R v Seyi Odeyemi

LADY JUSTICE ANDREWS:

1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during their lifetime be included in any publication if it is likely to lead members of the public to identify them as the victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.

2. These are renewed applications for leave to appeal against conviction and against sentence following the refusal of both applications by the single judge.

3. On 14 August 2024, following a trial at Maidstone Crown Court before Her Honour Judge Moore and a jury, the applicant was convicted of one count of rape (count 1) and one count of breach of a Sexual Risk Order (“SRO”) contrary to section 122H of the Sexual Offences Act 2003 (count 2). He had previously pleaded guilty in Croydon Crown Court to a wholly unrelated offence of conspiracy to steal from a branch of Ladbrokes, the bookmakers, which he committed with an accomplice who was working there. That case was transferred to Maidstone Crown Court for sentence. The applicant was on bail for that offence at the time when he committed the other offences.

4. At the sentencing hearing, the applicant was found by the trial judge to be a ‘dangerous offender’. She treated the count of rape as the lead offence and passed a sentence which reflected the criminality involved in all three offences, reflecting totality by passing shorter concurrent determinate sentences on the other matters, although in principle she would have been entitled to impose a consecutive sentence for the offence of conspiracy to steal. She passed an extended sentence of 15 years 6 months on the count of rape, comprising a custodial term of 10 years 6 months and an extension period of 5 years. A concurrent sentence of 30 months was imposed in respect of the breach of the SRO; and a concurrent sentence of 12 months' imprisonment was imposed for the offence of conspiracy to steal. Background

5. On 18 May 2022 at Bromley Magistrates' Court, an SRO was made against the applicant which prohibited him from doing any act of a sexual nature except with the express consent of the female concerned, given after she had been informed of the existence and terms of the SRO.

6. On the evening of 4 September 2023, the complainant, whom we will call C, had been to a business event in north London where she consumed alcohol. CCTV footage showed that on leaving the venue she showed no signs of extreme intoxication, as she was steady on her feet and was able to put on her coat as she was walking along the street. She attempted to arrange for a taxi or an Uber to take her home to the East End of London. She was approached by the applicant, whom she thought she recognised, whilst she was looking at the pricing options for that journey. In the course of the ensuing conversation it transpired that they had at least one mutual acquaintance. He offered to take her home in return for a contribution of £20 towards the cost of his petrol. That was half the price that she was being quoted for an Uber and so she agreed. She got into the front passenger seat. There was an open bottle of wine in the car, and she drank out of it.

7. The applicant drove C to a hotel in Kent — a long distance from her home — where he had prebooked a room. In the course of the journey he pretended that he was lost. By the time they arrived she was so intoxicated that she was unable to stand up unaided. He carried her from the car into the hotel, undressed her, and had sexual intercourse with her in the bedroom. CCTV footage showed that C was carried into the hotel by the applicant and that she was unable to stand up unaided, and this was supported by evidence from a member of the hotel staff.

8. The prosecution case was that C was so intoxicated that she was unable to give consent, that the applicant was aware that she lacked the capacity to consent, and that the applicant did not tell her about the SRO.

9. C's recollection of what happened was that somewhere on the journey she blacked out, and she then drifted in and out of consciousness. She remembered the applicant carrying her into the hotel and taking off her clothes in the bathroom. The next thing she remembered was his penetrating her vagina with his penis from behind. It seemed to go on for a long time and she said she was in excruciating pain.

10. The defence case was that C had consented to the sexual intercourse and that the accounts she gave to others in the aftermath of the incident were inconsistent and therefore unreliable. The applicant alleged that he had told her of the existence and terms of the SRO and relied on the fact that C said she could not recall all of the conversation that took place in the car on the way to the hotel.

