R v R.A.T.S.H.

When sentencing depends on disputed facts with more than one possible interpretation, the court must be sure of the factual basis adopted. If it cannot be sure, it must sentence on the interpretation most favourable to the offender.

A sentencing error does not itself require intervention. The appellate court must assess whether the sentence as a whole is manifestly excessive or wrong in principle, having regard to totality. That assessment is not an exercise in reconstructing each individual sentence.

The applicant pleaded guilty in the Crown Court at Aylesbury to sexual offences against his stepdaughter, including rape, sexual activity with a child family member, assault by penetration, and offences concerning indecent images. He also admitted failing to surrender.

On 4 March 2022, the judge imposed an aggregate sentence of 18 years and four months’ imprisonment, with a one-year extended licence period. In sentencing for oral rape, the judge treated the offence as having caused the complainant to contract gonorrhoea.

The applicant sought leave to appeal out of time. He contended that the medical evidence permitted several explanations and could not establish, to the criminal standard, that the rape had transmitted a sexually transmitted infection. The central issue was whether that error rendered the overall sentence manifestly excessive.

1. Leave to appeal and the extension of time were granted, but the substantive appeal was dismissed. The applicant was not responsible for the delay, and the challenge had a real prospect of success.

2. For a sentencing judge to proceed on the basis that offending caused a sexually transmitted infection, the judge had to be sure of that fact. Where competing factual interpretations arise, the judge must resolve the factual basis to the criminal standard. If unable to do so, the judge must sentence on the interpretation most favourable to the offender. The court applied R v Cole Jarvis [2022] EWCA Crim 1251, which endorsed the relevant dictum in R v King [2017] EWCA Crim 128.

3. The medical evidence allowed three possibilities: a false initial positive result, a false subsequent negative result, or spontaneous clearance of an infection. There was no proper basis for being sure that the complainant had contracted and cleared gonorrhoea. The judge therefore erred in categorising the oral rape as category 2A on that basis; it should not have been elevated from category 3A by reference to transmission of infection.

4. That error did not determine the appeal. The court’s task was not to reconstruct the individual sentence. It had to decide whether the aggregate sentence was manifestly excessive in all the circumstances. The judge had structured the concurrent and consecutive terms fairly and with totality in mind. The two rapes, other serious sexual offences against a child, category A culpability, and aggravating features justified the overall term. The uncertainty and perceived need for treatment also had a real impact on the complainant and her mother.

5. The final sentence of 18 years and four months’ imprisonment, with a one-year extended licence period, was neither manifestly excessive nor wrong in principle.

• Court of Appeal (Criminal Division) — Leave to appeal against sentence and an extension of time were granted. The appeal against the aggregate sentence was dismissed.

• Crown Court at Aylesbury — On 4 March 2022, the applicant was sentenced to 18 years and four months’ imprisonment, with a one-year extended licence period.