REX v MARK MAKERI

For the rape sentencing guideline, a victim is not placed in harm Category 2 merely because she was vulnerable at the time of the offence. The specified factor requires that she was particularly vulnerable due to personal circumstances. That assessment concerns her vulnerability when the offence occurred, rather than her later ability to give evidence or communicate. Where that criterion is not established, the court must sentence within the appropriate lower category, consistently with the statutory duty to follow relevant guidelines unless the interests of justice require otherwise.

The appellant was convicted at Southwark Crown Court of one count of rape and acquitted of a further count. He received seven years and six months’ imprisonment.

The sentencing judge placed the offence in Category 2B under the Sentencing Council’s definitive guideline. He treated the complainant as particularly vulnerable because she was asleep, affected by alcohol and only beginning to regain consciousness when the rape occurred.

With permission, the appellant appealed against sentence. The central issue was whether those circumstances entitled the judge to find that the complainant was particularly vulnerable due to personal circumstances, so as to select Category 2B rather than Category 3B.

1. Appeal allowed. The sentence of seven years and six months’ imprisonment was quashed. A sentence of five years’ imprisonment was substituted.

2. Every rape seriously violates bodily integrity, autonomy and dignity. Sentencing must nevertheless be consistent. Under section 59(1) of the Sentencing Act 2020, a court must follow a relevant sentencing guideline unless doing so would be contrary to the interests of justice.

3. The court applied the distinction drawn in R v Begley [2018] EWCA Crim 336 and R v KH [2018] EWCA Crim 1819. The guideline requires more than ordinary vulnerability. The victim must be particularly vulnerable due to personal circumstances, and that vulnerability must exist at the time of the offence. Being asleep when the offending begins may make a victim vulnerable, but does not by itself establish the specified Category 2 factor.

4. Here, the complainant’s sleep, intoxication and return to consciousness described her situation during the offending. They did not establish particular vulnerability due to personal circumstances. The offence should therefore have been placed in Category 3B, not Category 2B. Taking account of the aggravating and mitigating features, five years’ imprisonment was just and proportionate.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence and substituted five years’ imprisonment.
• Crown Court at Southwark: Following conviction for rape on 11 March 2022, imposed seven years and six months’ imprisonment on 8 April 2022.