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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Badawi, R. v [2021] EWCA Crim 1729 (14 October 2021) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2021/1729.html Cite as: [2021] EWCA Crim 1729 |
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reporting
restrictions
may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child.
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CRIMINAL DIVISION
The Strand London WC2A 2LL |
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B e f o
r
e :
(Lord Burnett of Maldon )
MRS JUSTICE CHEEMA-GRUBB DBE
MR JUSTICE HENSHAW
____________________
R E G I N A |
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- v - |
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AMRO BADAWI |
____________________
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400; Email:
rcj@epiqglobal.co.uk
(Official Shorthand Writers to the Court)
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
THE LORD CHIEF JUSTICE: I shall ask Mr Justice Henshaw to give the judgment of the court.
MR JUSTICE HENSHAW:
victim
of any of the offences involved in this case.
rape,
contrary to section 1(1) of the Criminal Attempts Act 1981 (count 3), and one count of assault by penetration, contrary to section 2 of the Sexual Offences Act 2003 (count 2). He was acquitted of one count of
rape
(count 1) arising from the same incident.
restaurant
in Southampton. The complainant was one of the appellant's managers. The owners of the bar also owned property above the premises and the appellant had moved in to live in one of the
rooms.
The complainant also sometimes stayed in one of the
rooms
after working late. Both the appellant and the complainant were working at the bar on 10th August 2018. After work, the complainant, the appellant, another member of staff and the complainant's friend went to another bar in Southampton, but after arrival, the complainant and her friend became separated from the appellant and the other member of staff.
returned
to the flat above the bar at around 3.30am and went to sleep. The appellant
returned
to the flat some time later to discover that the complainant had locked him out by leaving her key on the inside of the door, and so he shouted for her to let him in, which she did.
vagina
with his penis, so she pushed him off. She
realised
that it was the appellant and told him to get out. The appellant left the
room.
The police were called later that day, attended and took evidential samples from the complainant and the underwear she had worn that night. DNA analysis later confirmed traces of the appellant's DNA and semen on
vaginal
swabs, and traces of the appellant's semen on the inside and outside of the gusset area of the complainant's underwear.
raping
the complainant and described what he thought had been a consensual sexual encounter. He said that they had been kissing, that he had fingered her, and that the complainant had been awake and had been consenting. It went on for a little while, he said, and then she told him to stop which he did. She told him to leave the
room
and so he did. He accepted that he had been drinking and had taken some cocaine earlier that evening.
received
a warning for battery in 2007 and had a caution dating from 2013 for possession of cocaine.
rape,
but clearly had in mind the need to adjust for the fact that the appellant had been convicted of attempted
rape,
rather
than the completed offence.
Victim
Personal Statement provided by the complainant. It made clear how the appellant's offending had irreversibly transformed her life, and had left her almost a shell of her former self. The judge also had the advantage of seeing the complainant give evidence both in a pre-
recorded
interview and during the trial. The judge was satisfied that she had suffered severe psychological harm as a
result
of the offence. In addition, the offence had involved uninvited entry into the complainant's bedroom, where she ought to have been safe. Both of those factors made this a category 2 harm offence.
range
from seven to nine years' custody. The judge bore in mind that this was an attempt and not the full offence and considered it appropriate to adjust the starting point to six years, before considering the aggravating and mitigating factors.
referred
arose from a previous trial in 2016 in which the appellant had been acquitted of an alleged
rape
said to have occurred the previous year. This was a matter which the Crown had not sought to adduce in evidence but which was mentioned in discussion of jury directions. It was not touched on during the appellant's trial for the present offence, but the judge
requested
further detail in advance of the sentencing hearing. Accordingly, the prosecution included
reference
to it in their note for sentence. The note provided the following details of the previous allegation and the answer which the appellant had given to it:
"Complainant was 21 years of age, had been out for the evening in Southampton and had attended [name of café] (this location was mentioned during the course of our trial), complainant drinking alcohol during the evening she became separated from her friends. Sherecalls
sitting on a wall, unsure of where she met two males who were there with her, she had no
recollection
of
returning
to a house, or being in a house, she just
remembers
waking up with a guy on top of her with his penis in her
vagina,
she pushed him off. There were three other males in the
room,
she was in shock and stood up, she put her pants and jeans on. She asked for a post code of where she was and called a friend to collect her, complainant then attended police station to
report.
She was in shock. A male suspect was identified ... This male was arrested and upon providing an account of his movements this lead officers to his home address whereby a number of males were arrested – [the appellant] being one of them.
[The appellant] in his police interview confirmed going out and drinking alcohol, meeting a girl on the way home with a friend.returning
back to his friends address where they sat on the sofa, his friend drifted off to sleep and [the appellant] and the girl kissed. they participated in mutual masturbation and he inserted his finger into her
vagina.
