R v Oliver Jossie Mullen

The provisions of the Sexual Offences (Amendment) Act 1992 apply in this case. Under those provisions, where an allegation has been made that 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 as the victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act .

This is a renewed application for leave to appeal against conviction after refusal by the single judge, together with an appeal against sentence after the grant of leave by the single judge.

On 29 July 2024 in the Crown Court at Bristol the offender was convicted of two counts of rape (counts 1 and 2). On 9 October 2024 before the same court the offender was given an extended sentence of eight years, comprising a custodial term of six years' imprisonment and an extended licence period of two years in respect of count 1, and a consecutive extended sentence of 10 years, comprising a custodial term of eight years' imprisonment and an extended licence period of two years in respect of count 2. In total therefore the offender received an extended sentence of 18 years, comprising a custodial term of 14 years' imprisonment and an extended licence period of four years.

The case concerned two separate complaints of rape made by two separate women who had each met the offender through online dating applications. The two complainants were unknown to each other.

As to count 1, the prosecution's case, based on the evidence which was given by the complainant KG, was that on 10 April 2016 KG met the offender on a dating application and met up with him in person in Bath. She collected him from the train station and they went to a pub for a few drinks. The pub closed and they went back to her house. She explained that she had had two single measure gin and tonics at the pub and half a glass of wine whilst at home. She described herself as tipsy but not drunk.

They watched some short videos and the offender said that he had missed his last train home. She wanted to go to sleep and told him that she would make up a sofa bed for him, making it clear that she did not want him in her bed. He said "Let's cuddle for a bit" . He kissed her neck and kept trying to put his hand inside her pants. She kept pulling his hand away. He then said "Can I give you oral sex?" and she said "no" to that. KG went on to state that she estimated that she had said "no" to the offender between eight and 15 times.

He pushed her over on to her back, kept one hand on her shoulder and used the other hand to pull down her leggings and underwear. He had pulled down his own trousers and boxer shorts to around his knees. He put on a condom and penetrated her vagina with his penis. At some point he put his hand around her throat while holding her down and penetrating her. He forced her on to all fours, grabbed her hair and pulled her head back. She was crying and too scared to speak. He grabbed her breasts through her shirt.

Afterwards, they went downstairs to the conservatory for a cigarette and were both dressed. He pushed her against a wall and tried to penetrate her anus with his fingers. He pushed her leggings down and she said "Get the fuck off me" .

In addition to KG's evidence, statements were also read at trial from KG's housemates, her friend and her mother.

Turning to count 2, the prosecution case entailed reliance on the evidence of the second complainant JL, who stated that on 21 May 2021 she met the offender on a dating application and met up with him in person in Bristol. They went to a bar and she had two pints of beer. They went on to another bar and she ordered half a pint but did not finish it.

She spent some time in the bathroom there, she explained. They then left the bar and went to a shop where the applicant bought a bottle of wine and two big bottles, one of beer and the other of cider. The plan, she explained, was to sit outside on Turbo Island and have some drinks. That was the last clear memory that she had.

JL went on to explain that she did not remember getting an Uber back to the offender's flat nor going up in a lift or taking stairs. Her next memory after Turbo Island was, rather, kneeling down on the offender's bedroom floor and him giving her a glass of wine. Her next memory was being painfully sick and not being able to see properly. There had been no flirting or physical touching between them the whole evening. After being sick, she ended up on the offender's bed. She blacked out and felt paralysed.

She could not think but had memories of being physically locked in and not being able to open her eyes. She could not breathe very well. She thought that the offender must have been kissing her or touching her vagina or cuddling her. She felt like a rag doll and did anything he asked her to do. He took off her clothes with her help. She said: "... we'd had sex, and then I kind of drift off, and then I would wake up again and it would, it would happen again, and then I'd drift off, wake up, and he would be touching me. We'd have sex or whatever, drift off, and then again, drift off, and then again."

Her vagina was sore and she told him to stop. He stopped for a moment but then carried on. She said "No, no, please." At one point he was on top of her when penetrating her vagina but, as the night went on, she was "less floppy" and the offender helped her to get on top of him as he had asked her to do.

She did not recall any discussion between them as to using a condom. She could not remember the exact actions of the offender and it felt like the whole episode had lasted for hours, with her drifting on and off. She was sure that her drink had been 'spiked' as she was usually sexually nervous and awkward but on this occasion she had no inhibitions. She had been disorientated and confused and had relied on the offender to take her to the toilet as she was "incapable as shit" . She had just wanted to sleep, she explained. She felt sick. The light was hurting her eyes and she felt her head was going to explode.

She went on to explain that she eventually fell asleep and left around midday the following day. She had never felt so bad after drinking. Having left the offender's flat she went home. That day, the offender sent her a text message asking her if she got home okay. She asked him if he had put something in her drink. His reply was "Absolutely not. I'm shaking at the thought" and, later, "I'm just as baffled as you are. I was really worried. I was going to call an ambulance for you."

