McMorris & Ors, R. v [2009] EWCA Crim 1490

[2009] EWCA Crim 1490

Case No. 2009/00665/A7, 2009/00668/A7 & 2009/00670/A7, 2009/00359/A3 & 2009/00360/A3

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Thursday 2 July 2009

Between

R E G I N ACrown

The Strand

London WC2

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

(Lord Judge)

MR JUSTICE SIMON

and

MR JUSTICE BLAIR

ATTORNEY GENERAL'S REFERENCE Nos. 7, 8 and 9 of 2009

UNDER SECTION 36 OF

THE CRIMINAL JUSTICE ACT 1988

_______________

R E G I N A

- v -

ROGEL McMORRIS

JASON BREW

HECTOR MUAIMBA

- v -

Between

YUSUF RAYMOND

O'NEIL DENTON

__________________

Computer Aided Transcription by

Wordwave International Ltd (a Merrill Communications Company)

165 Fleet Street, London EC4A

Telephone No: 020 404 1400; Fax No: 020 7404 1424

(Official Shorthand Writers to the Court)

__________________

2009/00665/A7, 2009/00668/A7 & 2009/00670/A7

Mr J Laidlaw QC appeared for Attorney General

Mr M Turner QC and Miss S Reynolds

appeared for Offender Rogel McMorris

Mr A Lewis appeared for Offender Jason Brew

Mr L Hurlock appeared for Offender Hector Muaimba

2009/00359/A3 & 2009/00360/A3

Mr M Conning appeared for Appellant Yusuf Raymond

Mr P Rowlands appeared for Appellant O'Neil Denton

Miss N Merrick appeared for Crown

__________________

J U D G M E N T

THE LORD CHIEF JUSTICE:

[1]The circumstances we have had to consider today are horrifying. Although they are different cases, they have common features. On each of two separate occasions two girls, one aged just 16 and one aged 14, were subjected to a nightmare ordeal that will blight the rest of their lives. On each occasion the perpetrators were young men. They worked together in a group or as a gang. Even though some of them were very young, all those who were involved knew perfectly well what they were doing and did what they did, quite deliberately, to humiliate and punish a defenceless girl victim, and to reinforce their own authority and power and that of the gang to which they belonged. They did this in the expectation that, having caused so much damage, the victims would be too frightened to report the matter so that their crimes would not be detected.

[2]We shall endeavour to recite the facts of these two offences in as objective and unemotional language as we can, but their horrifying realities cannot and should not be disguised. These were truly shocking cases. In the case of some of the offenders, every consideration of decency and humanity was extinguished.

The Attorney General's Reference

[3]Her Majesty's Attorney General applies under section 36 of the Criminal Justice Act 1988 for leave to refer to this court sentences which she considers to be unduly lenient. We grant leave.

[4]The offenders are Rogel McMorris, Jason Brew and Hector Muaimba. McMorris was born in October 1990; he is now 18 years old, and was 17 at the time of the offences. Brew was born in September 1989 and is 19 years old. Muaimba was born in April 1988 and is 21 years old.

[5]On 8 December 2008, following a trial of a number of defendants (some of whom were acquitted) at the Wood Green Crown Court before His Honour Judge Sean Lyons and a jury, McMorris was convicted of one count of vaginal rape, one count of oral rape and an offence of causing grievous bodily harm contrary to section 20 of the Offences against the Persons Act 1861. It is important to the sentencing decision reached by the judge, and the one which we shall have to address in the course of this judgment, to note that he was acquitted of the more serious offence of causing grievous bodily harm with intent, contrary to section 18 of the Offences against the Persons Act 1861. The difference is that the maximum sentence on conviction for an offence contrary to section 20 is five years' imprisonment; on conviction of causing grievous bodily harm with intent, a sentence of life imprisonment would be available. Brew and Muaimba were each convicted of raping the same victim who had been the victim of rape by McMorris -- Muaimba on the basis of encouragement of rape rather than of penetration himself. In addition, he fell to be sentenced for a separate offence of robbery committed on a quite different occasion. Following an adjournment for the preparation of pre-sentence reports, McMorris was sentenced to concurrent terms of seven years' detention for the offences of rape and a consecutive term of two years' detention for the assault, producing a total sentence of nine years' detention in a young offender institution. Brew was sentenced to six years' detention in a young offender institution. Muaimba was sentenced to six years' detention for the offence of rape and to a consecutive term of two years' detention in respect of the robbery offence, making a total sentence of eight years' detention in a young offender institution.

[6]There is some difference of approach between counsel for the Attorney General and those who appeared at trial on behalf of the three offenders. Various matters of detail relating to the facts have been canvassed. To a large extent in practical terms they are agreed. In any event, the differences between them now are of no major significance and would not seriously affect any final sentencing decision.

