Balazs, R v [2014] EWCA Crim 937

[2014] EWCA Crim 937Case No 2013/03720/C1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
The Courthouse
1 Oxford Row
Venue LeedsDate Wednesday 9 April 2014
LS1 3BG
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Thomas of Cwmgiedd)
MR JUSTICE SIMON
and
MR JUSTICE IRWIN
Between
R E G I N ACrownCONRAD NEIL BALAZSDefendant
Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)165 Fleet Street, London EC4Telephone No: 020 7404 1400; Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr A Menary appeared for AppellantMr N P Askins appeared for Crown_- - - - - - - - - - - - - - - - - - - - -J U D G M E N TWednesday 9 April 2014THE LORD CHIEF JUSTICE:
[1]On 13 May 2013 in the Crown Court at Bradford before His Honour Judge Potter and a jury the appellant was convicted of three counts of rape which were all alleged to have occurred on Saturday 1 December 2012. On 14 June 2013 he was sentenced to three concurrent terms of thirteen years' imprisonment. He appeals against conviction by leave of the single judge, who has referred the application for leave to appeal against sentence to the full court.[2]The background can be briefly described. In the second part of 2012 the appellant and the complainant "MT" met each other via a dating site on the internet. They arranged to meet and their relationship eventually developed into a sexual relationship. The appellant stayed at MT's house on a regular basis, up to three or four nights a week and often at weekends.[3]An important feature of the evidence, and relevant to the principal issue before us, was the complainant's evidence that the appellant became increasingly more controlling of her. She said that he would follow her around the house, prevent her from going out to see friends, and would behave aggressively towards her if she protested. Her evidence was that he would swear at her and call her names. On occasion he threatened to break her legs, attack her with a machete or razor and to slash her car’s tyres.[4]That evidence was contradicted by the appellant. He said that they had had an argument, but he had made no threats; it was no worse than that.[5]The material events occurred over the weekend of Friday 30 November to Sunday 2 December when the appellant was staying at MT's home. On the Friday night they slept together and had sexual intercourse. On the Saturday night (the night of the alleged rapes) MT gave evidence that they watched television together. The appellant was drinking and smoking marijuana. He touched her breasts and she told him to stop. They then went to bed together. He put his arms around her. She told him that she did not want sexual intercourse. He continued to touch her breasts and vagina. She told him that she did not want sex. He then straddled her and pulled her legs apart. She was scared but did not say anything. He put his penis into her vagina. He then ask her if she wanted to give him a "blow job". She said no. He put his legs on her arms and, although she said she did not want it, he put his penis into her mouth. After a few minutes he put his penis into her vagina. She told him that she loved him as she wanted to conclude the incident as quickly as possible. After ejaculation he remained on top of her. She told him to get off her, and she went out to brush her teeth. The whole incident occurred over a period of about ten minutes.[6]The following day MT's brother came to visit. She did not tell him what had happened. The appellant stayed on the Sunday night and they had sexual intercourse again. She did not want it, but did not tell him that. On the Monday evening she telephoned 999 and told the police that the appellant had been manipulating her and making threats. She made no allegation of rape. When a police officer attended the following morning she reported her account of what had happened.[7]In addition to that evidence, the Crown relied on the evidence of MT's brother, her son, her sister-in-law and a friend that the appellant had been controlling of the complainant in their relationship. The Crown also relied on the appellant's police interview in which he denied being responsible for the rape. He provided a prepared statement but declined to answer questions.[8]The defence case and the evidence given by the appellant was that he was neither violent nor aggressive, and that he had not tried to control the complainant in any way. There were occasional arguments. He said that on the Saturday night they had been naked in bed together. They had had vaginal intercourse but did not have oral sex. At no point had MT said "not tonight", "No", or "Get off". He said that the sexual intercourse had been entirely consensual. He denied pinning her down with his knees or forcing her to perform oral sex.[9]An application was made by the Crown to admit the appellant's four previous conviction. As subsequently agreed in the admissions put before the court they were as follows:
"1. The [appellant] pleaded guilty at the Crown Court at Leeds on 8 May 1990 to an offence of rape and was sentenced to 42 months' imprisonment. The record of the offence states that on 26 December 1989 the [appellant] (an estranged boyfriend) visits victim at her place of work and forcibly takes her to a nearby car park where he forces her to have sexual intercourse. The [appellant] then falls asleep. Victim makes good her escape. 2. On 22 August 2001 the [appellant] was convicted at Sheffield Magistrates' Court of an offence of assault occasioning actual bodily harm and sentenced to six months' imprisonment. On 25 July 2001 the [appellant] had become abusive and had assaulted the complainant by punching, kicking and pulling her hair after she had returned home after being out with her family. 3. On 4 December 2001 before the Sheffield Magistrates' Court the [appellant] was convicted of an offence of harassment. He was sentenced to three months' imprisonment and a restraining order made. On 25 July 2001 the [appellant] when in prison for an assault on an ex-girlfriend had sent her numerous letters harassing her. On 25 October, following his release, he made threats over the telephone after damaging her parents' window. 4. On 16 April 2002 before the Sheffield Magistrates' Court the [appellant] was convicted of three offences of harassment and was sentenced to a Community Rehabilitation Order for twelve months. On three dates in December 2001 and in January 2002 the [appellant] approached the same complainant and her family and made threats in breach of the restraining order which had been imposed following the conviction on 4 December 2001."
[10]The Crown sought to admit the convictions under the gateway in section 101(1)(c) and (d) of the Criminal Justice Act 2003. The application was opposed by the appellant. The trial judge was asked to make a ruling at the outset of the trial. He concluded that the offences were admissibly under gateway (d) and potentially under gateway (c). He concluded that they were admissible under gateway (d) as they all had features which established propensity relating to offending in relation to an ex or current partner. All of the offences indicated that the appellant wished to have a controlling influence over each of the females concerned and that he behaved aggressively in relation to each of them. As regards gateway (c), the judge considered that gateway (c) might be engaged as it would explain the evidence in the case, namely the way in which MT was able to report the rapes on a particular day within the context of her consenting to sexual intercourse with the appellant in between. He concluded that the admission of these convictions would not have an adverse effect on the fairness of the proceedings, that he would give very strong and strict directions to the jury which would relate to the age of the matters and the fact that they had been committed against women (other than the complainant), and that the jury could properly take them into account.[11]In the course of his summing-up the judge directed the jury solely in relation to propensity. It appears that there was a discussion prior to the summing-up in which he made clear that he would not give any direction in relation to gateway (c). In a very full direction he summarised what the prosecution said in relation to the relevance of the previous convictions, summarised the defence case and gave the usual directions. The critical part of his summing-up was this short sentence:
"... you should decide whether the evidence of the previous convictions makes you sure the defendant does have a tendency or a propensity to engage in violent, threatening and sexual behaviour to assert control over his partner within a relationship, during or after the relationship has ended."
