Attorney Generals Reference No. 120 of 2009 [2010] EWCA Crim 576

[2010] EWCA Crim 576Case No 2009/06874/A5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday 10 March 2010
The Strand
London WC2
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)
MR JUSTICE COLLINS
and
MR JUSTICE GRIFFITH WILLIAMS
Between
R E G I N ACrown
ATTORNEY GENERAL'S REFERENCE No. 120 of 2009
UNDER SECTION 36 OF
THE CRIMINAL JUSTICE ACT 1988
- v -
Between
KENNETH WRIGHT
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Mr P Wright QC appeared for Attorney GeneralMiss T Macfarlane appeared for Offender
J U D G M E N T

THE LORD CHIEF JUSTICE:

[1]This is an application by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988 for leave to refer to this court a sentence which she regards as unduly lenient. We grant leave.[2]The sentence was imposed at Bristol Crown Court by His Honour Judge Ticehurst on 1 December 2009.[3]The offender is Kenneth Wright. He is 25 years old and a man of good character with positive references. On 10 November 2009 he faced an indictment alleging a single count of rape. An amendment to the indictment on the date of trial alleged an assault by digital penetration, contrary to section 2 of the Sexual Offences Act 2003. The offender pleaded guilty to that count. The plea was accepted by the prosecution. No further written basis of plea was tendered on his behalf. The sentence imposed was a Community Order for a period of three years. He was also required to attend a Sexual Offenders Programme for a period of 60 days, and a Prohibited Activity Order under section 203 of the Criminal Justice Act 2003 was imposed which prohibited the offender from making any contact with the victim of his crime.[4]Shortly, the facts were these. The victim was a young woman aged 20 at the date of the offence. She lived with her parents and her family. The offender was a friend of the family. On occasions both before the date to which we shall come in a moment and on the occasion of the barbecue held at the family home on 7 June 2009, the offender had intimated both to the victim and to members of her family that he was very attracted to her. She made it plain that his feelings for her were not in any way reciprocated. However, he remained a friend of the family and he was invited to the family barbecue on the evening of 7 June.[5]The barbecue was a great success. A good deal of alcohol was consumed. The offender was affected by drink and the victim of the sexual offence was considerably affected by drink. She was physically unwell and she vomited. Her state of intoxication was obvious to everyone present, including the offender. Gradually the party came to an end. Various guests left and some members of the family retired to bed. The offender remained at the premises together with other members of the family and the victim.[6]Eventually the victim found herself in the games room at her home. At some stage she fell asleep on the pool table and later she fell asleep on a sofa in the games room. At that stage she was alone in the room, lying face-down on the sofa. The offender entered the room and pulled down her trousers and underwear as she slept. He exposed his penis, touched the lips of her vagina with it and masturbated himself with a view to achieving an erection. He was unsuccessful. He then digitally penetrated the young woman's vagina while he lay on top of her. She woke up and found herself lying on her front, being penetrated. She thought she was being raped. She immediately resisted. She shouted at the offender to stop. He desisted and withdrew his finger. She dressed herself and reported the incident to her mother. She and her mother confronted the offender. He denied any impropriety. The victim and her mother left their home on foot and went straight to the police. The offender remained at their home for a short time and eventually returned to his own home.[7]The offender was arrested in the early hours of the morning at his home. He was interviewed. In the course of the interview he admitted that he had placed his flaccid penis on the lips of the victim's vagina in order to achieve an erection. He admitted, too, that he had digitally penetrated her. He denied that she had been asleep before the incident and stated that the sexual activity had been consensual. That was not accepted by the prosecution. Nor was it advanced as a form of mitigation on behalf of the offender. Later in the interview he said that he realised that the victim had been severely affected by drink and conceded that she may not have been in a position to give any informed consent to sexual activity.[8]A report before the judge suggested that the offender maintained something of the account he had given in interview, much of which was inconsistent with the guilty plea which he was eventually to tender. The risk of future sexual offending was assessed as low, although there may be problems if alcohol were misused. The recommendation was a non-custodial sentence.[9]Unsurprisingly, immediately after the offence the victim was severely affected in her confidence and her independence. She felt self-conscious. She avoided socialising and disliked any form of physical contact. A further consequence was that she had to undergo a course of hepatitis B injections because of the assault.[10]The Attorney General points to the following aggravating features. The victim was vulnerable. She was asleep in her own home. The offender was allowed into her home because the family trusted him. There was therefore an abuse of trust by him. The assault was accompanied by the additional sexual indignity that the offender's exposed penis had been placed against the lips of the victim's vagina, and he had masturbated in order to achieve an erection.[11]The following mitigating features are acknowledged to be present. The offender was a man of good character. He entered his plea of guilty at the first available opportunity.[12]When the judge came to pass sentence, he acknowledged the guilty plea and the time at which it was tendered. On the evening of the offence the offender's behaviour was appalling. He said:
"You were well aware that the young lady was worse the wear for drink and you took advantage of her, and you did so because of your views as to her and your desire for her. You took no account whatsoever of her feelings or of her position ...." 13. "
The fact that you were both very much the worse for wear for drink and that that was not plied by you into the victim with a view to raping her ...." That, in our judgment, constituted the misdirection.[13]The problem to be addressed in this Reference arises from the way in which the judge considered the issue of the drunkenness of the victim. It was not a case where, because she had consumed too much drink, the victim consented to sexual activity which, if she had been sober, she would have refused. In this case, despite the drink she had taken, the victim did not consent. She never gave the offender the slightest reason to believe that she would or might consent. She was defenceless, in her own home. The offender took advantage of her vulnerability to molest her when he knew perfectly well that she would not have agreed and did not agree to sexual familiarity of any kind.[14]When, for whatever reason, a woman is too ill or unfit to consent to sexual familiarities, she is not consenting. We cannot emphasise too strongly that in such circumstances she must be left alone. The exploitation of her vulnerability would be, and in this case, particularly as she was at home is an aggravating, not a mitigating, feature of the crime.[15]Our attention has been drawn to two features since the sentence was imposed. First, to the credit of the offender he has approached the orders imposed by the judge in a fully co-operative way. He has complied with every aspect of the order and has made progress in that context. The second feature is that the offender has recently been the victim of a serious assault. It is, we are told, unconnected with the crime to which the offender pleaded guilty. On Boxing Day 2009 he was attacked in a public place when he was on his way home. He sustained a broken nose, a shattered jaw and lost one and a half of his teeth. He underwent a seven hour operation in hospital. In addition to the injuries we have mentioned, he sustained numerous external lacerations and internal lacerations which were the result of the surgery and for which he received treatment by way of stitches. It is said in the report that one consequence of the violence to which he was subjected is that he has greater insight into the impact of his crime on the victim of it.[16]We have taken those matters into account, but we consider that this sentence was unduly lenient and seriously so. In our judgment there was no justification for the failure to impose a custodial sentence on the offender. We have taken into account all the matters drawn to our attention, including the events since the order made by the judge, but we consider that the appropriate sentence now to impose is one of 18 months imprisonment. Accordingly the Community Order will be quashed and a sentence of 18 months imprisonment substituted for it.[17]The sentence will run either from today, if the offender surrenders today, which is preferable, or from tomorrow if he does not surrender until tomorrow. MISS MACFARLANE: My Lord, I have spoken to the offender and to his father today. The offender has given me his word that he will hand himself in to his local police station today. THE LORD CHIEF JUSTICE: Do you know where that is? MISS MACFARLANE: I believe the police station he has chosen is Southmead Police Station. I do not know the post code. It might not be the closest, but it is his preference. 19. ___________________________