England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		23 March 2016

1. THE PRESIDENT: On 7 April 2015, in the Crown Court at Plymouth before His Honour Judge Darlow, the appellant pleaded guilty to two offences of indecent assault, three offences of rape and one offence of aiding and abetting rape. He initially denied an offence of indecency with a child but, on 15 June 2015, at the same court, he pleaded guilty to that offence as well.
2. On 25 June 2015 he was sentenced to sixteen years' imprisonment for each of the offences of rape and aiding and abetting rape with concurrent terms of four years' imprisonment for indecent assault and indecency with a child, making sixteen years' imprisonment in all. Appropriate ancillary orders were made in relation to the Safeguarding Vulnerable Groups Act 2006 and the reporting conditions which flow from conviction for sexual offending.
3. Thereafter, on 21 July, Judge Darlow brought the case back into his list under the slip rule and increased the sentence from sixteen years to eighteen years on the basis that, on several occasions over the preceding years, there had been an opportunity for this offending to be admitted which was not taken. The appellant now appeals to this court against the term of eighteen years' imprisonment with the leave of the single judge.
4. The facts are as follows. The appellant was the father of the complainant. The first time the complainant ever made an allegation against him was in 1987 when she was five or six years of age. The allegation was that having gone to stay with him and gone to a farm, he made her touch his penis, put some cream on it and asked to massage his penis. He said that it needed to be done for medical reasons and if she failed to do so he would go to hospital.
5. Following that complaint, the appellant was seen by the police. He denied the offence. A decision was made not to proceed with a prosecution. Because of it, the complainant lost contact with her family on the basis that she was perceived as being difficult to handle. This allowed the appellant ultimate control over her young life. The complainant went to live with her mother. It was a difficult relationship. She was in and out of care from 1987 onwards.
6. Then in 1992 or thereabouts, when she was aged 11 or 12, she moved to live with the appellant in Plymouth. He was a very heavy drinker. From the first night that she lived with him he would sleep with her. There was not full penetrative sex at that stage, but he would lie behind her in a spoon fashion with his penis between her legs and he would rub against her until he ejaculated. He would try to grab her breasts but she would try very hard to stop him doing so. This happened multiple times, and it was fortunate for her that it ended because he was imprisoned for deception offences. She again went into foster care and back to children's homes that she had been in and out of, and again she made allegations against the appellant and again he was arrested and interviewed. He made no comment to all questions asked in interview rather than deny the offences. The case was not proceeded with by the Crown.
7. Having gone into care, this complainant went off the rails. She did things that she wished she had never done and had sex with a number of people. She then went into a children's home and had supervised contact with her father. In August 1995, when aged 14, she ran away from the children's home and went to live with the appellant again in Plymouth. He constantly denied to social services that he had seen her, and would hide her both in his flat and in the boot of his car when he went to work. There came a time he encouraged and allowed another person - a twenty-year-old man at the time - to have sex with the complainant. He encouraged it and watched it. Prior to sex taking place for the first time, the appellant took her into the bathroom and inserted a suppository into her, claiming it would stop her becoming pregnant. This happened on a number of occasions. The other man, A, supplied her and the appellant with drugs that she thought was ecstasy which she was encouraged to take. Once A had been encouraged and allowed to have sex with her, the appellant started to have full sexual intercourse with her on a number of occasions and it continued throughout the time she was in his care and whilst being kept away from everyone else.
8. Eventually, in November 1995, social services managed to trace her to the appellant's address with no assistance from him and she was returned to the children's home. She was again interviewed by the police because of the allegations of rape that she made against the appellant. These allegations were not dealt with expeditiously.
9. In 1996 she went missing from the children's home with a friend and went back to stay with the appellant, albeit in A's flat. The appellant was arrested and interviewed because social workers were looking for him and they were certain that the complainant was back with him. He, again, denied the allegation that she had made in respect of the rape and denied knowing where she was. The police however found her and her friend a couple of days later in A's flat. Once again, the allegation of rape was not proceeded with although the Crown did prosecute the appellant for child abduction - an offence to which he pleaded guilty.
10. In 1999 the complainant eventually became a ward of court and she tried to persuade the appellant to admit to what had happened in such a way that she could record his admission. She had a child when she was sixteen years of age who went into care.
11. In 2006/2007 the complainant became pregnant. This was when she obtained a second confession from the appellant. She got on with her life as best she could until November 2014 when, needing to disclose everything in full, she recorded on a Dictaphone the appellant's confessions and part admissions to what he had done on dictaphone. The appellant was again arrested and, in interview, made no comment to all questions that were asked of him. When he pleaded guilty he did so on a basis of plea which took issue only with minor details and did not require resolution by way of a Newton hearing.
12. A victim personal statement records the very real impact which this serial offending had had on the life of the complainant. She said of both men that they forced her to develop a mask for every situation. The statement goes on: " ..... you can't get help if you're not believed." She felt that she needed borderline multiple personalities to be able to face daily life and live with "filth and humiliation, bad thoughts and a sense of worthlessness to try and get on with my life". She said that the appellant had destroyed any chance of either side of her family giving her a chance or being able to love her. She carried it all on her own. She went on:

"I still now, don't feel like I can hold my head up, because for almost 30 years other people's influence, opinions, sly looks, quietness when walking into rooms, shunning you, ignoring attempts of contact, turning their backs, ignoring you as a person and making you feel like you're the bad person for that long a period you really do believe it of yourself."

