presence of any of those aggravating factors attracted the higher starting point. The eight-year starting point was recommended either because of the impact of the offence upon the victim or the level of the offender's culpability, or both. Factors reflecting a high level of risk to society, in particular evidence of repeat offending, would indicate a substantially longer sentence.

The panel confirmed the 15 years and upwards starting point for a campaign of rape. That was recommended where the offender had repeatedly raped the same victim over a course of time, as well as for those cases involving multiple victims. The panel also agreed with Billam that a life sentence would not be inappropriate where the offender had manifested perverted or psychopathic tendencies or gross personality disorder, and where he was likely, if at large, to remain a danger to women for an indefinite time.

The panel pointed out that, unless there were exceptional circumstances, if a defendant had a previous conviction for rape or a conviction for another serious offence he would be subject to an automatic sentence of life imprisonment under s. 109 of the Powers of Criminal Courts (Sentencing) Act 2000.

The seven grounds for raising the starting point to eight years each could, depending on the circumstances, vary in gravity. In a really bad case not only could they mean that eight years was the appropriate starting point, it could mean a higher figure was appropriate.

Their Lordships accepted the advice of the panel as to starting points. That meant that there was no substantial departure from the general approach laid down in Billam. However, there were differences of emphasis because of the need to recognise that where there was a relationship the impact on a particular victim could still be particularly serious. In other cases that might not be the situation because of the ongoing nature of the relationship between the offender and the victim. In such a situation the impact on the victim might be less.

It might also be the case where, while the offender's conduct could not be excused, the continuing close nature of the relationship could explain how a particular offender came to commit what was always a serious offence that was out of character. There could be situations where, for example, the offender and victim were sharing the same bed on a regular basis and both, prior to retiring to bed, had been out drinking, and where, because of the drink that the offender consumed, he failed to show the restraint he should have. It would be contrary to common sense to treat such a category of rape as equivalent to stranger rape.

Mitigating factors and guilty pleas

The court was required, in determining what sentence to pass, to have regard to whether the offender had pleaded guilty and if so at what stage. Although many participants in the panel's research project found the idea of substantial mitigation for a guilty plea unacceptable, that might be because it was seen as being primarily about saving court time and costs and allowing the defendant to manipulate the system in his favour. That was not, however, the reason why the courts were prepared to and should reduce sentences where the offender pleaded guilty.

It was well known that victims of rape could find it an extremely distressing experience to give evidence in open court about what had happened to them. Also the plea demonstrated that the offender appreciated how wrong his conduct was and regretted it. However, the maximum credit should only be given for a timely guilty plea.

Defendant's good character

While the fact that an offender had previous convictions for sexual or violent offences could be a significant aggravating factor, the defendant's good character, although it should not be ignored, did not justify a substantial reduction of what would otherwise be the appropriate sentence.

Young offenders

Even in the case of young offenders, because of the serious nature of the offence, custody would normally be the appropriate disposal. Nonetheless the sentence should be significantly shorter for young offenders.

Aggravating factors

The panel identified nine aggravating

factors, with which their Lordships agreed:

(1) the use of violence over and above the force necessary to commit the rape;

(2) use of a weapon to frighten or injure the victim;

(3) the offence was planned;

(4) an especially serious physical or mental effect on the victim, for example a rape resulting in pregnancy, or in transmission of a life-threatening or serious disease;

(5) further degradation of the victim, for example by forced oral sex or urination on the victim;

(6) the offender had broken into or otherwise gained access to the place where the victim was living;

(7) the presence of children when the offence was committed;

(8) the covert use of a drug to overcome the victim's resistance and/or obliterate his or her memory of the offence;

(9) a history of sexual assaults or violence by the offender against the victim.

Extended and longer than commensurate sentences In all cases of rape, sentencers should consider whether it would be appropriate to impose a longer than commensurate sentence or an extended sentence or both under ss 80 and 85 of the Powers of Criminal Courts (Sentencing) Act 2000.

Role of guidelines

Guidelines could produce sentences which were inappropriately high or inappropriately low if sentencers merely adopted a mechanistic approach to them. It was essential that having taken the guidelines into account, sentencers stand back and look at the circumstances as a whole and impose the sentence which was appropriate having regard to all the circumstances. Double accounting had to be avoided. Guideline judgments were intended to assist the judge to arrive at the correct sentence. They did not purport to identify the correct sentence. Doing so was the task of the trial judge.

The Decision

Sentencing guidelines for rape offences needed revision to take account of new legislation and to recognise that even where there was a relationship between the offender and the victim the impact of rape on a particular victim could still be particularly serious.

The Court of Appeal, Criminal Division, so stated when:

(1) allowing an appeal by Millberry against a sentence of five years' detention in a young offenders' institution following his plea of guilty at Crown Court to rape and reducing the sentence to four years;

(2) dismissing an appeal by Morgan against a sentence of nine years' imprisonment following his plea of guilty at Crown Court to rape; and

(3) dismissing an appeal by Lackenby against a sentence of ten years' imprisonment following his pleas of guilty at Crown Court to rape.

