R v EMP

A sentence at the top of the applicable guideline range is not necessarily manifestly excessive where multiple aggravating factors justify the starting point and further elevation. A distinct breach of trust may aggravate an offence even where the formal abuse-of-trust factor concerns a position of responsibility. However, a sentencing judge must address the offender’s age and any associated immaturity as mitigation, and explain how relevant mitigation has affected the sentence. Failure to consider youth may constitute an error of principle even where the sentence is not manifestly excessive. Good character and the absence of previous convictions generally carry limited weight in rape cases.

The appellant was convicted after trial at the Crown Court at Gloucester on one count of rape committed when he and the complainant were both aged 18. The Recorder imposed nine years’ imprisonment, placing the offence in Category 2B and relying on the complainant’s vulnerability, severe psychological harm and breach of trust.

The appellant appealed against sentence. He argued that the sentence was manifestly excessive, that no aggravating feature justified moving above the eight-year starting point, and that the Recorder had failed to give proper weight to youth, immaturity, good character, lack of previous convictions and delay. The central issue was whether the sentence involved an error of principle or was manifestly excessive.

1. Appeal allowed. The sentence of nine years’ imprisonment was quashed and replaced with a custodial sentence of eight years and six months.
2. Aggravating features. The court rejected the submission that no aggravating feature justified moving above the eight-year starting point. The complainant’s extreme vulnerability, because she was asleep when the intercourse began, was sufficient to reach that starting point. Severe psychological harm required an elevation from it. The particular breach of trust was a further seriously aggravating feature, even though the guideline abuse-of-trust factor under Culpability A principally concerns an offender in a position of responsibility towards the victim.
3. Mitigation. The sentence was severe but was not manifestly excessive. A sentencing judge who had heard the trial could have justified nine years after balancing the aggravating and mitigating features. Good character, exemplary conduct and the absence of previous convictions generally carry little or limited weight in a rape case, although the offending appeared to be out of character.
4. Error of principle. The appellant’s age was the material issue. The pre-sentence report supported a finding of immaturity in the offending, which involved immediate sexual gratification and disregard for the complainant’s feelings. The Recorder did not refer to the appellant’s age or clearly explain how the mitigating features had been factored into the sentence. The failure apparently to consider age as mitigation was an error of principle. A reduction to reflect that omission was therefore proper.

• Court of Appeal (Criminal Division): On 4 June 2026, the appeal against sentence was allowed and the nine-year sentence was replaced with one of eight years and six months.
• Crown Court at Gloucester: Following conviction after trial on 29 August 2025 for one count of rape, Mr Recorder D Tait imposed nine years’ imprisonment.