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Rape and Sexual Offences

Chapter 19: Sentencing

Contents:

See Legal Guidance Sentencing for general principles

Rape carries a maximum penalty of life imprisonment.
Rape is a serious specified offence to which dangerous offender provisions apply (part 2, Schedule 15 Criminal Justice Act 2003)

In 2007 the Sentencing Guidelines Council published a Definitive Guideline on the Sexual Offences Act 2003. See: http://sentencingcouncil.judiciary.gov.uk/docs/web_SexualOffencesAct_2003.pdf

  • The Guideline is based on the guideline judgment on Rape, Millberry and Others (2003) 2 Cr. App. R. (S) 31
  • The starting points in the guidelines are a) for offenders who do not meet the dangerous offender criteria and b) as the basis for the setting of a minimum term within an indeterminate sentence for those who do meet the criteria.

Starting Points

  • Single offence of rape by single offender: 5 years custody - victim 16 or over
    8 years custody - victim 13 or over but under 16
    10 years custody - victim under 13
  • Rape accompanied by aggravating factor: 8 years custody - victim 16 or over
    10 years custody- victim aged 13 or over but under 16
    13 years custody - victim under 13
  • Repeated Rape of same victim by single offender or rape involving multiple victims:
    15 years custody

Aggravating factors

  • Abduction or detention
  • Offender aware that he is suffering from a sexually transmitted infection
  • More than one offender acting together
  • Abuse of trust
  • Offence motivated by prejudice
  • Sustained attack
  • Pregnancy or infection results
  • Offender ejaculated or caused victim to ejaculate
  • Background of intimidation or coercion
  • Use of drugs, alcohol or other substance to facilitate the offence

In AG's Reference No 73, 75 and 03 of 2010 R v Michael Anigbugu, Hyung-Woo Pyo and Mark Stuart McGee [2011] EWCA 633 the Court of Appeal considered two cases of women being seriously sexually assaulted at night when asleep in their own homes; and a third of a woman similarly assaulted whilst caring for a fragile elderly man whose home was burgled. Finding that unduly lenient sentences had been imposed in relation to all three defendants, the Court provided useful guidance on sentencing. This included: where rape is committed after or in the course of a burglary in a home, even in the absence of additional features beyond the rape and burglary, the starting point will rarely be less than 12 years imprisonment. They also identified further aggravating features including the taking of photographs of the victim which they described as ''a serious aggravating feature''.

Mitigating factors

  • Where the victim is aged 16 or over: victim engaged in consensual sexual activity with the offender on the same occasion and immediately before the offence.
  • Reasonable belief (by a young offender) that the victim was aged 16 or over.

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Dangerous Offenders

See Legal Guidance Sentencing Dangerous Offenders

The following considerations will apply when a defendant is sentenced for an offence of rape:

  • The defendant will always ''qualify'' for consideration of dangerousness as the offence of rape is serious specified;
  • The court must firstly consider if the defendant is dangerous within the meaning of section 225(1)(b);
  • The court must then first consider whether life imprisonment is justified (section 225(2)) and if it is, it must impose life. This is the only mandatory part of the sentencing regime that remains. It must always be considered, as rape carries a discretionary life sentence;
  • If a life sentence is not justified, the court must consider if either of the conditions are satisfied - that is, if the ''notional term'' should be 2 years (i.e. its worth 4 years determinate) or if there is a previous conviction for a schedule 15A offence (which includes most of the more serious sexual offences in the 2003 Act);
  • If either of these conditions are met, then the court may (not must) impose a sentence of imprisonment for public protection (IPP), an extended sentence for public protection (EPP) or any other sentence.

Ancillary Orders

See: Ancillary Orders Toolkit  for a variety of orders which may be appropriate in sexual offence cases.

Sexual Offences Prevention Order (SOPO)

Introduction

  • The statutory provisions relating to SOPOs are set out in sections 104 -110 and Schedules 3 and 5 of the SOA 2003.
  • A SOPO may be made as an ancillary order which is commonly imposed by a court sentencing an offender for an offence listed in Schedule 3 (rape and other sexual offences) or Schedule 5 (non-sexual offences including murder, manslaughter, kidnapping, false imprisonment and offences against the person).
  • Alternatively a SOPO may be made on the application of a chief officer of police by a magistrates court (in which case the application will be handled by the police without CPS involvement).
  • A SOPO contains prohibitions which are necessary to protect the public or particular members of public from serious sexual harm by the defendant.
  • A SOPO lasts for a minimum of five years, for a fixed period or until further order.
  • Breach of a SOPO is an either way offence carrying a maximum penalty of five years imprisonment on indictment.
  •  SOPOs are available in both the magistrates' courts and the Crown Court.

