Smith, R. v

For rape sentencing, anal and vaginal rape are treated alike, and rape by a spouse or partner is no less serious than rape by a stranger. The applicable starting point must be adjusted for the particular aggravating and mitigating features.

Where separate serious sexual offences justify consecutive sentences, the court must make an appropriate allowance for totality. A sentence imposed under the former release regime for pre-4 April 2005 offending does not require a reduction merely because the later regime under the Criminal Justice Act 2003 would have applied to later offending. The later regime was more onerous overall.

The appellant was convicted at Canterbury Crown Court of buggery committed against one former partner in 1992 and rape committed against another partner in 2004. He received five years’ imprisonment for the buggery and an extended sentence of six years and six months for the rape, comprising five years’ custody and an 18-month extension period. The sentences were consecutive.

He appealed against sentence. He initially relied on the absence of the aggravating features identified in R v Milberry [2003] 2 Cr App R(S) 31, but principally contended that sentencing under the former release regime made his sentence more onerous than one imposed under the later statutory regime.

1. Appeal dismissed. The total extended sentence was not manifestly excessive.

2. The court applied the sentencing guidance in R v Milberry [2003] 2 Cr App R(S) 31. Anal and vaginal rape were equivalent in seriousness, and a rape within an intimate relationship was not less serious than stranger rape. Although neither offence clearly fell within the eight-year starting-point category, both involved substantial aggravation.

3. Each complainant had been significantly affected. The appellant exploited his relationship with each woman. The first offence was inflicted as punishment, and the second was committed when the complainant was suffering the physical effects of childbirth. The earlier serious sexual offence also aggravated the later offending. There was no real mitigation. Sentences exceeding five years would have been appropriate if each offence had been sentenced in isolation.

4. A consecutive sentence for the later offence was proper. The sentencing judge had expressly allowed for totality, and the resulting ten-year custodial term could not be criticised. The 18-month extension period was justified by the risk material before the judge.

5. Paragraph 19 of Schedule 2 to SI 2005 No 950 excluded the new release provisions for offences committed before 4 April 2005. The former regime under sections 32–39 of the Criminal Justice Act 1991 could permit discretionary release at the halfway point. The court accepted the Sentencing Guidelines Council’s analysis that the later regime under the Criminal Justice Act 2003 was more onerous overall. Accordingly, sentencing under the former regime did not justify a discount. Had the later regime applied, imprisonment for public protection would also have required serious consideration.

• Court of Appeal (Criminal Division): appeal against sentence dismissed.
• Crown Court at Canterbury: on 3 October 2006, the appellant received consecutive sentences for buggery and rape, producing an extended sentence of 11 years and six months.