HLN, R. v

Factual and Procedural Background

This is an appeal against sentence brought with leave of the single judge. The Appellant, a 30-year-old man, pleaded guilty to two counts of rape involving his former partner, who benefits from life-long anonymity. The Appellant was sentenced on 5 December 2022 to an extended sentence of 14 years on each count, concurrent, comprising 11 years' imprisonment and a 3-year extended licence period.

The Appellant initially served a Defence Statement admitting the acts but suggesting some occasions involved the victim waking and participating. On re-arraignment on 14 June 2022, he pleaded guilty on the basis that the first rape occurred in August 2019 when the victim woke and did not consent, and a second vaginal rape occurred between June and August 2019 during a deteriorated relationship. This basis did not accept an earlier alleged occasion reported by the victim.

The absence of a written basis of plea led to confusion at sentencing and in the preparation of the pre-sentence report, which noted a high risk of serious reconviction due to the Appellant's failure to fully acknowledge responsibility. The prosecution's sentencing narrative mistakenly dated the first rape to about 2016, which was not corrected by the defence and influenced the judge's findings.

At sentencing, the judge found the offences serious, categorised them as category 2B culpability with aggravating factors including abuse of trust, domestic context, and ejaculation in the first offence. The judge imposed concurrent sentences of 11 years' imprisonment after reductions for mitigation, plea, and totality. The judge also found the Appellant dangerous based on the pre-sentence report and behaviour, imposing a 3-year extended licence period.

A subsequent review pursuant to s.385 Sentencing Act 2020 corrected the dating error of the offences but did not alter the seriousness or address the judge's comments on the Appellant's apparent lack of remorse.

Legal Issues Presented

1. Whether the judge correctly identified the appropriate harm category for the offences.
2. Whether the determinate sentence of 11 years' imprisonment was manifestly excessive.
3. Whether the judge was correct to find the Appellant a dangerous offender and impose an extended sentence.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the harm category by considering the victim’s particular vulnerability due to being asleep and having suffered a prolapse after childbirth, affirming the judge’s finding that the complainant was particularly vulnerable in the circumstances. The court acknowledged that while the judge initially considered "abuse of trust" as a high culpability factor, the prosecution’s approach led to treating it as an aggravating factor to avoid double counting, which was appropriate.

Regarding totality, the court found the judge’s approach reasonable, noting the reductions made and rejecting the claim that the sentence was manifestly excessive despite its severity.

On dangerousness, the court emphasised the statutory test requiring a significant risk of serious harm from further specified offences. It noted the appellate court’s usual deference to lower courts’ findings on dangerousness, especially where the judge has seen the defendant. However, here, the basis of plea had been confused or forgotten, and the judge relied on an erroneous chronology and the Appellant’s head-shaking as an absence of remorse. The court found this was unfair and failed to consider the Appellant’s partial admissions to others, previous good character, lack of reoffending, and the significant custodial period ahead. Consequently, the court concluded there was no significant risk warranting an extended sentence.

Holding and Implications

The court ALLOWED THE APPEAL in part by quashing the finding of dangerousness and substituting a determinate sentence of 11 years' imprisonment.

The direct effect is to remove the extended licence period and the classification of the Appellant as a dangerous offender. No broader precedent was established beyond the application of existing principles on dangerousness and sentencing adjustment where factual errors and mischaracterisations influence findings.