England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2 Monday, 17th January 2005

1. Mr Justice Beatson: On 1st April 2004 in the Crown Court at Bradford before Her Honour Judge Sutcliffe and a jury the appellant, then aged 31, was convicted of five counts of indecent assault and one count of anal rape. The victims were his two young nieces, who we will refer to as K and S. On 19th July 2004 he was sentenced as follows. On counts 37 and 38, indecent assaults on K, he was sentenced to two years and four years' imprisonment respectively to be concurrent. On count 45, rape per anum of S, a consecutive extended sentence made up of nine years' imprisonment and an extension period of supervision of six years was imposed. There were concurrent sentences of imprisonment in respect of three counts of indecent assault on S; on count 43 five years' imprisonment and on each of counts 41 and 42 three years' imprisonment. The total sentence was thus an extended sentence of 19 years pursuant to section 85 of the Powers of Criminal Courts (Sentencing) Act 2000, made up of a custodial term of 13 years' imprisonment and an extension period of seven years.
2. On the same occasion the appellant's father, who had been convicted of seven counts of rape and five counts of indecent assault on his three daughters, their friends and his sister-in-law, was sentenced to life imprisonment. His first cousin, who had been convicted of three counts of rape of the cousin's sister and one of indecently assaulting her, was sentenced to a total of nine years' imprisonment. The appellant's eldest brother, who had pleaded guilty to the charges of indecent assault and gross indecency, had earlier been sentenced to a Community Punishment Order.
3. The appellant appeals against sentence by leave of the single judge.
4. The appellant is the youngest of seven children. He lived in the family home with his parents and latterly with his father who was a dominant influence. It was alleged that the female members of the family, and some of their friends, were regularly sexually abused when they were children by the appellant's father, who was described by the sentencing judge as "the fountain from which the evil waters which permeate this case have flowed".
5. The offences for which the appellant was found guilty reflected counts on the indictment that were specific and specimen counts. The offences occurred between January 1994 and January 2003. The abuse first came to light on 24th January 2003 when S said that her uncle had been touching her "bits". She first told her friends at school and then her mother. When K was asked about her uncle the same evening, she broke down and said he had had sex with her and put his penis in her mouth. The police were involved the following day. Complaints about their grandfather and other uncles were subsequently made by K and S, and complaints were made by other female members of the family thereafter.
6. The offences occurred either at the girls' home or when they were visiting the house in which the appellant lived. Count 38 was of a specific offence that occurred when K was 11 years old. The appellant came into her bedroom and indecently assaulted her by placing his penis against her vagina, but without penetrating her. Count 37 was a specimen count reflecting the appellant's persistent behaviour of touching K's breasts, nipples and vagina when she was 12 and 13 years old.
7. Count 41 was a specific offence of indecent assault on S when she was aged four or five years old. S at that time used to visit the appellant after attending nursery school. On one such visit he was alone with her in the kitchen. He removed her clothes and inserted his finger into her vagina which hurt her and made her cry.
8. Count 42 is a specimen count reflecting numerous incidents when the appellant indecently assaulted S between 1994 and 2003, i.e. when she was aged between five and 12 years. He touched her vagina both over and under her clothes. He was indifferent to the presence of others in the room and would sometimes use a cushion to hide what he was doing.
9. Count 43 is a specific offence of indecent assault when S was ten years old. On this occasion the appellant pulled her lower clothing down and his own, turned her away from him and placed his penis against her anus, but did not penetrate her.
10. Count 45, the anal rape, occurred when S was 12 years old. The appellant anally raped her on the landing of her home.
11. The appellant had three previous court appearances for five offences between October 2000 and September 2001, but had never received a custodial sentence and none of his previous offences were for sexual offences.
12. The sentencing judge had before her a pre-sentence report and a psychiatric report prepared by Dr Rix, a consultant forensic psychiatrist, following a request by the Crown Prosecution Service.
13. The pre-sentence report stated that the appellant continued to deny the offences. He claimed there was some kind of conspiracy against him, although he was unable to explain why this should be so. He also claimed he had been unaware of other abusive behaviour within the family. We interject at this point that this was in the face of evidence before the trial by one of his sisters of him being present as a toddler when she was raped.
14. The report writer stated that the appellant failed to recognise the impact of the offences on his victims or the wider community. The report also stated that the appellant's offending behaviour was linked to cannabis, which the appellant admitted to smoking on a daily basis.
15. The risk of him reoffending was assessed as high and would continue to be so until he accepted his guilt and addressed his offending behaviour. The report writer stated, however, that she did not think the appellant presented a serious risk of harm to the general public. The risk of harm is to known children, namely family members. The report writer stated that in view of the serious nature of the appellant's offending the Court had the power to impose an indeterminate sentence, or a longer than commensurate sentence, under section 80(2)(b) of the Powers of Criminal Courts (Sentencing) Act 2000. If the court decided not to impose such a sentence, she asked that supervision be extended for the maximum period possible under section 85 of the Act to enable the probation service to monitor the appellant's behaviour in the community and help in the protection of the public.
16. Dr Rix's opinion was that the appellant was not suffering from any form of member illness, impairment or psychopathic disorder. While the offences for which he was convicted raised the suspicion that he had a psychopathic personality disorder much more evidence was needed on this to make a diagnosis.
17. Paragraph 55 of his report states:

