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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 including Sexual Offences Prevention Order (sections 104 -110 SOA 2003)

  • Applies where court deals with defendant in respect of an offence listed in Schedule 3 or 5 (Rape is listed in Schedule 3)
  • Made where prohibitions are necessary to protect the public (or particular members of public) from serious harm - i.e. serious physical or psychological harm (section 104 SOA 2003)
  • Order lasts for a minimum of five years.
  • Breach of a SOPO is an either way offence carrying a maximum penalty of five years imprisonment on indictment.

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Disqualification Orders and the Vetting and Barring Scheme

See Child Abuse Cases - Sentencing on vetting and barring

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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