"It's crazy how much guilt I feel for him. I so desperately want to give him the benefit of the doubt. But the red flags are there. As soon as I got to his (which I don't remember agreeing to, and also explicitly said before meeting that I'm not interested in sex/romance. Just as friends). I was violently sick and then blacked out. He acknowledged that it was crazy what happened to me - how I was fine and then so insanely fucked. But also, was outraged when I asked if he put something in my drink. But the worst part was that I participated in sex. Like when I woke up, he was touching me, and I just went with it. Anything he asked me to do I did. Which is so not like me and it’s all so hazy."

The defence case at trial was one of consent in respect of both counts.

As for count 1, the offender gave evidence that he had arranged to meet KG via a dating application. They went to a pub for a couple of hours. They held hands and kissed on the way back to her house. He bought a bottle of wine on the way back and they were both tipsy by the time that they arrived at her house at around 10.00 pm. They watched some films on her laptop whilst sitting on her bed. They were kissing and touching each other for around 10 minutes. KG then took her top off and he took his trousers off. He inserted his penis into her vagina and they had sex without a condom. He ejaculated on to the bed and they cuddled for about 10 minutes. He did not use any force, he stated. He did not put his hands around KG's throat or down her pants and she consented to everything that took place. They got dressed afterwards and went to the conservatory where they kissed again. They went back then to her bedroom and cuddled for another 30 minutes before she left to meet a friend. He fell asleep and was later awoken by a man who was asking him to leave.

In cross-examination the offender said that he and KG had got on well and he had no expectations when going back to her house. She never mentioned him sleeping on the sofa. She never said that she was tired. She took her own top off and touched his penis. He did not touch her vagina at any point. He did not ask her for oral sex. He also denied putting his hands on her throat or pulling her hair or that he had pushed her against the wall in the conservatory. She had, he explained, shown no sign of distress.

In respect of count 2, the offender gave evidence that he had met JL on a dating application and had arranged to meet. They went to a bar for one drink and then to another place for another two drinks. They had been 'flirty'. They went to Turbo Island for half an hour and they both bought more alcohol. They went back to his flat and had another glass of wine each. It was then that she was sick in the bathroom and he went to see if she was okay. He gave her some water and she was fine. She got into his bed and he lay on the floor. He got up and asked her if there was anything he could do. She was completely coherent and her eyes were focused. She touched his penis. They were kissing and undressed each other. They performed oral sex on each other and everything was discussed in advance. They had vaginal sex around three times. She never asked him to stop and never said her vagina was sore. The following morning he made her breakfast and she stayed for around an hour. He explained that he was upset at her later message that day suggesting that he had spiked her drinks. He had no doubt about her ability to consent.

When cross-examined, the offender said that he had never got the impression that JL was drunk. On a scale of one to ten of drunkenness he said that she was a two or a three. He was briefly worried about her when they went back to his house but she could walk steadily and was not very unwell. He said that she had capacity to consent and did not say that her vagina was sore.

The issue, in the circumstances, for the jury was consent. In relation to count 2, the jury were directed also to consider JL's capacity to consent.

We come on, against this background, to consider the renewed application for leave to appeal against conviction. This entails a submission by Mr Williamson KC, who appeared at trial and made the submission of no case to answer to which the appeal relates, and who appears before us also today, that the Recorder erred in not acceding to the submission of no case to answer which was advanced on the offender's behalf in respect of count 2. Mr Williamson adds that, if the conviction on count 2 is unsafe, then the conviction on count 1 is also unsafe by reason of the jury being prejudiced by having heard the evidence in relation to count 2.

Mr Williamson submits, as he did before the Recorder, that there was no case to answer in respect of count 2 and, as such, that the Recorder should have withdrawn the case from the jury on a submission being made that the evidence established that JL had or may have had capacity and no reasonable jury properly directed could have concluded otherwise and/or that the offender had or may have had a reasonable belief in consent and no reasonable jury properly directed could have concluded otherwise.

Consideration ... has to be given to degree of consciousness or others to determine the issue of capacity. Clearly a complainant will not have had the capacity to agree by choice where, due to intoxication through drink or drugs, their understanding and knowledge are so limited that they are not in a position to decide whether or not to agree.

Thus if a complainant becomes so intoxicated that they no longer have the capacity to agree there will be no consent. For instance, a person may be in a state where they know that they do not want to take part in any sexual activity with someone but they are incapable of saying so. Alternatively they may have been affected to such a degree that, whilst having some limited awareness of what is happening, they are incapable of making any decision at all."

