On 24th June 2002 in the Crown Court at Southwark before His Honour Judge Wadsworth QC and a jury, this appellant faced: Common Law Case Study, UCD, Ireland

• On 24th June 2002 in the Crown Court at Southwark before His Honour Judge Wadsworth QC and a jury, this appellant faced a nine-count indictment. Counts 1, 3, 5 and 6 alleged rape. Count 7 alleged attempted rape. Counts 2 and 4 alleged indecent assault as alternative counts to the rapes alleged in counts 1 and 3 respectively and were based on the inability of the victim, because of her age, to give consent in law. The victim in each of these counts was the same young woman, D. Counts 8 and 9 alleged living on the earnings of prostitution, the prostitution of the same young woman.
• Verdicts of not guilty were directed on count 6, which was an allegation of anal sex, and count 7. The jury acquitted the appellant on counts 1 and 3. They found him guilty on counts 2, 4, 5, 8 and 9. On count 5 the appellant was sentenced to seven years imprisonment; on counts 2 and 4, 18 months imprisonment to run concurrently; on counts 8 and 9, three years imprisonment to run concurrently among themselves, but consecutive to the remaining sentence. The total sentence, therefore, was ten years imprisonment, and a recommendation was made for deportation.
• A co-accused Edmund Ethemi, pleaded guilty to count 9, living on the earnings of prostitution. On 22nd November, on a severed indictment, while he was convicted of possessing a class A controlled drug, cocaine, with intent to supply, the present appellant was acquitted. Semi was sentenced to a total of six and a half years imprisonment and also recommended for deportation.
• This appeal against conviction is brought with the leave of the single judge.
• The main ground of appeal is an alleged inconsistency in the jury’s verdict arising from the acquittal of rape on counts 1 and 3 and the conviction on counts 5. A further ground related to the admissibility of evidence relating to £30,000 found in the flat which the appellant shared with his co-accused. We shall return to that later in the judgment.
• The complainant in this case was born in Romania, according to her birth certificate, on 20th August 1985. In the context of the issues which we have considered that dating is important. She left Romania in 2000 but was soon introduced into prostitution. She worked as a prostitute in Yugoslavia and Italy. She claimed that the appellant had bought her, provided her with false Italian documents and paid her passage to England where she arrived at the beginning of July 2001 when she was still 15 years old.
• In England, for a time she shared a room with the appellant in the co-accused’s flat. The co-accused was living there with his wife, Valbonne, otherwise known as Anna Maria, who also worked as a prostitute. Later they shared a flat alone.
• The appellant encouraged the complainant to work as a prostitute in a variety of brothels. She said that she had no option but to obey. She was the last working as a prostitute at the end of September, when, with the assistance of another woman who contacted the police, she escaped from the situation in which she had found herself.

• The essential case for the prosecution was that the appellant was living on the earnings made by the complainant as a prostitute, but also, and separately, that the appellant had had sexual relations with her against her wishes both before and after her sixteenth birthday.
• There were two particular complications to the evidence, the first arising from such evidence as there was about her precise age, which the judge left to the jury to decide, and, the second, her own perception of the meaning of rape. This is perhaps best encapsulated in her evidence:
• “I had sex with him because I felt I had to. He never took my clothes or hit me before sex and he never raped me. I had sex because, if I said no, he would get angry and start swearing and shouting. I know what rape is and he never raped me.”
• She said to the jury that she had had sex with the appellant because of his conduct and language. She said that he became angry and started shouting and swearing, but the appellant had not raped her as she understood it. She believed that rape meant sexual intercourse involving violence.
• When she was recalled later in her evidence she stated that she had not mentioned rape in her application for asylum because she believed there had been no rape. She said,

“He had sex without my consent many times but not by force.”

•  When he came to sum the case up to the jury Judge Wadsworth QC directed them that, although the complainant had said on a number of occasions that she was not raped, she was:

“… defining rape as sexual intercourse procured by force.”

• He directed the jury that Parliament had defined rape more widely. The test was not whether the man used or threatened force, but whether or not the woman in fact consented. The judge distinguished between submission and domination and consent.
• It is fair to say at the outset that, when interviewed by the police, the appellant denied all the offences alleged against him. When it came to trial he did not give evidence. The evidence of the complainant was, therefore, decisive, so far as the jury was concerned, on two questions: whether the jury was satisfied that it was proved that she had not consented and whether it was proved to the jury’s satisfaction that on the evidence available to it the appellant knew or was reckless whether she had consented or not.
• The submission was made that, if the jury could not be satisfied by her evidence that she did not consent during the period covered by counts 1, that is to say 1st July 2001 to 1st August, and count 3, 31st July 2001 to 1st September, it was illogical for the jury to be satisfied that she did not consent and that he knew or was reckless whether she consented during the period covered by count 5, 31st August 2001 to 3rd October 2001.
• The longer we have studied the transcript of the evidence the clearer it has become that the jury’s decision was, on examination, entirely logical. In essence, it came to this. Prior to September the jury was rightly prepared to give the benefit of doubt to the appellant and to give the benefit of the doubt so as to allow for some margin between incidents which happened or were said to have happened, immediately after the birthday on 20th August. That meant they would not convict of incidents in July and August.
• If, however, and it was a matter for the jury, the complainant’s evidence about the discernible change in his attitude and behaviour was correct, then it was entitled to conclude that in relation to September, whatever benefit of the doubt there may have been in relation to August, there was no longer any benefit of the doubt to be given to the appellant. That seems to us not to provide an inconsistency at all. It rather reflects what we believe was an extremely cautious and meticulous approach to the evidence by the jury rightly giving separate consideration, as they had been directed by the judge, to each count before them. The verdicts which were returned were logically supported by and consistent with the evidence of the complainant.
• For these reasons, the appeal against conviction is dismissed.

• LORD JUSTICE JUDGE: The single judge referred the application for leave to appeal against the sentence to the Full Court. We have heard Miss Gillard’s submissions which, attractively put, come to this. For a man of good character, the sentence for the offence of rape with the allied indecent assaults at seven years was rather too long and the sentence for living on the earnings of prostitution was itself a little too long so that the totality amounts to a sentence which is manifestly excessive.
• The factors which have weighed with us are these. This case proceeded as a trial. It was pre-eminently a case in which the trial judge was able to form his own view about the culpability of the appellant and the extent of the fragility of the complainant’s personality and the impact of what the appellant did to her and forced her to do at the age when she was forced to do it and in the background circumstances, she being an asylum seeker, and his control over her, on any view, exceptionally powerful.
• The judge said that the appellant had been convicted of most unpleasant crimes. He said that the appellant had been fully aware of the complainant’s age, that he had subjected her to sexual intercourse and to work as a prostitute in which he, the judge, regarded the rape as part of the campaign of domination and subjugation to keep her working as such. He said that a deterrent sentence was essential. We agree with the judge’s view that in this sort of situation a deterrent sentence must be considered and certainly would be appropriate in many cases.
• Reflecting on these matters, it seems to us that there is no ground for concluding that the judge did other than pass a fully merited severe sentence on the appellant. Accordingly, the application will be refused.