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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> JB, R. [2017] EWCA Crim 2494 (14 December 2017)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2017/2494.html
Cite as: [2017] EWCA Crim 2494
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CRIMINAL DIVISION
SITTING AT CRDIFF CROWN COURT
Law Courts, Cathays Park Cardiff South Glamorgan CF10 3PG |
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B e f o r e :
MRS JUSTICE NICOLA DAVIES, DBE
MR JUSTICE LEWIS
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| JB |
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- LORD CHIEF JUSTICE: This is a renewed application for leave to appeal against a total sentence of eleven years' imprisonment, imposed by His Honour Judge Evans at the Crown Court at Taunton on 22 September 2017. The applicant had earlier pleaded guilty on the first day of his trial, to five counts of sexual assault on persons under the age of 13, contrary to section 7 of the Sexual Offences Act 2003.
- The provisions of the Sexual Offences Amendment 1992 apply to these offences. No matter relating to the victims in this case shall, during their lifetime be included in any publication if it is likely to lead members of the public to identify them as victims of that offence.
- Despite Mr John's careful written and oral submissions, we have concluded that leave to appeal against sentence should be refused. We will give our reasons in relatively short order.
- There were three victims of the assaults, each of whom was the applicant's step-granddaughter. Count 2 represented a multi-incident count concerning B, which reflected repeated occasions over a period of, perhaps, six months, when the applicant placed his hand inside B's lower clothing and touched her vagina. She was only ten at the time. Count 6 reflected a single occasion concerning T, who was, at the time eight or nine years old, when the applicant fondled her breast under her clothing. Count 9 was a single incident offence concerning T when he touched her vagina under her clothing. Count 12 related to a single incident when the applicant assaulted J by touching her vagina. