Abdoule, R. v

Under the rape sentencing guideline, a court must assess harm and culpability independently and consider the cumulative impact of the applicable factors. Category 2 harm factors may place offending in Category 1 where their combined effect is extreme. The prosecutor’s view of categorisation does not affect that judicial task.

The possibility of deportation is irrelevant to the length of sentence. Where the offending is properly categorised as Category 1A and there is no mitigation, a sentence materially below the applicable starting point may be unduly lenient.

The offender was convicted at Hull Crown Court of anal and vaginal rape of the same 17-year-old complainant. The offences involved coercing her to return to his flat, threats, a weapon, sustained sexual violence and subsequent threats to prevent reporting.

On 8 February 2018, the Crown Court imposed concurrent sentences of 11 years’ imprisonment. The Solicitor General referred those sentences as unduly lenient under section 36 of the Criminal Justice Act 1988. The central issue was whether the offending should have been categorised under the rape sentencing guideline as Category 1A rather than Category 2A.

1. Reference allowed. The court granted leave and held that the concurrent 11-year sentences were unduly lenient. It substituted concurrent sentences of 15 years’ imprisonment for each rape.
2. Sentencing categorisation is for the judge, applying the applicable guideline. The prosecution’s view of the proper category is irrelevant. The possibility that an offender may be deported is also irrelevant to sentence. The court restated that principle by reference to Attorney General's Reference No 41 of 2013 (M), [2014] 1 Cr.App.R (S) 80, although it found that the sentencing judge had not in fact allowed deportation to affect the sentence.
3. The offending contained several Category 2 harm factors: it was sustained; it involved threats of violence beyond those inherent in rape; the complainant was vulnerable in the circumstances; and it involved additional degradation. The offender’s coercive and deceptive conduct in taking the complainant to the flat added to their impact. Taken cumulatively, those factors had an extreme effect and placed the harm in Category 1.
4. Culpability was correctly assessed as Category A. The offender had planned to rape the complainant, the offending was racially aggravated, and she was trapped in his home. Use of a weapon and the later threat to kill her if she reported the offences were further aggravating features. There was no mitigation: the offender contested the charges and had a previous conviction for violence.
5. The overall seriousness was therefore Category 1A, for which the starting point was 15 years. That was the least sentence which should have been imposed. The offender received 35 days’ credit for a qualifying bail curfew and electronic monitoring condition.

• Court of Appeal (Criminal Division): Allowed the Solicitor General’s unduly lenient sentence reference and substituted concurrent sentences of 15 years’ imprisonment.
• Hull Crown Court: Following conviction for two rapes, imposed concurrent sentences of 11 years’ imprisonment on 8 February 2018.