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
		5 June 2009

Friday 5 June 2009

LADY JUSTICE HALLETT:

1. This is an application by Her Majesty's Solicitor General under section 36 of the Criminal Justice Act 1988 for leave to refer a sentence which she considers to be unduly lenient. We grant leave.
2. The offender is Mark Heeney. He is 21 years of age, having been born on 6 September 1987.
3. His victim was a 57 year old woman living alone in a house within a gated garden. He lived around the corner from her, although there was no evidence that he knew her. She went to bed on the night of 5/6 October 2007. Unfortunately, she failed to lock her doors. At about 2am she was awoken by the sound of the offender climbing her stairs. She opened her bedroom door to find the offender standing immediately outside the door on the landing. She said that the offender pounced on her and pushed her backwards onto and across her bed. The offender was on top of her as she lay beneath him. The judge described what happened in this way:

".... [you] started groping and scrabbling about in her private parts area .... She thought you were trying to get her legs apart...."

He caused significant bruising to the area of her groin and her inner thighs. But, the complainant fought back hard. She broke a chain that he wore around his neck and scratched his face with her fingernails. Realising this, the offender fled the scene.

4. A DNA profile was recovered from the complainant's fingernail scrapings. The profile matched that of the offender. He was arrested shortly thereafter. When he was interviewed he declined to answer material questions.
5. The offender was originally charged with attempted rape. His defence was to be that he had been at a party during the evening of 5 October 2007 where he had consumed a large quantity of alcohol and cannabis. Whilst walking home from the party he passed the complainant's house. He claimed that the front door was wide open. He said that on impulse he decided to enter the property to see whether there was anything worth stealing. Having walked through the furnished living room he went upstairs and was confronted by the complainant whom he maintained attacked him and caused him to flee. He denied that he had attacked her as alleged. He denied any contact with her pubic area. Specifically he denied any sexual intent.
6. The offender appeared at the Crown Court at Manchester (Minshull Street) on the one charge of attempted rape in June 2008. However, by this time the prosecution had assessed the available evidence. They took a realistic view of their chances of proving an attempted rape and applied to amend the indictment better to reflect, as they saw it, the prosecution case. They wished to allege that the offender entered the complainant's house with intent to commit a sexual assault, and had committed therein a sexual assault. They applied to add two counts in substitution for the offence of attempted rape. Both the judge and the defence were content for the prosecution to drop the charge of attempted rape. However, Mr Vardon on behalf of the offender resisted the prosecution's application to include a count of trespass with intent to commit a sexual assault. He argued that it added nothing to the charge of sexual assault. We disagree but His Honour Judge Lowcock did not. He refused what in our view was the prosecution's perfectly proper request to add the count. The trial was adjourned and proceeded at a later date on a sole count of sexual assault contrary to section 3 of the Sexual Offences Act 2003.
7. On 10 December 2008, following a retrial, the offender was convicted by a jury. The case was adjourned for the preparation of a pre-sentence report. The offender maintained to the author of that report the account that he had given to the jury: that he had entered the complainant's property with the intention of stealing something, and that he had gone upstairs and into the first bedroom to which he had come.
8. On 23 February 2009 the trial judge, His Honour Judge Geake, sentenced the offender to two years' imprisonment. The judge directed that 306 days spent in custody on remand should count towards the sentence.
9. Her Majesty's Solicitor General draws the following aggravating features to our attention:

(1) the offence was committed at night;

(2) the victim was a vulnerable 57 year old woman living alone;

(3) the offence involved the offender's entering the complainant's home unlawfully in the dead of night; he went through a furnished room which contained valuable property and upstairs to the bedroom;

(4) the offender caused significant injuries to the complainant in the area of her private parts.

10. Mr Penny, on behalf of Her Majesty's Solicitor General, argued that there were but two mitigating features: the offender's age at the time of the offence (20), and the fact that he had no previous convictions (although he had been cautioned once for an offence of common assault).
11. To those mitigating features Mr Vardon sought to add that the offence was committed some time ago. It should be noted, however, that any delay was caused by the fact there had to be two trials at each of which the complainant had to give evidence. Mr Vardon also very properly reminded the court of what he called the "ping pong effect". The offender was in custody for several months pending the first trial. He then applied for and was granted bail on strenuous terms. Following conviction he was sentenced to the term of two years' imprisonment, the subject of this reference, but he was released before we could hear it. Mr Vardon suggested this was a matter we could legitimately bear in mind.
12. Mr Vardon submitted the offence was unpremeditated and reminded the court that the judge found as a fact that the complainant was not targeted as a single woman. We note that he was able to do that because the jury was not given the opportunity to decide when he formed the intent to commit a sexual assault. Some may consider the offender was fortunate that the trial judge took that view. Nevertheless we shall proceed on the same basis. Mr Vardon further invited the court to note, as the judge noted, that the offence was committed after the offender had been drinking and taking drugs. More importantly, he emphasised that the sexual assault was limited in nature and that the offender desisted when the complainant fought back. He accepted that those features made the offence a serious one, but argued that it would be wrong for this court to hold that a sentence of two years' imprisonment was unduly lenient. He also reminded the court that until the day of the offence the offender had lived a hard-working and apparently normal life surrounded by a loving family.
13. Mr Penny argued that the sentence failed adequately to reflect the aggravating features of the offence. He argued that it did not reflect the principle identified at paragraph 2B.4 of the Definitive Guideline on the Sexual Offences Act 2003 that

"The presence of aggravating factors can make an offence significantly more serious than the nature of the activity alone might suggest."

