EMP, R. v

Factual and Procedural Background

This is an appeal heard on 4 June 2026 before Judge Andrews, Judge Jay and Judge Thornton arising from a conviction for rape. The Appellant was convicted after trial on 29 August 2025 and was sentenced by the sentencing judge (Recorder Tait) to 9 years' imprisonment for a single count of rape. The offence occurred in September 2022 when the Appellant and the Complainant were both 18. The Complainant, a longtime family friend who had stayed overnight at the Appellant's home on many previous occasions, attended the Appellant's family home after a night out distressed. She went to the Appellant's bedroom, fell asleep in his bed, and later awoke to find the Appellant penetrating her and touching her breast. The Appellant apologised afterwards and sent messages; at trial the defence was consent. The Complainant provided victim personal statements detailing severe psychological harm. The pre-sentence report recorded the Appellant's continued assertion of consent, limited insight, a maturity assessment noting issues with sexual behaviour, a low risk of reconviction and a medium risk of harm.

Legal Issues Presented

1. Whether the sentence of 9 years' imprisonment was manifestly excessive.
2. Whether the sentencing judge erred in principle by failing to give clear weight to the Appellant's youth/immaturity as a mitigating factor when determining sentence.

Arguments of the Parties

Appellant's Arguments (Attorney Coulter)

• The sentence of 9 years at the top of the Category 2B range was manifestly excessive.
• The prosecution agreed there were no aggravating features warranting elevation above the starting point; the Recorder did not identify such aggravating features.
• There was substantial mitigation: the Appellant's youth, good character, lack of previous convictions, positive references, employment, and delay in bringing the case to trial.
• The sentencing judge erred in principle by failing to make a clear downward adjustment for the Appellant's youth and immaturity.

Respondent's Arguments

• This information was not available in the provided opinion.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court analysed sentencing under the applicable rape guideline categorisation. The Recorder had placed the offence in Category 2B, identifying two Category 2 factors: (a) the Complainant's extreme vulnerability due to being asleep when the sexual intercourse began, and (b) the severe psychological harm caused by the rape. The Recorder's starting point was 8 years' detention with a range of 7–9 years; he then concluded that, given breach of trust and the impact on the Complainant, the least sentence he could pass was 9 years.

The appeal court considered the Appellant's submissions that no aggravating features had been identified and that there was significant mitigation, notably youth. The court rejected the submission that there were no aggravating features, noting the two Category 2 factors and the breach of trust identified by the Recorder. However, the court found that the Recorder had not clearly explained how he had accounted for mitigating features, and had apparently failed to treat the Appellant's youth/immaturity as a distinct mitigating factor. The appellate panel reviewed the pre-sentence report and concluded there was a degree of immaturity relevant to sentencing given the motive of immediate sexual gratification and other indicia of immature thinking. On that basis the court determined that the Recorder erred in principle by not expressly considering age as mitigation and that a modest reduction to reflect that omission was appropriate.

Holding and Implications

The appeal was allowed and the sentence of 9 years was reduced to 8 years and 6 months' custody.

Direct effect: the Appellant's custodial term was reduced to 8 years and 6 months. The opinion does not purport to create a new precedent; it corrects the sentence on the basis that the sentencing judge failed to expressly take the offender's youth into account as mitigation.