Attorney General's Reference No. 73, 75 & 03 of 2010

These are three applications by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988 for leave to refer to this court sentences which he regards as unduly lenient. We grant leave in each case.

Each case raises points of common interest. The facts of two of the three cases represent the ultimate nightmare for any woman asleep alone in her own home at night. The third involves a serious sexual assault upon a woman while caring for a fragile elderly man whose home was burgled.

The court has said before, and repeats in words which resonate now over the centuries, that the home should be, in the vivid words of Sir Edward Cooke CJ, our safest refuge. It is the place above all which should be inviolable, where we can be left undisturbed and at peace. It is bad enough to be the victim of a burglary even when the occupant is away from the house; worse still to wake up to the chilling discovery that a burglar has made his way into the house and then for the occupant to remember that she is on her own, vulnerable and, if there is any confrontation, defenceless. But to be burgled and then subjected to the dreadful indignity of a violent sexual offence is to become the victim of a pitiless, wicked crime. Because these are pitiless, life-scarring, deliberately committed crimes, while of course every allowance should be made for such genuine mitigation as there may be (and often there will be none), there is no room in the sentencing process for mercy, save for an appropriate sentencing discount for those who plead guilty, face up to what they have done, and spare their victims the further ordeal of having to give evidence in a public court.

It is worth remembering, too, that the impact of crimes like these goes beyond the immediate impact on the victim herself. All those who live in the house with her also suffer. They suffer for her; they suffer, like her, the anxiety of possible repetition. As the culpability of the criminal is at its highest and the harm done to the victim is at its most grave, sexual offences committed by a burglar should be approached as if they were among the most serious offences of their kind. As it happens, they are not dealt with directly in the current Sentencing Guidelines Council's Definitive Guideline. However it is wrong in principle for offences like these, where rape has been committed, to be treated as a single offence of rape by a single offender.

The judgment in these cases enables us first to emphasise that the jurisdiction of the Court of Appeal Criminal Division to amplify, to explain or to offer a definitive sentencing guideline of its own, to issue guidelines if it thinks fit, is undiminished. The relevant statutory provisions emphasise the obvious truth that no sentence should be an unjust sentence and that no guideline can require that an unjust sentence should be imposed. In this context, of course, a sentence that is unduly lenient may be as unjust as one which is manifestly excessive.

The structures now governing sentencing decisions generally, and in particular cases involving sexual crime, are extremely complex. But the first principle that remains is that the sentence must be commensurate with the seriousness of the offence as revealed by the facts. That is what we shall examine in each of these three cases and we shall offer some further guidance which will hopefully be of general assistance to sentencing judges.

Before we come to the individual cases, we pause briefly to discuss a number of matters revealed in the course of the argument and our reading of the papers in these cases:

Dealing with the matter very generally, in a case where rape has been committed after or in the course of burglary in a home -- even if there are no additional features beyond the rape and the burglary -- the starting point will rarely be less than twelve years' imprisonment. As these cases show, in many such cases where rape or serious sexual assault is perpetrated in the course of a burglary, several additional aggravating features are usually present. We have referred to the taking of photographs in two of these cases. We shall identify a number of different aggravating features in the course of the judgment dealing with the individual cases. In such cases, where there are aggravating features, the starting point for consideration will increase to fifteen years' imprisonment and beyond. In all such cases the question of dangerousness must be carefully examined.

We shall indicate the result of our consideration of these three cases now and then give the reasons why we have reached the conclusions that we have. Each of the sentences in these three cases will be quashed as unduly lenient. In the case of Anigbugu, the sentence will be increased to fifteen years' imprisonment. In the case of Pyo, the sentence will be increased to fifteen years' imprisonment. In the case of McGee, the sentence will be increased to fourteen and a half years' imprisonment. We shall now turn to deal with the individual cases.

The offender Michael Anigbugu is aged 34, having been born on 20 April 1976. There are no relevant previous convictions recorded against him.

