England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROMTHE CROWN COURT AT BRISTOL
HIS HONOUR JUDGE TICEHURST
T20040302

		Royal Courts of Justice Strand. London. WC2A 2LL
		15/07/2005

Mr Justice Nelson:

1. On 26th July 2004, at the Crown Court at Bristol, the applicant pleaded guilty to three offences of sexual intercourse with a girl under 16 and one offence of indecent assault on a female. On the 17th September 2004 he was sentenced to 18 months imprisonment, concurrent on each count of sexual intercourse with a girl under 16 and 4 years imprisonment for indecent assault on a female. All the sentences were concurrent so the total term of imprisonment was one of 4 years. The Judge considered that it was appropriate to extend the licence period for 3 years and therefore passed an extended sentence of 7 years under section 85 of the Powers of Criminal Courts (Sentencing) Act 2000 consisting of a custodial element of 4 years and an extended period of licence of 3 years. Other counts of indecent assault on a female were left on the file on the usual terms. The Defendant was required to comply with the provisions relating to notification to the police under part 2 of the Sexual Offences Act 2003 indefinitely in view of his convictions. He was also disqualified from working with children indefinitely.
2. The renewed application for leave to appeal against sentence following the refusal by the single Judge was heard by this Court on 12th July 2005. Leave to appeal was then given and the appeal allowed by reducing the sentence of 4 years for indecent assault to one of 3 years and reducing the extended sentence from 7 years to one of 6 six years with a custodial element of 3 years and an extended licence period of 3 years. The orders as to notification of the police and working with children for an indefinite period were left in place. The following are the reasons for this decision.

The Facts.

3. The Appellant is a long serving police officer who had a distinguished career in the police with many commendations. He was also the musical director at his church. The victim, H, was a boarder at a school in Somerset. Her grandparents, whom she visited from time to time, lived next door to the Appellant and it was through that contact that they met shortly before H's 13^th birthday.
4. The friendship between them grew. Contact was mostly through mobile telephone about which H's mother became concerned when in the summer of 2002 she became aware from mobile telephone billing records that there was an excessive amount of communication between her daughter and the Appellant, a man some twenty years older than her. H's mother spoke to the Appellant by telephone. He apologised and said that it would not' continue. But it did. H's mother was angry with the Appellant and he again apologised. He said that the victim had a crush on him and that he would ensure that contact was reduced. It did not. It continued, eventually developing into a sexual relationship. Initially it was just kissing but shortly after H reached her 14^th birthday on 23 August 2002 it developed into sexual touching, mutual masturbation· and mutual oral sex. Mobile telephone billing and text message traffic emphasised how the relationship had developed with a huge amount of communication between them. Without permission from her parents, or the school, the Appellant took H out from the school. They would drive to country lanes where the sexual activity took place, initially masturbating and oral sex, and ultimately sexual intercourse starting in Mayor June of2003.
5. H made it clear in her interview that all the sexual activity was with her full consent. She had never had any sexual experience with anyone else. She said that she fell in love with the Appellant and did not feel coerced or pressurised. She felt that she was the only person in the Appellant's life, despite the fact that he was a married man. He had told her that he was going to leave his wife for her and that he wanted children with her and get married to her but was unable to leave his wife at the time because it might upset her.
6. In the autumn of 2003 H went on holiday and did not immediately contact the Appellant when she returned. The Appellant stabbed himself but reported that an offence had been committed against him. When the incident was later investigated he was cautioned for wasting police time. In December 2003 the Appellant said to the victim that he would end his life and he did injure himself by cutting his. wrists. He was visited in hospital by a pastor and an associate from his church when he admitted his sexual relationship with H and was encouraged to go to the police. To other members of his congregation he described himself as having been H's 'first boy'. A school friend of H said that the Appellant bought H suspenders, thongs and stockings as well as chocolates, food and perfume. This was disputed by the Appellant who denied ever buying her sexy underwear.
7. After he had been cautioned for wasting police time in relation to the self-inflicted stabbing his relationship with H began to be investigated. On 6^th February 2004 the Appellant was arrested but deemed unfit for interview because of depression and distress. He was released to the care of a psychiatric unit as a voluntary patient. A decision to caution him was taken and a caution was offered in February 2004 but withdrawn on the day that it was to be given.
8. The Appellant was re-arrested on 26^th February 2004 and charged. He was released on bail with a condition not to contact the victim, but, in the six weeks after his arrest until his further arrest in April 2004, he called the victim on her mobile telephone 495 times speaking to her for in excess of 60 hours. The majority of the calls were from the Appellant to the victim, but some were from the victim to him. The number of calls was ascertained from a mobile telephone found hidden ort a roof beam and a SIM card hidden behind a bedroom light switch in the Appellant's home. Text messages were recovered which spoke of the Appellant's wish to marry the victim and for her to have babies. They talked about their love not being betrayed.
9. H made a second statement to the police saying that she had only made the first statement because she had thought that the Appellant was merely going to be cautioned. When she discovered he wasn't to be cautioned, but to be charged she said that she would not attend court. Arising out of the caution and charge an application to dismiss the case was made on the grounds of abuse of process before His Honour Judge Ticehurst. This application was dismissed on 24 June 2004 and the Appellant offered pleas of guilty to Counts 1, 2 and 3 and Count 4 on a specimen basis, which were accepted by the Prosecution. Those pleas were entered on 26 July 2004. Counts I, 2 and 3 related to specific incidents of sexual intercourse whereas Count 4 was a specimen count intended to relate to the sexual activity between them, other than the acts of sexual intercourse, between September 2002 and February 2004 when their physical relationship ceased:
10. Leave to appeal against the conviction was sought upon the basis that the convictions, albeit by pleas of guilty, were unsafe as no trial should ever have taken place. Leave was refused in respect of conviction and has not been renewed .