[7]In summary, the victim, who was aged just 16, went to an occupied house. Her purpose was probably to have sexual intercourse with one man. While she was at the house a group of young men gathered to have sex with her. Over the course of an hour or so she was raped repeatedly: orally and vaginally. During the sexual activity someone (and it may not have been one of the offenders) took photographs or a video with a mobile phone. Thereafter, when everyone was sated, in order to humiliate her, McMorris threw soap and water over her and then caustic soda. In the light of the verdict reached by the jury we shall have to address the circumstances in which the caustic soda was used. But however we address it, and whatever the verdict of the jury, the young girl suffered appalling injuries. We have seen the dreadful photographs. She must have suffered the most horrendous pain. Quite apart from the pain she suffered, her life will have been altered for ever.

[8]The victim had mild to moderate learning difficulties. However, these difficulties were disguised by the fact that she had good social skills. It is relevant to underline, as the judge did, that for several months the police officers who dealt with her in the course of their investigation were unaware of the extent of her difficulties.

[9]During the early evening of 9 January 2008, the victim arranged to meet a young man in Tottenham. McMorris, who knew the young man she was due to meet, met her instead. He took her to his home and there suggested, and she agreed, that they should have sexual intercourse together. It did not take place at that time.

[10]While the victim was at McMorris' home, two other young men, Steven Bigby (who has now died) and Opeyemi Ismail (one of the defendants who was acquitted by the jury), arrived. She then accompanied them to an address in Antill Road, an unoccupied rental property. It was there that her ordeal took place. In a first floor bedroom she was subjected to multiple oral and vaginal rapes by McMorris, Bigby and two others. McMorris admitted asking her on three occasions to perform oral sex on him. He ejaculated into her mouth. There were instances where, as one man had sexual intercourse with her from behind, she was also required to perform oral sex on another. However, not all of those who had sexual intercourse with her were identified. She did not want to have sex with anybody, apart from having earlier agreed to do so with McMorris alone and in private. She was unable to help herself in her situation; there were "too many of them". She was scared. She did not know what to do. She did not move. She "just stayed there".

[11]During this part of the victim's ordeal, one man stood at the door to the bedroom and appeared to be keeping guard. She had the impression that there were a number of others present in the corridor outside.

[12]Brew and Muaimba were not involved at this stage. They arrived later. They were not present when the victim first arrived at Antill Road. Following their arrival they joined in. Brew raped the victim vaginally. Muaimba was convicted of rape on the basis of being involved in a joint enterprise that someone else would rape her.

[13]Throughout the whole of this incident, which lasted something like an hour, McMorris was present from first to last. Every one of those who raped the victim wore a condom. She asked them to wear condoms and they did so (except when McMorris ejaculated into her mouth).

[14]Eventually, because the victim was incapable of submitting to any further sexual activity, McMorris sought to humiliate her. He threw water and soap powder at her. When the soap box disintegrated, he went into the bathroom where he found a tub containing caustic soda. He added water to it and threw part of the contents over the victim's naked body. It is possible that he did this on only one occasion, but whether it was one or more than one the consequences were dreadful.

[15]By then Muaimba had left the house. Although there is nothing to anyone's credit in this case, it should be recorded that not only had he left the house before the dreadful consequences of the contact between the caustic soda and the victim's body became apparent, but also that although he wanted to have sexual intercourse, when he asked whether he could have intercourse with her, the victim refused and he did not persist.

[16]Inevitably, the victim began to scream from the burning to her skin. We do not need to spend time describing how loud or how obvious her screams must have been. The photographs graphically illustrate the horrendous pain she was caused. Nobody made any attempt to call an ambulance for her. A neighbour eventually came to her rescue. As they waited together for the ambulance to arrive, her skin began to fall off. She suffered catastrophic burns to about 50 per cent of her body. She was in a medically-induced coma for two weeks, critically ill with life-threatening injuries for the best part of two months. It was not until March that she was able to speak about what had happened to her. We shall return to the consequences of these injuries in due course. When McMorris was arrested, he made no comment to the questions asked of him in the first set of interviews. An analysis was sought through the forensic science laboratory to see whether there was any evidence which linked him to the crime. When the police told him that his DNA had been found on a condom recovered at the address, McMorris said that the sexual activity had been consensual. He denied throwing acid over they victim, although he accepted that when he had left the house she was screaming in distress.

[17]Brew denied any non-consensual contact. Muaimba made no relevant comment to the questions asked of him in interview following his arrest.

[18]We shall deal briefly with the robbery admitted by Muaimba. It occurred on 19 June 2007. The offender was one of three men who met the victim in Marylebone. The victim bought and sold property over the internet. He agreed to meet the men to buy a number of mobile telephones. When he arrived at the scene he was asked to get into a car. He was then driven off. He was robbed of £5,000. Muaimba was the driver of the car.

[19]The victim of the offences of rape has suffered severe and permanent disfigurement to her face and body. She spent a number of months in the Regional Burns Unit at Broomfield Hospital. She sustained full thickness burns to her face and to her genitalia. She can no longer control her body temperature. She will require considerable amounts of reconstructive surgery and life-long management of her scarring. Psychologically she suffers from post-traumatic stress disorder with bouts of severe depression which have led to ideas of self-harming and suicide, and she suffers flash-backs and anxiety. At the moment she is incapable of leading an independent life.