The complainant observed that she had lost the biggest part of her life and would never be free.

13. The appellant, who is now 78 years of age, has a very chequered criminal record which led to a number of terms of imprisonment for offences of dishonesty. Nothing in his background reveals his predatory sexual offending. In the circumstances the judge, when passing sentence initially, made it clear that he was dealing in sentence with the issue of totality very much in mind. He observed that if the appellant had contested these matters and been found guilty he would have been looking at a sentence of "about twenty-four years". He deducted one-third to reflect the guilty plea, observing that the late plea in relation to the least of the offences should not remove full credit for that plea. As a result, he passed a sentence of sixteen years' imprisonment.
14. Reflecting on that sentence over the weeks that followed, he brought the appellant back to court and expressed concern that he had failed properly to reflect the fact that the appellant had had many opportunities over the years to admit that which his daughter was complaining of and that it was "slightly artificial" to say that when the allegations were brought again he eventually decided to plead guilty. Counsel submitted that the guilty plea that had been entered to the substantial allegations was entered at the first reasonable opportunity and that, following the guideline issued by the Sentencing Guidelines Council in 2007 and the decision in Caley [2013] 2 Cr App R (S) 47, the appellant was entitled to one-third off the sentence that otherwise would have been appropriate for this offending. The judge did not agree. He said:

"I stand by the reservations as originally expressed; I think a third discount in the circumstances of this case. One can wonder about what would have happened if right at the outset it was just simply indecent assault. Had Mr G at that stage accepted responsibility the whole passage of this young girl's life may well have been different. As it was, he chose to deny it and action was not pursued. Thirty-three per cent discount was in these circumstance wrong and I think a twenty-five per cent discount was the more appropriate. That means a quarter off twenty-four would have given you eighteen rather than sixteen years."

15. Before turning to the merits, the single judge granted leave to appeal on the basis of a decision of this court in Nodjouni [1985] 1 Crim App R (s) 183 in which Lord Justice Lawton observed that the power to adjust a sentence pursuant to the slip rule should not be exercised solely because the judge had concluded for no additional reason that the original sentence imposed was inadequate. The fact, he observed, that on reflection the sentence was not thought to be adequate was not a good reason for increasing sentence. That decision has been the subject of review on a number of occasions and, in particular, the authorities were gathered together in Jama [2009] EWCA Crim 2109 in which the power to sentence within the timing of twenty-eight days was set out and a number of authorities discussed. The court observed at paragraph 13:

"All these cases suggest a flexible approach to the exercise of the statutory power to vary; but an approach in which fairness to the defendant and the public interest in the passing of appropriate lawful sentences may both have to be weighed."

16. In our judgment the procedure adopted by criminal courts thirty years ago no longer reflects the power of the Attorney General, under the provisions set out in Section 36 of the Criminal Justice Act 1988, to refer as unduly lenient sentences imposed by a court and, thus, the power of the court to increase such sentences. This means that the power to exercise discretion under the slip rule is no longer encumbered by the approach which the court in Nodjouni outlined.
17. Having dealt with the principle first adumbrated in this case, we pass to the merits. In reality, Mr Hall, on behalf of the appellant, does not complain about the judge's decision to review the sentence that he imposed. Rather, his complaint is that there was no basis whatsoever for reducing the discount. The appellant had never previously been charged with sexual offending and the discount, as is made clear both in the Sentencing Guidelines Council's guideline and in Caley, was attracted by the entry of a guilty plea at the first available opportunity. To that extent, therefore, the appellant was being given no more than was his due by entering the pleas when he did. The fact is that no challenge is made to the starting point of twenty-four years and, therefore, the judge had the original sentence correctly weighted.
18. To the argument that had the appellant admitted indecent assault years previously his victim's life might have been different, the simple answer is that he was not now being sentenced simply for the indecent assault but for a catalogue of the most appalling sexual criminality over a very substantial period of time. It is that substantial criminality that led to the starting point of twenty-four years. In truth, had the judge believed the starting point should have been higher - in other words, to obtain a higher overall sentence - he could have considered a starting point that was higher. He did not, and nobody has suggested that his starting point was wrong.
19. In our judgment the judge was not entitled to increase the sentence by reducing the discount for the plea of guilty simply because the offender had previously refused to take the opportunity of admitting his offending. That fact was reflected in the starting point initially identified which also took account of the appellant's age and the other circumstances of the case. The sentence in our judgment was correctly assessed by the judge on the first occasion and in those circumstances this appeal succeeds.
20. The sentence of eighteen years' imprisonment is quashed and a sentence of sixteen years' imprisonment imposed in its place.
21. We cannot leave this case without expressing our very real concern that so many opportunities to bring this offending to book were missed. We have no doubt that the current approach to sexual offending is very different from that which has previously transpired over many years. But if ever there was a case in which the significance of taking allegations of sexual crime seriously was evidenced, this is that case.