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Lennon, R v [1998] EWCA Crim 1216 (7 April 1998)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/1998/1216.html
Cite as:
[1998] EWCA Crim 1216,
[1999] 1 Cr App R (S) 19,
[1999] 1 Cr App Rep (S) 19
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LOFF JAMES LENNON, R v. [1998] EWCA Crim 1216 (7th April, 1998)
WNO:
97/7489/W5
IN
THE COURT OF APPEAL
CRIMINAL
DIVISION
Royal
Courts of Justice
Strand
London
WC2A 2LL
Tuesday
7th April 1998
B
e f o r e:
LORD
JUSTICE HENRY
MR
JUSTICE KEENE
and
HIS
HONOUR JUDGE COLSTON QC
(Acting
as a Judge of the Court of Appeal Criminal Division)
-
- - - - - - -
R
E G I N A
-
v -
LOFF
JAMES LENNON
-
- - - - - - -
Handed-down
judgment of Smith Bernal Reporting Limited
180
Fleet Street, London EC4A 2HD Tel: 0171 831 3183
(Official
Shorthand Writers to the Court)
-
- - - - - - -
MR
P ROCHE
(MR H SOUTHEY) appeared on behalf of the Appellant
MR
E GLUCKSTEIN
(MR D BOWEN) appeared on behalf of the Crown
-
- - - - - - -
REASONS
FOR JUDGMENT
(As
approved by the Court)
-
- - - - - - -
Crown
Copyright
LORD
JUSTICE HENRY:
On
1st April 1998 we dismissed this appellant’s appeals against both
conviction and sentence. Our reasons for dismissing the appeal against
conviction were given at that time. So far as sentence is concerned, we were
then met with a submission that it had been laid down in the case of
D
[1997] 2 Cr App R (S) 5 that there was an “established sentencing
tariff” (after a trial) in a case like this of a sentence of imprisonment
of between 13 and 18 months. We did not accept that there was such a tariff,
but postponed our reasons for dismissing the appeal against sentence pending
fuller consideration of the cases said to lay down such a tariff.
The
facts of the case were these. The victim was nine at the time of the offence,
and the appellant 52. He stood in a position of trust to her because of his
four-year relationship with the girl’s mother. On the offence in
question, the jury convicted of the indecent assault after acquitting of a
count of attempted rape arising out of the same facts. The complainant’s
account was that the appellant had masturbated onto his jeans and then jumped
onto her and pulled her trousers and knickers off and tried to put his penis
into her. The judge sentenced on the basis that the jury had found the
appellant guilty of the surrounding circumstances short of the attempted rape
itself. He treated it as a single isolated act, but aggravated by the
girl’s youth and the breach of trust. The judge said in terms that there
was a deterrent element in the sentence.
Our
fuller researches support the doubts we felt as to whether the authorities
cited justified the “established tariff” suggested.
The
Legislative History
The
Sexual Offences Act, 1956 received the Royal Assent on 2nd August 1956. It
was, as the heading to the Act made plain:
“An
Act to consolidate (with corrections and improvements ...) the statute law of
England and Wales relating to sexual crimes ...”
"
Section
14(1) provides:
“It
is an offence ... for a person to make an indecent assault on a woman.”
Section
15(1) provides:
“It
is an offence for a person to make an indecent assault on a man.”
The
punishment for those - and all other offences under the 1956 Act - are provided
for in the Second Schedule: see Section 37.
In
1998 it might be taken for granted that the maximum penalty for the offence -
indecent assault - should be the same whether the victim is a man or a woman.
That was not the view taken by Parliament 42 years ago. The 1956 Act provides
the maximum sentence for indecent assault:
on
a woman
2
years
on
a man
10
years
The
only available means by which, in bad cases, the courts could impose a sentence
of more than two years on an offender would be those in which the indictment
contained more than one count and the sentence could properly be structured so
as to involve consecutive sentences. That option would, of course, not be
available in every case.
The
need to give added protection to young girls was recognised by Parliament four
years later when, by Section 2(i)(b) of the Indecency with Children Act, 1960,
the maximum sentence for “indecent assault on a girl who is stated in the
indictment and proved to have been at the time under that age” (ie, 13
years) was increased to five years. Even that limited change meant that the
courts’ powers of sentence in relation to indecent assaults on males of
any age were twice those which applied in the case of offences against girls
under 13.
