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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Abdoule, R. v [2018] EWCA Crim 1758 (25 April 2018) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2018/1758.html Cite as: [2018] EWCA Crim 1758

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988

		Royal Courts of Justice Strand London, WC2A 2LL
		25 April 2018

LORD JUSTICE SIMON:

1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions where a sexual offence has been committed against a person, no matter relating to that person shall, during that person's lifetime, be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.
2. The Solicitor General applies under section 36 of the Criminal Justice Act 1998 for leave to refer two concurrent sentences of 11 years' imprisonment passed on Ahmed Abdoule on 8 February 2018 as being unduly lenient. We grant leave.
3. The sentences were passed by His Honour Judge Bury at Hull Crown Court following the offender's conviction for two offences of rape (one anal and one vaginal), contrary to section 1(1) of the Sexual Offences Act 2003. Both offences were committed against the same victim, K. They were committed on 12 August 2017 when the offender was aged 32. K was aged just 17 at the time of the offences.
4. Her best friend was R, the 17-year-old sister of the offender who lived with her mother and other siblings. The offender lived at a different address with his wife and five children in a two floor flat above a shop on Goodwin Parade, Hull.
5. In July 2017 the offender went on holiday to Scotland with his family, leaving the keys to the flat with his mother. Unknown to the offender R got hold of the keys to the flat and held a series of parties for her friends during his absence, which lasted several weeks. One party took place during the night of 11/12 August 2017. R and K were present, together with some other young people. Alcohol was drunk, but not much.
6. At about 4 am, apparently after visiting a nightclub in town and under the influence of alcohol but not drunk, the offender returned home unexpectedly. He threw out those who were there. He remonstrated with his sister about the state of the flat, the fact that she had taken the keys and was taking advantage of him. R appeared frightened of her brother. Shortly afterwards both girls left the flat, R running off in one direction and K walking off in another.
7. The offender got in his car and approached K as she was walking away. He told her to get in. The judge was to find that the offender intended to rape her when he went out in the car to find her and bring her back to his flat on the pretext of making K and R tidy it up. The judge found that K believed the lie the offender told her and that R was at the flat waiting. The offender knew by then that she was not. K was frightened by his aggressive attitude and felt she had no choice but to get into his car. He was the brother of her best friend and to that extent she felt a degree of trust in him. He drove K to a local shop on Princes Avenue where he bought some alcohol, before returning with K to his flat. K was sufficiently intimidated by him to go into the flat as he told her to.
8. Once inside he locked the door behind him, preventing her from escaping. They went into the living room and K realised that R was not there. The offender went to the kitchen and smashed a wooden rolling pin on the floor, breaking the inner handle. This left one end of the handle with a wooden shard attached about 10 inches long with the sharply pointed end, which K referred to as a wooden knife during her evidence. We have seen an image of what she described as the wooden knife and we are clear that she was right so to describe it.
9. The offender brought this into the living room and held it. He told K to drink some of the alcohol which he had bought. She declined and he told her she was boring. He did not drink any himself. K was in tears and pleaded with him to let her go. He refused, continuing to hold the wooden knife as a weapon. He told her to stop whining and to go upstairs. She did so and he followed. She stopped on the way up and he jabbed the weapon in her stomach, ordering her to keep going, which she did. At one point he referred to her as "white trash". She was suddenly and violently sick at the top of the stairs, again in the bathroom and yet again in the bedroom. As the judge found, this was a result of a panic attack rather than any earlier consumption of alcohol.
10. The offender made her change into a small pink top as she had vomit on her top. He was shouting and referring to the mess in his flat and what she was going to do about it. Despite K begging him to be allowed to go home, he made her lie on the bed threatening that they would "see blood", while still holding the weapon. He lay down beside her, touching her over and then under her clothing, touching her breasts and vagina. She protested continually and tried to get away a number of times but he put the point of the weapon to her neck and pressed it harder as she tried to move.
