A v R. (Rev 3)

A sentencing judge may sentence only for offences of which the defendant has been convicted, or which the defendant has asked to be taken into consideration. A course-of-conduct count under Rule 14.2(2) must therefore be framed so that a guilty verdict reveals a sufficient and clear basis for realistic sentencing. Where a multiple-incident count requires proof only of more than one incident, and the verdict does not reveal more, sentence may be imposed only on the basis of two incidents.

A conviction of one defendant and a jury’s failure to agree about another defendant on distinct allegations does not ordinarily disclose a logical inconsistency. Fresh evidence which adds nothing material to the jury’s assessment of a complainant’s reliability does not render convictions unsafe.

The appellant was convicted at Southampton Crown Court of rape and sexual assault by penetration on multiple-incident counts. He received 16 years’ imprisonment for rape and a concurrent eight-year term for sexual assault by penetration.

He renewed an application to appeal against conviction, relying on alleged inconsistency between the verdicts concerning him and those concerning his father, and on fresh evidence said to undermine the complainant’s credibility. He also appealed against sentence. The central sentencing issue was whether the judge could sentence him as having committed a sustained campaign of offending when the counts and verdicts established only that each offence occurred on more than one occasion.

1. The appeal against conviction was dismissed. The allegations against the appellant and his father concerned separate offending on different occasions. Each gave separate evidence, and the jury could reach different conclusions about their credibility. A guilty verdict against the appellant and a failure to agree on a rape count against his father were not irreconcilable conclusions. A failure to agree is not an acquittal, and it will only rarely provide a basis for challenging a conviction by comparison with another count or defendant.

2. The fresh evidence did not make the convictions unsafe. The two new witnesses could not identify the content or context of the complainant’s alleged small lies. The only evidentially supported explanation was that she referred to discrepancies already exposed in cross-examination. The evidence would therefore have added nothing material to the jury’s assessment of her credibility.

3. The appeal against sentence was allowed to a limited extent. The court applied the cardinal rule, reflected in R v Canavan [1998] 1 Cr App R 79, that sentence may not be increased for unindicted and unadmitted offences. Rule 14.2(2) permits a count alleging a course of conduct, but it does not permit a judge to treat conviction on an imprecisely framed multiple-incident count as proof of an undefined wider campaign.

4. The prosecution should frame a sufficient number and breadth of course-of-conduct or individual counts to reflect the alleged criminality and enable proper sentencing, without overburdening the indictment. Here the counts required proof only of more than one incident. Since the jury’s verdict gave no basis for finding more, the appellant had to be sentenced for two rapes and two sexual assaults by penetration only.

5. The original sentence was excessive. The court substituted 12 years’ imprisonment for rape and a concurrent six years for sexual assault by penetration. The overall sentence was therefore 12 years’ imprisonment.

1. Court of Appeal (Criminal Division) — In A v R. (Rev 3) [2015] EWCA Crim 177, the court dismissed the appeal against conviction and allowed the appeal against sentence only to substitute reduced concurrent sentences.
2. Crown Court at Southampton — The appellant was convicted of rape and sexual assault by penetration on 17 April 2013 and sentenced on 22 May 2013 to 16 years’ imprisonment and a concurrent term of eight years’ imprisonment.