[20]We have read the Victim Impact Statement and the statement made by her mother. They describe the devastating effects of the incident on the victim. They also plainly show the devastation that the injuries to her daughter have wrought on the mother. In her statement the victim said this:

".... I realised that I could not do anything to stop them. I was really scared, the most scared I have ever been in my life. .... They were using me. At times I was scared even to cry because I thought they would hurt me even more. I knew I couldn't fight them off because there was lots of them both inside the room and outside the door. I kept waiting for them to stop and hope they would just let me go home."

[21]So far as previous court appearances are concerned, there is nothing of any relevance in the previous history of the three offenders which bears any resemblance to what happened on this occasion. It is sufficient to say that they were not young men of good character.

[22]We have read pre-sentence reports on each of the offenders. The author suggested that McMorris lacked insight into the potential harm for young women who become involved in apparently consensual group sex. He was unable to recognise how such a situation could lead to manipulative and coercive behaviour towards any young woman. The author felt that McMorris expressed genuine remorse. She concluded that he was unlikely to repeat his behaviour. The focus of his remorse lay in the consequences of his folly in using the caustic soda. The recommendation was that for the purposes of the Criminal Justice Act 2003 an indeterminate sentence would not be appropriate.

[23]The author of the report on Brew made a similar observation about his lack of understanding of the long-term damage to vulnerable young women who found themselves involved in group sexual activity.

[24]The report on Muaimba recorded that he did not think that he had done anything wrong or that there was anything wrong with his behaviour in seeking to indulge in group sex. As a matter of consensual activity, of course there was not. The question was the possible vulnerability of young women who might become involved with any one of those interested in group sex. The author of the report was concerned about a possible risk by Muaimba to members of the public arising from the possibility that he would commit offences of violence.

[25]Prior to the commencement of the trial discussions took place between counsel for McMorris and counsel for the Crown. In the course of those discussions an enquiry was made of the Crown whether, if McMorris pleaded guilty to a section 20 offence, the Crown would not prosecute him for an offence under section 18 of the 1861 Act. Counsel for the Crown refused the suggestion. The case therefore proceeded to trial.

[26]At trial McMorris accepted responsibility for throwing the caustic soda. However, his defence (which the jury did not reject) was that at the time when he used it he had no idea of the possible consequences; he did not intend any serious harm. That was the jury's verdict. The judge had to honour that verdict, and so do we.

[27]When he came to pass sentence the judge referred to the "irretrievable change" that had overtaken the life of the victim. He described the consequences in graphic terms. He referred to the sentencing guidelines relating to the offence of rape, and referred to the pre-sentence reports. He concluded that none of the offenders qualified for an indeterminate sentence. The contrary has not been suggested on behalf of the Attorney General. The judge described the offences of rape: a number of acts of sexual penetration with a number of people, not all of whom were before the court for sentence. He concluded that an appropriate starting point for a level 2 offence in the Sentencing Guidelines Council's Definitive Guideline was one of eight years' custody, with a broad sentencing range from six to eleven years. He noted that the offence did not include characteristics of additional violence over and above the violence attendant on the rape, and that no evidence of physical violence was used to enforce the sexual activity. The judge's conclusion is accurate as far as it goes, but the victim was a 16 year old girl in an empty house, surrounded by strange men. There was no evidence that any of the offender's were aware of her "special vulnerability". The judge remarked that during the trial it was apparent that the victim had developed social skills which concealed some of her difficulties. These would be apparent to a professional, but the police did not discern any problems, at any rate at the beginning of the investigation. The judge took account of the evidence that the victim had agreed to have sexual intercourse with McMorris, although not in the circumstances in which they later took place. In relation to the caustic soda incident the judge said:

"The jury accepted unequivocally that Rogel McMorris did not intend those consequences. .... The jury verdict showed that Rogel McMorris did not intend the full consequences of what took place that day."

The judge then addressed each offender and passed the sentences which we have recorded.

[28]There are a number of aggravating features in this case. The victim was just 16 years old. Although she had learning difficulties, like the police who became involved in the investigation there was no reason why the offenders should have appreciated that she had such difficulties. Nevertheless, she was extremely vulnerable from the moment she arrived at the unoccupied property to be confronted by a group of men. Although the exact number is not known, between six and eleven were present at different times. The offenders had participated in group sex. By its very nature such activity is coercive and exploitative unless all those involved are genuinely consenting. The victim was subjected to a prolonged and sustained sexual attack during which (although there is no evidence that any of the offenders was responsible) photographs were taken of her as she lay there naked. McMorris then humiliated her by throwing soap powder and water at her, and finally throwing the caustic soda. It must have become clear to the offenders that the victim had been very badly hurt. McMorris and Brew, both of whom were present at the time when the caustic soda was thrown and began to have its dreadful effect, must have been aware that something appalling had happened to her. They left her without bothering to summon medical assistance. The offences of rape have caused serious psychological damage. The offenders have no understanding of the consequences of their sexual activity. Such regret as they have relates to the physical injuries consequent on the effects of the caustic soda.

