Attorney General's Reference Nos. 153 of 2004 and 14 & 2 of 2005 [2005] EWCA Crim 954

Case No 2004/07187/A0

Case No 2005/00788/A1

[2005] EWCA Crim 954

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Tuesday, 12 April 2005

The Strand

London WC2

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

(The Lord Woolf of Barnes)

MR JUSTICE OUSELEY

and

MR JUSTICE TREACY

ATTORNEY GENERAL'S REFERENCE Nos. 153 of 2004

and 14 & 2 of 2005

UNDER SECTION 36 OF

THE CRIMINAL JUSTICE ACT 1988

R E G I N A

- v -

JUSTIN PHIPPS

PARVINDER BASRA

Computer Aided Transcription by

Smith Bernal, 190 Fleet Street, London EC4A

Telephone No: 020-7421 4040

(Official Shorthand Writers to the Court)

J U D G M E N T

A P P E A R A N C E S:

[1]This judgment relates to three applications by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988 to refer to this court for review sentences which he considers to be unduly lenient. If leave is given, the court may increase a sentence which has been imposed at first instance.

[2]We were helpfully referred to Attorney General's Reference No 4 of 1989

(1989) 11 Cr App R(S) 517

, 521, a decision of this court where the judgment was given by Lord Lane CJ in 1989, the terms of which are important. He said:

"The correct approach to section 36 The first thing to be observed is that it is implicit in the section that this Court may only increase sentences which it concludes were unduly lenient. It cannot, we are confident, have been the intention of Parliament to subject defendants to the risk of having their sentences increased -- with all the anxiety that that naturally gives rise to -- merely because in the opinion of this Court the sentence was less than this Court would have imposed. A sentence is unduly lenient, we would hold, where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate. In that connection regard must of course be had to reported cases, and in particular to the guidance given by this Court from time to time in so-called guideline cases. However it must always be remembered that sentence is an art rather than a science; that the trial judge is particularly well placed to assess the weight to be given to various competing considerations; and that leniency is not in itself a vice. That mercy should season justice is a proposition as soundly based in law as it is in literature. The second thing to be observed about the section is that, even where it considers that the sentence was unduly lenient, this Court has a discretion as to whether to exercise its powers. Without attempting an exhaustive definition of the circumstances in which this Court might refuse to increase an unduly lenient sentence, we mention one obvious instance: where in the light of events since the trial it appears either that the sentence can be justified or that to increase it would be unfair to the offender or detrimental to others for whose well-being the Court ought to be concerned. Finally, we point to the fact that, where this Court grants leave for a reference, its powers are not confined to increasing the sentence."

In considering these three references we bear in mind those comments, which are borne in mind by Her Majesty's Attorney General when considering whether to make an application to this court, and will no doubt also be borne in mind by those who advise the Attorney.

[3]In regard to sentences imposed in respect of rape there is now ample guidance provided by the authorities which should avoid the courts imposing sentences which are unduly lenient. However, it is apparent from the authorities which are now reported that over recent years there have been far more applications by the Attorney General in respect of sentences for rape than we would expect to occur. In that regard we urge sentencing judges to attach the greatest importance to the leading authorities to which we will refer in a moment. We also urge counsel not only for the defence but also for the prosecution to bear in mind their responsibility to make sure that the judge in the court at first instance is aware of the relevant authorities. However, we recognise that the Bar may be tempted to take it for granted that the leading authorities are now extremely well known so there is no need for them to be mentioned.

[4]Since the principal authorities were decided there has been new legislation in the form of the Sexual Offences Act 2003, the relevant parts of which came into force in May 2004. There have been a number of decisions of this court, to which we were helpfully referred by Mr Heywood in the course of the hearing of these appeals, where this court has reiterated that the approach laid down by this court in R v Milberry

[2003] 1 Cr App R 396

is still applicable. The cases indicating that that authority is still applicable are R v Wisniewski

[2004] EWCA Crim 3361

, (The Times, 20 December 2004); Attorney General's Reference No 104 of 2004 (R v Garvey) (The Times, 29 October 2004); and R v Corran & Ors (The Times, 8 March 2005). In those cases the Vice President considered the consequences of the new Act and indicated that the primary guidance is given by Milberry.

