RTC, R v

A sentence is unduly lenient where it fails to reflect the exceptional gravity of a sustained and merciless sexual attack, including deliberate humiliation, serious pain, abuse of intimate knowledge and a grave breach of trust. Good character and the absence of previous convictions may provide limited mitigation, but they cannot justify mercy where the aggravating features require punishment of very great severity.

The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer a sentence imposed at Aylesbury Crown Court on 10 October 2008 as unduly lenient.

The offender had been convicted by a jury of two rapes of his estranged wife: anal penetration and vaginal penetration. The jury had been unable to agree on a separate count of rape. The attack followed an argument and lasted for more than an hour. It involved forced anal penetration despite the victim's pleas, the use of her underwear to silence her, physical pain, and a further vaginal rape. The sentencing judge regarded the offending as particularly nasty but did not find the statutory criteria for imprisonment for public protection.

The central issue was whether the sentence adequately reflected the gravity of this extreme offending.

1. Attorney General's reference allowed. The court granted leave, held that the sentence was unduly lenient, quashed it and substituted a sentence of ten years’ imprisonment.

2. The offending was an extreme instance of rape by a husband of a separated wife. The offender deliberately used non-consensual sexual intercourse as a weapon to dominate and humiliate the victim. He exploited intimate knowledge that anal intercourse was wholly unacceptable to her, forced her to submit to it, caused severe pain, attempted to gag her, and then raped her vaginally.

3. Those features amounted to a grave breach of trust. The duration of the attack, its merciless character, the victim’s humiliation and physical suffering, and the offender’s conduct in advancing a baseless defence which intensified her distress were substantial aggravating factors.

4. The only mitigation was the offender’s good character and lack of previous convictions. It did not create room for mercy. Although the sentencing judge had presided over the trial and had properly identified the seriousness of the conduct, the sentence imposed did not provide the punishment of very great severity which the case required.

• Court of Appeal (Criminal Division): On the Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court held that the Crown Court sentence was unduly lenient, quashed it and substituted ten years’ imprisonment.
• Aylesbury Crown Court: The offender was convicted of two counts of rape and sentenced on 10 October 2008. The sentence imposed is not stated in the judgment.