Dogra, R. v

A “significant degree of planning” under the Sexual Offences sentencing guideline is a fact-sensitive evaluative judgment. Planning inherent in sexual offending, including a short pursuit, does not automatically meet the higher culpability threshold. The sentencing court should assess the nature, duration and calculation of the conduct in its full context.

Multiple Category 2 harm factors may justify sentencing in the range which crosses towards Category 1. Where several serious sexual offences form one incident, concurrent sentences may be accompanied by a substantial uplift to the principal rape sentence so that it reflects the overall criminality, subject to totality.

The appellant was convicted by a jury at the Crown Court at Reading of oral rape, two assaults by penetration and causing the complainant to engage in sexual activity without consent. The offences formed a single attack on a young woman whom he followed from a railway station before taking her into a wooded area and sexually assaulting her.

The sentencing judge imposed an extended sentence of 15 years’ imprisonment for rape, comprising a custodial term of 13 years and a two-year extension, with concurrent sentences on the remaining counts. The appellant obtained an extension of time to appeal against sentence. He contended that the judge had wrongly found a significant degree of planning and had overstated the harm category, making the sentence manifestly excessive.

Decision

1. The court dismissed the appeal against sentence. Although the sentence was at the very highest end of the available range, it was not manifestly excessive.

2. The sentencing judge was not justified in treating the offending as falling within culpability Category A solely by reason of a “significant degree of planning”. That expression is not a semantic label but requires judgment on all the facts. Some planning is inevitable in many sexual offences, including a short pursuit. Here the appellant had no prior plan to commit a sexual assault before seeing the complainant. His calculated and prolonged pursuit was serious, but the court was not persuaded that it clearly met the higher guideline threshold. The appropriate culpability category was therefore B.

3. The harm assessment nonetheless justified a sentence at the top of the relevant range. The complainant was vulnerable because she was alone, young and attacked at night in an isolated place. The attack was sustained. She was forcibly moved from a public path into woodland and threatened with a knife. The combination of those Category 2 factors supported the sentencing judge’s approach to the cross-over between Categories 2 and 1, without requiring a firm placement in Category 1.

4. The rape sentence properly reflected the additional, degrading sexual offences committed in the same incident. Although concurrent sentences were appropriate, the principal sentence required a substantial uplift to achieve a proportionate overall sentence. There was no mitigating factor of weight. The appellant’s cocaine use was an aggravating feature. His status as a dangerous offender, and the appropriateness of an extended sentence under section 226 A of the Criminal Justice Act 2003, were not challenged.

• Court of Appeal (Criminal Division): The court granted an extension of time to appeal against sentence and dismissed the appeal.
• Crown Court at Reading: The appellant was convicted on 2 October 2017. On 3 November 2017, the trial judge imposed an extended sentence of 15 years’ imprisonment for rape and concurrent sentences for the other sexual offences.