The Court of Appeal held that where an offender's lack of reasonable belief in consent to rape was established by pre-penetration conduct (here, thrice-stated intention to rape), the victim's protests and obvious non-consent during penetration, and the offender's disregard of those protests, could properly be treated as aggravating features of the offending under the [name withheld] framework without impermissibly double-counting an element of the offence. The Court confirmed the principle from [name withheld] that conduct establishing an element of an offence cannot be treated as a circumstance of aggravation, but found on the facts that the sentencing judge had not done so. Leave to appeal against sentence was refused.
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