R v Santosh Rai

THE VICE-PRESIDENT: This case concerns sexual offences against a young woman whom we shall call V. She is entitled to the lifelong protection of the provisions of the Sexual Offences (Amendment) Act 1992. Accordingly, during her lifetime no matter may be included in any publication if it is likely to lead members of the public to identify her as the victim of these offences.

Santosh Rai ("the offender") stood trial on charges of rape, sexual assault, contrary to section 3 of the Sexual Offences Act 2003 and assault by penetration, contrary to section 2 of that Act. He was acquitted of rape but convicted by the jury on the other charges. He was subsequently sentenced by the trial judge to three years nine months' imprisonment for the offence of assault by penetration, with a concurrent term of two years six months' imprisonment for the sexual assault.

His Majesty's Solicitor General believes the total sentence of three years nine months' imprisonment to be unduly lenient. Application is accordingly made, pursuant to section 36 of the Criminal Justice Act 1988, for leave to refer the case to this court so that the sentencing may be reviewed.

At the time of the offences, the offender was aged 50 and of previous good character. V was just 19. She went out with others to celebrate a friend's birthday. In the hours which followed she was, very sadly, the victim of three sets of offending.

First, her drink was "spiked" by a person unknown with Ketamine and morphine, possibly in the form of a "date rape drug". The combination of the moderate amount of alcohol which V had drunk, and the drugs involuntarily taken, caused her, by about 9.00 pm, to be scarcely able to stand. Her friends, concerned for her, sent her home in an Uber taxi. The driver was concerned about her condition.

At about 10.30 pm, V arrived at her destination. She told the driver that she was fine, but she then lay down on the pavement. After that, in her intoxicated state, she walked away from the house to which she had been travelling.

Secondly, she was then spotted by a passing motorist, one Patel. He put her into his car and drove away. V was sexually assaulted by Patel. She has no recollection of what precisely he did to her.

Thirdly, shortly after 11.00 pm, V entered a public house. The offender entered shortly afterwards. CCTV footage shows them conversing and touching one another. At one point V had her arms around the offender's neck. He stood with one leg pushed forward between her legs. A member of staff spoke to the offender. V moved away and went outside. The offender bought two drinks, followed her outside and gave one of the drinks to V.

V remained outside the public house for a few minutes, talking to others and at one point kissing one of them. CCTV shows she was unsteady on her feet.

V then began to walk away, alone. The offender followed her. She can be seen on CCTV footage to stumble. The offender held her and then moved her towards an alleyway out of range of the CCTV.

The offender emerged from the alleyway 17 minutes later, adjusting his trousers.

At about midnight, V rang her father but did not speak. Her parents were able to trace her phone and arranged for the mother of a friend to collect her. V went to bed and slept in the clothes she had been wearing. When V woke she was distressed to find that in fact her trousers were inside out and her knickers were missing. They were later found, with her keys and some of her money, in the alleyway.

The offender was traced. Initially he told the police that he had not done anything. When interviewed under caution, he gave a prepared statement in which he suggested that V had touched him sexually and asked him for sex, but he had refused and he had done nothing wrong.

Scientific tests were then carried out on samples taken from V. Semen was identified on swabs from her vulva and perineum. DNA was found from two male contributors, one of whom proved to be this offender, the other of whom proved to be Patel.

The offender was interviewed again. He said that V had initiated sexual contact between them. They had kissed consensually. They had gone into the alleyway because V had wanted to urinate. She had asked him to help remove her pants and she had then taken his hand, leading him to digitally penetrate her vagina with his finger before suggesting that they have sex, which he refused.

Later, further scientific discoveries were found including the offender's DNA on a low vaginal swab taken from V. The offender was charged with the offences we have indicated.

At trial the offender's defence was one of consent. Plainly the jury rejected that. He was convicted as we have said.

