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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 >> Balogh, R v [2015] EWCA Crim 44 (04 February 2015) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2015/44.html Cite as: [2015] EWCA Crim 44, [2015] WLR 3201, [2015] WLR(D) 49, [2015] 1 WLR 3201, [2015] Crim LR 825

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IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Portsmouth Crown Court and Winchester Crown Court
Mr Recorder Towler
T20137171
U20141320
Reference under Section 36 of the Criminal Justice Act 1988
Attorney General's Reference No 117 of 2014

		Royal Courts of Justice Strand, London, WC2A 2LL
		04/02/2015

Lord Justice Pitchford :

The Reference

1. This is an application made on behalf of HM Attorney General for leave to refer to the Court as unduly lenient a suspended sentence order imposed at Portsmouth Crown Court on 31 October 2014 for an offence of rape. The provisions of the Sexual Offences (Amendment) Act 1992 apply to these proceedings and to preserve the anonymity of the complainant we shall refer to the complainant either as "the complainant" or as "GP".
2. On 18 March 2014 the offender pleaded guilty to a single count of rape, contrary to section 1 of the Sexual Offences Act 2003. He put forward a basis of plea that, after consideration, was not acceptable to the prosecution. On 7 April 2014 the Crown Court ordered that a Newton hearing should take place to resolve issues of fact. That hearing was held before Mr Recorder Towler on 20 June 2014. Having made findings, the Recorder adjourned the sentence hearing for the completion of reports.
3. On 31 October 2014 the recorder imposed a suspended sentence order comprising 2 years imprisonment with a supervision requirement for the same period. In addition he made a restraining order under the Protection from Harassment Act 1997 requiring the offender for an indefinite period not to make contact with the complainant.

The facts

4. The offender was born on 14 May 1986. He is now aged 28 years. The complainant, GP, is a year older. The offender suffers a mental disorder comprising Tourette's syndrome, obsessive compulsive disorder ("OCD"), attention deficit hyperactivity disorder ("ADHD"), anxiety and depression. He was prescribed medication to alleviate depression and anxiety and anti-psychotic medication to suppress his significant Tourette's tics. The complainant has a borderline personality disorder whose principal manifestations are anxiety and susceptibility to panic attacks. Both were living independently in 2011. The complainant was in employment; the offender was in receipt of disability living allowance and employment support.
5. In 2007 or 2008 the complainant was in a relationship with her female partner, Zoe. The offender and Zoe were known to one another; they had attended the same school. The offender and GP were introduced. The three young people socialized together from time to time until, in 2011, the relationship between GP and Zoe ceased. The offender and the complainant became emotionally close but the relationship was entirely platonic, the offender understanding that the complainant had no sexual interest in men. However, as the Recorder found, for some time before October 2011 the offender had, without GP's knowledge, harboured some hope that in time GP would consent to become his girlfriend in the conventional sense.
6. The offender organized a Halloween party at his flat on or about 29 October 2011. Only the complainant and two of the offender's male friends turned up. All three males consumed a considerable quantity of alcohol; the complainant had work the following day, so she consumed less. The party moved on to the complainant's house at her invitation. The time came when one of the offender's male friends went to sleep on a sofa in the living room; the other was offered the second sofa.
7. The following account of events incorporates the findings of fact made by the recorder at the Newton hearing. The complainant invited the offender to share her bed. The offender knew this was not an invitation for sexual activity. They had shared a bed before, purely to sleep. Neither party anticipated or intended sexual activity between them. The complainant went to bed first. She was sleepy. She was wearing pyjama trousers and a T shirt top. There was brief and desultory conversation between them before the complainant turned away from the offender and went to sleep. The second of the male friends had by this stage left the house. The complainant awoke to find the offender touching and kissing her. She said, 'No', but this had no effect. The offender proceeded to kiss the complainant about the face and on her thighs. Despite her protests he removed her pyjama bottoms and climbed on top of her. As the recorder found "the obsessive part" of the offender's personality took over. The complainant struggled and cried out, but the offender placed his hand over her mouth and commenced sexual intercourse with her. During the course of sexual intercourse the offender came to his senses and desisted. He spent 5 – 10 minutes apologizing profusely to the complainant and punched himself while doing so. The complainant made it clear that their friendship was ruined. The offender took his clothes from the bedroom, dressed, woke his friend and left. He told his friend that he had "tried it on" with the complainant.
8. GP telephoned her mother and told her what had occurred. Some while later Mrs P visited her daughter's home and saw blood on the bed sheet. The complainant decided that she did not wish to report the matter to the police because she felt ashamed, wanted to put the incident behind her and did not want to get the offender into trouble. The following day she went to a clinic for advice and a prophylactic; however, she was not physically examined. Two weeks later she went to hospital for an examination. She said she had been raped by someone known to her but she would not name him. She told treating staff that "a few hours" after intercourse she had started bleeding. The complainant said that her normal period started shortly after that. She was, she said, sore inside and out but that had settled by 9 November 2011.
9. The offender's behaviour caused him distress and an enduring sense of guilt. Two years later he tried unsuccessfully to make contact with the complainant. After making several telephone calls to the police, he attended a police station on 23 September 2013, taking with him some of his medical records. He was in a state of considerable anxiety. He told the police that he wanted to confess to sexual assault; he thought he needed help. He was arrested at 8 pm. He was booked into the police station and prescribed tranquillisers. The complainant was approached by the police and she made a statement. She confirmed that she had been raped. She said nothing about her invitation to the offender to share his bed. The following day the offender was assessed under the Mental Health Act and judged fit to be interviewed. He was arrested and interviewed in the presence of the duty solicitor and an appropriate adult. He claimed that the complainant had invited him into his bed, had gone to bed topless and had encouraged sexual activity by engaging in consensual foreplay that included the complainant fondling his penis. He claimed that the complainant changed her mind only at the last moment. He realised the complainant was not consenting only after penetration had occurred.
10. It is accepted by HM Attorney General that were it not for the offender's self report this matter would not have come to light.

