R v Mark Coley

The provisions of the Sexual Offences (Amendment) Act apply to this appeal. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall, during their lifetime, be included in any publication if it is likely to lead members of the public to identify them as the victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.

The appellant, Mark Coley, is aged 36. On 28 March 2024, in the Crown Court at Wolverhampton before HHJ Butterfield, the appellant was convicted of rape, contrary to section 1(1) of the Sexual Offences Act 2003 (Count 1) and controlling or coercive behaviour in an intimate or family relationship, contrary to section 76(1) of the Serious Crime Act 2015 (Count 5). On 31 May 2024, the appellant was sentenced to an Extended Determinate Sentence, comprised of a custodial term of 18 years and an extended licence of 4 years. His Extended Sentence of 22 years was imposed together with Notification Requirements and the provisions of Part 2 of the Sexual Offences Act 2003 and an order was made under the Safeguarding Vulnerable Groups Act 2006 relating to the Disclosure and Barring Service. The appellant appeals the custodial term within his extended sentence but he does not take issue with either the imposition or the length of the extended licence period.

The appellant was aged 35 at the time of these offences. He met the complainant in early 2022 and quickly formed a relationship with her. She was aged 29 and had significant learning difficulties together with a reduced mental age assessed as at 14 years old. By August 2022, the appellant had become controlling in his intimate relationship with the complainant. He controlled her phone use, breaking her mobile phones on multiple occasions, he controlled her finances and forced her to abuse substances such as alcohol and drugs, despite the complainant having been clean for 13 months before her relationship began with him. The appellant also used violence against the complainant during the relationship, smashing her head against a wall, dragging her off the bed by the ankles and pinning her down and punching her in the face. He told her that her movements would be recorded through surveillance cameras whenever she was in his home.

The appellant’s behaviour towards the complainant came to the attention of the police. As a consequence, the appellant was granted bail after his arrest and with a condition preventing him from having contact with the complainant. In breach of his bail, the appellant resumed his relationship with the complainant and took her to his flat. On 26 September 2022, the appellant raped the complainant inside his flat. He ripped off her clothes and pinned her down by the throat causing her substantial bruising. He punched her in the face and then raped her. In order to achieve penetration whilst the complainant refused to comply, the appellant repeatedly punched the complainant in the genital area so that she would open her legs for him to penetrate her. After the offence the appellant left the flat locking the complainant inside.

The police searched for the complainant and the following day she managed to contact them. The police needed to force entry into the flat in order to rescue her. The complainant’s injuries were visible to her face, arms and throat. Over the days following bruising to the genital area became obvious.

The complainant’s evidence at trial was that she had been the subject of repeated violence as well as controlling and coercive behaviour by the appellant. The jury convicted the appellant of rape in Count 1 and controlling and coercive behaviour in Count 5. Other charges of rape did not lead to conviction.

The appellant’s antecedent history revealed that he had 10 convictions for 21 offences, eight of which related to offences against the person. Also the appellant had a history of breaching Restraining Orders in respect of other partners.

In a comprehensive pre-sentence report its author described the appellant’s attitude to the offending. He minimised his behaviour and denied the rape. He blamed the complainant and also his previous head injury which he had suffered in 2006 in a road traffic accident. The author of the report concluded that the appellant demonstrated a lack of responsibility or insight for his offending, that he had a history of violence against intimate partners, of drug misuse and alcohol abuse and a history of refusing to obtain or comply with professional help relating to the consequences of his head injury. Those included mood swings and anger outbursts. The author of the report also concluded that the appellant posed a high risk of further offending for serious harm to those with whom he had formed relationships.

The judge concluded that the rape offence fell within Category A1 within the guideline, with a Starting Point of 15 years’ imprisonment and a range of 13 to 19 years. The judge found that there were three harm factors within Category 2, being prolonged detention, violence and threats of violence beyond which was inherent in the offence and that the complainant was particularly vulnerable due to her personal circumstances. The judge found that these three factors had an extreme impact in combination upon the complainant and therefore raised the harm category to Category 1. In relation to culpability, the judge found that there was evidence of previous violence against the complainant, causing the rape offence to fall within culpability A.

The aggravating factors of seriousness taken into account by the judge included the fact that the appellant had ejaculated, there were repeated breaches of court orders, together with previous offending, that the appellant was in breach of his bail when he committed the rape offence and the offence was within a domestic context because the appellant was in a relationship with the complainant. In mitigation, the judge credited the appellant with some attempts to improve himself whilst in custody awaiting sentence which was borne out in a letter which he wrote to the court. Further, there was no previous sexual offending in his antecedent history. Also the effect of the appellant’s head injury on his behaviour with all previous offending having occurred since that major event in his life.

The judge concluded that if the rape offence was to be sentenced alone, the sentence would have been 16 years, after allowing for both aggravating and mitigating factors and increased the sentence by 1 year from a Starting Point of 15 years. The judge concluded that the sentence for Count 5 (controlling and coercive behaviour) was 4 years’ imprisonment which sentence is not criticised in this appeal by the appellant. The rape offence was treated as the lead offence for sentencing purposes, to take account of all offending. However, to reflect the seriousness of Count 5, the lead sentence was increased from 16 years to 18 years, taking into account the principle of totality of sentence. Accordingly, the custodial term within the Extended Sentence was 18 years.

On behalf of the appellant it is argued by Ms Sidhu, for whose brief and helpful grounds of appeal and submissions we are grateful, that the custodial term of 18 years was excessive. The judge adopted too high a category for the offence of rape and should not have been Category A1 but B2. Further, the sentence was too high within the category and that insufficient weight was given to the appellant’s mitigation, in particular his mental health difficulties as a result of his head injury.

In assessing the culpability of the complainant for the rape offence, it cannot be ignored that when the complainant gave evidence, she described being the subject of previous violence by the appellant during the course of the relationship. A judge heard that evidence and was sure that it was true. This was an important factor of culpability within the Rape Guideline and let the judge conclude that this offence was within category A. In addition, there were clearly three factors of Category 2 harm:- this was a prolonged detention after the complainant was locked within the flat following being raped; there was violence and threats of violence beyond that which was inherent in the offence with force used to the complainant’s neck and punching to her genital area and that the complainant was particularly vulnerable. This combination of three factors of harm justified, in our view, the lifting of this offence from Category 2A to Category 1A, as the judge found when sentencing. This led to a Starting Point over the guideline of 15 years and a range of 13 to 19 years.

Taking into account the aggravating and mitigating factors of seriousness led the judge to increase the sentence from 15 to 16 years. That is the sentence that the judge would have imposed for the rape offence on its own. We are unable to find that such a sentence was either excessive or wrong in principle.

Count 5 was an offence which would have justifiably led to a consecutive term of imprisonment given his very different offending when compared with the violent rape. The judge was correct to treat the rape as a lead offence and then to adjust the custodial term to reflect the concurrent sentencing for Count 5. Also, after allowing for the principle of totality, the judge reduced the sentence of 4 years down to 2 years which he added to the 16-year custodial term for the rape offence. In our judgment, this approach to sentencing was correct, leading him to the custodial term of 18 years. We do not find that a custodial term for this very serious offending to have been excessive. Therefore, we are not persuaded that the custodial term was excessive nor was it wrong in principle, and we must dismiss this appeal.