R v Vernon Steele

The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where an allegation has been made that a sexual offence has been committed against a person, no matter relating to that person 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 that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act. For the avoidance of doubt, we do not waive or lift the prohibition.

His Majesty's Solicitor General applies for leave to refer a sentence which he regards as unduly lenient. The sentence was passed by HHJ Rupert Lowe, after the offender had been convicted by the jury of four offences of rape. The aggregate sentence was one of 8 years' imprisonment structured as follows. The sentence on count 1 was one of 6 years. The sentence on each of counts 2, 3 and 4 was 2 years consecutive to count 1 but concurrent with other counts.

The offender is 60 years old. He has some relatively minor previous convictions but none for sexual offending. The judge reasonably described his antecedents as "relatively sparse". His victim was a 68-year-old woman (who we shall call "V") who the judge described in his sentencing remarks as having "significant personal difficulties". She walked with a walking aid, she had learning difficulties and at the material time she had an injured knee. She was for these reasons vulnerable.

V had lived for several years at a warden controlled residential retirement home in Tewkesbury where the offender's parents also lived. In 2023, the offender also moved into the retirement home and befriended V. He spent time with V and helped her on some occasions with housework. The offender then began to show V sexual videos on his phone, including videos of himself masturbating. V did not show any interest or response to being shown the videos. However, the offender took V into her bedroom, removed her clothing and had sexual intercourse with V without her consent (count 1). The offender repeated this activity on at least three further occasions over a period of approximately seven to ten days. Those occasions formed the basis for counts 2 to 4.

V disclosed the offences to a fellow resident of the retirement home and the police were contacted. In an ABE interview, when describing the first occasion, V said: "I said, 'No,' keep saying, 'No, no, no,' and he still done it…. He said, 'we’re still gonna do it.'". When describing the second occasion V said: "I told him I don't want more sex and he still done it.." On the third occasion the interviewing officer asked V if she had the offender that she did not want him to put his penis in her vagina to which she said: "Yeah, I told him a couple of times". The interviewing officer asked V whether she told him on the fourth occasion to which she said: "Yeah. He don't listen".

The offender was arrested and interviewed. He initially claimed that there had been no sexual contact between him and V and said that V was "as mad as a box of frogs". However when presented with forensic evidence of his semen on V's bedsheets, he answered "no comment" and then suggested that this was the result of an occasion when V had masturbated him. When he was presented with evidence that his semen had been found on intimate swabs taken from V, he then said that he had engaged in consensual sexual activity with V on one occasion.

The judge accepted that the offences fell within category 2 because V was a particularly vulnerable person. However, he rejected a submission by the prosecution that these offences fell within category 2A because he was not satisfied to the criminal standard of proof that the offending involved "significant planning" within the meaning of the relevant guideline. His finding that the offences fell within category 2B is not challenged by the Solicitor General, who accepts that the judge was entitled to reach that conclusion. That would mean that the starting point for a single offence was 8 years with a category range from 7 to 9 years.

The judge identified two potentially aggravating features. His first was that there were four separate occasions, his second was the fact of ejaculation, which he considered to be an aggravating feature even though it did not put his victim in fear of conception or infection. As mitigating features, the judge identified that the offender had no convictions of a similar type before. No other personal mitigation of great substance was advanced save that the prisons are full. There was no victim personal statement from or on behalf of V. On this basis the judge concluded that the least sentence he could impose was one of 8 years' imprisonment structured as we have set out above.

The Solicitor General submits that for a single offence there should have been an upwards adjustment from the starting point of 8 years to reflect the aggravating features of ejaculation and specific targeting of a particularly vulnerablevictim. Although he was entitled to make some modest reduction to reflect the offender's personal mitigation, the aggravating features outweighed the mitigating. But the judge was not sentencing for a single offence but for four. Accordingly, however the individual sentences were structured, it should have resulted in an aggregate sentence well above the 8 years that the judge imposed. Eight years, even if appropriate for a single offence, was unduly lenient as an aggregate sentence for four.

In concise and clear submissions that were none the worse for being delicately expressed Mr Gadd, who appeared for the offender in the court below, submits that the sentence passed by the judge was within the appropriate range and was not unduly lenient. He submits that this was not a case of specific targeting of a particularly vulnerablevictim and that the judge found no evidence that the offender had targeted her because of her vulnerability. That part of his submission we can accept. He submits further that the judge gave appropriate weight to the significance of ejaculation in this case and also to the offender's relatively good character and absence of recent or similar convictions; and he referred to the offender's family background, which is unexceptional. He emphasises that at the outset the offender's dealings with V were not suspect, and that he helped her in numerous ways before the move to sexual offending took place. He submitted that the sentence as structured by the judge included a sufficient uplift by the imposition of the additional 2 years in respect of counts 2, 3 and 4. Because these offences though serious were at the lower end of the scale, ultimately his submission was that this was an aggregate sentence that the judge was entitled to pass.

While we tend to the view that the aggravating features in the case outweigh the mitigating features, we are not persuaded that a sentence of 8 years for a single offence of rape as committed by the offender, when viewed in isolation, was outside the range that could reasonably be imposed. We see no justification for going significantly lower than 8 years for a single offence because at best for the offender the aggravating and mitigating features more or less cancel each other out.

However, the judge was not sentencing the offender for a single offence of rape but for four. We can see no justification for imposing an aggregate sentence of 8 years for the four rapes committed by the offender. The only question in our mind concerns how great an uplift was required to reflect the fact that the judge was sentencing the offender for four offences of rape, committed on separate occasions as we have described above.

Clearly on totality grounds, we do not simply aggregate the appropriate sentence for one rape times four. But in our judgment, the uplift from 8 years must be significant and, in our judgment, must be not less than a further 4 years to reflect the seriousness and persistence of the offender's conduct, which did not stop until V disclosed what was happening to others. We accept that there being four separate incidents suggests the possibility of consecutive sentences in respect of each offence. However, in circumstances where we consider that the essential complaint is that the aggregate sentence is too low and all the offences were committed against V, we propose to address the issue by weighting the sentence on count 1 so that it reflects the overall criminality of the offender's conduct. We do that by quashing the sentence on count 1. We then substitute a sentence of 12 years on count 1 and direct that the sentences on counts 2, 3 and 4 are unchanged save that they shall be concurrent. For these reasons we grant leave and order accordingly.