Nouri & Anor, R v

An imprisonment for public protection sentence requires sufficient evidence of a significant risk that serious specified offending will recur. The gravity of the index offences, a demonstrated loss of control and adverse pre-sentence assessments may establish dangerousness, but they do not alone establish that risk. The absence of previous offending and of evidence of a pattern capable of recurring may show that the statutory threshold is not met.

In rape sentencing, a single-victim case with several Category 2 features and substantial aggravating factors may properly attract a sentence equivalent to a Category 1 case where the combined seriousness takes it beyond the ordinary Category 2 range.

The appellants pleaded guilty at Preston Crown Court to two counts each of rape contrary to section 1(1) of the Sexual Offences Act 2003. The Recorder imposed imprisonment for public protection, with a minimum period of six years after credit for guilty pleas.

The victim had been taken while intoxicated and drug-affected to Nouri’s flat, where the appellants participated in a sustained and humiliating sexual attack. On appeal, they challenged both the notional determinate sentence of 16 years after trial and the finding that they were dangerous. Ibrahim also challenged the level of guilty-plea credit and the absence of differentiation between the appellants.

1. The appeals were allowed in part. The court upheld the assessment that a determinate sentence of 16 years’ imprisonment following trial was appropriate, but held that imprisonment for public protection should not have been imposed. It substituted determinate sentences of 12 years’ imprisonment for each appellant, reflecting 25 per cent credit for the guilty pleas.

2. The offending did not fall within Category 1 merely because it involved repeated rape of one victim. With one victim, that category was principally directed to a campaign of rape over time. However, this attack had several Category 2 features: abduction or detention, more than one offender acting together, and a sustained attack. It also involved material aggravating features, including ejaculation and exploitation of the victim’s drunken and drug-affected condition. The combined features properly took the case above the ordinary Category 2 range and justified a sentence equivalent to a Category 1 case.

3. For an IPP, the court had to be satisfied that there was a significant risk of serious harm through further specified offending. Applying R v Lang [2005] 1 Cr App R(S) 34, that requires more than a mere possibility; the risk must be noteworthy or of considerable amount or importance.

4. The offences were exceptionally serious and showed a callous abuse of a vulnerable victim. They also showed a serious lack of control. Nevertheless, there was insufficient evidence that similar serious sexual offending was likely to recur. Neither appellant had previous convictions, there was no real evidence of a pattern of behaviour, and the assessment concerning Nouri contained factual misconceptions. The index offences and the appellants’ attitudes could not, without more, establish the required significant risk.

5. The court also rejected Ibrahim’s further arguments. The Recorder was entitled to allow only 25 per cent credit because the plea was not entered at the earliest opportunity. He was also entitled to make no relevant distinction between the appellants’ offending.

• Court of Appeal (Criminal Division): allowed the sentence appeals in part and replaced the IPP sentences with determinate sentences of 12 years’ imprisonment.
• Crown Court at Preston: the Recorder sentenced each appellant to imprisonment for public protection, with a specified minimum period of six years less time served.