[5]The decision in Milberry was also reviewed by this court presided over by Kay LJ in Attorney General's Reference Nos 37, 38, 44, 54, 51, 53, 35, 40, 43, 45, 41 and 42 of 2003

[2003] EWCA Crim 2973

[2004] 1 Cr App R(S) 499

. In the course of his judgment Kay LJ made it clear that the court endorsed the approached in Milberry, but helpfully drew attention to an additional fact relevant to all sexual offences. In Milberry the court gave effect to the advice of the Sentencing Advisory Panel that, in assessing the gravity of individual offences, sentencers should consider three dimensions whenever a sentence for rape is passed: first, the degree of harm to the victim; secondly, the level of culpability of the offender; and thirdly, the level of risk posed by the offender to society. To those three considerations, and based on Attorney General's Reference Nos 91, 119 and 120 of 2002

[2003] EWCA Crim 05

[2003] 2 Cr App R(S) 55

, was added a further factor relevant to all sexual offences, including rape: "the need to deter others from acting in a similar fashion" (paragraph 8). The judgment of Kay LJ makes it clear that courts should be careful not only to consider the interests of the offender when determining the sentence to impose, but the interests we have just identified and in particular those of the victim.

[6]The present three references illustrate three differing situations in which offences of rape which fell to be sentenced. The first is the case of Phipps, where there had been an ongoing relationship between the offender and the victim. The second is the case of B, which was the rape by a stranger of a young child aged 12. The final case is that of Basra, in which the victim and the offender knew each other but where drugs were clandestinely administered without the knowledge of the victim to enable the offences to be committed.

R v Justin Phipps

[7]The offender Justin Phipps is aged 33, having been born on 21 February 1971. On 23 November 2004, following a trial in the Crown Court at Swindon, he was convicted of three offences of rape and three offences of assault occasioning actual bodily harm. The victim, ES, was then aged 25. Shortly after the trial started the offender pleaded guilty to one offence of assault occasioning actual bodily harm, but he pleaded not guilty to the three offences of rape and to three other offences of assault occasioning actual bodily harm. He was sentenced to a total of seven years' imprisonment made up of concurrent sentences of seven years' imprisonment for each offence of rape and concurrent sentences of twelve months' imprisonment for each offence of assault occasioning actual bodily harm.

[8]The facts are these. The offender and ES first met and began a relationship in 1998. They lived together from September 1998. From early 1999 the offender committed several acts of violence against ES in circumstances where she felt unable to tell either her family or close friends. The assaults took place usually when they argued or when the offender wanted to have sexual relations and ES did not. They had a child, A, and there came a time when ES became pregnant again.

[9]The offence to which the offender pleaded guilty (count 2) reflected an occasion between May and July 1999 when the offender gave ES a punch or a hard back-handed slap during a disagreement as to who should drive the car. She had a resultant red mark and bruising to her cheek.

[10]Count 3 reflected an occasion shortly after A was born on 16 May 2000. The offender asked ES for money to buy drugs. She refused to provide the money. He punched her hard on the lower back whilst she was changing the baby's nappy, causing severe bruising and making her unable to sit down for several days.

[11]Because of the deteriorating relationship between the offender and ES, consensual intercourse ceased around November 2002. However, subsequently ES discovered that she was pregnant again. In the New Year of 2003 ES decided with some difficulty that she would leave the offender and decided to terminate her pregnancy.

[12]On 21 January 2003, ES went out with friends for the evening. The offender looked after A at home. He sent ES several text messages asking her to return home suggesting A was unwell. ES returned home. The offender was sitting on the sofa holding a stick of wood like a miniature baseball bat. He started to question her as to what she had been doing. An argument developed. A was not in fact unwell. The offender had been drinking. He became sexually aroused. He started to rip off ES's top, ignoring her demands that he stop. He then forcibly removed her trousers and boots, held her against the sofa with his body weight and raped her with considerable force as she continued to struggle, shout and cry, causing a lot of pain. He ejaculated and got off her. She went to the bathroom where she remained for a considerable time to allow the semen to drain from her body. When she returned downstairs, the offender said to her, "Didn't you want that? Isn't every woman's fantasy to be raped?" ES then slept in the spare room fully clothed.

[13]ES told the offender that he would have to move out of the house as the relationship was over. He said that he had nowhere to go and he did not do so.

