Attorney General's Reference No 80 of 2006 [2006] EWCA Crim 2305

“This is a tragic case. You have pleaded guilty and your counsel has helpfully taken me through the chronology of the Court appearances so I am satisfied that you pleaded guilty at the first opportunity and I propose to give you full credit for your plea of guilty. It is necessary to recite some of the background because you and your wife were married in 1984 and you have three children of your marriage who are now aged 21 years to 17 years old. You lived together until about three years ago and then you left, leaving your wife in what was the former matrimonial home, and thereafter you were a frequent visitor to what had been your mutual home. I have no doubt that on many occasions you were a welcome visitor. That is apparent from the letters that I have read from your children, who describe that you and your wife both told them that you loved one another and you were both able to help one another with any difficulties that you had. The particular difficulties that your late wife had were due to her health, suffering as she did from a variety of problems. The most significant of which seem to have been asthma and arthritis and also considerable anxiety. You had keys to the property and you came and went on many occasions and as I say I have do doubt that many of those visits were welcome visits and your children speak of seeing you and your wife together on happy occasions. The was however a dark side to the reasons for your visits to your late wife and that was sexual and it is apparent from her statement that on a number of occasions sexual activities took place, which generally speaking were unwelcome to her. That is by way of background; of course I sentence you for what you pleaded guilty to doing on 15th January 2006. On that day you were significantly drunk and I am quite satisfied that you would not have behaved as you did, later that evening, had you not been so drunk. But that evening you turned up at your wife's home, you were drunk, she had had quite a good deal to drink herself, about six cans of fairly strong lager and she had retired early to bed, when you came in indicating that you wanted to have sex with her. She said, "No" and then she switched on her mobile telephone and dialled 999, leaving the phone by the bed. You, presumably because of your drunken condition, were unaware that you proceeded to force yourself upon your wife and had full sexual intercourse with her. The transcript of that makes troubling reading and it is even more troubling to listen to what your wife was going through during a period of about eight or ten minutes when you were raping her. She was crying in pain and distress and making it absolutely and utterly obvious that she did not want you to do what you were doing. She was begging you to stop, but in your drunken lust you persisted, telling her well into the rape, that it would only take a couple of minutes more before you gratified yourself, and gratify yourself you did. And so this is clearly a serious offence of rape. I do take this into account, that clearly in your case it was not just pure lust because you did have a genuine affection for you wife and even when this sexual act was over you asked her to give you a cuddle and then you told her that you loved her. You said; "I might not show it any more but I do love you", and you said that you loved her with all your heart. And so that is a factor that I take into account. There are guidelines in cases like this and I must choose of course to follow those guidelines. I regard this, looking at all the facts, that although your wife was a vulnerable person she was not so vulnerable as to cause this case to start with a higher starting point. In my judgment on the guideline case of Millberry the appropriate starting point for you, on a contested case, would have been five years imprisonment. As I say, you have full credit for a plea of guilty. I do not regard there as being any aggravating features as listed in that case and there are in my judgment two features that are important in mitigation. I take into account that in effect you are a man of good character, but more importantly in fixing sentence, I take into account that here you have very considerable remorse, both for what you have done and for the profound effect that that will have on your family and in particular your loving children. This is not a case where you offered any (inaudible) violence at all and as I say you get credit for pleading guilty at the first opportunity. Accordingly I would say that on a contested case, having regard to those mitigating features the appropriate starting point would be four years imprisonment. I give you full credit for your plea of guilty and I allow a further small discount for the new licensing regime and accordingly I reduce the sentence that I impose in this case to one of 30 months imprisonment. The effect of that is that you will serve half of that term in prison and then you will be released on licence and that period of licence will operate until the end of the period o 30 months. In effect, therefore, the second period of 15 months is really suspended provided you are of good behaviour and do not commit any other offences. This is a serious offence and clearly no other sentence but custody could be imposed. I do not regard you as representing a danger to women; it was only in the very particular circumstances in which you and your late wife found yourself, that this offence was committed.”

“(i) By reason of her physical and mental condition, the victim was an especially vulnerable person; (ii) The offender had repeatedly taken advantage of his wife by visiting her and having sexual intercourse with her when such sexual activity was unwelcome to her.”

“It was never said to be a specimen”

“The eight year starting point This is recommended by the Panel after a contested trial where there is present any of the following features ... : ... ii. rape of a child, or a victim who is especially vulnerable because of physical frailty, mental impairment or disorder, or learning disability.” ... ii. rape of a child, or a victim who is especially vulnerable because of physical frailty, mental impairment or disorder, or learning disability.”

“Mrs Frowen was 39 years of age. She was a lady who was not in good health. She had difficulties with agoraphobia. She had physical ailments in relation to chronic asthma and chronic arthritis. It is right to say that on 1st June I actually had a special measures meeting with her in order to discuss the observation at the end of her statement where she indicated reluctance to come to Court. I spent an hour and a half in her home and I can confirm those physical ailments and also a wish not to leave the home. She appears to have left the home very infrequently. She is in fact left the home just to go to a short hospital appointment on the following day, and as your Honour knows on Saturday 3rd June she was found by a member of her family dead in her home.”

“I agree none of the aggravating features in Millberry are there.”

“But it is not this Court's function, under section 36 of the Criminal Justice Act 1988, to substitute, in the light of new material, our view as to what the sentence ought now to be. Our task, under section 36, is to decide whether the judge's sentence, in the light of the material before him, can properly be characterised as having been unduly lenient.”

“This is a difficult and sad case”