R v Craig Welsh

For sentencing a category 2B rape, the starting point is eight years, within a seven-to-nine-year range. Aggravating and mitigating features must be assessed, including mental disorder where custody may weigh more heavily or worsen the condition. Temporary prison conditions do not justify reducing a longer custodial sentence. When several offences are sentenced together, totality remains essential. The reference was allowed: the rape term was increased to eight years and the consecutive term for non-fatal strangulation reduced to nine months, producing an overall sentence of eight years and nine months.

The Solicitor-General referred a sentence under s.36 of the Criminal Justice Act 1988. Following conviction after trial for rape and non-fatal strangulation, the Crown Court at York imposed six years for rape and a consecutive year for strangulation, making seven years. The reference challenged the use of a seven-year starting point for the rape, reductions for prison conditions and the reduction for totality. The central issue was whether the sentence was unduly lenient and, if so, what sentence properly reflected the offending, mitigation and totality.

The reference succeeded and the sentence was varied. The term for rape was increased from six years to eight years. The consecutive term for non-fatal strangulation was reduced from twelve months to nine months. The overall sentence therefore became eight years and nine months.

1. Rape. The applicable category 2B guideline provided an eight-year starting point and a range of seven to nine years. The sentencing judge’s stated seven-year starting point was legally wrong. Aggravating features included ejaculation and commission of the offence while on bail. Mitigating features included the absence of relevant previous convictions and the effect of the respondent’s mental disorder in making imprisonment more difficult. In broad terms, those factors balanced each other, so six years was unduly lenient.
2. Mental disorder. The psychological evidence did not reduce culpability, but that did not exclude mitigation. The Sentencing Council Guideline on Mental Disorders, Developmental Disorders and Neurological Impairments recognised that, where custody is unavoidable, the impact of a disorder may affect sentence length because custody may weigh more heavily or exacerbate the disorder.
3. Prison conditions. The court applied R v Tripathi [2024] EWCA Crim 763, which made clear that temporary prison conditions do not reduce longer custodial sentences. Any reduction on that basis was therefore erroneous, although the respondent’s actual mental-health difficulties in prison remained relevant mitigation.
4. Strangulation and totality. The starting point for non-fatal strangulation was eighteen months under the guidance in R v Cook [2023] EWCA Crim 452. Aggravating circumstances, including the complainant’s pregnancy, had to be balanced against mitigation and the need for totality. Taking those matters together, a consecutive term of nine months was appropriate.

• Court of Appeal (Criminal Division): In [2024] EWCA Crim 1149, the Attorney-General’s reference under s.36 of the Criminal Justice Act 1988 was allowed and the sentence was varied.
• Crown Court at York: Following conviction after trial, the court imposed six years for rape and a consecutive twelve months for non-fatal strangulation, totalling seven years.