Procedure

The two routes to obtaining a SOPO are:

  1. Where a court deals with a defendant. As well as upon conviction for a Schedule 3 or 5 offence; this includes when the defendant is found not guilty by reason of insanity of a Schedule 3 or 5 offence; or to be under a disability and to have done the act charged (sections 104 (2) and (3)). Part 50 of the Criminal Procedure Rules applies. 
  2. Upon the making of a complaint by a chief officer of police to a magistrates' court for an order in respect of a person who resides in his police area or is believed to be in, or intending to come to, his police area (section 104 (5)). Circumstances prompting such an application could involve an offender convicted or cautioned for equivalent offences overseas; and a sex offender or violent offender managed by the police behaving in a way that suggests they might commit a sexual offence.

The prosecutors role

Although there is no statutory requirement for a formal application by the prosecution when the Court deals with a defendant, the Court of Appeal has emphasised a need to prepare the draft SOPO and to serve it on the court and defence in advance of the hearing.

Prosecutors must, both at the charging stage and in any Plea and Sentence document (where required), clearly highlight that an offence may attract a SOPO in the event of conviction. They should identify that the offence is one to which either Schedule 3 or Schedule 5 applies.

Advocates must also, where appropriate, draw to the Courts attention the power to make a SOPO on conviction for an offence to which Schedule 3 or Schedule 5 applies. Thereafter, they should assist the court, if required, to determine whether the offender presents a risk that requires the public to be protected and to suggest that an order is required. This may be by way of information about previous convictions or cautions, or by drawing attention to particular features of the case under consideration.

The advocate should also assist the court with suggested prohibitions for the SOPO, and have prepared (in conjunction with the police) a draft SOPO in advance of the sentencing hearing.

In R v Smith and others [2011] EWCA Crim 1772 the Court of Appeal said: "it is essential that there is a written draft, properly considered in advance of the sentencing hearing. The normal requirement should be that it is served on the court and the defendant before the sentencing hearing - we suggest not less than two clear days before but in any event not at the hearing."

In R v Pelletier [2012] EWCA Crim 1060 the Court of Appeal, dealing with a case in which the wording of the SOPO announced by the judge differed from that used in the courts record, stated that: "Much the best method of avoiding what happened in this case is for judges to insist that ancillary orders are put before them in draft in writing."

Deciding whether a SOPO is necessary and its terms proportionate

  • Prohibitions must be necessary and proportionate, and relate to future risk as well as past offending.
  • They must be clear to enable any breach to be effectively prosecuted.
  • Provisions should be tailored to the specific individual and his/her circumstances. Certain blanket prohibitions, for example relating to use and ownership of mobile phones and computers, have been held by the Court of Appeal to be disproportionate.

In R v Smith and others the Court of Appeal set out the following questions to be addressed when making a SOPO:

  • Is the making of an order necessary to protect from serious harm through the commission of scheduled offences?
  • If some order is necessary, are the terms proposed nevertheless oppressive?
  • Overall are the terms proportionate?


The Court of Appeal considered whether the use of a SOPO was appropriate in conjunction with an indeterminate sentence and concluded: "the usual rule ought to be that an indeterminate sentence needs no SOPO", the rationale of the Court being that it was wrong in principle to try and assess the risk at the sentencing stage as it would in all likelihood be different from that presenting itself on any eventual release.

When considering a determinate or extended term, the Court of Appeal acknowledged that, "a SOPO may plainly be necessary", albeit that the framing of suitable prohibitions may, in the case of a very long sentence, be more meaningful at the point that the offender is about to be released rather than when they are just beginning their sentence.

The Court, dealing with the appeal of Smith and others, quashed a number of existing blanket prohibitions which they replaced with more focused and balanced conditions, particularly in relation to computer use or internet access. The Court summed up its preferred approach saying, "In the early days, terms completely barring the defendant from possession of a computer or access to the internet were not uncommon. Latterly terms of that kind have been quashed as unnecessary and disproportionate".

