R v Cory Thompson

This is an application by His Majesty's Solicitor General for leave to refer to this court a sentence on the basis that it is unduly lenient and ought to be reviewed and increased under the provisions of section 36 of the Criminal Justice Act 1988.

As will become apparent, the case concerns sexual offending. There are two victims to whom we will refer as "V1" and "V2". They are entitled to lifelong anonymity. By statute, no material may appear in any publication which might lead to their being identified as the victims of these offences during their lifetimes. That entitlement to anonymity has not been waived, and there is no reason to suppose that the court will ever lift it. Accordingly, they will be anonymised and any report of these proceedings must respect that.

On 19 December 2024, in the Crown Court at Derby, the offender was sentenced by His Honour Judge James Carter for two offences of which he had earlier been convicted following a trial. The offence against V1 was charged in count 4 of the indictment as an offence of sexual assault which took place on 4 July 2021. The offence against V2 was charged in count 6 of the indictment. This was an allegation of rape, which took place on 5 March 2022.

The offender had been tried for a number of other offences against a number of other victims, but the two with which we are concerned were the only convictions. It is neither necessary nor desirable for the purposes of this Reference to say anything about the facts of those other offences, or how it was that those allegations did not result in convictions. The only significance of the complexity of these proceedings is, first, that as at the date of the offence of rape in March 2022, the offender was on bail for an offence of dangerous driving, which itself did not result in a conviction. Further, he was, as he knew, under investigation for a series of other sexual offences, including the offence against V1, of which he was convicted.

The fact that the offender had been earlier subject to police bail in respect of those offences and that that bail had been cancelled and replaced by "release under investigation" is for our purposes something of a technicality. The guidelines make it clear that offending while on bail is an aggravating factor, and the same applies, in our judgment, to offending while subject to an investigation, having been released on those terms. Equally, offending while subject to that level of scrutiny and restraint may be relevant to an assessment of dangerousness. Whether the offender at the material time is at large because he is on bail or because he has been released under investigation for present purposes is a difference without substance.

The second significance of the complexity of the proceedings is that, as we have recorded, the offender did not fall to be sentenced until December 2024, in respect of offences which had taken place some years earlier. He had been in custody since June 2022. There were a number of trials which were inconclusive, and he was finally convicted at a second retrial. That meant that the period of time awaiting trial during which he had the protection of the custody time limits was relatively short and he had spent therefore longer in custody awaiting trial and then sentence than is ideal. Whereas that delay is a factor to which we should have regard, in our judgment in this case it does not operate as a substantial mitigating factor. The result of the conviction for the rape of V2 means that the offender is inevitably subject to a lengthy sentence of imprisonment, which he has, in effect, been serving while on remand. Moreover, the delay in this case has not been caused by any fault on the part of the court, or the prosecution, or any other party. It is the consequence of juries being unable to agree and further trials therefore being necessary.

In respect of the sexual assault offence (count 4), the judge imposed a term of one year and three months' imprisonment, which he ordered to run consecutively to a term of eight years' imprisonment which he imposed in relation to the offence of rape (count 6). That was a total term of nine years and three months' imprisonment. In addition, the judge made a number of consequential orders of the kind which are necessary in such cases. It is not necessary to set those out. There is no challenge to any of them by either party.

The offender is Cory Thompson. He is now 29 years old. He was born on 4 August 1995. At the time of the offending he was aged between 26 and 27 years.

On 4 July 2021, the offender sexually assaulted V1, who was then 17 years old. He had met her on previous occasions when she had visited her friend who lived in the flat opposite the offender. On the day of the offence, V1 messaged her friend to ask for a lift home to Derby, having spent the day with her boyfriend. The offender replied and picked her up in a hire car. Despite her saying that she did not want to drink, the offender purchased alcohol and pressured her into drinking some of it. He drove her to a secluded car park near to a lake, where he sexually assaulted her by grabbing her by the face and neck and forcefully kissing her, after forcefully pushing her face against the car window. He later drove her home and sent threatening and abusive messages to her when she made it clear that she did not want to see him again.