[29]McMorris was the prime mover. He met the victim first. He suggested that they have sexual intercourse. He invited some of the other men in the house to take turns. He ejaculated into the victim's mouth, and he was responsible for her dreadful physical injuries.

[30]Brew raped the 16 year old girl who was already the victim of rape. Muaimba assisted someone else to rape her.

[31]The Attorney General acknowledges the following mitigating features. None of the offenders has any previous conviction for a sexual offence. They are young men and they have not previously been sentenced to custody.

[32]It is said on behalf of the Attorney General that the judge was wrong to impose the sentences that he did; that they were unduly lenient; and that they did not sufficiently reflect the true culpability, even making allowances for the verdict of the jury in relation to the caustic soda or the degree of harm sustained by the victim.

[33]We accept that submission in relation to McMorris and Brew. Their sentences were indeed unduly lenient. So far as Muaimba is concerned, we think it is arguable that the sentence was unduly lenient. However, we must remember the difference between the three offenders. It is not right, nor would it be just, to cast all three of them in precisely the same role. Neither Brew nor Muaimba was alleged to have been involved either directly, or indirectly by encouragement, in the activity which resulted in the caustic soda being thrown at the victim. That is important. They must not be sentenced for what happened to her as a result of the activities of someone else in which they did not participate.

[34]The sentence had to reflect the victim's age, just 16, and her vulnerability (not in relation to matters about which the offenders would have been unaware, but the fact that she was on her own in a strange house with a number of men). The responsibility which the offenders must bear is also limited to the fact that a criminal must accept the victim as she is. It is suggested that the judge placed too much weight on the fact that the victim had agreed earlier on to have sexual intercourse with McMorris. That criticism is justified. The fact that a young woman has agreed to have sexual intercourse with a man, on his own, and privately, is quite different from any possible involvement in sexual activity of the kind with which the victim here became involved. It is suggested that the judge did not sufficiently recognise the "coercive and exploitative" effect of group sex attacks and that the sentence did not sufficiently reflect the prolonged nature of the attack and the humiliating aspects of it. The Attorney General also argues that insufficient attention was paid to the fact that in the case of two of the offenders, they left the house as soon as the victim began to scream in pain. Although it is argued on McMorris' behalf that he did not appreciate the consequences of the throwing of the caustic soda, and on Brew's behalf that he did not know that caustic soda had been used, and that if he had, he would not have appreciated the consequences, there can have been no doubt from the victim's screams of pain that something dreadful had happened to her.

[35]In any event the suggestion that the Attorney General's argument does not sufficiently acknowledge the remorse expressed by the offenders for the consequences of the use of the caustic soda fails to recognise that although we have recorded the remorse shown by McMorris when he later became aware of the victim's dreadful injuries, we cannot detect any remorse from him, or either of the other offenders, in relation to the sexual assault to which they subjected the victim. It is further suggested that insufficient weight was attached to the psychological impact on the victim as well as to the burning injuries she sustained.

[36]There was some argument before us based on the question of which of the appropriate levels of sentence identified in the Sentencing Guidelines Council's Definitive Guideline: Sexual Offences Act 2003 would be the appropriate place at which the judge should have started his consideration of the issues, and at which we should start our reconsideration of them. It is an essential aspect of the submission on behalf of the offenders, advanced by Mr Turner QC, but adopted on behalf of the other offenders, that the sentencing judge addressed and applied the guidelines, and that consequently it would be difficult seriously to contend that his sentencing decision should be treated as one which was unduly lenient.

[37]The force of that submission depends on the nature of the judicial responsibility to attend to and apply such guidance. At present, by statute, a judge must have regard to the definitive guidelines issued by the Sentencing Guidelines Council. But in the end a judge has to do justice in the circumstances of an individual case. It is well established under the current legislation that, provided the judge has had regard to a definitive guideline, he is entitled, if he has reason to do so and is prepared to articulate his reasons, to disregard it if, by following it, an injustice would result. Sometime justice will require a more merciful sentence than a guideline level may indicate; sometimes a more severe one. Sometimes the facts of the case will not fit into the structure of any definitive guideline.

[38]In the present case we have been asked to consider whether the judge was right to fix on the second level relating to offences for rape, found at page 25 of the definitive guideline, which provides that there are three starting points when rape is accompanied by any one of the following: abduction or detention; offender aware that he is suffering from a sexually-transmitted infection; more than one offender acting together; abuse of trust; offence motivated by prejudice, race, religion, sexual orientation, physical disability, or sustained attack: first, in relation to a child under 13; then in relation to a child aged 13 or over but under 16; and then in relation to a victim aged 16 years or over. The sentences range from eleven to seventeen years' custody for a victim aged under 13; eight to thirteen years' custody for the child aged 13 or over but under 16; and six to eleven years' custody for the victim aged 16 or over. On the other hand, offences at level one cover repeated rape of the same victim over a course of time, or rape involving multiple victims, for which the starting point is fifteen years' custody, with a range of thirteen to nineteen years' custody.

[39]It is suggested to us that the judge took the correct starting point for a victim who was aged 16 or over. We do not attach magic to the fact that the victim had achieved her 16th birthday, any more than we do in the case of a defendant who has reached a particular age which causes different sentencing regimes to be applied. We must then look at the additional aggravating factors. It is submitted that there is only one: that McMorris ejaculated. There are, however, further special factors indicating a higher level of culpability. They include, importantly, offenders operating in groups or gangs and factors which indicate a more than usually serious degree of harm include degradation of the victim. Specific reference is also made to the taking of photographs of a victim as part of a sexual offence.

[40]It is unwise to seek to compartmentalise the levels of culpability that can arise in sexual offences. It is fundamental to the correct approach that the necessary flexibility to which reference is expressly made should be borne in mind. The definitive guideline for sexual offences indicates that "more than for any others the sentencing process must allow for flexibility and variability. The suggested starting points and sentencing ranges contained in the sentencing guidelines are not rigid and movement within and between the ranges will be dependent upon the circumstances of individual cases and in particular the aggravating and mitigating factors that are present." We have considered that guideline in the context of the sexual offences that were committed by these offenders.

[41]We must next consider the offence against McMorris of causing grievous bodily harm. The facts are not covered by any guideline. We must honour the verdict of the jury that the culpability of the offender must be regarded as low because he cannot have appreciated that the throwing of the caustic soda would have caused the victim anything other than slight, if any, injury. On the other hand, the consequences were harm of the most grievous kind: the victim received 50 per cent burns to her body; she will be marked and maimed for the rest of her life. That is to be fitted into a maximum sentence of five years' custody. There is no discount to be allowed for a guilty plea, but it is fair to record that throughout the trial McMorris did not suggest that the person responsible for the incident with the caustic soda was anyone other than himself. In reality, the jury was left with no difficulty in concluding that he was responsible for the grievous bodily harm, although they were not satisfied that he intended grievous bodily harm. The case in relation to the physical injuries sustained in consequence of the throwing of the caustic soda is most unusual and difficult to place within the sentencing guidelines.

Conclusion

[42]There can be no doubt that McMorris was the prime mover. More than one offence was committed by him. He was convicted of two separate offences of rape, including one of oral sex which culminated in ejaculation. He was present throughout while others had their way with the victim. He took her to the empty house. We find it impossible to believe that the men who turned up were not known to him. He was therefore the main protagonist involved in the incident which culminated in the catastrophic injuries. We have no doubt that the sentence on McMorris was unduly lenient. We bear in mind his youth at the time of these offences (still only 17) and we must have regard to the principle of totality. We have borne in mind those considerations and the constraints on us of the jury's verdict. But in our judgment the appropriate sentence on this offender is one of fourteen years' detention in a young offender institution. The sentence of rape on each of the two counts will be one of eleven years' detention; the sentence for the offence of causing grievous bodily harm will be a consecutive sentence of three years' detention.

[43]Brew's involvement was that he arrived at a house where a girl had been raped and, knowing that she had been raped, he raped her. The sentence of six years' detention was unduly lenient. The sentence in his case will be one of nine years' detention in a young offender institution. He played no part in the caustic soda incident.

[44]So far as Muaimba is concerned, we are in difficulty. We consider that the sentence on him should have been somewhat longer, but not to the extent that we think that we should interfere with it. It is noteworthy that at least he had the decency not to have penetrative sex with the victim. Nor can he be blamed for having ignored her screams of distress following the burns that she sustained. In those circumstances, given that his sentence is one of eight years' detention in a young offender institute, we have concluded that we should not increase the sentence by the relatively small amount which would have otherwise have been appropriate.

R v Raymond and Denton

[45]On 8 August 2008, before Her Honour Judge Joseph QC, the appellant Yusuf Raymond pleaded guilty on re-arraignment to one count of kidnap, three counts of rape and one of false imprisonment. On 8 December 2008, before the same judge, O'Neil Denton pleaded guilty to one count of kidnap, three counts of rape and one count of false imprisonment. Raymond was sentenced to four years' detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 for the kidnap; for the three counts of rape, to an extended sentence of twelve years' detention on each count concurrent among themselves, comprising a custodial term of nine years, plus an extension period of three years; and for false imprisonment, to four years' detention under section 91 of the 2000 Act, to run concurrently. In respect of Denton, an order was made for his detention for public protection; so far as the kidnap was concerned, a minimum term of two years was specified; so far as the three counts of rape were concerned, a minimum term of 44 months on each count was specified (to run concurrently); and so far as the false imprisonment was concerned, a minimum term of two years was specified. The judge ordered that the time spent in custody on remand should count towards the sentences. They both appeal against sentence by leave of the single judge.

[46]A separate issue arises in relation to a notification order made by the judge. That does not arise for our consideration. The question of whether such an order is incompatible with the Human Rights Act will be examined later this month by another court. When we know the answer from that court, an appropriate order will or will not be made in relation to the notification order. That is not the issue in this appeal.