11. C said that the following morning the applicant had initially refused to drive her home and she did not have enough money for a taxi to take her back from the hotel. She made a FaceTime call to a female friend, T, from the hotel bedroom and told T what had happened to her. T gave evidence at trial about that call. The applicant started to speak to T and was boasting about the sex he had had with C. T said that he had told T that he had continued to have sex with C after she had passed out. The applicant denied this.

12. After that conversation had ended, C alleged that the applicant told her that he had ejaculated inside her and had not used a condom. He also boasted to her that he had been accused of rape in the past and that was when, on C's account, he mentioned the SRO for the first time. Eventually he drove C home at about 12.30 pm.

13. Apart from answering two questions that are immaterial for present purposes, the applicant gave a ‘no comment’ interview to the police. He said he did so on legal advice.

14. At trial he gave evidence in his own defence. He said that during the journey C had told him that she did not want to go home and be alone; she wanted to go to the hotel where he was staying. The sexual activity was consensual and C was proactive. The conversation the next morning involving T was light-hearted, and they were laughing. T was not telling the truth about the comments he allegedly made to her. He said that C had become upset with him during the return journey because he had refused to pay for her food and for the morning-after pill. When he spoke to her on the phone later that afternoon they had a good conversation. When he was told that C had accused him of rape, at first he thought it was a joke. The application for leave to appeal against conviction

15. On behalf of the applicant, Mr Milne, who defended him at trial, contends that the judge erred in refusing an application to sever the count of the breach of the SRO because of what he described as the “highly prejudicial” effect. That was initially the single ground of appeal. However, in the Perfected Grounds of Appeal the applicant also complains about the directions given by the judge to the jury on: (a) the potential effects of C's intoxication on her reliability as a witness; (b) consent where the complainant was highly intoxicated; and (c) the adverse inference to be drawn from the ‘no comment’ interview in circumstances where the applicant said that he acted on legal advice. In his oral submissions to us this morning, Mr Milne concentrated on the first and last of those grounds without in any way seeking to derogate from the other two.

16. As far as ground 1 is concerned, which Mr Milne described as the ‘elephant in the room’, the nub of his submission was that knowledge of the SRO was so highly prejudicial that no direction given by the judge to the jury could possibly have overcome that prejudice to the applicant. He submitted that there would have been within the jury's mind a fixation that his client was a "sexual predator", and despite the fact that the judge had expressly directed them that they should not speculate as to why the SRO was made, inevitably the jury would speculate and would do so to his client's disadvantage. He submitted that the simple question before the jury was one of consent and not what he described as ‘enhanced consent’. The elements of consent remain the same whether or not the SRO was in play or not. Therefore, even if there was a possibility that there would have to have been two trials at which the complainant gave evidence, that was the lesser of the two evils so far as fairness and justice were concerned.

17. Despite those submissions, we agree with the single judge that it is not properly arguable that the trial judge erred in her discretion when she refused the application to sever count 2 from the indictment, essentially for the reasons adumbrated in the Respondent's Notice. The judge's careful ruling is unimpeachable. She directed herself in accordance with rule 3.29(4) of the Criminal Procedure Rules and took into account all relevant factors. The weight she afforded to them was a matter for her. She accepted that there would be a risk of prejudice to the applicant, but concluded that it could be overcome by robust judicial directions, which she gave. She rightly distinguished the cases of Laycock [2003] Crim LR 803-804 and Lewis [2007] EWCA Crim 2912, upon which the defence relied, and her reasons for doing so are sound ones.

18. It was accepted, as it had to be, that the counts were properly joined on the indictment and it was not disputed that the applicant was subject to the SRO. This is not an example of overloading an indictment with unnecessary counts. The two counts were founded upon exactly the same facts. Indeed they were inextricably intertwined, and the central issue on both counts was consent. As HHJ Moore observed, there was a real purpose in count 2 being included on the indictment, because what was required to conform with the SRO was not simply consent, but express and informed consent with knowledge of the SRO and its terms. Moreover, as the judge eventually directed the jury, if they were sure of the applicant's guilt on count 2, the evidence on count 2 would be admissible on count 1 as evidence going to the applicant's belief that C consented and the reasonableness of that belief. Far from it being desirable that the applicant be tried separately on count 2, it was plainly in the public interest that both counts be tried together to avoid the real risk of C having to give evidence at another trial.