11. She told him untruthfully that she was a virgin to get him to stop. He replied: "You can't be, you're white." He told K to stop crying and pulled the top over her face saying he did not want her to see him while he "did this". He removed her lower clothing and his own. K was menstruating at the time and was wearing a sanitary pad but this did not deter him. He tried to put his penis in her vagina but did not succeed. K continued to cry and tried to resist but the weapon was still being held to her neck. The offender turned her over and put his penis in her anus, causing extreme pain for a period of several minutes. As he did this he told her she could not tell anyone about what was happening.
12. The offender turned K on her back and tried to put his penis in her vagina. She struggled and tried to force her legs together. The offender put the weapon to her neck and she stopped struggling. This time he succeeded in penetrating her vagina with his penis. He told her that she was not the only girl who was going to get punished. K did not think that the offender had ejaculated. At some point he got off and went to the toilet.
13. The judge concluded that the offending was "all about punishment and degradation". In his absence K got dressed. When he returned he said it was "okay" and she could do what she wanted now. She said she wanted to go. He drove her in the direction of her house, dropping her off nearby. He told her to cherish the top he had made her wear and that if she told anybody he would kill her.
14. When she got home at about 7 am she was extremely distressed and immediately told her mother what had happened. Her father telephoned the police. Her account led the police to make enquiries at the offender's mother's address. He was not there but attended when contacted. He was arrested and later interviewed by the police. He told them that he had returned home at around 3 am to find two men whom he did not know in his flat. They left. The flat was in a mess and he was angry and shouting at his sister. K was there trying to tell him that it was not R's fault and that another girl had caused the mess. He wanted to go to the shop to get a drink, so he did. K had accompanied him in the car. When they returned R had left. He said he had a drink in his living room whilst talking to K, who may also have had more to drink. He then told her he was tired and wanted to go to bed which he did. He woke to find K trying to have sex with him. She removed some of her clothing and was sitting astride him trying to get his penis into her vagina. She did not succeed. He remonstrated with her and pushed her off. She got dressed and he heard her being sick in the toilet. He had then taken her home, or at least dropped her nearby. He dismissed K's account. His own account the jury must have rejected as untrue.
15. The offender had a number of relatively minor previous convictions dealt with on various occasions between 2011 and 2016. They included driving offences, battery, resisting a constable and failures to surrender to custody. He failed to comply with the requirements of a community order on a number of occasions in 2014. In 2016, in August, his most recent conviction, he pleaded guilty to an offence of assault occasioning actual bodily harm for which he was imprisoned for seven months. The judge was informed that this resulted from a street incident. He had no prior convictions for sexual offending. There was no pre-sentence report before the court.
16. K had made a victim personal statement dated 6 February 2018. In that statement she said that since the offences she continued to feel unsafe even in her own home. She felt paranoid when going to the shops and unable to talk to boys and men. She suffered increased incidents of panic attacks which could be set off by "just about anything". She observed that her mother had been right to warn her about the risk she was taking when she went missing or stayed out late. She was having ongoing counselling, and expressed the hope that eventually things would get back to normal. She also described her extreme anxiety in relation to going to court and sleepless nights worrying about whether she was going to be believed.
17. K's mother also made a personal statement. She described her own guilt at failing to protect her daughter, despite warning her. The incident had led to numerous arguments with her husband. K had also lost a number of friends and was reluctant to go out or very far from home. Her mother in turn was all more nervous when K went out. She also expressed the hope that in time they would be able to move on.
18. Miss Ledward, who appears for the Solicitor General, has submitted that the following combination of factor placed the offender in Harm Category 1 and in Culpability Category A: the additional degradation putting the top over the victim's face, what she described as K's 'abduction', the fact that it was a sustained attack, the threats of violence beyond that which was inherent in the offence, the vulnerability of the victim due to her age, the significant degree of planning, an attempt to use alcohol to facilitate the offence and the racial aggravation in the offence. She submitted that the following further aggravating features were present: the use of a weapon to frighten or intimidate, the threat to prevent the victim from reporting the incident and the commission of the offence under the influence of alcohol. The only mitigating feature was the lack of relevant previous convictions.
