R v Elias Arberry

The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. Under those provisions, no matter relating to the victim of the offences shall, during that person's lifetime, be included in any publication if it is likely to lead members of the public to identify that person as the victim of a sexual offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.

On 7 June 2022 in the Crown Court at Taunton before HHJ Cook, the applicant, then aged 25, pleaded guilty to four counts of rape, two counts of assault by penetration and one count of wounding with intent. On 14 October 2022 in the same court before HHJ Cullum, the applicant, then aged 26, was sentenced on all counts to concurrent terms of life imprisonment. The period of nine years and 315 days was specified as the minimum term under section 321 of the Sentencing Act 2020. Appropriate ancillary orders were made.

Having been convicted of an offence during the currency of a three-year community order imposed on 11 June 2021 for the assault of an emergency worker and other offences, the community order was revoked and the applicant was re-sentenced to 12 months' imprisonment to run concurrently with the life sentences. He renews his application for leave to appeal against sentence after refusal by the single judge.

We turn to the facts. The applicant was in a relationship with the victim of these offences, whom we shall called V. On 2 May 2022, while in V's flat, he began questioning V about a previous allegation of rape that she had made against a former partner. He punched V's head and removed her clothes, saying: "If your ex can rape you, so can I." The applicant then forced his penis into V's anus (count 1).

After he had had a cigarette the applicant forced his penis into V's vagina (count 2). He grabbed her by the hair, pulled her into the kitchen and pushed her down onto the kitchen floor. He grabbed some used cat litter from a tray and pushed it into her anus and vagina (counts 5 and 6). He poured milk onto V and urinated on her. When she went to have a shower he came in and forced her to eat a mixture of cat litter, cigarette butts, milk and urine. He sprayed water from the shower into her face so that she could not breathe. He held her by the throat and struck her. He took a toilet bleach spray and sprayed it into her vagina which burnt her. Some of the spray went into her eyes so that she could not see.

The applicant had brought a knife into the bathroom and told V to insert it into her vagina, saying he wanted to see blood. When V refused he bent her over a radiator and penetrated her vagina with the knife (count 7). V thought that she was going to die and was biting on her arm and crying in pain as she could feel blood running down her leg.

The applicant then went downstairs. V came down and sat on the sofa. The applicant then used a lit cigarette to burn her vagina in three different areas. V asked the applicant to take her to hospital but he forced the knife into her vagina (count 7). The applicant once again began to ask about the previous rape allegation and forced his penis into her mouth (count 4). He penetrated V's anus (count 3) with his fist, saying: "Everyone else has done this to you, why not me?" V once again asked him to get medical attention but he refused.

The offending continued throughout the day with further episodes of the applicant getting V to eat cat litter and a further occasion of anal rape.

In the early evening V realised that the applicant had fallen asleep. She found her mobile phone and called a family member who arranged for her to be collected. She reached her parents’ home where an ambulance was called and she was taken to hospital where she underwent a lengthy operation.

A statement from V's GP spoke about her continuing need for medical attention following her release from hospital and about her changed personality. She was 22 years old at the time of the applicant's offences. In her victim personal statement she describes in moving terms the life-changing effects.

The applicant was arrested on 3 May 2022 at a hotel in Weston-Super-Mare where he had barricaded himself into a room. He had 11 previous convictions, including six convictions for violent offences, which included throwing a previous partner over some railings into a river during an argument and a further offence of assault against a different former partner. He had a recent conviction for engaging in controlling and coercive behaviour in an intimate relationship.

Before the judge started to consider sentence, Mr Patrick Mason, who appears on the applicant's behalf before us, as he did below, sought an adjournment for a report about the applicant's ASD. The judge refused the application on the grounds that he had sufficient material about the applicant's mental health problems and that the precise diagnosis would not make a difference.

In careful and detailed sentencing remarks the judge considered whether the applicant posed a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences, i.e. whether he was dangerous within the meaning of section 308 of the Sentencing Act 2020. He took into consideration the applicant's history of domestic violence towards V and other partners. He noted other elements of the applicant's controlling behaviour, such as controlling V with cameras. He observed that the applicant had in effect tortured V, as well as committing the rapes in response to a slight that he felt about her previous life. He had inserted a knife and cut into her vagina twice. The applicant had continued to torture V despite her obvious and deep distress.