At the sentencing hearing, the judge considered the relevant offence-specific definitive guidelines published by the Sentencing Council. He placed the sexual assault offence into Category 1B of the relevant guideline, which has a starting point of two-and-a-half years' custody and a range from two to four years. He placed the assault by penetration offence into Category 2B of the relevant guideline, with a starting point of six years' custody and a range from four to nine years.

The judge considered a powerful victim personal statement from V. He accurately summarised that statement, in terms on which we cannot improve, when explaining why he found that V had suffered severe psychological harm:

The judge also considered an impressive body of character evidence provided on behalf of the offender. Again, he gave an accurate summary of this. He described it as extremely strong mitigation. He referred to the offender as a man of previous impeccable good character, which inexplicably he had thrown away on the day of the offences. The judge recalled references which had been before the jury at trial from a total of eight witnesses, all of whom spoke of the offender's honesty, reliability, kindness and strong sense of responsibility, and he referred to further similar references provided at the sentencing hearing. He said:

The judge recognised that this would be the offender's first time in custody. He recognised that imprisonment of the offender would have a profound impact on others, including the offender's son who was about to begin examinations, his mother who was very unwell in India, and those who worked in the business which the offender had built from scratch but which may well not be able to survive without him. The judge also referred to a psychiatric report showing that the offender had been diagnosed as suffering from depression more than a year before these offences. The judge recognised that the offender in the last few months had lost his father, had suffered divorce from his wife and had a depressive disorder which was now worse than it had been. The judge accepted that that condition would make things even more difficult for the offender in custody.

The judge indicated that he would treat the assault by penetration offence as the lead offence, reflecting the overall offending, and pass a concurrent sentence for the offence of sexual assault. No criticism is or could be made of that sensible approach.

The judge accepted a submission that over the course of the night the extent to which V appeared vulnerable would have varied. He did, however, find that she was in fact "particularly vulnerable due to personal circumstances". That is a step 1 factor in the guideline when assessing harm. For convenience only we shall refer to it in shorthand form as "particular vulnerability". The judge further found that the offending was aggravated by the fact that the offence was committed at night time.

Although the judge found, as we have said, that V had suffered severe psychological harm, he qualified that finding in two passages in his sentencing remarks. He first said that the harm was not towards the very top end of the spectrum of severe psychological harm, a fact which he said he could reflect by potentially making a downward adjustment from the appropriate starting point. A little later on however he went somewhat further and said that the harm "may indeed fall somewhat towards the lower end" of the range of harm encompassed within severe psychological harm.

The judge accepted that there was no evidence of anything other than a brief digital penetration of V's vagina. He noted the pressures on prisons which made it a particularly difficult time for those serving sentences of imprisonment. The judge concluded that the appropriate sentences were those to which we have referred.

For the Solicitor General, Mr Emlyn-Jones KC submits that the total sentence was unduly lenient and failed to reflect the overall seriousness of the two offences. He points out that this was serious sexual offending by a stranger against a highly vulnerable lone young woman late at night. He submits that the judge must either have given too little weight to the various serious aspects of the offending or too much weight to the mitigation or both. He points out that although it was not specifically mentioned by the judge in his sentencing remarks, there was clear evidence that the offender had ejaculated as part of the offence of sexual assault. Mr Emlyn-Jones submits that is a significant aggravating factor.

On behalf of the offender it is submitted that this is a most unusual case. Miss Dempster KC relies upon the judge's reference to V's appearance having varied over the course of a number of hours. She submits that the judge, having heard the evidence in the course of a lengthy trial, was in the best place to make the factual findings which he did. She invites the court to consider the feature of the case, that V had the misfortune to be the victim of sexual offending by two separate offenders. Whilst recognising that this offender must take his victim as he found her, Miss Dempster suggests that the overall trauma suffered by the victim must, to some extent, reflect the offending by both offenders and not just by this one. Miss Dempster relies on the matters of mitigation to which we have referred. She emphasises, and we entirely understand, that the news that the Solicitor General would be referring the case to this court came as a heavy blow to the offender, and that these last few weeks have been a particularly difficult time for him.