It was on that basis, therefore, that the jury were directed to take the previous convictions into account.[12]In a commendably focused argument the points were crystallised with singular skill. The contentions put forward on behalf of the appellant were: that the original rape was 22 years before the trial; that it was carried out in circumstances that were completely dissimilar; and that it was a single conviction.[13]We have been referred to R v Hanson [2005] 2 Cr App R 21, where the court said that, although there was no minimum number of events necessary to show propensity, a single previous conviction for an offence would often not show propensity, but that it might do so in particular circumstances. We were also referred to R v M [2006] EWCA Crim 3408 (at paragraphs 14-17) and R v Benabbou [2012] EWCA Crim 3088 (at paragraphs 16-24), as illustrations of cases in which this court had concluded that the admission of evidence of a single previous conviction was wrong. It was also said that this was not a strong case; it was, in effect, the word of the complainant against the word of the appellant, in a case in which MT had had consensual sexual intercourse the following night and had not complained to her family or to the police in the immediate aftermath. It was said that the convictions were not capable of demonstrating a tendency to carry out the offence of rape. It was submitted that no violence was involved in the offence of rape, where MT had alleged that threats were made prior to the alleged rapes. Furthermore, although not as old as the convictions for rape, the offences of harassment were again at least ten years old.[14]We have very carefully considered the eloquent submissions. In our judgment the trial judge was right to admit the previous convictions. As we have said, in that one short sentence the judge correctly identified why the previous convictions were relevant, namely that they showed the appellant's propensity to engage in violent, threatening and sexual behaviour to assert control over his partner within the relationship or after the relationship had ended. The single unifying characteristic of the four offences was such behaviour in relation to a girlfriend or former girlfriend during or after the relationship had ended. It is on that basis that, although 22 years old, the conviction for rape was admissible. It was one of those rare cases that falls within what was said in Hanson by the then Vice-President (Rose LJ):
"9. ... A single previous conviction for an offence of the same description or category will often not show propensity. But it may do so where, for example, it shows a tendency to unusual behaviour or where its circumstances demonstrate probative force in relation to the offence charged ..."
[15]In our judgment the four previous convictions are linked in that way. They had probative force and the judge's direction to the jury properly set them in context. It is for that reason, therefore, despite the attractive way in which the argument was presented to us, the appeal fails and must accordingly be dismissed.[16]We turn to the appeal against sentence. In his sentencing remarks the judge said that the relationship had developed so that the appellant controlled and dominated MT, just as he had previously sought to control and dominate other sexual partners. The judge referred to the fact that the appellant had prevented her from seeing her friends and her family. When she objected to that, he abused her in a way that had caused distress. The judge found that the appellant had made the threats to which we have earlier referred, namely, threatening to cut her neck with the razor. When MT said that she was scared and when she told the appellant of this, she was threatened again.[17]The judge described the appellant's actions of 1 December as "brutal" and "domineering". He took the view that MT was traumatised by what she had endured. He concluded that, on any view, the rapes amounted to a sustained attack against a background of intimidation and coercion. He considered that the previous convictions, coupled with the offences against MT, portrayed the appellant as a determined sexual offender who sought to control and dominate partners through threats, violence and violent assaults. He presented a significant danger to anyone who might form a relationship with him. The judge was of the view that the offence fell within the second category, which has a starting point of eight years and a range of six to eleven. However, he considered that, because of the previous convictions and the violence demonstrated, an appropriate sentence of 13 years' imprisonment on each count was called for.[18]The judge had before him, as we have, the victim personal statement. It sets out in eloquent terms the effect that the offences have had on the complainant. She had become reclusive and found relationships difficult.[19]On the appellant's behalf, it was accepted that the judge was correct to determine that the case fell within the second category to which we have referred. However, it is said that the judge had engaged in double counting; that there was no basis on which he should have gone outside the bracket indicated; and that this was a case which fell within the middle of the range.[20]We consider that there is force in the submissions that have been made. In reality, although properly charged as three counts, the offending was one episode. Although unpleasant and devastating to the complainant, it did not display the unfortunate characteristics that this court has the experience of seeing in so many cases of this kind.[21]The aggravating features of the case can be counterbalanced by the mitigating features which are evident from what we have said.[22]Taking the two together, we consider that the appropriate sentence in this case was one of eight years' imprisonment on each count, to run concurrently with each other.[23]We would add one further observation. Counsel have put before us a number of authorities that purport to show how the guideline is operated. We repeat yet again that authorities on how the guidelines operate are of no assistance to this court and must not be cited.[24]For those reasons, therefore, we quash the sentence of 13 years' imprisonment on each of the counts and substitute therefor a sentence of eight years' imprisonment on each of the counts, each to run concurrently with the other. All the other orders made by the judge remain.