2017/01304/C5 & 2017/01305/C5
Neutral Citation Number: [2018] EWCA Crim 462 

IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Friday  9th  March  2018

B e f o r e:
LORD  JUSTICE  SINGH

MRS  JUSTICE  LANG  DBE

and

SIR  PETER  OPENSHAW

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R E G I N A
 
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OSMAN  SHEARS-KARGBO

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Non-Counsel Application

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J U D G M E N T
Friday  9th  March  2018

LORD JUSTICE SINGH:  I shall ask Mrs Justice Lang to give the judgment of the court.

MRS JUSTICE LANG:
1.  The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences, and so nothing should be published which may lead to the identification of the complainants.

2.  On 23rd February 2017, in the Crown at Woolwich, the applicant was convicted of three offences of rape under section 1 of the Sexual Offences Act 2003.  He was sentenced on 24th February 2017.  The offence on count 1 was that he raped "B", a child under the age of 13 years, on 29th March 2011.  An extended sentence of nine years, comprising a custodial term of eight years and an extended licence period of one year, pursuant to section 236A of the Criminal Justice Act 2003, was imposed.  The offence on count 3 was that he raped "S" on 13th December 2014 by the penetration of her vagina with his penis.  A sentence of seven years' imprisonment was imposed, to run consecutively to the sentence on count 1.  The offence on count 4 was that he raped "S" on the same day by the penetration of her mouth with his penis.  A sentence of seven years' imprisonment was imposed, to run concurrently with the sentence on count 3.

3.  The applicant renews his applications for leave to appeal against both conviction and sentence, following refusal by the single judge.  

4.  The first ground of appeal against conviction was that the judge erred in not severing the indictment as there were two separate complainants; the circumstances of the offences were different; and the offences were committed at different times.

5.  We do not consider that this ground is arguable.  The judge considered the competing submissions and concluded that it was not appropriate to sever the indictment because of the link between the two complaints.  The defence case in relation to count 1 was that B was pressured to make her allegation by the applicant's sister who had knowledge of the complaint made by S.  This was a matter for the judge's discretion and he exercised it reasonably.  Any prejudice to the applicant arising from both complaints being heard together was addressed by the judge's directions on cross-admissibility.

6.  The second ground of appeal was that the judge erred in not discharging the jury when the day after empanelment one juror asked to be discharged because he had belatedly realised that he had met the applicant at a party and he was concerned about meeting him again in the future.  

7.  In our view, the judge was entitled in the exercise of his discretion to decide to discharge that single juror and not the whole jury.  The judge accepted the juror's account that he had not spoken to any other member of the jury about the case.  A factor against discharge was that complainant B had already given evidence and would have to undergo that experience again if a new jury was empanelled.  We consider this ground to be unarguable.

8.  The third ground of appeal was that the judge erred in failing to correct prosecuting counsel's assertion in his final speech that the applicant had provided his account for the first time in evidence, which misled the jury in relation to a crucial aspect of the case.  Defence counsel objected on the ground that the applicant's account had been set out in his Defence Statement prior to him giving evidence.

9.  In our judgment, the judge was entitled to take the view that this was a side issue which did not require re-visiting at that stage, and that he would address the limits on the use to be made of the applicant's silence when interviewed in his summing-up.  It was not in dispute that the applicant gave evidence about matters at trial which he had not mentioned in his police interviews.  In his summing-up the judge rightly directed the jury on how they should approach this failure.  We do not consider that the prosecution speech gives rise to any concern about the safety of the conviction.

10.  The grounds of appeal against sentence were that the sentence was manifestly excessive and that the judge failed to apply the principle of totality so as to ensure that the sentence was just and proportionate.  There was no challenge to the finding of dangerousness, nor to the extended sentence.

11. The judge correctly applied the sentencing guidelines – 3B in the case of the complainant B, and 3A in the case of the complainant S – and sentenced within the appropriate range.  These were serious offences against a child of 11 years and a vulnerable adult respectively.  It was appropriate to pass consecutive sentences in respect of different complainants.  The judge expressly had regard to totality and said that the sentences he passed in relation to each complainant were shorter than they would have been if he had been sentencing the applicant for the rape of either individual complainant alone. 

12.  In our view, the sentences were neither wrong in principle, nor manifestly excessive.

13.  For the reasons we have given, the renewed applications for leave to appeal against both conviction and sentence are refused.