Aggravating features - aiding and abetting - detention and training orders - pleas - rape - sentence length - undue leniency - victim impact statements - young offenders - judge sentenced without assistance of statement


R v (1) B (2) G: CA (Crim Div) (Lady Justice Hallett, Mr Justice Silber, Mr Justice Tugendhat): 13 September 2006


The Attorney-General referred as unduly lenient the sentences imposed on the first defendant (B) following his plea of guilty to rape and on the second defendant (G) following his conviction for aiding and abetting rape.


The victim (V), B and G were all 16 years old and attended college together. They went to the home of another college friend (J) to play computer games. During the course of the afternoon, B raped V, having instructed G to hold V's arms down in return for a payment of £5. During the incident, J stood by and looked on, assisting neither party.


V reported the rape the following day. B was sentenced to a two-year detention and training order. G denied all involvement, but was sentenced to an 18-month detention and training order following his conviction. B and G were sentenced at separate hearings and without the assistance of a victim impact statement. The statement was available at this hearing.


The Attorney-General submitted that: despite the lack of a victim impact statement at sentencing, the court had a duty to consider all documents relevant to the case, and the judge had failed to take into account the humiliating effect of the rape on V, particularly as G had held her for the sum of £5; and there were aggravating features, including the fact that the rape was undertaken by two men in the presence of another and it was an enforced rape where V had been held down against her will, so the judge's starting point of five years was too low, and a more appropriate point of eight years should have been used.


Held, the first consideration in assessing the gravity of the offence of rape had to be the impact of the offence on V (R v Millberry (2002) EWCA Crim 2891, (2003) 1 WLR 546 followed). The judge had erred in failing to obtain a victim impact statement prior to sentencing and was wrong to sentence B and G at separate hearings.


The offence was a serious one that had traumatised V and ruined her life. She was unable to leave her house alone, she suffered a disturbed sleep pattern, including nightmares, and was seeing a child psychologist regularly in an attempt to help her through the problems caused by the rape.


The nature of the rape was an aggravating feature and put the offence in the eight-year starting point bracket identified in Millberry. However, B and G's youth entitled them to lesser sentences than would otherwise be imposed in the case of an adult offender. B's guilty plea entitled him to a further reduction in sentence, but G deserved no credit for accepting responsibility at a later date.


Despite their youth and low intellect, B and G had been old enough and of sufficient maturity to understand and know that what they were doing was wrong.


In the circumstances, the sentences were unduly lenient. B had been the prime mover and actual rapist and a sentence of four years' detention was appropriate. G had played a full part in the rape and assisted in return for payment and, accordingly, a sentence of three-and-a-half years' detention was justified.


Reference allowed.


D Penny for the Attorney-General; Gordon Stables (instructed by Bridge McFarland (Great Grimsby) for the first defendant; Robert Underwood (instructed by John Barkers (Grimsby) for the second defendant.