C [2019] EWCA Crim 643
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R v C [2019] EWCA Crim 643 concerned an appeal by a man sentenced for a rape committed over 32 years earlier, which was dismissed by the Court of Appeal comprising Lord Justice Males, Mr Justice Stuart-Smith and the Common Serjeant (His Honour Judge Marks QC).
The appellant had pleaded guilty on 2 August 2018 at Basildon Crown Court to rape committed on 17 September 1985, and Miss Recorder Claire Davies imposed an extended sentence of 18 years comprising a custodial term of 13 years with a five‑year extension period. The appellant, born on 20 September 1949, was 69 years of age at the time of sentence and possessed an extensive record for sexual offending. In 1966 and 1971 he had been placed on probation for indecent exposure. In 1978 he was again placed on probation for indecently assaulting his 11‑year‑old niece. Between September and November 1986 he had committed two burglaries of dwelling houses with intent to rape, one offence of indecent assault on a female under 16 and two rapes, for which he received 14 years’ imprisonment. On some of those occasions he had been armed with a knife or a screwdriver. In July 1996, within weeks of his release from the 14‑year term, he was convicted of indecent assault on a female and of attempting to render a female insensible with intent to commit rape, for which he received four years’ imprisonment and a life sentence respectively, with a minimum term of nine years four months. That incident involved following a woman walking home alone in the early hours, placing a polythene bag over her head, holding her around the neck, attempting to drag her up a hill and forcefully putting his hand up her shorts.
The victim of the index offence was 18 years old and lived with her parents in the grounds of a school in Essex. She worked in London and left home each morning at around 6 a.m. to catch the bus. On 17 September 1985 she noticed a male, later identified as the appellant, sitting on a wall; she had seen him there on the two preceding days. He ran towards her, grabbed her around the neck and pressed a Stanley knife against the side of her neck. He said he did not want to hurt her, then walked her towards the gate of a nearby farm where he forced her to the ground, removed her underwear, raped her and ejaculated inside her. He ran off but returned shortly afterwards to collect the Stanley knife he had left behind. Although the police were involved from the outset and a sample of semen was recovered from her vagina, the identity of her assailant remained unknown.
In 2016 the case was reviewed by a Cold Case Investigation Team as a result of scientific advances in DNA analysis. On 19 April 2017 the appellant, who was by then serving his life sentence, was arrested. He declined to comment in interview, stating in a prepared statement that he could not remember any facts relating to the day in question. A subsequent DNA analysis showed that it was in excess of a billion times more likely that the appellant contributed to the DNA profile obtained from the victim’s knickers than that it had been left by an unknown individual. He was re‑interviewed on 24 January 2018 but again declined to comment. He was charged later that day, made his first appearance on 26 February 2018 and entered a not‑guilty plea at the plea and trial preparation hearing on 6 April 2018. The trial was fixed for 6 August 2018, but a matter of days beforehand he indicated an intention to change his plea and did so on 2 August 2018.
The victim impact statement revealed that the offence had had an absolutely devastating effect upon the victim. She described how the incident had changed her entire life. She had been unable to return to work in London and had had to give up her job. Thereafter she became paranoid that any male walking behind her was going to attack her; as she put it, “Every day I look over my shoulder, I am so paranoid someone is running up to grab me.” She started to drink heavily. She stated that her attacker was in her head every day and that she would relive the incident in her dreams every night. She tried to commit suicide. She had been married three times and had never felt able to trust those with whom she was in a relationship. Since the incident she had been on medication for anxiety and depression. She had constant flashbacks and at times it felt as though the incident had happened yesterday.
The prosecution contended, and it was not disputed on appeal, that this was a category 1A offence within the sentencing guidelines. So far as harm was concerned, a category 1 offence is one where the extreme nature of one or more category 2 factors is present or where there is extreme impact caused by a combination of category 2 factors. The relevant category 2 factors were the severe psychological harm caused to the victim, the abduction of the victim, the threats of violence from the brandishing of the Stanley knife beyond that inherent in the offence, and the fact that the victim was particularly vulnerable at that time of the morning. So far as culpability was concerned, higher culpability was indicated where there had been a significant degree of planning. This was evidenced by the fact that the appellant had been watching the victim on two preceding days and had deliberately armed himself with a knife. For a category 1A offence, the starting point was 15 years’ custody, with a range of 13 to 19 years. The aggravating features of the case were the appellant’s previous history and the fact that he had ejaculated. The mitigating feature was the appellant’s guilty plea. Because it came very late in the day, it was accepted that he was entitled to no more than the 15 per cent discount which the learned Recorder had given.