In relation to offences involving indecent images the Court of Appeal has repeatedly said (including in R v Aldridge) that conditions prohibiting contact with children should be made only on the basis of evidence to suggest progression by the defendant to contact offences.

Variation of a SOPO

  • Persons who may apply to vary a SOPO are restricted to the police and the defendant (section 108 (2)). The CPS is not authorised to make an application for a variation. Where the police require representation this should be through the Force solicitor or equivalent.
  • In R v Terence Hoath [2011] EWCA Crim 274 the Court of Appeal made it clear that powers to vary a SOPO should be exercised only when there was a change of circumstances. Where the defendant objects in principle to the terms of a SOPO imposed by the Crown Court the correct approach is an appeal. This is a useful point as there has been a tendency for defendants to seek to fundamentally change the terms by way of a variation rather than embarking on an appeal.
  • The Court of Appeal in Hoath suggested that the CPS might correctly be involved in a variation following close on the heels of the making of the SOPO and involving "particular and unanticipated difficulties arising from the form and/or wording of the order". The Court continued, "those difficulties should be identified promptly (in writing and with particularity) and sent to the prosecuting authority so as to see whether the matter can be put before the Crown Court on an agreed basis and in any event to narrow the area of dispute".

Appeal against variation or refusal to vary a SOPO

Following the decision in Hoath, there was disagreement with the Court of Appeals decision, including from Archbold, to the affect that any appeal against a variation of a SOPO or a refusal to vary, should be to the Civil (rather than the Criminal) Division of the Court of Appeal. The Lord Chief Justice addressed this in R v Aldridge and R v Eaton [2012] ECWA Crim 1456, saying the absence of an express provision for an appeal against a variation or refusal to vary the original order to be treated as an appeal against sentence was a clear legislative oversight. Repeating the decision in Hoath he said it was, a matter of complete indifference to the defendant which division of the Court of Appeal heard the appeal.

The relationship between SOPOs and Notification

Unlike a SOPO which must be ordered by a court, the sex offender notification rules (sections 80 102 SOA 2003) follow automatically upon conviction for most sexual offences. The term for which the notification requirements apply depends upon the length or nature of the sentence and range from 2 years in the case of a caution to indefinitely if the sentence is imprisonment for 30 months or more.

SOPOs and the notification provisions are entirely different. The first prohibit the subject from doing specified things, whilst the second requires the carrying out of certain actions. In R v Smith and Others the Court of Appeal considered the relationship between SOPOs and the notification provisions and agreed that, "a SOPO must operate in tandem with the statutory notification requirements" and "not conflict with any of those requirements". They decried any use of a SOPO to extend notification periods beyond the time prescribed by law as, "not a proper use of power".

The Court of Appeal considered whether any SOPO should be for the same period as any notification and decided this was not necessary. The Court could: "see no objection to the provisions of a SOPO extending beyond the notification requirements", and added: "It may also be possible that a SOPO for less than an indefinite period might be found to be the right order in a case where the notification requirements endure for ever".

Useful links

CPS Legal Guidance: Sentencing - Ancillary Orders.

Sections 104-113 of the Sexual Offences Act 2003.

Home Office Guidance on Part 2 of the Sexual offences Act 2003

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Disqualification Orders and the Vetting and Barring Scheme

Notification Requirements

  • Following conviction, the defendant's name is automatically included in the Sex Offenders Register and the defendant becomes subject to the notification requirements.
  • A person sentenced to imprisonment for life or for a term of 30 months or more is subject to the requirements indefinitely (See Table section 82 SOA 2003).

Derogatory Assertions in Mitigation

  • Defence counsel, when delivering a plea in mitigation, is under a duty not to 'make statements or ask questions which are merely scandalous or intended or calculated only to vilify, insult or annoy' any person [Code of Conduct of the Bar, para. 708(g)].
  •  The Code of Conduct of the Bar, para. 11.8(e), gives guidance to prosecution counsel on what to do if the defence in mitigation assert facts which the prosecution believe to be untrue. Counsel's duty is first to draw the attention of defence counsel to the assertion in question. If the defence persist, prosecution counsel should invite the court to hold a Newton hearing on the issue.

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