He felt she consented even though there was no conversation. He pulled down his jeans and pulled the girls pants and trousers down a little way, he inserted his penis into her
vagina
a little way but not fully before the girl said "NO" and with withdrew his penis immediately."
remarks
by
referring
in summary form to these matters, before he continued:
"You are absolutely not to be sentenced for a matter which you have been found not guilty by a jury, but that particular behaviour hasrelevance
both to your culpability and to any assessment of dangerousness which may have to be made in a moment."
recently
been acquitted of an offence said to have been committed in
very
similar circumstances. Its
relevance
was that at the time of the present offence, the appellant must have been acutely aware of the absolute imperative of securing the consent of a woman with whom he proposed to have sexual intercourse. The judge added that the complainant on the present occasion was actually asleep, so there was not even
room
for misunderstanding.
victim
who was
vulnerable
because she had taken drink and was asleep, as the appellant must have known.
regarded
the aggravating factors to overshadow them: in particular, the appellant's subsequent steps to address his underlying misuse of drugs and alcohol, and the position of his fiancée who suffers from a debilitating disease and for whom the appellant cared on a day-to-day basis.
regard,
a pre-sentence
report,
dated 20th January 2021, had been provided. The author of that
report
did not at that stage know about the events surrounding the appellant's previous acquittal. However, on the morning of the sentencing hearing (the following day), the court
requested
that the probation officer consider those events. That led to an updated
report
being uploaded, apparently a few minutes before the start of the hearing.
version
of the
report
indicated that the appellant accepted the finding of guilt, albeit he continued to say that he was "under the impression that it was consensual until she said 'No'", and that "[it] was just a sexual encounter that went
very
badly wrong". The author of the
report
expressed some concerns about the appellant's thinking and assessed him as presenting a
risk
of harm to adult women whom he might identify as being
vulnerable,
but felt unable, absent antecedent criminal behaviours, clearly to evidence dangerousness.
version
of the pre-sentence
report
was that the specific comment on dangerousness was changed to indicate that the assessment of dangerousness was not straightforward:
"as it is for the court to assess therelevance
or otherwise of non-conviction antecedents. Accepting this, the [National Probation Service] is tasked with public protection. It would seem to me
remiss
to disregard non-conviction behavioural precedents in meeting this duty. … it would be difficult for [the appellant] to argue that he was unaware that his actions were not consensual, given his prior experience of contested proceedings. On the balance of probability, I think [the appellant] took informed and considered decisions to commit the current offences. There is a predatory element to [the appellant's] behaviour. As such, I could identify no scope to argue against an assessment of dangerousness."
reference
to the events of 2015/16. The first
reason
he gave for
regarding
the appellant as
representing
a significant
risk
of serious harm from further specified sexual offences was that the circumstances in which this offence was committed "are so
very
similar to the circumstances in which the other matter, unproven, was said to have been committed and involved an unconscious complainant, incapacitated through alcohol and/or sleep". The judge said that he considered that to be important because, despite having been through the experience of an allegation and a trial, the appellant
remained
disinhibited in August 2018 and his behaviour was unconstrained by that experience. He went on:
"In addition, it is arguable that what you did to [the complainant] was opportunistic and predatory behaviour. That you should do it twice seems to me to make it perfectly plain that that is exactly what this was."
report,
even in its original form, was that his offending amounted to no more than an injudicious sexual encounter, a misreading of the signals, and a misunderstanding of the complainant's situation.
result,
the judge concluded that the appellant was a dangerous offender and that an extended licence period of five years should be imposed.
regarded
the events surrounding the appellant's previous acquittal as an aggravating factor, and by failing to have sufficient
regard
to mitigating factors, including the delay between the offence and sentence; and (2) by wrongly concluding that the appellant was dangerous by placing undue weight on the circumstances of the previous acquittal.
represented
today by Mr Tom Horder of counsel, who also appeared at trial. We are grateful to Mr Horder for his clear, cogent and
realistic
written and oral submissions.
risk
to members of the public of serious harm occasioned by the commission by the offender of further specified offences, and (ii) in
respect
of a defendant who has not previously been convicted of a specified offence, the appropriate custodial term is at least four years.
relates
to the assessment of dangerousness. Section 308(2) provides that, in making that assessment, the court:
"(a) must take into account all the information that is available to it about the nature and circumstances of the offence,
(b) may take into account all the information that is available to it about the nature and circumstances of any other offences of which the offender has been convicted by a court anywhere in the world,
(c) may take into account any information which is before it about any pattern of behaviour of which any of the offences mentioned in paragraph (a) or (b) forms part, and
(d) may take into account any information about the offender which is before it."
R
v
Lang [2005] EWCA Crim 2864. It has been said that it will be a
rare
case in which an appellate court, which has not conducted the trial and seen the offender, would overturn an exercise in judicial discretion in
relation
to an assessment of dangerousness: see
R
v
Howlett [2019] EWCA Crim 1224 at [27]. The Court of Appeal will not normally interfere with a finding of dangerousness unless it can be shown that the sentencer has failed to apply the correct
relevant
principles, or
reached
a conclusion to which he or she was not entitled to come on the material before him or her: see
R
v
Chowdhury [2016] EWCA Crim 1341 at [23].