[14]Count 6 related to an offence on 1 February 2003. The offender went out with friends. When he returned home the victim was sitting on the sofa. They began to argue. He went over to her and pinned her down. She thought he was going to rape her again. He punched her hard on the left side of her face, causing extensive bruising and swelling that was still apparent five days later when she was visited by her general practitioner.

[15]As a result of another incident in the intervening period when the offender smashed a set of bookshelves with a hammer, ES called the police to their home, but she was too frightened of the offender at that time to tell them the full nature of the offender's abuse.

[16]Count 7 occurred on 8 February 2003, two days before ES was due to have a termination of pregnancy (a matter of which the offender was fully aware). During the evening, when they were both in the house, the offender tried to persuade ES to have sex. She refused. He called her a "frigid bitch", removed his belt and undid his zip. He grabbed her. She resisted, but he overcame her resistance and raped her once more with considerable force.

[17]On 10 February, ES had the termination at a clinic. The termination was painful and she lost a lot of blood. In the days that followed she continued to be in pain and suffered from prolonged bleeding. On 12 February she went to stay with her sister for a week to give the offender time to remove himself and his belongings from her home.

[18]On Wednesday 19 February, ES went out with some friends for a drink and once more the offender looked after A. Again he sent ES text messages. She later returned home and went upstairs. The offender entered her room and asked her if their relationship was over. When she said yes, he slapped her and asked again. She said yes once more. He then punched her to the head.

[19]Count 8 relates to what happened on 20 February, ten days after the termination. The offender went out and returned in the evening, by which time ES had put some of his things into plastic sacks and put them by the back door. When the offender returned, she was in her nightie in the spare bedroom where she had been sleeping since the first rape. When he entered the room, ES tried to get to the bathroom to retrieve her dressing gown. He prevented her from doing so. He pushed her by the shoulders onto the bed and pinned her down with his arms. She kicked out at him. He then lifted her legs up in the air and raped her with considerable force, while she screamed and tried to get him off, causing her considerable pain. When he released her she again locked herself in the bathroom. After that, ES kept out of the offender's way.

[20]Eventually, on 24 February 2003, the offender left ES's home. ES took a considerable time after he had left to adjust to not being under his control. She then told some people whom she trusted what had happened. Whilst the offender committed no act of direct violence against ES after that, he harassed her, which led to his conviction of a separate matter for harassment on 5 June 2003, for which he was conditionally discharged.

[21]The offender was arrested and interviewed in November 2003. He denied ever hitting ES or having intercourse with her without her consent. As is clear by their verdict, the jury rejected the offender's evidence and accepted ES's evidence.

[22]The Attorney General submits that there are the following aggravating features present in this case. First, there were the repeated rapes over the period of about one month. Secondly, there was the history of physical violence and intimidation of ES such that she felt unable to complain about his violence to the authorities. Then there was the fact that the rapes occurred when the offender knew that ES was pregnant and distressed by a decision to terminate; and later, when she had recently had the termination and he knew that she was in considerable plain and suffering ongoing bleeding. Finally, there was the fact that the offender's rape offences were violent, causing considerable additional pain and distress.

[23]The mitigating features are limited, first, to the offender's previous good character, and, secondly, to the offender's late plea of guilty to one offence of assault occasioning actual bodily harm.

[24]In reliance on Milberry and Attorney General's Reference Nos 37, 38, 44, 54, 51, 35, 40, 43, 45 41 and 42 of 2003, the Attorney General submits that the total sentence of seven years' imprisonment failed adequately to reflect the degree of harm caused to the victim, the extent of the offender's culpability, the level of risk posed by the offender to society and the need to deter others from committing such offences.

[25]We have no doubt that sentence was unduly lenient and we give leave to the Attorney General to make the reference. In applying Milberry it is appropriate to decide what is the appropriate starting point. Milberry identifies three principal starting points: five years, eight years and fifteen years, although the court also went on to deal with situations in which a life sentence is appropriate. Mr Ellison, who appears on behalf of the Attorney General, initially submitted that the appropriate starting point here would be fifteen years. Paragraph 22 of Milberry describes the fifteen-year starting point as appropriate ".... for a campaign of rape. This is recommended where the offender has repeatedly raped the same victim over a course of time as well as for those cases involving multiple victims."

