R v ZHX (historic marital rape, deaf defendant)

Profound deafness may be treated as personal mitigation because custody will cause additional isolation and communication difficulties. It need not be classified as an exceptional circumstance.

Early-release provisions are ordinarily not a basis for reducing sentence because release is an executive matter. Although an exceptional case may exist, a sentence should not be reduced merely to secure release at the half-way point. An appellate court will not interfere where mitigation and aggravation have been reasonably balanced and the sentence is not manifestly excessive.

The appellant was convicted at Lewes Crown Court on 28 November 2025 of one count of rape against his now ex-wife, committed between 1 January 1992 and 31 December 1995. On 30 January 2026 he was sentenced to four years' imprisonment.

The sentencing judge assessed the offence under the Sentencing Council's Guideline on Rape, treated the aggravating and mitigating factors as broadly balanced, and reduced a notional five-year sentence by one year to reflect the particular hardship of custody caused by the appellant's profound deafness. The judge incorrectly stated that release would occur after one-half rather than two-thirds of the sentence.

On appeal, reliance was placed on R v Patel [2021] EWCA 231 and R v Purdy [2009] EWCA Crim 2667. The central issues were whether deafness was an exceptional circumstance and whether the sentence could be reduced to secure half-way release.

Appeal dismissed. The four-year sentence was upheld.

1. Sentencing assessment. The sentencing judge applied the Sentencing Council's Guideline on Rape, treating the case as category B culpability and category 3 harm, with a five-year starting point and a range of four to seven years. The aggravating features and the remaining mitigation were reasonably balanced.
2. Deafness. The appellant's profound deafness, reliance on British Sign Language and inability to read made imprisonment particularly difficult. The judge was entitled to treat deafness as personal mitigation rather than an exceptional feature. The one-year reduction gave sufficient weight to the additional punishment caused by isolation and communication difficulties: paras [18]-[20].
3. Early release. The court treated R v Patel [2021] EWCA 231 and R v Purdy [2009] EWCA Crim 2667 as supporting the general principle that the release date is not ordinarily taken into account because early release is a matter for the executive, not the courts. Even if the authorities leave open an exceptional case, this was not such a case. The sentence was not to be reduced below four years simply to secure release at the half-way point: para [19].
4. Other mitigation and appellate review. The judge had considered the delay, the appellant's lack of education and communication difficulties, limited offending history, Alzheimer's disease, learning difficulties and good character. The conclusion that these matters broadly balanced the aggravating features was reasonable. The sentence was not manifestly excessive: paras [21]-[22].
5. Release point. The judge's statement that the appellant would serve up to one-half of the sentence was legally erroneous; the applicable release point was two-thirds. That error did not justify reducing the lawful sentence: para [9].

1. Court of Appeal (Criminal Division): On 7 July 2026, the court dismissed the appeal against sentence. [2026] EWCA Crim 1049 .
2. Lewes Crown Court: The appellant was convicted on 28 November 2025 and sentenced on 30 January 2026 to four years' imprisonment.