Attorney General's Reference No. 77 of 2010

In sentencing rape, a victim’s lack of awareness because she was asleep is not mitigation. The absence of fear, resistance or immediate distress does not establish that the rape caused no harm. A sentencing judge must assess the actual circumstances and seriousness of the offence, including any gross breach of trust and consequential risks imposed on the victim. A victim’s anger, rather than distress, at a rape does not reduce the offender’s culpability or the harm caused.

The offender was convicted after trial at Exeter Crown Court of raping a woman while she was asleep. They had formerly had a sexual relationship, but she had made clear that it had ended. The rape occurred shortly after the termination of a pregnancy conceived by the offender and without contraception.

The trial judge initially imposed three and a half years’ detention in a young offender institution. Two days later, exercising a power under the Powers of Criminal Courts (Sentencing) Act 2000, he reduced it to two years. He treated the victim’s sleep, limited immediate distress and the brevity of penetration as reducing harm.

The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient. The central issue was whether those features could justify the reduced sentence.

1. Leave was granted and the reference succeeded. The sentence of two years’ detention in a young offender institution was unduly lenient. It was substituted with five years’ imprisonment.

2. The offender raped the victim while she was asleep. Her unawareness did not mitigate the offence, just as unconsciousness through drink would not have done. It explained why she was not frightened and did not resist, but it did not reduce the gravity of the rape.

3. The court rejected the view that the victim’s anger, rather than greater distress, reduced harm. She knew that she had been raped by someone she had trusted in her home and with her child. That was a gross breach of trust.

4. A sentencing judge must reflect what happened and the circumstances in which the rape occurred. Relevant circumstances included that the victim had unequivocally ended the sexual relationship, had recently terminated a pregnancy by the offender, and was exposed by the unprotected rape to the risk of another unwanted pregnancy.

5. Although the circumstances were unusual and the penetration was brief, there was no guilty plea and the victim gave evidence at trial. Even the original sentence of three and a half years’ detention might have been unduly lenient; the reduced sentence undoubtedly was.

• Court of Appeal (Criminal Division): granted leave under section 36 of the Criminal Justice Act 1988, held the reduced sentence unduly lenient, and substituted five years’ imprisonment: [2011] EWCA Crim 636.
• Exeter Crown Court: following conviction for rape, imposed three and a half years’ detention in a young offender institution, then reduced it to two years’ detention.