Steltner, R. v

Evidence of a complainant’s previous sexual experience does not, without more, support a defendant’s asserted reasonable belief in consent. Under Youth and Criminal Evidence Act 1999, such evidence requires a strict statutory gateway and must be relevant to the issues at trial. Evidence that a complainant described herself as a virgin does not necessarily make evidence of earlier digital penetration necessary to correct a misleading impression.

Similar previous sexual convictions may properly be admitted as propensity evidence where their probative value is substantial and admission does not undermine trial fairness. On sentence, the appellate question is whether the final sentence is excessive or wrong in principle, assessed in the offender’s full circumstances rather than by considering an individual uplift in isolation.

The appellant, aged 17 at the time, was convicted at Kingston Crown Court of rape and assault by penetration of a 14-year-old complainant. He received eight years’ detention in a young offender institution for rape and four concurrent years for assault by penetration.

His conviction appeal challenged the exclusion, under section 41, of messages referring to the complainant’s previous digital penetration and the admission of his earlier similar sexual convictions as bad-character evidence. His sentence appeal contended that the eight-year sentence was manifestly excessive. A single judge refused leave, but the full court granted leave on renewal.

1. The appeals against conviction and sentence were dismissed.

2. The trial judge correctly excluded evidence that the complainant had previously experienced digital penetration. Section 41 of the Youth and Criminal Evidence Act 1999 applied. Previous sexual experience did not assist the asserted reasonable belief in consent because the disclosure arose only from the appellant’s questioning and had no connection with their relationship or the complainant’s conduct towards him.

3. The remaining messages fairly conveyed that the complainant contemplated sexual activity only in specified circumstances. Her statement that she was a virgin did not suggest that she could not consent to activity she had not previously experienced. Digital penetration and sexual intercourse were materially distinct. The excluded material was therefore neither relevant to consent or reasonable belief nor necessary to rebut a misleading impression.

4. The judge was entitled to admit the appellant’s earlier similar convictions under section 101(1)(d) of the Criminal Justice Act 2003. Their close similarity and circumstances supported propensity. Although the complainant’s credibility was central and her account contained inconsistencies, those matters did not significantly undermine the prosecution case or make admission unfair under section 101(3).

5. The sentencing judge had properly reduced the sentence to reflect the appellant’s youth. The Court assessed the final sentence in light of the repeated similar offending shortly after the earlier convictions, online grooming, the aggravating features of the offences, and the substantial harm to the complainant. The sentence was stern but neither excessive nor wrong in principle.

• Court of Appeal (Criminal Division) — granted leave on renewal and dismissed the appeals against conviction and sentence.
• Single judge of the Court of Appeal — refused leave to appeal against conviction and sentence.
• Kingston Crown Court — on 25 April 2017, convicted the appellant of rape and assault by penetration and imposed eight years’ detention for rape with four years concurrent for assault by penetration.