R
v
Considine [2007] EWCA Crim 1166, it was held that the "information"
referred
to in what is now section 308 of the Sentencing Act 2020 was not
restricted
to evidence. Information bearing on the assessment of dangerousness could take the form of material adverse to the offender which was not substantiated or proved by criminal convictions: a criminal conviction is not necessarily a prerequisite to using material in the context of assessing the future
risk
posed by a defendant. However:
"… the judge should notrely
on a disputed fact unless it could be
resolved
'fairly' to him. One example of unfairness would arise if, notwithstanding the availability of evidence to justify prosecution for a serious offence, the defendant was undercharged on the basis that if convicted of the less serious offence, the prosecution could then supply the court with all the 'information'
relating
to the more serious offence. If the defendant were then treated as if he had been convicted of the offence, that would be unfair to him just because he might end up convicted, or effectively convicted in the course of the sentencing decision, in effect, without due process." ([27] per Judge LJ)
It seems to us that the same considerations of fairness apply when considering, in the context of sentencing, the disputed facts of a previous acquittal.
references
in his sentencing
remarks
to the circumstances of the appellant's previous acquittal, and to their great similarity to those of the present offence, would be logical only on the footing that the previous complainant's account was accurate. The appellant's own
version
of the previous incident was that both parties were fully awake and consenting. On that
version
of events, none of those
remarks
by the judge was apt in circumstances where no fair opportunity had been provided to challenge the
reliability
and accuracy of the account given by the previous complainant. (Equally, we see no indication that the appellant was
re-interviewed
or otherwise given a chance to comment before the pre-sentence
report
was amended to take account of the prior incident.) We further doubt the logic of the judge's suggestion that the previous events were an aggravating factor because they meant that the appellant must have been acutely aware of the imperative of securing consent. The
real
issue in the present case was not whether the appellant thought consent important, but whether or not he
reasonably
believed he had it.
view,
the judge ought not to have had
regard
in the way that he did to the appellant's previous acquittal and its circumstances. The question then becomes what difference it makes.
reasons
we have given, the judge erred in treating the previous episode as an aggravating factor. However, there were other significant aggravating features, as we have outlined and as the judge indicated. Moreover, the judge must, in our
view,
have been correct to observe that, although the appellant was acquitted of a substantive
rape
and found guilty only of attempt, that must have been by a fine margin, given the forensic evidence. That factor, it seems to us, is also
relevant
when considering the seriousness of the offence.
rightly
took account of mitigating factors. Here the appellant takes specific issue with the judge's approach to the delay between the commission of the offence in August 2018, his being charged in September 2019, and the successive postponements of the trial due to the Covid-19 pandemic, which led ultimately to sentencing only in January 2021. The appellant points out, first, that the delay led him to a state of depression. Secondly, the appellant points out that during that period his life had changed significantly: he had become engaged, and assumed significant caring
responsibilities
for his partner.
remarks,
the judge said the fact that there had been delay should not be taken as a mitigating feature when it had been open to the appellant to enter a guilty plea at an earlier stage. He
regarded
the delay as being neither an aggravating nor a mitigating factor. The appellant submits that that was at odds with the Sentencing Council's "General guideline overarching principles", which indicates that where there has been an unreasonable delay in proceedings since apprehension which is not the fault of the offender, the court may take this into account by
reducing
the sentence if the delay has had a detrimental effect on the offender, noting specifically that "[n]o fault should attach to an offender for not admitting an offence and/or putting the prosecution to proof of its case". We would be inclined to accept that to the extent that the judge took into account, in this context, the appellant's failure to admit guilt, he was incorrect to do so. We are also persuaded that the delay in this case did have a detrimental effect on the appellant for the
reasons
to which we have just alluded.
views
of the judge, we are not persuaded that the balance of aggravating and mitigating factors would properly lead to a sentence of eight years' custody for the attempted
rape.
In all the circumstances of the case, we consider that the appropriate sentence was one of six years and six months' imprisonment. We see no basis on which to question the judge's concurrent sentence of five years' imprisonment on count 2 (assault by penetration).
relied
heavily on the
views
he formed about the previous incident. As we have already summarised, the original pre-sentence
report
did not conclude that the appellant crossed the dangerousness threshold, although it did express a number of areas of concern. Both the amendment to the
report
and the judge's assessment of dangerousness were heavily influenced by conclusions drawn from the events of 2015/16. If those events are discounted, as in our
view
they should have been, we consider there to have been insufficient basis on which the conclusion could properly be drawn that the appellant was a dangerous offender such as to justify the five year extension period. As a
result,
we consider that that part of the sentence must fall away.
reasons,
we allow the appeal to this extent. We quash the extended sentence of 13 years on count 3 (attempted
rape),
comprising a custodial term of eight years and an extended licence period of five years, and we substitute a determinate sentence of six years and six months' imprisonment. The concurrent sentence of five years' imprisonment on count 2 (assault by penetration)
remains unchanged.