19. As to the complaint that leaving count 2 on the indictment invited speculation on the part of the jury as to the reasons for the SRO, in our judgment the judge gave a sufficient direction to the jury to counter any possible prejudice on that score, and we reject the argument to the contrary.

20. We also reject the contention made in the written submissions but not developed orally, that the applicant was forced to put his very limited bad character in evidence in order to minimise the prejudice caused by allowing count 2 to remain on the indictment. That was a tactical decision, which no doubt was taken for valid reasons. But the applicant could equally well have decided to remain silent about his one previous conviction, which was for an offence of dishonesty to which he had pleaded guilty.

21. There was a suitably modified good character direction which made it clear to the jury that the applicant had not been convicted of any sexual offences in the past. In any event, even if he had no real choice but to tell the jury about it, the applicant's sole previous conviction was for offending of such a different nature that its introduction was unlikely to have caused any prejudice to his case.

22. The conclusion which the judge reached was not simply one that she was entitled to reach in the exercise of her discretion, it was plainly the right conclusion in the circumstances of this case. We agree with the single judge that it was in the public interest that the two counts be tried together. The trial judge's refusal to sever count 2 does not call into question the safety of the conviction in any way.

23. The remaining complaints concern the judge's legal directions to the jury which, in the usual way, were reduced to writing and considered by both trial counsel in draft. We have read the transcript of the judge's summing-up, and it is balanced and fair.

24. As to the complaint that the judge did not deal sufficiently with how C's intoxication might have affected her reliability as a witness, there was no need for the judge to tell a jury about the effect that drinking alcohol to excess can have on a person's inhibitions or on their memories. No doubt being alive to the obvious dangers of running a case that C was so drunk that it must have affected her reliability, the applicant did not seek to argue that case at trial. As the respondent points out, the applicant's evidence was that he saw no signs of C being so drunk that she could not have remembered what happened. We are satisfied that the judge dealt with the subject of C's intoxication sufficiently and fairly in her summing-up in the passages quoted in the Respondent's Notice.

25. We turn next to ground 4 because it is of a related nature. Mr Milne complained of how the judge directed the jury on the question of consent in the context of intoxication. No objection to that direction was taken at the time when it was provided to counsel for their comments. The judge made it clear that C would have consented if the jury were to decide that despite what she had to drink, she was or may have been able to make a choice, and that she chose or may have chosen to have sex with the defendant. She properly directed them that: "In law consent given when disinhibited by drink, even if consent would not have been given when sober, is nevertheless consent." That direction was entirely in keeping with what was required in R v Bree [2007] 2 Cr App R

13.

26. Finally, as to ground 3, the judge was entitled to reject the submission that she should not give the jury a direction under section 34 of the Criminal Justice and Public Order Act 1994. The key question for the jury was whether the accused person could reasonably have been expected to mention relevant fact or facts when questioned taking into account all the relevant circumstances. Mr Milne submitted that the prosecution had made an error in the trial, in that, contrary to the usual practice when seeking to have a s.34 direction given to the jury, prosecuting counsel had failed to put a list before the jury of the questions asked of the defendant which were going to be the foundation of the submission that a reasonable person in the defendant's position could have been expected to mention in answer to those questions facts on which he later relied when giving evidence.

27. In consequence of that omission, the jury did not know what questions were asked of the applicant in interview. Nor did they know how long the interview took, which was a relevant factor in assessing whether or not he should have mentioned something. It was no good, submitted Mr Milne, for the jury to be invited to speculate that experienced police officers who were investigating allegations of rape were bound to have asked whether or not sexual intercourse did take place and if so whether or not the complainant had consented to it.