The proceedings in the Crown Court

11. The offender pleaded guilty on 18 March 2014 but put forward a written basis of plea that adopted the account he had given in interview under caution. The prosecution indicated that the basis of plea was not accepted. On 7 April 2014 the resident judge at the Crown Court, HH Judge Hetherington, directed that a Newton hearing should take place. The hearing was listed before Mr Recorder Towler on 19 June and the evidence was completed the following day. The recorder heard evidence from both parties and other witnesses. He was also provided with reports upon the offender by consultant psychiatrists, Dr Alexis Bowers and Professor Neil Greenberg. He reserved his ruling and on 14 July delivered judgment. The recorder made detailed findings of fact. Although, in the main, he accepted the account of the complainant and rejected that of the offender, he was sure that the offender's medical condition "impacted on the way in which he behaved that night" (Transcript proceedings 4 July 2014, page 17G-18A). He concluded that the complainant had indeed invited the offender to share her bed for the night; that neither had any intention that sexual activity should take place; that the complainant made it clear at an early stage that she did not consent to sexual activity; but that the offender continued until he came to his senses and withdrew.

The medical evidence

12. Professor Greenberg interviewed the offender on 17 October 2013. His report is dated 24 October 2013. Dr Bowers interviewed the offender on 4 March 2014 and her report is dated 5 March 2014. Dr Bowers did, but Professor Greenberg did not, have access the offender's medical records, although Professor Greenberg was handed copies of information provided in support of the offender's claims for disability allowance. At interview Professor Greenberg found the offender to be within the normal range of intelligence. He appeared to be distracted at times. He suffered 'obvious' tics, both motor and verbal. His vocabulary was good but he had a stutter at times. He was angered and frustrated by his disorder. He had mood changes. He believed himself to be evil and horrible. He admitted to regarding women as sexual objects. He had himself been abused by a 15 year old male when he was aged 6 or 7 years. He had no intention to harm anyone but worried that he might. In Professor Greenberg's view the offender's thoughts about women were egodystonic; in other words, he was aware of his thoughts and did not want them. This is characteristic of those who suffer OCD. The offender was a compulsive list-maker and cleaner. His failure to complete his self-allotted tasks caused high levels of anxiety that significantly impaired his quality of life. The offender suffered Tourette's syndrome, OCD and depression. One of the accompanying symptoms for some sufferers, including the offender, was poor impulse control.
13. Professor Greenberg described the likely presentation of the offender under the stress of giving evidence at court. He would have jerking movements in his limbs, neck and body. [This Court observed these movements during the offender's attendance at the hearing.] He was liable to blurt out words impulsively and without thought. He could give the impression of rudeness and use bad language.
14. In Professor Greenberg's view, the Crown Court's judgment upon the conflicting accounts of the complainant and the offender might have a material bearing upon an assessment of the contribution made by the offender's disorder to the commission of the offence. If the offender's account (that sexual activity was consensual until a few moments after penetration had occurred) was preferred the offender's mental health problems would have made a significant contribution to the offender's failure to cease intercourse when the complainant told him to stop. On the other hand, if the complainant's evidence was preferred, the nature and duration of the incident seemed to preclude lack of impulse control as the cause of the offence, although the offender's poor mental health might be viewed as mitigation.