"At the least these offences indicate that [he] is not to be trusted in a family setting where there are vulnerable children."

18. On the basis of the witness statements in the case Dr Rix formed a view of the offending behaviour by members of the family. His report states:

"It seems probable that all three defendants operated within a subculture where they knew that there was widespread disregard for the normal social rules and conventions, if not the laws, governing sexual relations between adults and children. There was probably an element of 'If they can do it, I can do it', and perhaps also 'If they can get away with it, I can get away with it'. For the avoidance of doubt I am not suggesting that if the others were doing it, this in any way exculpates the defendant. What I am identifying is a pattern of intra-familial child abuse which seems at least partly almost the norm for the family. Although this may explain to some extent the extent and perpetuation of the abuse over such an long period of time, this is not to say the defendant was any the less responsible for his actions than he would be as a 'sole operator'."

19. Dr Rix stated that as the appellant still denied these extremely serious sexual offences committed over a long period of time within a family setting there were no grounds for believing he would not behave in a similar manner in another family setting in the future. However nothing indicated that he posed a sexual threat to strangers.
20. In her sentencing remarks the judge stated that it was quite plain that the appellant found himself in the dock because he had been "brought up in a family which regarded the women folk as fair game, whatever their age". He had committed an anal rape of his young niece and:

"... although it has been said by the Court of Appeal that the starting point for offences of anal intercourse should be no different from those for vaginal rape, for a young girl of this age it must have been an absolutely terrifying experience and even worse, I have no doubt, than if you had raped her vaginally."

