Aman Yuel [2019] EWCA Crim 1693; AKA Berhe

R v Aman Yuel (also known as Samuel Berhe) [2019] EWCA Crim 1693 concerns an Attorney General’s reference under section 36 of the Criminal Justice Act 1988 in which the Court of Appeal (Lord Justice Simon, Mrs Justice Cheema‑Grubb and Her Honour Judge Dhir QC sitting as a judge of the division) found an eleven‑year custodial term for multiple rapes and breach of a Sexual Harm Prevention Order to be unduly lenient and substituted an extended sentence.

Mr Yuel was convicted after trial at Inner London Crown Court of five counts of vaginal rape, one count of oral rape and one count of breaching a Sexual Harm Prevention Order. On 26 July 2019 His Honour Judge Davies QC sentenced him to eleven years’ imprisonment on each rape count and three years’ imprisonment on the breach, all concurrent, together with a hybrid order under sections 45A and 45B of the Mental Health Act 1983 comprising a hospital direction and a limitation direction. A new Sexual Harm Prevention Order was imposed until further order.

The offences were committed on 15 September 2018. The victim, aged 22, had been out with friends in Soho and was returning home to Brixton. At a bus stop on Brixton Road the offender, who appeared to be under the influence of alcohol and drugs and whom she had never met, approached her and asked intrusive questions including where she had been and whether she lived alone. He repeatedly asked for sex and tried to persuade her to drink his beer. She remained polite, told him she had a boyfriend and declined his advances. When the night bus arrived he boarded with her, sat beside her uninvited and continued asking for sex. He touched her legs causing her to protest loudly enough that passengers turned around. After leaving the bus she quickened her pace but the offender followed her saying “Wait up” and “What, are you going to refuse me entry?” She told him again that she had a boyfriend. He caught up with her and slapped her on the bottom. As she approached her home she contemplated walking around the area to avoid revealing where she lived but feared the darkness and the hour. CCTV captured her walking quickly to her front door and unlocking the door to the communal area which triggered lighting. The offender momentarily stood at the end of the driveway before barging inside. He tried to kiss her, pushed her onto the stone stairs leading to the first floor and pinned her down. He pulled her further down the stairs, removed her trousers and underwear and penetrated her vagina with his partially erect penis (count 1). He then forced her to perform oral sex on him, causing her head to bang on the stairs (count 2). She told him to stop and that he was hurting her but he became more forceful. She suggested they move because she feared she would fall down the stairs. On the landing he vaginally raped her for approximately two minutes while she cried (count 3). She asked him to leave. He walked to the front door but then returned, pushed her back onto the stairs and raped her for a third time (count 4). Again he walked to the door before returning and raping her for a fourth time (count 5). He repeated the pattern once more and for a fifth time vaginally raped her, this time holding her face and neck so that she choked, and ejaculated inside her (count 6). At no stage did he wear a condom. After ejaculating he asked for her number and said “When are we going to do this again? Let me give you some money.” She entered her number into his phone but deliberately omitted a digit. When the number did not ring she entered it fully, believing he would not leave otherwise. He successfully dialled it and kept asking for a kiss before he left. Several minutes later her mobile rang. At 4.11am she sent a text to a friend telling her what had happened. The friend telephoned the police at 4.18am. Police attended seven minutes later and circulated information. An N2 bus was stopped in Effra Road and the offender was found on the bus holding a bottle of beer. He was arrested and found in possession of the mobile phone used to contact the victim minutes after the rapes. At Brixton Police Station he refused to provide intimate samples and made an unsolicited comment saying that he had laid on his back and she had “fucked me”. In interview he repeatedly said “I don’t remember” and changed his account. At one stage he said the intercourse was consensual. When it was suggested he had raped her he replied “That’s not true.”

By approaching the victim the offender had breached an SHPO imposed on 12 January 2017 which prohibited him from communicating with any female who was not a family member or otherwise known to him through employment, education or medical care, in public (count 7). The victim’s personal statement described significant emotional, physical, social and work‑related impacts. The physical examination left her embarrassed and disgusted. She had taken strong medication for a month to prevent HIV transmission rendering her nauseous and exhausted. She had been tested for sexually transmitted diseases and received prophylactic injections. She suffered panic attacks and increased anxiety and felt compelled to tell her parents, worsening her mother’s existing mental health issues. Walking through the building daily was a constant reminder of the crimes.

