No: 2019 02869/02871 B3 IN THE COURT OF APPEAL CRIMINAL DIVISION[2020] EWCA CRIM 197Venue Royal Courts of Justice Strand London, WC2A 2LLDate Tuesday 11 February 2020B e f o r e:LADY JUSTICE SIMLER DBEMR JUSTICE LAVENDERVenue THE RECORDER OF MANCHESTERHIS HONOUR JUDGE STOCKDALE QC
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R E G I N ACrownv
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GAVIN MICHAEL KIRKHAMComputer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd Lower Ground, 18-22Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.Mr Christopher Harding appeared for AppellantJ U D G M E N T(Draft for approval)
[1]imposed.[2]same single judge. We deal with the conviction application first.
The facts
[3]40th birthday. The appellant was then in a relationship with the paternal aunt of the victim of the offences, to whom we shall refer as 'AB', and AB attended the party with her boyfriend intending to stay the night in the appellant's spare room with her boyfriend. AB[4]was then 17 years old.[5]throughout the period of the incidents to which we now refer. The appellant pulled up her skirt and touched her vagina over a bodysuit and her underwear (count 1). He then moved his hand underneath her clothing and penetrated her vagina with his fingers (count 2). The appellant then left the room briefly (AB thought for about 10 seconds) before returning and trying to kiss her on the lips. She did not respond. He pulled up her bodysuit, kissed her breasts and licked her vagina (count 3). He adjusted her clothing slightly and again left the room. When he returned shortly afterwards he continued to try to kiss her and lick her vagina. He then removed his penis from his trousers and inserted it into her mouth (count 4). As she was not responding he tried to penetrate her vagina with his penis but did not fully penetrate her and did not ejaculate (count5). She recalled him going away to check the door, before coming back and continuing to assault her. He then penetrated her vagina with his fingers again, before leaving the room. He did not subsequently return to the bedroom.[6]arrested the appellant at around 8 am on 14 August 2016.[7]if at any point he thought she was not consenting he would have stopped.
The trial
[8]all the sexual activity was consensual.[9]denied he had developed a sexual interest in her.[10]and on positive good character evidence from his employer and a former manager.[11]and it was admitted.[12]indictment in order to determine their verdicts. Ultimately the issue for the jury at trial in light of the stark conflict, was whether they could be sure that the sexual activity had occurred as alleged, that AB had not consented and that the appellant did not reasonably believe she was consenting. The section 41 applications[13]glisten on my boobs". The judge refused the applications. She held that the medical findings were wholly equivocal and neutral; they had no relevance to the case whatsoever. Secondly, she held that whether or not AB was in a sexual relationship with her boyfriend had no relevance to the
appellant's belief that she would consent to sexual activity with him. She continued:
[14]"Bearing in mind the complete conflict in the accounts between each of them about how she reacted to the sexual activity, whether she was sexually experienced or not is, in my judgment, of absolutely no relevance to the defendant's reasonable belief as to whether she was consenting. ... She does not assert she was a virgin so that this needs rebutting. She simply says that she lay flat on her back and let it happen because she was scared ... Her previous sexual experience is of no relevance, nor is it admissible ..."[15]mind when the sexual activity subsequently occurred and she continued:
"Any such comment or flirtatious behaviour cannot provide a reasonable ground for believing that she would have any sexual activity with the defendant, let alone full sexual intercourse."
The judge found that the intended questioning fell foul of section 41(3)(a). She found that it was not so similar to the sexual activity which occurred, and nor was it part as part of the event which was the subject matter of the charge. There was not the necessary temporal nexus between the flirtatious behaviour or comment taking place and the sexual activity.[16]an invitation to sexual activity.[17]drunk.
The conviction application
[18]evidence was determinative.[19]circumstances.[20]relevant.[21]observed the video the defence sought to adduce and concluded that it was of limited assistance. We are quite satisfied that the judge was in the best position to determine to what extent, if any, the video could assist the jury and did so without arguable error or unfairness. In our judgment these convictions are not arguably unsafe in the[22]circumstances and this application falls accordingly to be refused.
Appeal against sentence
[23]report was obtained before sentencing, for good reason.[24]destroyed family relationships for her, with her aunt, her grandfather and her young cousin.[25]circumstances.[26]contemplated by the harm aspect of the guideline.[27]the circumstances.[28]"particularly vulnerable due to personal circumstances". In our judgment, though she was undoubtedly a vulnerable young woman, we can see no proper basis for concluding that she was particularly vulnerable as contemplated by the harm aspect of the Definitive[29]Guideline. We consider that the rapes fell properly into category 3A of the guideline, as[30]Mr Harding has submitted. That means a starting point of 7 years, with a range of 6-9 years for a single offence. Taking that starting point, it seems to us that the aggravating features identified by the judge would justify an increase above the starting point. In addition, there has to be an upwards adjustment to reflect the fact that this was not a single offence of rape but that AB was raped in different ways and was also sexually assaulted several times. It seems to us that the judge was entitled and correct to reflect the whole course of sexual offending on count 5 and to make all other sentences run concurrently. Adopting that approach and weighing all of the aggravating factors to which the judge referred and which we have just summarised, and the matters of personal mitigation available to the appellant, in our view the appropriate sentence after a trial in this case was one of 10 years. A sentence of 10 years is commensurate with the[31]seriousness of this course of criminal conduct and proportionate.
Conclusion
[32]appeal against conviction is refused for the reasons we have already given. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: Rcj@epiqglobal.co.uk