No. 2006/06261/A4
Neutral Citation Number: [2007] EWCA Crim 1454
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Tuesday  22  May  2007

B e f o r e:

LORD  JUSTICE  LAWS

MRS  JUSTICE  COX  DBE

and

HIS  HONOUR  JUDGE  LORAINE-SMITH
(Sitting as a Judge of the Court of Appeal Criminal Division)

- - - - - - -
R E G I N A

- v -

MARTIN  SAMUEL  WALSH

- - - - - - -

Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
190 Fleet Street, London EC4
Telephone 020-7421 4040
(Official Shorthand Writers to the Court)
- - - - - - -

MRS R S SCOTT-BELL appeared on behalf of THE APPELLANT

MR D MACFAUL appeared on behalf of THE CROWN

- - - - - - -
J U D G M E N T

LORD JUSTICE LAWS:  I will ask Mrs Justice Cox to give the judgment of the court.

MRS JUSTICE COX:
1.  On 22 September 2006, at the Durham Crown Court, the appellant, who is now 20 years of age, pleaded guilty to four offences, namely, two counts of rape, one count of assault by penetration, and one count of attempting to choke, suffocate or strangle with intent.  On 17 November 2006, he was sentenced to life imprisonment pursuant to section 225 of the Criminal Justice Act 2003, with a minimum term of six years specified (less the 127 days spent in custody on remand), concurrent on each count.  Since he was aged 19 at the date of conviction the sentence should therefore have been expressed as one of detention for life under section 226.  He now appeals against both the life sentence and the minimum term imposed, by leave of the single judge.

2.  The relevant facts are these.  At around 7.30pm on 11 July 2006 the victim (then 21 years old) was walking her two dogs through a park and woodland area in Broom Hill, Stanley, County Durham.  As she came to a junction of two footpaths the appellant suddenly lunged at her.  He put his right arm over her mouth and his left arm around her and said, "Shut up or I will kill you".  He ordered her to let go of her dogs, saying that he had a knife and would kill her.  He then pushed her down a steep embankment, where she lost her footing and fell.  The appellant pushed her into an area of dense woodland and there then followed a prolonged and violent attack upon her.  He told her to take off her trousers but she refused, at which point he pulled down her tracksuit bottoms to her ankles and pushed her onto the ground.  He pulled down her knickers.  He had his own trousers down and he climbed on top of her, telling her to open her legs.  However, he then grabbed her by her bra and pulled her to her feet, pushing her further into the wooded area.  Her tracksuit bottoms had by that time come off completely and she was told to remove her knickers.  Again she was pushed to the ground and the appellant climbed on top of her.  He kissed her and forced his tongue into her mouth.  He repeatedly told her to tell him that she loved him.  When she said no, he head-butted her on the bridge of her nose.  He then forced his penis into her vagina and told her again that he knew how to kill someone by pressing on their throat.  She begged him not to kill her.  

3.  Following the vaginal rape, during which no protection was used, the appellant took the victim further into the woods whilst pulling her upper clothing up to her neck.  Again he pushed her to the ground.  He began to masturbate himself and forced his fingers into her vagina, causing her severe pain.  The appellant then forced the victim to take his penis into her mouth and perform oral sex upon him.  She was instructed to get on all fours.  As she did so, her keys fell out of her pocket.  The appellant asked her if it was a mobile phone which had fallen.  She said it was not, at which point the appellant hit her on the back of the head and pulled her head around, twisting her neck.  She was convinced at this point that he was attempting to break her neck and trying to kill her.  She was punched in the stomach, but at that point managed to fight back.  She managed to move herself into a position on top of the appellant, hit him with the keys that had dropped from her pocket and kicked him in the groin area.  A struggle ensued.  At one point the appellant's mobile phone rang and the call was connected to his girlfriend who heard the appellant saying that he was going to break the victim's neck.

4.  Eventually, the victim managed to escape.  She fled to a nearby area where there was a group of children.  She was extremely distressed and naked from the waist down.  The children covered her up with their coats and called the police.  Two of the boys went searching for her assailant.  The appellant was subsequently stopped by members of the public and made to await the arrival of the police.

5.  The assault had lasted for approximately 40-60 minutes.  The victim suffered cuts and bruises all over her body.  Of far greater significance in this case, however, are the psychological injuries she sustained.  She had described the extremely serious effects of this attack upon her in a statement.  Since the incident she had lived every moment of every day in fear.  She did not go out unless it was unavoidable.  She continued to suffer from panic attacks and to have horrendous nightmares.  She regarded what had happened to her as utterly devastating and as having ruined her life.

6.  In interview following his arrest, the appellant initially denied the offences.  On the following day he was positively identified by the victim.  In a further interview he admitted attacking her and masturbating, but claimed that otherwise he had not been able to achieve an erection.  However, he indicated at an early stage that he would plead guilty and he entered his pleas at the earliest opportunity.

7.  He had one previous conviction for common assault, for which he received an 18 month community order in July 2006.  In addition, between June 2005 and April 2006 he had been given three police cautions for criminal damage, the attempted taking of indecent photographs of children, shoplifting and assault with intent to resist arrest.

