Where a sentence was referred by the Attorney-General, the reference should accurately reflect what happened at trial and prosecuting counsel should be consulted. The sentence of 18 months for conspiracy to rape was not unduly lenient.Application by the Attorney-General to refer a sentence under s.36 Criminal Justice Act 1988. On 29 November 2002 at the Central Criminal Court, before HH Judge Roberts QC, the defendant ('J') was convicted of conspiracy to rape. J was tried with four co-accused, P and F were convicted of rape, S of attempted rape, P, F and S of conspiracy to rape and L was acquitted. On 20 December 2002 J was sentenced to 18 months detention. J came from Moldavia. He was abandoned by his gypsy parents when he was eight years old and was brought up in a children's home. J was ill-treated and eventually escaped and came to England as an illegal entrant. J socialised with asylum seekers and came into contact with the victim ('V'), a Ukrainian, and the four co-accused. In December 2001 V went to a party at J's home, which he shared with P and F. F followed V home to her flat, which she shared with her boyfriend and other Romanians, and made sexual advances towards her. V rejected the advances and got her boyfriend to throw F out. On 14 February 2002 V was pressed by F, S and P to attend a disco. V and her friends went but did not go in. It was alleged in the reference that an incident occurred outside between the defendants and V's boyfriend. However, no evidence of that incident was brought at trial. On 16 February 2002 V argued with her boyfriend and slept on the sofa in her living room. At 3 am J telephoned V's boyfriend and said "Give me V". Later the defendants entered the flat, either by a window or because V's boyfriend let them in. V was woken and verbally abused, J took part but V gave evidence that J was the most calm. The atmosphere improved and the defendants and V's flatmates drank beer and listened to music. V slipped into the bathroom and locked herself in. The bathroom door was broken down, V was dragged out and assaulted by P. P then dragged her into the bedroom, he raped her and forced her to have oral sex. V was forced to take herbal medicine to induce relaxation. F then raped her. S was attempting rape when the police arrived, following a call from V's boyfriend. During the rapes, J sat with V's flatmates. The defendants escaped and were later arrested in Scotland. In interview J accepted he had been present but said they were told that V was a prostitute who would have sex for ?20. He denied going for sex and denied phoning V at 3 am. At trial J gave no evidence. The Attorney-General submitted that J had subsequently threatened V, again there was no evidence of that at trial. The Attorney-General referred the sentences as unduly lenient given the aggravating factors of: (i) not only was there clear evidence of rape but also of violence; (ii) there was some planning; (iii) V contracted a sexually transmitted disease; (iv) access was gained to V's own home; and (v) V was subjected to drugs. The mitigating features were that J was young, he was of low intelligence, he suffered from depression and had not played the same role as the other defendants. J submitted that the court ought to have regard to the way the Moldavians and Romanians regarded each other. The judge had accepted that the defendants had not originally planned to rape V but had the intention of taking her away from the Romanians. He further accepted that J had never intended to have sex with V but had acted in furtherance of the conspiracy by his presence which, contributed to the atmosphere of intimidation and enabled the others to commit the offence.HELD: (1) It was vital, when the Attorney-General refers a sentence, that that reference accurately reflected what happened at trial and was not just constructed according to statements prepared before the trial. Prosecuting counsel should be consulted, whilst the trial was still fresh in his mind, to ensure the reference accurately reflected what happened at trial. If that had been done the reference before the court today would not be in the form it was in. (2) This was no doubt a dreadful offence and called for substantial sentences for the principal offenders in line with R v Millbery & Ors (2003) 1 WLR 546, which held that the starting point was eight years. The judge was well aware of that and sentenced F, who he described as a mature 17 year old, to eight years detention. At the time of the offence J was 17, but was hardly mature. He was a follower and not a leader and presented a wholly different sentencing problem. It was highly unlikely going to V's flat was his idea and it was plain rape was not his idea. J had to be punished but not as one who perpetrated the offences. A very experienced judge decided the appropriate sentence was 18 months. That was lenient but not unduly lenient. (3) J would not be released, he would remain in custody by way of immigration matters.Leave to refer refused.

[2003] EWCA Crim 1620

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