Joshua Hamilton v R

An appellate court will not quash a conviction for late or non-disclosure where the material, considered individually and collectively, would not have affected the conduct or outcome of the trial. Similar accounts of psychological effects from separate traumatic events do not, without more, undermine credibility. The absence of an aggravating feature is not itself mitigation. Extreme intoxication and presence in the offender’s bed may be aggravating features without making the case fall within the higher vulnerability category. For an offender nearly 18, maturity must be assessed under the youth sentencing guideline; a one-third reduction was appropriate where there was no evidence of unusual immaturity. A factual sentencing error is immaterial where it did not aggravate the sentence or affect the judge’s reasoning.

The appellant was convicted of rape at the Crown Court at Chelmsford on 18 February 2022 and sentenced to four years’ imprisonment on 26 April 2022. He appealed against conviction with leave, relying on alleged non-disclosure concerning the complainant’s medical and counselling records and on a magazine article obtained after the verdict. He also appealed against sentence.

The central issues were whether the additional material could have affected the safety of the conviction or the conduct of the defence, and whether the sentencing judge had miscategorised the offence, treated matters improperly as aggravation or mitigation, or failed to assess the appellant’s maturity.

Both appeals were dismissed. The conviction was safe and the sentence was not manifestly excessive.

1. Disclosure and fresh evidence. There had been late disclosure of a counsellor’s view that she would probably have remembered any reference to forced oral sex. The material nevertheless provided no basis for concluding that the defence would have adopted a different course or that the trial outcome could have changed. The NHS counselling records contained no reference to the offence, and the undisclosed detail concerning another relationship was irrelevant and did not require disclosure.
2. Magazine article and credibility. The medical records confirmed that the complainant had experienced sepsis. Similarities between her descriptions of the psychological effects of rape and post-sepsis syndrome were capable of reflecting a consistent response by the same person to two traumatic events. They did not undermine her credibility. The court also considered the substantial forensic risks of cross-examining on the material, including the risk of emphasising her vulnerabilities and the effects of the rape.
3. Sentencing category. The judge rightly rejected category 2B, which depended on particular vulnerability arising from personal circumstances. The rape was properly placed in category 3B, with a starting point of five years and a range of four to seven years. The complainant’s extreme drunkenness and the fact that she was in the appellant’s bed were aggravating factors. The appellant’s good character and lack of previous convictions were mitigating factors.
4. Sentencing errors. The judge’s mistaken understanding of when thrusting occurred did not affect the sentence and was not relied on to aggravate it. The absence of ejaculation, threats or other aggravating features was not mitigation. The victim personal statement was given appropriate, not excessive, weight. As the appellant was nearly 18 and there was no evidence that he was less mature than an average 18-year-old, the one-third reduction under Sentencing Children and Young People was correct.

1. Court of Appeal (Criminal Division): On 20 July 2023, dismissed the appeals against conviction and sentence in [2023] EWCA Crim 850.
2. Crown Court at Chelmsford: Convicted the appellant of rape on 18 February 2022 and sentenced him to four years’ imprisonment on 26 April 2022.