Xhelollari, R. v

Mr Justice McCombe: On 25th January 2007 at the Crown Court at Harrow following a trial before His Honour Judge Madge and a jury, this appellant was convicted of one offence of rape. On 23rd February he was sentenced by the learned judge to a term of imprisonment for public protection with a minimum custodial term of four years and six months, less 200 days in respect of the period previously spent in custody on remand. He was recommended for deportation.

He now appeals against sentence by leave of the single judge.

The underlining facts of the case were these. The victim of the offence was a young Israeli woman who was visiting this country for the first time and had only been in London for a few weeks. On 2nd August 2006 she was sitting on her own outside a coffee house in Hendon drinking coffee when she was approached by this appellant. They began to talk and the appellant told her that he owned a security company and had employees and offered to help her find a job. He handed her his business card and told her to call him and they could meet somewhere to talk about the possibility of a job further. The appellant then left.

That same evening the victim did call the appellant and they arranged to meet at a tube station. The appellant said that they could go to a restaurant to talk about job possibilities. The victim duly arrived at the station at around 10.00 p.m. that evening. After a few minutes the appellant pulled up in a car and beckoned the victim over. She got into the car and they set off. The appellant told her that he needed to change his clothes before they went to the restaurant. He said it would only take a minute. They stopped outside his flat. The victim suggested she should stay in the car but the appellant encouraged her to go in to see the flat, saying he had something nice to show her.

Once inside the flat the appellant guided the victim to a bedroom and told her to sit on the bed. He took off his clothes and asked the victim to remove her clothes. She refused. He clenched his fist, telling her if that she did not do as he wished he would be "strong" with her. He said he had a friend in the flat and if she did not do what she was told he would call the friend. He then began to remove the victim's clothes. When he reached her bra she tried to push him away but realised she was not strong enough to do so. She was scared and felt bad, she told the court, and tried to beg him to stop what he was doing. At one point he attempted to kiss her on the mouth but she turned her head to the side. He pushed her down onto the bed, climbed on top of her and penetrated her vaginally. He did not use any protective condom. After the rape he said that he was a powerful and political man and he showed her photographs which purported to show him with certain important prominent Albanian people. He said if she did not stay with him he would kill her. He also said he would find her and her parents. She thought he was going to kill her.

As a result of those threats the victim felt the only way to escape was to accompany him to the restaurant and then to a bar. Whilst in the restaurant and in the presence of waiters the appellant told the victim that he had been in the mafia. She was very scared, she told the court, and worried that he might take revenge. She went to the lavatory. The victim asked the waiter on that occasion if the appellant really was in the mafia. The waiter said he thought he worked for a security firm and had been a bouncer at a night club. She told the waiter she thought there was something not quite right with him, that is the appellant, and asked him to call her a taxi. However, she was unable to find an opportunity to get away at that stage.

The appellant and the victim then moved to a nearby club. There she was able to attract the attention of a woman who went with her to the lavatory again. The victim explained what had happened and was crying. With the help of the woman she was finally able to get a taxi and get away. While in the taxi she got a call from the appellant on her mobile phone asking where she was. She did not want him to realise she had run away, so she said she would see him the next day. However when she got home she disclosed what had happened to a friend who took her to a hospital. The police were called. The victim identified the location of the flat to which she had been taken and the appellant was duly arrested. In interview the appellant admitted meeting the victim and having intercourse with her, but said that it had been consensual.

There was a victim impact statement made to which we will refer hereafter.

The appellant is now aged 35 and was illegally in this country at the time of the offence. There is no challenge to the judge's recommendation for deportation. He had two previous convictions for theft in respect of which, on 27th June and 20th October 2000 respectively, he had been conditionally discharged for 12 months.

There was a pre-sentence report before the judge which concluded that the appellant posed a high risk to female members of the public and a high risk of re-offending.

The relevant passages of the report read as follows. First, the risk of harm analysis:

In the light of those findings the conclusion of the report was as follows:

There was also before the judge a victim impact statement dated 14th February 2007, six months after the incident, in which the complainant spoke to the continuing effects of the offence upon her. She said she continued to be fearful in everyday circumstances. She worried about being followed. She reported nightmares and mood swings. She had refrained from going out for social or entertainment purposes for the intervening six months. She had also found relations with her family adversely affected in so far as she felt ashamed and unable to talk to family members about what had happened.

In passing sentence Judge Madge referred to the psychological effect of rape offences on the victim and to the victim impact statement to which we have referred. He identified aggravating features of planning and premeditation, unprotected intercourse and an element of detention and abduction. He also expressly took into account that the appellant continued to maintain that intercourse was consensual in the face of what the judge described as "overwhelming evidence."

The judge noted the high risk of further offences assessed in the pre-sentence report. He recognised that there was no pattern of similar offending in the past. However, he concluded that there was a significant risk to the public of serious harm occasioned by further offences by this appellant. Accordingly, he passed the indeterminate term of imprisonment. Having regard to the decision of this court in Millberry [2003] 2 Cr App R(S) 142, he considered that the appropriate determinate term would have been nine years' imprisonment and that the minimum term of four and a half years, less the period in custody on remand, followed.