On 5 March 2022, the offender vaginally raped V2. V2 was 23 years old and a student at the university in Derby. She had met the offender on previous occasions through mutual friends. On the evening of 5 March 2022, she invited the offender to visit her in her accommodation at the university and to have a drink. He accepted the invitation and when he was there he kissed her. She made it clear that she did not want anything sexual to happen. He then became aggressive and persistent. He tried to compel her to have sex with him, despite her clearly and continually saying that she did not want him to do that. Ultimately, she hit him in the face in an effort to make him stop. He laughed at her and hit her back in her face "twice as hard". That was a significant blow, which was a significantly aggravating feature of the offence of rape. The result of it was that she thereafter complied, unwillingly, with what he wanted to happen. He carried her to the bedroom, he pulled down her clothing and raped her. He did not use any condom. After he finished, he showered and told her not to tell anyone about what had happened. She felt unable to report the offence until sometime later when she saw a press report relating to the offender being charged with some of the other offences to which we have already referred. That report was made to the police by V2 in August 2022, by which time the offender had been remanded in custody for some weeks as a result of that other offending.

The Solicitor General, through Mr Bishop, makes in summary four submissions. First, it is submitted that the judge's categorisation for the purposes of the relevant guideline of the offence of sexual assault was in error. Both the prosecution and the defence submitted to the judge that the harm for the purposes of the guideline was category 1. The choice that was presented to the judge by the advocates was whether it was a category 1A offence, or a category 1B offence. The judge decided that they were wrong in their approach and that the proper category was category 2B. The Solicitor General says that that was an error and resulted in a starting point for count 4 which was too low.

Secondly, the Solicitor General submits in writing that the aggravating and mitigating factors relating to both offences failed to give sufficient weight to the serious aggravating factors which were present and gave disproportionate weight to the mitigating factors such as they were. The Solicitor General submits that actually the balance of aggravating and mitigating factors should have led to a significant upwards adjustment to the starting points selected for both offences.

Thirdly, it is submitted that the judge failed to order the preparation of a pre-sentence report which it was necessary to obtain in the circumstances where the offender's previous convictions included specified violent offences, including a robbery committed whilst in possession of an imitation firearm. The judge's conclusion that the offender was not dangerous was, therefore, reached without full consideration of all the information which was available, had it been sought, about the risk posed by the offender and was accordingly flawed.

Fourthly, it is submitted that the judge failed to impose a total sentence that was just and proportionate to reflect the overall offending against two separate victims.

There is, of course, a great deal more to the facts of these offences than our short summary contains. However, in our judgment it is not necessary to set them out in any greater detail. These were both serious offences of their kind. The offence of rape, accompanied by violence as it was, was an offence of great gravity. There is no Victim Personal Statement from V1 (the victim of the sexual assault offence). But there is a Victim Personal Statement from V2 (the victim of the rape). We have read that with care, as did the judge. It is clear that the offence has had a long and severe impact upon her. The judge found that for the purposes of the guideline, he should approach the case on the basis that she had suffered severe psychological harm. That is a finding with which we entirely agree.

It is right to record that the offender continues to deny his guilt in respect of these two offences. His defence at trial was that he was the victim of a malicious conspiracy of false complaints which had something to do with a gang and the loss of some cannabis. He suggested that V1 and V2 had some links to this gang and that is why they were making false complaints. He denied any sexual activity at all. The jury plainly rejected his account. For present purposes that is by the by, although the court is of course entitled to take into account the offender's attitude to the offending when deciding whether or not he is dangerous. It is for that reason that we have set that out.

As we have recorded, the sentence in this case was imposed after an adjournment following the convictions at a sentencing hearing in December 2024. Between the convictions and that sentencing hearing there was a further hearing on 1 November 2024 when the case was listed, it would seem, so that the court could consider whether or not a pre-sentence report was required for the purposes of the dangerousness assessment. No report was ordered.

We have no information, either from the court record or from the prosecution, as to whether or not that issue was canvased in court. Miss Abigail Bright, who has represented the offender before us this morning with the assistance of Miss Sapna Devi (who has not been able to attend the hearing), was not counsel before the Crown Court. She is therefore unable to assist us as to what happened at the hearing on 1 November.