It
was not until 1985 - 29 years after the Sexual Offences Act, 1956 was passed -
that Parliament saw fit to legislate for equality between the sexes so far as
victims of indecent assault are concerned.
The
Sexual Offences Act, 1985 provides, by Section 3(3), that the maximum sentence
for indecent assault on a woman - regardless of her age - is ten years. That
amendment took effect on 16th September 1985. We underline the fact that, by
the Sexual Offences Act, 1985, Parliament was increasing the maximum sentence
for indecent assault on a woman (over the age of 13) from two years to ten
years, and for such an offence on a girl under 13 from five years to ten years.
It
is against that legislative background that we turn to consider the
authorities. Dr David Thomas’s Current Sentencing Practice includes no
less than 43 cases relating to decisions of the Court of Appeal (Criminal
Division) under the heading “Indecent Assault on a Young Child”.
We have looked at them all. In our judgment, however, it is imperative to
remember the point made by Judge J when delivering the decision of this Court,
presided over by the Lord Chief Justice, Lord Lane, in
H
[1991] 12 Cr App R (S) 589:
“This
Court of course takes due notice of decisions in similar cases but recognises
that the circumstances of all offences of indecency vary infinitely in their
different circumstances.”
To
that we would respectfully add that sentences in earlier cases must also be
viewed against the statutory framework which was in force at the time when the
offences were committed. It appears to us that counsel may not always have had
that factor in mind when addressing this Court in appeals against sentence when
the Crown has not been represented.
The
authority principally relied on by Mr Roche in seeking to persuade us that the
sentence of two years’ imprisonment passed upon the appellant by His
Honour Judge Hardy was manifestly excessive was
D
to which we have already referred. The headnote reads:
“Two
years’ imprisonment imposed on a trainee priest for an indecent assault
on a girl aged 10 left in his care reduced to 18 months.
The
appellant was convicted of indecent assault on a female, a girl aged 10. The
appellant, a trainee priest, met the mother of the complainant through working
in a charitable organisation. One night the child was left in a flat in the
care of the appellant. The child complained that the appellant had got into
her bed naked and pressed her vagina with his hand; the child then got out of
the bed and left the flat. The appellant denied the offence. Sentenced to two
years’ imprisonment.
Held:
(considering
V
(1981) 3 Cr App R (S) 315,
S
(1986) 8 Cr App R (S) 325,
G
(1987) 9 Cr App R (S) 391,
M
(1992) 14 Cr App R (S) 126 and
A
(1993) 14 Cr App R (S) 779) the cases showed that there was an established
tariff of sentencing for this type of offence. On a plea of guilty for
repeated indecent assaults where there had been a breach of trust, sentences of
between nine and 12 months’ imprisonment had been approved. It followed
that in the present case, which involved a trial, the sentence would have been
in the region of 13 to 18 months. The case involved a gross breach of trust,
but only one isolated act. The sentence of two years’ imprisonment was
excessive; a sentence of 18 months’ imprisonment was substituted.”
The
offence in
D
was committed on 17th November 1995 and it follows that it was governed by the
Sexual Offences Act, 1985. The judgment of the Court dealt with the so-called
tariff as follows:
“Mr
Lynch referred us to a number of decided cases, dealing with the appropriate
sentence in cases of this kind:
V
(1981) 3 Cr App R (S) 315,
S
(1986) 8 Cr App R (S) 325,
G
(1987) 9 Cr App R (S) 391,
M
(1992) 14 Cr App R (S) 126 and
A
(1993) 14 Cr App R (S) 779). Those cases show that there has been an
established tariff of sentencing in respect of this type of offence. On a plea
of guilty, for repeated indecent assaults, where there has been a breach of
trust, sentences of between nine and 12 months’ imprisonment have been
approved by this Court. Thus it may be said that the maximum sentence,
speaking broadly, following the tariff in this case, which was a contested
trial, would be in the region to 13 to 18 months’ imprisonment.”
When
that passage was drawn to our attention, we were concerned at the fact that it
appeared that the courts were broadly putting a maximum (after a trial) of 18
months in relation to an offence where the statutory maximum was ten years.
Although
we have considered all the 43 cases referred to in Current Sentencing Practice,
we confine ourselves to reviewing those to which the Court was referred in
D.
Examination of those authorities show that two were decided under the old,
pre-1985 law, and that the remainder relied heavily on those authorities.