[47]There were no less than seven other co-defendants. Weiled Ibrahim was sentenced to a similar indeterminate sentence as Denton, with a minimum specified period of 44 months' detention. Jayden Ryan was sentenced to eight years' detention; Alexander Vanderpuije to six years' detention; Jack Bartle to six years' detention; Monir Benyermak to 45 months' detention; Cleon Brown to six years' detention; and Shilo Moore to 29 months' detention.

[48]The victim in this case was a girl aged 14. She was subjected to no less than twelve separate occasions of oral rape by seven young men. She lived with her parents. She was friendly with the girlfriend of Denton. Denton's nickname was "Hitman". He was 14 years old and the leader of the younger end of a gang known as "The Kingshead Boys". All those involved in this offence were members of, or associated with, that gang.

[49]From time to time Denton and his girlfriend fell out. When they did, she would talk things over with the victim. When the girlfriend made up with Denton she told him that the victim had said that he was ugly and a tramp. This caused great offence. Denton telephoned the victim and told her that he was going to beat her up because of her remarks. She denied ever having made such remarks, but he was not to be placated. One evening in March 2007, when she was out walking near her home, Denton, who was in the company of three members of the gang, Ryan, Vanderpuije and Benyermak, repeated his threats to her. He warned her that if he saw her out walking again he would beat her up and stab her. The victim was so concerned about the threats -- and indeed from some girls with whom she had fallen out -- that she went to live with her grandmother for a time. She returned to her parents' home on 30 April 2007.

[50]The Crown's case was that because she had insulted Denton and then disobeyed his warning that she should not walk out on the streets, she was punished for these perceived insults to him by being repeatedly gang-raped. It is a compelling contention.

[51]After school on 30 April, the victim visited a cousin who lived about ten minutes' walk away. She walked to her cousin's home accompanied by a friend. She left her cousin at about 6pm. It was not dark. Her cousin walked part of the way home with her because she was frightened. Very close to home the two girls separated. The cousin telephoned the victim's mother and told her to look out for her. Although she only had to turn a corner, the victim phoned her cousin and they talked to each other as they walked to their respective homes. As the victim was just about home she was confronted by the two appellants, Ibrahim and Ryan. It is suggested that this meeting was accidental. Perhaps it does not matter, but we find it hard to believe that it was a coincidence that the group of four boys happened to be in this particular spot on the very evening when the victim had returned home from her grandmother's.

[52]Denton shouted to the victim, "Come here!" The victim was frightened. He said that she had been calling him a tramp. She replied that she had not said anything at all about him. The four young men surrounded her and forced her up against a fence. Ibrahim snatched the phone out of her hand and disconnected the call to her cousin. He said to Denton, "Let's get head off her". The victim was very frightened. She knew immediately that he was talking about oral sex. Denton put his arm around her neck, put her in a head-lock and dragged her across the road towards a block of flats. Three others went with him. Raymond was at the front and the two others were behind. She was forced into the stairwell of the block of flats. The young men threatened to beat her up and to stab her. Denton put his hand around her throat and told her to get to her knees or he would stab her. She was crying. She went to her knees in the stairwell. It is sad to have to record that a woman accompanied by a small child walked past, feet away, on the other side of the block. She did not intervene, almost certainly because she was too frightened.

[53]The woman's presence worried the four sufficiently for them to decide to move away from that block. They told the victim to get up. She bravely made a run for it out of the block. She did not get very far. Denton caught hold of her, grabbed her around the neck and once again pushed her head down. The other three surrounded her. They decided to take her to a second block of friends.

[54]In the meantime, the cousin had telephoned the victim's mother. The mother went outside to look for her daughter. Although she saw a group of boys outside the flats holding someone, she assumed that it was merely kids messing about.

[55]The victim was taken to the second block of flats in much the same way as before, partly held in a head-locked and dragged by Denton, but the others played their part. She was taken to a first floor vestibule immediately outside three flats. The area was small and dark. The four young men surrounded her. She was crying and begging them to allow her to go home. While each of them took a turn to keep a look-out, she was orally raped. Ibrahim was first. He told her to get to her knees. He grabbed her hair, held her head and forced his penis into her mouth. After a few seconds she bit him. He let go of her and struck her. He said that if she did that again he would beat her up. Denton said that it was his turn next. He held her head and threatened her. He pushed his penis into her mouth. In the meantime the other young men were laughing at what was happening. Raymond and Ryan took their turn and forced her to take their penises into her mouth. She became aware at some point during the incident that Raymond was using his mobile phone to video some of the sexual assaults on her. They then made her move her trousers and knickers.