He argued that the sentence failed to reflect that the assault took place at night in the home of a lone female after the offender had unlawfully entered her premises.

14. We agree. We make no criticism of the very experienced trial judge, His Honour Judge Geake, who, we suspect, felt bound by the Definitive Guideline to impose what, on a strict reading of the guideline for the offence of sexual assault, might appear to be the recommended level of sentence. The aggravating features of this case, as outlined by Mr Penny, are not listed under the heading of additional aggravating factors for offences of sexual assault. However, we see considerable force in Mr Penny's submission that, even if the offender was not convicted of an offence of trespass with intent to commit an offence of sexual assault, this case was more akin to an offence under section 63 of the Sexual Offences Act 2003 than a straightforward sexual assault. On the offender's own admission he was a trespasser and within a relatively short time of entering, at night, the home of a woman living alone, he had developed the intention to commit a sexual assault. We note that for an offence of trespass with intent to commit a sexual assault where the assault is penetration, the sentencing range is three to seven years. Where the intended sexual assault is other than rape or assault by penetration it is one to four years.
15. One of the difficulties in applying Definitive Guidelines is that individual cases may not slot easily into any particular category and guideline. Injustice can occur if the Definitive Guidelines, particularly on sexual offences, are applied too rigidly. The injustice may be to an accused; it may be to a victim. For this reason the Council states in the introduction to the Definitive Guideline on sexual offences in clear terms that for offences of sexual assault

"more than for many other offences the sentencing process must allow for flexibility and variability. The suggested starting points and sentencing ranges contained in the offence guidelines are not rigid and movement within and between ranges will be dependent upon the circumstances of individual cases and in particular the aggravating and mitigating factors that are present."

We would add and emphasise that the list of additional aggravating factors in any particular guideline is not intended to be exhaustive.

16. The Council makes plain that broadly there are four dimensions to consider when assessing the gravity of a sexual offence. They are (in no particular order): the degree of harm to the victim, the need to deter others from acting in similar fashion, the level of risk posed by the offender to society, and the level of culpability of the offender. The Definitive Guideline makes plain that an offender's culpability is high where the sexual activity proved is in any way non-consensual, coercive or exploitative. This is because a sexual offence is inherently harmful and it is inherently harmful because of the psychological consequences.
17. We reject, therefore, Mr Vardon's submission that the Solicitor General was wrong to seek to refer the sentence of two years' imprisonment to us as unduly lenient. To our mind this was a troubling case and one that has properly been brought to our attention.
18. We bear in mind, as invited to do, the fact the trial judge accepted the offender did not target the victim as a woman living alone and desisted when she fought back. Nevertheless Mr Vardon concedes that this was a serious offence and one which merited a significant period in custody, to mark the gravity of the offence, the effect on the victim, the offender's high level of culpability and the need to deter others. On his own admission, the offender went into the complainant's home in the dead of night, uninvited. He appears to have walked through the living area, which was plainly occupied, and gone upstairs to the bedroom. Whatever his intention on entry, he must have realised by the time he headed up the stairs, the likelihood of someone's being asleep upstairs and the likelihood of their being terrified by his presence.
19. Yet, on the complainant's account, as accepted by the jury, when she confronted him the offender made no attempt to escape. He attacked her immediately. He threw her onto her bed, pulled up her nightdress and sexually assaulted her, leaving significant injury. She must have been terrified. A woman attacked in this way may remain traumatised for a long time to come. She may never again feel safe in her own home and her own bed. True it is that the sexual assault here was limited in time and extent, but in this case it is not the extent of the assault which makes it so serious, it is the circumstances surrounding the assault which make it particularly serious. It is a classic case for the application of the principle that "the presence of aggravating features makes the offence significantly more serious than the nature of the activity alone might suggest".

21. In those circumstances, following a contested trial -- in this case two contested trials in which the victim had to relive and repeat what happened to her -- we would have expected a sentence significantly longer than the two years which was passed. We consider two years to be lenient even on the offender's own account. Taking into account all the circumstances of the offence and the offender, in particular, the offender's age, his previous good character and his references, and the fact that he has been released from custody, we are driven to the conclusion that the sentence must be quashed and one of four years' imprisonment substituted. He will receive credit for every day that he has spent in custody.

20. The offender must surrender to the Ashton Police Station by midday on Monday 8 June 2009.
21. The consequence of the increase in sentence is that there will be a requirement of notification to the police indefinitely.