The offender had six previous convictions for nine offences between 16 April 2008 and 12 January 2017. On 24 August 2016 at Isleworth Crown Court he was convicted of sexual assault by touching contrary to section 3 of the Sexual Offences Act 2003 and made the subject of a twelve‑month community order with a rehabilitation activity requirement and a five‑year notification requirement. That offence occurred on 29 November 2015 when he approached a young woman at a Kensington High Street bus stop between 7.30 and 8.00am, stroked his hand down her chest, grabbed her bottom over her coat and leant in to kiss her, kissing her cheek when she turned away. When a member of the public intervened he told that person to “Fuck off. Mind your own business.” When the victim ran towards the tube station he chased her and grabbed her bottom again. On 12 January 2017 he was sentenced for two further offences of sexual assault by touching contrary to section 3 to concurrent terms of 40 months’ imprisonment, with a notification requirement for life and the five‑year SHPO he later breached. The first offence occurred at about 3am on 19 December 2015 when he approached a victim making her way home, said “I’m going to fuck you hard. I’m the biggest thing you’ll ever see. You won’t know what’s hit you,” grabbed her around the neck and dragged her behind some buildings. She screamed and he tightened his grip. Members of the public approached and he ran away. The second offence occurred 20 minutes later when he followed another victim along an alleyway, caught up with her, grabbed hold of her and dragged her towards a hedged area. During the struggle she tried to scream so he put his hand over her mouth. She bit his hand, grabbed some railings preventing him from dragging her further and managed to escape. The offender was on licence when he committed the current offences on 15 September 2018.

Following his arrest the offender was produced at Camberwell Green Magistrates’ Court on 17 September 2018 and the case was sent to Inner London Crown Court where he was remanded in custody. At the plea and trial preparation hearing on 15 October he was not arraigned due to ongoing enquiries about his fitness to plead. Dr Ian Cumming, a forensic consultant psychiatrist, prepared a report dated 4 December 2018 stating the offender had an established history of paranoid schizophrenia and was unfit to plead or stand trial, though he had been unable to complete a full assessment due to the offender’s unwillingness to engage. The trial was vacated and re‑fixed for 17 June 2019. Dr Kalpana Dein prepared a report dated 28 January 2019 concluding the offender was unfit to plead or stand trial. Dr Jeremy Berman’s report dated 5 April 2019 concluded the offender was currently fit to plead and stand trial. On 17 June 2019 the offender was arraigned on counts 1 to 6, on 18 June on count 7, pleading not guilty to all. Trial followed and on 20 June he was convicted of all counts.

At sentence on 26 July two further reports were before the court. In an addendum report dated 25 July Dr Cumming compared a hospital order with restrictions under sections 37 and 41 of the Mental Health Act 1983 with a hybrid order under section 45A. On balance he favoured the hybrid order mainly in view of the lack of clarity about the connection between the offender’s mental illness and the offence. It could not be said with certainty that the offender’s culpability was reduced by his illness. Dr John McAnallen, consultant forensic psychiatrist and the responsible clinician, considered the offender had a mental disorder comprising a relapsing and remitting psychotic illness complicated by substance misuse (alcohol and cannabis) and generally by poor compliance with treatment and supervision. The illness had been diagnosed as schizophrenia and a schizoaffective disorder. In giving evidence at the sentence hearing Dr McAnallen said that on balance the offender was not particularly psychotic at the time of the offence and the offending did not necessarily arise simply from his mental health problems.

The judge found the rape offences were a prolonged and sustained sexual attack on a young woman in the home where she was entitled to feel safe. They caused considerable psychological harm. The offending fell within category 2B of the Definitive Guidelines for rape offences, as submitted by both counsel, with a starting point of eight years and a range of seven to nine years. There were aggravating factors: the location; the previous convictions showing he follows young women in public and attacks them; that at least one previous offence was committed on licence; and that the current offences were also committed on licence. The offender was extremely dangerous to women. The judge did not consider a pre‑sentence report necessary on dangerousness because that was obvious, as agreed by defence counsel. The offender was “a woman’s worst nightmare.” He had expressed no remorse and continued to deny the offences. The commission of the rape offences and the previous material offending had a component of mental illness because his mental condition was remitting and recurring and currently required treatment. However, other aspects of offending were not attributable to his mental illness. Quite apart from any treatment for his mental disorder, the offences required “condign, serious punishment.” The requirements of sections 37 and 41 were satisfied and a hybrid order under section 45A and B was appropriate. The hospital direction and limitation direction meant the offender would be detained in hospital and treated for his mental illness, but when well enough he would be transferred to serve the rest of his sentence in prison.

