This week’s Digest considers four judgments of the Court of Appeal (Criminal Division). In R v Wood the court considers the proper approach to sentencing an offence of encouraging or assisting the commission of an offence believing it would be committed, contrary to section 45 of the Serious Crime Act 2007. In R v Osinski the court considered the sentence imposed on an on an offender who had been in a controlling and coercive relationship with his girlfriend during which he had imprisoned her against her will for four days, repeatedly raping and assaulting her. In R v Yuel the court considered whether there was a need for an extended determinate sentence where the offender had received a determinate sentence with a hospital and limitation direction. In R v Bupa Care Homes (BNH) Ltd the court considered the extent to which a parent company’s turnover can be considered at Step Two or Step Three of the Sentencing Council’s guideline for Health and Safety Offences.
R v Wood [2019] EWCA Crim 1633
The judgment, available here, was handed down by Simon LJ on 03/09/19.
The Court of Appeal declined to hold that a sentence of 2 years’ imprisonment suspended for 18 months for encouraging or assisting the commission of arson with intent to endanger life was unduly lenient. On the facts the assistance provided had been under threat and there was little if any encouragement. Although the seriousness and potential scale of the reference offence was a factor in sentencing the seriousness of the instant offending was not simply to be measured by reference to it.
R and the offender were in a relationship when R began texting his ex-partner threatening to set fire to the high-rise tower block in which she lived. He said he was going to kill her and burn her alive. During that time R also made it clear in text messages to the offender that he was going to set someone’s home on fire and demanding she take him to the flats. The offender then drove R to the petrol station where R purchased a canister of petrol using the offender’s card. Shortly afterwards the offender drove R to the flats where R poured petrol over and around the front entrance communal doors, setting it alight and then fleeing. The fire didn’t take and went out when the petrol was spent. The offender claimed she had been subject to threats of physical violence from R. She pleaded guilty to encouraging or assisting the commission of an offence believing that it would be committed, contrary to section 45 of the Serious Crime Act 2007 and was sentenced to 2 years’ imprisonment suspended for 18 months. R pleaded guilty to arson with intent to endanger life and was sentenced to a 12 year extended sentence of imprisonment, consisting of a custodial term of 8 years and a 4 year extended licensed period. The Solicitor General sought leave to refer the offender’s sentence as unduly lenient.
The court granted leave to refer the sentence but held it was not unduly lenient. The seriousness of the offence under section 45 of the Serious Crime Act 2007 will depend on the seriousness or potential scale of the anticipated or reference offence. This is because where the offending is charged under section 45 the essential element of the offence, unlike that under section 44, is that the offender believed that the full offence would be committed and that his or her action would encourage or assist its commission ([36]). However, the seriousness and potential scale of the reference offence is only part of the enquiry. It is also important to assess the degree of the assistance or encouragement ([37]). In the present case there was assistance, much of it unwilling but little, if any, encouragement. The seriousness of the offending was not simply to be measured by reference to R’s much more serious offending ([39]).
R v Osinski [2019] EWCA Crim 1686
The judgment, available here, was handed down by Simon LJ on 03/10/19.
A sentence of eleven and a half years’ imprisonment imposed on an offender who had been in a controlling and coercive relationship with his girlfriend during which he had imprisoned her against her will for four days, repeatedly raping and assaulting her was unduly lenient. An extended sentence of fifteen years, comprising a custodial term of thirteen years and an extended period of licence of two years would be imposed for the rapes, to run consecutively to a sentence of 18 months’ imprisonment for the controlling and coercive behaviour.
The offender entered into a relationship with the victim from June 2018. He was volatile, emotionally and financially controlling, physically violent, and soon isolated her from her previous group of friends. Between 7 and 10 October 2018, while subject to a community order imposed for assaulting the victim, he prevented the victim from leaving their flat and repeatedly raped and assaulted her (including an attempt to suffocate her). The false imprisonment only stopped when she was made to drive the offender to his parent’s house and drove off when he exited the car. The victim was pregnant at the time and thought she was going to be killed. The offender had previous convictions for criminal damage and common assault, including offences involving domestic violence. He was convicted of one count of controlling or coercive behaviour in an intimate relationship, three counts of rape, four counts of common assault, one count of assault occasioning actual bodily harm and one count of criminal damage. He was sentenced to eleven and a half years’ imprisonment. The Solicitor General sought leave to refer the offender’s sentence as unduly lenient.
Granting leave to refer the sentence the court held it was unduly lenient. Each of the offences of rape fell within category 2A (because of the previous violence against the victim and the severe psychological harm/degradation), with a starting point of ten years’ custody, and a range of nine to thirteen years. However, there were additional factors that made this course of criminality more serious including the prolonged violent detention of the victim ([37]). The total sentence should have been 13 years’ imprisonment ([39]). Further, the judge had erred in not imposing an extended determinate sentence ([40]). There was plainly a significant risk of serious harm to the public occasioned by the commission by the offender of further specified offences. It was not a risk that could be addressed by the determinate sentence that should have been imposed ([41]). An extended sentence of fifteen years, comprising a custodial term of thirteen years and an extended period of licence of two years would be imposed for the rapes, to run consecutively to a sentence of 18 months’ imprisonment for the controlling and coercive behaviour ([42]).
