England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Tuesday, 13th December 2011

1. MR JUSTICE BURNETT: This is an appeal against sentence brought with the leave of the single judge against a total of 10 years' imprisonment, imposed by His Honour Judge Harrow at Bournemouth Crown Court on 6th April 2011. The sentence was imposed in respect of eight counts of indecent assault on a girl who was aged between 10 and 12 at the time . The appellant was convicted on 17th February 2011 following a retrial. The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences: no matter relating to victim shall during her lifetime be included in any publication if it is likely to lead to members of the public being able to identify her as a victim.
2. The facts are these. The victim, who we shall call F, was born in [a month] 1988. She lived with her mother and elder sister. Her mother was separated from her father. Her mother met the appellant and became his long-term partner. He moved into the family home in about August 1977. He began to assault F sexually at or about the time of her 10th birthday. On the first occasion the appellant was lying on his bed playing a game on his PlayStation. F joined him. He turned and kissed F on the lips, put his tongue in her mouth and then took her hand and placed it on his penis and moved her hand up and down. He told her not to tell her mother about what had happened. This activity happened two or three times a week for most of the period of 2 years. It diminished towards the end.
3. Counts 1, 2 and 3 on the indictment were specimen counts covering this course of conduct. The remaining counts reflected individual acts of indecent assault. The conduct covered by count 4 involved the appellant making F sit astride him whilst he was on the bed. He rubbed his penis on the outside of her trousers until he ejaculated onto them. The conduct underlying count 5 was that he made F come into his bedroom after she had had a shower. He removed her towel. He laid her on the bed. He performed oral sex upon her and touched and kissed her all over. He then lay on top of her, in such a way that she thought he was going to have sex with her. He rubbed himself on her naked body until he ejaculated between her legs. Count 6 involved his penetrating F digitally and performing oral sex upon her while she was in the living room of family home. Count 7 concerned inappropriate kissing, which as it happens was interrupted by F's sister. Count 8 concerned an incident which occurred after the appellant and F's mother had split up. A visit by F to the appellant was arranged. He kissed her inappropriately and again performed oral sex upon her and penetrated her digitally.
4. This rather clinical description of the traumatic events that blighted this child's life during this period does not do justice to the enormity of the conduct of the appellant which is revealed in the lengthy interview which F undertook in December 2009. That followed immediately upon her decision to tell her mother of what had occurred.
5. The overall 10 year sentence was structured as follows: on counts 1, 2, 3 and 7 there was a sentence of 1 year imprisonment concurrent with each other but consecutive to the terms imposed on counts 4, 5, 6 and 8. A sentence of 18 months' imprisonment was imposed on count 4, consecutive to the sentences on counts 6 and 8. A sentence of 18 months' imprisonment was imposed on count 5, consecutive to counts 6 and 8. A sentence of 3 years' imprisonment was imposed on count 6. A sentence of 3 years' imprisonment was imposed on count 8, consecutively to count 6. There were appropriate ancillary orders about which no complaint is made.
6. In his sentencing remarks the learned judge noted that the abuse stretched through a period of over 2 years, that the appellant took advantage of F's vulnerability and systematically destroyed her innocence. He referred to the appellant's previous good character, that he was now 51 and had no convictions since the material offending. He considered that "the situation is aggravated by the sheer persistence of these offences, the number of them, the abuse of trust, F's tender years and the period over which they occurred." He had regard to the maximum sentences in place when these offences were committed. The maximum sentence was 10 years' imprisonment for indecent assault on a girl under the age of 14 years and the offences were contrary to section 14(1) of the Sexual Offences Act 1956. The judge determined the appropriate global sentence then, as we have seen, attached the longest individual sentences to the digital penetration counts and divided the balance amongst the remaining counts.
7. Mr Grey, who appears for the appellant, submits that the overall sentence of 10 years is manifestly excessive. He submits that an appropriate sentence should lie within the range of 6 to 8 years. He reminds us that the maximum sentence for each count at the material time was 10 years' imprisonment. He prays in aid the appellant's good character and in particular the lack of offending since 2000. In those circumstances he submits that the principle of totality should reflect in a shorter sentence.
8. Mr Grey further submits that the circumstances of this offence do not reflect an abuse of trust, in the sense described in the Definitive Guideline, produced by the Sentencing Guidelines Council for sexual offences. We profoundly disagree with that submission. When a woman invites a man into her home to live with her and he assumes the role of stepfather to her young child, that imports a high degree of trust and responsibility. In our judgment, a sexual assault on that child manifests a breach of trust to a very high degree.
9. Cases of this nature have recently been the subject of guidance given in this court in R v Hall & Ors [2010] EWCA 2753. The distillation of the principles to be applied is found in paragraphs 46 and 47 of the judgment of the court given by the Lord Chief Justice:

"46.We can now summarise the principles to be derived from statute, the authorities which purport to provide guidance, and fact specific decisions. In the search for principle it is impossible to reconcile them all. We suggest that with the exception of Millberry and Others, and the definitive sentencing guideline (used in the measured way we shall suggest) that the following considerations should be treated as guidance. We further suggest that reference to earlier decisions is unlikely to be helpful, and, again dealing with it generally, to be discouraged. Subsequent decisions of this court which do not expressly state that they are intended to amend or amplify this guidance should also be treated as fact specific decisions, and therefore unlikely to be of assistance to court.

