R v Mark Winterburn

When applying the Sentencing Council’s Rape Guidelines, two or more category 2 harm factors do not justify elevation to category 1 merely because they are present together. Elevation requires the extreme nature of one or more factors, or an extreme impact caused by their combination. The sentencing judge must address that threshold expressly and explain why it is met. Where the threshold is not met, the offence must remain in the appropriate category 2 bracket. Aggravating factors may then justify a sentence at the top of that bracket. An extended determinate sentence remains available where the offender is dangerous within the statutory meaning.

The appellant was convicted in the Crown Court at Leeds of rape and sentenced to an extended determinate sentence of 19 years, comprising 14 years’ custody and a five-year extended licence period. The sentencing judge classified the offence as category 1B under the Sentencing Council’s Rape Guidelines, treating the victim’s vulnerability due to intoxication and the uninvited entry into her home as category 2 harm factors which, in combination, elevated the harm to category 1.

With permission, the appellant appealed against sentence. The central issue was whether those factors were sufficiently extreme, individually or cumulatively, to justify category 1B rather than category 2B.

1. Appeal allowed. The Court of Appeal quashed the 19-year extended determinate sentence and substituted one of 14 years, comprising nine years’ custody and a five-year extended licence period.
2. The Sentencing Council’s Rape Guidelines permit elevation from category 2 harm to category 1 only where the extreme nature of one or more category 2 factors, or the extreme impact caused by their combination, justifies that course. The mere presence of multiple category 2 factors is insufficient.
3. Here, the two factors were the uninvited entry into the victim’s home and her particular vulnerability because she was intoxicated. Nothing indicated that either factor was extreme, or that their combination caused an extreme impact. The sentencing judge had not addressed the nature of the factors or explained why the combined impact was extreme. The offence should therefore have been categorised as 2B.
4. The category 2B starting point was eight years, with a range of seven to nine years. The aggravating features, including the appellant’s offending record, the commission of the offence whilst on licence, and its timing and location, justified moving to the top of the range, namely nine years.
5. The judge was entitled to find that the appellant was dangerous within the meaning of the Sentencing Act 2020. The five-year extended licence period was therefore maintained.

• Court of Appeal (Criminal Division): R v Mark Winterburn [2024] EWCA Crim 520. Appeal against sentence allowed; the extended determinate sentence was reduced from 19 years to 14 years.
• Crown Court at Leeds: The appellant was convicted of rape on 7 July 2023 and sentenced on 21 August 2023 to an extended determinate sentence of 19 years.