Miss Pattison for the Solicitor General accepted the hybrid sentence was reasonable in the circumstances but submitted the key issue was the necessary penal component. Two issues arose: whether the offending fell within category 1B or 2B, and whether the judge paid sufficient regard to the aggravating features and the totality of the offending. She submitted the offences fell within category 1B because although culpability was B, there were multiple features of harm elevating harm to category 1. The starting point for category 1B was twelve years’ custody with a range of ten to fifteen years. Insufficient regard was paid to aggravating features and totality: ejaculation inside the vagina with consequences for the victim’s physical and mental health; previous convictions for offences with a similar modus operandi; commission on licence; commission under the influence of alcohol or drugs; and that although charged separately, the rapes constituted a breach of the SHPO. The Solicitor General accepted that the crimes being linked to the offender’s mental disorder was a mitigating factor to some extent. The second broad submission was that the offender was clearly dangerous and the judge failed to consider the implications of his findings of dangerousness. He should at the very least have passed an extended sentence.

Miss Dykers for the offender submitted the judge properly accepted the offences fell within category 2B. As to culpability it remained the Crown’s position this was category B. As to harm she accepted three factors were rightly identified as category 2: a sustained attack, forced entry into the victim’s home and considerable psychological harm. She accepted two further material factors: choking constituting violence beyond that inherent in the offence and the victim’s vulnerability. She did not accept there was “additional degradation.” More importantly than the number of harm factors was whether the “extreme nature” of any or the “extreme impact” caused by a combination was such as to justify elevating harm from category 2 to 1. Without minimising the seriousness of the offending she submitted the nature and impact of the category 2 factors were not such as to justify the elevation. She accepted three aggravating factors identified by the Solicitor General justified an uplift but submitted that by increasing the sentence from the starting point of eight years to eleven years the judge had given proper effect to them. As to dangerousness and an extended sentence she realistically accepted that if the judge had imposed an extended sentence it would have been difficult to submit the criteria in section 226A of the Criminal Justice Act 2003 were not met or that such a sentence was inappropriate. She accepted the balance of medical opinion was that the offending was not solely or clearly attributable to the mental disorder. However, she submitted the sentencing remarks showed the judge was aware of the need for public protection and it must be assumed he had this in mind when he passed a determinate sentence. The decision not to impose an extended sentence was not outside the range of what was appropriate.

The court found no issue with the order under section 45A of the Mental Health Act 1983 providing for a hospital direction and limitation direction under section 41. The court reviewed the regime explained in R v Edwards and Others [2018] EWCA Crim 595 which emphasised the need to consider not only psychiatric opinion but the extent to which the offender needs treatment for the mental disorder, the extent to which offending is attributable to that disorder, the extent to which punishment is required and the extent to which protection of the public is necessary. The court noted Edwards held that consideration of a section 45A order must come before making a hospital order because a section 45A disposal includes a penal element and sound reasons are required for departing from the usual course of imposing a sentence with a penal element. The graver the offence and the greater the risk to the public on release the greater the emphasis the judge must place on the protection of the public and the release regime. The court emphasised the importance of the penal element under section 142 of the Criminal Justice Act 2003 and the need to assess the offender’s culpability and the harm caused in deciding the necessary penal element. The fact that an offender would not have offended but for their mental illness does not necessarily relieve them of all responsibility for their actions. The court noted that in some cases where an order is made under section 45A the dangerousness of an offender will be such that the additional level of protection for the public afforded by an extended sentence will be necessary. In Attorney General’s Reference No

AG Ref No. 91 of 2014 [2014] EWCA Crim 2891
Edwards and others [2018] EWCA Crim 595, [2018] Cr App R (S) 17, [2018] 4 WLR 64