England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Thursday, 8th December 2016

MR JUSTICE MALES:

1. This is a case to which reporting restrictions apply. Pursuant to the Sexual Offences (Amendment) Act 1992 nothing must be published which is likely to lead to the identification of the victims in this case.
2. On 30th June 2016, in the Crown Court at Basildon, the appellant (now aged 71) changed his previous pleas of not guilty to a guilty plea to each of the following offences. On counts 1 to 3, he pleaded guilty to indecent assault, contrary to section 14 of the Sexual Offences Act 1956. For those pleas he was sentenced to 2 years' imprisonment on counts 1 and 2 and 4 years on count 3. Count 4 was an offence of buggery, contrary to section 12(1) of the Sexual Offences Act 1956 and counts 5 and 6 were offences of incest, contrary to section 10(1) of the same Act. For those two counts he received a total sentence of 27 years' imprisonment which comprised a custodial term of 25 years and a further licence period of two years pursuant to section 236A of the Criminal Justice Act 2003. All of the sentences were concurrent, so that the total sentence was one of 27 years made up as we have described.
3. The case was concerned with sexual offending against the appellant's stepdaughter and natural daughter when they were children, during the late 1970s and 1980s. The abuse of the appellant's stepdaughter, whose date of birth was in 1974, began when she was a small child, about 6 years old. The appellant would get her out of bed and bring her into the living room while her mother was out at work and her siblings were sleeping. He would sit her on his knee in the living room and touch her vagina under her clothing. That was the offence which comprised count 1. He would also make her touch his penis until he ejaculated (count 2) and perform oral sex upon him which included licking his testicles and his bottom (count 3). In addition the appellant would make her lie down with a cushion under her stomach and would rape her anally (count 4), although this was then described in law as buggery rather than anal rape. She said that this abuse happened on several occasions and it finally ended when she went to live with her grandparents at the age of 7. Accordingly the abuse against the stepdaughter took place from time to time over a period of about a year but in nothing like as regular a way as was to occur with the appellant's natural daughter.
4. The natural daughter was born in 1971 and between the ages of 6 and 15 the appellant abused her regularly in the family home while her mother was out at work. He would take her into his bed and have vaginal sexual intercourse with her. That was the subject of counts 5 and 6, the incest offences. The daughter said that she was unable to say "no" to her father as he had a violent temper. In addition, he would threaten her or bribe her with sweets (or, when she was older, cigarettes and alcohol) to prevent her from disclosing what had happened.
5. The judge described this in her sentencing remarks as a "campaign of rape", although that expression applies more readily to the offences against the appellant's natural daughter than it does to his offences against his stepdaughter.
6. These offences came to light in 2013 when the appellant's natural daughter reported them to the police. The stepdaughter made a similar report shortly afterwards. By the time the case came to trial in June 2016 the appellant was aged 71 and in poor health. We have been told that he suffers from emphysema, chronic asthma and diabetes. Initially he absconded when his trial was due to begin. He took himself, as we understand it, to France and was arrested at Dover. We are told that was on his way back from France rather than in the course of his flight there. At all events, he maintained his not guilty pleas when the trial began and on the first day the two victims' ABE interviews were played and they were cross examined. It was put to them in cross-examination that they were liars, making the whole thing up.
7. The trial was estimated to last for 4 or 5 days and there was further prosecution evidence to follow, including evidence from the appellant's wife. However, at the beginning of the second day of the trial the appellant indicated that he wished to change his pleas. He said that he did not wish to put his wife through the ordeal of giving evidence, although it is fair to say that the judge was very sceptical about that explanation.
8. There was in addition to the evidence which the victims had given on the first day of the trial additional evidence that the appellant's natural daughter had confronted the appellant about the sexual abuse after she had finally been able to go to the police and had recorded her conversation with him on her mobile telephone. In the course of that conversation the appellant made partial admissions and apologised for his actions. It may be, therefore, that the combination of seeing the evidence which the victims had given (including the extent to which their evidence had withstood cross examination) plus the evidence of the recorded conversation led the applicant to conclude that there was a strong case against him, and that his change of pleas recognised that fact.
9. In sentencing the appellant the judge declined to give him any credit for his late plea. She described the appellant, even at that stage, as controlling and manipulative and took the view that no credit was appropriate.
10. So far as the Sentencing Guidelines were concerned, it was accepted by both counsel that this was a category 1A case, with a starting point of 16 years and a range of between 13 and 19 years, but that those guidelines applied for one victim, whereas in this case there were two. It was accepted to be justified for the judge to go outside the guidelines. The judge described the abuse of the natural daughter, as we have said, as "a campaign of rape", with total abuse of trust, fear used to control the victims, ejaculation and long-term effects, which the judge had seen for herself in the course of the victims giving evidence. She concluded that the appellant was not dangerous within the meaning of the legislation and in that context referred to the fact that these were old offences with no further offending in the meanwhile and that such other offences as the appellant had committed were so old they did not need to be taken into consideration. She decided therefore that it was not necessary or appropriate to pass either a life sentence or an extended sentence, although clearly that was something which she thought about. In the event she passed the sentences which we have described.
11. The judge did not expressly mention section 236A of the Criminal Justice Act 2003 ("offenders of particular concern") in her sentencing remarks but it is apparent that the total sentence which she passed was intended to take effect under that section as a sentence of 27 years comprised, as we have said, of 25 years custodial term and 2 years further licence period.
12. However, as explained in R v Fruen [2016] EWCA Crim 561, in the case of concurrent sentences where each of the sentences takes effect under section 236A of the Act, it is necessary for each sentence to have a further licence period of 1 year, but those further periods themselves run concurrently, making 1 year in all. The judge therefore should have imposed a further licence period of 1 year rather than 2, although in fairness to her the decision in Fruen was very recent at the time when she passed sentence. Limited leave was given to enable this point to be corrected and we correct it accordingly.
13. The appellant renews his application on the remaining proposed grounds of appeal which were rejected by the single judge. A number of points were made in writing, although in the course of his succinct and realistic submissions today Mr Hooper has really confined himself to two points. The first is that at any rate some credit should be given for the appellant's guilty plea, and the second is that the sentence of 25 years, notwithstanding, as he described it, the hideous nature of these offences, was simply too long in the circumstances. We grant leave.
14. So far as the question of credit for a late guilty plea is concerned, that is to say a plea entered even after the beginning of the trial, in general some credit should be given, save perhaps in exceptional circumstances, even if the plea is entered at such a late stage.
15. In the case of R v Carew [2015] EWCA Crim 437, reference was made at paragraph 9 to what was said by Aikens LJ in an earlier hearing in that case. He said:

"Should the judge have given credit for the very late guilty plea? We think that he should have done so, for the very reason that the judge identified at least. It takes some courage to plead guilty at a late stage and there should be encouragement to all offenders to recognise their offending and to own up to it. That, as [counsel] said in his submissions this morning, also avoids any miscarriage of justice. This should be encouraged by giving credit for a guilty plea even if that is entered at the eleventh hour or even later. In our judgment there should have been a 10% credit."

The court followed that approach.

16. It is fair to say, however, that Carew was a case where the allegations were offences of robbery and wounding with intent. So far as the amount of any credit is concerned, that must be looked at by reference to the facts of the case. Different considerations may apply in, for example, sexual cases such as the present, where one of the objectives of the giving of credit is to spare the victims from the ordeal of having to give evidence. The appellant's victims in this case had to go through that ordeal and to re-live in that way the abuse which had occurred to them in a way which is likely to have had a much greater effect on them than it would have done to the victims of the robbery and wounding in the Carew case, while being accused of making the whole thing up. That was inevitably a traumatic experience.
17. The Sentencing Guidelines on the issue of reduction in sentence for a guilty plea do not distinguish, so far as the amount of any credit is concerned, between a plea which is entered at the door of the court and a plea entered after the trial has begun. In each of those cases the recommendation is for a reduction of 10%. That may well be appropriate in some cases but sentencing judges should not feel constrained by this guideline to give 10% credit for a guilty plea entered after the commencement of trial in all circumstances. A judgment is required as to what credit is appropriate. That will require careful assessment of the facts of the particular case, including (particularly in sex cases) the extent to which witnesses have been spared from giving evidence on the one hand, or have been required to go through that ordeal on the other, as well as consideration of the amount of time and costs which have been saved as a result of the defendant's plea at that stage. The strength of the case against the defendant may also be relevant. That is not intended to be a definitive or exhaustive list. All the circumstances of the case will need to be taken into account and it may be that there will be some exceptional cases where no reduction is appropriate.
18. Here the position is that although there appears to have been a strong case against the appellant, in view of the partial admissions in the telephone call to his natural daughter to which we have referred, the appellant did, by his plea, save at least some prosecution witnesses from what would have been an ordeal for them, in particular the appellant's wife. Moreover, several days of court time were saved. In those circumstances, we accept the submission that some credit was appropriate to be given although it is not a case where we would consider that 10% or anything like that is appropriate.
19. We turn to the overall submission that the total sentence was manifestly excessive. This was multiple offending against two very young children, for whom the appellant had parental responsibility and, in the case of his natural daughter, that went on for many years. There were numerous aggravating features, including the use of fear of violence and bribery with money and sweets or later, as the victim became older, cigarettes and alcohol. There was ejaculation. There was severe psychological harm to the victims.
20. A sentence outside the guidelines for a single victim was fully justified. Mr Hooper submits that although the appellant could have no complaint if a sentence in the region of the low 20s in terms of number of years had been passed, a custodial term as long as 25 years was too long. We agree with that submission.
21. In our judgment, the appropriate custodial term would have been in the region of 22 years after trial. We would allow 1 year's credit for the appellant's late plea. The result is a custodial term of 21 years. Accordingly we grant leave, we quash the sentence and we replace it with a total sentence of 22 years which will comprise 21 years' custodial term and 1 year's further licence period so far as counts 4 to 6 are concerned. The shorter sentences for the remaining counts are not affected. As before, all sentences are concurrent.

LORD JUSTICE DAVIS: Thank you very much indeed Mr Hooper. You will of course have a representation order for your application and appeal, as now it has become.