England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		21 April 2008

Monday 21 April 2008

THE LORD CHIEF JUSTICE: I will ask Mr Justice Pitchford to give the judgment of the court.

MR JUSTICE PITCHFORD:

1. Luke Sharp was born on 7 July 1994. Four days before his 13th birthday he committed the offence of sexual assault on a female contrary to section 3 of the Sexual Offences Act 2003. He admitted that offence at the Wakefield Youth Court on 5 December 2007 and was committed for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000, since the Youth Court believed that there required to be an assessment of the appellant's dangerousness in the Crown Court.
2. On 17 December 2007, in the Crown Court at Leeds, the appellant was sentenced by His Honour Judge Stewart QC to four years' detention in a young offender institution under section 91 of the Sentencing Act 2000. He now appeals against that sentence with the leave of the single judge.
3. Mrs Rosemary Pagett was aged 75. She lived alone in her bungalow in Wakefield. She suffered from a number of debilitating medical conditions. From time to time she needed to use a mechanical oxygen inhaler. Notwithstanding that she lived alone, Mrs Pagett had friendly neighbours who kept an eye on her and spent time with her.
4. During the afternoon of 3 July 2007 the appellant knocked on her door. That day was not a particularly good day for her. She was dressed only in her zip-up dressing gown. When she saw the appellant at her door, she mistook him for a grandson whom she had not seen for some time. She invited the appellant into her home. She offered him money. The appellant declined her offer but asked her what kind of underwear she was wearing. He proceeded to unzip her dressing gown and to touch her. He told her that he loved her and began to suck her breasts. He placed his hand on the inside of her thigh, near to but not against her genitalia. Mrs Pagett was able physically to prevent him going any further by closing her legs. The appellant told her that he wanted to come and live with her. He exposed his penis. This ordeal, as such it was for the victim, lasted for about 30 minutes before the appellant left her.
5. Not long afterwards Mrs Pagett was able to use her telephone to call for help. On arrival the neighbour found Mrs Pagett to be in a distressed state. The police were called. While they were waiting, Mrs Pagett explained to the neighbour what had happened to her. She then began to have difficulty with breathing and was taken to hospital. In hospital it was discovered that she had been suffering from an ulcer. That was unknown to her or her family before this day. It was on that day, 3 July, that she suffered a burst of the ulcer. She remained in hospital, but two days later she suffered a heart attack. On 13 July, ten days after the incident with which we are concerned, she died, having remained unconscious.
6. We have, as did the sentencing judge, a victim impact statement from the deceased's daughter. We entirely understand and sympathise with the belief of those dear to the deceased that the appellant, by his commission of the offence, set in train a sequence of physical events which led causatively to her death. We must, however, make it plain that the appellant was not, and could not on the evidence have been, charged with causing her death; still less could he be sentenced on the factual basis that he did cause it.
7. Having considered the available information, the sentencing judge concluded that he could not find that the appellant presented a significant risk of serious harm to the public.
8. In short but admirably focused submissions by Mr Frieze on the appellant's behalf, it is argued that a sentence of four years' detention for a boy of this young age, after an early acknowledgement of guilt, was manifestly excessive if not wrong in principle. Mr Frieze acknowledges that the circumstances of this offence do not fit easily into the guideline published by the Sentencing Guidelines Council on Sexual Offences. He submits that on a literal interpretation of the guideline the starting point for sexual touching of this kind should have been a community penalty. Nevertheless, Mr Frieze concedes that there were significant aggravating features of the offence. Having regard to the compelling personal mitigation available, it is submitted that the judge should have acceded to the recommendation of the Youth Offending Team that the appellant should be placed upon a structured supervision order for three years.
9. In examining those submissions, we shall first consider the seriousness of the offence by reference to the nature of the touching and the aggravating features of it. We have described the acts themselves. They were committed upon an elderly, vulnerable woman who, it was obvious to the appellant, had difficulty breathing and was quite unable to resist him in the initial stages of the assault. He took advantage of an unexpected and mistaken invitation into her home. The harm which the appellant did was manifested by the distress he caused. From the moment the ordeal ended Mrs Pagett was, as a matter of fact, in fatal physical decline. At the least the juxtaposition of the two events served to exacerbate the distress she experienced.
10. We turn to consider the appellant's culpability for the offence and the level of risk that he posed for the future. The appellant is the second eldest of four brothers. When he was aged about 3, his mother took up with a drug addict called Mark. Mark introduced her to drugs and she, too, became addicted to amphetamine and heroin. The home environment became almost indescribably bad. The children witnessed intravenous drug taking and overt sexual activity in proximity to their childhood domestic lives. The appellant and his older brother were neglected, physically abused and left largely to fend for themselves. In 2005, when the appellant was aged 9, he and his brothers were taken into care and placed with foster carers. Their younger brothers were returned to their mother in 2006 when, in response to the shock of losing the children and suffering hepatitis, she separated from Mark and ceased taking controlled drugs. By this stage serious damaged had been done to the relationship between the older boys and their mother. Their placement with foster carers was viewed positively. It was believed that the appellant and his brother were thriving (in comparative terms) in a more structured home environment. There were no significant concerns at school. Nevertheless, we agree with Mr Maguire, the author of the reports to the Youth Court, the Crown Court and this court, that the appellant's childhood experiences must have been emotionally damaging.
11. Since his arrest for this offence, contact has been renewed between the appellant and his mother and grandmother. The signs are, in general terms, encouraging.
12. The appellant told the police, when they made enquiries, that he had been playing a game by knocking on his victim's door. He agreed that he had entered her house, but denied any sexual contact. He told Mr Maguire that he had separated from his brother that afternoon and come across some older boys. He was given the task of knocking on the bungalow door as a "dare". Instead of running away, he remained at the door and entered when invited. He informed Mr Maguire that the offence was committed deliberately. He claimed that he needed to commit an offence of sufficient seriousness to achieve a change of his foster home in which he said that he had been unhappy for several months. He claimed that his thoughts had even encompassed committing a much more serious crime.
13. These claims caused Mr Maguire great reservations, with which we concur. In his report to the Youth Court Mr Maguire said this:

"2.11 Luke's assertions, attitude and conduct during the interviews for the purpose of this report cause me major concern. He fails to show any genuine remorse for his actions and his expression of empathy for his victim comes only with prompts. .... What he offers, I would submit, is a 'script' concocted to justify his actions to himself and to offer him a degree of safety during the ensuing criminal investigations. ...."

In his report prepared for the present appeal, Mr Maguire enlarged that opinion as follows:

"4.9 It is my professional opinion through comprehensive assessment that there is no direct link between Luke's previous foster care placement and his offence. He maintains that the offence was a 'means to an end', planned months in advance with an emphasis on the type and seriousness of the incident in order to reach his favoured conclusion. I believe that it is far more likely to have been an example of deviant behaviour seeking sexual gratification that was exacerbated by pubescent urges, albeit from the distorted viewpoint of a young man who has witnessed extremely inappropriate sexual behaviour."

14. Mr Maguire advised the Youth Court and the Crown Court that the appellant represented a moderate risk for future offending, but possessed an unquantifiable but recognisable potential to cause serious harm in future. His view is encapsulated in paragraph 4.3 of his report to this court. In that paragraph Mr Maguire suggests that his behaviour is classic of that resulting from a young person who has been subject to significant rejection, dysfunction, neglect and chaos. The circumstances which might trigger a reaction include fear of rejection and times when his self-esteem might be under threat. He goes on:

"He has entrenched coping behaviours that increase the likelihood of harmful reaction to stressful situations...."

15. It follows that the judge was faced with a particularly difficult sentencing assessment. On the one hand, the boy before him had committed a serious sexual assault for which his culpability was limited. On the other, by reason of his exposure to appalling life experiences, for which he could bear no personal responsibility, he possessed attributes which could, without being properly addressed, cause serious harm in the future.
16. In his reports Mr Maguire did his best to address the alternatives. He reached the conclusion that a return to the mainstream community was not a feasible option. What was required in his opinion was long-term and intensively-modelled supervision during which the appellant would live in a residential unit away from his home area at significant cost. Such an order would include the application of the Greater Manchester Adolescent Project Sexual Offending Programme.
17. Since the sentence of detention was imposed, the appellant has been in custody at a secure children's centre where he lives a properly structured working and learning day. He is required to engage in conventional offending behaviour work and, with the assistance of Mr Maguire, a programme of intervention intended to address the appellant's sexualized offending. We have, indeed, been provided with a report from Mr Gerry Miller, the Care Planning Officer, dated 18 April 2008, which assists the court with the appellant's current progress. We need only observe that the opinion expressed by Mr Maguire in his report is echoed and reinforced by Mr Miller in his.
18. We therefore move to the central question: whether, in the light of the information before the sentencing judge and that which has become available since sentence was passed, a sentence of four years' detention is wrong in principle or manifestly excessive.
19. In our judgment a sentence of four years' detention upon this child was manifestly excessive. We do not suggest that a custodial sentence upon a 13 year old boy would necessarily be wrong in principle for an offence of sexual assault. There was, however, before the sentencing judge information about this appellant which, in conjunction with his plea of guilty, mitigated the length of any custodial sentence very significantly. Having concluded that the appellant did not present a significant risk of serious harm, we do not consider that a sentence of this length could be merited.
20. The reports prepared by Mr Maguire were thoughtful, measured and painstakingly researched. We accept his opinion that the feature of this offence and this offender, which dominates the sentencing assessment, is the need effectively to address the appellant's potential for causing harm in the future. It will require close supervision in a structured environment such as that in Lincolnshire identified by Mr Maguire, together with long-term exposure to programmes designed to probe and remedy the appellant's sexual offending and to assist his development towards a conventional maturity.
21. The sentence of four years' detention will be quashed and substituted for it will be a supervision order for a period of three years containing the elements of treatment and programming referred to in Mr Maguire's report to this court at paragraph 5.3.
22. The appeal will succeed to that extent.
23. Registration and notification to the police will be for two-and-a-half years. Reporting restrictions were lifted in the lower court and we do not interfere with that.