R v Terrence Barrett [2025] EWCA Crim 840

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IN THE COURT OF APPEAL
Venue Royal Courts of JusticeDate Friday, 6 June 2025
Strand
London
WC2A 2LL
Before
LORD JUSTICE WILLIAM DAVISMRS JUSTICE FARBEY DBEHIS HONOUR JUDGE PICTON(Sitting as a Judge of the CACD)REFERENCE BY THE ATTORNEY GENERAL UNDERS.36 OF THE CRIMINAL JUSTICE ACT 1988
Between
REXCrownV
Between
TERRENCE BARRETT__________Computer Aided Transcript of Epiq Europe Ltd,Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JETel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)_________MISS C HOLE appeared for Attorney GeneralMISS D PIGOT appeared for Offender_________J U D G M E N TLord Justice William Davis delivered the judgment orally at the conclusion of the hearing on 4 June 2025.Following his death, the judgment has been approved by Mrs Justice Farbey.
[1]The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall, during that person's lifetime, be included in any publication if it is likely to lead members of the public to identify that person as a victim of the offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.[2]On 28 January 2025 at the Central Criminal Court, Terrence Barrett was convicted of rape and assault by penetration. This followed a retrial. He had been tried in October 2024 when the jury failed to agree. On 12 March 2025 he was sentenced to a total of six years' imprisonment. That was the sentence imposed for the offence of rape. A concurrent sentence of three years' imprisonment was imposed in relation to the assault by penetration. His Majesty's Solicitor General now applies to this court to refer the sentence as unduly lenient, pursuant to section 36 of the Criminal Justice Act 1988.[3]On 21 September 2019 the offender (then in his early fifties) went to a party at his daughter's house. Various young people were at the party, including the offender's eventual victim, to whom we shall refer as C1. Everyone present drank a substantial amount of alcohol. At some point C1 took some cocaine. By the early hours of the following morning most people had left. The offender's daughter had fallen asleep on a sofa. C1 went up to the daughter's bedroom and got into the bed. This was something she had done on many occasions in the past. She fell into a drunken sleep wearing her underwear and a leotard.[4]The offender subsequently went to his daughter's bedroom. He saw C1 in the bed. He spoke to his daughter. She told him to get C1 out of the bed so he could sleep there. The offender did not do that. Rather, he went to the bedroom. He got into bed with C1, who was asleep. He digitally penetrated her vagina with his finger. He got on top of her and began to have full sexual intercourse. C1 awoke to find the offender penetrating her with his penis. She immediately jumped out of the bed and ran to another room. Shortly afterwards the offender left the house.[5]The next morning C1 told one of the other girls at the house that the offender had raped her. She then went home. On arrival at her home she was distressed and hysterical. Her mother called Rape Crisis where C1 was examined and from where she contacted the police. On physical examination C1 had bruising to her knees, arms, inner thigh and left buttock.[6]The offender was arrested and interviewed on 29 October 2019. He accepted that on the night in question he had been at his daughter's house. C1 had also been at the house. He had expected to stay the night. When he went up to his daughter's bedroom he found C1 in the bed. He had got into the bed fully clothed. He had put his arm around C1. He had kissed her. She had been responsive. Therefore he took out his penis and had full sexual intercourse with her. He had also put his finger into her vagina. Shortly thereafter, C1 had got out of the bed and left the bedroom. He had decided to go home a short time later.[7]For reasons which were never explained in the course of the criminal proceedings, the offender did not make his first appearance at the Magistrates' Court until 11 October 2022. The first date fixed for trial in the Crown Court was July 2023. That date was vacated on the application of those representing the offender. The trial was refixed for 28 May 2024. In the event, the court were unable to accommodate the case on that day. So it was that the first trial was listed in October 2024 with the retrial taking place in January 2025.[8]At the sentencing hearing C1 read her victim personal statement dated February 2025. It began with these words:
"It's hard to put into words the devastating impact that being raped has had on my life over the past five years. Before that day, I was a confident, fun-loving woman in my early 20s - full of dreams, optimism, and a bright future ahead. But [in September 2019] my world was shattered by an act of sexual violence that I will never be able to forget."
[9]She went on to say that she suffered night terrors and was in a constant state of fear and exhaustion. She also suffered from depression and suicidal thoughts. She stated that she had lost her sense of self-worth, her confidence and her ability to feel safe. She struggled to trust men and to form relationships and to experience intimacy. She had been unable to pursue her career. She had lost friendships and her social life which had been vibrant. She had undergone counselling and intensive cognitive therapy. She had recently had time off work as a result of post-traumatic stress disorder. She concluded by saying:
"He stole years of my life - the best years of my 20s - leaving me with nothing but unimaginable pain and suffering. Time I can never get back."
