R v ZHX (historic marital rape, deaf defendant)

The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. No matter relating to the person who brought this complaint 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 1992 Act.

On 28 November 2025 the appellant was convicted of a single count of rape following a trial at Lewes Crown Court presided over by His Honour Judge Stephen Mooney.

On 30 January 2026 the same judge sentenced him to 4 years' imprisonment, with 32 days to count towards sentence.

The appellant now appeals against sentence with the leave of the single judge.

The appellant was convicted of a single offence of rape against his now ex-wife on a date between 1 January 1992 and 31 December 1995. The offence was committed in a service station public toilet. It was witnessed by a woman named Sarah Fosh, who having heard what was happening, looked over the cubicle wall to see the appellant raping the complainant from behind. Ms Fosh let out a noise and that caused the appellant to stop raping the complainant.

The appellant's defence was that the sexual intercourse was consensual. The jury rejected that defence.

In passing sentence the judge referred to the Sentencing Council's Guideline on Rape. He held this was a category B culpability case and category 3 for harm. The starting point was 5 years' imprisonment within a range of 4 to 7 years.

There was aggravation in the following ways: the location of the rape in a service station lavatory cubicle, the timing of the rape, and the presence of others.

There was mitigation in the form of the appellant's good character and his failing cognitive abilities, noting that he is now a man in his 60s. The judge also took into account the fact that the appellant is profoundly deaf and communicates only through British Sign Language, that he is unable to read, and that prison would be particularly difficult for him because he would feel isolated and would be unable to communicate with others to any meaningful extent. But for that factor, the judge would have imposed a sentence of 5 years on the basis that the aggravation and mitigation balanced out, but he reduced that to 4 years to reflect the additional punishment caused by the isolation and inability to communicate. The judge said that the appellant would serve up to one-half of this sentence. That was an error because in law the appellant would be required to serve two-thirds of this sentence before being eligible for release. We take this opportunity to clarify that point.

Mr Wayne, who now appears for the appellant as he did below, made an application to the judge to amend sentence pursuant to the slip rule and to reduce the overall term in light of the two-thirds release point. The judge dismissed that application on paper.

Mr Wayne argues that the judge should have considered the appellant's circumstances to be exceptional given his deafness and should have made an appropriate reduction on the basis that this was an exceptional case. Further, he argues that the judge should have taken into account that the appellant would only be released at the two-thirds point of his sentence. Mr Wayne suggests that the unique and exceptional circumstances of this case justify the unusual course of adjusting sentence to bring it to less than 4 years so that the appellant might be eligible for release after serving only one-half.

Reliance is placed on two authorities: R v Patel [2021] EWCA 231 and R v Purdy [2009] EWCA Crim 2667.

More generally, Mr Wayne submitted that the judge failed to give a sufficient reduction in sentence to reflect the appellant's personal mitigation.

The personal mitigation factors identified on appeal are said to be these:

We are grateful for Mr Wayne's helpful oral submissions today by which he supports the points made in his grounds.

There is no pre-sentence report before us and we do not consider it necessary to obtain one.

We have seen a prison report, which we believe to be dated 22 June 2026, which indicates that the appellant is doing well in prison, for which he is to be commended.

We address first of all the impact of the appellant's deafness on sentence. The judge was right to note that the effect of the appellant's deafness would have an adverse impact on him in prison and would make custody harder to manage. The judge made allowance for that by deducting 1 year from the notional sentence. In our judgment that was to have sufficient regard to this particular feature of the appellant's presentation.

While case law might leave the door open for an exceptional case where a judge might take account of the early release provisions, the cases cited stand more generally for the proposition that the date of release will not be taken into account because early release is a matter for the executive not for the courts. We are not persuaded that this is such an exceptional case that the sentence should be adjusted to something below 4 years, simply to ensure release at the half way point.

The judge was entitled to sentence on the basis that deafness was not an exceptional feature but rather a matter going to mitigation. On that basis, the 1-year reduction was appropriate.

We address the other aspects of mitigation. The judge did take account of the rest of the appellant's personal mitigation and found that it balanced roughly evenly against the aggravating factors. This was a reasonable conclusion.

This was a nasty rape, warranting a substantial sentence. We are not persuaded that the sentence imposed by the judge was manifestly excessive. We dismiss this appeal.