England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988

		Royal Courts of Justice Strand London, WC2A 2LL
		31 October 2017

LORD JUSTICE SIMON:

1. The Attorney General seeks leave to refer a sentence passed on this offender, aged 40, in the Crown Court at Worcester on 12 September 2017 under section 36 of the Criminal Justice Act 1988 as being unduly lenient. We grant leave.
2. On 22 August, at a plea and trial preparation hearing, the offender pleaded guilty to four counts on an indictment that charged sexual activity with a child family member contrary to section 25(1) of the Sexual Offences Act 2003.
3. The victim in each count was the offender's foster daughter.
4. The period of the offending in counts 2 to 4 spanned 20 September 2016 to 7 May 2017 and consisted of two occasions when the offender penetrated her vagina with his penis (counts 2 and 3) and one occasion when he penetrated her mouth with his penis (count 4). The offending in count 1 took place on 7 May when again the offender penetrated the victim's vagina with his penis. In his police interview, he accepted that similar sexual activity had taken place on at least 20 occasions.
5. On 26 August 2017, at the Worcester Magistrates' Court, prior to the offender being sentenced for the sexual offences, the offender pleaded guilty to a further offence of supplying false information in purported compliance with the notification requirements imposed on him following his conviction. That case was committed to the Crown Court for sentencing at the same time as the sexual offences.
6. On 12 September 2017, the offender was sentenced to 2 years' imprisonment on each of the four counts on the indictment concurrent suspended for 2 years with a rehabilitation activity requirement for 30 days. On the matter committed for sentence for his breach of the notification requirement he received a concurrent term of 6 months' imprisonment also suspended for 2 years.
7. The offender and his wife started fostering in around 2012. They specialised in mother and baby foster placements. They had two children of their own who were aged 10 and 7. The offender's wife was pregnant with their third child when most of the offending took place.
8. The victim, R, was born on [a date in] 2000. She had been known to Gloucester County Council since 2005 when she was placed on a child protection plan because her mother had physically and emotionally neglected her, and an allegation was made that she had been raped by a babysitter.
9. In [a date in] 2015, she gave birth to her first child. She was 14 years old at the time. She voluntarily agreed to be placed into foster care following the birth, and so it was that in October 2015 when she was 15 she and her child went to live with the offender and his wife. Shortly thereafter she became pregnant with her second child, who was born in [a date in] 2016 when she was still only 15. The offender is not the father of that child.
10. In November 2016, R disclosed to a former boyfriend that she was in the relationship with the offender. The former boyfriend mentioned this to the police and a police investigation ensued. R denied the allegation, as did the offender. Nevertheless, the offender's wife was concerned by what she had been told and so she tried to ensure that the offender and R were never alone together.
11. On Saturday, 6 May 2017, the offender, his wife and their children went to watch a football match. Afterwards, they went to a pub with members of other families. At around 10.00 pm the offender's wife left the pub with their children and headed home.
12. The offender stayed behind to carry on drinking. He returned home much later that evening. R was awake when he got home. He went into her bedroom and they had consensual sexual intercourse. Afterwards, the offender walked naked into his own bedroom. His wife saw him walk in. She was surprised to see he was naked, left her room and saw discarded clothes of the offender and R on the floor of the landing outside R's room.
13. She went into R's room and challenged her. R denied that anything sexual had taken place between her and the offender. The offender's wife was unconvinced. She asked both the offender and R to accompany her downstairs where she questioned them about what had gone on after his return from the pub. They neither confirmed nor denied having sexual intercourse with each other. The offender's wife then tricked them by saying that she had seen them having sex. Neither of them responded.
14. The offender's wife told him to take R and her children to stay with R's aunt. He did and then returned to the family home. He spoke to his wife on his return. Again he made no admissions, but told her he would go to the police if she wanted him to. She said she did. The offender then said he had been trapped. He added he had made a terrible mistake. He told his wife he was afraid of speaking to the police but she reassured him that he was doing the right thing.
15. He went to the police station to report himself. He was interviewed by the police, during which he explained that between November 2016 and May 2017 he had had sex with R about 20 times. He explained that he was aware of the need to maintain appropriate boundaries with foster children in his care. He had received safeguarding training, which was renewed annually with a top up every 6 months.
16. The police took a short statement from R. She said she had had sexual intercourse with the offender as often as they could, which was about once a week. When he was asked about R's statement in a further interview, the offender said it was true. He said he loved his wife but he had found it hard to resist staying away from R. When she first came to live with them life was hard for her. He was a father figure to her but that changed one evening when they were on the sofa together and R had masturbated him. He was shocked when that happened but that was where his attraction to her began. From that point they had had sexual intercourse on a regular basis.
17. Following his conviction and prior to sentencing the offender was made subject to notification requirements. In breach of those requirements he failed to notify the police that he was staying in a hotel. When arrested and interviewed about this breach he said he had not realised the need to inform the police that he was staying in a hotel.
18. The offender has no previous convictions, cautions, warnings or reprimands on his record. There was a pre-sentence report dated 6 September 2017. The offender told the author of the report that at the time of the offences he was under a lot of stress at work and as a result his marriage was under strain. He enjoyed the attention he received from R. He could not explain why he embarked on a sexual relationship with her. He said it was a "dark period" in his life. He understood his behaviour amounted to a major breach of trust and he recognised that in consequence of his action R's parenting assessment with social services may have been jeopardised.