28. In his submissions to us this morning, Mr Milne concentrated on paragraph [40] of the judgment of this court in R v Harewood [2021] EWCA Crim 1936. He pointed out that the court there said that: "the circumstances which the jury are to take into account in determining whether the accused could reasonably have been expected to mention the fact in question will include what it knows about the length of the questioning, and the relative significance or importance of the fact in question to the matters about which the accused is being interviewed; and its relative significance or importance to any answers he does give in interview or to the contents of any prepared statement which he has given". At the end of that paragraph the court went on to say: "The jury must consider all the circumstances, including the degree of relevance or importance of the unmentioned fact to the account relied on at trial. In doing so the jury may properly take account of the length of the interviews and the background to them, and what can be inferred therefrom about the nature of the questioning and what the accused could reasonably have been expected to volunteer as part of his account of events."

29. That passage, however, has to be seen in the context of the preceding paragraph of Harewood, which begins as follows: "Secondly, there is no requirement that the unmentioned fact must be one about which the accused has specifically been asked a question. The language of the statute does not impose such a requirement and the test is simply whether in the face of the questioning the fact is one which the defendant could reasonably have been expected to mention." The court then went on to say that the point was well illustrated by the earlier case of R v Green [2019] EWCA Crim

411. There is therefore ample authority at appellate level that it is unnecessary that the jury should know that a specific question was asked of the accused before a s.34 direction is given.

30. In this case the judge's direction focused upon the most important facts that the appellant did not tell the police in interview, namely that he had informed C of the SRO before they engaged in sexual activity, that he had had sexual intercourse with C, and that it was consensual. It was clearly open to a reasonable jury properly directed to form the view that the applicant could reasonably have been expected to volunteer those matters in interview about an alleged rape.

31. The standard direction under s.34 caters for the situation in which the accused claims that he remains silent in consequence of taking legal advice. It is for the jury to decide whether that was a reasonable explanation in all the circumstances. Therefore we conclude that none of the grounds which are renewed to us today give rise to a viable argument that the convictions are unsafe, and we therefore refuse the renewed application for leave to appeal against conviction. The appeal against sentence

32. The judge's sentencing remarks are careful and considered. In the light of the content of the pre-sentence report, which makes disturbing reading, as well as the facts of the offending, the trial judge was entitled to conclude that the applicant was a ‘dangerous offender’, notwithstanding that this was his first conviction for a serious sexual offence and the fact that he was only 22 years old as at the date of offending and 23 at the time of sentence.

33. The author of the report referred among other matters to the applicant's narcissism, his history of concerning deviant behaviours, his lack of victim empathy and prioritisation of his own perceived sexual needs, his predatory behaviour and his lack of motivation to address his offending. She assessed him as being at a high level of risk of sexual reoffending in relation to a contact offence.

34. It is clear from her sentencing remarks that the judge was well aware that the applicant's age and maturity were relevant to her assessment of dangerousness, as well as to her assessment of the appropriate length of sentence. But she concluded that notwithstanding his relatively young age he did pose a relevant risk to the public. As the respondent points out in the Respondent's Notice, that conclusion was not only open to the judge but virtually inevitable given the deliberate breach of the SRO which was designed to protect the public from offending of this very nature.

35. Although the SRO was imposed against a background of investigations into the applicant for six serious offences between October 2019 and the autumn of 2020, no charges, let alone convictions, resulted from those investigations. The judge made it clear that she did not take the allegations which gave rise to the imposition of the SRO into account when she made her assessment of dangerousness, although we agree with the respondent that she would not have erred in principle had she done so. She did take into account the fact that the SRO was imposed, as she was entitled to do, in her assessment of risk. The fact that a magistrates' court had been satisfied that such an order was required to protect members of the public from future risk from the applicant was clearly relevant to the assessment of whether he was a ‘dangerous offender’ within the meaning of the statute. The judge was also entitled to take into account the fact that the applicant was well aware of the order and of the concerns that led to it being made, and the deliberate breach of it by him on the occasion of the rape of C.

