R v BAB
[2024] EWCA Crim 712
R v AHA
28 July 2023
[2023] EWCA Crim 1001
Court of Appeal
A man raped his sleeping, drunk niece. The judge gave him a short sentence. The appeals court said the sentence was too light and gave him a much longer one because he abused his niece's trust and violated her safety in her own home.
Key Facts
- •Offender (29) pleaded guilty to rape and assault by penetration of his 25-year-old niece (RS).
- •The offences occurred after a New Year's Eve party where RS was intoxicated and asleep.
- •The offender's initial accounts to the police and probation officer differed from RS's account.
- •The judge sentenced the offender to 4 years, 10 months' imprisonment for rape and a concurrent 3-year sentence for assault by penetration.
- •The Solicitor General referred the sentences as unduly lenient under Section 36 of the Criminal Justice Act 1988.
Legal Principles
Test for unduly lenient sentence: falls outside the range of sentences a judge could reasonably consider appropriate.
Attorney General’s Reference (No.4 of 1989) [1990] 1 WLR 41
Sentencing guidelines for rape (category 2B): starting point of 8 years, range of 4-9 years.
Sentencing Council Guideline
Effect of good character in sentencing: less weight given for serious offences; usually doesn't justify significant sentence reduction.
Sentencing Council Guideline
References under s.36 of the Criminal Justice Act 1988 are for avoiding gross errors, addressing public concern, and preserving public confidence.
McCusker [2023] EWCA (Crim.) 70
Outcomes
The appeal was allowed.
The judge's balancing of aggravating and mitigating factors was flawed; the sentence was unduly lenient given the severity of the offences and the aggravating circumstances.
The sentence for rape was quashed and increased from 4 years, 10 months to 6 years, 9 months.
Aggravating factors (rape in victim's home, breach of trust, intoxication) outweighed mitigating factors (remorse, good character). The separate assault by penetration should have been reflected in the rape sentence.
The sentence for assault by penetration remained unchanged.
The assault was considered as part of a single course of conduct; a consecutive sentence was deemed inappropriate.