R v Rasseika Duncan

This is an appeal against sentence, leave having been granted by the single judge.

Section 1 of the Sexual Offences (Amendment) Act 1992 applies in this case. Under those provisions, where a sexual offence has been committed against a person, no matter relating to the complainant shall be included in any publication during their lifetime if it is likely to lead members of the public to identify them as the person against whom those offences were committed. This prohibition applies unless it is waived or lifted in accordance with section 3 of the Act. Reporting restrictions therefore apply in this case. For that reason we refer to the victim of this offending by the initial B, which has been chosen randomly. No disrespect is intended to her by referring to her by an initial.

On 10 June 2025, following a trial in the Crown Court at Manchester, the appellant (then aged 40) was convicted of one count of vaginal rape, contrary to section 1 of the Sexual Offences Act 2003 (count 2) and one count of causing or inciting a child to engage in sexual activity, contrary to section 10 of the 2003 Act (count 4). He was acquitted of two counts, one of oral rape and one of intentional strangulation, about which we need say no more currently.

On 18 September 2005, Mr Recorder O'Donohoe (who had conducted the trial) sentenced the appellant to 11 years' imprisonment on the count of rape and to a concurrent term of two years' imprisonment on the count of causing or inciting a child to engage in sexual activity. The overall sentence was therefore one of 11 years' imprisonment. The usual statutory notification and other provisions were also imposed.

The facts that led to these convictions are as follows. They all arise out of the same evening. On 1 October 2022, when the appellant was 37 years of age, he came across B who, together with some of her friends, was spending time at the bus station in Hyde at about eight or nine o'clock in the evening. The appellant was on his way home from his son's fifth birthday party. He asked B whether she knew of any good bars or clubs nearby, and her evidence was that she told him she did not and that she was only 15 years of age.

The appellant has been represented before us by Mr Addison who has very helpfully made useful oral submissions and he has explained (as he put it) that the appellant was "somewhat melancholy", having not attended the birthday party – the first time that he had had to be absent from such an event.

Whatever his state of mind, the appellant came across B as a matter of chance. He did not know B and B did not know him.

Subsequently, following their conversation at the bus station, the appellant and B took two buses which led them back to the appellant's flat, a multiple occupancy property in Stalybridge. Either in between or during those two bus journeys the appellant bought some cannabis. At the appellant's flat B became uneasy. She sent a message to her brother and another friend asking for help. Her brother suggested that she should break a window or kick in the door. She did neither of these things. The appellant smoked some cannabis and put on a TV programme, "Too Hot to Handle", which features young men and women in swimwear. Mr Addison has explained to us that that programme is a dating game and not a pornographic television programme.

The appellant tried to kiss B, but she did not want to kiss him. She told him that he was "too high". There was then the sexual activity of which he was acquitted, namely the oral rape. The fact that the appellant was not convicted of that offence meant that there was consensual sexual activity – or at least sexual activity which the jury could not be sure was not consensual.

After that, the appellant wanted to have sexual intercourse with B. She stated that she could not do so as she was menstruating. We will not go through all of the details of the offending. Suffice it to say for the purposes of this judgment her evidence was that she did not consent and she made this clear. The appellant put on a condom and penetrated her vagina. He did not ejaculate. He removed the condom. The appellant made B masturbate his penis and after that he masturbated himself before ejaculating.

Meanwhile, police officers had been notified of what had been happening through the telephone messages to which we have referred and they attended the address. When they had arrived the appellant is said to have put his head in his hands and stated that he thought B had been 16 years of age. B told a police officer that she had not consented to sexual activity, but thought that she had to do it because of the way that the appellant was behaving. She also told the police that she thought that he was 21 years of age.

The appellant was arrested. When he was interviewed the following day he gave an account that he thought that B was 16 years of age; that she had said that she was that age; and that all of the sexual activity had been consensual. He went on to say that he should have been more inquisitive and that his judgment could have been clouded by alcohol and cannabis.

The Recorder had the benefit of a pre-sentence report which explained the appellant's background and other circumstances. He had only one conviction for four unrelated offences from the magistrates' court which had led to a fine in October 2013. The Recorder did not take those into account, in which respect we entirely agree. They were not relevant.

In passing sentence the Recorder explained that in his judgment both counts fell under category 2A in the sentencing guidelines. He drew attention to the significant disparity in age. He said that B was particularly vulnerable and, on the evidence, he was satisfied that she was "manifestly vulnerable". He considered that this was indicated in parts of the appellant's interview with the police. He also said that he was "in no doubt whatsoever that she has suffered severe psychological harm by what has happened to her". He said that the offending would have a lasting impact upon her, and she had now developed post-traumatic stress disorder, although it was hoped that this would improve, now that she had obtained a place on a college course. He sentenced the appellant to a total of 11 years' imprisonment, as we have said.

The Recorder, like us, had seen the photographs of bruising to B's legs, arms and chest area. He had the benefit of seeing her Achieving Best Evidence interview. He also had two Victim Personal Statements, including one from her mother. They make clear the devastating impact upon B of the events of that night. The mother's statement demonstrates the impact not only on B, but also on her in supporting B in her psychological issues which she experienced after the event. These include: the post-traumatic stress disorder; the difficulties that B had in obtaining a college course; the understandable overprotectiveness of her mother in trying to support B; and the stress and exhaustion of the events, including during the time approaching the trial.

There is one ground of appeal. It is submitted that the Recorder erred in his assessment of the facts of count 2 (rape) and the meaning of the phrase "significant degree of planning" in the guidelines. It is said that by placing the offending into harm category 2, culpability A of the Sentencing Council Guidelines, the Recorder used the wrong figures in categorising the offending as 2A; whereas the appropriate categorisation, it is said, should have been 2B, which has a lower starting point and range. Reliance is also placed in the written submissions on R v Dogra [2019] EWCA Crim 145.

These submissions have been ably amplified orally by Mr Addison today. He submits, correctly, that there is little material in the sentencing remarks to show why the Recorder chose category 2A. However, we agree with him that this must be based on the prosecution's sentencing note which, in paragraph 35 and onwards, explains the approach to sentencing, including the presence of significant planning.

We pause to observe that we have sympathy with busy Recorders and Circuit Judges who have to sentence offenders whilst also conducting other trials, with the great pressure of work. However, a sentence or two explaining why category 2A had been chosen would undoubtedly have been of assistance. Regardless of that, there is no doubt that it is the presence of significant planning, in our judgment, that led to the Recorder categorising the offending as 2A.

Mr Addison also relies on the fact that (as he puts it), because the appellant gave B the chance to remain at the bus station and left it as her choice whether she accompany him voluntarily, this demonstrates and supports the submission that there was a lack of significant planning. He challenges the fact that just because two buses were necessary, or the switching of buses (as he puts it) this shows any degree of planning, and emphasises on the appellant's behalf that B went voluntarily to the appellant’s flat and to his room. He says that the television programme "Too Hot to Handle" is completely irrelevant, because it is not a pornographic programme; it is simply a dating game. Further, he emphasises that this was a chance meeting between the appellant and B and relies on a submission that the appellant was "somewhat melancholy" due to his absence from his son's birthday party, to which we have already referred. He also explains that the appellant was not intoxicated. Accordingly, that was not an aggravating feature, even though it was listed as such in paragraph 39 of the prosecution's sentencing note.

Mr Addison submits that it is a reasonable interpretation of the verdict, by which the appellant was acquitted of the two counts of oral rape and strangulation, that the jury had concluded that the initial sexual conduct was consensual. But it was the fact that B was menstruating which supported her evidence that she did not want vaginal sexual intercourse. He says that all of these points should be taken into account when coming to a conclusion as to whether or not there was significant planning.

In our judgment, these points are, in a sense, potentially reasonable points so far as they go. But the tribunal best placed to judge such evidential matters, and weigh them against each other, is the trial judge. In our judgment, this is undoubtedly a category 2 case for harm, although a combination of category 2 factors – and here there were two – could elevate a case such as this into category 1. That is not, however, directly relevant for the purposes of this appeal because, turning to culpability, culpability A requires a significant degree of planning. That has a starting point of ten years' custody, with a range of nine to 13 years; whereas 2B (an offence which would be one absent a significant degree of planning) has a lower starting point of eight years' custody, with a range of seven to nine years. The degree of planning involved in cases such as this will always vary from case to case. It is a matter for the sentencing judge – particularly where, as here, sentencing is taking place after a trial – to determine and be best placed to conclude whether the degree of planning was, or was not, significant.

Here, the Recorder heard the trial and saw the witnesses give their evidence. This court will not lightly interfere with the exercise of judgment by a judge who has heard the trial and decides whether the planning involved on the part of the appellant was or was not significant.

However, further, and in any event, here there was a degree of planning that can properly be described as significant. It was about eight or nine o'clock on an evening in October at a bus station when the appellant came across a vulnerable 15 year old girl. He persuaded her to accompany him across the city on two buses, obtaining drugs on the way, and took her to his flat. It is clear that he must have informed an intention at some early point in that episode which would explain why he was taking her to his flat some distance away, having separated her from her friends with whom she was socialising initially. The fact that she may initially have agreed to go with him consensually, or that he was sufficiently able to gain her trust in order to persuade her, or suggest to her that she do accompany him from Hyde to Stalybridge, came in the context of B plainly not realising what would happen to her when she arrived there. This does not mean that the appellant did not have a plan in his mind far earlier than the actual moment when he produced his condom and raped her. All the facts suggest, in our judgment, considerable planning. B certainly realised that she was in some danger at an early stage in the appellant's flat – hence her phone messages to her brother and her friend. Tragically for her, the police arrived at that flat too late. By the time of their arrival, she had already been raped. This could hardly be described as a spontaneous sexual assault by the appellant, or something that occurred on the spur of the moment. The case of Dogra does not assist. These cases are all highly fact specific – and we repeat that it is the trial judge who has heard the evidence who is best placed to come to conclusions on these important matters which are relevant for sentencing.

In our judgment, the offending on the count of rape was properly placed in category 2A by the Recorder. The resulting sentence on the count of rape of 11 years' imprisonment is not manifestly excessive.

Accordingly, the appeal against sentence is dismissed.