On appeal, although it was accepted on the appellant’s behalf that as a standalone offence the sentence imposed was unexceptionable, it was submitted that, given that he was already the subject of a life sentence and in particular that he had by then served about 12 and a half years in excess of his tariff, this should have been reflected in the sentence imposed for this offence. It was also submitted in writing that it was manifestly excessive and wrong in principle for him to have been made the subject of an extended sentence, given that he was already subject to a life sentence. Moreover, it was submitted that the appellant was no longer properly regarded as being dangerous, bearing in mind that this offence had occurred nearly 33 years earlier and having regard to the views of the Parole Board which had considered his case in the relatively recent past.
The court referred to the recent case of R v Green [2019] EWCA Crim, in which reference was made to R v Cosburn [2013] EWCA Crim 1815 and R v McLean [2017] EWCA Crim 170. In McLean, Treacy LJ had stated that where an offender made a conscious choice not to disclose additional offending in the hope that it would go undetected, he could not later claim to be sentenced as if both matters should have been dealt with together, as to permit that would be unjust to the public interest in giving the offender an undeserved and uncovenanted bonus. Simon J in Cosburn had stated that when considering its approach to sentencing where there had been previous sentences for similar historic criminality, the court should have in mind whether allowance or adjustment should be made, the proper application of which would vary from case to case; in some cases it might have an impact on the later sentence, in others no impact at all.
The court held that the undeniable fact was that over 30 years having elapsed, the appellant thought he had got away with this offence of rape. It was also apparent that in their consideration of his case in the last few years, the Parole Board had been significantly misled in that they were not in full possession of all the relevant facts. Not only did they not know anything about the offence which was the subject matter of this appeal, but equally as importantly they did not know that the appellant, by suppressing that information, had not made a clean breast of his past offending. Had they been aware of that, they may well have been a good deal less inclined to recommend his transfer to open conditions in May 2013 and Dr Deborah Kingston, a clinical psychologist, may not have made a positive recommendation to the Parole Board as she did in 2016 for the appellant’s release. What the Parole Board were also unaware of was the appellant’s attitude towards the current offence after he was charged with it. This was not a case where, following the DNA revelations, the appellant made a full and frank confession. On the contrary, it was apparent from the detailed and very helpful pre‑sentence report prepared by Sarah Austin‑Carroll that it was not until extremely late in the day, when he realised the strength of the DNA evidence against him, that the appellant was willing to admit this offence. He told the probation officer that he recalled the weekend prior to the offence, when he had travelled to collect a black Pyrenean dog from out of the area, but claimed that he could not remember this offence because of his long employment hours. At one point he also sought to rely upon the fact that the police had suspiciously, as he put it, destroyed other items of evidence such as clothing. Thus the probation officer, in the court’s judgment correctly, concluded that despite his guilty plea the appellant was in a state of denial, and she commented upon the fact that he had failed to disclose or address the current offence during his time in custody. Her concluded view was that the appellant posed a very high risk of further sexual offending. That was a conclusion with which this court entirely agreed.
The court concluded that taking account of the totality of the factual background to this case, and notwithstanding that he was serving a life sentence, it was entirely satisfied that the provisions of section 226A of the Criminal Justice Act 2003 applied in the case of this appellant and that the sentence imposed was neither wrong in principle nor manifestly excessive. In the court’s judgment, the fact that he had served in excess of 12 years more than the tariff period under the life sentence could not avail him. It did no more than reflect the fact that throughout that time the Parole Board had not regarded the risk that he continued to pose as capable of being safely managed in the community.
In short, the appeal was dismissed because the extended sentence was proper and proportionate in the light of the appellant’s continuing dangerousness, his extensive history of sexual offending, his suppression of this further offence which had misled the Parole Board and his persistent denial despite overwhelming DNA evidence.