[10]The judge did not have any report in relation to the offender. A letter he had written was provided to her. In the letter he said that he was working tirelessly to better himself and to rid himself of the behaviour that had led him to this point. However we note that the letter also said that clearing his name and proving his innocence was crucial to his rehabilitation.[11]In her mitigation, his counsel relied on his good character. Although he had been convicted of criminal offences when he was a much younger man, he had no recent convictions of any significance and no convictions at all for sexual offences. Counsel also set out that the offender had suffered significant ill-health since March 2022 when he had suffered a stroke. Thereafter he had been diagnosed with depression and anxiety and had become addicted to drugs and alcohol. In 2024 he had suffered fractures of his back and his leg when he had fallen off a ladder. It was said that in consequence the delay in the course of the proceedings had affected him significantly.[12]The judge took the offence of rape as the lead offence. The sentence imposed on that count was intended to reflect the entire criminality of the offender. In relation to the offence of rape, the judge concluded that it fell at the top of the category range for a Category 3B offence, the range being up to seven years' custody. She concluded that the offence did not fall into Category 2 harm because the psychological harm suffered by C1 was significant but not severe. The judge took into account the vulnerability of the victim - the fact that she was drunk and asleep - as an aggravating factor, that being the way in which the prosecution had approached this issue. The judge adopted the same approach to the offence of assault by penetration, where a Category 3B offence has a starting point of two years' custody with a category range of up to four years' custody. The judge reduced the sentence on the count of rape by 12 months to take account of mitigating factors, namely good character, the effects of delay and the offender's poor health.[13]His Majesty's Solicitor General argues that the sentence was unduly lenient. She cites three errors made by the judge. First, she failed to take account of the particular vulnerability of C1 when considering the appropriate category of harm; second, she understated the level of psychological harm suffered by C1; third, the reduction in the sentence to take account of mitigation was excessive.[14]On behalf of the offender, it is said that the judge was entitled to use the vulnerability of the victim as an aggravating factor, as is set out in the relevant guideline. The judge had seen and heard C1 give evidence, thus her assessment of the degree of psychological harm should be respected. There were mitigating factors as found by the judge. It was a matter of judgment as to the appropriate reduction in sentence resulting from those factors. In all of those circumstances, it is accepted that the sentence could be regarded as lenient but not unduly lenient.[15]The correct formulation of what amounts to an unduly lenient sentence is still that provided by the then Lord Chief

Justice in Attorney General's Reference No 4 of 1989 [1990] 1 WLR 41, 46A:

"A sentence is unduly lenient, we would hold, where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate."
[16]The issue for us is whether the total sentence of six years' imprisonment was one not reasonably open to the judge.[17]We are satisfied that the judge fell into error when she categorised the offences as being Category 3B. The offences fell into Category 2B in the respective guidelines. C1 was particularly vulnerable due to her personal circumstances, namely the fact she was in a drunken sleep. She awoke to find that she was being raped by the offender. The combination of circumstances established particular vulnerability for the purposes of the respective guidelines.[18]We acknowledge that the judge was not given the assistance to which she was entitled by the prosecution in the court below. Their submission was that the vulnerability of the victim was an aggravating factor rather than a harm factor. His Majesty's Solicitor General is not bound by any submission as to categorisation made by the prosecution in the Crown Court. If an error was made, albeit as the result of a judge being misled, she is entitled to apply to this court to correct the error: see Stewart [2016] EWCA Crim 2238. But there is a process that His Majesty's Solicitor General should follow if she wishes to rely on Stewart. Davies LJ explained it in this way:
"36. … [W]here the Attorney-General or Solicitor-General does in any particular reference seek to depart from a concession or acceptance made below by counsel for the prosecution in the Crown Court, either as to the correct level of categorisation under any relevant guideline or as to the existence or absence of aggravating or mitigating factors, then this should be clearly and expressly flagged up in the text of the Final Reference itself, with reasons given for so departing from the concession made below."
