Yuel (aka Berhe), R v

When sentencing a mentally disordered offender, a court must consider all available disposals, including a hybrid order under section 45A. Rehabilitation does not displace the need for punishment and public protection. The penal element must reflect culpability and harm.

In rape sentencing, multiple category 2 harm factors may elevate offending to category 1 where their nature or combined impact is extreme. Where an offender subject to a hybrid order presents a serious continuing risk which is not confined to mental illness, an extended sentence may be required to provide protection after hospital detention ends.

The offender was convicted at Inner London Crown Court of five counts of vaginal rape, one count of oral rape, and breach of a Sexual Harm Prevention Order. He had followed the victim home, forced his way into the communal area of her building, and committed repeated sexual assaults.

The sentencing judge imposed concurrent terms of 11 years' imprisonment for the rape offences and a hybrid order. The Solicitor General referred the sentences as unduly lenient, contending that the offences fell within category 1B of the rape guideline and that the judge should have imposed extended sentences because of the offender's dangerousness.

1. The reference was allowed and the sentences were varied. The court substituted, on each rape count, an extended sentence of 14 years' custody and a five-year extended licence period. The hybrid order and the other orders under the Mental Health Act 1983 remained in place.

2. The court applied the sentencing principles explained in R v Edwards and Others [2018] EWCA Crim 595. A sentencing court must consider a hospital order and all available disposals, including a section 45A hybrid order. It must give proper weight to punishment and public protection, as well as rehabilitation, and must assess culpability and harm when fixing the necessary penal element.

3. The judge had correctly treated culpability as category B. However, the rape offending fell within category 1 harm, not category 2. The offender targeted and followed a lone victim, forced entry into her home, committed repeated oral and vaginal rapes with ejaculation, caused considerable psychological harm, and used violence beyond that inherent in rape by holding her neck and choking her. Those features made the offending exceptionally grave. Category 1B therefore applied, with a 12-year starting point and a range of 10 to 15 years.

4. The offender's mental disorder afforded limited mitigation. The medical evidence did not show that the offending was solely or clearly attributable to it. His previous sexually violent offending, offending while on licence and in breach of the SHPO, and intoxication were further aggravating features.

5. The offender was plainly dangerous. Applying the approach illustrated by Attorney General's Reference No 91 of 2014 [2014] EWCA Crim 2891, the protection supplied during hospital detention did not remove the need for an extended sentence. His continuing risk of serious harm to women required additional protection upon release.

• Court of Appeal (Criminal Division): The Solicitor General's reference under section 36 was allowed. The court substituted extended sentences for the determinate sentences on the rape counts.

• Inner London Crown Court: The offender was convicted by a jury on 20 June 2019 and sentenced on 26 July 2019 to concurrent terms of 11 years' imprisonment for the rape offences, together with a hybrid order under the Mental Health Act 1983.