Gunning, R v

In a rare appropriate case, evidence on separate sexual counts may be cross-admissible both to rebut coincidence and to establish propensity. The question is fact-sensitive. It may be proper where the evidence on one count is substantially stronger, provided the directions clearly prevent error or impermissible double-counting.

An omission concerning a defence statement or an unput allegation will not render convictions unsafe unless it could realistically affect the jury’s assessment. Consecutive sentences for separate offences may be reduced on each count to reflect totality; the resulting aggregate sentence will stand unless wrong in principle or manifestly excessive.

The applicant was convicted at Lewes Crown Court of two counts of assault by penetration, contrary to section 2 of the Sexual Offences Act 2003. The incidents, involving different complainants, occurred about two years apart. He received consecutive terms of four and a half years’ imprisonment, totalling nine years.

Following the single judge’s refusals, he renewed applications for an extension of time and for leave to appeal against conviction and sentence. He contended that omissions concerning his defence statement and an unput assertion undermined the safety of the convictions. He also challenged the trial judge’s direction that the evidence on each count could be used both on coincidence and propensity, and submitted that the total sentence was excessive.

1. The renewed applications were refused. There was no arguable ground that either conviction was unsafe, and the nine-year aggregate sentence was neither wrong in principle nor manifestly excessive.

2. The applicant’s altered account of the first incident had to be assessed against his police interview. The fact that the change was acknowledged in the defence statement would not have improved his position. Admitting that statement could also have revealed further inconsistencies. The summing-up did not suggest that the altered account was a recent fabrication.

3. The judge’s comments on the allegation of a later meeting with the complainant did not undermine the safety of the verdict. Although the allegation had appeared in the defence statement, trial counsel’s instructions had changed. The judge also reduced the force of any possible adverse inference by inviting the jury to consider whether the matter had real significance.

4. R v M(H) [2011] EWCA Crim 730 did not prohibit directing a jury on both coincidence and propensity. It stated that this would be rare. On these facts, the second count was considerably stronger because digital penetration was admitted and the evidence strongly supported incapacity to consent. The first count depended principally on the complainant’s credibility. Both limbs could therefore properly be left to the jury, and the order in which they were given caused no unfairness because the directions were clear.

5. Each offence properly fell within Category 2B of the applicable sentencing guideline. Consecutive sentences were justified because they were separate offences against different women, committed two years apart. The judge gave sufficient effect to totality by reducing each sentence from the six-year starting point to four and a half years.

• Court of Appeal (Criminal Division): Refused the renewed applications for leave to appeal against conviction and sentence, and refused an extension of time.
• Crown Court at Lewes: The applicant was convicted on 13 October 2016 of two counts of assault by penetration and, on 12 January 2017, was sentenced to consecutive terms totalling nine years’ imprisonment.