On 29 October 2010, in the Crown Court at Wood Green, before His Honour Judge Morrison and a jury, he was convicted of two counts of rape and two counts of assault by penetration. The sentence imposed by the judge was eight years' imprisonment for the offences of rape and concurrent terms of four years' imprisonment for the offences of assault by penetration. An appropriate notification requirement was made under the Sexual Offences Act 2003, and credit was given for the days served in custody on remand in accordance with section 240 of the Criminal Justice Act 2003.

The victim was a woman aged 37 years. The offender broke into her bedsit through a kitchen window in the early hours of 10 October 2009 as she lay in her own bed alone and asleep. She was disturbed. She saw the offender bending over, looking through her personal papers. He turned and said, "Are you all right?" She said that she was frightened. He told her to be calm and he would not hurt her. He then had a rambling conversation with her, asking for money. He asked if she recognised him. She said that she did not. He told her that she was lying. He then began to abuse her, telling her that she was a prostitute, that she had sex with men for money. She denied these false allegations. He continued to ask questions of a sexual nature in different ways. Gradually she became very concerned about her personal safety.

The victim was wearing a dressing robe, fastened at the side with a safety pin. The offender approached her and pulled at her robe. He began to touch her breasts. He moved his hand towards her vagina and penetrated her digitally. He then removed his pants, put on a condom and he raped her vaginally. During the course of this incident he kept telling her to lift up her legs up. He said, "Is this feeling good?" He ejaculated.

That was not an end of her ordeal. The offender told her that he was a member of a gang. He threatened that if he saw the police at her address he would kill her. He continued to ask her for money. She went to the lavatory. The lights were on in the hall, the kitchen and the bathroom. He ordered her back into the bedroom. In the bedroom he penetrated her digitally for a second time. He removed his trousers and his shoes. He raped her vaginally for a second time. During this rape he tried to get her to say things suggesting that she was enjoying it. He said things like, "Fuck me, you bitch". She did not know whether he ejaculated on this occasion.

Afterwards the offender told the victim to wipe the bed with a towel. She did not know what had happened to the condom. He dressed. He asked her for a tissue, which he used to wipe clean the kitchen window through which he had entered. He asked for a drink. He was given a can of Coke from the fridge. He continued to look through her mail and he saw her full name. He told her to go and turn off all the lights and to check the kitchen window. She then noticed that the front door was not bolted and, with great courage, she took her chance and fled from her own home into the road, screaming for help. Fortunately, a member of the public came to her assistance and the police were called. That was at 3.17am.

The victim's dressing robe was examined. A short black hair was recovered. Eventually it was found that the DNA from that hair matched the DNA profile of the offender.

In March 2010 the police were making enquiries into another matter when they came across the offender. He was arrested for rape. When he was interviewed, he denied the offences. He stated that he had not had sexual intercourse since September 2009.

A video identification parade took place on 13 March 2010. The offender was positively identified by the victim who, unsurprisingly, became upset during the procedures.

The billing for the mobile phone used by the offender was checked. It demonstrated that his telephone was in the vicinity of the victim's bedsit at the time in question.

The case proceeded to trial. There was no mitigation arising from a plea of guilty. The jury convicted the offender.

There was no pre-sentence report. The judge proceeded immediately to pass sentence. He indicated that this was a horrific attack on this woman in her home. He said that the memory would never dull in her mind. She had to relive it when she saw the video identification and she had had to move house for "obvious and understandable reasons". The offender had taken advantage of her being alone in her own home and it was a prolonged attack. All that is true. The judge then said simply:

In truth, there are no mitigating features. We are asked by Mr Forward to consider a number of matters. We have done so. He was able to show that a number of different aggravating features were not present in this case. We acknowledge that, but that is all that can be said.

On the other hand, let us look at the aggravating features. These offences were committed in the course of a residential burglary at night. The victim was raped twice. She was digitally penetrated twice. She was told that she was a prostitute, that she had sex for money. She was threatened that she would be killed if the police were called. She had to flee from her own home.

In our judgment this sentence was unduly lenient. It will be quashed. In the absence of any discount for a guilty plea, it will be increased to fifteen years' imprisonment.

The offender Hyung-Woo Pyo is aged 22, having been born in December 1987. He is a man of good character.

