Lomax [2019] EWCA Crim 254

In R v Lomax [2019] EWCA Crim 254 the Court of Appeal allowed an Attorney General’s reference, finding that a sentence of four years nine months’ imprisonment for rape and misconduct in public office committed by a police officer was unduly lenient and increasing it to eight years.

David Lomax, aged 84 at sentence, had been convicted following trial of rape and misconduct in public office committed on 20 October 1978 when he was 43 and a serving warrant officer with West Yorkshire Police. The offences were prosecuted nearly four decades later following advances in DNA analysis. On 17 October 2017 in the Crown Court at Leeds, Lomax was sentenced to concurrent terms of four years nine months for rape and two years for misconduct in public office.

The facts were that Lomax, whose duties included enforcing unpaid fines and who had a power of arrest, visited the home of the victim, a 21-year-old woman (referred to as J), who lived with her abusive husband and young daughter and had failed to pay a court fine. Lomax told J he would have to arrest her unless the fine was paid. When J begged him not to arrest her because her daughter was due home shortly, Lomax indicated they could “sort this” and said “Let me fuck you”. When J refused, he asked if she wanted to go to prison. He said it would only take five minutes and if they had sexual intercourse he would not need to return for another two weeks. J felt she had no choice but to comply. Lomax raped her against the bedroom wall. He withdrew and ejaculated onto the floor, then left saying he would return in two weeks. J wiped the floor with a towel but could not bear to touch it and left it where it lay. She eventually reported the rape when arrested in November 1978 for continued non-payment, and forensic scientists recovered semen samples from the floor and the towel. The DNA could not then be matched to an individual but the sample was retained. Lomax was interviewed at the time and strongly denied any sexual activity with J. He was not charged and continued his police service.

A cold case review in 2016 enabled the DNA to be matched to Lomax. When arrested in July 2017 he gave shifting accounts, first claiming he had been accompanied by another officer and that J had fled, then that he had masturbated whilst reading pornographic magazines he found in her flat, and finally at trial that J had masturbated him on the understanding he would not arrest her. J’s victim personal statement described the profound and lasting effects of the rape, including that she no longer trusted the police and simply tolerated her husband’s continuing violence, which was sometimes justified by reference to her having had sex with a police officer. The offender had no previous convictions. At sentence, reliance was placed on his many years of police service, character references, his age, his poor health including diabetes and limited mobility, and the effect of imprisonment on his wife who depended on his care.

At the sentencing hearing the prosecution submitted the rape was category 2A under the Sentencing Council’s Definitive Guideline, namely category 2 harm because the victim was particularly vulnerable due to personal circumstances and category A culpability because of the abuse of trust. Defence counsel submitted it was category 3A, arguing that it would be improper double counting to consider both the offender’s position as a police officer and particular vulnerability on the part of J. The judge accepted the defence submission, treating the case as 3A (starting point seven years, range six to nine years) and stating that the aggravating features of the offender’s position and J’s vulnerability were so intertwined that counting them both would be double counting. The judge said he had tempered the sentence markedly because of the offender’s age, health vulnerabilities and the effect on his wife, but noted that the offender was a mature and experienced man who had used his power and authority to subjugate a young and vulnerable woman to his sexual desires. He treated the misconduct offence as an aggravating feature of the rape and imposed concurrent sentences.

On behalf of the Solicitor General, Mr Jarvis submitted the sentence was unduly lenient for three reasons. First, J was particularly vulnerable because of her circumstances at the time: she was alone in her flat, waiting for her daughter, and fearful of the consequences for herself and her daughter of her non-payment of the fine. She was vulnerable to anyone who sought to take advantage of her position to blackmail or otherwise abuse her. Her vulnerability arose from her circumstances, not solely from the fact that Lomax was a police officer; it would have been the same if, for example, a private debt collector appointed by a court had confronted her. Lomax preyed upon that vulnerability. Secondly, Lomax’s abuse of the trust and power placed in him as a police officer was a separate and serious matter which would have been serious even if the sexual activity had been consensual. Mr Jarvis relied by way of broad analogy on R v Fletcher [2011] EWCA Crim 1802, [2012] 1 Cr App R (S) 62, in which this court upheld a sentence of 32 months for misconduct in public office where a police officer had attended the home of someone who had dialled 999 and was in a distressed and vulnerable state and had taken advantage of her to have consensual sexual intercourse. Thirdly, Mr Jarvis repeated the submission that the case should be regarded as category 2A, for which the guideline gives a starting point of ten years and a range of nine to 13 years. Although the judge had properly taken into account mitigation, the weight which could be given to it was limited. The offender’s good police record and public service were what had enabled him to commit the offence. Age and ill health were only to be taken into account in a limited way as indicated in R v Clarke, R v Cooper [2017] EWCA Crim 393, [2017] 2 Cr App R (S) 18.

