England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

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

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If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.

LORD JUSTICE SIMON:

1. The Attorney General seeks leave to refer a sentence passed on JM in the Crown Court at Liverpool on 15 September 2017 under section 36 of the Criminal Justice Act 1988 as being unduly lenient.
2. We grant leave.
3. The offender pleaded guilty at a Plea and Trial Preparation Hearing on 17 August to count 1 on the indictment. This was an offence of indecent assault on a male contrary to the provisions of section 15(1) of the Sexual Offences Act 1956 ("the 1956 Act").
4. The particulars charged that between 22 March 1981 and 21 March 1983, the offender indecently assaulted L, a boy aged between 2 and 3, by inserting his penis into the victim's mouth.
5. The sentence passed on 15 September was a community order with a 3 year supervision requirement.
6. In summary, when the offender was 14 he was asked to babysit his nephew, who was only two and a half years old at the time. While he was in charge of the victim, the offender led him to an alcove in his home, and once there lowered his trousers and inserted his penis into the child's mouth. The victim was shocked and confused but he did not saying anything to anyone at the time. Neither the victim nor the offender forgot about this incident. Over the years they both spoke about it to others. The offender even told the victim's mother about the abuse some years later. It was not until 2015 that the victim made a complaint to the police, as a result of which the offender was eventually charged.
7. Mr Jarvis for the Attorney General submits that the decisions of this court in R v Forbes (Stephen John) [2016] EWCA Crim 1388 and R v L [2017] EWCA Crim 43 read with Annex B to the Sentencing Council definitive guideline for sexual offences sets out the proper approach to sentencing, an approach that was not adopted in the present case.
8. First, the sentencing court should seek to identify the modern equivalent offence or offences for the conduct of which the offender is convicted. In this case there was no doubt that the modern equivalent was an offence contrary to section 5 of the Sexual Offences Act 2003 ("the 2003 Act"): the rape of a child under 13.
9. Secondly, the sentencing court should seek to have measured reference to the sentencing guideline for that modern equivalent offence. Here, the sentencing court had to recognise that the maximum sentence for the section 5 offence was life imprisonment whereas the maximum sentence for an offence under the 1956 Act was only 10 years' imprisonment. That meant the starting points and category ranges had to be adjusted in a measured way to reflect the lower maximum sentence for the index offence.
10. Thirdly, the sentencing court had to identify the appropriate starting point for the offending. Mr Jarvis submits that this was a category 2 case of harm because the victim was particularly vulnerable due to his extreme youth. He also submits that it was culpability A because there was a breach of trust. The offender was babysitting at the time he abused the victim and so this was equivalent to the sort of ad hoc situation considered in Forbes at [18]. The offender was charged by the victim's parents with the responsibility of looking after their son and he abused their trust. If this categorisation is correct then the starting point after a trial for an adult convicted of the section 5 offence would be 13 years' imprisonment with a range of 11 to 17 years. Having measured reference to the guideline for an adult convicted of the index section 15(1) offence would therefore lead to a significant starting point possibly towards the maximum sentence for that offence.
11. Fourthly, the sentencing court should consider the existence of aggravating features. Here, the offence was committed in the victim's home and the impact of the offence on him has been significant and longstanding.
12. Fifthly, the sentencing court should consider matters of mitigation. In the present case the offender's lack of previous conviction and his remorse. Of considerable importance in the sentencing exercise was his youth at the time he committed the offence. That, the Attorney General recognises, has an obvious bearing on his culpability for his actions.
13. However, the sentencing court is not required to pass a sentence that respects the maximum term that could have been imposed on the offender at the time he committed the offence. The fact that he could only have received a term of detention of 3 months in 1981 has no bearing on the final form of the sentence to be passed in 2017. Provided he was liable to receive some form of custodial sentence at the time he committed the offence, that is the extent of the inquiry the sentencing court is required to undertake, as the Court of Appeal made plain in R v L at [15].
