Summary of Opinion — Judge Picken

Factual and Procedural Background

The Sexual Offences (Amendment) Act 1992 restrictions on identifying alleged victims apply to this opinion. This is a renewed application for leave to appeal against conviction after refusal by the single judge, together with an appeal against sentence after leave was granted by the single judge. On 29 July 2024 at the Crown Court the Appellant was convicted on two counts of rape (counts 1 and 2). On 9 October 2024 the Appellant was sentenced to consecutive extended sentences totalling 18 years (14 years' custodial term and a combined four-year extended licence).

The offences related to two separate incidents involving two separate complainants met via online dating applications. Count 1 concerned an incident on 10 April 2016 involving Complainant A. Count 2 concerned an incident on 21 May 2021 involving Complainant B. The prosecution advanced evidence of non-consensual sexual activity; the defence at trial was that the sexual activity was consensual. The Appellant renewed a no-case-to-answer challenge in respect of count 2 and also appealed the structure and totality of the sentences imposed.

Legal Issues Presented

1. Whether the Recorder erred in rejecting the Appellant's submission of no case to answer in respect of count 2 (i.e. whether the evidence as a matter of law failed to establish lack of capacity or lack of reasonable belief in consent).
2. Whether the Recorder's decision to impose consecutive extended sentences breached the totality principle or was otherwise wrong in principle or manifestly excessive.

Arguments of the Parties

Appellant's Arguments (Attorney Williamson)

• The evidence relating to Complainant B established in law that she had capacity and/or that the Appellant had a reasonable belief in her consent; consequently there was no case to answer on count 2.
• Specific points relied on included Complainant B's ability to perform complex motor actions, intermittent communication, and evidence of active engagement in sexual activity; there was no evidence the Appellant had administered any substance to her.
• If the conviction on count 2 were unsafe, the conviction on count 1 would also be unsafe due to potential prejudice from the evidence heard of count 2.
• As to sentence, consecutive extended sentences were said to be wrong in principle or manifestly excessive because the Recorder failed to apply the totality principle adequately and did not explain any downward adjustment when structuring consecutive determinate terms and extensions.

Prosecution's Position / Court's Account of the Prosecution Case

• The prosecution relied on evidence that Complainant B blacked out repeatedly, was disoriented, felt "paralysed" and "incapable," and at times was unable to open her eyes—matters from which a jury could conclude loss of capacity and lack of consent.
• The prosecution's case left issues of capacity, consent and reasonable belief to the jury to determine on the evidence as a whole.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the no-case-to-answer challenge by reference to the evidence as a whole rather than to selected passages emphasised by the Appellant. The Recorder and single judge had concluded that questions of consent and reasonable belief were quintessentially for the jury and should not be withdrawn unless no reasonable jury properly directed could convict. The appellate court agreed. The court noted that although some evidence suggested possible consent, there was also substantial evidence that Complainant B repeatedly blacked out, was unable to open her eyes, felt paralysed and "incapable," and that the Appellant himself had considered calling an ambulance—factors permitting a jury to conclude loss of capacity and absence of reasonable belief in consent. On that basis the court found the submission of no case to answer in respect of count 2 unarguable and rejected the contention that conviction on count 1 was thereby unsafe.

On sentence, the court examined the Recorder's approach. The Recorder classified the offences under the Sentencing Council guidelines, identified aggravating factors (ejaculation, offender intoxication, psychological harm, lack of insight and risk of serious harm), and concluded extended sentences were appropriate. The Appellant argued the Recorder failed adequately to apply the totality principle when imposing consecutive extended sentences. The appellate court accepted that a lead-sentence approach might have been more consistent with the guideline, but concluded there was no error of principle: the overall determinate custodial term of 14 years plus a combined four-year extension was not manifestly excessive given two separate rapes committed five years apart (the second occurring after arrest on the first matter) and the pattern and risk identified. The court therefore rejected the sentence challenge, noting R v Mandzikwa support for the proposition that a non-manifestly-excessive total sentence will usually defeat a challenge based on sentence structure.

Holding and Implications

HOLDING: The renewed application for leave to appeal against conviction is refused, and the appeal against sentence is dismissed.

Implications: The convictions and the consecutive extended sentences as imposed by the Crown Court (total determinate term of 14 years and combined extension period of four years) stand. The court concluded no error of law or principle was demonstrated on the issues of no case to answer, capacity/consent, or totality/structure of sentence. The opinion does not purport to establish any new binding principle beyond applying existing authorities to the facts of this case.