Mr Williamson submits specifically that, whilst matters of capacity are normally for the jury, this was a case in which the evidence was such that it established that JL in law had capacity and had consented. The evidence showed, he submits, that JL knew what was happening and was agreeing to it since she was capable of communicating when she did not want to do something and when she did. He goes on to submit, as to the second aspect of his submissions, that there was no evidence that the offender had administered anything to JL. On her own evidence, she had blacked out after suddenly being sick and had then come to. Although she gave evidence that all of her trust was in the offender and that she was "incapable of shit" , as well as that she at an earlier point was not able to speak, her evidence, Mr Williamson highlights in particular today, showed that she had engaged actively in sexual intercourse with the offender in different positions and had performed complex motor actions such as smoking, as well as being able to communicate when she did and did not want something to happen. There was no basis, in such circumstances, Mr Williamson submits, to find that the offender did not have a reasonable belief in JL's consent at the time that sexual intercourse took place.

We have studied with some care what the Recorder had to said when addressing the submission of no case to answer. The Recorder's conclusion was that the questions of consent and reasonable belief were a matter for the jury.

We find ourselves in complete agreement with the Recorder about this. The offender had described JL as being two or three on a scale of one to 10 of drunkenness, yet by the time she was back at the offender's home she was violently sick and blacking out on a regular basis. It was accordingly open to the jury to conclude that JL had lost capacity to consent due to intoxication and/or that the offender could not have had a reasonable belief that she was consenting because of the state which she was in.

"... consent and reasonable belief in consent are quintessentially matters for the jury, and such issues should not be withdrawn from the jury unless no reasonable jury properly directed could convict on the available evidence."

"In this case, JL’s evidence included elements which suggested she may have consented, or at least that you may have reasonably considered that she consented; but there was also evidence upon which a jury properly directed could convict, e.g. that she kept blacking out, she was unable to open her eyes she felt 'paralysed', she was 'incapable of shit', she felt very weak, and she said 'no' twice (because she felt sore) and you briefly stopped only to try again. JL said that she did not understand she was having sex. Although she said she 'engaged' with you, it was for the jury to decide what she meant by that and whether it was her choice to do so."

"On the evidence as it stood after the prosecution case, despite the disparate nature of some of that evidence, it was unarguably open to a reasonable jury properly directed to find, as they in due course did, that JL did not consent (because she was in a condition in which she was unable to consent in the sense of freely choosing to have sex, or she was not in such a condition and did not in fact consent), and that you did not reasonably believe that she consented."

We agree. There was more than enough evidence before the jury as to the condition that JL was in on the night in question to mean that, if the jury accepted that evidence, the jury could be sure that JL did not consent to having sex with the offender and that the offender did not reasonably believe that she consented. It was for the jury to decide, looking at the evidence as a whole and not limited to any particular parts of the evidence such as those to which Mr Williamson has today drawn our attention, whether there was active cooperation that was the result of JL having made a choice to cooperate or whether her cooperation was not through choice but the consequence of her blacking out and drifting in and out of consciousness. If the jury were sure that the latter was the position, then they were entitled to convict. That was their decision to make. It was not for the Recorder to take the decision away from them.

It should in particular be borne in mind in this connection that, even on the offender's own version of events, JL was in such a state that he himself thought about calling an ambulance for her. This was before he had sex with her, yet he went ahead and had sex with her and then not once but on several times during the course of the night. The suggestion, in the circumstances, that there was insufficient evidence placed before the jury by the prosecution to support a conviction in respect of count 2 is not something that we can accept.

It follows that we regard any appeal in respect of count 2 as unarguable. It follows too that the same applies to the proposed appeal in respect of count 1.

We now turn to the appeal against sentence. This raises two short but related points concerned with the Recorder's decision to impose consecutive extended sentences. Mr Williamson’s submission is that this resulted in sentences which were wrong in principle or which were manifestly excessive because there was a failure to take proper account of the totality principle (ground 1) and/or because, regardless, it was not appropriate to impose consecutive extended sentences (ground 2).

In his sentencing remarks the Recorder explained that he was in no doubt that the offender arranged to meet KG and JL with the intention of having sex with them whether they consented or not. He went on to explain that, in terms of the relevant Sentencing Council guideline, the offending which was the subject of count 1 constituted a category 3B offence with a starting point of three years' custody, and that count 2 entailed a category 2B offence with a starting point of eight years' custody and a range of between seven and nine years.

The Recorder then took into account aggravating features: that each of the offences involved ejaculation; that the offender was under the influence of alcohol; and the psychological harm described in the victim personal statements. The Recorder went on to explain that he was satisfied that the offender posed a significant risk of serious harm to the public from the commission of further specified offences. He referred in this respect to the arrogance shown by the offender both in the context of the proceedings and in relation to KG and JL. He also referred to the pre-sentence report as showing that the offender did not accept responsibility and was unable to express an understanding of the impact of his behaviour. There was a pattern of sexual misconduct with little insight and there was a risk of serious harm to future romantic partners, in the Recorder's assessment. The Recorder was accordingly satisfied that the offender posed a serious risk of harm to the public. On that basis, the Recorder concluded that extended sentences were appropriate in respect of both offences, adding, in doing so, that he took into account the matter of totality.