The judge took into consideration the psychiatric report produced on behalf of the applicant by Dr Caroline Jacob who is a consultant forensic psychiatrist. She considered that the applicant was suffering from emotionally unstable personality disorder. The judge stated that this disorder did not make the applicant dangerous and was a mitigating factor. In addition, the judge had the benefit of a pre-sentence report which assessed the applicant as presenting a high risk of serious harm to intimate partners in the future. Weighing the relevant factors, the judge concluded that the applicant was dangerous.

Having found the applicant to be dangerous the judge went on to consider whether the seriousness of the applicant's offences justified a life sentence under section 285 of the Sentencing Act 2020. He concluded that a life sentence for each of the offences was justified. Applying the relevant sentencing guidelines he concluded that the appropriate overall determinate sentence would have been 22 years' imprisonment, reduced to 15 years and six months to reflect a 25 per cent discount for the applicant's guilty pleas. The minimum term therefore fell to be fixed at two-thirds of 15 years and six months, less 175 days on remand, making nine years and 315 days as we have already mentioned. There is rightly no challenge to any part of the judge's calculation or to his legal approach to the minimum term.

In a Note dated 31 July 2023, Mr Mason sought an adjournment of this renewed application in order for the applicant to rely on fresh evidence, namely a report from Dr Carol Stott, who is a clinical psychologist. Dr Stott assessed the applicant on an unknown date and concluded that he suffers from ASD. It is plain from the report itself that Dr Stott has not received any documents about the applicant's offending or his medical history. His report is therefore incomplete and Mr Mason would like an opportunity to submit a fuller report and to obtain a further psychiatric report. Mr Mason points out that he received some informal indication from the Court of Appeal Office that the case could be listed later this month and he has been working to that timetable. We indicated in writing yesterday that the adjournment application was refused but confirmed that it could be renewed orally.

Mr Mason has today renewed his application for an adjournment. He submits that this court should in the interests of justice adjourn for further and better reports which would cast light on whether the applicant's ASD and other mental health problems could be safely managed in the community. The degree to which the applicant's mental health problems can be managed is relevant to the question of whether he is dangerous and also casts some retrospective light on his culpability.

As to the grounds of appeal, Mr Mason submits that sentences of life imprisonment were manifestly excessive and wrong in principle. The offences while serious were not of the utmost gravity for which life sentences following a dangerousness finding should be reserved: see for example R v Wilkinson [2009] EWCA Crim 1925, para 19. An extended sentence with a lengthy custodial term would be sufficient to address the risks presented by the applicant. It is further submitted the judge had failed properly to assess dangerousness. Insufficient or no weight was given to the applicant's mental health and insufficient consideration was given to alternative sentences and orders. The judge ought to have adjourned the sentencing hearing in order to enable the applicant to obtain a psychological report which would deal with the applicant's ASD.

The sustained brutality of the applicant's offences should need no spelling out. On their own, the seriousness of the offences would justify a finding of dangerousness. Combined with the applicant's history of violent offending against women in intimate relationships, the judge's conclusion is unassailable. Having found that the applicant was dangerous, the judge was entitled to conclude that the seriousness of these offences called for life sentences. There was no arguable error of law or of approach. There are no arguable grounds for this court to interfere.

The applicant had ample opportunity before he was sentenced to obtain necessary reports. The judge had before him a detailed psychiatric report from a suitably qualified psychiatrist instructed on behalf of the applicant. She concluded that there was no evidence of ADHD but did not reach any conclusions about ASD more generally. The judge was not bound to adjourn the case for additional reports because, as he noted, the precise diagnosis would not make a difference to the questions he had to decide. The key point is that, in the sentencing process, the judge considered the effects of the applicant's mental health problems and treated them as a mitigating factor. He was under no duty to adopt any other approach.

In circumstances where all issues were ventilated before the sentencing judge, we see no proper grounds to adjourn this renewed application for the court to receive a psychological assessment or any other report that was not before the judge. The question of risk in any event would be as relevant to the question of an extended sentence as to a life sentence. We are unpersuaded that further reports would make any difference.

Finally, we note the applicant's letter of remorse to us. It has no probative value in relation to any issue before us. It cannot make any difference to his sentence. For these reasons we refuse to grant an adjournment and refuse this renewed application.