[19]That was not done in this instance. We have concluded that that should not prevent us from considering this sentence on the basis of a proper categorisation of the offences. The Final Reference does make the position of His Majesty's Solicitor General clear as to how the vulnerability of C1 should have been treated by the judge. It is implicit that she wishes to depart from the approach taken below because it was plainly wrong. Nonetheless, we note that it was not helpful for the Final Reference to leave implicit what should have been explicit.[20]We also consider that the victim personal statement of C1, to which we have referred already, established that she had suffered severe psychological damage, namely sufficient damage to bring the case within harm Category 2. We acknowledge that the judge had had the advantage of having seen and heard C1 give evidence. However, we do not consider that this provided her with assistance in relation to the psychological harm suffered by C1. That was not the focus of her evidence in the course of the trial and the retrial. What matters in relation to psychological harm is the substance of what C1 said in her victim personal statement. In our judgment we are in as good a position to judge psychological harm based on that as the judge was.[21]We further accept that the distinction between "severe" and "significant" does not involve a bright line. The exercise of distinguishing between the two is an evaluative one. However, we have read the victim personal statement. In our view it only admits of one conclusion. What C1 described was severe psychological injury. Unlike many such statements the victim personal statement was able to draw on C1's actual experience over a period of some five-and-a-half years. It established unequivocally a causal link between the offending and the psychological injury.[22]A Category 2B offence of rape has a starting point of eight years' custody with a category range of seven to nine years. A Category 2B offence of assault by penetration has a starting point of six years' custody with a category range of four to nine years' custody. In this case there were two significant harm factors present. Although the nature of the harm was not such as to elevate the offence into Category 1 harm, some modest upward adjustment within the category range was required. In addition, although the two offences formed part of a single course of conduct, there was a need to reflect the assault by penetration in the sentence imposed for the lead offence of rape. It should have led to a higher sentence.[23]Had the overall sentence before any reduction for mitigation been set at the top of the category range, namely nine years, the judge could not have been criticised. The reduction for mitigation was generous. In relation to good character the judge was obliged to apply the rubric in the Rape and the Assault by Penetration Guidelines which reads:
"In the context of this offence, previous good character/exemplary conduct should not normally be given any significant weight and will not normally justify a reduction in what would otherwise be the appropriate sentence."
[24]In relation to the delay, the Sentencing Council General Guideline: Overarching Principles states as follows:
"Where there has been an unreasonable delay in proceedings since apprehension which is not the fault of the offender, the court may take this into account by reducing the sentence if this has had a detrimental effect on the offender."
[25]The judge was entitled to conclude that the delay between 2019 and 2022 was unreasonable. The full explanation for the delay was never made clear, albeit we can observe that the international pandemic began to take hold at the beginning of 2020. What was not in doubt was the lack of any responsibility for this delay on the part of the offender. The kind of detrimental effect envisaged by the guideline is where an offender suffers some genuine psychological or even physical harm due to the delay, or where, for instance, it is apparent that an offender has had to put his life on hold waiting for a decision on prosecution. In this case there was an assertion by counsel that the offender had suffered health issues due to the delay. There was no direct evidence as to that. Moreover, the majority of the health issues referred to by counsel dated from after the commencement of the proceedings. Once proceedings had been commenced they were prolonged because the offender denied committing the offences. He was and is not to be punished for that. Equally, he cannot obtain benefit by way of reduction in his sentence from the delay from October 2022 onwards.[26]Accepting, as we do, that the offender has had health issues in recent years, there is no evidence that they are so severe as to affect his ability to cope in prison. We have seen a prison report which does not indicate that there are any current problems. In our judgment the mitigating effect of the offender's ill-health was limited.[27]We consider that the reduction of 12 months to allow for mitigating factors was excessive. Six months would have been an appropriate reduction. In those circumstances, we conclude that with a sentence of nine years in respect of the rape intended to reflect also the assault by penetration, with a reduction of six months for mitigation the resulting sentence ought to have been one of eight-and-a-half years.[28]We have to consider whether that rendered the sentence unduly lenient. Even if it did, we have a discretion as to whether we interfere.[29]We are satisfied that the miscategorisation of the rape and the assault by penetration was significant and led to a significant difference in the sentence. It is our view that the sentence imposed was unduly lenient and we shall give leave to His Majesty's Solicitor General to refer the sentences. We shall quash the sentences of six years’ and three years' imprisonment. We shall substitute in their place sentences of eight-and-a-half years and four years, those sentences to run concurrently.[30]It follows that the application succeeds and the appellant, as before, will have to serve two-thirds of the resulting sentence. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE31. Tel No: 020 7404 140032. Email: rcj@epiqglobal.co.uk

Cited in 1 later judgment