15. It seemed to Professor Greenberg that the offender's disorder had not, so far, responded well to conventional mental health intervention. The offender had described a 'terrible' quality of life. He thought that the offender should be assessed by a neurologist or psychiatrist expert in Tourette's syndrome and should receive psychological counselling to help the offender 'come to terms' with the long term nature of his problems. The offender had a history of self harm. A custodial sentence would cause a deterioration of his mental health at least in the early stages of the sentence. Professor Greenberg was unable to recommend an order under the Mental Health Act. The offender did not suffer from a mental disorder of such a nature or degree that his detention in hospital for treatment was warranted.
16. Dr Bowers agreed with Professor Greenberg's diagnosis of the offender's disorder and also that residential treatment was not warranted. She had access to his medical records. He had received attention from the mental health services from a young age. The history fully supported the diagnosis. At one stage the offender had been prescribed an antipsychotic medication for his tics but had suffered an adverse reaction. The offender had been bullied at school because of his odd body jerks. Once, he had been chased into a field and had responded by removing his shorts to expose himself. He had got into trouble for sexual touching of other pupils at school. On one occasion he had squeezed a girl's nipples. Before the present offence he had become 'scared' of women and of sex. He was prescribed Sertraline for his depression and Quetiapine for anxiety. He had no previous convictions, warnings or cautions. He had after leaving school with three or four GCSEs attended a drama course and an art course. He had obtained work as a shelf-stacker but had not been in employment for 3-4 years. Following his self-report to the police the offender's mental health deteriorated and he needed a week as a voluntary inpatient at Orchard Adult Mental Health Hospital in Portsmouth.
17. The offender told Dr Bowers that the week before the Halloween party he had watched the film 'A Clockwork Orange' that in one scene depicted a male preparing for a sexual assault on a female. The offender had been 'obsessing' about the costume he would wear to the party. In Dr Bowers' opinion, a number of factors may have contributed to the offence. First was his obsessive objectification of women. Secondly, he was disinhibited by alcohol. Thirdly, he had poor impulse control. Dr Bowers also explored the victim's behaviour as recalled by the offender but her discussion is no longer relevant following the recorder's findings of fact.
18. Dr Bowers warned that a custodial sentence would result in a worsening of the offender's mental state. It was likely that the offender would self-harm or worse. A tranquilliser would be needed and his mental disorder would need to be managed. Dr Bowers agreed with Professor Greenberg that a multi-disciplinary approach was required: the offender's medication should be reviewed to reduce the offender's motor tics and specialist psychological counselling was required to focus on both obsessive behaviour and impulse control. In Dr Bowers' view the principal risk was for further sexual touching rather than rape. There had been no previous charge and no repetition of sexual offending. With appropriate treatment and abstinence from alcohol the chances of re-offending would be reduced although not altogether eliminated. It was a good sign that the offender wanted to engage in treatment.