For Lomax, Ms Colley submitted first that any victim of rape is vulnerable, so that for a case to come within category 2 the particular vulnerability must go beyond that inherent in the offence. Secondly, the abuse of trust which properly placed the case into category A culpability could not be double counted so as also to treat J as particularly vulnerable and elevate the harm from category 3 to category 2. She maintained the submission that category 3A was the appropriate classification. Thirdly, aggravating features such as commission of the offence in J’s own bedroom and the fact of ejaculation did not, even collectively, elevate the case from category 3 to category 2. She submitted that the judge, as the trial judge who had heard all the evidence and observed both J and the offender, was particularly well placed to assess the appropriate sentence, and that the sentence was not unduly lenient. On appeal, further material was provided indicating that Lomax suffered from prostate cancer, chronic kidney disease, knee osteoarthritis, hypertension and hypothyroidism for which he received appropriate medication, and that he had suffered a chest infection in late November 2018 requiring four days in hospital. A separate prison report showed he was a polite and quiet prisoner who caused no trouble.

Lord Justice Holroyde, giving the judgment of the court, identified two features which made the offending particularly serious. First, J was liable to lawful arrest and detention because she had not paid a court fine and faced the imminent prospect of arrest at a particularly difficult time when her daughter was shortly to return home from which the child’s father was already absent. Although J had brought that prospect upon herself by non-payment, her position was nonetheless such that she was particularly vulnerable to abuse by a police officer of the position of trust and power which gave him a discretion not to arrest or not to arrest immediately. Secondly, Lomax abused his position of trust and power in the most cynical manner, giving J a choice between immediate arrest and submission to rape. These features were closely interlinked and overlapped, but the court accepted the Solicitor General’s submission that they were distinct: one was relevant to harm, the other to culpability. The judge had been faced with a difficult sentencing process and the court understood why he was anxious not to double count the serious features unfairly, but it was important he gave appropriate weight to the two features.

The court held that the appropriate categorisation was 2A. Had the judge made that categorisation, the serious features identified would have largely been taken into account. The only significant further aggravating feature would be the fact of ejaculation, which in the particular circumstances added comparatively little to the overall seriousness. Adopting this approach, the judge would then have had to consider the mitigating features and what further reduction from the guideline starting point was necessary to reflect the degree of overlap between the two principal features. The court concluded that approaching the matter in that way would bring the case to the bottom of the category 2A range or even somewhat below it. If instead the case were placed into category 3A, for which the starting point is seven years and the range six to nine years, it was necessary to take into account as a serious aggravating feature the vulnerability of J when confronted with Lomax’s offer to spare her from immediate arrest. It was also necessary to give full weight to other aggravating features such as commission of the offence in J’s own home when she was known by Lomax to be in a position of particular vulnerability and was in effect blackmailed by him. On this approach, the final sentence would inevitably be above the category 3A starting point and at or near the upper end of the category range.

The court observed that the judge might have reached a similar final sentence by one of two different routes, but in the event he had imposed a total sentence after trial which was below the category 3A range and indeed below the starting point for a category 3B offence. With respect to the judge, the court had no doubt that the sentence failed to impose just and proportionate punishment for very serious offending which had substantially blighted J’s life. The court recognised the difficulties of a lengthy prison sentence for a man of Lomax’s age and with his poor health, and that anxiety about his wife’s position would make prison particularly difficult for him. But even making every allowance which could at that stage be made in his favour, the court concluded that the least sentence properly open to the judge was a total term of eight years’ imprisonment. The sentence imposed fell well short of the range reasonably open to the judge and was unduly lenient. The court granted leave to refer, quashed the sentences imposed below, and substituted concurrent sentences of eight years for rape and four years for misconduct in public office.

In short, the Court of Appeal found that a sentence of four years nine months’ imprisonment for rape and misconduct in public office committed by a warrant officer who cynically exploited his power to offer a vulnerable woman a choice between arrest and rape was unduly lenient and increased it to eight years, holding that the case should have been categorised as 2A and that the trial judge had failed to give sufficient weight to the distinct features of harm and culpability.

Fletcher [2011] EWCA Crim 1802, [2012] 1 Cr App R (S) 62
Clarke and Cooper [2017] EWCA Crim 393, [2018] 2 All ER 333 , [2017] 1 WLR 3851