Criminal

Mandatory life sentence - defendant with earlier conviction of non-consensual buggery convicted of serious offence - buggery not 'serious offence' rendering imposition of life sentence mandatoryR v Wood (Stephen Robert): CA (Roch LJ, Smith and Moore-Bick JJ):10 April 2000

In 1990 the defendant had been convicted by a jury of buggery which the judge had held, after a Newton hearing, was non-consensual.In 1999 the defendant was convicted of malicious wounding with intent to do grievous bodily harm, a 'serious offence' for the purposes of s.2 of the Crime (Sentences) Act 1997.The trial judge held that, although buggery was not in the list of serious offences in s.2(5) of the 1997 Act, in view of the change in the law effected by s.142 of the Criminal Justice and Public Order Act 1994 non-consensual buggery was the same as rape, which was a 'serious offence' under s.2(5)(e), so that he was obliged to sentence the defendant to life imprisonment, although he would otherwise have considered that three years' imprisonment was appropriate.

The defendant appealed against sentence.John Royce QC and Mark Horton (assigned by the Registrar of Criminal Appeals) for the defendant.

Paul Chadd QC and Michael Mather-Lees (instructed by the Crown Prosecution Service, Bristol) for the Crown.Held, allowing the appeal, that non-consensual buggery was not the same as 'rape' in s.2(5)(e) of the 1997 Act; that even though by virtue of s.142 of the 1994 Act non-consensual anal intercourse was capable of constituting the actus reus of rape, the offence of buggery, where consent was not a material averment, was different from rape where lack of consent was an ingredient of the offence; that the 1997 Act was a penal statute that had to be strictly construed; and that, accordingly, a sentence of three years' imprisonment would be substituted.

(WLR)