The points argued on this appeal can be shortly stated. First, it is submitted that it was wrong in principle for a sentence of imprisonment for public protection to be passed in this case. Secondly, it is submitted that in specifying a minimum term of four and a half years the judge was starting with a sentence that was excessive and was in effect double counting because the terms identified in the guideline cases on rape offences include, in part, some element of public protection, which here is being dealt with by the sentence of imprisonment for public protection itself. These points are most carefully amplified in the written opinion of Mr Tizzano, to which this court would wish to pay particular tribute. Rarely has any of us seen an advice so cogently and helpfully presented. Mr Tizzano has not been called on to argue the points further before us today.

The starting point for our deliberations are the provisions of the Criminal Justice Act 2003 and the decisions of this court in Lang [2006] 2 Cr App R(S) 13 and Johnson [2006] EWCA Crim 2486. In the case of a conviction for a "serious offence", which, of course, rape is for these purposes, the court is bound to pass either a life sentence or a sentence for public protection if it is of the opinion that there is "a significant risk to members of the public of serious harm occasioned by the commission ... of further specified offences" by the offender. Section 225 of the Act so provides. Serious harm in this context means "death or serious personal injury whether physical or psychological", see section 224(3).

Under section 229 of the Act if the offender has a past record of earlier relevant offences then a presumption of such risk arises under the statute. Where, as here, no such presumption arises in view of the absence of any such record in this appellant's case the Act provides as follows (section 229(2)):

Clearly the learned judge had these provisions well in mind and he concluded that there was the relevant significant risk in this case.

In Lang the court said that it would not normally interfere with conclusions reached by a sentencing judge who accurately identified the relevant principles and applied his mind to the facts of the case.

Mr Tizzano submits to us in writing that, notwithstanding this note of caution, the present indeterminate sentence was wrong in principle. It is, of course, conceded that every offence of rape is serious, but it does not follow, the argument runs, that an indeterminate sentence must be imposed in every such case. We agree.

He goes on to submit that there were no features in this case that suggested the appellant would go on to commit further specified offences in the future that would cause serious harm to members of the public. He reminds us that in Lang the expression "significant risk" was said to mean a risk that was "noteworthy, of considerable amount or importance". It is pointed out that in almost all cases of rape committed upon a stranger there is an element of planning and deliberation. It does not, however, mean that there is necessarily a relevant risk of further similar offending. In contrast an offender who commits a robbery for the first times does not by that fact alone demonstrate a significant risk of such offending in the future.

It is also urged upon us that here the appellant did not demonstrate any violence beyond that necessary to commit the offence, nor were other indignities committed upon the offender, as is, unfortunately, not infrequently found in rape offences. Mr Tizzano also submits that a refusal to acknowledge guilt should not be taken as indicating a significant risk of reoffending in a relevant way. Late admissions of guilt, he submits, can be interpreted in all sorts of ways. As against this we must acknowledge the view that if a sex offender is not prepared to admit guilt it makes it extremely difficult for the prison and probation services to embark upon constructive work to combat any residual tendency to reoffend in a similar manner in the future. Thus, any risk of offending and future harm may remain unaddressed.

Having considered these points and the matters that clearly influenced the learned judge in reaching his conclusion, we consider that the imposition of a sentence of imprisonment for public protection in this case was wrong in principle. The pre-sentence report did not identify factors which led to a conclusion that there was a significant risk of serious harm posed by the appellant. The risk assessment of the report was based entirely upon the perceived vulnerability of the victim and the unwillingness of the appellant to acknowledge guilt. It recognised, however, the absence of any relevant pattern of offending behaviour and that the final decision was for the court. The imposition of a sentence in this case seems to us to lead to a conclusion that such sentences would always be passed on a first conviction for rape where, as is always the case, there must have been some psychological harm to the victim and where the offender refuses to admit guilt. That, in our judgment, is an inadequate basis on which to impose an indeterminate sentence on a necessary hypothesis that there is a significant risk of serious harm from future offending. Such a conclusion must be founded upon evidence rather than speculation or mere apprehension of some risk of future harm. The recently promulgated sentencing guidelines on offences under the Sexual Offences Act 2003 clearly envisage the passing of determinate sentences in many cases of rape where the salient features of the offence mirror those we have identified here, or, indeed, in cases more serious in themselves than the instant case. Of course the guidelines recognise that in all such cases the question of dangerousness has to be addressed.

For those reasons we quash the sentence of imprisonment for public protection and must go on to consider the appropriate determinate sentence. The learned judge considered that nine years would have been correct. We acknowledge the aggravating features of this offence identified by the judge with some differences. We see that the victim was vulnerable, but she was not in that category of exceptional vulnerability identified by the court at paragraph 20(iv) of the judgment in Millberry. She was taken to the appellant's flat, but in this case she was tricked rather than forcibly abducted and held captive. On the contrary, no force was used after the offence and the victim was able to move freely between the two establishments to which she went with the appellant thereafter.

In all the circumstances, applying the guidelines initially derived from Millberry and more recently set out in the Sentencing Guidelines Council definitive guideline, we consider that a sentence of eight years' imprisonment is the appropriate sentence in this case. Therefore we substitute that sentence for the sentence of imprisonment for public protection imposed in the crown court with a similar direction as before that the 200 days spent in custody on remand should count towards sentence. The recommendation for deportation is unaffected and remains in place. In the circumstances it is not necessary to decide the further point advanced on the appeal, that if a sentence of imprisonment for public protection is passed the notional determinate sentence should be somewhat reduced as the main part of the sentence already factors in the element of protection of the public from risk presented by the offender.

To the extent that we have indicated the appeal is therefore allowed.