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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 >> Sienkiewicz, R v [2016] EWCA Crim 2117 (9 November 2016) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2016/2117.html Cite as: [2016] EWCA Crim 2117

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Wednesday, 9th November 2016

1. MR JUSTICE HOLROYDE: Daniel Sienkiewicz and Lukasz Sienkiewicz appeal by leave of the single judge against long custodial sentences imposed on them on 15th June 2016, in the Crown Court at Leeds, for offences of rape which they had committed in September and October 2015.
2. The appellants are cousins. They share a surname. For that reason we will refer to them by their forenames. Daniel, born 31st January 1999, is now 17 years old. He was 16 at the time of the offences. His total sentence was one of 11 years 3 months' detention, under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. Lukasz, born 4th May 1998, is now aged 18. He was 17 at the time of the offences. His total sentence was 14 years' detention in a young offender institution.
3. The provisions of section 45 of the Youth Justice and Criminal Evidence Act 1999 are engaged in Daniel's case because of his age. However, at the sentencing hearing the reporting restriction which had been imposed pursuant to that section was removed. The sentencing judge, His Honour Judge Bayliss QC, took the view that the offending was so serious that the public should know the offender's name. Mr Frieze, who appeared for Daniel on that occasion as he has done before us, realistically did not seek to argue to the contrary. We see no reason to adopt a different course. Accordingly, both appellants may be named in any report of these proceedings.
4. The position is very different for the victims of the offences. The provisions of the Sexual Offences (Amendment) Act 1992 apply here. Pursuant to those provisions, no matter relating to either of the victims of the offences shall during her lifetime be included in any publication if it is likely to lead to her identification by members of the public as the victim of that offence. This prohibition will continue unless waived or lifted in accordance with section 3 of the 1992 Act.
5. We turn to a brief summary of the facts of the offences. On 13th October 2015 the appellants travelled together to the red light district of Huddersfield. They approached a sex worker, CM, and offered her £30 for oral sexual intercourse. She indicated a place where they could go, but the appellants wished to go to a more remote area. They did so. The appellant, Lukasz, gave her £15, telling her she would get the rest afterwards. CM then gave Daniel oral sexual intercourse. He wore a condom. Lukasz then asked her to have sex with him, but she said she needed to be paid her money first. The appellants did not pay. CM therefore tried to leave, but she was held by her hair and told that she had to do whatever they said. She repeatedly told them to stop but was told to "shut the fuck up" and not to scream. Lukasz, not wearing a condom, then vaginally raped her. Daniel watched whilst this was happening. Daniel, also not using a condom, then raped CM whilst Lukasz watched. The incident ended when there was a noise which suggested that someone might be coming and the victim was able to get away from the scene. When found by workers who assist sex workers in that area, she was physically shaking, crying and upset. The matter was reported to the police.
6. About 6 weeks later, in late November 2015, the appellants returned to the red light district intending to commit further similar offences. They approached a second sex worker, JK, again under the pretence of arranging to pay her for oral sex. JK took them to her usual place of business, but the appellants again said they wanted to go somewhere else. They said they wanted to go to a field: there being no fields nearby, JK took them to an area between two buildings on an industrial estate.
7. Lukasz then took hold of JK and threw her against a wall. She tried to placate the two appellants. Lukasz told her not to "piss him off" and to get on the floor. He then raped her both orally and vaginally. Lukasz then told her to bend over so that Daniel could have intercourse with her. The complainant took out a condom but Lukasz took it off her and threw it away. Lukasz then penetrated her vagina again and ejaculated inside her. Daniel then forced his penis into her mouth, masturbating himself, but it appears he did not ejaculate.
8. The complainant describes herself as being able to think only of whether she would ever get home. She wondered if they would beat her, kill her or set her on fire. She described the attack as "horrifying". When the appellants left she, with great courage, followed them discreetly and tried to identify the car which they were using. She then called the emergency services and the police attended.
9. The victim personal statements before the court showed that these offences had had a profound effect on each of the victims. CM said that she had experienced incidents previously in the course of her work, but this had been the worst experience of her life. She had been terrified and thought she would die. She now struggles to cope and to carry on day by day and feels suicidal. She described herself as "barely existing".
10. JK repeated that she had been in fear of her life. She too now struggles with anxiety and depression. She experiences flashbacks which interrupt her sleep several times each night and she has lost all her former self confidence.
11. The appellants were arrested in early December 2015. When interviewed by the police they both denied the offences. They entered "not guilty" pleas when they were arraigned in the Crown Court. Each of them served a defence statement in which he alleged that the case against them had been fabricated by the complainants because they had not been paid for their sexual services. In May 2016 however, about a week before the date set for their trial, Daniel pleaded guilty to the vaginal rape of CM and the oral rape of JK, and Lukasz pleaded guilty to the vaginal rape of CM and both vaginal and oral rape of JK.
12. Neither appellant has any previous conviction. Pre-sentence reports showed that they had both received conventional educations and appeared to have been conscientious students. Since leaving school and college, each has had some experience of paid employment. Daniel gave an account of the offences which minimised their seriousness, suggesting in effect that he thought that he had only been guilty of making off without payment. The author of the report assessed Daniel as a high risk of re-offending and high risk of harm but noted that while remanded in custody Daniel had showed himself willing to engage in support which would be likely to reduce the future risk.
13. Lukasz, for his part, told the author of his pre-sentence report – implausibly - that he could not remember any of the details of the offences. He was assessed as having distorted attitudes to the use of violence and intimidation. There was a high risk of sexual re-offending in his case, but the author of the report did not suggest that Lukasz was a dangerous offender, because he felt that the inevitable long custodial sentence would allow time for Lukasz to mature and to address his sexual offending.
14. The learned judge concluded that there was no reason to think that either defendant was either more or less mature than would normally be expected of their chronological ages. He indicated he would pass concurrent sentences reflecting the overall seriousness of the offending. He indicated that his approach would be to assess the appropriate starting point for sentence in the case of an adult and then take into account the appellant's ages by reducing that notional adult sentence by one-third in the case of Daniel and one quarter in the case of Lukasz.
15. Applying the Sentencing Council's Definitive Guideline on sexual offences the judge regarded each of the offences of rape as falling within harm category 1, because of the severe psychological harm caused to the victims, each of whom was particularly vulnerable by reason of her personal circumstances as a sex worker. Although the evidence showed that Lukasz had been the instigator and, certainly on the second occasion, had played a more dominant role than Daniel, the judge regarded both appellants as having a high degree of culpability because they had acted together and with a significant degree of planning. He therefore had regard to category 1A in the Sentencing Guidelines, which indicates a starting point for each of these offences of 15 years' custody and a sentencing range of 13 to 19 years. But the judge noted there had been aggravating features, namely the deliberate targeting of sex workers because they were vulnerable, and the location and timing of the offences. In addition, he noted that it was necessary to keep well in mind that the offences were committed on two separate occasions, against two different victims. In principle, they could have been dealt with by consecutive sentences. In those circumstances the judge concluded that the starting point must exceed the range set out in the Sentencing Guideline category 1A.
16. The judge considered dangerousness, but was satisfied that it was not necessary to impose a life sentence or an extended sentence on either appellant. He was satisfied that Lukasz was the dominant participant. Had he been a mature adult, the starting point in Lukasz's case would have been 22 years' imprisonment. The judge reduced that by one quarter to reflect the appellant's age and then further reduced it by something over 15% to give credit for the late guilty pleas. Having regard to the aggravating and mitigating features the sentence passed on Lukasz for each of his three offences concurrently was therefore one of 14 years' detention in a young offender institution.
17. In relation to Daniel, the judge was satisfied that it was necessary to pass a sentence of detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. Recognising the slightly lower level of culpability in his case, the judge concluded that the starting point for an adult would have been 20 years' custody. He reduced that by one-third because of Daniel's age at the time of the offences and again reduced by something in excess of 15% to reflect the late guilty pleas. The sentence passed for each of Daniel's two offences of rape was 11 years and 3 months' detention.
18. In addition to the custodial sentences, sexual harm prevention orders were made and the normal consequences applied in relation to the reporting obligations and safeguarding.
19. In their written and oral grounds of appeal, for which we are grateful, neither Mr Frieze, for Daniel, nor Ms Ahmed for Lukasz, takes issues with the judge's approach. They accept that there is no basis for challenging the judge's decisions as to the extent to which the appropriate adult sentences should be reduced to reflect the different ages of the appellants. They submit, however, that the starting point in each case was much too high and that as a result each of these sentences was manifestly excessive in length.
20. Serious though the offences clearly were, counsel submit that they fell short of the most serious examples of rape. They particularly challenge the judge's decision that the overall starting point should exceed the category 1 sentencing range, which as we have noted extends at its highest to 19 years' custody. They point out that in the Sentencing Guideline the following words appear:

"... offences may be of such severity, for example involving a campaign of rape, that sentences of 20 years and above may be appropriate."

22. Without in any way seeking to diminish the seriousness of the offending, counsel argue that these offences did not reach that category of gravity.
23. Mr Frieze suggests that the judge may have given undue weight to the psychological harm caused. He does not of course seek to diminish that harm in any way. But he points out that the general level of sentencing in rape cases already takes account of the trauma inevitably associated with such offences and that the category 2 level of harm already takes into account "severe" psychological harm.
24. The further submission was made in writing that in Daniel's case the judge did not adequately reflect his lesser role and culpability by taking a starting point which was only 2 years less than that of Lukasz.
25. The overall submission of both counsel is that these offences could properly have been dealt with by sentences falling within the category 1A range. Both counsel acknowledge that although the sentencing might properly have started in category 2A, the combination of features to which we have briefly referred and which the learned judge identified would properly take the case into the category 1A sentencing range. But beyond that, they submit, it was neither necessary nor appropriate for the learned judge to go.
26. We have considered these submissions anxiously. These are young offenders and they are very long sentences for young men of their respective ages. They were, however, guilty of very serious offences which had caused severe and lasting harm to both their victims. Young though they were, the evidence makes it abundantly clear they knew what they were doing. In our judgment, the fact that they planned and carried out a second visit to the red light district in order to commit further offences against the second vulnerable victim does add very substantially to the overall gravity of their offending.
27. We have given anxious consideration to the learned judge's approach as set out in his comprehensive and careful sentencing remarks. It is, in our view, impossible to find fault either with the approach he took or with the conclusions which he reached. These were stiff sentences for young men but we are unable to say that they were manifestly excessive in either case. In the result, notwithstanding the submissions of counsel, each of these appeals fails and is dismissed.