Taxi Driver Online

[2006] All ER (D) 04 (Jun)

HEARING-DATES: 6 JUNE 2006

The offender was an unlicensed taxi driver. The complainant, aged 37, had been drinking with colleagues, and, in the early hours of the morning, she enlisted the offender to take her home. She was visibly drunk. She entered her home, turned off the burglar alarm and collapsed in a drunken state on her sofa. She awoke some time later to find the offender having sexual intercourse with her, and she passed out. The offender ejaculated inside her, having failed to use a condom. He then stole cash, a bank card, and two mobile telephones.

The next morning, she remembered parts of what had happened, and contacted the police. She had to undergo tests for sexually transmitted diseases, and had to wait for three months for the results of an HIV test. The offender had no previous convictions for sexual offences. After a trial, he was convicted of rape and burglary and was sentenced to five-and-a-half years' imprisonment in relation to rape, and a concurrent sentence of 15 months for burglary. The Attorney General sought leave to refer the sentence to the Court of Appeal pursuant to s 36 of the Criminal Justice Act 1988 as being unduly lenient. Leave was granted.

The Attorney General submitted that the following aggravating factors were present: (i) the complainant had been raped in her own home; (ii) the offender had acted in breach of trust; (iii) the offender had failed to use a condom; and (iv) he had ejaculated inside the complainant. The offender submitted, inter alia, that the judge had been entitled to depart from the guideline sentence of eight years' imprisonment. Moreover, he contended that the complainant had not appreciated at the time of the rape what was actually happening, that he had no relevant previous convictions, and that the judge had been best placed to decide on the appropriate sentence.

COUNSEL:
Adrian Kayne (instructed by [edited by admin]) for the offender.; Sarah Whitehouse (instructed by the Treasury Solicitor) for the Attorney General.

PANEL: KEENE LJ, AIKENS AND GOLDRING JJ

DISPOSITION:
The court ruled:

Whilst sentencing guidelines should not be applied inflexibly, there had to be good reason for departing from them.

In all the circumstances of the instant case, the appropriate starting point was eight years' imprisonment. Moreover, given that the sentence had to reflect totality of the offences, the sentence that was appropriate at first instance was nine year's imprisonment. It followed that the sentence imposed was unduly lenient. It could not be said that the fact that the complainant had been unconscious at the time of the rape could amount to a mitigating factor, but rather, it tended to emphasise the breach of trust. Breach of trust was an aggravating feature, particularly so where a victim was very drunk, as in the instant case. The fact that the offender had obtained access to the complainant's home was an aggravating factor in itself. The absence of previous relevant convictions would not afford a great deal of credit in cases such as the instant case. The offender had contested the allegations. Significant anguish had been caused to the complainant, particularly as a result of the unprotected sexual intercourse with its attendant risks.

The sentence of five-and-a-half years' imprisonment would be quashed and, allowing for double jeopardy, a sentence of eight years' substituted.

R v Millberry [2003] 2 All ER 939; Attorney-General's References (Nos 37, 38, 44, 54, 51, 53, 35, 40, 43, 45, 41 and 42 of 2003) (2003) Times, 29 October considered.
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