R v BTU

Where a defendant has pleaded guilty to an incorrectly charged offence, the Court of Appeal may use section 3A of the Criminal Appeal Act 1968 to substitute a plea to the correct alternative offence, provided the statutory conditions are met and no more severe sentence is imposed.

For rape sentencing, severe psychological harm may be cumulative. The timing of a genuine suicide attempt does not matter if it is attributable to the offending. A sentence above the category 1 range requires offending of sufficient severity, such as a campaign of rape. Two exceptionally serious and aggravated rapes were not, without more, such a campaign.

The appellant was convicted in the Crown Court of two rapes and an indecent assault upon his adult daughter. He had previously pleaded guilty to two counts charged as incest under the Sexual Offences Act 1956. The offences underlying those pleas occurred in 2007 and should instead have been charged as sex with an adult relative under section 64 of the Sexual Offences Act 2003.

He received 23 years’ imprisonment for the rapes, with 18 months concurrently for indecent assault, and a consecutive four-and-a-half-year term for the incest counts. He sought an extension of time and leave to appeal against conviction, so that the charging error could be corrected, and appealed his sentence as manifestly excessive.

The central issues were whether section 3A of the Criminal Appeal Act 1968 permitted substituted guilty pleas, and whether the sentence for the rapes could properly exceed 20 years.

1. The court allowed the appeal against sentence. It granted the extension of time and leave to appeal against conviction, but used section 3A of the Criminal Appeal Act 1968 instead of allowing or dismissing that appeal.

2. The appellant’s guilty pleas to incest under section 10 of the Sexual Offences Act 1956 admitted facts establishing the equivalent section 64 offences under the Sexual Offences Act 2003. The indictment could have been amended to charge those offences. The court therefore substituted guilty pleas to two section 64 counts without requiring a re-arraignment, and was empowered to impose a sentence no more severe than the original sentence.

3. The rapes were correctly categorised as category 1 offences. The appellant knowingly exploited a particularly vulnerable and profoundly damaged victim, used emotional manipulation and alcohol, and caused severe psychological harm of an extreme nature. The harm was properly assessed as cumulative. The court approved the observations in R v JM [2015] EWCA Crim 1638 that the timing of genuine suicide attempts is immaterial if they are attributable to the offending.

4. However, 23 years for the rapes was manifestly excessive. The two rapes were extremely serious and aggravated by the paternal relationship, but they were not offending akin to a campaign of rape. A sentence exceeding 20 years was therefore not justified. Concurrent sentences of 19½ years were substituted for the rape counts; the concurrent 18-month sentence for indecent assault remained.

5. For the two section 64 offences, raised harm and culpability justified 18 months’ imprisonment on each count, concurrent with each other but consecutive to the rape sentences. Applying totality, the substituted total sentence was 21 years’ imprisonment.

• Court of Appeal (Criminal Division) — in [2024] EWCA Crim 1006, the court substituted guilty pleas to offences under section 64 of the Sexual Offences Act 2003 and allowed the appeal against sentence, reducing the total sentence from 27½ years to 21 years.
• Crown Court — in September 2023, the appellant was convicted of two rapes and indecent assault and sentenced to 23 years’ imprisonment for the rapes, with a concurrent 18-month term for indecent assault. He had pleaded guilty in 2020 to two counts charged as incest under the Sexual Offences Act 1956, for which he received concurrent four-and-a-half-year terms consecutive to the rape sentences. No lower-court citation was stated.