England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE ATTORNEY GENERAL

		Royal Courts of Justice Strand, London, WC2A 2LL
		21st January 2003

Lord Justice Mantell:

1. On 16^th August 2002 at Plymouth Crown Court, TAG was found guilty on two counts of cruelty to a child contrary to Section 1 (1)(a) of the Children and Young Persons Act, 1933, two counts of indecent assault and two counts of rape. On 4^th October 2002 he was sentenced to a total of eight years imprisonment.
2. On 8^th April 2002 at Swindon Crown Court, NJK pleaded guilty to two counts of indecent assault and four counts of indecency with a child. On 18^th July 2002 he was sentenced to a community rehabilitation order of three years duration.
3. On 2^nd August 2002 at Worcester Crown Court, CCE pleaded guilty to three counts of indecent assault. He was sentenced in total to six months imprisonment coupled with an extended licence period of two years.
4. In all three cases, which involve sexual offences against young girls, the Attorney General considered that the sentences imposed were unduly lenient. Accordingly, on 16^th December 2002 he sought and was granted leave under Section 36 of the Criminal Justice Act 1988 to refer them to this court.
5. At the invitation of the Attorney General we agreed to consolidate the three references which we proceeded to hear on that date.
6. Although in each case we announced our decision, we chose to reserve our reasons. They now follow.
7. In opening his submissions the Attorney General has helpfully referred us to the recent decision in R –v- Millberry and Others 9^th December 2002 in which this court presided over by the Lord Chief Justice and including the Vice President in its constitution accepted the advice of the Sentencing Advisory Panel in formulating revised guidelines for sentencing in cases of rape. Whilst only one of the present cases is concerned with offences of rape the Attorney General submits that similar dimensions should apply to other categories of sexual offences. In Millberry at paragraph 8, giving the judgment of the court, the Lord Chief Justice said this:

"The Panel begins its proposals by suggesting that:

"there are, broadly three dimensions to consider in assessing the gravity of an individual offence of rape. The first is the degree of harm to the victim; the second is the level of culpability of the offender; and the third is the level of risk proposed by the offender to society."

We accept that courts should consider each of these dimensions whenever a sentence for rape is imposed. We endorse what was stated by Lord Lane in Billam, and repeated by the Panel in its advice, that while rape will always be a most serious offence, its gravity will depend very much upon the circumstances of the particular case and it will always be necessary to consider an individual case as a whole taking into account the three dimensions to which we have already referred."

8. For our part we readily accept the submission that it will be necessary to take account of similar considerations in all cases of sexual interference whether amounting to rape or not. However, that is not all. In all classes of sexual offences, there will also be the need to deter others from acting in a similar fashion.
9. The Attorney General further submits that standing alone, the fact that the offences are of some age is not necessarily a sufficient reason for imposing a lesser sentence than might otherwise have been the case. He draws our attention to what was said in Millberry at paragraph 17 "in relation to 'historic' cases where the offence is reported many years after it occurred":

"In these cases, also, we consider that the same starting point should apply. The fact that the offences are stale can be taken into account but only to a limited extent. It is, after all, always open to an offender to admit the offences and the fact that they are not reported earlier is often explained because of the relationship between the offender and the victim, which is an aggravating factor of the offence. A different factor that could cause the court to take a more lenient view than it would otherwise is the consequences which result from the age of the offender. In these cases the experience is that the offender may be only a danger to members of the family with whom he has a relationship. So this is a dimension which can be taken into account if there is a reduced risk of re-offending."

Again we accept the Attorney General's submission and allow that the same approach is equally applicable to all categories of sexual offending. Indeed it is a common feature of the instant cases that the victims have kept secret what had happened, sometimes following threats made or inducements offered and sometimes out of a sense of shame about what has been done to her. This, of itself, can aggravate the harm caused by the offence, as is demonstrated by impact statements from two of the victims. We agree, therefore, that before passing a lighter sentence because the offences are stale, the court should weigh the impact on the victim of the matter having remained secret for so long.

10. We turn to the individual cases.

TAG

11. The first offence of cruelty (count 1) involved the offender's son born in 1966. If the boy cried the offender would pile bedding on his face, flick and pull his ears, poke his eyes and pull his legs. At age seven, the boy picked up some sexually explicit pictures belonging to the offender and was severely smacked for having done so. In about 1974, at age eight the boy was made to stand on a chair in the presence of his sister as a prelude to the offender pulling down the boy's trousers and underpants and whipping him several times with the buckle end of a belt which resulted in the boy's legs and bottom being cut and bruised.
12. The offender's daughter was born in 1968. The most minor transgressions on her part were visited with extreme violence on his. If she interrupted at table he would strike her with his knife. On other occasions he would throw her about the room and abuse her verbally. He carved "I hate you" on her bed head. On one occasion he picked her up from the table, put her in the lavatory and banged her head on the door. This conduct resulted in a further charge of cruelty to a child.
13. When about eight or nine and not feeling well the daughter got into bed with her parents and lay between her mother and the offender. She was wearing a nightdress but no knickers. She woke up to find the offender's hand pressing on her vagina. That incident resulted in one of the charges of indecent assault.
14. The second charge of indecent assault concerned a friend of the daughter's, TM. The offender had set up what the offender called a "video-club" in his garden shed. There he would encourage his children and their friends to drink alcohol and watch pornographic and violent films. TM was a frequent visitor to the house and the video-club. When at the club the offender would frequently feel her breasts.
15. More seriously in late 1980 or early 1981 when TM was aged thirteen and visiting the offender's daughter she was told by the daughter to wait in the daughter's bedroom. The offender came into the room, pinned her against the wall, forced her to the floor and raped her. He threatened to kill her if she told anyone what had happened. At the time TM was a virgin and she has since suffered repeated nightmares. Even as an adult TM has had matrimonial problems and needed counselling all of which, it is suggested, may refer back to this dreadful experience. That was the subject of count 10.
16. The second offence of rape concerned another of the daughter's friends, RSC at a time when she was twelve or thirteen and going out with the offender's son. That was sometime between August 1980 and August 1982. The offender offered RSC a ride on his motorcycle which she accepted somewhat unwillingly. He then took her to a field saying he had something to show her. Once there, he forced her to the ground, put his arm round her throat, slapped and raped her. Afterwards her lip was bleeding which the offender blamed on her having struggled.
17. The offender is now aged fifty-four. He was convicted of rape in 1969 when twenty or twenty-one years of age for which he was given a suspended sentence of two years. The author of the pre-sentence report considers that "the risk of further offending is high".
18. The sentencing judge, who also presided over the trial, imposed sentences of three years for each of the offences of cruelty, nine months for each of the offences of indecent assault and eight years for each of the offences of rape. He ordered that all those terms be served concurrently so producing a total of eight years imprisonment.
19. The Attorney General has two main criticisms. First of all he submits that each of the offences of rape, in itself, merited a sentence of at least eight years. He refers once again to the case of Millberry and invites the court to take note of the fact that in each case the victim was a child, that in each case there was a relationship of trust existing between the offender and the victim, and that in one case a threat was issued and in the other an abduction followed by the use of force. It is the Attorney Generals further submission that the offences of cruelty should have been marked by sentences imposed consecutively to those for the rapes. We accept those submissions. Either offence of rape taken alone called for a sentence of at least eight years imprisonment in view of the age of the victim and the other circumstances to which we have referred. If it is considered appropriate to impose concurrent sentences, and we agree that it is, then having regard to the principle of totality we have come to the conclusion that a sentence of twelve years for each of these two offences would have been appropriate.
20. We also consider that the sentences for the offences of indecent assault fall short of what was required. We underline the ages of the victims, their vulnerability and the fact that the offender was in breach of trust. We consider that the least sentence that would have been appropriate in each case would have been one of fifteen months imprisonment. The Attorney General does not criticise the decision to order those sentences to be served concurrently with the sentences for the rapes and nor do we.
21. There is no criticism, as such, of the length of sentence imposed on each of the two offences of cruelty. It is submitted, however, that the offences being different in kind from the rapes and indecent assaults that any sentence imposed should was been ordered to run consecutively. We agree with that submission.
22. From all of which it would follow that in our view the total sentence should have been one of fifteen years imprisonment made up of concurrent sentences of three years for the offences of cruelty together with consecutive sentences of twelve years for the offences of rape and fifteen months for the offences of indecent assault, those sentences being concurrent as between themselves. As was stated on the last occasion we have regard to the principle of "double jeopardy" in substituting sentences of eleven years for each of the rapes and two years of each offence of cruelty thus producing a total sentence of thirteen years imprisonment.

NJK

23. The victim was a friend of the offender's daughter. She is now sixteen or seventeen years of age and the offences to which the offender pleaded guilty took place over a period of about two years between 1993 and 1995 when the victim was only seven or eight years of age. They represent two occasions (counts 1 and 4) when the offender put his hand down the little girl's top and rubbed her bare chest; two occasions (counts 2 and 5) when the offender made the little girl masturbate him; and two occasion (counts 3 and 6) when the little girl was made to take part in oral sex.
24. It seems that the victim used to visit her friend at the offender's house sometimes staying over night. Whilst there the offender would manufacture opportunities when he and the little girl would be alone, sometimes by arranging a game of hide and seek. He told the victim that if she mentioned what had been happening to anyone his daughter would be taken away from him and she, the daughter, would consequently lose her father. He also said that he would buy the victim's mother a present if the victim kept the matter to herself. The victim did in fact keep the matter secret until November 2001 when she told the mother of her boyfriend and it was by that route that the offender came to be arrested and interviewed. At first he denied the offences but later indicated that he would be pleading guilty.
25. The offences have had a profound effect upon the victim and her family. The girl finds it difficult to trust men and has become paranoid and depressed. Her relationships with others have suffered, particularly with her mother. The mother feels guilty for making the daughter stay overnight at the offender's home and has needed anti-depressants.
26. The offender is forty-four years of age. He has no previous convictions. He admitted the offences at an early stage and pleaded guilty. The Attorney General accepts that he feels, and has expressed, genuine remorse. He is not considered to be a high risk to others in the future. However, the author of the pre-sentence report was concerned that he should undertake a sex offender's programme. There is no doubt that he is willing to undertake such a course and that was something which influenced the learned judge in taking the course he did. He was facing a dilemma not unfamiliar to those responsible for sentencing for relatively minor sexual offences and a problem alluded to by this court in Attorney General's Reference 39/2002 Peter McKenna (3^rd June 2002), that is, unless an offender is sentenced to a term of something like three or four years imprisonment, it is unlikely that any sex offender's course will be made available to him in prison.
27. Initially on 5^th July 2002 this experienced judge pronounced a sentence of nine months imprisonment with an extended licence period of two years and three months but later appreciated that such a sentence was unlawful because the offences had been committed before 30 September 1998. So it was that on 18^th July 2002 he substituted a community rehabilitation order for three years in respect of each offence.
28. However, whilst recognising the difficulty which troubled the sentencing judge, we are satisfied that the gravity of these offences was such that only a custodial sentence was appropriate. It is for that reason that we expressed the view on 16^th December 2002 that these sentences were unduly lenient and indicated that an appropriate sentence at first instance would not have been less than four years in total. We stated the terms which would have been appropriate for each of the offences on the basis that they were to be served concurrently. We then had regard to the principle of "double jeopardy" and we substituted a total sentence of three years imprisonment. For the sake of convenience we repeat what was said on the earlier occasion namely that the sentence of three years, as substituted, consists of sentences of three years on each of counts 3 and 6, thirty months for each of counts 2 and 5 and fifteen months for each of counts 1 and 4, all of which are to be served concurrently and to start to run from the date when the offender surrenders to custody.

