R v Mohsen Gheibi

In sentencing for rape under the applicable guideline, the court must give sufficient reasons for conclusions on particular vulnerability and uninvited entry. Being alone at night after consuming alcohol or drugs does not itself establish particular vulnerability; the effects of intoxication must be sufficiently marked.

The trial judge assesses whether psychological harm is severe on the evidence. However, where the offending falls within category 2B, a sentence must reflect the eight-year starting point and relevant aggravating features. Positive good character, as distinct from an absence of previous convictions, will not normally carry significant weight.

Following a trial in the Crown Court at Bristol, the defendant was convicted of rape, contrary to section 1(1) of the Sexual Offences Act 2003, and sentenced to six years and nine months’ imprisonment. The complainant had been affected by alcohol and cannabis before the defendant accompanied her home and raped her.

The Attorney General referred the sentence under section 36 of the Criminal Justice Act 1988 as unduly lenient. The principal issues were the proper category under the rape sentencing guideline, the complainant’s vulnerability, whether the defendant’s entry was uninvited, the extent of psychological harm, and the appropriate sentence.

1. The court granted the Attorney General’s application. It quashed the sentence of six years and nine months and substituted eight years and nine months’ imprisonment.

2. The sentencing judge should have provided a brief but substantive explanation for treating the complainant as particularly vulnerable and the defendant’s entry as uninvited. A woman’s being alone at night after consuming alcohol or drugs does not, without more, meet the high threshold of particular vulnerability due to personal circumstances. The degree of intoxication must be sufficiently marked. On the evidence as a whole, however, the judge had a sustainable basis for finding the complainant particularly vulnerable on that night.

3. Although the complainant had given differing accounts about how the defendant entered the house, it was open to the judge to find that his entry was uninvited and that he knew it. The jury’s rape verdict necessarily involved lack of consent, and the evidence supported that conclusion.

4. Whether psychological harm is severe is an evidential assessment for the sentencing judge. Applying R v Chall and Others [2019] EWCA Crim 865, the court recognised that the judge had heard the evidence and had found the harm just short of severe. The harm was nevertheless close to the boundary between categories 2 and 3 and had serious, enduring consequences.

5. The case was category 2B, with an eight-year starting point and a range of seven to nine years. There had to be upward movement for ejaculation without protection, the time and location of the rape, the need for the complainant to move home, and the overall consequences of the offending. The defendant’s lack of convictions was mitigating, but positive good character should not normally receive significant weight. A sentence of eight years and nine months was appropriate; the two-year shortfall made the original sentence unduly lenient.

• Court of Appeal (Criminal Division): granted the Attorney General’s application under section 36 of the Criminal Justice Act 1988, quashed the sentence, and substituted eight years and nine months’ imprisonment.
• Crown Court at Bristol: following conviction for rape, imposed a sentence of six years and nine months’ imprisonment on 10 June 2022.