We’re always happy to have a look at cases from around the country that people bring to our attention. Well, on 23rd January 2015, this popped into out twitter timeline :
— Chris Simmonds (@chrissimmonds60) January 23, 2015
Happy to oblige…
Looking at the news report, it seems that Gareth Fruse was a friend of the victim and “took advantage of the woman when he found her drunk and fast asleep in his bed“. According to the defence (which is presumably accurate or it would have been corrected) “The rape lasted … as long as it took the victim, who is in her 20’s, to turn over in the bed and tell him to get off. He then stopped immediately.”
Mr Furse was also convicted of a sexual assault on the same victim – putting his hands inside her clothing.
It seems that 12 years ago Mr Fruse received a caution for an indecent assault on a 15 year old when he was 19. We assume that that is it by way of relevant previous convictions, or the newspaper would have referred to it.
Mr Fruse had a trial and was found guilty by a jury.
Firstly, the news reports got the sentence wrong. Or, at least, it was a bit misleading. Doing the best that we can, it seems that there was an extended sentence for the rape comprising of 5 years, plus a 4 year extension period, with a 3 year consecutive sentence for the Sexual Assault.
This gives a total sentence of 12 years, as reflected in the headline. So far, so good. But according to the news reports, the 4 year extension period attaches to the whole 8 year sentence. Which is it?
It’s complicated, but given Mr Fruse’s lack of previous convictions, the 3 year sentence for sexual assault cannot attract and extended sentence (there has to be a minimum sentence of 4 years).
This has a huge impact on how long Mr Fruse will serve, as you have to serve 2/3 of the custodial part of an extended sentence, but ‘only’ ½ of a determinate sentence.
So. We think that Mr Fruse has to serve half the 3 years for Sexual Assault, plus 2/3 of the 5 years for the rape (3 1/3 years) which gives a total of 4 5/6 years (or 58 months).
But many Judges would have said that given it was the same victim, the total custodial sentence is 8 years, with a concurrent sentence (or no separate penalty) for the Sexual Assault. Had he done this, Mr Fruse would have had to serve 5 1/3 years (64 months).
This is an extra 6 months in prison, purely because of the way that a Judge structures a sentence. Does that make sense? No, absolutely not. It makes a complete mockery of the law quite frankly, but this is what happens when you legislate at the rates of current governments.
Was the sentence too long?
There are two issues here :
1) Should an extended sentence have been passed?
We would suggest no. Or, at least, there is nothing in the news reports to indicate that the test for dangerousness is met. The Judge has to be satisfied that there is “a significant risk of serious harm to members of the public” from further offending by Mr Fruse (see the test as set out in Lang  EWCA Crim 2864).
Here, there is no history of offending, other than a caution when he was 19. This is a long time previously and, although it was for a similar offence, it is hard to say that he presents such a risk.
It seems that the Judge expressed his conclusion as follows “although he wasn’t a predator and he did stop when told to, there was concern that he succumbed when he found himself in a particular situations … the public needed protecting from that and a pre sentence report had identified Furse as being at high risk of causing serious harm until he could control his sexual urges” .
Obviously we have not seen that report, but on the face of it, it is not clear that the relevant test is met. We imagine that there will be an appeal, so it may be that this would be looked at again.
2) The length of the sentence
Starting with the guidelines, the 5 years for the offence of rape is what one would expect (page 11). Turning to page 16 for the guidance for Sexual Assault, it gets a bit less clear.
Assuming the touching was under the victim’s underwear, it would still be a Category 2 Harm B offence, for a starting point of 1 year in prison. 3 years would be for where there is Abduction, Violence or threats of violence, Forced/uninvited entry into victim’s home, or severe psychological of physical harm.
Even then, regard would have to be taken to the question of totality – given it was the same victim, you wouldn’t just add up the sentences for each offence, you have to make an overall sentence.
Again, this may all come out in an appeal, but on the face of the news reports, we would have thought a consecutive sentence of about 6 months should have been passed.
On what is reported, the sentence passed is significantly higher that what we would expect – nearly double in fact (when account is made of whether there should be an extended sentence.
We could, of course, be wrong and there may be much more than was reported. But on that news report, we would say that Wales Online could have made a better job of explaining it, and the sentence was much higher than it should have been.