CCE

29. The offender, now aged fifty-five, had a window fitting business and in June or July 1991 was engaged to fit some windows at a house where a little girl of six was living with her parents. The work continued over a period of about three weeks during which the offender put his hand down the little girl's underpants and touched her vagina more or less on a daily basis. On one occasion, he persuaded the victim to place her hand on his penis and move it up and down.
30. The little girl said nothing about it for ten years but all the time remained upset and angry and increasingly so. Her education began to suffer. It was thought that she was suffering from learning difficulties. She was self-conscious about her body and would fake excuses to avoid sport at school. She argued with her parents and was referred to a psychologist. She was suspected of harming herself. As the sentencing judge, himself, remarked:

"One of the things this case demonstrates is how such abuse can blight the life of such a child for years on end."

31. The offender was charged with three counts of indecent assault, two relating to touching the girl's vagina and one to the occasion when he required the girl to touch his penis. To begin with, he declined to respond to questions, but having been identified on an identification parade by the victim he eventually changed his pleas of not guilty to guilty at what the sentencing judge described as "a very early stage".
32. In 1995 the offender was sentenced to twelve months imprisonment for indecently assaulting a girl in not dissimilar circumstances to those with which this court is concerned. He has stated that prison was a helpful experience and there is no suggestion that he has committed further offences since that date. He is now fifty-five years of age. His health is poor and he suffers severe and chronic back pain following an accident at work in 2000. He and his wife have separated as a result of these offences. The author of the pre-sentence report offers the view that the offender is genuinely aware of the terrible psychological harm he has caused to the victim and hates himself for it, having himself suffered sexual abuse as a teenager. It is also the opinion of the author of the report that the offender will continue to present a risk "not only in terms of re-offending but also in terms of causing serious psychological harm to young females" unless and until he receives treatment.
33. It is against that background that we are invited to review the total sentence of six months imprisonment made up of like concurrent terms for each of the three offences. The Attorney General criticises the judge's approach, which was to ask himself what the total sentence might have been had the offender fallen to be sentenced for these offences on the occasion he appeared before the court in 1995. It was the judge's view that the offender would have received a longer sentence than the twelve months which was imposed but not by more than six months. The Attorney General acknowledges that the sentencing judge was attempting a principled approach to the problem but suggests that he fell into error in attempting to second guess what might have happened on the earlier occasion rather than asking himself what a proper sentence would be for these offences having regard to all the circumstances and the effect upon the victim. After all, it is no one's fault but the offender's that these offences were not dealt with in 1995. It may be that had he admitted them at that time the effect might have been, as the sentencing judge envisaged, to produce a shorter term of imprisonment in total than would otherwise be the case. But he did not admit these offences in 1995 and the consequence has been that the victim has had to live with her secret for a further six years. Accordingly, we accept the Attorney General's submission, and at the previous hearing we expressed the view that the sentences imposed were unduly lenient stating that in our view the concurrent terms should have been no less than eighteen months on each count. And so, having regard to the principle of "double jeopardy", we quash the sentences of six months on each count and substitute terms of twelve months.
34. We now fulfil our promise made on 16^th December 2002 to revert to the question of the licence period. It seems that the judge made the same error as, until corrected, occurred in the case of NJK. He overlooked the fact, that these offences having been committed before 30 September 1998, the powers conferred under Section 85 of the Powers of Criminal Courts (Sentencing) Act 2000 were unavailable to him. Nor, it seems, did anyone point out the error. However, the court did have power under Section 86 of the Act to extend the licence period until the end of the custodial term regardless of the date upon which the offender obtains his release. In deciding whether to extend the licence period, as we have power to do under Section 36 of the Criminal Justice Act 1988, it is necessary to have regard to the need to protect the public from serious harm from offenders and the desirability of preventing the commission by them of further offences and securing their rehabilitation. Having regard to all those matters we do consider it right and proper for the offender to remain on licence until the end of the term of his twelve months sentence, and we so order.