[56]A woman entered the vestibule. The defendant who at that stage was acting as the look-out saw her. As she approached her own front door in that vestibule one of the young men ordered the victim to the ground and warned her to say nothing. She was naked from the waist down and crying. One of the boys threw a jacket over her. All four stood around her while she cowered on the ground. The woman walked past within a few feet. She must have seen someone on the floor surrounded by a group of boys. However, she did not stop, ask questions or intervene. Again the only possible explanation for her omission to do anything was fear of what might happen if she did. The victim herself was too afraid to ask for help. The woman went into her flat, which was, at most, ten yards from the victim, and she closed the door. Denton told the victim that she could go. She quickly pulled on her trousers and she ran out of the block and into the street to make her escape.

[57]However, as she made her way back up the road, Denton and Ibrahim again grabbed her from behind. Denton told her she was not going anywhere. They dragged her back towards the block of flats by her hair. She was very distressed and crying. She begged them to leave her alone. By now the group of four had been joined by others, including Moore and Bartle. As they approached another block of flats, the remaining defendants (all of whom were later convicted) arrived. She heard Ibrahim telephoning people and telling them to come to the place to which they had taken her. She knew that she was going to be raped. She could hear them discussing what would happen to her. She heard them say that if they took her to a particular address there would be other older boys there and they would rape her badly and keep her there. It is apparent from CCTV footage that the victim, who was being held in the foyer by all the defendants, was plainly distressed and traumatised. She was so traumatised that she was unable to identify precisely those present in the foyer with her, although she knew them.

[58]The victim was taken to the upper floors and forced into a stairwell. By now there were as many as fifteen boys in the area of the stairwell. Ibrahim told her to get onto her knees. Those who surrounded her included the two appellants and Ibrahim. She was then repeatedly orally raped. Six boys penetrated her mouth on this occasion. Two of them, Raymond and Ibrahim, did so twice. At one stage Raymond was so anxious for his "turn" that he pushed Vanderpuije out of the way and took his place in the queue. He forced the victim to take his penis in her mouth. Another boy penetrated her vagina digitally while this was going on. Raymond ejaculated into her mouth. All the others cheered encouragement to him. While Raymond's penis was in her mouth, Ibrahim held her head.

[59]The Crown's case was that the control of these events throughout was in the hands of Denton and Ibrahim. It was they who decided which young men would rape the victim and in which order. They were both present throughout. They threatened, intimidated and assaulted her. Ibrahim slapped her face and pulled her hair. Another boy banged her head against the wall. Someone threw a bottle of water at her when she eventually left. She was spat upon, ejaculated over and abused while she was on her knees in the stairwell. She was called insulting names. She broke down and wept. She was told that they were "crocodile tears". There were at least twelve separate occasions of oral rape by seven different young men.

[60]The victim's ordeal at the hands of these young men was ended when a boy intervened once he realised what was going on. He said that he would take the girl away. As he attempted to lead her out of the block, the others jostled him, shouted at him and told him that they were not finished. Nonetheless, with considerable courage, he escorted her from the block of flats. He was assisted by Cleon Brown, who was presumably suffering from pangs of conscience. She was eventually re-united with her mother.

[61]Only a small part of these incidents was captured on CCTV, but some of the defendants were identified from the footage.

[62]The events were video-recorded by some of the defendants and those videos were shown to others that evening, shortly after the victim's release.

[63]Later that evening, before anyone had been arrested, Benyermak contacted a mutual friend of the victim and himself on the messaging service. He talked about what had happened to the girl, and he wanted it to be conveyed to her that she must not name him. If he were arrested he would "shank her up" (stab her). He later said that he intended to kill her. Benyermak's nickname was "Corrupt". He said, "They don't call me 'Corrupt' for no reason".

[64]As a result of the identification from the CCTV footage, Denton was arrested at his home on the night of the offences. He was interviewed. He may have been only 14 years old, but he produced a prepared statement in which he denied having sexual intercourse with the girl against her will and falsely imprisoning her. He made no comment to all police questions.

[65]Raymond was arrested the following day and interviewed the day after. He asserted that he had been playing football that evening. He had arrived late on the scene and saw that the girl was giving "blow jobs" to a group of boys he did not know and he left. He had done nothing to her.

[66]At a video identification the victim identified both the appellants and Ibrahim among her attackers. They were also identified by the man who had rescued her.

[67]In a victim impact statement the victim says that her world has been turned upside down. She now feels like a prisoner, looking over her shoulder everywhere she goes. She has bad dreams and is never properly rested. For a long time she had been unable to speak to anyone about her ordeal. She blamed herself and hated herself for not having done more to resist. She has lost all her friends because she has had to move several times. Although she is now at a settled address, she had been unable to attend school and so her education has suffered. The relationship with her entire family has been under severe strain. She was now in the early days of counselling. The hope is that with the assistance of counsellors she could work towards a better future. She is determined to put the offences in context and to try not to let them destroy her life.

[68]Denton was born in July 1992. In 2007 he was made subject to a referral order for four months for destroying property and possessing an imitation firearm in a public place. He was also convicted of theft, as a result of which the referral order was extended to eight months.

[69]Raymond was born in April 1992. He was aged 15 at the time of the offences. In February 2007 he was convicted of robbery, for which a referral order for six months was made. That was an offence which he committed with Weiled Ibrahim. For an offence of possession of cannabis, a conditional discharge was imposed.

