R v Girdaware Basra & Anor

The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. Under those provisions where 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.

The applicant, Girdaware Basra ("Girdaware"), is now 68. His brother, the applicant Onkar Basra ("Onkar"), is now 58. On 9 September 2024 they were convicted, after a trial at Woolwich Crown Court, before HHJ Benjamin Gumpert KC, of a variety of serious sexual offences against the same complainant "K".

On 6 December 2024 Girdaware was sentenced to a total of 14 years' imprisonment. On the same day Onkar was sentenced to 11 years' imprisonment. They renew their applications for leave to appeal against those sentences following refusal by the single judge.

It is not unfair to describe this case as a classic example of grooming and sexual offending against a young and vulnerable child.

K was born in October 1979. In around 1991/1992, when she was 12, she was picked up by Girdaware in his car. They made a connection through K's friend Luke, who Girdaware claimed was his son.

Girdaware met K regularly after that, driving her around in his car and offering her alcohol. To start with Luke was included, then one day Girdaware picked K up from her home and instead of going to Luke's, took her back to the house where he lived with his brother Onkar. Girdaware took K upstairs to his room where they began drinking. Girdaware laid K on the bed, taking off her leggings and unaware. He tried to have sex with her. That did not work because K's vagina was too tight. Girdaware told K that she needed to be more comfortable and performed oral sex on her. That gave rise to count 1 on the indictment, indecent assault contrary to section 14(1) of the Sexual Offences Act 1956.

Girdaware then proceeded to give K more alcohol and thereafter he managed to have sex with her. He ejaculated inside her. It had been painful for K and she had bled. Girdaware then drove her home. That gave rise to count 2 on the indictment, rape contrary to section 1(1) of the Sexual Offences Act 1956.

Thereafter K went regularly to Girdaware's house. There would drink beer and smoke marijuana and then go to Girdaware's room and have sex. After three or four such occasions K said she did not want to do it anymore but Girdaware shouted at her and drove away. He returned the next week and the same pattern of offending resumed. Girdaware would have sex with K about half a dozen occasions every week or fortnight and in various positions. K said she did not really enjoy this but felt some sort of obligation towards Girdaware. On one occasion, Girdaware asked K to give him a "blow job" but she refused. On another occasion, Girdaware offered K speed, which she again refused. This angered Girdaware and he left her in his house saying that she was immature. The repeat offending gave rise to count 4 on the indictment which alleged rape "on at least two occasions other than as specified in count 2".

On one occasion Girdaware left K at his house with his brother Onkar. He told Onkar to take K to a pub and he would pick her up later. Onkar took K to a pub and bought her alcohol, which made her feel sick. Onkar said that he needed to get her back to the house. He took K back to the house, laid her on the bed and removed her trousers. He then got on top of her whilst kissing her. He held her arms down so that she was unable to move and he had sexual intercourse with her until he ejaculated inside her. Afterwards Girdaware returned and took the complainant home. That gave rise to count 6 against Onkar, being a count of rape, contrary to section 1(1) of the Sexual Offences Act 1956.

Years later K confided in what had happened to her partner and reported the matter to the police. Girdaware denied all aspects of the allegations made and said they were malicious. Onkar replied "no comment" to the questions asked of him. As already noted, both men were convicted after a trial.

The applicable sentencing guidelines relate to offences under the Sexual Offences Act 2003. Since the offences in this case were charged under the 1956 Act, the judge properly had regard to the cases of R v H & Ors [2011] EWCA Crim 2753 and R v Hyde-Gomes [2018] EWCA Crim 2364, which gives guidance as to the use to be made of the current guidelines when sentencing for offences charged under the 1956 Act.

The rape offences for which these applicants had been convicted would (under the modern legislation) comprise an offence of rape of a child under 13. The judge therefore rightly had regard to the guidelines for that offence, as well as the guidelines for sentencing historic sexual offences. The judge also rightly noted that for offences both under the old legislation and the new, the maximum term for this offence was life imprisonment.

The judge concluded by reference to the current guidelines that, for both applicants, harm fell within category 2 and culpability fell within category A. By reference to that categorisation the starting point for a single offence was one of 13 years' imprisonment with a recommended range of between 11 and 17 years. We note that, for the purposes of this appeal, neither of the applicants contest the judge's categorisation.

In the pre-sentence report, it was noted that Girdaware maintained his innocence and that he had never met the victim. He seemed "focused on his own grievances". There was thus no insight and no remorse. Girdaware was assessed as posing a high risk of harm to children and others. It was noted that he had ongoing heart issues.