[26]We do not regard the offences committed by this offender as falling within that description, albeit that we regard the case as serious. We reject the submission of Mr Harrison for the offender that the appropriate starting point is five years. That is described in paragraph 19 of Milberry as being ".... the minimum time that an offender convicted of rape should actually spend in custody, the Panel after giving careful consideration to the different views expressed, proposes 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 attract a higher starting point. In settling on five years the Panel took [into] account the levels of sentencing for other types of crime." 27. "rape of a child [which is inapplicable here], or a victim who is especially vulnerable because of physical frailty, mental impairment or disorder, or learning disability."

[27]In considering that that is the appropriate category (because Mr Harrison strongly submitted that this case does not fall within the eight-year starting point category), we have in mind the remarks of the judge in passing sentence upon the offender. In relation to the offence committed on 20 February the judge said this:

".... on the 20th February, ten days after [the termination], when she must -- I am quite sure, I accept her evidence -- when she was still both emotionally and physically suffering from that termination, you raped her again."

We also have in mind that, looking at the evidence as a whole, it is quite clear that ES had been intimidated by the offender and that she was undoubtedly vulnerable. We would regard the starting point as being eight years.

[28]It is then necessary to take into account any aggravating features.

(i) and (ix) there identified:

" (i.) the use of violence over and above the force necessary to commit the rape; .... (ix.) a history of sexual assaults or violence by the offender against the victim."

[29]The offender properly relies on his good character. That is something to which this court and the court below were entitled to have regard. But as was stated in Milberry (and repeated in the later Attorney General's Reference), the fact that an offender has no previous convictions for sexual or violent offences does not mean that there should be a substantial reduction of what would otherwise be the appropriate sentence: see paragraph 29 of Milberry.

[30]It appears that the judge had in mind the nature of the relationship between ES and the offender when determining the appropriate sentence. In passing sentence he said:

"I bear in mind this was not a stranger, it was your former partner, and bad though it is, it is perhaps not as bad as the rape of a stranger, but it is aggravated in the way I have described. There are three violent incidents."

The judge was right to say that the offences were aggravated in the way he had described and to note that there were three violent incidents, but it appears that he may have been misled by the relationship between the offender and ES. Rapes which take place in a domestic setting may have just as damaging an effect both in the short term and the long term on a former partner, as may rapes by strangers. Where there has been an affectionate relationship in the past, the victim, not unnaturally, may regard it as a betrayal of trust and friendship which she had with her former partner if attacks of the sort that are described here take place. We do not consider that that relationship would justify a reduction in the sentence.

[31]It is important in this case, as in all the cases to which this judgment relates, to look at the situation as a whole. Doing that, we have come to the conclusion that the appropriate sentence in this case would have been ten years' imprisonment. However, from that figure of ten years, because of the element of double jeopardy, we would make a reduction of one year. The sentence that we would substitute for the offences of rape will therefore be nine years. The sentences for the assault offences will remain undisturbed.

R v B

[32]This case involves a young offender. B was born on 9 March 1988 and is now aged 17. On 10 December 2004, in the Crown Court at Warwick, he pleaded guilty to all counts on an indictment containing four counts of burglary and one count of attempted burglary. In addition, he invited the court to take into account fourteen other offences of burglary when passing sentence upon him. We note and take into account the fourteen other offences. The fact that he was prepared to invite the court to take account of the fourteen offences should be borne in mind does reflect some credit on the offender. It shows candour on his part to a greater extent than happens in many cases that come before the courts today. On the other hand the additional offences are not to be ignored.

[33]On 17 January 2005, the offender pleaded guilty to a single count on a second indictment of rape of a child under 13, contrary to section 5(1) of the Sexual Offences Act 2003. He did so at the plea and directions hearing. It is common ground that for a plea of guilty at that stage there should be given the maximum discount. Particularly in a case involving a child of the age of this child (12 years), if it is known from the outset that it will not be necessary for her to give evidence is a significant mitigating factor.

[34]The offender was sentenced to five years' detention for the rape offence and to terms of one year's detention for the offences of burglary and attempted burglary. Those sentences of one year's detention were ordered to be served concurrently with each other but consecutively to the sentence of five years, making a total of six years' detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. The judge made the appropriate consequential order.

[35]The Attorney General contends that the sentence which was imposed was unduly lenient. It will become apparent when the facts are recited that there was a complication with regard to the determination of the appropriate sentence because the sentencing judge had to deal not only with a serious rape offence, but he also had to deal with the burglary offences which in themselves were serious, particularly having regard to the offender's record.