47. (a) Sentence will be imposed at the date of the sentencing hearing, on the basis of the legislative provisions then current, and by measured reference to any definitive sentencing guidelines relevant to the situation revealed by the established facts.

(b) Although sentence must be limited to the maximum sentence at the date when the offence was committed, it is wholly unrealistic to attempt an assessment of sentence by seeking to identify in 2011 what the sentence for the individual offence was likely to have been if the offence had come to light at or shortly after the date when it was committed. Similarly, if maximum sentences have been reduced, as in some instances, for example theft, they have, the more severe attitude to the offence in earlier years, even if it could be established, should not apply.

(c) As always, the particular circumstances in which the offence was committed and its seriousness must be the main focus. Due allowance for the passage of time may be appropriate. The date may have a considerable bearing on the offender's culpability. If, for example, the offender was very young and immature at the time when the case was committed, that remains a continuing feature of the sentencing decision. Similarly if the allegations had come to light many years earlier, and when confronted with them, the defendant had admitted them, but for whatever reason, the complaint had not been drawn to the attention of, or investigated by, the police, or had been investigated and not then pursued to trial, these too would be relevant features.

(d) In some cases it may be safe to assume that the fact that, notwithstanding the passage of years, the victim has chosen spontaneously to report what happened to him or her in his or her childhood or younger years would be an indication of continuing inner turmoil. However the circumstances in which the facts come to light varies, and careful judgment of the harm done to the victim is always a critical feature of the sentencing decision. Simultaneously, equal care needs to be taken to assess the true extent of the defendant's criminality by reference to what he actually did and the circumstances in which he did it.

...

(g) Early admissions and a guilty plea are of particular importance in historic cases. Just because they relate to facts which are long passed, the defendant will inevitably be tempted to lie his way out of the allegations. It is greatly to his credit if he makes early admissions. Even more powerful mitigation is available to the offender who out of a sense of guilt and remorse reports himself to the authorities. Considerations like these provide the victim with vindication, often a feature of great importance to them."

10. Although each of the counts on the indictment was charged as being a contrary to section 14(1) of the 1956 Act, it is clear that some of those counts would now be reflected in new offences created by the Sexual Offences Act 2003. Both counts involving digital penetration would now be charged as assault by penetration. In our judgment, looking at the Definitive Guideline, the starting point today, for an offence of that nature, involving as it does a serious breach of trust would be 13 years, with a range of 11 to 17 years. The guideline suggests a range of 1 to 4 years for each of the other activities represented on the indictment. These offences and the course of conduct reflected in counts 1, 2 and 3 were also, in our judgment, serious. The child was close to her 10th birthday when the abuse started. The specimen counts represent that course of conduct which involved F being forced to masturbate the appellant, albeit not to ejaculation, on dozens of occasions. The counts concerning oral sex performed on F, digital penetration and ejaculation were individually serious offences. As we have indicated, all of the offending represented an appalling abuse of trust.
11. The appellant was a mature man, approaching middle age when he committed these offences. There was evidence before the court of the adverse impact on F of the abuse that she had sustained at the appellant's hands. A short victim impact statement was before the court. It contains this:

"For more than 10 years I kept what Martin did to me a secret. I wasn't ready to deal with the trauma and so putting it to the back of my mind was the only option.

Since I have told my mum and the police, my life has become a misery. I have had to accept what he did to me and re-live memories I wish I didn't have. I have on-going support from Victim Support and I have recently had over 4 months counselling with a local charity where it became apparent that I had been suffering with depression for a long time because of this. Not only has Martin put me through 2 court trials, he has also shown no remorse for what he did.

He took away my childhood innocence and I will always have the memories of what he did to me. I feel like I am serving a life sentence for his wrongdoing.

I hope that one day I will truly be able to move on from this but I fear it is a long time away yet."

12. The judge had the advantage of seeing F give evidence twice. He was very well placed to assess the harm that the appellant's offending had caused. There was evidence about the adverse impact of the abuse upon her ability to develop relationships.
13. The appellant does not have available to him the benefit of an early or indeed any admission of responsibility. He does not have the benefit of a guilty plea. It is clear that he shows not one jot of remorse. We are unpersuaded, despite the mitigation that is available and which has been advanced on the appellant's behalf by Mr Grey, that the overall sentence of 10 years was manifestly excessive.
14. In those circumstances this appeal is dismissed.