R v Yuel [2019] EWCA Crim 1693
The judgment, available here, was handed down by Simon LJ on 04/10/19.
Where an offender with a history of sexual offending had committed a violent and prolonged stranger rape a sentence of eleven years’ imprisonment had been unduly lenient. The offending should have been placed in Category 1 harm, not Category 2 and the offender was so dangerous that an extended sentence was necessary even though his schizophrenia meant that a hospital direction and a limitation direction had been imposed. An extended sentence consisting of a custodial term of fourteen years, with an extended period of licence of five years would be substituted.
The offender (aged 28/previous convictions for sexual offences/history of paranoid schizophrenia) approached a 22 year old girl late a night at a bus stop, asking if he could go home with her for a drink, smoke and sex. She declined but when her bus arrived he boarded with her, sitting next to her. He continued to ask for sex and started touching her. When she got off the bus he followed her to her home. As she entered the communal space of the building he barged in, pinned her down on the stairs and vaginally and orally raped her. They subsequently moved to the landing where he vaginally raped her. At various points he made like he was going to leave and then raped her again. Eventually he ejaculated inside her. She had been crying throughout and pleading for him to leave. Before he left he made sure she gave him her mobile phone number. The offender had been in breach of a sexual harm prevention order prohibiting him from communicating with any female who was not a family member or otherwise known to him through employment, education or medical care, in public. He was convicted of breaching that order, five counts of vaginal rape and one count of oral rape. He was sentenced to eleven years’ imprisonment and the judge imposed a hospital direction and a limitation direction under section 45A of the Mental Health Act 1983, the effect of which was that the offender would be detained in hospital and treated for his mental illness, but when he was well enough he would be transferred to serve the rest of his sentence in prison. The Solicitor General sought leave to refer the offender’s sentence as unduly lenient.
Granting leave to refer the sentence the court held it was unduly lenient. The judge had erred in placing this case in Category 2 harm rather than Category 1. The offender had targeted the victim, forced entry into the house, repeatedly raped her forcing her to endure a prolonged and sustained course of extreme sexual violence and the victim suffered considerable psychological harm ([49]). The offender also had relevant previous convictions, was on licence at the time of the offending, in breach of a sexual harm prevention order and was under the influence of alcohol and drugs at the time of the offending ([50]). There was no mitigation, other than, and to a limited extent, the offender’s mental disorder ([51]). Further, it is clear that in some cases where an order is made under section 45A, the dangerousness of an offender will be such that the additional level of protection for the public afforded by an extended sentence will be necessary ([46]). An extended sentence should have been imposed consisting of a custodial term of fourteen years, with an extended period of licence of five years ([54]).
R v Bupa Care Homes (BNH) Ltd [2019] EWCA Crim 1691
The judgment, available here, was handed down by Julian Knowles J on 11/10/19.
The sentencing judge had erred in considering the turnover of the parent company when sentencing a company for breach of a health and safety offence. That one company may be the wholly owned subsidiary of a larger parent (with larger financial resources) does not mean that the resources of the parent can be treated as available to, or as part of the turnover of, the subsidiary company, either at Step Two or at Step Three of the Sentencing Council’s guideline for Health and Safety Offences in the absence of special factors justifying doing so.
The appellant had run a care home where a resident had died from Legionnaire’s disease. The prosecution’s case was that this was the result of multiple systemic maintenance failures over a number of years which allowed for the deadly bacteria to develop. The judge found that the most likely cause of the infection was the failure to flush and disinfect pipes and fittings that had been installed during refurbishment works at the home which concluded shortly before the victim became a resident. The appellant pleaded guilty to an offence contrary to s 3(1) of the Health and Safety at Work, etc Act 1974 and was sentenced to pay a fine of £3 million.
Appeal allowed. Although Step One of the Sentencing Council’s Guideline for Health and Safety Offences requires an assessment of culpability that does not mean that in selecting a starting point within the appropriate range at Step Two, the judge must leave out of account, or not make, a quantitative assessment of the extent of the harm and culpability involved in the offending. The presence of multiple culpability factors can properly be regarded as matter capable of increasing the starting point within the indicated range of fine as set out in the relevant table for the size of the organisation involved ([66]). This was a very bad case with all of the factors in the ‘High’ culpability bracket being present. These matters justified a substantial increase above the starting point of £1.1 million in the relevant bracket. Given that this figure relates to an organisation with a turnover of £50 million, and that the Appellant’s turnover was very significantly in excess of that, the judge’s starting point at Step Two of £2,250,000 cannot be faulted ([69]). However, the judge was wrong at Step Three when she increased the fine from £2,250,000 to £4,500,000 to reflect the parent company’s turnover ([82]). The mere fact that one company may be the wholly owned subsidiary of a larger parent (with larger financial resources) does not mean that the resources of the parent can be treated as available to, or as part of the turnover of, the subsidiary company, either at Step Two or at Step Three of the guideline ([83] – [84]). There was no special factor justifying such a step here ([84]). The appropriate fine before credit for the guilty plea was therefore £2,250,000 and a fine of £1,500,000 would be substituted ([87]).
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