The antecedents.

11. The Appellant is a man of previous good character. He is now 39 years old. He had an exemplary career in the police with numerous commendations for both bravery and competence. He is a talented musician and was music director at his church.
12. The pre-sentence report dated 15 September 2004 concluded that the Appellant's behaviour must have been driven by a powerful compulsion for sexual gratification in order to overcome the internal inhibitors, or rational thinking, that would normally have prevented him risking his career, status, reputation and the disapproval of his wife, family and friends. He had had an exemplary career in the police force but had recently been dismissed and had lost his pension. Lack of income would most likely lead to the sale of the marital home. The writer of the pre-sentence report was concerned that the Appellant could not articulate his motivation. Her assessment was that he remained a significant risk of re-offending until he examined his behaviour through a Sex Offender Treatment Programme. If an extended sentence were passed it _ would require three years to complete a Community Sex Offender Programme. -
13. There were in addition before the Court a substantial number of references, statements, news articles and certificates of commendation. The references from both family and friends and in particular the Appellant's wife are strongly supportive of him as a man and emphasise his good qualities. They also strongly espouse his appeal.

Sentence.

14. The Judge said that whilst he accepted that the Appellant bitterly regretted his behaviour legislation was there to protect young people from sexual abuse by older men and in the Appellant's case someone who was in a position of authority and trust simply by being a police 9fficer. The Judge was of the opinion that by his conduct he had, as the victim impact statement from H's mother said, caused immense pain to the family and blighted H's adolescence. He regarded the indecent assaults as part and parcel of an ongoing period of conduct over a lengthy period leading to sexual intercourse between the Appellant and the young girl. Although the Judge accepted that in some cases sexual conduct was initiated by H he concluded that the Appellant had abused and preyed on a vulnerable young girl, grooming her over a period of time with presents, gifts and attention showered upon her. Credit was given for the plea of guilty and the letters and statements before the Court. The length of the sentence- was necessary to reflect the breaches of trust and authority, and the grooming of the victim which reflected the calculated and deliberate nature of his conduct. An extended period of licence for 3 years to protect the public, in particular young girls from any interest he may have in them in the future was necessary.

The grounds of appeal and submissions.

15. The grounds assert that the 4 year sentence for indecent assault was manifestly
excessive as:-

a) The sentence failed to reflect adequately his guilty plea and personal mitigation

b) The sentence was more consistent with sentences imposed for more serious sexual offences against much younger children

c) The Judge failed adequately to reflect the consensual nature of the sexual activity .

d) The Judge misapplied the reasoning in R v Figg [2004] 1 Cr App R (8) 409.

16. Miss Elder, in her helpful submissions to the Court, accepted that the offences of indecent assault were separate and distinct from the offences of sexual intercourse with a girl under 16 and that the 2 year maximum in relation to the latter offences did not bind the Judge in sentencing on the offences of indecent assault for which the maximum is 10 years. This concession was rightly made. Where the indecent assault is in truth no more than the sexual intercourse itself or part of the foreplay leading to the unlawful sexual intercourse the maximum of 2 years should apply to both sets of offences. Where however, as here, the indecent assault can properly be regarded as separate and distinct offences occurring on different days, indeed to begin with in a different year, the maximum of 10 years applies to the indecent assault offences. See R v Cranshaw [2005] 1 Crim App R (8) 89 .
17. Miss Elder submitted that there were two matters of particular importance to be taken into account when considering this case. Firstly it was throughout a consensual relationship, and in no sense forced upon the victim by the Appellant. Indeed it was a powerful infatuation on both sides. It has therefore to be distinguished, Miss Elder submits, from those cases of an older man ingratiating himself with a child. It was not a classic case of grooming and the presents given by the Appellant to H could properly be regarded as those stemming from a romantic attachment rather than as part of an act of grooming. Secondly, although there is no doubt that the Appellant was in a position of authority and trust he was not in a specific position of trust in relation to H, as he met her as the next-door neighbour of her grandparents rather than in his capacity of police officer or indeed director of music at the church.
18. The Judge did not appear to have given sufficient credit for the pleas of guilty. They were entered immediately after legal arguments had been completed and hence were at the earliest reasonable opportunity. Perhaps more importantly on the facts of this case, Miss Elder submitted, was the fact that had the Appellant not pleaded guilty proceedings against him might never have been taken as the complainant had indicated that she was not simply prepared to go to court or, had she been compelled to do so, may not have been prepared to have given evidence. Substantial credit for a plea in such circumstances is appropriate.
19. The Appellant has served as a police officer with distinction. He was· still supported by his wife, family and friends. He had lost his job, his pension and his position in the church.
20. The sentence of 4 years for the·· indecent assault was excessive on the facts of this case. The authorities demonstrated that a sentence in the range of 3 to 5 years was frequently given for assaults on much younger children. Thus for example in Attorney General's reference numbers 91, 119 and 120 of 2002 [2003} 2 Crim App R (8) 55 a sentence of at least 4 years was said to be appropriate where an 8 year old victim had been made to take part in oral sex and masturbate the offender.
21. Miss Elder submitted that the Judge had misapplied the decision in R v Figg by appearing during the course of argument to consider that that decision enabled a judge to sentence for unlawful sexual intercourse in excess of the maximum of 2 years by passing a sentence in excess of that maximum in respect of other offences. There was a danger that the Appellant was being sentenced twice for unlawful sexual intercourse.
22. Lastly it was submitted that the extended licence period of 3 years was too long.

