{"id":658734,"date":"2026-04-23T12:06:13","date_gmt":"2026-04-23T10:06:13","guid":{"rendered":"https:\/\/kohenavocats.com\/jurisprudences\/rex-v-mark-makeri\/"},"modified":"2026-04-23T12:06:13","modified_gmt":"2026-04-23T10:06:13","slug":"rex-v-mark-makeri","status":"publish","type":"kji_decision","link":"https:\/\/kohenavocats.com\/ru\/jurisprudences\/rex-v-mark-makeri\/","title":{"rendered":"REX v MARK MAKERI"},"content":{"rendered":"
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\n

LORD JUSTICE SINGH: 1 The\u00a0provisions of the Sexual Offences (Amendment) Act 1992 apply to this case. Under those provisions where a\u00a0sexual offence has been committed against a\u00a0person, no matter relating to that person shall, during that person's lifetime, be included in any publication if it is likely to lead members of the public to identify that person as the\u00a0victim of that offence. This prohibition applies unless waived or lifted in accordance with s.3 of the\u00a0Act. 2 This is an\u00a0appeal against sentence brought with the permission of the single judge. 3 On 11\u00a0March\u00a02022 in the\u00a0Crown Court at Southwark the\u00a0appellant was convicted of an\u00a0offence of rape. He was acquitted of a\u00a0further count of rape. On 8\u00a0April\u00a02022 the\u00a0appellant was sentenced by HHJ\u00a0Milne QC to a\u00a0sentence of seven\u00a0years and six\u00a0months' imprisonment. The\u00a0appellant was then aged 29. Further appropriate orders were made in view of the nature of this offence. 4 The\u00a0facts can be summarised as follows. The\u00a0appellant met the\u00a0complainant, who was 24, at a\u00a0gym where the\u00a0appellant had worked as a\u00a0trainer and subsequently a\u00a0sexual relationship developed between them. 5 On 23\u00a0July\u00a02021 the\u00a0appellant and the complainant attended a nightclub together and they both consumed alcohol. An\u00a0argument ensued and, eventually, the\u00a0complainant went home alone and the appellant followed separately. The complainant was tired and under the\u00a0influence of alcohol. The\u00a0complainant awoke at home some time later and was naked, although she did not know how she came to be naked. The appellant was in the\u00a0complainant's bed and was asking for sexual intercourse. The\u00a0complainant was not interested and told the\u00a0appellant so and also told him that she was not taking contraception. The\u00a0appellant continued to ask the\u00a0complainant for sexual intercourse and the complainant repeatedly said no. The\u00a0appellant eventually restrained the\u00a0complainant's arms and penetrated her vagina with his penis. The\u00a0complainant had told the\u00a0appellant that she did not want to engage in sexual intercourse. She was unsure if he ejaculated. 6 One of the\u00a0complainant's housemates woke at 3.00 a.m. to the\u00a0sound of the complainant screaming and when she had gone to investigate, she found the\u00a0complainant in distress and naked in the\u00a0corridor outside her\u00a0bedroom. The complainant was in tears and was hyperventilating. Another housemate was also awoken. The appellant was also in the\u00a0corridor partially dressed. When the\u00a0appellant was out of earshot, the complainant told one of her housemates that she was a\u00a0bit drunk, had been sleep, but the appellant had kept trying to have sex with her. The complainant added that she kept telling the appellant to stop but he would not. The\u00a0complainant had told the appellant to leave and had told him that she would not be contacting the\u00a0police. The\u00a0appellant remained at the address, telling the\u00a0complainant to come back to bed. The\u00a0appellant left the\u00a0address some time later. 7 The\u00a0complainant subsequently contacted the\u00a0police and the appellant was arrested on 30\u00a0August\u00a02021. In interview, the\u00a0appellant stated that he and the\u00a0complainant had had consensual intercourse when the\u00a0complainant began to hyperventilate and cry. The\u00a0appellant stated that he had not ejaculated and had comforted the\u00a0complainant. The\u00a0appellant thought that the complainant's behaviour may have been attributed to him earlier telling the\u00a0complainant that he did not want a\u00a0relationship. The\u00a0complainant had appeared jealous when they had been out and that had been exacerbated by the\u00a0complainant seeing a\u00a0picture of the appellant's ex-partner on Instagram. 8 The\u00a0appellant had three convictions for four unrelated offences spanning the\u00a0period from 2009 to 2016. 9 We note that the\u00a0Crown Court sentenced the\u00a0appellant without a\u00a0pre-sentence report. We confirm that we do not consider that one is now necessary. The\u00a0sentencing court also had the\u00a0advantage of a\u00a0victim personal statement, which we have also had the\u00a0advantage of reading. 10 In his sentencing remarks, the\u00a0judge said that he did not regard this as being a\u00a0case of extreme psychological harm. However, he did consider that the victim was a\u00a0vulnerable woman and was "particularly vulnerable at the time". For that reason, he placed this harm into Category 2 by reference to the\u00a0definitive guideline issued by the\u00a0Sentencing Council with effect from 1 April 2014. He had in mind the\u00a0fact that at the time the\u00a0victim was asleep, somewhat the\u00a0worse for wear in drink, that the\u00a0appellant had undressed her and that the rape took place when she was only just returning to consciousness. The\u00a0judge also considered that the location and timing of the offence in the\u00a0victim's bed and in the\u00a0small hours of the morning were aggravating features. 11 Turning to culpability, the\u00a0judge accepted that aggravating features were largely absent and so he placed the\u00a0offence into Category B rather than A. He did not regard this offence as involving significant planning. He did not find that the appellant had used alcohol to facilitate the\u00a0offence, although he would have known that the victim had been drinking, and he did not regard this as a\u00a0case of targeting a\u00a0victim in the\u00a0sense envisaged by the\u00a0guideline. 12 The\u00a0judge observed that for a\u00a0Category\u00a02B case the\u00a0starting point recommended in the guideline is eight years' custody, with a\u00a0suggested range of seven to nine\u00a0years. He felt that the\u00a0only sentence he could impose was one of seven and a\u00a0half years' imprisonment. In the\u00a0circumstances of this case, he decided to take no action in relation to the issue of dangerousness. 13 Leave was granted by the\u00a0single judge to pursue the\u00a0following grounds of appeal: (1) The\u00a0judge was wrong to conclude the\u00a0offending fell into Category\u00a02B and the offending should have been dealt with as a\u00a0Category\u00a03B case, which would have given a\u00a0starting point of five years' custody with a\u00a0suggested range of four to seven\u00a0years. (2) It is argued that the\u00a0judge was wrong to conclude the\u00a0victim had been "particularly vulnerable due to personal circumstances" and failed to fully justify that finding. 14 In her helpful oral submissions, Ms\u00a0Hawley has acknowledged that the two grounds are in substance one ground. Her fundamental complaint is that the victim could have been described as "vulnerable" but that the guideline requires more. It requires that she must be "particularly vulnerable due to personal circumstances". Ms\u00a0Hawley emphasises that there is no evidential basis for that by way of, for example, a\u00a0report before the\u00a0court or a\u00a0history of any particular circumstance going to the\u00a0complainant's vulnerability. She reminds this court that the victim was an\u00a0adult at that time of the\u00a0offence, that there was no material age disparity between her and the appellant, that there had been a\u00a0consensual relationship in the\u00a0past and she has also reminded this court of the\u00a0victim's demeanour in giving evidence and text messages which she had exchanged with the appellant which showed that she was well able to remonstrate with him. 15 By reference to the\u00a0sentencing guideline, the\u00a0only factor listed in relation to Category\u00a02 (harm) which was potentially relevant was that the victim was "particularly vulnerable due to personal circumstances." No issue has been raised before this court that this was a\u00a0culpability A case. Accordingly, the\u00a0question for this court is whether the judge was entitled to place this case into Category\u00a02B rather than Category\u00a03B. 16 Every offence of rape is serious because it involves the\u00a0violation of a\u00a0person's bodily integrity, autonomy and dignity, but we must also bear in mind the\u00a0need for consistency in sentencing. This is why Parliament has directed in s.59(1) of the Sentencing Act 2020 or the Sentencing Code that every court must in sentencing an\u00a0offender follow any sentencing guidelines which are relevant to the\u00a0offender's case, unless the\u00a0court is satisfied that it would be contrary to the\u00a0interests of justice to do so. 17 Although each case turns on its own facts, as was fairly acknowledged at the hearing, we note that in\u00a0R v Begley [2018] EWCA Crim 336 at para.19 this court, in a\u00a0judgment given by Nicol\u00a0J, emphasised that the relevant guideline refers not simply to vulnerability, but that the victim is "particularly vulnerable due to personal circumstances". Furthermore, Nicol\u00a0J said that must be a\u00a0reference to vulnerability at the time of the offence and not later, for example when the\u00a0witness is giving evidence at a\u00a0trial. We also noted that in\u00a0R v KH [2018] EWCA Crim 1819 at para.13 this court, in a\u00a0judgment given by Sweeney J, said that although the\u00a0victim in that case was undoubtedly vulnerable because she was asleep when the\u00a0offence began, in the\u00a0terms of the guideline she was not particularly vulnerable due to personal circumstances. 18 Turning to the\u00a0circumstances of the\u00a0present case, we accept the\u00a0main submission which has been made on behalf of the\u00a0appellant by Ms\u00a0Hawley that this should have been regarded as a\u00a0Category 3B case and not a Category 2B case. In all the circumstances of this case, having regard both to aggravating and mitigating features, we consider that the just and proportionate sentence would have been one of five years' imprisonment. 19 For the reasons we have given, we allow this appeal against sentence. The\u00a0sentence passed by the\u00a0court below is quashed and there is substituted for it a\u00a0sentence of five years' imprisonment. __________<\/p>\n<\/div>\n

