Mamaliga, R. v

Under the sexual-offences sentencing guideline, offending falls within harm Category 1 where the extreme nature of one or more Category 2 factors, or their combined extreme impact, warrants elevation. Factors used to fix the guideline category must not be double-counted as aggravation. Distinct aggravating features may nevertheless justify a substantial increase from the Category 1A starting point and range.

A sustained, planned joint sexual attack involving violence beyond that inherent in the offence and uninvited entry into the victim’s bedroom was properly classified as Category 1A. A relevant previous rape conviction, additional penetrative offending, restraint, profound impact and associated theft justified an 18-year custodial term within an extended sentence.

Following a trial at Isleworth Crown Court, the two offenders were convicted of rape, assault by penetration and attempted rape. They had also pleaded guilty to theft and actual bodily harm. The Recorder imposed extended sentences of 20 years for rape, comprising 12 years’ custody and eight years’ extended licence, with concurrent sentences for the remaining offences.

The Solicitor General referred the sentences to the Court of Appeal under section 36 of the Criminal Justice Act 1988 as unduly lenient. The central issues were whether the rape should have been categorised as Category 1A under the definitive guideline and whether the sentence adequately reflected aggravating features beyond those used for categorisation.

1. The Attorney General’s reference was allowed. The sentences were unduly lenient because the Recorder had wrongly placed the rape within Category 2A rather than Category 1A.

2. The sexual-offences guideline permits elevation to harm Category 1 where one or more Category 2 factors are extreme, or where their combined impact is extreme. This was a sustained incident. It involved violence and threats beyond those inherent in rape, and the offenders entered the victim’s bedroom without invitation. The offending was also properly within culpability Category A because it was planned and jointly committed.

3. The court accepted that factors used for categorisation must not be double-counted. However, separate aggravating features required a significant upward adjustment from the 15-year Category 1A starting point. They included targeting and grooming the victim, offending in her home and bedroom, use of ties and a towel to restrain and terrify her, profound and lasting impact, the offenders’ French conviction for rape, multiple penetrative or attempted penetrative acts, and theft of irreplaceable sentimental property.

4. There was scarcely any mitigation. The finding of dangerousness was justified. Pursuant to section 326 A of the Criminal Justice Act 2003, the court substituted, on the rape count, an extended sentence of 24 years for each offender: 18 years’ custody and six years’ extended licence. The concurrent sentences on the other counts remained in place.

• Court of Appeal (Criminal Division): By [2018] EWCA Crim 515, the court allowed the Attorney General’s reference under section 36 of the Criminal Justice Act 1988 and substituted longer extended sentences.
• Isleworth Crown Court: On 1 December 2017, following trial, the Recorder imposed extended sentences of 20 years for rape, comprising 12 years’ custody and eight years’ extended licence.