Smith, R. v

On 28 March 2006, following a trial in the Crown Court at Canterbury, the appellant Donald Smith was convicted of offences of buggery and rape. On 3 October 2006, he was sentenced by His Honour Judge Webb as follows: for buggery, five years' imprisonment and for the rape, an extended sentence of six-and-a-half years' imprisonment, of which the custodial element was five years. The total was an extended sentence of eleven years and six months' imprisonment. The jury was unable to agree about a number of other offences of rape on the indictment and they were ordered to remain on the file on the usual terms. The appellant appeals against sentence by leave of the single judge.

The offences arise out of long-term relationships which the appellant had with both complainants, one of whom we will refer to as "E" and the other to whom we shall refer as "A". E was the victim of the buggery offence which was committed in 1992. A was the victim of the rape offence which was committed in 2004.

In 1992 the complainant E was in a night club with the appellant and a male friend. The appellant suggested that the male friend could have sex with the complainant E and apparently E agreed to this. Accordingly sexual intercourse took place between the male friend and E while the appellant watched. Some days later the appellant and the complainant E were having consensual sexual relations in the course of which the complainant's hands were tied to the headboard of their bed. The appellant then turned the complainant onto her front. He inserted his finger into her anus, despite her protests. He then inserted his penis into her anus, again against her will. She was crying and told him to stop, but nonetheless the appellant continued. He pushed her face into a pillow as he did so. He told her that he was doing it to punish her for paying more attention to the male friend than to him a few nights earlier. The appellant then inserted his penis into the complainant's vagina and ejaculated.

The second offence occurred some time in March or April 2004. At that time the appellant was in a relationship with the second complainant A. Six weeks or so earlier the complainant had given birth. As a result of an episiotomy her stitches were still in place and she was unable to have sexual intercourse. In the bedroom of their home the appellant forced the complainant onto a bed and forced the victim's legs apart. She started to scream, but the appellant persisted. He then vaginally raped her whilst she struggled.

In passing sentence the judge observed that both complainants were deeply affected by the offences committed against them. He commented also that the appellant had put them both through the ordeal of having to give evidence. The judge expressly said that the custodial term took account of the principle of totality.

The appellant is 38 years of age. Apart from these matters, his only other conviction relates to an offence of theft committed in May 2001.

There was a pre-sentence report before the sentencing judge. The author of that report said that the appellant had shown scant regard for the complainants and that he had a need not to be perceived as a violent and controlling individual. The appellant was assessed as posing a risk to women in any future relationship. The author of the report said that the harm posed would be significant and recommended an extended sentence.

There was also a psychiatric report before the judge. It said that the appellant did not suffer from any significant psychiatric illness although at the time of the preparation of the report he was receiving antidepressants for mild depression. That report raised concerns about future relationships which the appellant might have with women as he would seek to be dominant and controlling within such relationships. There was no evidence that he was a sexual predator, so he did not appear to pose a risk to women outside relationships.

In the written grounds of appeal settled by counsel it is submitted that the sentence which was imposed was not appropriate for the totality of the criminal behaviour, and pointed out that none of the aggravating features identified in R v Milberry [2003] 2 Cr App R(S) 31 at page 142 were present. That submission has faded into the background in the course of oral submissions made to the court today. The primary thrust of the appeal is that the appellant was sentenced under the provisions which applied prior to the Criminal Justice Act 2003 and that therefore it is a more onerous sentence than had he been sentenced under the provisions of the Criminal Justice Act 2003. Counsel submits that the effect of being sentenced under the old regime is that the appellant will be likely to spend a longer period in custody.

The guideline case of Milberry equates anal and vaginal rapes. It also makes plain that a rape committed by a spouse or partner is to be regarded with equal seriousness to a rape committed by a stranger. The sentence in either case must be increased or reduced by reference to specific aggravating or mitigating features. Milberry indicates a five year starting point in a contested case, but with the category of an eight year starting point where certain aggravating features are present.

In the current cases, whilst it may be that there are no features which clearly put either offence into the eight year category, there are aggravating features. In both cases the victims were significantly affected by their experience. In both cases the appellant took advantage of his relationship with the women to commit the offences. In E's case what was done was done as a punishment. In A's case the offence was committed against a woman known to the appellant to be suffering from the physical after effects of childbirth. The appellant had already committed the serious sexual offence against E.

In our judgment, there being no real mitigation to the appellant, a judge dealing with each case in isolation would probably have passed a greater sentence than five years for the episode involving E, and certainly would have in A's case. The judge was right to pass a consecutive sentence for the second offence. He plainly made allowance for totality, and indeed he said so. In our judgment he made an appropriate allowance and the total term of ten years cannot be criticised on grounds of totality. Indeed, counsel has recognised as much before us this morning. There is no criticism of the 18 month extension period which was entirely justified on the information available to the judge.

We turn to deal with counsel's second submission which is that, since both of these matters fell to be sentenced under the pre-2003 Act sentencing regime, the appellant will spend longer in custody than someone sentenced under the new regime in Chapter 6 of Part 12 of the Criminal Justice Act 2003. The point is made that the sentence falls under the former long-term sentence Release on Licence provisions which applied to sentences of four years or more, whereas had the second offence been committed after 4 April 2005 the present release provisions under the 2003 Act would have applied to the sentence, irrespective of the fact that one of the offences was committed in 1992. The sentence in this case was imposed in October 2006.

Paragraph 19 of Schedule 2 of SI 2005 No 950 provides that the new release provisions have no effect in relation to a sentence of imprisonment imposed for an offence committed before 4 April 2005. The old provisions which were contained in sections 32-39 of the Criminal Justice Act 1991 provided a system of discretionary early release for those serving four years or more. A prisoner might be released after half the custodial term was served. He was entitled to release after two-thirds of the period had been served. He would then be subject to licence up to the three-quarter point of the sentence. The 2003 Act provides that a prisoner serving 12 months or more is automatically released after serving half of the sentence, but then is on licence for the whole of the remainder of the sentence and liable to recall to custody throughout the period.

In considering the effect of these changes the Sentencing Guidelines Council gave guidance in New Sentences: Criminal Justice Act 2003. This guidance was published in December 2004. At paragraph 2.1.2 of the relevant part of the guidance it is said that the impact of a custodial sentence under the new framework will be more severe since the period in custody and under supervision will be for the whole of the period set by the judge. At paragraph 2.1.7 the Council recommended that, in order to maintain consistency between the length of sentence under the former framework and the new, the judge imposing a fixed term of twelve months or more for an offence committed after 4 April 2005 should consider reducing the overall length of sentence which would have been imposed under the former provisions by about 15%.

We accept the analysis that sentences under the new provisions are to be regarded as more onerous than previously. Accordingly it follows that no discount was required to be made to reflect the fact that sentencing was under the pre-2003 Act regime. Moreover, we point out that under the old regime the appellant is eligible for discretionary release at the halfway period of his sentence, and indeed that had he been sentenced under the new provisions the judge would have had to have given very serious consideration to imposing a sentence of imprisonment for public protection.

That being so, the argument advanced must fail, as must this appeal which is dismissed.