First,
V
[1983] 3 Cr App R (S) 315. For our purposes the facts are adequately
summarised in the headnote:
“Two
years’ imprisonment reduced to nine months in the case of a man of 28 who
indecently assaulted his two nieces, aged 11 and 10, the assaults not being the
most serious of their kind.
The
appellant, a married man of 28, pleaded guilty to two counts of indecent
assault. He had behaved indecently towards his two nieces, aged 10 and 11,
over a period of about six months. The assaults consisted of touching the
girls’ private parts and exposing himself to them; there was not
suggestion of any attempted penetration or the use of force. Sentenced to two
years’ imprisonment.
Held,
the sentence of two years was too heavy. Twelve months would have been the
right sentence if the appellant had not pleaded guilty. The sentences would
accordingly be reduced to nine months’ imprisonment”
That
was case, of course, decided under the law as it was before the Sexual Offences
Act, 1985, and, in our opinion, there is a real danger in such cases being
cited today in support of the appropriate level of sentencing as opposed to
highlighting general principles such as the type of aggravating or mitigating
features which are relevant in every case, whatever the current statutory
framework may be.
Next,
S
[1986] 8 Cr App R (S) 325. For our purposes the facts can again be taken from
the headnote:
“Fifteen
month’s imprisonment reduced to nine in the case of a man of 58 who
indecently assaulted two girls who were related to him.
The
appellant, a man of 58 pleaded guilty to two counts of indecent assault. On
several occasions he had assaulted the 12-year-old step-daughter of his son by
placing his finger in her vagina, and the seven-year-old grand-daughter of his
wife by touching her outside her clothing. Sentenced to a total of 15
month’s imprisonment.
Held,
(considering
V
(1983) 3 Cr App R (S) 315) these assaults were no more serious than those in
V,
where sentences totalling two years were reduced to nine months, partly on the
ground of the appellant’s plea. The sentence in the present case was out
of scale, and a sentence of nine months would be substituted.”
What
is not clear from the headnote, but is clear from the judgment, is that the
offences had occurred in 1984, prior to the Sexual Offences Act, 1985. In our
opinion, as with
V
so with
S,
little help can be derived from that case as to the correct level of sentencing
in 1998.
In
G
[1988] 9 Cr App R (S) 391, the judgment of the Court was given by Stocker LJ,
who had also presided over the Court in
S.
Again, we refer to the headnote:
“The
appellant pleaded guilty to indecent assault on a girl aged 13. The appellant
had been baby-sitting: when the parents of the child returned he went out to a
party where he consumed alcohol, and later returned to the house where he had
been baby-sitting, went to the bedroom where the girl of 13 was sleeping and
inserted his finger into her private parts. The appellant admitted the whole
matter when interviewed by the police. Sentenced to two years’
imprisonment.
Held:
(considering
V
(1981) 3 Cr App R (S) 315 and
S
(1986) 8 Cr App R (S) 325) in order that there should be uniformity of sentence
so far as it was possible to achieve that object, the Court considered that the
sentence of two years was too long.
V
was decided before the increase in the maximum sentence for indecent assault on
females, but that was not so in
S.
The fact that the increase had been made by statutory dictate did not
necessarily mean that the principles applied in
V
and
S
were not equally applicable today. Accordingly, the Court felt that having
regard to all the matters of mitigation, the appropriate sentence would have
been nine months’ imprisonment. As the appellant had been in custody for
nearly six months, the sentence would be reduced to one which would permit his
immediate release.”
At
page 393, Stocker LJ said:
I
should say the case of
V
was decided before the increase of the maximum sentence from two years to 10
years which was made by the 1985 Act. That is not so in the case of
S.
But the fact is that although the increase has been made by statutory dictate,
it does not necessarily follow from that that the principles that were
applicable in
V
and
S
are not equally applicable today.”
S
was, of course,
decided
after the Sexual Offences Act, 1985 had come into force but, as we have noted
above, it was a case involving offences in 1984. Insofar, therefore, as the
passage we have quoted from Stocker LJ may be taken to mean that the principles
of the
level
of sentencing
are not affected (or should not be affected) by the increase in the statutory
maximum we respectfully disagree.
