R v Anthony Pike

The appellant appeals, with leave granted by the single judge, against the sentence of 5 years’ imprisonment imposed on him on 19 December 2023 in the Crown Court at Bournemouth for one count of attempted rape, of which he had been convicted by a jury in the same court on 8 September 2023.

The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, no matter relating to the victim of this offence (whom we will call “M”) shall, during M’s lifetime, be included in any publication if is likely to lead members of the public to identify M as the victim of this offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.

The offence was committed in the early hours of Boxing Day 2021 in the bar of a hotel in Weymouth where the appellant had hosted a celebration on Christmas Day attended by, amongst others, [redacted] (whom we will call “N”), who was M’s partner, and their three young children. At the time of the offence, N had gone to bed and M was very drunk. Their daughter witnessed at least part of what happened in the bar. CCTV footage showed the appellant exposing himself to M and then, at a time when M had collapsed on a bench, approaching M from behind and attempting unsuccessfully (for about 15 seconds) to put his penis into M’s vagina. This continued until M got up and walked away. Subsequently M could not remember what had happened. She contacted the appellant to ask what had happened, but he did not reply.

The appellant was 49 when he was sentenced. He had one conviction for an unrelated offence, for which he was fined in 2010.

The judge having heard the trial, there was no pre-sentence report and we agree that none was necessary. M’s victim personal statement set out the devastating consequences of the appellant’s offence. It led directly to N and M’s separation, which affected their three young children and left M as a single mother. Having said that, it is right to record that the judge recognised that the relationship between N and M had been fragile before the offence and that it was suggested that they had reunited in the period between M signing the victim personal statement and the sentencing hearing. M also said that she herself was radically changed, to the extent of self-harming and contemplating suicide.

The judge treated the rape which the appellant had attempted as falling within category 3B in the offence-specific sentencing guidelines. No complaint is made about that. The starting point for such an offence is 5 years’ imprisonment, with a range from 4 to 7 years’ imprisonment. The judge treated as an aggravating factor the fact that M was incapacitated through drink. As for mitigating factors, the judge acknowledged that the appellant had no relevant or recent convictions, there was evidence of good character and he had been the primary carer for his son. The judge also acknowledged in his sentencing remarks that he was sentencing the appellant for an attempted offence rather than the completed offence.

The grounds of appeal are that: the judge ought not to have considered M’s vulnerability and lack of capacity as an aggravating factor; the judge gave insufficient weight to the fact that the offence involved limited and almost fleeting physical contact, which was brought to an end by M when she got up and simply walked off; and the appellant was the principal carer for his 10-year-old son.

In our judgment, the judge was entirely justified in treating as an aggravating factor the fact that M was so drunk as to be incapacitated. We have watched the CCTV footage of the attempted rape. The appellant’s touching of M and interfering with her underwear prior to the offence can only be explained on the basis that she was incapacitated through drink. That was, however, the only aggravating factor and it was outweighed by the mitigating factors. In particular, sentences for attempted offences are generally lower than sentences for completed offences. The extent to which that is so depends on the facts of the individual case, but in this case the attempt was short-lived and was terminated by M simply walking away.

Taking account of all of the circumstances of the case and, in particular, the fact that this was an attempted rather than a completed offence, we consider that the sentence imposed should have been appreciably less than the starting point for the completed offence. Accordingly, we quash the sentence of 5 years’ imprisonment and impose instead a sentence of 4 years’ imprisonment. To that extent, this appeal is allowed.