On 12 August 2010, in the Crown Court at Leicester, when the case was listed for a plea and case management hearing he pleaded guilty to rape (count 1), robbery (count 2) and, quite unconnected with the first two counts, possession of a bladed article (count 3). On 1 November 2010 he was sentenced by His Honour Judge Hammond on count 1 to eight years' imprisonment, on count 2 to four years' imprisonment, and on count 3 to one year's imprisonment. All the sentences were ordered to be served concurrently, making a total of eight years' imprisonment. In addition, the offender was made the subject of a Sexual Offences Prevention Order, and he faces automatic deportation.

The victim was a young woman. She had never before had a sexual relationship with a man. She occupied a bedroom study in the halls of residence at a university. She is a student whose parents live in China.

On 17/18 May 2010 she was in her bedroom studying for exams due to take place over the next few days. At about 3am she went to bed and then to sleep. She thought that she had locked her bedroom door. Unfortunately, by an oversight, perhaps because she was tired, she had failed to do so. She left the keys on the outside of her door.

At about 5am the offender, a student at the same university, was taking a break from his own studies. He saw that the keys had been left in the victim's door. He decided to enter the room. Apparently his intention was to see if there was anything to steal. Later investigations revealed that, although he was a man of good character, he had begun to acquire a history of acquisitive behaviour.

The offender entered the victim's study. He was wearing gloves. She awoke to find him in her room. It was impressed on us that the ordeal that lay ahead for her lasted for no longer than about twenty minutes. On the face of it that is a very long time indeed in view of what she was to undergo. The victim accepted that the offender reacted with apparent surprise at finding her there in the room. The room was in darkness. He approached her. She was in her bed. She was wearing nightclothes (shorts and underwear). He put his gloved hand over her mouth, ordered her to be quiet, and turned on the lights of the room. He produced a roll of duct tape. He used the tape to bind her wrists. She begged him to stop. He bound her mouth, using the tape as a gag. He then taped over her eyes to prevent her being able to see. The tape was used five times around her head. She was helpless. She could not see, she could not call out for help, and she could not escape. She did her best to continue to struggle in an attempt to avoid him. At one point during the incident she knelt down on the floor and begged him not to hurt her. The offender held her by the throat and pushed her down onto her bed, warning her "If you don't want to die, be quiet".

The offender then removed her lower clothing, despite her efforts to resist. With the victim in this state he used his mobile telephone to take photographs of her. She could hear the photographs being taken and knew exactly what he was doing. He picked up the victim's own digital camera and proceeded to take further photographs with it. Again, she knew that this was happening.

The offender began to touch her. By now he had removed his gloves. She became aware that he was inserting his fingers inside her vagina. She tried to resist. He held her again around the neck. She had to struggle for breath. She thought that she would die. He then climbed on top of her and penetrated her with his penis. There he remained for a short while (a minute or so) and then he stopped and ejaculated.

The offender used a tissue to wipe semen from the outside of her vagina. He took the tissue away with him when he left the bedsit in an attempt to avoid detection. He told her that if she reported the attack or told anyone of it, he would publish the photographs he had taken on the internet.

He then picked up her laptop computer and her purse containing money and bank cards. He demanded to be told the PINs of the cards. She said that the cards were not hers, but he checked the names and he realised that they were, and so she gave him the PINs. The offender warned her that if she was lying he would return. He then left her bedroom, taking her key with him.

It was suggested on the offender's behalf that he had taken the victim's belongings and put them into a bag he had with him before he committed the rape. He was sentenced on this basis after counsel for the offender had taken the judge to the relevant parts of the evidence which tended to lend support to this contention.

After he had left the room, the victim eventually managed to extricate herself from the binding tape. She went to a nearby room of a fellow student. Initially she was reluctant to report the attack to the police. She was mindful of the threats that had been made. Her friend calmed her down, persuaded her to take the necessary steps, including taking a morning-after pill and cancelling her cards, but also persuaded her to report the attack to the police.

Samples were taken and later tests revealed the offender's DNA on both low and high vaginal swabs.

Two days later the offender was stopped in his car by police and he was arrested. There was a knife in his car. No one suggests that the knife has anything to do with this case. He was living in accommodation in a private house which he shared with his girlfriend. A search of the address revealed the victim's laptop computer, her bag and purse containing her bank cards, and her digital camera. The camera revealed two photographs of the victim gagged, bound and exposed. The police also found the key to her door. That evidence meant that the offender was caught red-handed.