21. The gravity of his offending, she stated, really lay in the fact that, having started on one niece, he then proceeded to the next one. The indecent assaults for which he fell to be sentenced were in themselves in some instances particularly serious because the girls thought, although wrongly in the light of the jury's verdict, that the appellant had actually penetrated them. The feature that ran through his offending was that he, the uncle to whom they should have been able to look for help, support and friendship, abused his position of trust.
22. In relation to count 43, the offence of rape, she concluded that the period for which the appellant would otherwise be on licence following his release would not be adequate for the purpose of preventing the commission by him of further offences and securing his rehabilitation. She imposed the six year extension period.
23. Mr Goss QC, on behalf of the appellant, submits that the nine year sentence imposed was manifestly excessive for a single offence of rape per anum of a 12 year old and that implicitly the sentencing judge had regarded rape per anum as more serious than rape per vaginam and had fallen into error. He also argued that the total sentence of 13 years is excessive in the circumstances, given, in particular, because the appellant had been born into and brought up in a family where sexual abuse was the norm.
24. In the course of his submissions before us, however, he conceded, as is reflected in his advice, that the total sentence was only marginally excessive. He accepted that a sentence of 12 years would have been the correct one in the circumstances of this case. In view of the seriousness of the indecent assault on K in count 38 this was realistic. The heart of the appeal then turned on the decision to make an extended period of licence.
25. As far as the sentence for the rape and the totality are concerned, while it has been stated by this Court in Millberry [2002] EWCA 2891, and Persico [2004] 1 Cr App R(S) 142 at 262, that there is no inherent distinction for sentencing purposes between anal and vaginal rape, the nine year sentence in the present case was, we have concluded, not too long. Given the abuse of trust, the eight year starting point was quite appropriate, and given the history of sexual assaults by the appellant against S, for which he received concurrent sentences, that was an aggravating factor which justified the nine years. Similarly, in view of what was said about 13 years being marginally too long, we observe that the test for reduction of sentence is not that the sentence is marginally too long, but that it is manifestly excessive. We do not interfere with the custodial period.
26. We turn to the challenge to the extended sentence of six years. It is argued by Mr Goss that an extension was not justified in principle, or in length, because in the light of the substantial custodial sentence the appellant would be subjected to a long period of licence upon release of over four years. It is said that this will enable any treatment programme, not already undertaken in prison, to be attended in the community and for a close watch to be kept on him so that the criteria of securing his rehabilitation and preventing reoffending can be satisfied by the length of this custodial sentence and that the supervision on licence upon his release without the further longer period of extension.
27. The principles upon which a court should decide whether to impose an extended period of licence and the length of that licence are set out in the decision of this Court in Nelson [2002] 1 Cr App R(S) 134 at 565, a decision which does not appear to have been before the sentencing judge in this case. In that case it was recognised by this Court that it is often difficult for a sentencing judge to decide what period will be adequate to secure the offender's rehabilitation and to prevent reoffending. In Christian [2002] EWCA Crim 891, this Court also recognised that, where an appellant was unlikely to co-operate with any programme of rehabilitation, there must be an element of speculation in the assessment of the period. It could not be assessed on a wholly rational basis. In Nelson this Court stated that when the offender is clearly dangerous the custodial term will usually be longer than commensurate and a longer period of extended licence will often be called for. This indicates that it is not only in respect of shorter sentences that a longer period may be called for.
28. In Nelson it was also stated that the period of extension is not designed to reflect the seriousness of the offences, but is a measure designed to provide greater protection for the public from the commission of further offences. For this reason while proportionality with the seriousness of the offence has some relevance and the implications of the overall sentence should be borne in mind, strict proportionality between the duration of the extension period and the seriousness of the offence should not be a primary factor in determining the length of an extension period.
29. The imposition of the extended term does lead to the recognition of a possibility that the appellant might end up serving a 19 year sentence for this offence. We are obliged to address the question whether we can accept the possibility that, even if he were to offend again, he should face a sentence as long as that for these offences. The question is not an easy one.
30. In the present case we have noted that the pre-sentence report and the psychiatric report considered that while there was no serious risk of harm to the general public from the appellant, there was a risk to a section of the public, namely children in the family. Mr Goss fairly observes that the family would be well aware of this when the time comes for his release and those responsible for his supervision during his period of licence will also be aware of it and make appropriate arrangements. The risk in the present case was stated to exist particularly because the appellant does not accept his guilt and is not prepared to address the issue of his offending behaviour while in prison, or at least was not so prepared at the time of his sentencing. Mr Goss was, however, unable to give us an up to date account of the position.
31. We note that the report writer had asked for the imposition of the maximum period of licence, which by section 85(4)(a) provides for a period of ten years in relation to a sexual offence. The learned judge imposed a period of six years. It does not appear from her sentencing remarks why this period was chosen.
32. We have concluded, given the overall length of the sentence and the fact that the appellant will be subject without any extension to a period of some four years' licence upon release, it was not appropriate to make this substantial extension period of six years. While it is established in the decisions in Nelson and Cornelius that strict proportionality between the length of an extension and the seriousness of an offence is not a primary consideration in determining the length of the extension, because the measure is designed to provide greater protection for the public, those decisions state that proportionality has some relevance and the implication to the overall sentence should be borne in mind.
33. We consider that, given the length of the custodial sentence and the likely period of licence thereafter without an extended licence period, the appeal in respect of the extended sentence should be allowed. Accordingly the extended six year period of supervision in respect of count 45 is set aside. The result is a sentence of nine years' imprisonment for count 45 to be served consecutively to the sentence of four years for count 38, that is 13 years in total.