19. The author of the report described how in his opinion the offender became susceptible to the attentions he received from R because of his low mental state at the time. The report acknowledged that this was a serious case because the offending occurred over a period of around 7 months and R herself was in a vulnerable state. The offender described how he was now excluded from the family home. He had supervised contact with his own children. He was separated from his wife, who was due to give birth in October 2017.
20. The author of the report assessed him as posing a low risk of reoffending and a medium risk of serious harm. If he received a sentence of immediate custody he would lose his job, which would obviously impact on his ability to provide for his family. In the view of the author of the report, the risk posed by the offender could be managed in the community.
21. In a short personal statement dated 1 May 2017, R stated that the sex between the offender and her was entirely consensual and something she wanted to happen. She described the offender as a genuine and caring person who was very good with children and would not intentionally hurt anyone. She wrote that she did not want anything to happen to him, and did not want to pursue any complaint against him.
22. Prosecution counsel drew the recorder's attention to the Sentencing Council's Definitive Guidelines on Sexual Offences. He submitted that the harm fell into category 1 because there was penetrative sexual intercourse and the culpability was A because there was a significant disparity in age between the victim and the offender. The starting point in category 1A is 6 years' imprisonment with a range of 4 to 10 years for a single offence.
23. Defence counsel did not challenge this categorisation.
24. The recorder felt that the justice of the case would best be served by moving the culpability into B and thereby giving a starting point of 3 years and 6 months' imprisonment and a range of 2 years and 6 months to 5 years. Taking into account the fact that the prosecution's case was built on the offender's admissions to the police and the impact a custodial sentence would have on the offender and his family, (the offender and his wife had recently reconciled), the recorder settled on a final sentence of 2 years' imprisonment, which he suspended.
25. The Attorney General submits by Mr Jarvis that the sentences were unduly lenient. Sexual activity with a child family member contrary to section 25 of the Sexual Offences Act 2003 carries a maximum sentence of 14 years' imprisonment. The offender stood to be sentenced for four such offences representing, by his own admission, at least 20 occasions on which he and his victim had had sexual intercourse over a period of around 7 months. She was 16 when the offending occurred and was vulnerable. By contrast, he was 39 or 40, so more than twice her age. He had been a foster carer for a number of years and understood very well what the requirements of his role were.
26. The significant disparity in age placed the case into the highest bracket in the guidelines: category 1A. The starting point for a single offence was a term of 6 years' imprisonment. The seriousness of the offending was aggravated by (1) fact the offences occurred in R's home; (2) the fact that she was compelled to leave that home; and (3) by the failure of the offender to respond to warnings, when he was confronted by his wife in November 2016 after her suspicions were first raised.
27. The Attorney General acknowledges that the seriousness of the offending was mitigated by (1) the offender's lack of previous convictions; (2) his remorse; and (3) the impact of the offending on others, in particular the other members of his family who were entirely blameless.
28. Nevertheless, balancing those factors, the Attorney General submits that the sentence after trial for a single offence would have been in the region of 5 to 6 years. Even affording the offender full credit for his guilty pleas, that would bring the sentence down to about 3 years 6 months for a single offence. Here, there were four offences representing a much wider course of offending and it is submitted that this had to be reflected in the final sentence. An overall sentence of 2 years' imprisonment was unduly lenient in these circumstances.
29. For the offender, Mr Aris submitted, that the sentence was merciful but not unduly lenient. The circumstances were such as to justify what he accepts was an exceptional course.
30. We should add we have also seen a supplementary report on the offender prepared for this hearing dated 27 October.
31. We have considered the submissions and have concluded that the sentences on counts 1 to 4 were unduly lenient. The Sentencing Council Definitive Guidelines for sentencing for offences of sexual activity with a child family member contrary to section 25 of the Sexual Offences Act 2003 are set out at page 51 of the Guidelines. Since the intercourse involved penetration of the vagina (counts 1 to 3) and penetration of the mouth (count 4), the offences fell into category 1 of harm. In view of the significant disparity of age, the offending fell into category A of culpability with a starting point of 6 years and a range of 4 to 10 years for a single offence. Here, there were four counts and the course of conduct carried on for more than half a year. The consequence of the offending had been that the victim had had to leave her home, which is an aggravating feature specified in the Guidelines at page 54.
32. Against that there was the offender's previous good character, he had acted as a foster carer for troubled children for 7 years without incident, and there were letters addressed to the court speaking of his good qualities. He had expressed genuine remorse and regret for his crime, which had had a considerable impact on his family. He had himself reported his crimes, although it appears that at that stage he may have been compelled to do so.
33. In our view, and on this basis, the starting point should have been not less than 6 years. The recorder plainly felt sympathy for the offender. He said:

"I think I can properly extend a degree of mercy to you today. A degree of mercy that some may think is undeserved because you should have known better."

34. The recorder was right, at least to this extent: the offender was an older man who was trusted with the welfare of R, who needed to be protected from herself. Instead of protecting her as a foster carer should, he committed offences against her over a lengthy period. In his favour, the offender had himself approached the police and confessed and he was entitled to the full benefit for his pleas.
35. With this full discount for his pleas, in our view the sentence should have been 4 years. We take into account that he has performed some of the sentence that was imposed and reduce the sentences to terms of 3 years and 10 months. The sentences on counts 1 to 4 will be quashed and sentences of 3 years and 10 months substituted. The sentence for the notification offence will remain 6 months but will be served concurrently with the other sentences.

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