In interview, before the DNA results were available, the offender denied having been involved in the offence. He said that he had been studying in the library.

After the results of the DNA evidence had been served, the offender's solicitor communicated with the Crown Prosecution Service and the list officer of the Crown Court to indicate that the case would go short as a plea of guilty. It was listed and the anticipated plea was offered.

A Victim Personal Statement was taken from the victim shortly before the sentencing hearing. It set out a sad account of how she continued to suffer from nightmares and from profound embarrassment because fellow students had come to know in general terms of the kind of ordeal she had suffered. She felt "dirty" as a result of the offences and she had become afraid when alone -- afraid in her own room even when her door was locked. She had failed one of her examinations, although there had been confidence that she would succeed before the attack took place. Her family were resident in China and so she was miles away from any possible family support. She attempted to move to a different university, but as a foreign student she had been unsuccessful. She then discovered that at the time of the offence the offender suffered from Hepatitis B. By the time of the sentencing hearing she continued to be unsure whether she had been infected with Hepatitis B as a result of what had happened to her. We are told today, happily and fortunately, that she is not so infected, but while the possibility that she might have been remained, she suffered a good deal.

A pre-sentence report and a psychiatric report were prepared on the offender. There was a disagreement between the writers of the respective reports about the level of risk of violent harm that he posed. Judge Hammond was alert to this aspect of the case. Having considered the dangerousness provisions he concluded that he should follow the contents of the psychiatric report which stated that the offender represented no more than a moderate risk.

In his sentencing remarks Judge Hammond identified many, though not all, of the aggravating features of the case which he had in mind. In the end the question is not so much, as was contended on the offender's behalf before us today in careful submissions by Mr King QC, whether he had considered every one, or said publicly that he had considered every one, but whether the sentence which followed sufficiently reflected those aggravating features.

Our attention has been drawn to a number of mitigating features. First, and most important, the offender pleaded guilty. He did so at a relatively early stage. He began by denying any form of involvement or culpability, but, faced with the results of the DNA examination, he decided that he would plead guilty. But he was caught red-handed. When he came to pass sentence, the judge allowed the offender the full discount suggested by the Sentencing Guidelines Council's Definitive Guideline. That was overgenerous. The current guideline underlines that where the case for the prosecution is overwhelming, it may not be appropriate to give the full reduction which would otherwise be given. We can see no reason why the guideline should not have operated in the way currently indicated: a discount of 20 per cent was sufficient in the context of this case. That is a significant feature and we take it into account.

The offender was a young man of good character, notwithstanding that he had started acquisitive crimes at an early age. He had a number of difficult problems to face at home. He had been sent to England from South Korea as a boy of just 15 years, and he came here without a word of English. Undoubtedly he was very isolated in England and a very long way away from home -- in that sense he was not in a very different position to the victim of his crime. It was pointed out that he had been sent to England in order to achieve the promising future that would await him following graduation. He has undoubtedly thrown away a very good future. Attention is also drawn to the way in which the matter will be dealt with when he returns home. He has brought, and will continue to bring, public shame on himself and on the members of his family.

The judge was satisfied that the offender showed remorse for what he had done and had some understanding of the consequences to his victim.

The aggravating features of this case, however, are clear. A young woman, 20 years of age was alone in a study bedroom; she fell asleep after working hard late into the night. The offender entered her room while she was alone and vulnerable. He decided that he would attack her sexually. He bound her mouth, her eyes and her hands. He threatened to kill her if she made any noise. He took off her clothes and took photographs of her in this state with the digital camera and with his mobile phone. Then, after digitally penetrating her vagina, he raped her. He threatened to take the photographs he had taken if she reported the attack. He stole her laptop computer and some bank cards. When he was arrested, he was still in possession of her property. In the meantime, she discovered that he suffered from Hepatitis B, and for a long time she did not know whether one consequence of the attack on her would be that she would be similarly infected. The Victim Personal Statement which we have summarised does not require any repetition.

