Asi - Akram, R. v

MR JUSTICE DAVIS: The appellant, Paiwand Asi-Akram, is now 18 years old but at the relevant times for the purposes of this appeal was 17. On 27th October 2004, in the Crown Court at Derby before His Honour Judge Hamilton, he pleaded guilty, on rearraignment, to three particular counts on an indictment: the first two counts, counts 1 and 2, being counts of rape and the third matter, count 4 on the indictment, being a count of attempting to choke, suffocate or strangle with intent to commit an indictable offence (being rape) contrary to section 21 of the Offences Against the Person Act 1861. He was sentenced on each of these counts to 14 years' detention. The judge exercised his powers under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000, the appellant being under the age of 18 at the relevant time. The judge in fact expressed himself as imposing a term of imprisonment but it is plain that he intended to impose a term of detention. In addition, the appellant was recommended for deportation and it was a consequence of the sentence that he was required to register indefinitely under the provisions of the Sexual Offences Act 2003.

It may perhaps be noted that in the initial stages of the argument before the judge he clearly had in mind the possibility of imposing an indeterminate sentence. The judge, however, was persuaded by counsel that, by reason of the appellant's then age, he had no power in law to impose an indeterminate sentence. It is now conceded before us that the judge did have such a power. The point now is academic. But we think it worth noting that the judge, at least initially, had that prospect in mind.

Against the total sentence of 14 years' detention the appellant appeals, having obtained the leave of the Single Judge.

The facts may be briefly stated for present purposes. They are, to say the least, disconcerting. In the early hours of the morning on a day between 26th December 2003 and 1st January 2004 a prostitute was working in Derby when she came across the appellant. He asked her how much she charged for full sex and oral sex and an agreement was reached that she would perform oral sex upon him for £10. They both went to some bushes but when she started to perform the sex act on him, he immediately became aggressive and demanded full intercourse. When she refused he became violent, forced her to the ground, placed both hands round her neck and got on top of her. He then pulled her clothes off, placed his hand over her mouth so that nobody would hear her screams and then forcefully penetrated her vagina with his penis. So violent was he that she genuinely believed she was going to die. He ejaculated inside her without wearing a condom. After that, he asked her to accompany him home but when she refused he raped her again in exactly the same manner and then ran off.

She did not make a complaint to the police initially, because she feared she would not be believed because of her vocation. In the end she did make a complaint when she heard on the grapevine that another woman had been assaulted in a similar way, in the same area of Derby.

That other victim was approached by the appellant in the early hours of the morning of 11th January 2004 as she walked towards a shop. He tried to engage her in conversation and asked her if she did business. She replied that she did not, but he followed her into the shop, followed her out again and persisted in his conversation with her, making her feel uncomfortable. When they reached some bushes, he produced a knife, grabbed her by the arm, pulled her into the bushes and pushed her to the ground. When she tried to get up, he pushed her down again and at this point she pleaded with him repeatedly to stop and told him she was frightened that he would kill her. He then pulled her trousers off and used the knife to cut away her underwear. After that, despite her kicks aimed at him, he got on top of her, pinned her down, placed one hand round her neck and pressed hard down with it so that she had difficulty in breathing. The more she struggled by trying to scratch him, the greater the pressure he exerted on her windpipe. She passed out momentarily and the next thing she recalled was him vaginally raping her, placing his finger inside her anus and trying to kiss her. He did not use any condom. He turned her over to change position, and as he did this, she grabbed her opportunity to run off, leaving most of her clothing behind. She ran to a group of her friends who were nearby and told them what had happened.

Both victims subsequently identified the appellant at identity parades. So far as the second victim was concerned, DNA materials in semen and also by reference to skin under her fingernails were found, implicating the appellant.

Shortly after this second attack, the appellant left Derby and made his way to Teesside. In the early hours of the morning on 23rd January 2004, he approached a prostitute in Middlesbrough. An agreement was reached whereby he would pay her £10 to perform oral sex upon him. They walked down an alleyway and the victim produced a condom which she placed on him and she then started to perform oral sex upon him. However, as with the previous two incidents, he became aggressive and violent and demanded full intercourse. Initially she agreed to do that for a further £10. When she asked for the extra money he became extremely violent. He grabbed her by neck and pulled her to the ground, in a headlock. She asked him to leave her alone but his response was to say that he was going to kill her if she did not do what she was told. She was terrified. He placed both hands round her neck and began strangling her as she shouted for help. She tried to poke his eye but he banged her head on the ground, knocking her unconscious. By the time she came round the police had arrived. As it happened the police had been alerted by a man who lived nearby, who had heard groaning noises in the alley behind his home. When that man went out to investigate, he saw the appellant leaning over the victim, punching her and grabbing at her with both hands.

When the police arrived the appellant was standing a short distance from her, with his trousers and underwear around his buttocks. The victim was initially motionless and blood was coming from her head. In the event she came round quite quickly although it is clear that she was disorientated as a result of what had happened. She was taken to hospital for treatment for her injuries. This Court has seen photographs of the injuries to the last two victims. They are unpleasant.