A sentencing note was prepared by counsel for the prosecution which reminded the judge that the offences were such as to engage the dangerous offender provisions and to require a dangerousness assessment. That fact was repeated in the course of the oral submissions made by prosecuting counsel at the sentencing hearing. It is quite clear that the judge was aware of that fact, and to this extent the prosecution had assisted him in achieving that awareness. At no stage, however, did the prosecution say, as they say today through Mr Bishop, that the judge made an error of law in proceeding to sentence without a pre-sentence report. We shall return to that question at the end of this judgment.

We should say something further about the previous convictions of the offender because they play a significant role in the Solicitor General's submissions to us. On 9 August 2013, in the South Derbyshire Magistrates' Court, he was made subject to a conditional discharge for offences of assaulting a police officer and going equipped for theft. He was 18 years old at the date of sentence.

On 5 September 2013, in the Crown Court at Derby, a youth rehabilitation order was imposed for an offence of attempted robbery.

On 3 October 2014, that order was revoked by the Crown Court because the offender then appeared for sentence for some further serious offences. On that occasion he was sentenced to a total of 84 months' detention in a young offender institution: 56 months' detention for an offence of robbery committed on 17 October 2013; a consecutive term of 12 months' detention for possession of an imitation firearm while committing that first robbery offence; a further consecutive sentence of 12 months' detention for a second robbery committed on 23 October 2013; and a further consecutive sentence of four months' detention for the attempted robbery for which the youth rehabilitation order had been imposed the previous year. These were serious offences. It is not necessary to say anything more about their facts, except to record that they occurred over a short period of time in the relatively distant past when the offender was much younger than he was when he came to commit the offences on the indictment with which we are concerned. It is also right to record that at that later time when the sexual offending occurred, the offender had not very long finished the period of licence which was the consequence of the sentence of 84 months' detention, from which he had been released much earlier. That meant that there was up to date information about him which would have been gleaned by the Probation Service in the course of supervising that licence.

In mitigation, the offender produced a significant amount of material about what he had been doing since his release from that sentence and prior to the sentencing hearing in December 2024. He produced character references, educational certificates and evidence that he had required some assistance for his mental health during that period. In summary, that substantial body of material showed that he had been making an effort to put what had been a disrupted and drug affected youth behind him, to address his mental health difficulties, and to make a life for himself.

The judge was of course required to follow the relevant guidelines in dealing with this sentence. There is a guideline for rape and a guideline for sexual assault.

We should also refer at this stage, when addressing legal requirements, to section 30 of the Sentencing Act 2020. That section, when dealing with an offender such as this, requires the court to obtain and consider a pre-sentence report before forming an opinion on the subject of dangerousness, unless in the circumstances of the case it considers that it is unnecessary to obtain such a report. That obligation of course applies beyond the assessment of dangerousness under those provisions, but we draw attention to it specifically in this context.

The judge did not formally announce a decision that it was unnecessary in the circumstances of this case to have a pre-sentence report. Nor did he explain why he felt able to proceed without one.

By way of further reference to the legal considerations which apply to this sentencing exercise, we refer to Attorney General's Reference No 145 of 2006 [2007] EWCA Crim 692, which explains the nature of the obligation created by the statute when considering dangerousness. In relation to sexual offending in particular, the court said:

Further, we refer to the decision of this court in Attorney General's Reference (R v O'Rourke) [2021] EWCA Crim 1064; [2022] 1 Cr App R(S) 29. That decision also emphasised the critical significance of the pre-sentence report in forming an opinion that an offender who has committed a serious qualifying offence (or offences) is not dangerous. It may be that in a lot of cases, as the court pointed out in O'Rourke, the facts will speak for themselves and will point directly to a justified conclusion that an offender is dangerous without the need for further investigation. However, the opposite conclusion, namely that an offender is not dangerous, should in the judgment of the court there and in our judgment today, only be reached following proper and careful investigation. The decision in O'Rourke also addresses the difficulty which a failure to secure a pre-sentence report at first instance creates for this court when dealing with a Reference which contends that an offender who has not been found dangerous should have been. This is a court of review which has to determine whether or not the sentence imposed by the judge was unduly lenient on the material which he had. The extent to which we can take into account fresh material on a Reference of this kind is circumscribed by law. That, in our judgment, emphasises further the importance of Crown Courts securing all of the material that they ought to have before embarking on a sentence of this kind.

