There is much speculation about what sentence Russell Brand will receive following his convictions today on one count of rape and three of sexual assault. He was acquitted of two further rapes and one attempted indecent assault.
With the very important warning that I have not seen or heard a word of the evidence, and am relying on press reports, it is possible to reach an educated guess at what the likely sentence will be.
The most serious conviction was for the 2009 rape of a woman in her early 20s. She was a huge fan of Mr Brand. She had had consensual sex with him after attending one of his performances. She had willingly gone to his Hampstead house, anticipating sexual activity, and told the jury that she then had consensual vaginal intercourse with him. She asked him to wear a condom. However, he then removed the condom and had anal intercourse with her. Her evidence was that she repeatedly begged him to stop, but he continued anyway.
“He didn’t give me a warning, he didn’t ask … I don’t know how long it took for me between it going on and me asking him to stop. I don’t think it was very long. I felt like I couldn’t speak or breathe, the amount of pain.”
Afterwards he told her she had been dirty and that she should “clear up the mess” that “she” had made. She described it as “one of the most painful experiences of her life.” She was bleeding and in pain for some time afterwards and feared that she might have been infected with HIV, although there is no suggestion that she had been. Her evidence was supported by near contemporaneous, complaints to her parents and friends, which may well have been an important factor why the jury were left in no doubt that she was a truthful and reliable witness.
The three sexual assaults were less serious. Count 3 related to grabbing a woman’s breasts at a party in a Soho bar. Count 5 was a sexual assault at a radio station. His victim said that he “mauled” her, kissing her sloppily and feeling her breasts. Count 7 occurred when the complainant – an employee of Channel 4 – was persuaded to give Brand a massage, during which he pressed his mouth and nose up against her groin. She said she felt repulsed and reported the incident to her employer.
Mr Brand was remanded in custody and told that he faces an inevitable prison sentence.
Mr Justice Bennathan will sentence him on Monday, a delay of just one working day plus what will be an exceedingly unpleasant weekend.
In many cases judges will ask for a much longer adjournment before passing sentence. This gives time for a Pre-Sentence Report to be prepared by the Probation Service, and if there is a suggestion that a defendant may suffer from any relevant medical or psychiatric issues for other relevant reports to be obtained. I don’t know why Bennathan J. feels no necessity to obtain a PSR, or even if anyone requested one. It may be that there is little that it could add to what he already knows. Reports are often of great importance when an offender stands on the cusp of a custodial or non-custodial sentence; when (for example) a constructive alternative of unpaid work, a lengthy curfew or compulsory drug or alcohol treatment may be suggested by the Probation Service. Those alternatives would certainly not be offered to Mr Brand.
One thing we may be able to deduce is that the judge is unlikely to make a finding that he is “dangerous.” That would qualify him for an “extended determinate sentence” under which his release before the end of his term of imprisonment would not be automatic but at the discretion of the Parole Board. It would be highly unusual for a judge to impose an sentence of that type without first seeking the views of the Probation Service. That the judge has not ordered a report indicates that he does not intend to make a finding of dangerousness.
The length, as opposed to the type, of the sentence will be determined by where the judge places the offences in the Sentencing Guidelines for rape.
The first step will be to determine the category into which the rape falls.
Categorisation depends on a combination of “harm” (ranging from 1 for the most serious, down to 3 for the least), and “culpability” (which can be A, the most serious, or B).
Dealing first with harm. Category 1 is reserved for the most extreme offences. This was not a Category 1 rape. Nor – in my view – was it a Category 3. At least one factor places it firmly in Category 2. Mr Brand’s demand that his victim clear up the mess that “she” had made as a consequence of his rape would seem to amount to, “additional degradation or humiliation.” There is another factor that might or might not apply depending on the evidence, not all of which has so far been made public: whilst all rape is assumed to cause some psychological harm, if the judge assesses that his victim suffered “severe” harm that too would put the rape into harm category 2.
There are no culpability A factors that I can see, so this would seem to be a category 2B offence. This carries a “starting point” of 8 years.
That, however, is not the finishing point. Mr Brand will almost certainly receive a significantly longer sentence than that.
The evidence is that he ejaculated during the course of the rape, having removed his condom saying “I want you to feel my cum.” Ejaculation is a specific “aggravating factor” that would push his sentence towards the 9 year top of the range for a 2B offence.
There is very little mitigation. The fact that his victim had consented to other sexual activity is not mitigation. A lack of previous convictions will be helpful to a first time burglar or small-time drug dealer, but the more serious the offence the less weight is given to a defendant’s previous good character. Mr Brand’s lack of convictions will count for almost nothing. Worse still, buried within the guidelines on mitigating factors is a warning for celebrity rapists:
“Where an offender has used their positive character or status to facilitate or conceal the offending it could be treated as an aggravating factor.”
That would seem to apply.
So for the rape alone, I would expect Mr Brand’s sentence to be at or close to the top of the 2B Category Range of 9 years.
But the rape does not stand alone. The judge will also have to sentence Mr Brand for the three sexual assaults on three separate victims. Had they stood alone and individually it is likely that only short and – in view of the current prison overcrowding – probably suspended prison sentences would have been imposed. But because of the rape conviction there will be no question of suspending the sentences.
The judge can either pass consecutive sentences for the sexual assaults, or pass concurrent sentences but increase the sentence on the rape above the 9 year top of the 2B category range to reflect the additional offences. It makes no practical difference. If I was advising Mr Brand I would be telling him to expect an increase of about 1 – 3 years beyond the sentence for the rape, leading to a final sentence of 10 – 12 years imprisonment. Readers will have their own opinions on whether that is too short, too long or just right. The only thing that we can be sure about is that had he been convicted of the other alleged rapes his sentence would be considerably longer.
When will he be released?
The rules on early release are complex and – as we have seen in recent months – constantly changing depending on both the degree of prison overcrowding and the political pressure to be especially severe on particular categories of prisoners. However, the current position is that assuming that Mr Brand receives a “standard determinate sentence” he will be entitled to release on licence once he has served two thirds of the sentence. Those serving sentences for rape have not benefitted from the recent changes in the early release provisions.
