R v JIMMI DYER (2016)

The appellant (D) appealed against a sentence of eight years’ imprisonment imposed following his guilty plea to rape.

D was 56 years old. When aged 28 he had raped the victim as she walked home during the early hours of the morning. Seizing her from behind by putting his arm around her neck, he had taken her into a driveway, had punched her stomach several times and had forced her to perform oral sex on him before raping her vaginally. D had then told the victim not to say anything. Semen had been found on intimate swabs taken from the victim, but DNA profiling had not developed at the time and D, who had previous convictions for sexual offences including indecent exposure with intent to assault a female, had escaped detection. In 2014, after reconsideration of the case, a DNA profile matching D’s was obtained from the original sample and he was arrested. D, who had since been convicted of a further rape and other sexual offences, admitted his guilt in interview. The sentencing judge initially categorised the offence as one falling within harm category 2B of the sentencing guidelines before elevating it to harm category 1B as a result of the number of category 2 factors involved, which included the fact that there had been a degree of abduction by D forcibly dragging the victim into the garden and the fact that there had been additional degradation. Accordingly, the judge took a starting point of 12 years.

D submitted that the judge had fallen into error in regarding the sentencing guidelines as tramlines and had erroneously placed the offence into category harm category 1B. He argued that it was a harm category 3B case with some aggravating features and that his prior convictions for indecent exposure should be ignored.

HELD: The instant offence was a serious offence of rape. The fact that the victim had been raped twice during the same incident was a particularly serious aggravating feature and, under modern law, would result in two counts on the indictment. It had been entirely legitimate for the judge to give effect to that fact by invoking the additional degradation factor in the sentencing guidelines. Abduction was not a matter of distance and the judge had been entitled to view that harm category 2 feature as present. The observation that the sentencing guidelines were not tramlines operated in both directions; they had to be followed but judges had to stand back and look at the overall sentence. As a result, the judge had been entitled to place the offence in harm category 1B and to select a sentence based on a starting point of 12 years. D’s previous convictions for indecent exposure should not be ignored. They were not offences of misfortune; his compulsion to expose himself to women was a very strong sexual impulse which had led him to commit rape. Where offences had been committed after the offence for which an offender was being sentenced and he had served sentences for those later offences, they operated neither as an aggravating nor a mitigating feature. The instant offence had caused lifelong harm to the victim and the sentence imposed had been justified.

Appeal dismissed

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