With that review of the legal framework, we turn to the approach of the sentencing judge. We have said something already about the submissions that the judge received. He found that the offender was not dangerous. He said:

The judge then move on to deal with the classification of the offences for guideline purposes. He concluded that the rape offence fell within category 2B of the relevant guideline because, as we have said, there was severe psychological or physical harm to the victim, V2, and violence was used against her beyond that which was inherent in the offence by reason of the blow.

The judge identified as aggravating factors the fact that the offender was on bail. He was not satisfied that the offender was under the influence of alcohol, or that there were any attempts to conceal evidence.

He referred to the mitigating factors in the case. He identified the substantial amount of material and a letter from the offender, which we have described above. Having read that letter, he observed:

After taking the category 2B starting point, and balancing those aggravating and mitigating factors, the judge arrived at a sentence of eight years and three months' imprisonment.

The judge then considered the sexual assault offence charged in count 4. As we have said, he rejected the submissions which were made to him by both counsel and decided that it was an offence of category 2 harm, and culpability B. In reaching that conclusion, having referred to the agreement that it was category 1 harm because of the abduction, he said:

In his assessment of culpability at level B, the judge found that the alcohol was not used to facilitate the offence. That meant that the starting point was one year's imprisonment and that there was a range between a high level community order and two years' custody. He arrived at a provisional sentence, before making a further reduction to the overall result for totality, of one year and nine months.

The judge decided that he would impose consecutive sentences in relation to these two offences. There can be no criticism of that approach – and there is not – by either side. Both sides accept that it is a consequence of taking that approach that the court is required by the relevant guideline to make an adjustment where necessary for what is described as totality. In essence, that simply involves ensuring that the total term is proportionate to the overall criminality reflected in the relevant convictions.

The judge considered that adjustments were required to his sentences for that reason. The sentence for rape was reduced to eight years' imprisonment; and that for sexual assault was reduced to one year and three months' imprisonment. That is how the sentence which we recorded at the start of this judgment was reached.

We have received helpful written and oral submissions from Mr Bishop and from Miss Bright, and we have reflected carefully on them. The conclusions which we have reached are as follows.

First, we consider that the judge's approach to the categorisation of the rape offence was within the range of options properly open to him.

Secondly, we consider that the Solicitor General is right in concluding that the judge made a clear error in his categorisation of the sexual assault offence. Both counsel who appeared before the judge were right in agreeing that it was a category 1 offence for guideline purposes. That is because it involved a clear act of abduction. The judge first said that there was no abduction and then said that there was an element of abduction. What we think he meant was that this case did not feature the kind of abduction which might properly result in the addition of a separate count of kidnap or false imprisonment. It was, nevertheless, an abduction. It is not possible to describe an act of driving someone who wants to go home, instead to a secluded car park near a lake so that they can be sexually assaulted. That is as clear an act of abduction as it is possible to contemplate. It is the kind of abduction which is properly addressed by classifying the substantive offence which was committed over the period during which the abduction lasted as a category 1 offence for the guideline purposes.

However, we do not agree with the Solicitor General's submission that the judge ought to have categorised this offence as a category 1A offence. That really turns on the approach that the judge took to the involvement of alcohol in the commission of the offence. In our judgment, it was open to him to conclude that although alcohol was involved, it was not directly linked to the sexual offence which occurred. The sexual offence was not facilitated by alcohol in the sense that it secured the victim's compliance or inability to resist. The sexual offence occurred because she had been abducted.

In those circumstances, we consider that the judge's error as to classification extended to his decision that the classification was category 2B and that the appropriate classification would have been category 1B. That means that the starting point that he should have taken was two and a half years' imprisonment.

