R v Connor George

A sentencing judge must not increase an offender’s culpability category on the sole basis of disputed allegations of prior violence where no evidence has been heard and no findings have been made about them. The fact that related charges resulted in formal not-guilty verdicts reinforces the need for that approach. The judge may instead hear evidence and determine the disputed allegations before relying on them at sentence.

Where the evidence supports the lower culpability category, serious aggravating features may justify a sentence at the top of that category’s guideline range, but cannot justify moving to a higher category without a proper factual basis.

The appellant was convicted at Basildon Crown Court of rape of a former partner and had pleaded guilty to possessing a bladed article. On 29 September 2023, the Recorder imposed ten years’ imprisonment for rape and a consecutive year for the weapon offence.

Before the rape trial, the prosecution had offered no evidence on separate counts alleging assault by penetration and controlling and coercive behaviour. Formal not-guilty verdicts were entered. At sentence, the Recorder treated alleged previous violence in the relationship as the sole basis for placing the rape in, or on the cusp of, culpability category 2A rather than category 2B.

The appellant renewed an application for permission to appeal against sentence, contending that reliance on those disputed allegations was wrong in principle and that the rape should have been categorised as 2B.

1. Appeal allowed. The court quashed the ten-year sentence for rape and substituted nine years’ imprisonment. The consecutive one-year sentence for possessing a bladed article, and the other consequential orders, remained unchanged. The total term was reduced from 11 to ten years’ imprisonment.
2. The Recorder erred in principle by relying on alleged previous violence as the sole basis for elevating culpability from category 2B to category 2A, or to the cusp between them. The appellant had denied the allegations. No evidence about them had been heard at trial, and the Recorder had made no findings about whether the alleged violence occurred.
3. The separate allegations had resulted in formal not-guilty verdicts after the Crown offered no evidence. In those circumstances, the Recorder could not use the asserted history between the couple to increase the sentencing category. There were also no previous convictions for violence against the complainant.
4. A sentencing judge could have heard evidence and made findings on the disputed wider allegations in order to reach the appropriate sentence. That did not occur here. On the evidence before the Recorder, the rape fell within category 2B.
5. The court nevertheless accepted the Recorder’s assessment of the offence’s grave seriousness and aggravating features. The rape was deliberate, humiliating and sustained, and warranted the top of the category 2B range. Nine years’ imprisonment was therefore appropriate.

• Court of Appeal (Criminal Division): In [2024] EWCA Crim 889, the court granted leave, allowed the appeal against sentence, and substituted nine years’ imprisonment for rape.
• Crown Court at Basildon: On 29 September 2023, the Recorder imposed ten years’ imprisonment for rape and a consecutive year for possession of a bladed article.