Attorney General's Reference No 62 of 2004 [2004] EWCA Crim 2036

Case No 200402202/A8[2004] EWCA Crim 2036
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 30th June 2004
Strand
London, WC2
B E F O R E:
LORD JUSTICE KENNEDY
MR JUSTICE HENRIQUES
MR JUSTICE GROSS
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 62 OF 2004
(EDMOND KUMANOVA)
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MR J LAIDLAW appeared on behalf of the ATTORNEY GENERAL
MR S MADDICK appeared on behalf of the OFFENDER
J U D G M E N T

LORD JUSTICE KENNEDY:

[1]Her Majesty's Solicitor-General, on behalf of the Attorney-General, seeks leave under section 36 of the Criminal Justice Act 1988 to refer to the Court a sentence which she considers to be unduly lenient.[2]Unfortunately, this Court did not until yesterday have the advantage of the final Reference but it has had the result that we have had to read all the papers in order to discover what the case was about and therefore we are in a better position than sometimes to know how this matter came to trial and what resulted.[3]The offender is 18 years of age, having been born on 14th June 1986. He was born in Macedonia as an ethnic Albanian Christian. His father died when serving in the Kosovan Liberation Army and his family was persecuted. Eventually, after his home was set on fire and he was separated from the whole of the rest of the family he fled. In about August 2001, he came to the United Kingdom as a refugee. Subsequent enquiries by the Red Cross suggest that the rest of his family had perished.[4]On arrival in the United Kingdom he was 15 years of age. He was accommodated in Portsmouth. There, in July 2002, he was referred by the local authority to Young People's Services who provided accommodation for him. Arrangements were also made for his education and he was regarded by his assigned social worker, Emma Maguire, in a report prepared after the offence with which we are concerned in this way:
"Edmond is warm, sensitive, mild, polite and respectful. I have never known Edmond to lose his temper or raise his voice. A softly spoken young man. A pleasure to work with."
Prior to April 2003 he had no convictions of any kind.[5]The victim in this case was a girl, born on 28th January 1988 who was in foster placement. The offender had met her some time prior to Friday 25th April 2003, and she had left her handbag at his flat. I say his flat, in fact it was bed-sitting room accommodation. On that day arrangements were made to return the bag, and the offender and a friend, known by the letter G, arrived by car at a meeting point. The victim was with two other girls. She and one of them were dropped off at an off-licence because they wanted to buy drink. The third girl was dropped off elsewhere. That third girl did not like G but she noted that the victim and the other girl were, in her words, "sickeningly flirting towards G" and the offender cautioned G telling him that the victim is "Debbie's", referring to the foster carer with whom the victim lived.[6]About 7.30 pm the first two girls, who by this time were drinking alcohol in the rain on the seafront, received a telephone call from the offender asking if they would like to meet up. They agreed and went to his bed sitting room. He was a bit reluctant for them to go in because he was only supposed to have one visitor at a time. But his friend, G, brushed aside that objection. They had with them three bottles of wine purchased by the girls at the off-licence, one 75 cl bottle and two 150 cl bottles - in effect five bottles. When asked the next day by a policewoman what she liked doing, the victim said "going out, getting drunk".[7]Apparently they drank what they had and the offender was sent out for some more which he obtained. When Debbie, the foster carer of the victim, tried to contact the victim on her mobile telephone, at 10.30 pm, it was switched off. The victim should normally have been back by 10.00 pm or at least made a telephone call to say where she was.[8]Eventually, the victim's friend left, after the victim had claimed that both she and her friend were older than they were, respectively 16 and 18, and the offender had expressed doubts about that. The offender went after the victim's friend, leaving the victim in his bed-sit accommodation with G. Shortly after that, the victim was seen naked on the landing returning, apparently of her free will, to the offender's room from the lavatory. She alleges that G raped her. He has never been tried.[9]When the offender returned in the early hours, she was naked, in his single bed, with it seems a cover over her. He says that he tried to sleep, first, in a chair, and then on the floor, but the floor was wet. He then got into the bed. As to what happened next, we take the account for what she told the police the next day. We do not have the advantage of a transcript of the summing-up:
"The next thing I remember waking and Edmond was there instead of the other one. I had sex yeah, I was having sex with him, so then I just went 'Get off, get off' and then I passed out and then I woke up this morning and ran out."
A little later in that account given to the police officers she said in answer to questions:
"... He was on top of me having sex with me and I felt disgusting and I went 'Get off, I'm tired' and... he carried on and I went 'Get off' and pushed him off and then I went back to sleep."
[10]After the act of sexual intercourse, the two seem to have spent the remainder of the night lying beside each other and it is not contended that there was any further sexual activity on the part of the offender. Undoubtedly, the victim did complain the following morning to Debbie that she had been raped and the medical and scientific evidence showed that there had been sexual intercourse. But the offender professed to have no recollection of having had sexual intercourse with her. That was his position before and after verdict, so it is not perhaps surprising that he expressed no empathy for the victim.[11]Before the trial judge, there was, in this case, no victim impact statement, perhaps for the reason that she alleged she had been raped by two people. The gravamen of the offence was that a 16-year-old offender embarked upon an act of sexual intercourse with a drunken girl of approximately his own age without any indication of her consent and continued for a short time, when she made her lack of consent clear to him. The judge referred to the case of S (14th September 2001 unreported) where the 16 year old defendant thought at first that the 15 year old complainant was consenting. But then she tried to push him off and he carried on regardless. In that case, the sentence was reduced to one of 12 months' detention and training. That, however, was prior to the guideline decision of this Court in Millberry [2003] 2 Cr App R(S) 142, and it is said that in this case there were a number of aggravating features.[12]Mr Laidlaw, on behalf of the Solicitor-General, does not seek to contend that the aggravating features were of the kind referred to in Millberry but he submits that nevertheless there were matters to which the judge should have particular regard. The victim was young, in her state of drunkenness she was particularly vulnerable to an attack of this kind, and as we have already indicated, the offender did not show any subsequent sign of remorse or understanding of the serious nature of his offending. We have, in the course of the narrative of this matter, addressed those matters and we need say no more about them.[13]On behalf of the offender Mr Maddick points to the history, and the age of the offender and compares it with the age of the victim. He points to the state of drunkenness in which the victim certainly was and to some extent so was the offender. He emphasises, as is clearly the case, that this was not a planned rape, and, indeed, the offender began, and his evidence cannot be contradicted, sleeping first on a chair or attempting to sleep on a chair and then on the floor. He submits that the starting point, mentioned by the sentencing judge of 3 to 4 years, for someone of the offender's age, following a contested trial, was appropriate. Essentially the submission made on behalf of the Solicitor-General is that the starting point should have been the finishing point. Mr Laidlaw submits that that should not be so in this case when there is also the fact that this particular offender was described in the pre-sentence report as naive and vulnerable. He emphasises his good character to which we have already made reference. He points to the background to which again we have already made reference. He points out that in terms of lack of remorse, it may be relevant to bear in mind his own personal history. He emphasises that the risk of re-offending has been assessed as low.[14]Of course, rape is always a very serious offence. All sentencing judges are well aware of that. But there is no fixed minimum sentence. So, a sentencing judge must have regard to all of the circumstances. We question the extent to which regard was had to all of the circumstances when considering whether to refer this case to this Court.[15]This sentencing judge listened to a trial. He was in a particularly good position to have regard to the circumstances and we can see no reason to conclude that he failed to take advantage of his position. He was dealing with a grave offence. But he had to balance that factor against the particular circumstances of the case with which he had to deal. We accept that the sentence which he imposed was lenient. It was not unduly lenient and this Reference therefore results in the sentence remaining precisely where it stands.