Mr Williamson notes, first, that, the respective starting points under the guidelines for count 1 being five years' imprisonment with a range of between four and seven years and for count 2 being eight years' imprisonment with, as we have previously mentioned, a range of between seven and nine years, the sentence in respect of count 1 involved a custodial element which was one year above the starting point and the sentence in respect of count 2 entailed a custodial element at the starting point. The net effect of simply adding these sentences, Mr Williamson goes on to observe, was that a total sentence far in excess of that which was appropriate was passed since no downward adjustment was made by the Recorder in making the sentences consecutive in the way that he did.

Whilst there is no inflexible rule as to how sentences should be structured, concurrent sentences are ordinarily appropriate, Mr Williamson notes by reference to the Sentencing Council guideline dealing with totality, where there is a series of offences of the same or similar kind. This is not a case, he furthermore observes, in which "overall criminality will not be sufficiently reflected by concurrent sentences." The overall sentence, Mr Williamson submits, was, in the circumstances, manifestly excessive and wrong in principle in that, whilst the Recorder stated that he was paying heed to the principle of totality, there was no indication as to which sentence of the two sentences had been reduced to take account of totality or by how much and the case was not such that consecutive extended sentences should have been passed.

Mr Williamson goes on to note, again by reference to the guideline dealing with totality, that, in the case of extended sentences, providing there is at least one specified offence, the threshold requirement under section 267 or section 280 of Sentencing Code is reached if the total determinate sentence for all offences, specified or not, would be four years or more, and the extended sentence should be passed either for one specified offence or concurrently on a number of them. Accordingly, Mr Williamson submits that ordinarily either a concurrent determinate sentence or no separate penalty will be appropriate for the remaining offences and the extension period should be such as the court considers necessary for the purpose of protecting members of the public from serious harm caused by the offender committing further specified offences. Furthermore, whilst the custodial period must be adjusted for totality in the same way as determinate sentences would be, the extension period is measured by the need for protection and therefore does not require adjustment.

We acknowledge that this is the position as a matter of principle. The question is whether in the present case there has been a departure from that principle as a result of the Recorder's decision to impose consecutive extended sentences. We consider that there has been no such departure. On the contrary, we are clear that the overall sentence of 14 years' imprisonment, plus a combined extension of four years, was neither wrong in principle nor manifestly excessive. These were two separate rapes against separate women committed five years apart; the second after the offender had been arrested and thus warned on the first occasion. Furthermore, the counts concerned incidents of multiple occasions of non-consensual sex.

The Recorder chose not to adopt a lead sentence in this case. Had he done so, passing an extended sentence in respect of count 2 with a concurrent determinate sentence in respect of count 1, this would have been more in keeping with what is said in the totality guideline concerning extended sentences. However, the question on this appeal is whether the overall sentence is appropriately to be regarded as manifestly excessive. In considering that question we must bear in mind that, had the Recorder structured the sentences in a way which saw him take a lead sentence approach, then the lead sentence in respect of count 2 would have had to have been aggravated upwards by reference to count 1 in any event.

This leads to a further question which is whether the combined length of the extensions in the present case (four years) was manifestly excessive. In this respect we see no reason to suppose that the Recorder did not recognise that the effect of the consecutive extended sentences which he was imposing was that the offender would be subject to a combined (and total) four-year extension. We have concluded that a four year extension period in the present case was not merely justified in respect of the offender but entirely appropriate given the factors identified by the Recorder. The offender represents an obvious and continuing risk, as demonstrated indeed by the fact that he committed the two offences the subject of counts 1 and 2 five years apart.

Accordingly, whilst the Recorder might have structured the sentences differently by taking a lead sentence approach, and whilst this would have been more consistent with the approach envisaged by the guideline dealing with totality, nonetheless we consider that there was no error of principle involved in this sentences that he imposed and, moreover, that those sentences were not manifestly excessive.

As made clear in R v Mandzikwa [2023] EWCA Crim 478 at [10], “if a judge imposes a total sentence which is not manifestly excessive, then it is unlikely that the structure of the sentence will give rise to a ground of appeal” . This is reflected in the totality guideline itself, which states that there is “no inflexible rule governing whether sentences should be structured as concurrent or consecutive components” and that the “overriding principle is that the overall sentence must be just and proportionate” .

This is reflected in the totality guideline itself which states that there is: "No inflexible rule governing whether sentences should be structured as concurrent or consecutive components" and that the "overriding principle is that the overall sentence must be just and proportionate" .

For these reasons, we refuse the renewed application for leave to appeal against conviction and we dismiss the appeal against sentence.