There is in this case a proper discount to be made for the guilty plea tendered by the offender in the circumstances which we have identified. We attach weight to the aggravating features of the case which we have set out in the course of the judgment, and make allowance for the guilty plea to the extent that we have indicated that we will. We quash the sentence that was passed by the judge and in its place there will be a sentence of fifteen years' imprisonment.

In some ways this is the worst case, although in fact there was no penile penetration. Moreover the offender pleaded at the earliest available opportunity and so was entitled to the fullest possible discount.

The offender Mark Stuart McGee is 47 years old. He is a man of good character.

On 2 November 2010, in the Crown Court at Truro, the offender pleaded guilty to offences of assault by penetration, contrary to section 2 of the Sexual Offences Act (an offence which carries a maximum sentence of life imprisonment), and to robbery, contrary to section 8 of the Theft Act. He pleaded not guilty to rape and to a further allegation of assault by penetration. The case was adjourned. The prosecution considered the pleas that were tendered and decided to accept them. On 22 December 2010 formal not guilty verdicts were entered in relation to those counts to which the offender had pleaded not guilty. On the same day, His Honour Judge Elwen sentenced him for assault by penetration to six years' imprisonment with an extension period of six years under section 227 of the Criminal Justice Act 2003, and for the robbery count to three and a half years' imprisonment, to run concurrently. Appropriate credit was given for time spent in custody on remand.

The offender is a married man with children. He owned a dog-grooming business. He used a van for his business which had its own logo.

The victim is a self-employed carer aged 36. She has two teenage children. She made daily visits to the home of a 98 year old man in order to care for him. She had been diagnosed as a Type 1 diabetic two months before the offences.

The incidents which we are about to describe did not take place in the victim's home; they took place in the home of the man who was dependent on her and for whom she cared. The man kept a dog. In the early summer of 2010 the victim booked the offender to come and groom the dog. On the appointed day the offender arrived in his van, carried out the grooming of the dog and chatted in an ordinary way with the victim. All that happened that day was unremarkable.

However, what had been revealed to the offender was who precisely lived in that house: the young woman and the very old man who needed care. In the middle of the day on 21 September 2010, the offender attended the premises disguised as a motor cycle courier. He wore a helmet and a leather jacket. He had a parcel in his hand and a receipt book. As he intended, the victim did not recognise him. He gave the victim an address several miles away for the purported delivery of the parcel he had with him. He then left the premises on the pretext of fetching the correct parcel.

In the meantime, the victim was injecting herself with insulin. When the offender returned he was disguised, and he had with him a knife, gaffer tape, nylon stockings and plastic cable ties. There was no knock at the door or ring of the bell. The door was kicked open. The victim was knocked back. The offender produced the knife and held it to her throat. He began to shout abuse and threats at her. He forced her to the floor and demanded her bank details and PINs. He rummaged through her bag. Throughout this, the old man was in bed, unaware of what was going on, as the offender would have known perfectly well.

The victim was held down on her front. Gaffer tape and nylon stockings were used to gag her. She managed to remove part of the gag from her mouth and told the offender that she was diabetic. He paid no attention. He pulled down her lower clothes and sexually assaulted her. He forcefully penetrated her, both vaginally and anally, with his fingers causing her excruciating pain. She struggled. He struck her and he abused her. He then used the plastic cable ties to bind her wrists tightly together behind her back. He bound her legs with her trousers and her underwear and he then used his mobile phone to take photographs of her, exposed and vulnerable, and threatened that he would send the photographs to her mobile phone contacts if she should tell anyone.

In desperation the victim told him to take her car. The offender left, kicking her aside as he went. Before he left he threatened to kill her if she made a sound. He wiped his fingerprints off the inside and outside door handles. He drove away in her car, having stolen her mobile phone, bank cards, keys and some cash.

With immense courage, tied up as she was, the victim struggled to push the door shut so as to avoid what might happen if the offender returned. She locked it with her teeth. She damaged her teeth in the process. She then used her face to operate the lifeline alarm of the elderly gentleman and to report what had happened. The police attended and forced entry. They found the victim extremely distressed and trussed up on the floor. We have seen photographs of her in that condition. They underline the courage and determination she showed in order to do what she could to help herself and then to contact the police.