Further reports at the sentence hearing

19. At the sentence hearing Mr Recorder Towler was provided with a report dated 19 October 2014 from Dr Julia McLeod, a registered clinical and forensic psychologist, in which she performed a risk assessment. She concluded that there was a moderate risk of further sexual offending. Although theoretically eligible for a sex offender treatment programme it was thought the offender would not be able to cope in view of the extent of his vulnerability. Dr McCleod agreed with Dr Bowers and Dr Greenberg that a custodial sentence would exacerbate the offender's condition.
20. In a letter of 10 September 2014 to the offender's general practitioner, Dr Jeremy Stern, a consultant neurologist at St George's Hospital, London with a special interest in Tourette's syndrome, also recommended a review of the offender's medication and referral for cognitive behavioural therapy. Dr Stern was prepared to see the offender as a NHS patient but was unaware of the forensic background. Dr Stroma Macfarlane became (recently following a period of leave) the offender's Community Consultant Psychiatrist employed by Solent NHS Trust. In a letter of 30 October 2014 she informed the Crown Court that Dr Stern had since confirmed that he could not be of further assistance. Dr Macfarlane could not identify a course of treatment in the community that would at the same time address the question of risk because the offender was unsuitable for a group work sex offender treatment programme. She did, however, express similar fears as to the ability of the offender to cope with a custodial sentence.
21. The recorder was provided with pre-sentence reports from Rebecca Yates dated 4 April 2014 and 28 October 2014. The first was overtaken by events. In her supplemental report Ms Yates confirmed her view that the offender presented a moderate risk for future sexual offending. The risk factors were poor impulse control, alcohol misuse, isolation, lack of support and, thus, emotional decline. Ms Yates recognised that it was highly unusual to be contemplating a non-custodial sentence in a case of rape especially when the victim had been required to re-live the offence at the Newton hearing. However, Ms Yates was aware of the unanimous view of the experts that the offender would struggle to cope in prison in which it was likely that his condition would be made worse rather than better. For this reason she had considered an alternative. The manager of the sex offender group work programme had confirmed that the offender was unsuitable for group work. There was no one-to-one programme available. However Ms Yates pointed out that, should the court be willing to impose a suspended sentence order with a supervision requirement, the offender manager would be in a position to prepare a sentence plan that co-ordinated mental health services, addressed the offender's risk factors and, in particular, tackled the offender's underlying attitudes as, in other circumstances, would have been the case in a sex offender's group work programme. The team was willing to provide the offender manager with support for this purpose.
22. In a victim impact statement GP said that she had been affected by the offence itself but had managed to put it behind her until required to make a statement to the police. The process brought the memory flooding back. She was now prone to panic attacks, particularly at night. She had difficulty making new friends and had a problem with trust. She had commenced a new relationship after the rape but in her opinion its breakdown was in part caused by the investigation. Her depression and anxiety had increased and she was receiving treatment. She had to give evidence in the Newton hearing and that experience had made matters worse.

Sentence

23. The recorder accepted that the offence should be placed in category 3B of the sexual offences guideline for rape offences. The starting point was 5 years and the range 4 to 7 years custody. The recorder referred to the impact of the offence on the complainant. He identified no specific aggravating factors as such but listed factors in mitigation as: the contribution made by the offender's mental disorder to the offence, his lack of maturity, and his self-report to the police. In his view the resulting sentence after a trial would have been in the order of 3 – 3 ½ years imprisonment. He would not be minded to afford any credit for the offender's plea of guilty since he had maintained an account that had not been accepted at the Newton hearing. However, the recorder accepted the submission of Mr Smyth, for the offender, that section 125(7) of the Coroners and Justice Act 2009 permitted him to depart from the sentencing guideline in order to deal with a mentally disordered offender in the manner that he thought fit in the circumstances.
24. The recorder recognized the risk, particularly of sexual touching, posed by the offender and identified the expert evidence that called for a multi-disciplinary approach to treatment of the offender's condition. He noted the absence of a suitable sex offender programme either in custody or in the community. However, the pre-sentence report had drawn attention to a package of sessions and treatment that could form part of a supervision requirement attached to a suspended sentence order. The recorder expressed the unanimity of view that custody would have a detrimental effect upon the offender's disorder. The recorder concluded (Transcript 31 October 2014, page 29E-G):

"I am left with the relatively stark choice of imposing a prison sentence of three to three and a half years, in accordance with the guideline, or of taking the view that this is not a guideline case and imposing a suspended sentence of imprisonment with a requirement of supervision. I recognize that it is almost inevitable in cases of rape that an immediate sentence of imprisonment will follow. I recognize the trauma that [GP] has undergone as a result of this offence, though, as I have noted, she is now keen to put the matter behind her and get on with her life. After anxious consideration I have come to the conclusion that this is one of those extremely exceptional cases in which I can disregard the guideline, and that is what I am going to do."