The judge also noted that Girdaware had been convicted of a number of offences during the period between the commission of these offences and the trial and that he had served many years' imprisonment. That was something of an understatement. Girdaware had 21 convictions for 39 offences including manslaughter and (in 2012) attempted murder, for which he received an indeterminate sentence with a minimum term of 7 years.

The judge took count 4 as the principal offence because that was a multiple-incident count. He fixed the starting point as one of 16 years, which was within the recommended range in the guideline for a single offence. He also noted Girdaware's age and that he was in poor health. The judge acknowledged the length of time between this offending and the trial. Taking all those mitigating factors into account, he made a 2 year reduction from the starting point. He therefore passed a sentence of 14 years' imprisonment on count 4. On count 1 there was a concurrent sentence of 4 years' imprisonment and on count 2 a concurrent sentence of 11 years' imprisonment.

In relation to Onkar, the pre-sentence report said that at the interview he was "very angry and maintained his innocence". He was noted as exhibiting a high level of sexual deviance and exploitation. He had no insight. He was assessed as posing a medium risk of serious harm. He had eight convictions for 11 offences, most recently a conviction for affray in a rehabilitation centre in 2012. Again, health issues were noted including anxiety and depression, arthritis and high cholesterol.

As we have said, the judge arrived at the same categorisation as for Girdaware (harm category 2 and culpability category A). He took the starting point indicated in the guidelines for the offence of rape of a child under 13, namely 13 years' imprisonment. He made the same reduction of 2 years for the fact that over 30 years had passed since the offence and for Onkar's poor health that he had made for Girdaware. That led to a term of 11 years' imprisonment.

Before addressing the arguments advanced on behalf of Girdaware and Onkar, it is appropriate to start with the observation that, in the light of Girdaware's convictions on counts 2 and 4, and Onkar's conviction on count 6, both men should have been sentenced as offenders of particular concern to a special custodial sentence pursuant to section 278 of the Sentencing Act 2020. This would, at the very least, have resulted in an extension to the period under which both men remained on licence after serving the relevant terms of imprisonment.

This Court cannot of course increase the onerousness of any sentence which it is asked to reconsider (see section 11(3) of the Criminal Appeal Act 1968). But two things flow from this omission. First, we are surprised that this matter was not brought to the judge's attention at the time of the sentencing exercise, and was not the subject of the written submissions prepared by either the prosecution nor Ms Clegg or Ms Sheffi for the sentencing hearing. In our view, it is a glaring omission.

Secondly, since this omission means that the sentences imposed on Girdaware and Onkar were, on the face of it, less onerous than they should have been, that is an unpromising starting point for a renewed application based on the submission that these sentences were, in some way, manifestly excessive.

On behalf of Girdaware Ms Clegg's written submissions raised two grounds of appeal. First, she complained that the judge did not quantify the reduction in the sentence by reason of delay. Secondly, she complained the reduction of 2 years was insufficient to take account of the mitigating factors, in particular Girdaware's various health issues which had been ongoing in prison. The single judge was not impressed with either of these arguments and, for the reasons set out briefly below, neither are we.

The complaint about the reduction by reason of delay is misconceived in law. As the single judge rightly pointed out, the judge was not obliged to specify the amount by which he reduced Girdaware's sentence for individual factors such as delay (see R v Radcliffe [2024] EWCA Crim 1498 at [81]). This morning Ms Clegg accepted that that was correct and did not pursue ground 2.

But we should however make this point. The judge made plain that there was no significant mitigation available to Girdaware on the basis of delay anyway. As the judge rightly said, the point about the delay might have had some impact if, for the intervening 30 years between the commission of these offences and the trial, Girdaware had lived a blameless life. But, on the contrary, he had committed a series of serious offences and served lengthy periods of imprisonment throughout the relevant period. In our view, the judge was right to say that no significant reduction for delay was appropriate in Girdaware's case.

As to the second ground, concerned with the mitigation due to his ill-health, there are a number of reasons why we have concluded that it is unarguable to say that in consequence of this, the sentence was somehow wrong in principle or manifestly excessive. First, as the judge himself noted, the pre-sentence report indicated no mitigating factors beyond Girdaware's poor health. Secondly, the amount by which the sentence fell to be reduced on account of that factor was a matter for the judge who had presided over the trial and had all the relevant information. Thirdly, poor health is common in defendants in historic sex abuse cases. It can never be a powerful mitigating factor in those cases, because it is simply a function of how long the defendant's crimes have remained undetected. We have seen the updated medical information which confirms that Girdaware's heart issues are ongoing, but they make no difference to the outcome of the appeal. The judge was entitled to consider ill health in the round, and entitled to make an overall reduction of 2 years principally based on the ground of that ill health.