[70]Although the previous offences pale into insignificance when compared with the crimes which we must now address, it could not be said that either appellant was of good character.

[71]The pre-sentence report on each appellant is carefully structured. In the opinion of the author of the report on Raymond the level of harm which he posed to the public were he to re-offend in the way he had offended on this occasion would be high. There was concern that he had not removed himself from his group. It is said that he has taken some responsibility for what he did and that he demonstrates some victim empathy and remorse.

[72]In the report on Denton it is recorded that he had committed no previous offences of the kind with which we are concerned. His risk of re-offending was assessed as medium. The author suggested that note should be taken of his age at the time of the offences, and that he had been assessed as having special educational needs. It was noted, too, that he had shown some responsibility by pleading guilty. However, there is an illumination observation within the pre-sentence report. The author records that Denton "clearly regrets his behaviour and his involvement in the offences. However, he also stated that the victim was willing to go along with the boys. When pressed on this, he accepted that this may have been due to the fact that there was a large group of boys and she may have been too frightened to do anything other than go with them. As well as saying that he felt sorry for his victim, he also expressed some anger towards her by stating that she has told lies about him and called him names." 75. "Given Denton's account of the offence, it is difficult to assess his motivation for committing this offence. There would appear to be elements of revenge, sexual gratification and possibly power both over the victim and within the group."

[73]The sentencing remarks of Her Honour Joseph QC demonstrate that she took the most meticulous and impressive care with her approach to the sentencing decisions. She addressed all the issues with great clarity. She bore in mind that she had to reflect the relative criminality of each of the offenders within the overall criminality of the ordeal to which the victim was subjected. There were some who were there at the very beginning and throughout, and others who were there later. She had to distinguish between each defendant and the level of the culpability of each in the context of the fact that each of them was a young man. She reminded herself, and expressly made it clear, that she had in mind the statutory requirements that as a judge sentencing offenders of this age she should, so far as she could, consider the welfare of each young offender. However, at the same time she had to face reality. She was, understandably, profoundly concerned at the gang mentality which infused each of the defendants. They had put aside all considerations of decency in order to participate in, or to be supportive of, the gang. She considered that the two appellants had behaved as though they were above and beyond the ordinary law of the land. She was clearly aware of the awful experience suffered by the victim and the way in which it will impact on her. The judge believed the offences had been committed because Denton thought that the girl had shown her disrespect and that the rest of his friends had been drawn in to punish her, to teach her to keep her mouth shut, and to show others what would happen if they disobeyed. He chose to punish her by kidnapping and imprisoning her, and subjecting her to the offences of oral rape. She stated that the acts of oral rape were "designed to degrade and humiliate, to give a message to her and to send one out to others that no one messed with these boys."

[74]The essence of the submission is that in the case of each appellant the different sentences were manifestly excessive because they did not sufficiently address the fact that both are very young men. There is no question but that the judge addressed the youth of the appellants. The argument is that, although she did so, she did not sufficiently attend to them. On behalf of Denton our attention is drawn to the fact that he pleaded guilty. There is evidence that there was some remorse, and indeed there is some evidence that since his incarceration he has shown signs of improvement and that he is making progress. In the end it is suggested that the judge was wrong to reach the conclusion that he was dangerous for the purposes of making the indeterminate order that she did. Our attention is drawn to the fact that the judge did not rely exclusively on the facts of the offence (although we think she would have been fully entitled to do so), but that she relied on a number of different matters which, it is said, were insufficient if she was not prepared to act on the basis of the facts of the offence to enable her to reach that conclusion.

[75]We have carefully examined those submissions. We are well aware of Denton's age at the time when these offences were committed. We have narrated them in great detail because it is essential to any understanding of the order made by the judge and our conclusion that the facts should be fully understood. We do not propose to repeat what Judge Joseph said to Denton when she passed sentence on him. We endorse everything she said. Her judgment about the level of dangerousness that he presents was entirely correct, in accordance with the evidence, and properly reached. Having reached that conclusion, her decision was right. As to the length of the sentence that would be served before Denton could be considered for parole, we do not regard that as manifestly excessive. The sentence was pitched correctly.

[76]Much the same applies in the case of Raymond. It is said that the dangerousness finding could have been avoided. There is also the further argument that the length of time that he will be in custody, followed by the time that he will be on licence at the end of the custodial period, will be sufficient to cater for any risk to the public he may present without the need for the extended sentence. Added to this, insufficient attention was paid to his youth, and his guilty plea on the third day of the trial.

[77]We disagree. We share the views of the judge. The sentence on Raymond was fully justified. We have carefully read her sentencing observations. We agree with them. We do not propose to add to them.

[78]Leave to appeal against sentence was granted because the single judge was concerned about such severe sentences for such young offenders. He was right to refer the case to this court. These heavy sentences involving young offenders should indeed be reconsidered by the full court. We have reconsidered them.

[79]In those circumstances both appeals against sentence will be dismissed. ______________________________________