The arguments

25. Ms Ledward, on behalf of HM Attorney General, argues that the recorder was wrong in law to conclude that section 125(7) permitted him, by reason of the offender's mental disorder, to disregard the sentencing guideline. Section 125(1) permitted him to disapply the guideline only if it was in the interests of justice to do so. The recorder was correct to place the offence in category 3B and the Attorney General would not seek to criticize a sentence of 3 – 3 ½ years imprisonment even though it was lower than the offence range (see below, paragraph 27). There were aggravating features of the offence:

(i) the vulnerability of the victim, namely her health problems known to the offender;

(ii) the significant impact on the victim;

(iii) injury suffered (bleeding) in the course of the rape;

(iv) the location of the offence in the victim's own home;

(v) commission of the offence while under the influence of alcohol.

Mitigating factors comprised:

(i) lack of convictions;

(ii) self-report of the offence;

(iii) a guilty plea (subject to the Newton hearing);

(iv) The offender's mental disorder, though not linked to the offence itself.

26. Ms Ledward argued that the facts of the present case were not so wholly exceptional that it could be said that the interests of justice required a non-custodial sentence. To the extent that the offender would benefit from the package of measures proposed by Ms Yates, that package could be put in place after the offender had served the custodial part of his sentence and while he was on licence.
27. Mr Smyth, for the offender, maintained that this was the paradigm case for which the saving in section 125(7) was intended. If he was wrong about that, he submitted, the interests of justice test was met. The present circumstances were truly exceptional. The disabilities under which the offender laboured, the exceptional nature of the offender's feelings of remorse and guilt and his behaviour immediately after the offence demonstrated that the sentence was humane but not unduly lenient.

Section 125 of the Coroners and Justice Act 2009

28. Section 125 of the 2009 Act provides:

"Duties of the court

125 Sentencing guidelines: duty of court

(1) Every court—

(a) must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender's case, and

(b) must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function,

unless the court is satisfied that it would be contrary to the interests of justice to do so.

(2) Subsections (3) and (4) apply where—

(a) a court is deciding what sentence to impose on a person ("P") who is guilty of an offence, and

(b) sentencing guidelines have been issued in relation to that offence which are structured in the way described in section 121(2) to (5) ("the offence specific guidelines").

(3) The duty imposed on a court by subsection (1)(a) to follow any sentencing guidelines which are relevant to the offender's case includes—

(a) in all cases, a duty to impose on P, in accordance with the offence specific guidelines, a sentence which is within the offence range, and

(b) where the offence-specific guidelines describe categories of case in accordance with section 121(2), a duty to decide which of the categories most resembles P's case in order to identify the sentencing starting point in the offence range;

but nothing in this section imposes on the court a separate duty, in a case within paragraph (b), to impose a sentence which is within the category range.

(4) Subsection (3)(b) does not apply if the court is of the opinion that, for the purpose of identifying the sentence within the offence range which is the appropriate starting point, none of the categories sufficiently resembles P's case.

(5) Subsection (3)(a) is subject to—

(a) section 144 of the Criminal Justice Act 2003 (c. 44) (reduction in sentences for guilty pleas),

(b) sections 73 and 74 of the Serious Organised Crime and Police Act 2005 (c. 15) (assistance by defendants: reduction or review of sentence) and any other rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered to be given) by the offender to the prosecutor or investigator of an offence, and

(c) any rule of law as to the totality of sentences.