[36]At the time the offences were committed the offender was aged 16. During the period from June 2003 to June 2004 he was from time to time homeless, having left home after disputes with his father. He had been given an ultimatum by his parents to give up spending time with others with whom he had previously got into trouble. On 21 April 2004, because of offences he had committed, he was made the subject of an intensive package of support under a supervision order for 18 months imposed by the Warwick Youth Court for an offence of robbery.

[37]Despite the considerable efforts which were made at that time, the offender clearly did not respond. The first offence of burglary was committed on Wednesday 21 July 2004, when a householder found that her home had been entered during the night when the family were asleep, by forcing a window. Property was stolen to the value of £1,575.

[38]The offence on count 2 occurred on 3 August 2004. The householder was awoken at about 4.30am by a noise inside his home. He went downstairs and saw a cricket bat leaning against the sofa. The bat was not his. The front door was wide open. The lock and the security chain had been forced apparently by the use of a pair of shears which had been left behind. A mobile telephone and video gaming equipment had been taken to a value of £400.

[39]Count 3 was an attempted burglary. It related to the property of a Miss Jones and her partner. A similar type of offence was committed during the night of 25 August 2004.

[40]There was a further count of burglary relating to another dwelling-house on the following day, 26 August 2004, when property to the value of £1,500 was taken.

[41]A further dwelling-house burglary took place on 29 August 2004. In addition to those offences were the fourteen offences which were asked to be taken into consideration by the offender. He was arrested on 2 September 2004. He initially admitted one, but denied the others. He later made full admissions.

[42]The victim of the rape offence was a girl who was born on 25 August 1992. She was the younger of two sisters. She attended a school in Nuneaton. She usually bicycled home but on the day in question she was walking. She was described by her mother as being young for her age, very naive and not sexually aware. She was a virgin. She was about 4 feet 9 inches tall and weighed about 57 kilogrammes.

[43]On Thursday 18 November 2004 she was walking home, the chain of her bicycle having come off. She was dressed in her school uniform and was carrying her book bag on her back. She had with her her mobile telephone. As she walked across an open area known as Weddington Fields she met the offender. The offender had been previously with another boy, but they separated. The offender began to walk after the victim. He intercepted her on more than one occasion and tried to speak to her. But she kept her head down and walked on. After approaching her twice, the victim grabbed the victim around the waist and dragged her against her will into a muddy field. There he began to take down his trousers. He said, "Stand still or I will kill you". The girl was, understandably, petrified. She cried out, "Please leave me alone, I need to get home." He ignored her and pulled her towards him. They struggled and he punched her in the face. He pulled her towards the field. She tried to take out her mobile telephone to call the police, but the offender took it. The telephone had been clipped to her bag. The offender took off her bag and her coat. He put them on the ground. Again he tried to kiss her. At this stage she knew what he was about to do and shouted, "Rape". He pulled at her trousers and eventually pulled her trousers and knickers down to her knees. He punched her three times whilst she was still on her feet, and four further times at the spot in the field because she would not stand still. He then raped her. She concluded that he had ejaculated because she felt sticky between her legs. He did not wear any form of protection.

[44]The victim was naturally upset and frightened. She was screaming and crying. The offender helped her to her feet. She was dizzy as a result of the punches she had received. The offender walked with her to a gate at the edge of the field. He told her that if she told anyone what had happened he would kill her. He also said that he was sorry and did not know what had come over him. She noticed that he had a strong chemical smell about him.

[45]The victim went to a nearby shop. As a result her mother was informed and eventually the police were contacted.

[46]The offender was arrested on 25 November 2004. Samples were taken. During the first interview he denied involvement in the attack. He continued to deny involvement until the sixth interview, when he made admissions saying that he had only an intermittent recollection of the rape. He had earlier been sniffing nail varnish, having previously drunk half a bottle of cider and smoked cannabis. Afterwards he had said sorry to the victim and had handed back her phone. He had known "it was bad" and had run off. He agreed that he probably had ejaculated. He said that he had penetrated her intentionally and that he knew that she did not agree to what happened. Thereafter he remained in custody.