Comment

One of the most difficult aspects of sentencing must be what part do 'mitigating factors and guilty pleas' play? The Report says 'the court was required, in determining what sentence to pass, to have regard to whether the offender had pleaded guilty and if so at what stage'.

It goes on to say that 'although many participants in the panel's research project found the idea of substantial mitigation for a guilty plea unacceptable, that might be because it was seen

as being primarily about saving court time and costs and allowing the defendant to manipulate the system in his favour'.

The Report then goes on to explain this as 'not, however, the reason why the courts were prepared to and should reduce sentences where the offender pleaded guilty'. They rightly point out: that victims of rape could find it an extremely distressing experience to give evidence in open court about what had happened to them. Also the plea demonstrated that the offender appreciated how wrong his conduct was and regretted it. However, the maximum credit should only be given for a timely guilty plea. When considering the defendant's good character, the Report adds: that while the fact that an offender had previous convictions for sexual or violent offences could be a significant aggravating factor, the defendant's good character, although it should not be ignored, did not justify a substantial reduction of what would otherwise be the appropriate sentence.

Having attended many rape trials, I am most worried by this aspect. The important words are 'that victims of rape could find it an extremely distressing experience to give evidence in open court about what had happened to them'. I hope courts will bear this in mind when sentencing.

Rob Jerrard

An Example of a recent case

Attorney General’s References (Nos 14 and 15 of 2006)[2006] EWCA Crim 1335
CRIMINAL; Sentencing COURT OF APPEAL, CRIMINAL DIVISION 3 MAY, 8 JUNE 2006.

The defendants, F and W, committed acts of indecent assault and rape of a baby who had been entrusted to F as a baby-sitter on five occasions over several weeks. F had then been aged 17 and 18. The defendants took photographs of their conduct. W also committed an indecent assault on a 14-year-old girl. He had a substantial number of images on his computer which portrayed sexual activity between children and adults. W pleaded guilty to four counts of rape, six counts of indecent assault, three counts of indecent photography and seven counts of possession of indecent photographs. F pleaded guilty to one count of rape, four counts of indecent assault and three counts of indecent photography.

Held - (1) The offending in the instant case combined the aggravating features of repeated rape over a period of time, breach of trust, and rape of the most vulnerable victim possible.Further aggravating factors affecting the starting point for W were those giving rise to the concurrent sentences which were very serious offences in their own right. The appropriate starting point that should have been adopted in the case of W was 24 years; the adoption of a starting point of 18 years had had the effect that W’s sentence had been unduly lenient. The starting point in the case of F had not fallen outside the range that was properly open to the judge. F had been 17 or 18 when the offences to which she was party had been committed and she had been corrupted by W; R v Millberry [2003] 2 All ER 939 applied; A-G’s Ref (No 12 of 2001) [2002] 2 Cr App R (S) 382 considered.

(2) It would not be right to reduce the discount that W and F should receive for their guilty pleas below one-third. It was for the judge to determine when, having regard to the circumstances of the particular case, the first reasonable opportunity for pleading guilty had arisen. In the instant case it had not been demonstrated that the judge had erred in holding that each defendant had pleaded guilty at the first reasonable opportunity. The guideline expressly stated that credit should not be withheld or reduced where the offender was caught red-handed because the purpose of giving credit was to encourage those who were guilty to plead at the earliest opportunity. That principle applied to any situation in which the case against a defendant was so strong that acquittal was virtually inconceivable. Guidelines did no more than provide guidance but while there could be circumstances which justified awarding less than a discount of one-third where a plea of guilty had been made at the first opportunity it was difficult to see how s 172 of the 2003 Act could be said to be complied with if a judge deliberately or inadvertently flouted the guideline by granting less than a full discount on the sole ground of the strength of the case against a defendant.The special provisions in the guideline in relation to murder did not exemplify the principle that where a heavy sentence was imposed for a serious offence a discount of one-third should not be imposed because it would be disproportionate. Moreover, the guideline stated that its general provisions were to apply to all offences where a minimum term was fixed after imposing life imprisonment for an offence other than murder; R v Oosthuizen [2005] Crim LR 979 and R v Gisbourne [2006] Crim LR 363 considered.

(3) It would not be appropriate to make a discount from W’s minimum term to reflect double jeopardy. Where a defendant had had no responsibility for the fact that he had been given an unduly lenient sentence it accorded with justice that when substituting a weightier sentence the Court of Appeal should have some regard to the distress and anxiety experienced by the defendant as a result of having his sentence re-opened and increased; the degree of distress and anxiety and thus the size of the discount would depend on the facts of the particular case. In circumstances where a defendant’s offence was so serious that he still had a lengthy period of imprisonment to serve at the time of the Attorney General’s reference the principle of double jeopardy was of limited application and there would be occasions where a judge could properly decline to make any discount. That was also true where the reference related, as in the instant case, to the length of a minimum term set within a discretionary life sentence; A-G’s Ref (No 6 of 2000) [2001] 1 Cr App (S) 72 considered.

LINKS
"Internet Law Book Reviews" Copyright Rob Jerrard