(6) The duty imposed by subsection (1) is subject to the following provisions—

(a) section 148(1) and (2) of the Criminal Justice Act 2003 (restrictions on imposing community sentences);

(b) section 152 of that Act (restrictions on imposing discretionary custodial sentences);

(c) section 153 of that Act (custodial sentence must be for shortest term commensurate with seriousness of offence);

(d) section 164(2) of that Act (fine must reflect seriousness of offence);

(e) section 269 of and Schedule 21 to that Act (determination of minimum term in relation to mandatory life sentence);

(f) section 51A of the Firearms Act 1968 (c. 27) (minimum sentence for certain offences under section 5 etc);

(g) sections 110(2) and 111(2) of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) (minimum sentences for certain drug trafficking and burglary offences);

(h) section 29(4) and (6) of the Violent Crime Reduction Act 2006 (c. 38) (minimum sentences for certain offences involving firearms).

(7) Nothing in this section or section 126 is to be taken as restricting any power (whether under the Mental Health Act 1983 (c. 20) or otherwise) which enables a court to deal with a mentally disordered offender in the manner it considers to be most appropriate in all the circumstances.

(8) In this section—

"mentally disordered", in relation to a person, means suffering from a mental disorder within the meaning of the Mental Health Act 1983;

"sentencing guidelines" means definitive sentencing guidelines."

29. Subsection (1) requires the court to follow the relevant sentencing guideline. It introduced a mandatory requirement and compares with the former obligation of the court to have regard to a relevant guideline under section 172 of the Criminal Justice Act 2003. The statutory exceptions are provided by the interests of justice test in subsection (1) and the savings made by subsection (6) (including that a custodial sentence must pass the threshold test provided by section 152 of the Criminal Justice Act 2003 and must be for the shortest period commensurate with the seriousness of the offence as required by section 153). Subsections (2), (3) and (4) apply to offence specific and category specific guidelines made in accordance with section 121. The sexual offences guideline is one such guideline. Section 125(3) requires the court to pass a sentence that is within the "offence range". The offence range for rape is 4 – 19 years (see page 9 of the guideline). Section 125(7) provides that nothing in section 125 shall restrict the "power" of the court under any enactment "to deal with a mentally disordered offender in the manner it considers to be most appropriate in all the circumstances".
30. It is argued on behalf of the Attorney General that the statutory purpose of subsection (7) was, notwithstanding the guideline, to preserve the court's power to sentence in a way that ensured the offender was provided with treatment for his mental disorder. Ms Ledward conceded that the subsection was not limited to powers to make orders under the Mental Health Act 1983. If it was so limited the words "whether" and "or otherwise" would not be present in the bracketed part of the subsection. She agreed that the addition of a requirement for outpatient treatment attached to a community order or suspended sentence order would constitute the exercise of a "power" contemplated by the subsection. She could not accept that the subsection was drawn in terms sufficiently wide to embrace a decision not to impose a custodial sentence upon a mentally disordered offender unless the court's order made provision for treatment in respect of that disorder. The subsection makes no reference to the general sentencing judgment or discretion of the court.
31. Mr Smyth argued that subsection (7) was limited neither expressly nor impliedly to an order for treatment. The words used were "to deal with" a mentally disordered offender in the "most appropriate" manner. Had the draftsman intended that the saving should apply only to orders for treatment one would expect to find express words to that effect (see, for example, subsections (5) and (6) that are explicit in their terms).
32. We recognise the force of Mr Smyth's submissions but we conclude that the purpose of subsection (7) is to deal with a particular statutory lacuna. There are no guidelines for dealing with mentally disordered offenders, although several of the guidelines (of which the rape guideline is one) refer to mental disorder as a mitigating factor, particularly when linked to the commission of the offence. The guidelines provide levels of sentencing both custodial and non-custodial (fine, community order, custody). They do not in their terms contemplate an order specifically designed to deal with a mentally disordered offender who requires treatment. In our view, section 125(7) simply expresses what would, arguably, be implicit, namely that the new requirement to follow a guideline is not intended to interfere with the court's continuing power to pass sentences designed to provide treatment for a mentally disordered offender. It was not, in our view, the intention of Parliament simply to abandon the guidelines in the cases of mentally disordered offenders. There are many mentally disordered offenders who have committed very serious offences and who are not susceptible to treatment. The guidelines apply to such offenders unless the court is contemplating, in an appropriate case, making an order designed to secure treatment for the offender, usually but not always in a residential setting and sometimes subject to a restriction under section 41 of the Mental Health Act 1983. There was no recommendation in the present case either for a MHA order or for a non-custodial sentence to which a requirement for medical treatment was attached and, in our view, section 125(1) applied.
33. We accept the submission made on behalf of the Attorney General that the rape guideline applied to this offender unless, in the interests of justice, it should have been disapplied.

