England and Wales Court of Appeal (Criminal Division) Decisions

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URL: http://www.bailii.org/ew/cases/EWCA/Crim/2001/2580.html
Cite as: [2002] 2 Cr App Rep (S) 10, [2001] EWCA Crim 2580, [2002] 2 Cr App R (S) 10

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		Neutral Citation Number: [2001] EWCA Crim 2580
		No: 200105568/Z4

IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice
Strand
London WC2A 2LL

12th November 2001

B e f o r e :

THE VICE PRESIDENT OF THE QUEEN'S BENCH DIVISION
(LORD JUSTICE KENNEDY)
MR JUSTICE BELL
and
MR JUSTICE COOKE
____________________

	R E G I N A
	- v -
	JULIAN SHORTHOUSE

____________________

Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2HD
Tel No: 0171 421 4040 Fax No: 0171 831 8838
(Official Shorthand Writers to the Court)

____________________

MR A SMITH appeared on behalf of the Appellant
____________________

HTML VERSION OF JUDGMENT
____________________

MR JUSTICE BELL: On 1st August 2001, in the Crown Court at Preston, the appellant pleaded guilty on re-arraignment on what would have been the first day of a contested trial, to indecent assault of a female. He entered his plea on a basis agreed by the Crown and, we are told, endorsed by the complainant. On 10th September 2001, he was sentenced to 8 months' imprisonment. He now appeals against that sentence by leave of the Single Judge.

The appellant is 31, a married man with a very young child. His only previous convictions, sometime ago now, related to the use of motor vehicles. This was his first custodial sentence.

At the material time he and the complainant were employed at Blackpool Pleasure Beach as uniformed security guards. The employees were mainly men, and there was a lot of banter, some of which was of a sexual nature. The complainant did not mind the banter and found the best way to deal with it was to join in.

On Saturday 27th May 2000, she was on duty at the gate house to the staff entrance, all day. The appellant went to the gate house for about an hour-and-a-half in the afternoon and made a number of remarks of a sexual nature to her. These included comments about undoing her zip and asking 'to feel her tits'. He then placed his hand into her trouser pocket. The complainant told him to stop. He then received a call and left the gate house but returned later, and resumed his comments.

At the end of the duty period the complainant went to the office to clock off. The appellant arrived shortly afterwards and closed the door. He gripped her by the arm and unzipped her trousers, and placed his hand inside her trousers. She was not wearing underwear. The incident lasted, according to her, a moment, but it seemed longer. The appellant let her go when he heard someone coming.

The complainant contacted two colleagues in a distressed state later the same evening and told one of them about the incident. She reported the matter to the police the following day, when she was still in a distressed condition. She had a small bruise on her upper arm where the appellant had grabbed her.

The appellant was arrested and interviewed. He said that the complainant had told him she was not wearing knickers and was giving him the 'come on' and he became aroused. But he accepted that the complainant had said lots of things in an attempt to put him off, as indeed she had. He accepted that he had taken hold of her arm. He accepted that she had told him to stop. He went on to say that "all he did was pull her zip down and put his hand down her trousers and feel her pubes". He agreed that he had lost control and he accepted that he had overstepped the line regarding sexual banter and taken matters too far.

The basis of plea agreed with the Crown was that there had been banter throughout the working day between the appellant and the complainant, that in the office the appellant had overstepped the mark, and lost control as he had said in interview and that he accepted gripping the complainant's arm and unzipping her trousers and placing his hand inside. But he did not insert his finger into her vagina as she had originally alleged. That was accepted.

A pre-sentence report on the appellant said that the combination of his insight into his behaviour, his remorse and his wish to maintain his own family stability would ensure that the risk of future offending was minimal. He was regarded by his employers as honourable, trustworthy and thoroughly honest. The judge, when sentencing the appellant, gave him full credit for his plea, coming late but on an agreed basis. He noted the minimal risk of reoffending but said that the incident went beyond voluntary banter between male and female staff and that a message had to go out that this type of behaviour, in the course of employment, was unacceptable and that only an immediate custodial sentence was appropriate.

Mr Smith accepts that only an immediate custodial sentence was appropriate, but contends that the period of 8 months which must have involved the judge starting from 12 months, had the matter been contested, was excessive in the light of the appellant's plea, the particular basis upon which it was entered and his personal circumstances, the father of a young family, with no previous custodial sentence.

Those last matters may have lost some of their bite since the appellant is now on home detention curfew, but of course he is nevertheless at risk throughout the period of curfew.

In our view, the judge was entitled, despite the defendant's personal circumstances, to include a deterrent element in the sentence which he imposed in this case. No doubt a period of imprisonment shorter than 8 months would have provided an adequate deterrent to the appellant himself. But the sentence which the judge imposed rightly, in our view, contained a deterrent element to others who might participate in similar behaviour.

A degree of force was used by the appellant. The assault took place in a room where the complainant was alone with him and it was no doubt a worrying and distressing incident. In all the circumstances of this particular case, and we are only concerned with the circumstances of this particular case, we do not consider that the sentence which the judge imposed was excessive. This appeal is therefore dismissed.