Finally in relation to Girdaware, we are bound to note this. The judge's starting point of 16 years on count 4 was within the recommended range for a single offence of rape of a child under 13. But count 4 was a multiple-incident count. Furthermore, if the judge was taking count 4 as the lead offence, then he also had to reflect Girdaware's convictions for a separate count of rape in count 2, and the indecent assault in count 1. Taken together, this meant that Girdaware was being sentenced for at least three rapes and one sexual assault. That strongly suggests to us that the judge would have been entitled to take a starting point well in excess of the 16 years that he identified.

For these reasons therefore, we reject the suggestion that the sentence imposed on Girdaware was manifestly excessive. In our view, it is more accurate to say, as the single judge also noted, that a starting point in excess of 16 years could, and perhaps should have been taken, and thus a longer term imposed.

On behalf of Onkar, Ms Sheffi's written submissions advanced three grounds of complaint. Ground 1 was that the judge erred in adopting the same starting point for Onkar's sentence as for Girdaware's sentence. Ground 2 was that the judge's reduction for mitigating factors should have been larger. Ground 3 was a complaint that the judge did not quantify the reduction in the sentence by reason of delay. These grounds were refused with reasons by the single judge. We agree with his reasons. We note that Ms Sheffi did not advance ground 3 before us and we say no more about it.

As to ground 1, the judge took the starting point identified in the guidelines, namely 13 years. That was not the same starting point as the judge took in relation to Girdaware because, amongst other things, Girdaware was being sentenced for more than one rape. In any event, the 13 years is the starting point set out in the relevant Sentencing Guidelines so any criticism of it seems to us to be misconceived.

The complaint about the reduction for mitigation, namely ground 2, faces the same difficulties as the similar complaint made by Girdaware. The judge was entitled to conclude that the only significant mitigating factors was Onkar's poor health with perhaps a small additional reduction to reflect delay. Again delay could not be a significant mitigating factor in Onkar's case because, although unlike his brother he had not served a period of imprisonment, he still had a number of convictions for offences committed throughout the intervening period. The last one was in 2012. Moreover, his health issues were less serious than those of his brother. In all the circumstances, taking the same 2 year reduction as he had applied in relation to Girdaware was an entirely cogent thing for the judge to do.

As the single judge correctly noted, there was a hint in Onkar's renewed application that there was a disparity between his sentence and that imposed on his brother. The single judge said that such an argument could only succeed if right-thinking members of the public would think that Onkar's sentence meant that something had gone wrong with the administration of justice. The single judge said that that was not the case here. We agree. Moreover, for the reasons that we have already given, if there was any apparent disparity, it was solely a function of the sentence imposed on Girdaware, which could have been considerably higher for the reasons that we have noted. It was not because Onkar's sentence, in the aggravating circumstances here (in particular the use of alcohol on such a young girl and the ejaculation), was in anyway excessive, let alone manifestly so.

For all these reasons therefore, we reject Onkar's renewed application for permission to appeal against sentence.

LORD JUSTICE COULSON: Having given the judgment of the Court in which we rejected these renewed applications, it then fell to the Court to consider whether or not to make loss of time orders. We raised with Ms Clegg and Ms Sheffi as to why in the circumstances loss of time orders should not be made. Their submissions were that the grounds advanced this morning were limited and that although they had not been successful, they were entitled to consider that they were arguable.

As to the point that the grounds advanced this morning were limited - so they were. But they had not been limited prior to this morning. In other words, the Court prepared to deal with all the grounds that had been raised and it was only this morning, without prior notice, that certain grounds were abandoned.

But there is a more general point. In our view, these applications were wholly without merit. They did not take on board the clear reasons for rejection set out by the experienced single judge. Indeed, until we raised those points with counsel during their submissions they had not even addressed them.

So, as to the specifics, both of these renewed applications ignored the Registrar's note that these were both cases in which the applicants should have been made offenders of particular concern, with the consequence that their licence periods should have been extended, and the sentences should have been more onerous. That was a factor which ought to have led these applications not to be renewed. There was full notice of that point, but it was ignored.

Moreover, in Girdaware's case there was the obvious fact, which had again been reiterated by the single judge in clear terms, that the sentence could have been significantly higher. The whole purpose of the section 31 regime in the modern age is for a defendant who has been convicted and sentenced to know in terms why his appeal or her appeal against either that conviction or that sentence, or both, has been refused. High Court Judges spend a good deal of their time crafting detailed analyses of why permission to appeal is being refused. Attention needs to be paid to what they say. Their s.31 rulings should not simply be ignored.

In our view, these applications should never have been renewed, and these are therefore the sorts of cases in which it is important to make loss of time orders. If a renewed application is to be made, that application must be properly and carefully thought through.