The victim was medically examined. Significant marks were found to her wrists consistent with the application of cable ties. There was obvious grazing to the entrance of the vagina in keeping with forceful penetration.

The victim's car had been abandoned by the offender in a country lane. A police dog tracked it from there to a lay-by where his business van had been seen at the time of the commission of the offence.

The police visited the offender. He provided a sample for elimination purposes, but his DNA was recovered from the spine of a receipt book which he had taken and the knotted area of a black nylon stocking taken from the scene. He was arrested on 8 October 2010.

The offender provided a prepared statement to the police in which he admitted the offences to which he was later to plead guilty. He accepted that he had attended the property. It had been his intention to steal credit cards because he was experiencing financial difficulties. He denied kicking the door, but volunteered that he had immediately punched the victim in the stomach. He admitted being in possession of the knife, but to rob and not to rape. He admitted the blindfolding with tape and the gagging with stockings. He admitted inserting his fingers into the victim's vagina and an attempt to penetrate her anus with his thumb. He admitted taking photographs of her on his mobile phone and threatening to use such photographs. He said that he had deleted them because they disgusted him. He said that he had inserted his fingers into her vagina in order to take a more shocking photograph, but he had not taken any photographs of that. He said that although he had taken her credit cards, he had not used them. He was ashamed and remorseful for what he had done.

In subsequent statements the offender indicated what he had done with the victim's personal effects. He told the police where he had put the knife. All the admissions he made entitles him to a significant discount in accordance with the sentencing guidelines.

The police investigation revealed that the offender had some financial difficulties. A search also demonstrated that he was preoccupied with a number of different matters of a sexual kind.

In a Victim Personal Statement the victim said that she felt as if her life had been destroyed. She found the attack excruciatingly painful, humiliating and degrading. She was terrified. She believed that she was going to die. She was fearful that she might have lapsed into a diabetic coma, having taken her insulin just before the attack began. The taking of the photographs had caused her much anxiety. She was fearful that if they were not recovered she might be further humiliated. The effect of trying to save herself and then being rescued included damage to her teeth. There is also a suggestion of hearing loss and financial hardship because she is, and remains, unable to work.

The pre-sentence report on the offender is revealing. It underlines why it is appropriate always for a pre-sentence report to be sought in such cases, particularly as the offender was to all intents and purposes a man of good character whose preoccupation with sexual matters did not emerge until after the police investigation had identified him as the criminal. The offender told the author of the report that he knew that the premises were occupied by a bed-bound, elderly man, and that a woman worked there on her own as his carer. He thought that he would be able to steal credit and bank cards, and he then intended to blackmail the victim by taking photographs of her, thus enabling him, through blackmail, to take money from her. The sexual assault was therefore planned in the sense that it was "insurance" that she would not go to the police. He had taken all the items with him as part of the plan.

We have already identified the features of mitigation. The offender was of previous good character. He pleaded guilty at the first available opportunity in the circumstances we have underlined. The judge was satisfied that the shame and remorse he expressed for what he had done was genuine.

The aggravating features speak for themselves. The offender deliberately targeted the victim. He went there disguised. He put a knife to her throat. He forced her onto the floor. He demanded her bank and other details. He bound and gagged her. He sexually assaulted her and then took the photographs of her in her exposed state. His victim was seriously sexually assaulted by a burglar at knife-point.

In our judgment the sentences imposed on the offender were unduly lenient. Although the full offence of rape was not committed, the sexual offence was a very serious one. We have concluded that, making due allowance for all the aggravating features of this case which we have identified, but giving the offender the credit to which he is due for his co-operation with the police and his early and immediate guilty pleas, the sentences should be increased. In relation to the sexual assault the sentence will be fourteen and a half years' imprisonment. In relation to the robbery offence the sentence will be eight years' imprisonment. Those two sentences will run concurrently with each other. The orders made by Judge Elwen will be quashed and those sentences will be substituted.

For the avoidance of doubt, we should make it clear that the remaining orders in relation to notification requirements and Sexual Offences Prevention Orders, as they apply in the different cases, are untouched by these orders.