Attorney General's Reference No 44 of 2004

A sentence may be lenient without being unduly lenient. On a reference under section 36 of the Criminal Justice Act 1988, the appellate court must assess the whole case and respect the sentencing judge’s advantage from having conducted the trial.

In rape sentencing, an existing relationship between offender and complainant is not, by itself, mitigation. Its actual context may nevertheless inform seriousness. Regular bed-sharing and alcohol consumption may make an offence materially different from stranger rape, without excusing it or creating a separate mitigating category.

The Attorney-General, acting through the Solicitor-General, obtained leave to refer as unduly lenient a three-year sentence imposed on Keith Ellis following his conviction for rape at Leeds Crown Court.

The complainant had been living with Ellis and they had previously had a sexual relationship. The prosecution case was that, after drinking and an argument, Ellis used threats and force to compel intercourse. Ellis contested the allegation.

The reference required the Court of Appeal to decide whether, having regard to the rape-sentencing guidance and the particular context of the offence, the sentence was unduly lenient.

1. The reference was not acted upon. Although the court granted leave under section 36 of the Criminal Justice Act 1988, it held that the three-year sentence was lenient but not unduly lenient. It therefore did not interfere.

2. The court proceeded on the basis that, after a contested rape trial, the guidance in R v Millberry [2003] 1 Cr App R(S) 396 made a five-year starting point appropriate. That guidance did not remove the need for an evaluative assessment of the individual case. The older decision in R v M [1965] 16 Cr App R(S) 770 provided no particular assistance after Millberry.

3. The force used during the rape was serious, but was not violence of the kind ordinarily treated as an additional aggravating feature. The court also took account of the offender’s effective good character, the absence of prior sexual offending, the role of alcohol, and the evidence about the complainant’s impact. It considered that there was no breach of trust beyond that inherent in rape by a cohabitee.

4. Following Price [2003] 2 Cr App R(S) 73, the relationship itself could not mitigate sentence. However, the practical circumstances identified in paragraph 26 of Millberry—regular bed-sharing and drinking before bed—could properly distinguish the assessment from stranger rape. The sentencing judge was better placed to evaluate those matters.

5. The court would itself have imposed four years’ imprisonment. That difference did not establish undue leniency. If resentencing had been required, double jeopardy would also have required consideration.

• Court of Appeal (Criminal Division). Leave was granted for an Attorney-General’s reference under section 36 of the Criminal Justice Act 1988, but the court declined to interfere with the sentence: [2004] EWCA Crim 2038.
• Leeds Crown Court. The offender was convicted of rape on 24 March 2004 and sentenced to three years’ imprisonment.