[47]The offence in this case was an offence against section 5 of the 2003 Act, that is an offence of rape involving a girl under the age of 13. That being so, the Attorney General does not rely on the age as being an aggravating feature but the more serious nature of an offence under section 5 itself. Clearly the rape of a child under the age of 13 is a particularly serious offence, and the more serious because of the age of the victim than would be the rape of an older person. However, the aggravating factors on which the Attorney General does rely are the fact that the attack was committed at dusk in a public but unoccupied area upon a stranger walking alone. Secondly, the attack involved the repeated use of physical violence considerably in excess of that necessary to achieve the rape, and was accompanied by threats to kill.

[48]The mitigating features were that the offender had pleaded guilty at an early stage, which counsel appearing for the Attorney General accepts justified the maximum discount for a plea of guilty; secondly, that during the police interviews the offender expressed remorse and was prepared to recognise that his offending had caused harm (albeit that by the date of the preparation of the pre-sentence report he failed to show genuine remorse in the opinion of its author); and thirdly, the offender was of a comparatively young age.

[49]The pre-sentence report and the offender's antecedents disclosed a picture of a young person who had gone completely off the rails. Notwithstanding the efforts that had been made, he had acquired a considerable record for criminal offences, particularly for burglary. However, the offence of rape was the first offence of that nature. Furthermore, he had not previously served a custodial sentence. He was considered to be at high risk of committing a similar offence again in the future.

[50]The Attorney General submits that the sentence passed for the rape offence was unduly lenient in that it failed to mark the gravity of the offending given the aggravating features present, the need to protect the public from significant harm, and the public concern about cases of this kind. In addition, it is said that the totality of the sentence passed was manifestly not sufficiently severe for the combination of offences committed by the offender.

[51]The court asked Mr Heywood to address us as to whether or not in this case the sentence should be regarded as being unduly lenient. Having heard his submissions, we have come to the conclusion, with a degree of hesitation, that we should grant leave. It is therefore necessary to consider whether we regard the sentence in fact imposed as being unduly lenient. We have come to the conclusion that the sentence was lenient but not unduly lenient. In his sentencing remarks the judge clearly indicated that he had in mind all the matters that were relevant to the correct sentence to impose. In particular he appreciated that if the offender had been an adult, it was a case where "at least double figures in terms of years, and maybe more" would have to be imposed. However, the judge then went on to say:

"I have to bear in mind these factors in mitigation: first of all, apparently you were sorry for what you have done, although the report seems to suggest you have not carried that remorse through till today. But I accept that you did say sorry to her." 53. "

Also .... I have to take account of the fact that you are still only sixteen years of age, and the courts are required to deal with people of your age in a different way from those who are older and adult." It is the clearly established policy of the courts, and indeed the policy reflected in legislation (including the most recent Sexual Offences Act 2003) that, where offenders are young, sentences of a lower nature are appropriate, where they would not be appropriate for an adult. The reasons for that are self-evident. As a young offender matures, it may be expected that criminal behaviour will be left behind. In addition, except in the most exceptional cases, there is a time where the young offender will return to live as a member of society. It is very important that courts do not impose a sentence which will make it too difficult for an offender to re-enter society and play a useful part. If a young offender is not able to make the adjustment from a custodial sentence back into society, that is unfortunate because it merely results in further offending which is damaging to the public. It is a difficult task to balance the respective interests. It involves a consideration of a triangulation of interests: there are the interests of the public generally; there are the interests of the victim; and (although this comes into a lower category) there are the interests of the offender himself or herself.

[52]In weighing up those matters, the court has to find the right balance. The authorities tell us that a young offender such as this, even though he is over sixteen, is entitled to a lesser sentence than that which would be imposed in the case of an older person. If the offender had been even younger, there would be more to be said on his behalf. This offender had created trouble for the authorities and for the public over years, but he was by no means without redeeming features. We have a report as to the progress which he is now making while he is in custody. We do not think it would be appropriate to increase the sentence that he will in any event have to serve.

[53]The total sentence imposed by the judge was six years' detention. That sentence, taking into consideration the pleas of guilty, is equivalent to a sentence of nine years' detention. That is a substantial sentence for an offender of this age. It appears to us that the reason for imposing the sentence of six years was that the judge regarded, rightly, the offence of rape as being the most serious offence. He knew that offence of rape would have to be marked by a significant sentence. He indicated a sentence of five years. Were it not for the offender's age, the judge indicated that it would have been substantially higher than five years.

