R v Oliver Jossie Mullen

In a rape trial, consent, capacity to consent and reasonable belief in consent should remain for jury determination unless no reasonable jury properly directed could convict. Evidence that an intoxicated complainant cooperated, communicated or performed sexual acts does not compel a finding of capacity or consent. The jury must assess whether cooperation resulted from free choice or impaired consciousness. In sentencing, consecutive and concurrent components are not governed by inflexible rules. The appellate question is whether the overall sentence is just, proportionate and not manifestly excessive. Consecutive extended sentences may therefore stand where the offending and continuing risk justify the total custodial and extension periods.

R v Oliver Jossie Mullen concerned a renewed application for leave to appeal convictions for two rapes and an appeal against sentence. The convictions followed a trial in the Crown Court at Bristol before Recorder Tait. The defence argued that the evidence concerning the second complainant was insufficient to leave consent, capacity and reasonable belief to the jury, and that the conviction on the first count was consequently unsafe. It also argued that consecutive extended sentences totalling 18 years breached the totality principle and were manifestly excessive. The central issues were whether either conviction was unsafe and whether the sentence involved an error of principle.

Disposition. The renewed application for leave to appeal against conviction was refused. The appeal against sentence was dismissed.

1. No case to answer. Consent, capacity to consent and reasonable belief in consent were matters for the jury. They should be withdrawn only where no reasonable jury, properly directed and considering the evidence as a whole, could convict.
2. Count 2. The complainant’s evidence that she had been violently sick, blacked out, felt paralysed and drifted in and out of consciousness provided ample evidence from which the jury could find that apparent cooperation was not the result of a free choice. Her ability to communicate, change position or participate in sexual activity did not compel a finding of capacity or consent. The jury could also conclude that the offender lacked a reasonable belief in consent. The proposed appeal concerning count 1 was likewise unarguable.
3. Sentence. The court accepted that the totality principle does not impose an inflexible rule requiring concurrent sentences. The overriding question is whether the overall sentence is just and proportionate. A lead-sentence structure would have been more consistent with the totality guideline, but the consecutive extended sentences were not wrong in principle or manifestly excessive. The two rapes involved separate women, occurred five years apart, and the second followed the offender’s arrest for the first. The combined four-year extension period was justified by the continuing risk of serious harm.
4. The court relied on the approach stated in R v Mandzikwa [2023] EWCA Crim 478: where the total sentence is not manifestly excessive, its structure is unlikely by itself to establish a ground of appeal.

• Crown Court at Bristol: The offender was convicted of two rapes on 29 July 2024 and sentenced on 9 October 2024 to consecutive extended sentences totalling 18 years.
• Single judge: Leave to appeal against conviction was refused. Leave to appeal against sentence was granted.
• Court of Appeal (Criminal Division): The renewed application concerning conviction was refused and the sentence appeal was dismissed: [2026] EWCA Crim 120.