When the appellant was arrested and interviewed he said that he had beaten the third victim after she demanded that he pay for sex with her, had stolen some money from him and then attacked him. He claimed that he had beaten her in self-defence. As to the first two attacks, he maintained that he knew nothing about those at all.

Before the sentencing judge was a psychiatric report which had been obtained. That noted that there were certain difficulties in making an assessment because of the appellant's poor grasp of the English language (the appellant is by birth an Iraqi Kurd). The report, understandably, dealt in some detail on what appear to have been significant traumatic experiences suffered by the appellant whilst in Iraq and before he came to the United Kingdom. In the course of the report, the psychiatrist noted this:

In the course of his sentencing remarks, the judge indicated that, in terms of appearance, the appellant seemed to him to be more likely to be something in the region of 22 years old or thereabouts: although the judge made it clear that he sentenced the appellant as a 17 year old and one who had never before committed any criminal acts. The judge then dealt with the mitigation, including age; referred to the psychiatric report; dealt with the facts of the case; and then said this:

Mr Lody, who appears on behalf of the appellant today as he did in the court below, does not in the course of his realistic submissions in any way seek to minimise the seriousness of this offending, which he rightly described as "dreadful". Mr Lody does not seek to dispute the judge's finding that the appellant is a danger to women. Mr Lody expressly accepted that there is a high level risk of repeat offending. Further, Mr Lody does not dispute that a campaign of rape of this kind indicated a starting point, after a contested trial, of 15 years, having regard to the guidelines given in the case of R v Millberry [2003] 1 Cr App R(S) 25.

Mr Lody, however, submits that a custodial sentence of 14 years is of an order which, he suggests, one would expect (assuming that is, as he does, that a life sentence was not to be imposed) in the case of an adult offender, even allowing for the plea. We would very much query whether a judge (assuming he passed a determinate sentence) would be restricted to a sentence of a maximum of 14 years for an adult, given the circumstances. But that, at all events, was the submission of Mr Lody.

In particular, Mr Lody emphasises the observations of the Court of Appeal in Millberry at paragraph 30, where in dealing with young offenders the Court of Appeal said that, like the Sentencing Panel, it concluded that a sentence should be "significantly shorter for young offenders". Mr Lody emphasises this point: although he does also add to it the point that the appellant did plead guilty at what the judge accepted was to be regarded as the earliest practical stage and thereby spared the victims from the ordeal of having to give evidence. But Mr Lody's real point is the age of this particular appellant.

We should perhaps add, by reference to Millberry, that a little further on in the judgment the Court of Appeal stressed that the Court should not adopt a merely mechanistic approach to guidelines and should look at all the circumstances in the round.

These were indeed very grave offences: in our view, amongst the very worst of their kind. The appellant showed complete disregard for the victims in each case. Extensive and gratuitous violence was used in each case. In the first case the rape was repeated. In the second, which is perhaps the most serious of all, a knife was produced and used to cut the victim's clothing. There was an attempt to strangle her. In the third case, again there was an attempt to strangle and the violence lasted for a significant period. In all cases quite significant injury was caused. Inevitably all three of the women victims were absolutely terrified; inevitably all three of them feared for their lives.

Quite apart from this being a campaign of rape, directed by the appellant at prostitutes, or women whom he regarded as prostitutes, there were here, therefore, significant aggravating features which by reference to the putative starting point, had also to be taken into account. Further, the appellant is, as Mr Lody accepts, a danger to women. The psychiatric report seem to indicate that he has no regard for his victims and indeed the impression one rather gets is that that appellant seems somehow to have contrived to persuade himself that it is he who is in some way the victim. There is no doubt, in our view, that the judge was justified in imposing a very significant sentence indeed given the circumstances.

But there remains the matter of the appellant's age. As we have said, the judge and the prosecution were prepared to accept that the appellant was 17 at the relevant times. The question then is whether that particular matter was sufficiently reflected in the total sentence which the judge imposed.

In our judgment, the observation of this Court in Millberry at paragraph 30, that in the rape cases the sentence should, in the case of young offenders, be "significantly shorter" than otherwise be the case of adults is a broadly general observation, which nevertheless admits of exceptions. It was not, in our judgment, designed to be one of invariable and inevitable application. In all such cases youth will always be a relevant consideration. But the extent to which it calls for a reduction (and, specifically, a "significant" reduction), by comparison to a sentence which otherwise would have been passed on an adult, nevertheless remains to be assessed by the sentencing court by reference to the circumstances of the case. There are cases of rape where the youth of the defendant can be said, in one sense at least, to play an operative part in the offence. But this most emphatically is not such a case. We bear in mind, too, that there may be greater prospects of rehabilitation in the case of younger offenders as compared to older and perhaps more hardened offenders. We do also bear in mind the point, well made by Mr Lody, that it is a particularly daunting matter, as far as a young person is concerned, if a very long sentence is imposed.

However, as against that, in this particular case there is to be borne in mind the very important consideration that, in the context of a campaign of particularly nasty and violent rapes, the appellant was found by the judge (and as is accepted) to be a serious danger to women. Overall, while the sentence may have been a severe one, in our view it was justifiably so. We dismiss this appeal.