[54]Having come to the conclusion that the appropriate sentence for the rape was five years, the judge then had to consider the appropriate sentence for the burglary. Here he had to bear in mind the need to take into account the totality of the offending and the totality of the sentence. We have no doubt that, having stood back and looked at the case as a whole, the judge concluded that, while not to have imposed an additional sentence for the burglary would have been inappropriate, he could in these circumstances reduce that sentence to an additional year. But that additional year has to be viewed in conjunction with the five years imposed for the rape. The judge could have taken the view that the appropriate sentence for the rape was six years and that in addition he would have imposed concurrent sentences for the burglaries.

[55]In an attempt to assist the court, Mr Heywood indicated that if the offences of burglary were looked at in conjunction with the offence of rape, two years or upwards would have been the appropriate sentence. That could have been imposed to run concurrently. However, in our view, it was much better to take the course that the judge did. It was much better to make it clear by the sentence that there was going to be an additional punishment for those burglary offences. That is what the judge did and we consider that it was right for him to do so.

[56]In all the circumstances, while we do not say that the sentence was not merciful, it was not in our judgment unduly lenient. Accordingly, we do not propose to interfere with that sentence.

R v Parvinder Basra

[57]The offender Parvinder Basra was born on 26 January 1970 and is now aged 35. On 13 December 2004, in the Crown Court at Minshull Street, Manchester, he was convicted of two counts of rape, contrary to section 1(1) of the Sexual Offences Act 1956, one count of indecent assault, and one count of supplying a controlled drug of Class C, contrary to section 4(3) of the Misuse of Drugs Act 1971. He was sentenced for each count of rape to four years' imprisonment; for indecent assault to two years' imprisonment; and for supplying a controlled drug of Class C, to 18 months' imprisonment. All sentences were ordered to run concurrently, making a total sentence of four years' imprisonment.

[58]The offender had earlier pleaded guilty on 28 May 2004 to counts of possessing a controlled drug, namely 33 ecstasy tablets, possessing a controlled drug of Class C, and possessing a quantity of cannabis. Those offences had been committed on 2 January 2004 and were charged on a separate indictment. Sentences of three months' imprisonment, concurrent with each other and with the other sentences, were imposed. No separate penalty was imposed for possessing cannabis.

[59]The offences can be summarised in these terms. The offender invited the victim, whom he had met once before, to his home where together they took cocaine and drank alcohol. However, the offender laced the victim's drinks with a sedative known as GHB, which, in combination with the alcohol and the cocaine, caused her to fall in and out of consciousness and rendered her incapable of preventing him from sexually assaulting her. Whilst she was in that condition, he raped her twice and indecently assaulted her by inserting his finger into her vagina. Following his arrest, GHB and other drugs were found in the offender's home.

[60]The victim was aged 24. She had met the offender in the summer of 2003 at a nightclub. She was not attracted to him, but he was very attentive to her and offered to help her to find work. She therefore exchanged telephone numbers with him.

[61]The offender contacted her on many occasions by telephone, but because she did not want to give the impression that she was attracted to him she did not answer his calls.

[62]However, on Friday 12 December 2003, the victim had had a bad day because she had lost ten days' work. When the offender telephoned her and invited her to his home, saying that some of his friends were there, she agreed. She called a friend to ask her to go with her, but her friend was unable to go.

[63]The victim arrived at the offender's home at about 9.15pm. The offender was with another male, Nick. The offender was attentive. He took off the victim's shoes, lifted her feet onto the sofa and put a blanket over her. While that made her feel uneasy, she did not object to it.

[64]The offender told her that he had taken a lot of drugs that day, including cocaine that he had taken at work. He also said that he had been drinking. She had brought a bottle of wine with her, which she and the offender shared. Eventually the friend, Nick, left.

[65]Shortly after that the offender said to her, "Shall we set up camp?" He said that he had cannabis and GHB, and that he could get some cocaine. The victim said that she did not want GHB as she had taken it twice in the past and had had bad experiences with it. They agreed, however, to obtain some cocaine. The offender duly arranged for a friend to deliver about 2 grammes of cocaine.

[66]During the night the victim and the offender drank vodka and coke and took cocaine. She had taken cocaine before. It had made her lively and talkative, but she had always been in control of her actions. She noticed that the offender always made the vodka and cokes in the kitchen when she could not see what was being put into the drinks.

