About this case:

• Judgment:
  External link

Ruling that the sentence of 20 years’ imprisonment in respect of five counts of rape should remain in place, Lord Chief Justice Morgan took into consideration the decision in R v Pollins when substituting the indeterminate custodial sentence with an extended custodial sentence of 4 years.

Background

In February 2014, S.S. was convicted of

He was sentenced to 20 years’ imprisonment in respect of the rapes with concurrent sentences in respect of the other convictions concerning his younger sister.

The trial judge also imposed an indeterminate custodial sentence with a minimum term of two years custody in respect of the attempted indecent assault on his younger sister and concurrent sentences in relation to the indecent assault on his older sister.

The offences on his younger sister began in 1992 when S.S. was 12 and she was 5, continuing to 2003. The Court also heard there was a later count of attempted indecent assault on her when she was 20.

The counts of indecent assault on his older sister took place in 1998/99 when she was 15 and S.S. was aged between 19 and 20.

Sentencing

The trial judge imposed a sentence of 20 years’ imprisonment in respect of the rapes and corresponding shorter terms on the other counts; an Article 26 licence; and a range of protective and rehabilitative measures to provide protection to the public.

The judge then turned to the appropriate sentence for the offence of attempted indecent assault on the younger sister which offence occurred approximately 5 years after the defendant had left the family home and at the time when the younger sister was living elsewhere with her partner. There was no element of violence involved in the incident but was deemed to be evidence supportive of a persistence of attitudes supporting sexual assault of females.

Imposing an indeterminate custodial sentence (minimum two years), the trial judge concluded that an extended custodial sentence would not be adequate in light of the persistence of the offending and the recent attempt to engage in sexual abuse in 2008.

Court of Appeal

The Court of Appeal refused S.S.’s application for leave to appeal against conviction but considered his leave to appeal against his sentence.

The Court of Appeal held that this was plainly a case of high culpability which represented a campaign of violent sexual abuse.

Further factors taken into account:

Morgan LCJ stated “…without in any way failing to recognise the importance of the incident in 2008 it is noteworthy that it differed significantly from the earlier episodes in that there was no persistence or use of violence. It is also noteworthy that … the risk of a violent offence was in the low to medium range. Taking all these factors into account we do not consider that this was a case for such a draconian sentence. An extended custodial sentence was adequate to deal with the risk having regard to the suite of protections to which the applicant is subject.”

Significantly. the sentencing in this case took place four days before the decision in R v Pollins NICA 62 in which it was held that an indeterminate custodial sentence is “the most draconic sentence the court can impose apart from a discretionary life sentence and that it should not be imposed without full consideration of whether alternative and cumulative methods might provide the necessary public protection against the risk posed by the individual offender”.

As such, considering R v Pollins, the Court of Appeal substituted the original indeterminate custodial sentence with an extended custodial sentence comprising a commensurate term of 4 years, and an extended licence term of 4 years.

The 20 years imprisonment in respect of the rapes was not altered.