Attorney General's Reference No. 77 of 2010 [2011] EWCA Crim 636

[2011] EWCA Crim 636

Case No 2010/06662/A6

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Wednesday 2 March 2011

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 HENRIQUES

and

MR JUSTICE DAVIS

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ATTORNEY GENERAL'S REFERENCE No. 77 of 2010

UNDER SECTION 36 OF

THE CRIMINAL JUSTICE ACT 1988

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- v -

Between

MITCHELL MOIR

__________________

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Mr A Edis QC appeared for Attorney General

Mr D A Evans appeared for Offender

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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 he considers to be unduly lenient. We grant leave.

[2]The offender is Mitchell Moir. He is aged 21, having been born on 17 December 1989. He is of good character.

[3]On 10 November 2010, at Exeter Crown Court, before Mr Justice Jack and a jury, he was convicted of rape. He was sentenced to three and a half years' detention in a young offender institution. On 12 November 2010, exercising his powers under section 155 of the Powers of Criminal Courts (Sentencing) Act 2000, the judge reduced the sentence to two years' detention.

[4]In summary, the victim was a young woman with whom the offender had had a sexual relationship in the course of which she became pregnant by him. She had a termination of pregnancy two weeks before the offence was committed. She gave evidence at trial that before that date she had made clear to the offender that as far as she was concerned, although they were still friendly, they were no longer in a sexual relationship. The offender's evidence at trial was that he did not know for sure where he stood. On 6 September 2009 he was staying the night at the victim's house. He asked her whether he could sleep with her. She told him that he should sleep downstairs on the sofa. She then went up to her own bed and fell asleep. While she was asleep the offender went into her bedroom. She was wearing knickers and nothing else. He removed his own clothes and he raped her while she was asleep. She did not wake up; but the following morning she realised that somehow she had had sexual intercourse while she was asleep because her genital area felt sore and she found semen in her vagina.

[5]In a little more detail the facts were these. The offender had been separated from his family because of family troubles. They had resolved themselves. The victim was not ready for a permanent commitment but the offender was apparently in love with her. A sexual relationship began between them. At one stage she told him that she was falling in love with him. In early August she discovered that she was pregnant. Initially she wanted to keep the child, and she told the offender that she did. But then she decided to have a termination of pregnancy. She underwent the operation two weeks after she discovered that she was pregnant (and two weeks before she was raped).

[6]On the night of the offence, the offender was staying at the victim's house babysitting for her child while she went out for the evening. On her return he asked if he was coming up with her. She said, "No, you know the rules". She went to the bathroom to undress. He went into her room and she found him under the duvet on the floor. She told him to leave. She told him, too, that she would never sleep with him again. There was then a long discussion in the course of which the offender became tearful and he went downstairs apparently to spend the night there.

[7]The victim went to sleep in the early hours of the morning. At about 6.10am she was woken by the child in the bedroom next to hers. She called out to the offender to see to the child. She fell asleep again. She woke up at about 9.45am. She felt sore. She found the offender was in her room and she told him, "God, I'm really sore", to which he responded, "Why would that happen?" By then he knew that he had had sexual intercourse with her while she was asleep. She went to the lavatory. She then knew what had happened because she found semen on the lavatory paper.

[8]It is worth reciting at this stage how the trial judge believed that the incident had unfolded. In his sentencing remarks on 10 November he said this:

"In the morning, while she asleep, you went into her bedroom to get some clean clothes; you had clothes in a drawer in her bedroom. She was lying on the bed asleep, uncovered, wearing only her knickers. You took advantage of the situation to have sex with her. She did not wake. How long it lasted I do not know, but it was enough to make her sore, and your semen was found on swabs taken from her."

In the judge's view it was something on which the offender had decided on the spur of the moment. The only two further facts to be added are that the act of intercourse took place without the offender using any form of contraception and that he had ejaculated.

[9]The victim contacted her mother, who called the police. She sent a series of text messages to the offender asserting that he had had sexual intercourse with her. To begin with he denied it. He then sent a text to the effect that, as a joke, he had "poked" her in the vagina to see if she would wake up. He later texted:

"I'll be honest, I didn't have sex with you but I did go to wake you. Then it was like no, we are not fuck buddies any more. I penetrated for a second and I'm really sorry. I'm panicking like shit. Please don't get me arrested. I won't even talk to you again if you want that."

[10]The victim said to the police, and she made it clear throughout -- and it seems to have been the position she maintained from start to finish -- that her complaint was not of being upset; she was angry. She said that she had trusted the offender with her son and she had trusted him in her house.

[11]The offender was arrested and interviewed under caution. He denied rape. He asserted that he had penetrated the victim with his penis unintentionally. He said that he had gone upstairs in response to her request that he look in on her son and then wake her up later at nine o'clock. He went to the bathroom to freshen up. He said that he had entered her bedroom in order both to wake her up and to change his underpants after washing because he had clothes in the drawer in the bedroom. He then said, "Um, 'cos of the intimate relationship we had before as, just for a laugh, I went to, um, I went to try and wake her up by having sex with her, but I didn't actually do it". He said that he had moved her knickers to one side as she lay on her back in bed and positioned his body above hers and then, with his penis very close to her vagina, he decided not to penetrate after all, but at the same time, in her sleep, she had pulled him towards her and that as a result his penis had penetrated her vagina. He said that he was unclear about how long penetration had lasted. At one point he said that he had penetrated her for less than thirty seconds before he "just like sort of stopped and tried to wake her up again". At another point he said that penetration had lasted less than a couple of seconds because he had moved immediately backwards so as to stop. He agreed that he had not used a condom. Initially, he denied ejaculation and later said that if semen were to be found inside her vagina, that would be because he sometimes ejaculated prematurely and he could not be sure whether that had happened on this occasion.