[67]GHB is a central nervous system depressant. If taken with alcohol in high dosage, it can have a powerful sedative effect causing disorientation and muscle stiffness. It may cause a person to go in and out of consciousness and cause them to be confused and anxious.

[68]The prosecution's case was that the offender had laced the victim's drinks with GHB during the night and the following morning with the intention of rendering her incapable of preventing him from sexually assaulting her. At one stage she had moved away from the offender on the sofa as he had become too "touchy", but she remained fully clothed. She then thinks she blacked out. When she came round she was lying on a different part of the sofa. The offender was at her feet, kneeling over her. He was naked and rolling down her tights. He began to masturbate himself. He described her as gorgeous. From what she could hear he seemed to be having an orgasm. She was unable to move. She felt trapped in her own body and blacked out.

[69]When she came round again her knickers, skirt and tights had been removed. The offender was sitting on the sofa. He had positioned her body on top of him. All her weight was on him. Her head was slumped on his shoulder. She felt like a dead weight. The offender was at that time moving his fingers inside her vagina and was groaning and grunting as if sexually aroused. She was unable to move. The offender shouted to her to wake up and to say something to him so that he would know she was all right. At that point she gained some control of her body and managed to get off him. She began to panic and to cry. She gathered her clothes. The offender tried to calm her down, saying it was all right, that he had not come inside her and that he had had an HIV test and it was clear. The inference was that he had had sexual intercourse with her. He said that he had thought it was what she wanted and suggested that it was she who had led him on, to which she replied (not unnaturally) "How could it have been, I wasn't even awake".

[70]She began to think that she may have given him the wrong impression. At one point he said to her, "Tell me this is not a one-night stand", to which she said, "You must be joking". She was shaking and she drank the remains of the vodka and coke to calm herself. The offender went into the kitchen to make her another. He kept telling her to calm down. She then passed out.

[71]When she came round she was completely naked. The offender was also naked. He was on top of her, raping her. Eventually she was able to get away from him. She passed out, but subsequently was able to make her way home.

[72]At first the victim was too traumatised to tell anyone what had happened. The offender tried to contact her as if nothing had happened. However, eventually she went to the police and he was arrested.

[73]When he was interviewed, the offender claimed that the victim had consented to what had taken place. He said that she had brought with her to his home two bags of cocaine, that during the night they had taken the cocaine together, had drunk alcohol and had had intercourse with consent, she having willingly taken GHB.

[74]At his trial the offender repeated that account, but it was rejected by the jury. Clearly the jury accepted the victim's account.

[75]The offender has no previous convictions, although he had two cautions for a different matter, including the possession of drugs. Rightly he was treated as a man of good character. He had responsible, full-time employment. He had been a police officer and a prison officer.

[76]The Attorney General relied upon the following aggravating features. First, there were two occasions of rape. Secondly, there was the covert use of drugs to overcome the victim's resistance. Thirdly, there was the degradation to the victim as a result of the offence involving penetrating with his fingers. Furthermore, the offender persisted after the victim had woken to discover what he was doing and protested.

[77]The only mitigating feature was the offender's good character. We have already indicated the relevance of good character in dealing with the first of the three references in this judgment.

[78]The Attorney General submits that this sentence was unduly lenient. We accept that the Attorney should have leave in this case. We also accept that the sentence was unduly lenient. Once more it is a case where the sentencing court should have followed the guidance contained in Milberry. It is self-evident from the sentence he imposed that he did not do so. We take the view that this was a case where an eight-year starting point would have been appropriate. There were repeated rapes in the course of one attack: see item (vi) of paragraph 20 in Milberry. In addition, there is the aggravating feature of the use of the drug in order to render the victim incapacitated: see paragraph 32 where item (viii) of the aggravating features is described:

"The covert use of a drug to overcome the victim's resistance and/or obliterate his or her memory of the offence."

[79]Looking at the circumstances as a whole, and notwithstanding the submissions of Mr O'Brien, our conclusion is that the appropriate sentence here would have been one of nine years' imprisonment. Taking into account the element of double jeopardy, we reduce the sentence to one of eight years' imprisonment. Accordingly, the sentence of four years' imprisonment will be quashed and the sentence of eight years' substituted.

[80]We are grateful to all counsel for the assistance which we have been given. _______________________________________