Discussion

34. We have misgivings about the aggravating factors identified by Ms Ledward and the weight to be afforded to them. Both of these young people were vulnerable in different ways. The recorder found that neither of them had sexual activity in mind when they entered the bedroom. Such foresight that the offender had of the consequences of his actions was momentary. In our view, this observation applies equally to qualify the aggravating factors that the offence occurred in the victim's own home and under the influence of alcohol. In our view, it is not established to a satisfactory standard that the complainant suffered injury in the course of the rape, although we accept that the bleed into the bed sheet, whatever its cause, must have been alarming to the complainant. The recorder accepted that the complainant had suffered distress and a worsening of the symptoms of her anxiety and panic and so does this court.
35. In our judgment, contrary to the assertion made on behalf of the Attorney General, the offender's mental disorder did have a bearing upon the commission of the offence. The recorder made an express finding to that effect both in his ruling at the Newton hearing and in his sentencing remarks, and we conclude that he was entitled to make it. There were several contributory factors including the offender's thoughts about women, his regard for and physical proximity to the complainant, his consumption of alcohol and his poor impulse control. In part, these were common environmental factors; in part, they were a product of his disordered mental functioning. We accept, however, that the offender retained primary mental responsibility for his conduct.
36. The most significant of the factors that mitigated the offence was the offender's immediate and distraught reaction to his behaviour. No doubt this contributed to the complainant's decision to end the relationship of friendship but not to report the offence to the police. There is little doubt that the investigation would never have taken place but for the offender's inability to live with his guilt. It was his report to the police that brought the incident to the forefront of the complainant's mind and caused a renewal of her distress. The Newton hearing was required because the offender gave an account that conflicted with that of the complainant. However, the recorder accepted that the complainant had invited the offender to share her bed with him and concluded that his account of a consensual prelude may have been the result of alcohol consumption on the night of the rape, the lapse of time and the capacity of the mind to believe what it wanted to believe rather than an attempt by the offender to deceive the court. The recorder concluded that the offender should receive no credit at all for his plea of guilty. In our view that was a harsh conclusion in a case in which the act of non-consensual intercourse had been admitted from the outset. A discount of about 20% would, we consider, have been appropriate in the circumstances of this exceptional case.
37. What sets this case apart is the distress the offender himself suffers from unwelcome thoughts, his feelings of guilt and fear of catastrophe, and his almost inevitable mental deterioration if required to serve a sentence of imprisonment. In our view, as we understood Ms Ledward to concede, the recorder would have been justified in concluding that the interests of justice demanded a sentence outside the offence range. While a sentence of 2 years imprisonment (after 20% credit for his guilty plea) might be regarded as somewhat lenient we do not conclude that it is unduly lenient. Indeed, Ms Ledward conceded that it was the decision to suspend the sentence that was of prime concern to the Attorney General.
38. We acknowledge that the recorder was faced with an exceptionally sensitive and difficult sentencing decision. There is no statutory standard of exceptionality that must be reached before a court suspends a sentence of imprisonment. It is a matter for the court's judgment, usually determined by weighing up the seriousness of the offence, the offender's antecedents and his personal circumstances. However, for an offence as serious as rape, a suspended sentence order is, as the recorder acknowledged, almost unheard of. Here, the mentally disordered offender overbore the will of his victim and stopped only when the enormity of what he was doing came to him. He was immediately remorseful. Those factors that mitigated the offence and properly reflected personal mitigation were fully factored into the judgment of the appropriate length of the sentence. However, it would appear that the recorder adjusted the length of sentence from 3 years to 2 years solely to enable him to suspend the sentence. That was not the right approach. Only because, in our view, a sentence of 2 years imprisonment could be justified on the facts of the case do we consider that it is appropriate to examine the factors relevant to suspension.
39. Ms Yates was able to present to the recorder a means by which the risk presented by the offender could be challenged and managed in the community. The offender was living with his mother. He had family support. His offender manager could put together a package of requirements, including one-to-one sessions to address his distorted thinking about women, that would reduce his risk to the community. As Ms Ledward pointed out, this did nothing to address the public interest in punishment for the offence. While there might be a temporary deterioration in the offender's mental condition, the same package could be made available to the offender once he had served the custodial part of his sentence. On the contrary, Mr Smyth submitted that, having seen and heard the offender and the complainant, the recorder was entitled to take the course he did. It had the effect of reducing risk and preventing an inevitable collapse in the offender's condition.
40. In our judgment, there were grounds for suspending this sentence of imprisonment but it is doubtful whether they were adequate to justify suspension. This was, notwithstanding the mitigating factors, a serious sexual offence for which a custodial sentence was required. It seems to us that the offender himself was aware of the grave wrong he had done and was prepared for the consequences. However, events have moved on and we must consider whether it would be right now to require the offender to serve an immediate custodial sentence.

