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Mr Lukasz Artur Kubik had been found guilty of raping a woman who approached him and a group of women in the early hours of the 31 January 2013 after finding that her phone had no credit and the taxi rank at which the group were standing was closed.

Mr Kubik asked her if he wanted to go to their home, which the woman agreed to, believing that she was going to use a phone to get her home.

However, the group of women left her and Mr Kubik alone, at which point he molested her against a parked car, forcing her hand onto his penis and forcing his penis into her vagina, before she managed to push him off. At that point he masturbated and ejaculated before running off.

Mr Kubik was found to have 28 previous convictions, mostly for road traffic offences, but also for drug trafficking, theft, criminal damage and obstructing police. He had no previous convictions for sexual offences.

During trial, he conceded that he had not gained the victim’s consent to place her hand on his penis. It was the view of the Probation Office that he was not willing to take full responsibility for his offending, and demonstrated limited victim empathy.

The probation report identified a number of factors indicating a high likelihood of reoffending, and was accused of presenting a significant risk of serious harm.

Three themes were identified: the opportunistic nature of the offence which implicitly includes risk taking and impulse, the failure to take responsibility which in this case includes limited insight and empathy and the level of force or violence used.

In terms of victim impact, Dr Michael Patterson, a Consultant Clinical Psychologist, found that the victim was suffering post-traumatic stress disorder.

However, although the Court of Appeal acknowledged the distress the crime would have caused, they found that it was difficult to accept the reliability of this diagnosis, due to previous relevant history in terms of the victim’s mental health.

The Crown Court Judge found that the applicant was a dangerous offender within the meaning of article 15 of the Criminal Justice (Northern Ireland) Order 2008.

She identified three aggravating factors, namely use of gratuitous violence; significant mental consequences for the victim; and further degradation of the victim in that after the rape the applicant masturbated and ejaculated over the victim.

The Judge considered that there were no mitigating factors. She sentenced the applicant to an extended custodial sentence on the first count of nine years with an extension of licence for a further three years. Taking into account the totality principle the judge imposed a concurrent sentence of 2 years for count 2.

The Court of Appeal noted that sentencing levels in rape were specifically addressed in Attorney General’s Reference (No 2 of 2004) (O’Connell) NICA 15 where it was stated that sentencers should apply the starting points recommended by the Sentencing Advisory Panel in England and Wales (“the Panel”) in its 2002 guidelines – these are 5 years with no aggravating or mitigating factors and 8 years where a number of enumerated features are present.

That approach was reaffirmed Attorney General’s Reference (No.3 of 2006) (Martin John Gilbert) NICA 36.

However, the Court also noted the advice in R v Molloy NIJB 241 that sentencers should not view starting points as fixed tariffs for rape cases.

As R v Millberry and others 2 All ER 939 noted, guidelines can produce sentences which are inappropriately high or inappropriately low if sentencers merely adopt a mechanistic approach.

It was therefore important to consider the circumstances as a whole, and to keep in mind that the Panel’s list of aggravating and mitigating factors was not comprehensive.

The Court cited R v McKeown, R v Han Lin (DDP’s Reference Nos 2 and 3 of 2013) as noting that guidelines were intended to assist sentencing judges without trammelling the proper level of discretion.

In respect of the current case, the Court noted that the trial Judge had identified gratuitous violence as an aggravating factor.

However, they found that gratuitous violence suggests a use of violence over and above that necessary to commit the rape, which was not present in the current case.

The second factor was the significant mental consequences for the victim. The Court noted that: “We have already commented on the unsatisfactory nature of the medical evidence introduced in the victim impact report. We wish to make it clear that this is no reflection on the victim but if such matters are to affect the level of sentence they must be established to a rigorous standard.”

The third factor was the degradation of the victim, as the trial Judge had found that Mr Kubik ejaculated over the victim.

However, on appeal it emerged that although the applicant masturbated and ejaculated, which is in itself an aspect of degradation, there was no sufficient evidential base for the suggestion that he ejaculated over her.

It was accepted that the trial Judge was entitled to give weight to these factors, and that this was a case that had a number of aggravating factors which justified a sentence beyond the 5 year starting point.

They found that the appropriate determinate sentence was one of seven years.

Under article 15 of the 2008 Order, the court is required to take into account the nature and circumstances of the offence and may take into account any pattern of behaviour of which it forms part and any information about the offender which is before it.

The Court found that: “The nature and circumstances of this offence indicated that it was an opportunistic and impulsive act contributed to in part by the consumption of alcohol. The only element of planning was the separation of the victim from the remainder of the party. There was no premeditation. There was no material to indicate that this was other than a single impulsive act.”

There was found to be no relevant pattern of behaviour, and no basis for the conclusion that there was a significant risk of serious harm to members of the public from the commission of similar offences.

The Court noted that: “Rape is a very serious offence. It rightly invariably carries a significant sentence of imprisonment for the perpetrator. It does not follow, however, that every perpetrator represents a significant risk of serious harm by the commission of similar offences.”

The Court was referred to the cases of R v Xhelollari EWCA Crim 2052 and R v Nouri and Ibrahim EWCA Crim 1379 where the Court of Appeal in England and Wales set aside findings of dangerousness in those rape cases.

While the Court did not know enough about those cases to conclude whether such a course would have been taken in Northern Ireland, but found that it has not been demonstrated in this case that there was a significant risk of serious harm from similar offending.

They concluded: “For the reasons given we grant leave and allow the appeal substituting a determinate custodial sentence of seven years comprising 3 ½ years in custody and the same on licence and removing the extended sentence. The ancillary orders and recommendations will remain in place.”