Xhelollari, R. v

A sentence of imprisonment for public protection for a serious sexual offence requires evidence of a significant risk that the offender will commit further specified offences causing serious harm. The assessment cannot rest on speculation, apprehension, the inevitable psychological harm caused by rape, the victim’s vulnerability, or a refusal to admit guilt alone.

Where there is no prior relevant offending, the court must assess dangerousness by reference to the statutory material available. A determinate sentence remains appropriate where that material does not establish the requisite future risk under the Criminal Justice Act 2003.

The appellant was convicted at the Crown Court at Harrow of raping a young visitor to the United Kingdom. He had gained her confidence by offering help with employment, took her to his flat, raped her, and made threats afterwards.

The sentencing judge imposed imprisonment for public protection with a minimum term of four years and six months, having treated a notional determinate sentence as nine years. The appellant appealed against sentence. The central issues were whether the evidence established statutory dangerousness and, if not, the appropriate determinate sentence for the rape.

1. Appeal allowed. The sentence of imprisonment for public protection was wrong in principle. It was quashed and replaced with eight years’ imprisonment, with credit for 200 days spent on remand. The recommendation for deportation remained in force.
2. Under section 225 of the Criminal Justice Act 2003, rape was a serious offence, but imprisonment for public protection required the court to be satisfied that the appellant posed a significant risk to the public of serious harm through further specified offending. Serious harm included serious psychological injury under section 224(3).
3. There was no statutory presumption of risk because the appellant had no earlier relevant convictions. The court therefore had to conduct the assessment required by section 229(2), taking account of the offence’s nature and circumstances and considering any pattern of behaviour and information about the offender.
4. The pre-sentence report’s high-risk assessment depended on the victim’s vulnerability and the appellant’s continuing denial of guilt. It also recognised that there was no relevant pattern of offending. Those matters did not amount to evidence of a significant risk of serious harm from future offending. Although denial could impede rehabilitative work, it did not justify an indeterminate sentence on the facts. The conclusion required evidence, not speculation or a general apprehension of risk.
5. Applying the rape-sentencing guidance derived from Millberry [2003] 2 Cr App R(S) 142, the court recognised planning, unprotected intercourse and deception as aggravating. The victim was vulnerable but not exceptionally vulnerable, and she had been tricked into entering the flat rather than forcibly abducted or held captive. Eight years was the appropriate determinate term.

• Court of Appeal (Criminal Division): Allowed the sentence appeal and substituted eight years’ imprisonment for imprisonment for public protection: [2007] EWCA Crim 2052.
• Crown Court at Harrow: Following conviction for rape, imposed imprisonment for public protection with a minimum custodial term of four years and six months, less remand time, and recommended deportation.