Lomax [2019] EWCA Crim 254

The offender was convicted of rape and misconduct in a public office and sentenced to 4 years and 9 months’ imprisonment. An application was made for leave to refer the sentence as unduly lenient.

The offender was a police officer and was serving as a warrant officer and would take enforcement action against those owing court fines. The victim, J, owed money and was visited by the offender in 1978, he said that if they had sex, he would not need to arrest her, and she felt compelled to comply. She reported the incident and DNA samples were taken from the floor and a towel, the offender was interviewed and denied the offence. Forty years later the case was re-opened and DNA analysis matched the offender. 

In interview he said he had gone to the address with a colleague and J had run away, he found a pornographic magazine and masturbated, wiping himself on a towel. At trial he said that J had masturbated him on the understanding that if she did, he would not arrest her. 

The sentence was argued to be unduly lenient on the basis of the vulnerability of J, preyed upon by the offender, the abuse of trust was a separate and serious matter and would have been even if the sex was consensual. The Court of Appeal agreed that while there was some overlap the features were distinct, one is relevant to harm and one to culpability and it was important that appropriate weight was given to the two features. The term was increased to 8 years’ imprisonment.