R v Samuel Anthony Moulder

In an Attorney General’s reference against an unduly lenient sentence for two rapes, the Court of Appeal held that the second rape was a category 2A offence where violence and threats exceeded those inherent in rape and there had been previous violence against the victim. The applicable starting point was 10 years, subject to adjustment for aggravating and mitigating factors, delay, totality and avoidance of double counting. A seven-year starting point, without reasons for departing from the Sentencing Council Guidelines, was too low. The court could reflect the criminality of both offences in the sentence for the more serious count, with the sentence for the first count concurrent. The first rape remained category 3B, and its five-year sentence was undisturbed.

Following a jury trial at the Crown Court at Gloucester, Samuel Moulder was convicted of two rapes against the same victim and sentenced to a total of eight years’ imprisonment. The Attorney General sought leave to refer the sentence as unduly lenient. The grounds concerned the categorisation of both offences, the treatment of aggravating features, the uplift for the first rape, and a reduction for totality in light of an earlier sentence for separate offending. The Court also addressed the effect of the respondent’s failure formally to enter pleas after concerns about his fitness to plead. The central issues were whether the conviction was safe and whether the sentence properly reflected the seriousness and totality of the offending.

Reference allowed in part.

1. The respondent had not formally entered pleas because of earlier concerns about fitness to plead. Since he had been treated as pleading not guilty and had been convicted by a properly directed jury after a trial, the procedural irregularity did not make the convictions unsafe. The court relied on R v Williams [1978] QB 373.
2. The judge was entitled to categorise the first rape as category 3B. Having heard the trial, he was best placed to assess whether previous violence against the victim had been proved. The five-year sentence reflected the applicable starting point and took account of aggravating matters, delay and the respondent’s mental health issues.
3. It was common ground that the second rape was category 2A. It involved violence or threats beyond those inherent in rape and previous violence against the victim. The applicable starting point was 10 years, with a range of nine to 13 years for that offence alone. Aggravating factors included previous convictions, breach of a community order, the victim’s home being the location, steps taken to prevent reporting, and offending while under the influence of alcohol or drugs. Mitigating factors included mental disorder and delay.
4. The criminality of both rapes could appropriately be reflected in the sentence for the second and more serious rape, while avoiding double counting and giving proper effect to totality. The judge’s seven-year starting point for the second rape was too low and did not comply with the Guidelines. No reason for departing from them had been given. A proportionate sentence was 12 years for the second rape, increased from eight. The five-year sentence for the first rape remained concurrent.

1. Court of Appeal (Criminal Division) — On a reference under section 36 of the Criminal Justice Act 1988, the court allowed the reference to the extent of increasing the sentence for the second rape from eight to 12 years. The five-year sentence for the first rape remained concurrent: [2023] EWCA Crim 49.
2. Crown Court at Gloucester — Following conviction for two rapes, the respondent was sentenced to a total of eight years’ imprisonment, with the second rape treated as the lead offence.