Post sentence events

41. The offender manager is Jennifer Humphray. She has prepared a report for this court dated 9 January 2015. We also have information from the offender's mother, with whom he has been living since his report to the police. Ms Humphray has read the reports and spoken to Dr Macfarlane. Ms Humphray has spent several hours with the offender since his sentence was passed. They meet weekly. He has kept every appointment except one when he was in a state of heightened anxiety following the decision of HM Attorney General to seek a review of his sentence. On that occasion they spoke by telephone. The offender has engaged fully with Ms Humphray in the development of a sentence plan. Ms Humphray has commenced intensive one-to-one sessions confronting the offending behaviour, for which she has the support of the sex offender programme team. In Ms Humphray's view, the offender remains sincerely remorseful. He is motivated and wishes to explore his behaviour. He expresses appropriate empathy for his victim and continues to experience feelings of guilt. Ms Humphray is aware of the imperfectly understood connection between the offender's mental disorder and the offence. She is co-ordinating mental health services. The offender's mental health treatment plan is being reviewed and Mrs Balogh has been informed that the mental health team will adopt a multi-faceted approach to the offender's disability. He will be seen at outpatients at intervals of 2 – 3 months and his care co-ordinator and support worker will see him monthly.
42. In her conversations with the offender he has acknowledged feelings of sexual arousal and does not wish to experience simultaneous feelings of power or control. In Ms Humphray's view the fact that the offence of rape was isolated provides an indication of an ability to 'self-manage' such feelings. There has been no repetition of lack of impulse control. The MAPP team met in November. Ms Humphray is ensuring a joined up approach to the offender's management, including the involvement of the offender's consultant psychiatrist. Ms Humphray would deal in sessions with each of the factors implicated in the offence. The offender has already taken steps to avoid environments in which risk may arise.
43. In Ms Humphray's view a custodial sentence imposed now would undoubtedly increase anxiety, leading to thoughts of self harm and suicide. If he were to be admitted to prison Ms Humphray would strongly recommend that the offender be held in a health care wing. She confirms that if the court were to order the offender to serve a custodial sentence she would remain the offender manager and their sessions would recommence on his release. If the Court wished to impose further restrictions on the offender it could achieve that by imposing a curfew requirement although the evidence is that the offender seldom leaves the house.

Conclusion

44. It is some 12 weeks since sentence was passed. The offender has made a fully committed start to the suspended sentence order. It seems to this court that a rupture of current arrangements could only make more certain serious deterioration in the offender's condition and put at risk a successful outcome on his release from custody. We accept the opinion of Ms Humphray that the offender has proved himself to be highly and genuinely motivated to make progress. This is, we conclude, the best possible means of reducing risk further.
45. We conclude that the sentence imposed, at the time it was passed, was unduly lenient; accordingly, we grant HM Attorney General leave. However, we do not consider it is in the public interest that the sentence should now be disturbed and we shall take no action.