P.R., R v

A sentencing judge may rely on a jury’s necessary findings when assessing the seriousness of associated offending. A guideline feature capable of aggravating sentence after categorisation may also inform categorisation where the guideline expressly permits it. Rape within an established relationship does not automatically involve a breach of trust, but previous violence against the complainant may independently establish higher culpability.

Sentencers must avoid double counting violence used to place an offence in a higher culpability category. They may nevertheless reflect the nature and extent of that violence when selecting a sentence within the applicable range. An unexplained delay in seeking permission to appeal against sentence will not justify an extension where the proposed appeal has no merit.

The applicant was convicted at Liverpool Crown Court of rape and of putting the complainant in fear of violence by harassment, contrary to section 4(1) of the Protection from Harassment Act 1997. He received eleven years’ imprisonment for rape and a concurrent term of two and a half years for harassment.

He sought an extension of 111 days to apply for permission to appeal against sentence. He challenged the categorisation of the rape as Category 2A, the sentencing judge’s reliance on a history of violence, the treatment of mitigation and previous convictions, and the overall length of the sentence. The central issue was whether the sentence was manifestly excessive.

1. The Court declined the application for an extension of time. It found no arguable ground for a sentence appeal and held that the substantial delay had not been adequately explained.

2. The jury had been directed that it need not decide whether the applicant had engaged in controlling behaviour for the harassment count. Its guilty verdict nevertheless necessarily established, to the criminal standard, that he had assaulted the complainant on a number of occasions. The sentencing judge was entitled to rely on that conclusive finding when assessing the history of violence.

3. The rape was properly placed in Category 2 for harm. Its anal nature, the severe psychological harm, and the degradation and humiliation were relevant. Ejaculation, although capable of being an additional aggravating feature after categorisation, could also inform the Step 1 assessment where it had not otherwise been taken into account.

4. The Court noted O(D) [2014] EWCA Crim 2202, which made clear that an established relationship does not automatically make rape a breach of trust. Even without treating breach of trust as present, the applicant’s previous violence against the complainant independently placed culpability in Category A. Category 2A, with a starting point of ten years and a range of nine to thirteen years, was therefore justified.

5. The concurrent harassment sentence avoided double counting the violence used for categorisation. The prolonged and serious violence could still be reflected when selecting a sentence within the range. Together with similar previous convictions for violence against a former partner, it justified the modest increase from the ten-year starting point to eleven years’ imprisonment.

• Court of Appeal (Criminal Division) — in [2018] EWCA Crim 1072, declined an extension of time to seek permission to appeal against sentence.
• Crown Court at Liverpool — on 2 June 2017, convicted the applicant of rape and harassment and imposed eleven years’ imprisonment for rape with a concurrent sentence for harassment.