[12]It is recorded that on 6 and 15 September 2009 he wrote letters of apology to the victim. However, an examination of the evidence shows that he also subsequently wrote one or two unpleasant messages to her on a Facebook print-out.

[13]The case proceeded as a trial. It is difficult to see what possible defence there might have been. In truth, as the judge said, the defence advanced was nonsense. Still, that was the offender's decision. He chose not to plead guilty. The jury considered the evidence and decided that the case was proved.

[14]There was no pre-sentence report, although a letter from the offender's stepfather was placed before the judge. It contained a number of matters of mitigation and the judge referred to it and considered it.

[15]In his sentencing remarks on this aspect of the case, the judge first of all dealt with the facts of the offence. He addressed the suggestion that the offender intended to have sexual intercourse with the victim only if she were agreeable to it. As we have earlier recorded, he said that the suggestion of accidental penetration was nonsense and that it was most unfortunate that the offender could not bring himself to accept the advice that he had been given. In addressing the facts, the judge said that the act was entirely wrong but he doubted that it could properly be described as malevolent. He then went on to say that some mitigation was provided by the fact that the victim was asleep and unaware of what was happening to her, and that it was only when she woke up that she realised what must have occurred. He then described that she had been shocked and angry at what she had found and noted that her distress was very much less than it often is in these cases. That view was confirmed by the demeanour exhibited by the victim during the video which was made to record her evidence the following morning, when she indeed made it plain that she was more angry than upset.

[16]The judge went on to identify some of the immediate consequences of the arrest. He believed that the offender had been very severely affected by the case. Twice since his arrest he had tried to take his own life. The judge therefore concluded, the offender now being back at home living with his mother and his stepfather and in permanent employment, that he should pass a sentence at the lower end of the scale. He considered the definitive guideline of the Sentencing Guidelines Council on Sexual Offences and he passed the sentence of three and a half years' detention in a young offender institution.

[17]Two days later the case was listed again. The judge said that he had originally described the circumstances of the offence as "unusual". He went on to say that he could have said that they were "very unusual". He made it clear that he did not question the verdict of the jury. On the evidence before them "a guilty verdict was the only verdict open to them if they were to be true to their oath". He reminded himself of the guideline that the sentence of three and a half years' detention was already "below the suggested range". He then returned to address the fact, amply established, that none of the guidelines constitute straitjackets and that judges should have the courage to depart from guidelines where it was right to do so. Addressing the facts of the case he said:

"The medical evidence shows that there was penetration, that there was ejaculation; but as I have thought about the case, the more incredible it seems to me to be that there could have been anything beginning to approach a normal act of intercourse on your part without her waking. By 'normal' I do not of course include 'consensual'. Whatever happened must have been very brief."

[18]The judge then examined the guideline which suggests the approach to be taken by sentencing judges where there has been penetration other than by the penis. Having reflected on these matters and considered the offender's culpability he came to the conclusion that no real harm was caused and therefore, in accordance with section 143 and 153(2) of the Criminal Justice Act 2003, the shortest sentence possible must be passed and the sentence would therefore be one of two years' detention.

[19]Much of the reasoning identified in the sentencing remarks, and the further sentencing remarks, is criticised on behalf of the Attorney General. But in the end the real difficulty with the way in which the judge made the observations that he did can be simply expressed: the offender raped the victim. She was not aware of the rape and she was therefore not frightened or fearful; she did not seek to fight off the rapist. The penetration cannot have lasted for a very long time, although it was sufficient in whatever form it took, to have made her sore. But the fact that she was asleep does not constitute mitigation any more than it would have been mitigation if she had been unconscious through drink.

[20]There is no scope for much jurisprudence on this issue. It is true that the victim will not remember the precise circumstances of what is always a ghastly experience. But, on the other hand, she was the victim, and she knew perfectly well that she had been the victim of a gross breach of trust. It made her angry. She was fully entitled to be angry at what had happened.

[21]In the end a sentencing judge must reflect what actually happened and the circumstances in which the offence of rape took place. In this case the rape occurred just two weeks after the victim's pregnancy by the offender had been terminated; she had made it clear to him, quite unequivocally, that she did not want to have a sexual relationship with him; and in the course of the incident of rape he put her at risk of another pregnancy when she did not want to become pregnant, and certainly did not want to be pregnant by him.

[22]We are unpersuaded that any mitigation arises from the fact that the victim was asleep. We are equally unpersuaded that there was any mitigation arising from the fact that her reaction was anger rather than distress. Nor are we able to accept that no harm was caused by this act of rape. The circumstances certainly were unusual. We accept and acknowledge it.

[23]However, having reflected on the fact that the circumstances were unusual, in a case which proceeded as a trial during the course of which the victim had to give evidence about what she remembered, with no guilty plea a sentence of three and a half years' detention might very well have been regarded as unduly lenient. A sentence of two years undoubtedly was.

[24]The appropriate sentence in this case is a sentence of five years' imprisonment, as it will be, the offender now being 21 years old. We therefore substitute for the sentence of two years' detention in a young offender institution, a sentence of five years' imprisonment. ________________________________