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Sources officielles :<\/strong> consulter la page source<\/a><\/p>\n

Open Justice Licence (The National Archives).<\/em><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

LORD JUSTICE SINGH: 1 The provisions of the Sexual Offences (Amendment) Act 1992 apply to this case. Under those provisions where a sexual offence has been committed against a person, no matter relating to that person shall, during that person’s lifetime, be included in any publication if it is likely to lead members of the public to identify that person…<\/p>\n","protected":false},"featured_media":0,"template":"","meta":{"_crdt_document":""},"kji_country":[7608],"kji_court":[8238],"kji_chamber":[],"kji_year":[32183],"kji_subject":[7612],"kji_keyword":[7633,8349,8239,7925,7652],"kji_language":[7611],"class_list":["post-658734","kji_decision","type-kji_decision","status-publish","hentry","kji_country-royaume-uni","kji_court-court-of-appeal-criminal-division","kji_year-32183","kji_subject-fiscal","kji_keyword-appellant","kji_keyword-category","kji_keyword-complainant","kji_keyword-offence","kji_keyword-victim","kji_language-anglais"],"yoast_head":"\nREX v MARK MAKERI - Ma\u00eetre Hassan Kohen, avocat en droit p\u00e9nal \u00e0 Paris<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/kohenavocats.com\/ru\/jurisprudences\/rex-v-mark-makeri\/\" \/>\n<meta property=\"og:locale\" content=\"ru_RU\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"REX v MARK MAKERI\" \/>\n<meta property=\"og:description\" content=\"LORD JUSTICE SINGH: 1 The provisions of the Sexual Offences (Amendment) Act 1992 apply to this case. 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