Welsh, R. v

Factual and Procedural Background

This opinion concerns an application by His Majesty's Solicitor-General for leave to refer a sentence considered to be unduly lenient. The Defendant was convicted after trial of rape and non-fatal strangulation and sentenced to 6 years' imprisonment for the rape and 1 year consecutive for the strangulation, totaling 7 years.

The relationship between the Defendant and the complainant was ending; they had a sexual relationship beginning in March 2023, and the complainant suspected pregnancy. On 25 May 2023, at the complainant’s workplace, the Defendant forcibly strangled the complainant, leaving marks and causing difficulty breathing. The complainant called the police, and the Defendant was arrested and interviewed.

Weeks later, following a miscarriage, the Defendant invited the complainant to his residence where, despite her protests, he raped her while holding her throat. The complainant provided a victim personal statement describing severe physical and psychological impact. The Defendant has a history of mental health diagnoses including ADHD, anxiety, and depression, and a history of previous convictions for dishonesty-related offences.

The Defendant was assessed as low risk for serious reconviction but high risk regarding the complainant. A psychiatric report recommended considering the Defendant's mental health disorders as mitigating factors in sentencing. The judge sentenced the Defendant below the applicable starting points, citing prison conditions and totality as reasons for reduction.

Legal Issues Presented

1. Whether the sentencing judge erred in departing from the starting point of 8 years' custody for the category 2B rape offence.
2. Whether the judge was correct to reduce the sentence based on prison conditions.
3. Whether the totality reduction applied by the judge was excessive.
4. How mental health disorders should be treated in sentencing under the relevant Sentencing Council guidelines.

Arguments of the Parties

Applicant's Arguments

• The sentencing judge was wrong to depart from the starting point of 8 years for the rape offence.
• The reduction of sentence to reflect prison conditions was inappropriate.
• The reduction for totality was excessive and resulted in an unduly lenient sentence.
• The judge committed a "gross error" in the sentence imposed.

Respondent's Arguments

• The sentencing judge was experienced and had heard the complainant's impact statement.
• The judge considered pre-sentence, psychiatric, and psychological reports.
• The Defendant had no relevant previous convictions.
• The judge was entitled to consider difficult prison conditions.
• The sentence was not unduly lenient.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Cook [2023] EWCA Crim 452	Guidance on sentencing for non-fatal strangulation; starting point of 18 months custody.	The court applied the starting point of 18 months for strangulation and considered aggravating and mitigating factors accordingly.
R v Tripathi [2024] EWCA Crim 763	Principle that temporary prison conditions should not affect the length of longer custodial sentences.	The court held that reducing the sentence due to prison conditions was incorrect and should not influence the custodial term.

Court's Reasoning and Analysis

The court noted that the sentencing judge’s remarks were brief and required "reverse engineering" to understand the sentence calculation. The judge incorrectly started at 7 years for the rape offence instead of the correct 8 years starting point for category 2B rape. The judge dismissed the psychological report as not mitigating culpability, but the court emphasized that mental health disorders can mitigate the sentence by affecting the impact of custody.

The judge reduced the sentence based on prison conditions, which the court found to be legally incorrect, relying on established precedent that temporary prison conditions should not reduce sentence length. The reductions for totality were also found to be excessive.

Reassessing the sentence, the court balanced aggravating factors (e.g., ejaculation, offence committed on bail) against mitigating factors (absence of relevant previous convictions, mental health disorders). It concluded that the original 6-year sentence for rape was unduly lenient and should be increased.

For strangulation, the court considered aggravating circumstances, mitigation, and totality, deciding on a reduced consecutive sentence of 9 months, reflecting mental health considerations and totality principles.

Holding and Implications

The court ALLOWED THE REFERENCE and modified the sentences as follows:

• The rape sentence was increased from 6 years to 8 years.
• The strangulation sentence was reduced from 12 months to 9 months, to run consecutively.
• The total sentence increased from 7 years to 8 years and 9 months.

This decision directly affects the Defendant’s custodial term by increasing it to reflect appropriate sentencing principles. No new precedent was established beyond clarifying the application of existing guidelines and the inappropriateness of reducing sentences due to prison conditions.