14. The sentencing court was required to inquire into the offender's maturity at the time of the offence to determine the extent to which that affected his culpability for his actions. In the absence of reliable evidence as to his maturity, the maturity should be assessed by reference to the maturity of a youth of the offender's age at the material time: a 14 year old (see Forbes at [21]).
15. In assessing the offender's culpability the sentencing court is entitled to take into account what is now the definitive guideline for sentencing children and young people effective 1 June 2017. Paragraphs 1.5 and 4.5 of that guideline emphasise that a child's lack of maturity can "impact on their decision making and risk taking behaviour" and so it was important for the court to consider whether the offender acted impulsively and whether he was aware of what the consequences of his actions could be.
16. In this case there was no evidence that the offender was an immature 14 year old or that he was suffering from learning difficulties or a mental health problem that could have reduced his culpability. The sentencing court may well have concluded that his actions were impulsive but at the same time the offender knew that what he was doing was wrong, and was not just the sort of sexual experimentation he described in his interview with the author of the pre-sentence report. By his own account he felt guilt for what he had done.
17. Sixthly, the sentencing court has to consider what credit is due for a plea of guilty. The offender did not plead guilty at the earliest opportunity in the Magistrates' Court but he indicated his intention to plead guilty in advance at the PTPH and entered his guilty plea at that hearing, so credit at or a little above 25 per cent was due to him (see the Sentencing Council Guilty Plea Guideline effective 1 June 2017 at page 5).
18. Seventhly, depending on where this exercise led the sentencing court, it may be necessary to consider the Sentencing Council's Definitive Guidelines on the Imposition of Community and Custodial sentences effective 1 February 2017 because even if the custody threshold is crossed it does not follow that a custodial sentence is inevitable. The flowchart at page 10 sets out the correct approach to take when deciding whether to impose a custodial sentence in preference to a community-based penalty.
19. In this case, Mr Jarvis submits that the judge made a significant error when he sentenced by reference to the supposed maximum sentence of 3 months' imprisonment. In fact, he was only constrained by the maximum sentence available for the offence, which was 10 years' imprisonment.
20. He submits that this was a very serious offence. The offender had indecently assaulted a child of two and a half in a manner that would now be described and prosecuted as an offence of rape of a child under 13 with a maximum sentence of life imprisonment. The offence was committed in breach of the trust reposed in the offender to look after the victim; and the impact of the offence on the victim was still being felt by him to this day.
21. The offender was young himself when the offence occurred and his actions appear to have been impulsive rather than preplanned. To that extent his culpability was reduced but he was still aware that what he was doing was wrong. The seriousness of the offence was also mitigated by the offender's lack of convictions and his remorse. Significant credit was also due to him for his plea of guilty.
22. In the light of these factors it is submitted on the Attorney General's behalf, that a community order was unduly lenient. Given the seriousness of the offence, not even the mitigation and credit available to the offender was such as to drive the inevitable term of imprisonment down to a level where a community order could have been considered as a suitable alternative disposal. A significant custodial sentence was called for in this case. In all likelihood, such an outcome was only avoided because the judge was led to believe that his sentencing powers were limited to 3 months' imprisonment when that was not the case.
23. For the offender, Mr Walker submits, first, that this was an isolated offence committed by a man now aged 51 when he was 14.
24. Secondly, the proper categorisation of the offending in the guidelines for the rape of a child was category 2B and that even for such offences the guidelines indicated that this type of offence may result in a lengthy community sentence with appropriate programmes (see page 28 of the Guidelines).
25. Thirdly, there was exceptional mitigation available to him: his clear remorse and confessions and issues relating to his medical condition. The fact that it was a one-off offence and he is not assessed as a risk to children nor ever has been.
26. Fourthly, he points to the absence of some of the aggravating features one may see in this type of offence: the absence of exploitation, targeting or grooming.
27. Fifthly, he draws attention to the Sentencing Council Guidelines on Sentencing Children and Young Persons, which indicate a significant discount available to youth offenders to reflect reduced culpability.
