R v Leon Austin

When applying the rape sentencing guideline, a sentencing judge may take account of the factors which justify placing harm in a higher category when deciding where within that category range the sentence should fall. That is not impermissible double-counting. The same factor may also increase culpability as well as harm. Previous good character normally carries little or no significant weight in a serious rape sentence, and a guilty plea remains the principal mitigation where appropriate credit has been given. An appellate court will not interfere with a severe sentence where the judge identified the relevant aggravating and mitigating features, made a proper totality adjustment, and the aggregate sentence is just and proportionate.

The appellant pleaded guilty in the Crown Court at Bristol to six offences committed against two complainants. They comprised two rapes of AB, one attempted choking offence intended to facilitate rape, and three rapes of CD. The sentencing judge imposed concurrent extended sentences of 25 years, consisting of a 20-year custodial term and a five-year extension period.

With limited leave, the appellant appealed against sentence. He argued that the judge had double-counted matters used to categorise harm, given insufficient weight to personal mitigation, and made an inadequate reduction for totality. The central issues were whether the sentencing approach involved an error of principle and whether the total sentence was manifestly excessive.

1. Appeal dismissed. The sentence was neither manifestly excessive nor wrong in principle.
2. The judge was entitled to treat AB's age, circumstances, dependence on local-authority care and intoxication as relevant to her vulnerability. The 10-year age disparity was not itself identified as a factor making either complainant particularly vulnerable, so there was no error in relation to age disparity.
3. There was no double-counting in the sentence for the offences against CD. The number of rapes was distinct from their nature and deliberate humiliating purpose. The attempted choking was properly treated as an extremely serious aggravating factor. A factor which has contributed to a category 1 assessment of harm may properly be considered again when deciding the appropriate position within that category range, in accordance with the guideline. Strangulation could also increase culpability as well as harm.
4. The community order received negligible weight. The judge was not required to reduce the sentence for the appellant's personal mitigation. In serious rape offences, having no previous convictions is distinct from previous good character or exemplary conduct and normally attracts no significant weight. The remorse relied upon had to be viewed against the later, more violent offending. The appellant received due credit for his guilty pleas.
5. The judge's upward adjustments for both sets of offences were amply justified. He made an 18-month reduction for totality. Considering the separate offending against two victims, the aggregate sentence was severe but condign, and just and proportionate.

• Court of Appeal (Criminal Division): [2023] EWCA Crim 1192. The appeal against the sentence imposed by the Crown Court at Bristol was dismissed.
• Crown Court at Bristol: On 23 March 2023, His Honour Judge Cullum imposed an extended sentence of 25 years, comprising a 20-year custodial term and a five-year extension period, concurrent on all six counts.