We are grateful to both counsel for their very able submissions.

We begin by making a general point about "particular vulnerability". In both the relevant sentencing guidelines, a step 1 factor relevant to the categorisation of harm is that "victim is particularly vulnerable due to personal circumstances". In each guideline, at step 2, the non-exhaustive list of potential aggravating factors includes "specific targeting of a particularly vulnerable victim". When the guideline is accessed online, there is a drop-down menu which provides significant detail about the approach to those aggravating factors.

Here, although the judge's sentencing remarks are perhaps not entirely clear, it seems that the judge was not persuaded that specific targeting of a particularly vulnerable victim was proved. As the trial judge, he was well placed to decide that fact. The submissions made to him, and to us, about V's appearance during the time she was at the public house were relevant in that regard.

But those submissions were irrelevant to the step 1 factor. There can be no doubt, as the judge found, that V was particularly vulnerable at the time she was taken into the alleyway. She was alone in the dark, with a stranger old enough to be her father whom she had met minutes earlier. Her state of intoxication, largely involuntary, was described by the offender himself as being "proper drunk". It will be remembered that the offender had bought her another drink. Her vulnerable condition is starkly shown by the disturbing fact that she simply cannot say what happened to her during the period in the alleyway. She does not know how her clothes were removed. She does not know how it came about that her knickers and items of personal property were left behind in that alleyway.

Thus, under the assault penetration guideline there were two Category 2 harm features, particular vulnerability and severe psychological harm. We can agree with the judge's observation that the harm suffered by V fell short of the highest end of the range covered by "severe psychological harm"; but we respectfully disagree with his later indication that the harm fell at the lower end of that range. In any event, the terms in which the judge made that observation suggest that he only had in mind a modest downwards adjustment from the starting point. We have no doubt that any such adjustment would, at the very least, be balanced out by the upward adjustment above the starting point which was necessary to reflect the presence of two factors placing it in that category of harm.

We therefore see no basis on which an initial adjustment downwards from the guideline starting point of six years for that offence could properly be made.

An upward adjustment from the starting point then had to be made to reflect the additional criminality of the offence of sexual assault, which was serious in itself and which had the aggravating feature of the offender's ejaculation.

As to the points urged in mitigation, the brief duration of the digital penetration could be seen as nothing more than the absence of an aggravating feature, and in any event it could justify only a very modest reduction. The offender's mitigation certainly was stronger than in many other cases. The points made in relation to his mental health, and to the effect upon his business and those employed in it, were points properly to be taken into account in his favour. So too, to an extent, was his previous good character; but it must be remembered that in that regard the guideline applicable to the assault by penetration offence says this:

We should add that we see no basis at all for departing from the well-established principle that an offender must take his victim as he finds her. Nor is there any basis on which the court could properly embark upon a speculative exercise of seeking in some way to assess the harm caused by this offender as being reduced by the harm already caused by Patel.

We hesitate to differ from an experienced judge who had presided over the trial and who in his sentencing remarks considered the relevant factors. But with all respect to him, we cannot see any basis on which the total sentence could properly be as low as three years nine months' imprisonment, below the appropriate category range for the assault by penetration offence alone. Approaching the sentencing process in the way which we have indicated, it seems to us that the offender could not have complained if the total sentence had been in excess of the starting point for that category. Taking the most favourable view, the mitigation available to the offender could at best be said to balance out those features which would otherwise take the sentence above the guideline starting point.

For those reasons, we grant leave to refer. With all respect to the judge, and conscious of the impact of imprisonment on the offender, we have no doubt that the sentencing was unduly lenient. We quash the sentences imposed below. We substitute for them the following: for the offence of assault by penetration, six years' imprisonment; for the offence of sexual assault, three years' imprisonment concurrent.

The effect of our decision, from the offender's point of view, is that his total sentence is increased to one of six years' imprisonment.