28. Sixthly, there was the fact of his guilty plea, which he says the judge indicated entitled him to full credit, although he acknowledges this is not clear from the sentencing remarks.
29. Finally, he prays in aid the concept of common law fairness referred to in Forbes.
30. We should add that we have seen a supplementary report prepared for this hearing dated 20 October. This shows that the offender has complied with his supervision requirement by attending appointments.
31. We have considered these submissions. We accept that the sentencing judge was led into error when he assumed that the maximum sentence which he could impose was a term of 3 months' imprisonment and that this resulted in an unlawful and unduly lenient sentence. He plainly should have adopted the staged process described in the cases of Forbes and L, to which we have referred.
32. Adopting this staged approach, and looking at stage 1, the modern equivalent offence for this indecent assault was an offence of rape of a child under 13, contrary to section 5 of the Sexual Offences Act 2003.
33. However, stage 2, the measured reference to the modern equivalent requires the sentencing court to recognise that the maximum for the section 5 offence is life imprisonment whereas the maximum sentence for the section 15(1) offence was 10 years.
34. Stage 3, in our view the appropriate sentencing category was category 2 harm because the victim was a particularly vulnerable child, and category B culpability. We do not accept that this was an abuse of trust case in the sense used in the guideline and in the sense described in Forbes. It was a 14 year old looking after a young relative.
35. On this basis, the starting point was 10 years with a range of 8 to 13 years. However, this must be adjusted as required at stage 2. In our view, this adjustment leads to a sentence of 6 years.
36. We turn then to the circumstances in which the offence arose. The offence was committed against a two and a half year old child in the child's home where he should have felt secure, and the impact on the victim, as is clear from his statement, has been significant and longstanding. There is nothing to contradict the offender's account contained in the pre-sentence report, however, that having been sexually aroused by a television programme he put his penis into the victim's mouth to feel a different sensation. He described it as a form of sexual experimentation and immediately realised it was wrong and so stopped. It was a short and impulsive criminal act.
37. His level of maturity at the time cannot now be determined but it is clear from his account as described in the pre-sentence report that he had a troubled and isolated upbringing with few friends. He was one of nine children and was the particular focus of his father's violence. His mother, who drank to excess, had a mental breakdown and he regarded staying at his sister's home, where the offence was committed, as "respite".
38. The offender also said he had been haunted by the memory of his actions towards the victim ever since. This was a relevant mitigating factor, although it should not be allowed to overshadow the very much more serious impact of the offence on the victim, which was also long-lasting.
39. It appears to be common ground that he told his sister what had happened in 1995, although it was not until 2010 that she reported the matter to the police. In 2011, he admitted the abuse to his daughter. In April 2015, a complaint was made to the police. For reasons which are unexplained, it seems to have taken over 2 years to then bring the case to court.
40. The defendant is now 51 years old. He is effectively of good character and not in the best of health, with both physical and medical issues. He pleaded guilty at the first hearing in the Crown Court and there was never any question of the victim having to give evidence.
41. Although the offender is being sentenced as an adult, the court necessarily has to reflect that this offence was committed by him at the age of 14. This affects his culpability and, in our view, calls for a significant further reduction from 6 to 3 years. With what we accept should have been full credit for his plea, it follows that the sentence should have been a term of 2 years.
42. The question then is whether that sentence can and should be suspended. The relevant sentencing provisions are set out in section 118 of the Powers of Criminal Courts (Sentencing) Act 2000. That provision provided that the court can suspend a sentence if exceptional circumstances are shown. Exceptional circumstances are those so out of the ordinary as to be exceptional.
43. In the present case, we are satisfied that there were exceptional circumstances. It was, as we have noted, a single impulsive offence committed by the offender when he was 14. He is now 51 and has not offended since. It was an act which he immediately regretted and stopped. He has been affected by what he did ever since then, confessing his crime to many people over many years. It has affected his personal health.
44. In these circumstances, we will quash the sentence imposed in the Crown Court and substitute a sentence of 24 months' imprisonment suspended for 12 months with a 12 month supervision order.