R v EMP

This is a case to which the provisions of the Sexual Offences (Amendment) Act 1992 apply. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall 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 lasts for the victim's lifetime unless it is waived or lifted in accordance with section 3 of the Act.In this case there is a risk of jigsaw identification and therefore in any report of this case the appellant must be anonymised using the random set of initials EMP.

This is an appeal against a sentence of 9 years' imprisonment which was imposed on the appellant for a single count of rape of which he was convicted after trial on 29 August 2025. The offence took place in September 2022 when the appellant and the complainant, whom we will call C, were both 18 years old. Their mothers were best friends. They had been friends since childhood, and she was used to spending time in his home when she had been out socialising, including staying there overnight. Indeed, the couple had shared a bed on numerous occasions over many years without incident. They had never been romantically involved.

In the early hours of the morning, after spending the night clubbing in the local town, C turned up at the appellant's family home. She was in a state of great agitation, having become involved in some kind of a fight with a girlfriend, and was very distressed. She spoke to his mother and then went up to the appellant's room. He had been working during the day and had gone to sleep. She woke him up and asked him if she could borrow some pyjamas. He obliged. They then spent some time in conversation about her disastrous evening, and he comforted her. Eventually he gave her a hug, and she got into his bed, turned to face the wall and went to sleep, as she had done on numerous previous occasions.

She awoke to find him on top of her, penetrating her vagina with his penis and touching her left breast. He had pulled down her pyjama shorts and her knickers and spread her legs open. Afterwards he lay down on the bed next to her. When she asked why he had raped her, the appellant apologised and said, "I just got really horny and I haven’t touched a girl in a while, and you were just there".

C left the house immediately in a state of visible distress, which was captured on CCTV footage. She rang her mother, who collected her and took her to a friend's house. The police were contacted, and C was medically examined and provided with emergency contraception because the appellant had not used a condom. The appellant sent C text messages in which he said he had "not been thinking straight" and asked her not to "let what I've done change how you feel around my family". Despite this, at trial the defence was consent.

We have seen two victim personal statements from C: the one which the trial judge considered, and an update provided this week. They indicate the terrible toll that the rape has had on C, including nightmares, panic attacks and constant fear. She has even attempted suicide more than once, as corroborated by her medical records. There is throughout a palpable sense of betrayal by someone she trusted, which is understandable.

The pre-sentence report indicates that, notwithstanding his conviction, the appellant maintained that the sexual intercourse was consensual and expressed no insight into the impact of his actions on C, other than expressing sorrow that the sexual intercourse had damaged their friendship. A maturity assessment indicated that the appellant does not in general terms have difficulties with his maturation process, but the offence demonstrated issues with his understanding of appropriate sexual behaviour and sexual respect, which could be a reflection of immature thinking and attitudes specifically associated with his sexual behaviour. The author of the report considered that he posed a low risk of reconviction and a medium risk of harm to the public.

In sentencing the appellant, the Recorder placed the offence into Category 2B, identifying two Category 2 factors, namely that C was extremely vulnerable due to personal circumstances because she was asleep when the appellant first started to have sexual intercourse with her, and that the rape had caused her severe psychological harm. The starting point was one of 8 years' detention with a range of between 7 and 9 years. He referred to the fact that the appellant was of positive good character with no previous convictions, that he had a job, and that he was well thought of (that was a reference to the character references which were deployed on his behalf). He then said, however, that in the light of what he described as the breach of trust and the impact that the offending had had on C, the least sentence that he could pass was one of 9 years' custody. That was right at the top of the sentencing range.

The Recorder did not specifically refer to the appellant's age, nor did he elaborate on how he had reached the figure of 9 years' custody.

At the start of the hearing the court explored with Mr Coulter, counsel for the appellant, whether the categorisation within the guidelines was correct, but as he pointed out in response to questions from the court, the factor of abuse of trust which is referred to under Culpability A is linked to a situation in which the offender is in a position of responsibility towards the victim (such as a teacher or someone in a similar role) and therefore that would not be exactly on all fours with a case such as this. However, Mr Coulter very fairly accepted that there was a degree of breach of trust involved in the offending, which was the way in which the sentencing judge had characterised it.

Mr Coulter's primary submission was that a sentence at the top of the Category 2B sentencing range was manifestly excessive, for two main reasons. First, he relied on agreement with the prosecution that there were no aggravating features which would have justified elevating the sentence from the starting point of 8 years, and he says that none was identified by the Recorder.

We cannot accept that submission. There were two Category 2 factors, one alone of which (vulnerability) would have sufficed to get to the starting point of 8 years, and the other (severe psychological harm) would have required an elevation of the sentence from that point before looking at the peculiar circumstances of this case and the breach of trust which was a further seriously aggravating factor. Both those matters were identified by the Recorder in his sentencing remarks.

Secondly, Mr Coulter submitted that there was very substantial mitigation. He referred to the appellant's young age, his good character, lack of previous convictions and the positive references from his employer and friends who had known him throughout his life, and also to the delay in bringing the case to trial, which was not the appellant's fault. Mr Coulter was constrained to accept that most of these matters were mentioned in his sentencing remarks, but contended that despite this, the Recorder appeared not to have taken them into account when reaching the sentence that he did.

In the course of his oral submissions, Mr Coulter submitted that even if it could not be said that a sentence of 9 years in these circumstances was manifestly excessive, it was an error of principle for the Recorder not to have made a clear downward adjustment for the appellant's youth and immaturity. Even if one could infer from what he said that he may have gone above the category range for the aggravating features, and then come back down to within it for the mitigating features he identified, the appellant’s youth was an additional mitigating feature and should have been treated as such.

Serious though this offending undoubtedly was, there is some force in those submissions. This sentence, though severe, was not manifestly excessive; a sentencing judge, particularly one who heard the evidence at trial, could have justified a sentence of 9 years' custody after balancing the aggravating and mitigating features. The problem is that the Recorder did not explain clearly how he factored the mitigating features into the sentence that he arrived at. The mitigation was not substantial. Previous good character and exemplary conduct usually carry little weight in mitigation for offences of rape, though it does appear that this offending was completely out of character for this appellant. His lack of previous convictions provides limited mitigation. The point that really matters is the one of age.

Having revisited the comments of the author of the pre-sentence report, we consider that there was a degree of immaturity involved in the offending. The motive appears to have been nothing more than immediate sexual gratification, with callous disregard for the feelings of someone who had been brought up to regard the appellant as akin to a brother; and the attempt to pretend afterwards that the intercourse was consensual despite the apologetic text messages is perhaps another indication of immature thinking.

Having reflected on Mr Coulter's oral submissions we do consider that there is force in the point that the Recorder erred in principle by apparently not considering the appellant’s age as a mitigating factor, even if in the peculiar circumstances of this case that factor only provided a limited excuse for the appellant’s behaviour. Therefore it would not be, to use the vernacular, tinkering with the sentence to reduce it by some degree to take account of that factor, which the Recorder failed to mention.

We therefore allow this appeal and substitute for the sentence of 9 years a custodial sentence of 8 years and 6 months.