Author: amy
Last saved by: URY/CRONIN
Company: sbw

No: 200600252/A3 
Neutral Citation Number: [2006] EWCA Crim 757
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Wednesday, 8th March 2006
 
B E F O R E:

THE VICE PRESIDENT
(LORD JUSTICE ROSE) 

MR JUSTICE STANLEY BURNTON 

MR JUSTICE HEDLEY 

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REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 CRIMINAL JUSTICE ACT 1988 

ATTORNEY-GENERAL's REFERENCE NO 5 OF 2006    

(PAUL MARTIN PITTEY) 
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Computer Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
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MR A LARGE appeared on behalf of the ATTORNEY GENERAL 
MR C AYLETT appeared on behalf of the OFFENDER
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J U D G M E N T 
1.	THE VICE PRESIDENT:  The Attorney-General seeks the leave of the Court, under section 36 of the Criminal Justice Act 1988, to refer a sentence said to be unduly lenient.  We grant leave. 
2.	The offender is 23 years of age, having been born in December 1982.  On 4th August 2005 he pleaded guilty to three counts of rape and three of indecent assault.  On 16th December he was sentenced by His Honour Judge Hume-Jones, at Taunton Crown Court, to a community rehabilitation order for a period of 3 years with a condition of attendance at a Sex Offender's Programme.
3.	The facts were these.  The victim of all these offences was the offender's niece, who was born in March 1995.  She is now aged 10 and at the time of these offences she was 3.
4.	On 28th March 2005 she told her mother that the offender had sexually abused her.  In a video-recorded interview, on 30th March, she described the abuse beginning when she had been 3 or 4 years old and taking place at the offender's house, where he lived with his father in Bridgwater.  The abuse occurred while the girl's mother was at work.
5.	The offender would take the girl to his bedroom, give her a present and abuse her.  That continued, the girl said, until she was 6 or 7.  She had been too embarrassed to describe the nature of the abuse, but she wrote down what she said the offender had done.  She said he had put his hand over her eyes and mouth and would then put his penis into her anus, or into her mouth, telling her to suck it.  She had not liked that.  She was asked how far his penis had gone into her anus and she said she did not know, but it had hurt.  The abuse had come to an end, she said, when by the time she was 6 or 7, the offender had a girlfriend.  When she was asked about the offender, she said: "He acts like an 11 year old actually".  
6.	On 18th April the girl was medically examined.  Healed anal fissures were found, consistent with anal penetration.  The offender was arrested on 21st April.  When he was interviewed he admitted putting his penis in the girl's mouth and anus.  He said this had only happened three or four times in the space of a couple of months.  It had only ever taken place at his sister's house.  He said the girl had been about 3 at the time and he had been 15.  By the time he was 16, he had a girlfriend.  He said that he had been baby-sitting the girl on the occasions of the abuse.  He would wake her up and take her downstairs and then carry out the activity which we have described.  He had not, he said, ejaculated.  When he was asked why he had not put his penis in her vagina, he said: "I don't know 'cause of the damage".  He admitted that the girl used to cry when he abused her.  He denied having put his hand over her mouth as she had described.  He said that he was sickened by what he had done and was relieved that it had come out into the open.
7.	The girl was re-interviewed later in April and provided further details.  The statement from her mother described the impact which the abuse had had on the girl.  Her mother described her as a nervous child, who regularly has nightmares, which sometimes involve the offender.  She does not like to be left in the dark and, if she hears the stairs creaking, she is afraid it is the offender coming after her.  She is also self-conscious about her body.  She has been receiving counselling since July 2005.  The mother also describes the support for the offender given by her father and sisters.  The consequence of that is that the girl has become isolated from the other members of the family.
8.	The counts in the indictment were alleged to have taken place between the date of S's 2nd birthday and the date of her 5th birthday.  All the offences would have taken place when she was under 5.
9.	There were originally four counts of rape and four of indecent assault but, as we said at the outset, the offender pleaded guilty to three counts of each offence.  Those pleas were accepted by the prosecution and the offender fell to be sentenced on the basis of what he had admitted in interview.
10.	On behalf of the Attorney-General, Mr Aylett draws attention to the aggravating features as follows.  First, the victim was only 3 when she was first sexually abused.  Secondly, there was penetration of the anus.  Third, she had been visibly distressed by the abuse, as the offender knew.  Fourthly, there had been abuse on several separate occasions.  Fifthly, the context of the abuse was the offender having been entrusted to look after the girl.  Finally, the girl has been traumatised by the abuse in the way which we have described.