19. She submitted that the sentences passed in this case were unduly lenient for a number of reasons. First, the judge erred when he concluded that the offending fell within Category 2A. The combination of Category 2 factors were such as to elevate these offences into Category 1 with a starting point of 15 years' imprisonment and a range of 13 to 19 years. Secondly, in particular, the judge failed to identify this was a case which was properly described as having involved an abduction. Third, he failed to give sufficient weight to the multiple Category 2 factors present and additional aggravating factors, in particular the use of a weapon. Fourth, if he did so the judge was wrong to take into account the possibility of deportation in determining the length of the sentence to be imposed. On all these basis she submits that the sentences were unduly lenient.
20. Miss Tavakoli, who appears today on behalf of the offender but was not trial counsel, makes a number of submissions in answer to the Solicitor General's application. First, the guidelines for rape offences permit a sentencer to have regard to the extreme nature of Category 2 factors to elevate the sentence to Category 1. That is a matter for the judgement of a sentencer and in the present case the judge was in a particularly strong position to identify the nature of the Category 2 factors. He was right to conclude that the offending fell within Category 2A of the guidelines. The prosecution considered that the offence fell within Category 2A and the judge was right to conclude that it fell within that category. The judge gave proper weight to the issue of "abduction". At page 5D of the sentencing remarks he described the offender as "aggressive" so that K "felt she had no choice" but to get into the offender's car. It was not a feature, she points out, that he overlooked. She also points out that the judge gave proper weight to the Category 2 harm factors, including the use of a weapon, and identifies pages 5F to G and 6F of the sentencing remarks. Finally, she submits that although the judge did refer to the possibility of deportation he made it clear that such a possibility was a matter for the Home Secretary, see page 7D of the sentencing remarks.
21. We have considered these submissions. We start with two preliminary observations. First, the possibility of deportation is irrelevant to sentence and should have no effect on it, see Attorney General's Reference No 41 of 2013 (M) [2014] 1 Cr.App.R (S) 80 at paragraphs 30 to 38. We would add that we do not read the judges reference to the possibility of deportation in the sentencing remarks as bearing on his consideration of sentence.
22. Second, prosecution counsel's views as to the categorisation of the offending are irrelevant. Categorisation and sentence are for the judge applying the Sentencing Guidelines which are applicable. By reference to the Guidelines for the offences of rape there were a number of Category 2 harm factors in this offending. As the judge found, first the incident was sustained, it lasted approximately two-and-a-half hours; second, there were threats of violence beyond what was inherent in the offence, both during and after the rapes; third, the victim was vulnerable in the circumstances, she was half the offender's age (just over 17) and he was very much stronger than her; fourth, there was the additional degradation of covering her face.
23. Although the word "abduction" does not precisely describe the offender's conduct in compelling K to get in the car and taking her back to his flat, there was a distinct element of cunning and coercion involved. In our view, these were harm factors whose extreme impact, taken cumulatively, placed the offending in Category 1 harm.
24. So far as culpability was concerned, as the judge noted first there was a degree of planning since he found that the offender intended to rape K when he went out in his car to find her. Second, the offences were racially aggravated. Third, K was in the offender's home and unable to escape. There was in addition the further aggravation of the offences in the use of a weapon and the threat to kill K if she reported the crimes committed against her afterwards. In our view the judge was right to categorise the culpability as Category A, but he should have characterised the overall seriousness of the offending as falling within Category 1A and not Category 2A. There was no mitigation. He had chosen to stand trial and he had a previous conviction for violence for which he had been sent to prison. The starting point for Category 1A offending is a term of 15 years. In our view that was the least sentence that should have been passed for these two offences and the sentences of 11 years were unduly lenient.
25. Accordingly, we substitute sentences of 15 years concurrent on counts 1 and 2. We note that while remanded on bail the offender was subject to a qualifying curfew and electronic monitoring condition for 70 days. He is accordingly entitled to 35 days credit against the sentences of 15 years. No such direction was made in the Crown Court and this will now be recorded as part of the sentences.