8.  In passing sentence, after setting out the facts, the judge stated that he regarded the appellant as extremely dangerous -- a view which was shared by the authors of the pre-sentence and psychiatric reports.  It was clear that he posed a significant risk to the public, particularly females.  The judge considered that he qualified for a life sentence.  In fixing a life sentence, account was taken of the following: 

	(1) the nature and circumstances of the offences, aggravated as they were by extreme, gratuitous violence throughout the ordeal; the repeated nature and variety of the sexual assaults and what he said to the police;

	(2) the grossly disturbed behaviour which he had previously demonstrated as described in the statement of his adopted mother, which was violent, sexualized and unpredictable;

	(3) the psychiatric report which indicated that he had had a severely disrupted and damaging set of childhood experiences which were likely to have been premonitions of forthcoming serious sexual violence, that he had high levels of covert anger and presented as very dangerous;

	(4) the probation report and in particular the risk assessment.

Had a life sentence not been imposed, and bearing in mind that he was entitled to a discount for his guilty pleas, the judge said that the determinate sentence which he would have imposed was one of twelve years.  He would have been entitled to release at the half-way point of that sentence so that the minimum term of detention was expressed as six years, with the days in custody on remand being deducted.

9.  On the appellant's behalf Mrs Scott-Bell submits that this appellant had pleaded guilty at the earliest opportunity and was therefore entitled to full credit.  It was accepted that on the basis of all the material before the court there was a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences under section 225 of the Act.  Nevertheless, she submits firstly that the offence of rape was not such as to justify detention for life; this was not the most serious case of its kind, dreadful as it was, and there were no long-lasting physical injuries to the victim.  This was, in reality, one offence of "stranger rape", notwithstanding that there were four counts on the indictment.  The appellant had not manifested perverted or psychopathic tendencies or any gross personality disorder.  There was no evidence to support the notion that he would remain a risk to women for an indefinite time.

10.  In our judgment, however, there was ample evidence before the judge to enable him to conclude that a life sentence was appropriate in this case.  He clearly weighed the evidence before him most carefully.  The author of the pre-sentence report referred to the appellant's inappropriate sexualized behaviour and aggression towards both his adoptive mother and towards others, and to his caution for attempting to download indecent images depicting acts of rape.  The author of the report considered a risk and needs analysis having regard to his age, offence history and background, and indicated that the appellant "poses a very high risk of further sexual offending" and that he would "pose a significant risk of causing serious physical and psychological harm to victims should he commit further offences of this type".  In his psychiatric report Dr Resnick discounted any mental disorder that required hospital treatment and referred to the history of inappropriate, abnormal, sexualized behaviour and to risk factors indicating a high probability of sexual and aggressive offending.  Dr Resnick described him as "very dangerous".  

11.  In this case the victim was subjected to a prolonged and brutal sexual attack by a stranger, during which the appellant threatened more than once to kill her and referred to knowing how to kill somebody.  Whilst it is fortunate that no serious physical injuries were caused, this victim has undoubtedly suffered severe and prolonged psychological effects.  The facts surrounding the attack and the information about this appellant contained in the reports before the court entitled the judge in our view to pass a life sentence in this case.

12.  Mrs Scott-Bell next submits that the minimum term imposed was manifestly excessive.  Given that there was repeated rape in the course of one attack, the appropriate starting point was eight years: see R v Millberry [2003] 1 Cr App R(S) 396.  Whilst it is correct that that figure may be increased due to the level of violence used, it should be reduced in this case significantly due to the appellant's young age.  He was just 19, had never received a custodial sentence before and had only one previous conviction.  There was in the reports a great deal of mitigation relating to his disturbed background.  He had also pleaded guilty at the earliest opportunity.

13.  There is in our judgment some force in these submissions.  To fix a notional determinate sentence of twelve years, it would appear that the judge had arrived at a sentence of 18 years before reducing it by one-third to reflect the early guilty plea.  This, we agree, was manifestly excessive in the circumstances.  We accept that these offences, which all took place within a time-span of approximately 40 minutes, did not fall within the category of a campaign of rape involving multiple victims or repeated rape of the same victim over a course of time, for which the guideline starting point is stated as 15 years.

14.  However, as this court has often observed, the guideline starting points for offences of this kind are guidelines only and starting points only.  Judges will always be required, whilst having regard to the guidelines, to approach each case having regard to its particular facts in determining the appropriate sentence. 

15.  This case was in our view a truly horrific case of its kind, with a number of very serious aggravating features.  The offences involved a prolonged and particularly brutal attack upon a stranger who was subjected throughout, in addition to the sexual assaults, to acts of violence, degradation and humiliation, and to threats to kill, which the victim genuinely believed would be carried out.  Further, no protection was used during the vaginal rape.  The psychological impact of what happened upon her has been serious and long-lasting.  In our judgment, and notwithstanding the appellant's young age, these aggravating features warranted an initial sentence in the region of 13 years before the deduction for the early guilty pleas for the appropriate notional determinate sentence which, when halved, would in our judgment arrive at a term of four-and-a-half years' detention, from which the days spent in custody on remand must be deducted.  

16.  To that extent only and for these reasons we allow this appeal.
	____________________________________