11.	Mr Aylett draws attention to the mitigation to be found in the fact that the offender was only 15 at the time of the offences.  He pleaded guilty and he was of good character.  But the submission made by Mr Aylett, by reference in particular to R v Millberry & Ors [2003] 2 Cr App R(S) and Attorney-General's References Nos 37 & Ors of 2003 [2004] 1 Cr App R(S) 499, is that the sentence passed by the learned judge was unduly lenient.  It paid too great a regard to the personal circumstances of the offender who, at the time of sentencing, was considerably older than he had been at the time when he committed the offences, and too little regard to the seriousness of these offences by reference, in particular, to what took place and the age of the girl.
12.	On behalf of the offender, Mr Large accepts that this was an extremely difficult sentencing exercise for the Crown Court judge. He submits that that exercise has become even more difficult for this Court, in the light of the reports now available, in relation to how the offender has behaved since he was sentenced.  In that regard there is an additional report prepared by the probation service for this Court, and there is also a report from Dr Radford, a clinical psychologist, dated 18th October 2005, on which Mr Large places particular reliance.
13.	Mr Large accepts that the sentence passed by the learned judge was undoubtedly lenient.  But he stresses that the offender now being resentenced has behaved impeccably since he behaved, as he did, at the age of 15.  Mr Large describes him as being "a very troubled young man" and it is apparent that he had learning difficulties.  He had the disadvantage of his mother leaving him at an early stage and at more than one period in his young life, he was bullied by others.  He was, however, expelled from school because of his disruptive behaviour, particularly in instigating an incident.
14.	The pre-sentence report says that some of the difficulties experienced by the offender can be attributed to the normal processes of adolescence.  It appears from the report, however, that, although in the early stages of a Sex Offender Treatment Programme significant progress is unlikely to be made, the offender at present still has no understanding of his motivation and there is much work still to be done.  Mr Large draws attention to the great vulnerability referred to by Dr Radford, if the offender were now to have to endure a sentence of imprisonment.  
15.	There is written material before this Court from the offender's employer, who has come to Court himself, which speaks in highly favourable terms of the offender, who has progressed from being unskilled to being semi-skilled, and it is anticipated that he will become skilled in the arduous work of a tunneller. He now has a stable relationship with a girlfriend.  The two live together in a wing of his father's house and social services are involved with the offender.  Mr Large accepts that the offender was lucky to be given the chance which he was by the Crown Court judge but he has done as much as could reasonably be expected of him in the intervening periods in complying with the requirements of the conditions of the Sex Offender Treatment Programme.
16.	Mr Large also points out that both the author of the pre-sentence report and Dr Radford assess the risk of the offender re-offending as being low.  Finally, Mr Large stresses the pleas of guilty, the youth of the offender, his previous good character, the changes in him which have occurred since this criminal conduct took place and double jeopardy, which is an inevitable consequence of the offender being resentenced by this Court.
17.	There is no doubt that, in the light of events since this criminal conduct by the offender when he was 15, there have been considerable changes for the better in his behaviour.  But, in our judgment, the age of the girl and the gravity of the abuse are such that a significant custodial term, albeit reflecting the youth of the offender at the time when these offences were committed, was called for in the court below.  It seems to us that in the community penalty which he imposed, the learned judge did not pay sufficient regard to the interests of the girl, to the interests of the public and to the impact upon the girl of this very serious conduct.
18.	In the light of all those factors and the others to which we have referred, we would have expected, in the court below, a sentence of 3 years' imprisonment.  Taking into account double jeopardy, the sentence which we pass in relation to each of the offences with which we are concerned is one of 2 years' imprisonment.  That sentence will be served from the date on which the offender surrenders to custody.  Credit will be given for any period he has spent in custody already.  We order, unless we hear submissions to the contrary, that he shall surrender to custody by noon tomorrow.

SMITH BERNAL WORDWAVE