Ross, R v

Where offences involve exceptional and sustained brutality, sexual violation of a helpless victim, grave breach of trust and a continuing danger to the public, a determinate sentence may be unduly lenient. An imprisonment for public protection sentence may be the least sentence consistent with public safety.

In an exceptional case beyond the scope of sentencing guidelines, the court may assess a determinate equivalent by reference to the offender’s overall culpability and criminality. The minimum term then reflects the statutory fraction of that equivalent sentence.

The Attorney General applied under section 36 of the Criminal Justice Act 1988 to refer Steven Ross’s sentence as unduly lenient.

At the Crown Court at Blackfriars, Ross was convicted of rape and assault by penetration. He had also pleaded guilty to inflicting grievous bodily harm contrary to section 20 of the Offences against the Person Act 1861. The judge imposed concurrent terms of ten years’ imprisonment for the sexual offences and four years for the grievous bodily harm.

The victim, Ross’s partner, had been left permanently paralysed after violence by him. While she was helpless, he raped and penetrated her, delayed obtaining medical help, and required her to advance a false account of her injuries. The central issue was whether the concurrent ten-year sentence was unduly lenient.

1. Leave was granted and the sentence was increased. The concurrent ten-year terms were unduly lenient. The court substituted an imprisonment for public protection sentence with a nine-year minimum term, subject to credit for time on remand.

2. The offences were of the utmost gravity. The offender used violence against his partner, leaving her paralysed and wholly defenceless. He then raped her anally and penetrated her with a deodorant canister, causing further serious internal injury. He deliberately withheld medical assistance for about thirty hours while seeking to avoid responsibility through a fabricated account.

3. The court treated the intimate relationship, the history of domestic violence, the prior conviction for assaulting the victim, the knife threat, the victim’s permanent catastrophic injuries, and the offender’s extensive relevant convictions as serious aggravating features. There was no mitigation for the rape and assault by penetration. The guilty plea to inflicting grievous bodily harm provided only limited mitigation.

4. Although the conviction for inflicting grievous bodily harm was under section 20 of the Offences against the Person Act 1861, carrying a maximum of five years, sentencing had to reflect the overall context. The court found that the offender was dangerous and would remain a long-term danger. Imprisonment for public protection was therefore the least sentence consistent with public safety.

5. The culpability and criminality fell beyond the ambit of guideline authority. The appropriate determinate equivalent was assessed at eighteen years’ imprisonment. The statutory minimum period was consequently nine years. The offender must remain in custody until it is safe to release him.

• Court of Appeal (Criminal Division): In an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court granted leave, held the original sentence unduly lenient, and substituted imprisonment for public protection with a nine-year minimum term: [2009] EWCA Crim 2610.
• Crown Court at Blackfriars: Following conviction for rape and assault by penetration, and a guilty plea to inflicting grievous bodily harm, the offender received concurrent terms totalling ten years’ imprisonment.