Wisniewski, R v

THE VICE PRESIDENT: On 21st June 2004 this appellant pleaded guilty at Central Devon Magistrates' Court to two offences, for which he was committed to the Crown Court for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000. On 23rd July 2004, at Exeter Crown Court, he was sentenced by His Honour Judge Cottle to a total of 7 years' imprisonment and recommended for deportation. The 7 years consisted of 2 years for the first offence of battery with intent to commit a sexual offence, under section 62 of the Sexual Offences Act 2003, and 5 years consecutively for a second like offence. He appeals against sentence by leave of the Single Judge.

The circumstances in relation to the first offence were that, in the early hours of the morning of 6th June 2004, a young woman had been out with her partner but, following a disagreement between the two of them, she started to walk to a friend's house on her own. She saw the appellant sitting on a wall. He asked for a light. She was rude to him and kept walking. He again asked for a light, and took hold of her shoulder and then her waist. He then lifted her over a wall. She struggled with him, tried to get away, shouted and swore. He kept hold of the back of her jacket, but she was able to struggle back over the wall and run into the road towards a police car. She was upset and complained to the officers who took her details.

Her boyfriend returned and he and the complainant resumed their argument. Meanwhile, the police had also spoken to the appellant, who gave his name and date of birth, and he was sent on his way by the police. By reason of the incident, the complainant had bruising and scratching to her hip and some fingernail marks on her shoulder, and she was sick when she got home. The police did not contact her further, at that stage. But as a result of a second attack, to which in a moment we shall come, a public appeal was made on 14th June and she then contacted the police again.

The second incident occurred about a week after the first, at about midnight on 13th/14th June. A woman was walking home on her own, after a night out with friends. She became aware of the appellant in front of her, and he appeared to have her mobile telephone in her hand although he did not know how he had achieved that. He seemed to be tempting her with her telephone. She walked on, ignoring him, but further along the road, he stood in front of her holding out the telephone. He then seized her as she tried to walk past, and said: "You and me sex, sex, you and me". She could not break free. He dragged her into a churchyard nearby and forced her to the ground. She was shouting at him to get off, as he lay on top of her and felt her body. She was hysterical. A man who lived nearby heard her screams and came out. He saw the appellant on top of the complainant. The appellant jumped off and ran away fast. The woman was very upset and tearful and the man took her back to his house until the police arrived. On 17th June the complainant saw the appellant and told the police she had seen him.

He was arrested later that day, at his place of work. He was interviewed twice, but denied the offences. An identification parade was held at which the second victim picked him out. The judge, in passing sentence, referred to the seriousness of these assaults, of which the second was particularly serious because the defendant had apparently intended to rape his victim. Both the victims had undergone terrifying experiences and continued to suffer in consequence.

The judge referred to the mitigation, in the plea before the magistrates at the earliest opportunity, which entitled him to credit. The judge made the deportation order back to Poland from whence the appellant comes.

He was born in March 1976 and was of previous good character.

On behalf of the appellant, Mr Galloway, in an admirable submission, makes the following points: first, the judge's starting point in relation to both offences was too high. In particular, in relation to the second offence he appears to have taken a starting point by reference to all nine of the aggravating features identified in R v Millberry [2003] 2 Cr App R(S) 142, whereas in fact none of those features was present. Secondly, Mr Galloway submits that the judge failed, in relation to both aspects of the sentence, properly to reflect the plea of guilty at the earliest opportunity. Thirdly, the total sentence of 7 years, Mr Galloway submits, was too long. It suggests that, had there been a trial, the sentence would have been of the order of 10 years, which he submits was significantly too high. There is, in our judgment, substance in each of those submissions.

Battery with intent to commit a sexual offence is one of several new offences created by the Sexual Offences Act 2003. But the conduct giving rise to this and other new offences is not new and pre-Act authorities in relation to sexual offences, particularly R v Millberry, Attorney-General's References Nos 91, 119 and 120 of 2002 [2003] 2 Cr App R(S) 338, Attorney-General's References Nos 37, 38 Etcetera of 2003 [2004] 1 Cr App R(S) 499 and R v Nelson [2002] 1 Cr App R(S) 565 should continue to guide sentencers. In relation to battery with intent, the factors of particular relevance to sentence include the method and degree of force used, the nature and extent of the indecency perpetrated and intended, the degree of vulnerability of and harm to the victim, the duration and general circumstances of the attack, including the time, day and place where it occurred and the level of risk posed by the offender to the public. The good character of the offender will afford only limited mitigation. That said, the maximum sentence provided by Parliament for this offence is 10 years, compared with life imprisonment for rape and attempted rape. In consequence, save where a great deal of violence is used, the level of sentence appropriate for this offence of battery with intent to commit a sexual offence will generally be lower than that appropriate for rape or attempted rape committed in similar circumstances. In the present case, both attacks took place in the middle of the night, when the victim was alone, and there was no one else about. No weapon was used, or blows struck and the indecency actually occurring was of a limited nature. In the first attack the violence was limited and the victim sustained only slight physical injuries, though she was obviously upset. In the second, the violence was greater, more prolonged and accompanied by more persistence in pursuit of sexual activity which, it is common ground, the appellant intended should be rape. The victim was deeply upset and, in the face of the appellant's denials, she had to undergo the ordeal of attending an identification parade. The fact that the two attacks took place within a space of a week was a seriously aggravating feature. A substantial discount was called for for the earliest possible pleas of guilty. A higher discount would have been attracted had there been admissions in the interview before the identification parade took place.

Taking all of those considerations and the able submissions made by Mr Galloway into account, this appeal is allowed to this extent: the sentence of 2 years in relation to the first offence is quashed and there is substituted for it a sentence of 18 months' imprisonment. The sentence of 5 years, in relation to the second offence is quashed, and there is substituted for it a sentence of three-and-a-half years' imprisonment. The total sentence to be served in place of the 7 years imposed by the learned judge will therefore will be one of 5 years' imprisonment. To that extent the appeal is allowed. The deportation order stands.