The decision of the Court.

23. These were without question serious offences. The law must protect young girls from the sexual attentions of much older men. Here H was only 14 when the sexual activity started and only 13 when she and the Appellant, then a man in his late 30's, met her. She has, as the Judge said, been deprived of at least some of her adolescence. We are inclined to accept Miss Elder's submissions that this is not a classic case of grooming, but more a case of strong mutual infatuation. Nevertheless it does not alter the fact that the Appellant was a police officer and church music director and clearly these matters would have had an effect on how he would be perceived by an impressionable 13-year-old girl. He has been described in the papers as a charismatic figure. He may not have actually used his position as a police officer to engage the girl's attention and affection and he did not of course meet her when on duty, or at the church, but as the Judge said, the mere fact that he was a police officer meant that people would trust and respect him, and of this he must have been aware.
24. This was, we are satisfied, a case where a young girl should have been able to trust a respected member of the community to treat her as she was, no more than a young girl. He certainly should not have treated her as a lover.
25. Even if this is not a classic case of grooming or the worst kind of breach of trust, it remains a grave offence. No responsible man, especially one who has the trust and respect of society, should allow himself to embark on a sexual relationship with a young girl who as a consequence may effectively be deprived of part of her youth. Such was the Appellant's infatuation with H that he commenced a sexual relationship with her when, as he must have known, his age and position in society must have influenced or encouraged her participation.
26. We do not accept Miss Elder's submission that there was a danger here of the Judge sentencing the Appellant twice for the unlawful sexual intercourse. Once it is accepted, as it rightly was, that the indecent assaults are separate and distinct offences the Judge was entitled, and indeed right to take the view that they should be sentenced on their own merit and entirely separately. It has to be borne in mind that the indecent assaults commenced some six or seven months before sexual intercourse took place. They commenced when the victim was only just 14. There is no proper basis for contending that the Judge misapplied the case of R v Figg.
27. We do however consider that there is merit in the proposition that the sentence of 4 years was more consistent with sentences imposed for more serious sexual offences against much younger children. We are also of the view that it appears that insufficient credit was given for the circumstances of the pleas of guilty. Had they not been entered it is clear that the Defendant might not have been prosecuted.
28. These matters and the essentially consensual nature of the relationship between H and the Appellant persuade us that 4 years was manifestly excessive. Having considered all the circumstances we are of the view that a sentence of 3 years in respect of the indecent assaults represented by the specimen charges in Count 4 would meet the justice of the case. It is not suggested that the sentence of 18 months in respect of the offences of sexual intercourse with a girl under 16 are in any sense excessive.
29. Miss Elder did however submit that whilst an extended sentence could not be said to. be wrong in principle a somewhat shorter period than 3 years extended licence was appropriate, given the fact that the Defendant would be able to commence the Sex Offender Treatment Programme whilst still in prison. The full 3-year period recommended by the writer of the pre-sentence report would not therefore be necessary.
30. We are quite satisfied that an extended sentence was appropriate here. The Appellant has on numerous occasions demonstrated the high level of his infatuation, not least with his contact with H in spite of the bail condition that he should not contact her. There was ample material before the Judge for him to conclude that the normal period of licence would not be adequate to prevent the commission of further offences by the offender or secure his rehabilitation. We are of the view that in the circumstances the 3-year extension of the licence period was entirely appropriate on the facts of this case.
31. We accordingly allow the appeal by quashing the sentence of 4 years imprisonment in respect of Count 4 the indecent assaults, and substitute for it a sentence of 3 years. The extended sentence is accordingly now one of 6 years rather than 7 years consisting of a custodial element of 3 years and an extended licence period of 3 years. The duty to comply with the provisions of Part 2 of the Sexual Offences Act 2003 (Notification to the Police) indefinitely remains as does the disqualification from working with children. To this extent and for these reasons leave is granted and the appeal is allowed.