If two and a half years is added to the sentence for rape of eight years and three months' imprisonment, it produces a result which, it is agreed, should be adjusted for totality. The judge made a reduction for totality in the way we have described. In our judgment, there is no scientific calculation involved in a totality calculation. It is not a matter of assessing a percentage and applying it to the sentences which have been aggregated. It is a matter of standing back and looking at the overall criminality and imposing an appropriate term to reflect it. In our judgment, the judge arrived at his sentence by a flawed approach, but it is that sentence which we review, not his reasoning. We accept that it was a lower sentence than some other judges may have imposed, but that is not the test. In our judgment, the term at which the judge arrived for these two offence of nine years and three months' imprisonment is not an unduly lenient sentence and we will not interfere with it. It is lenient, but not to such an extent that we should increase it.

The next question is whether the judge ought to have made a finding that the offender is dangerous, so that the term at which he arrived ought to have been expressed as the custodial period to be served in the context of an extended determinate sentence. We have already set out above the legal constraints which apply to this exercise, and have described the circumstances which led to it being carried out without a pre-sentence report. In our judgment, it is clear that a pre-sentence report ought to have been ordered in this case. The judge's approach was simply to look at the facts of the offences and to say that they did not drive him to the conclusion that the offender was dangerous. That is a flawed approach. The court is required to have regard to all of the necessary information in arriving at that conclusion.

Here it was apparent that there would be further material to be investigated by the Probation Service by reason of the lengthy period of licence which had not long expired before this offending started. It was, in our judgment, an error not to investigate that.

In this context, we would make it clear that the prosecution has an obligation to ensure that courts do not proceed in a way which is legally flawed. Mr Bishop has made it clear to us that it is not the practice for prosecutors in most cases to make submissions about whether a particular offender should or should not be found dangerous. We accept that. But where a judge proposes to sentence somebody who has been convicted of an offence of rape, and to make a determination as to dangerousness without seeking a pre-sentence report, particularly where that person has relevant previous convictions and has been subject to a lengthy previous sentence, it is an error of law which arises. In those circumstances, in our judgment the prosecutor has an obligation to make a submission about the impact of section 30 of the Sentencing Code, and about the need for a pre-sentence report. If that were not clear from the terms of the Act, it is certainly clear from the two previous decisions of this court which we have cited above and which were available both to the prosecutor and to the judge at the time when this sentencing hearing took place.

That creates a difficulty for this court. As was explained in O'Rourke, the court must proceed on the basis of the material that the judge had. We can only entertain fresh material at the stage when we are deciding what sentence ought to be imposed in place of the sentence passed by the judge in circumstances where we have concluded that that sentence was unduly lenient. Here we have not reached that stage. We are assessing whether the finding that the offender was not dangerous was unduly lenient. In our judgment, we should not therefore consider the content of the pre-appeal report for the purposes of that decision. We should look instead at the material that the judge had.

We consider that the matter may well have been more finely balanced than the judge appears to have thought. The offender's previous convictions are of some significance, although we have already referred to their age as at the date of the sentencing hearing. Also of significance was the fact that the rape offence in particular was committed at a time when the offender knew perfectly well that he was subject to investigation for two sets of previous sexual offending and that charging decisions were pending against him. His bail in respect of that had only recently been cancelled when he raped V2. That is a worrying feature.

However, after anxious consideration and reviewing the material which the judge had, we have concluded that we should not hold that this was a case where he should, on that material, have found the offender to be dangerous.

We must remind ourselves that the judge had not only the material to which we have already referred, but also extensive experience of the offender himself, having observed the trial over which he presided and during which the offender gave evidence. We arrive at this conclusion with some hesitation, because the truth of it may be that, after proper investigation, it might have emerged that the offender is indeed dangerous. We ourselves certainly do not find that he was not. This is a court of review, however, and we have, as we have said, concluded that on the material which he had available to him, the determination which the judge made was one which was open to him.

In those circumstances, we give leave to the Solicitor General to bring this application, but we decline to interfere with the sentences imposed by the judge.