36. Having made the finding of dangerousness, the judge was entitled to conclude, for the reasons that she gave, that a determinate sentence would not fully address the risk that he currently represented, and to pass an extended sentence.

37. In reaching the appropriate length of the determinate sentence for the rape, the judge put the offence into category 2 for harm and B for culpability. That was undoubtedly the correct category: C was vulnerable due to her age, her state of intoxication by the end of the journey and the circumstances in which she found herself; the attack was sustained and she suffered significant pain. The judge then increased the starting point of 8 years by a further year to reflect two aggravating factors, namely that the applicant was on bail for the earlier offence and the fact that he ejaculated. She made it clear that she did not treat the breach of the SRO as an aggravating factor because that would amount to double counting.

38. As to mitigating factors, the judge identified the applicant's previous good character, his positive work ethic, his progress in prison and his character references. She referred to the Rape guideline and properly directed herself that previous good character or exemplary conduct should not normally be given any significant weight, and will not normally justify a reduction in what would otherwise be the appropriate sentence. She decided that in this case no reduction should be made for those matters. She did not err in that assessment.

39. The judge considered, as she was entitled to, that letters written by the applicant which on their face appear to take responsibility for his offending and to apologise for the harm caused to C were written by him in an effort to overcome the criticisms in the pre-sentence report and were, as she put it, ‘totally disingenuous’. When the judge sought to establish whether the applicant had changed his position from the position he had maintained before the probation officer (which sought to blame the victim) Mr Milne confirmed that he maintained his innocence. The judge rightly did not hold that against him, but said that she was quite sure that there was no empathy and no remorse.

40. The main point that Mr Milne makes in relation to the sentence which was imposed and its length is again the question of the applicant's age. The judge had regard to the observations made in R v Clarke [2018] EWCA Crim 185 about young people continuing to mature at different rates for some time after their 18th birthday. She explained why she was satisfied that the applicant was not significantly affected by his youth or immaturity when he committed these offences. She described him as intelligent and well educated; he has a degree in psychology. She watched how he conducted himself during the course of the trial. There was sophisticated planning in relation to the theft matter and there were no findings in the pre-sentence report in relation to maturation being an issue.

41. Having presided over the trial, the judge was best placed to evaluate those matters.

42. The judge said that if she had been sentencing for the individual offences, it would have been 9 years for the rape, 2½ years for breach of the SRO, and 16 months for the conspiracy to steal, after affording a 20% credit for the guilty plea on the last of those. For the reasons explained by the single judge, there was nothing wrong with the trial judge's categorisation of the other offences within the applicable guidelines, nor with the sentences she indicated she would have passed had they stood alone. However, in order to reflect totality and the fact that she was passing an extended sentence, (which raises complications in structuring the total sentence if the judge is also sentencing for another offence which would in principle attract a consecutive sentence) she made an uplift to the custodial element of the extended sentence from 9 to 10½ years and then passed shorter determinate sentences on the other matters. That again was entirely appropriate.

43. The sentences of imprisonment were neither wrong in principle nor manifestly excessive and the contrary is not reasonably arguable.

44. So far as the sexual harm prevention order is concerned, the judge rightly concluded that the circumstances called for a lengthy order, given the breach of the SROm and she addressed all the right questions before deciding to make such an order. She gave a clear and cogent explanation for imposing an order of 20 years in the terms that she did. We are satisfied that there is no real prospect of a successful argument that the order she imposed was unnecessary for the purposes of protecting the public from the risk that the applicant poses nor that it was disproportionate in all the circumstances of this case.

45. For those reasons, and with thanks to Mr Milne for his presentation of the oral arguments before us this morning, we refuse both these renewed applications. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400 Email: [email protected]