In
M
[1993] 14 Cr App R (S) 126 the facts were that:
“The
appellant pleaded guilty to three counts of indecent assault and one of
indecency with a child. The victim of the offences, a girl aged between 13 and
15, lived next door to the appellant: the appellant invited her into his house
to show her how to use a computer. Over a period of two years the appellant
assaulted the victim in various ways, eventually touching her vagina and
inviting her to touch his penis. Sentenced to 18 months’
imprisonment.”
The
Court reduced the 18 month sentence, passed by the trial judge, to 12 months.
The only case cited to the Court was
V.
The judgment reads:
“The
Court draws attention to the case of
V
[sic] (1981) 3 Cr App R (S) 315, where, in the case of a man of 28, a sentence
of two years’ imprisonment was reduced to nine months, he having
indecently assaulted his two nieces aged 11 and 10. Those assaults consisted
of touching the girls’ private parts and the man exposing himself. There
was not in that case any suggestion of attempted penetration and the use of
force. It is was not a feature of the case. It was there held that the
sentence of two years was too heavy. Twelve months would have been the right
sentence if the appellant had not pleaded guilty. A reduction of three months
would give proper credit for his plea. So it was that the sentences were
reduced to nine months in that case.
Of
course, it can sometimes be misleading and unhelpful to try and draw too
accurate a comparison between the facts of any one case and those of another.
Nevertheless, we have come to the conclusion that, given this appellant’s
good character, the fact that he is unlikely to commit this sort of offence
again, the fact that these offences were not the worst of their kind and the
fact that he pleaded guilty, albeit at the last moment, were all factors which,
in the judgment of this Court, should have led the sentencing judge to pass a
shorter sentence than that which he did.”
It
does not appear that the Court’s attention was drawn to the entirely
different statutory framework which applied when
V
was decided and, with respect, we doubt whether, in those circumstances,
M
should be regarded as other than a decision on its own facts.
Finally,
A
[1993] 14 Cr App R (S) 779. The headnote reads:
“Two
years’ imprisonment upheld for two offences of indecency with a 12-year
old girl.
The
appellant pleaded guilty to two offences of indecency with a child. The
appellant was in company with two 12-year-old girls, one the daughter of a
lodger in his home and the other her friend. The appellant persuaded one of
the girls to touch his penis and masturbated in front of them; on another
occasion he encouraged both girls to masturbate him. Sentenced to 12
months’ imprisonment on each count consecutive.
Held:
(considering
V
(1981) 3 Cr App R (S) 315, and
M
(1992) 14 Cr App R (S) 126 the present case was serious, as it involved a
degree of planning and an element of compulsion in relation to one of the
girls. The conduct of the appellant in masturbating was more serious than in
M.
The sentences were not too long.”
That
case involved two counts of indecency with a child contrary to Section 1(I) to
the Indecency with Children Act, 1960. It follows that it cannot, in our
judgment, be regarded as an authority on the proper level of sentencing for
indecent assault - not least because at the time of that decision, the maximum
sentence for indecency with a child was two years’ imprisonment. We note
in passing that, with effect from 1st October 1997, the maximum sentence for
that offence was increased from two years to 10 years, thus bringing it into
line with indecent assault on both males and females: see Crime (Sentences)
Act, 1997, Section 52. We also note that Glidewell LJ there said of
V
that it was
“...
not very much help. A great deal has happened since 1981 and in particular a
great deal more is known about offences relating to children and the effect
they can have on children”
We
agree.
In
our judgment, the authorities we have sought to review cannot, when read in the
light of the statutory framework in force at the material time, be said to
provide a tariff sentencing bracket at the level referred to in
D.
To that extent we respectfully disagree with that decision which may need to
be regarded as confined to its own facts.
It
is not the purpose of this judgment to seek to lay down guidelines for
sentencing in cases of indecent assault. It is never easy to sentence in such
cases. The circumstances of each case will, as we have already noted, vary
greatly.
What
the judge must do, as we see it, is to tailor the sentence to the particular
facts of the case before the court. In most cases the personal circumstances
of the offender will have to take second place behind the plain duty of the
court to protect the victims of sexual attacks and to reflect the clear
intention of Parliament that offences of this kind are to be met with greater
severity than may have been the case in former years when the position of the
victim may not have been so clearly focused in the public eye.
In
this case, the sentence of two years passed by His Honour Judge Hardy cannot be
regarded as manifestly excessive for an offence which involved a grave breach
of trust. It is for these reasons that we have dismissed this appeal against
sentence.
© 1998 Crown Copyright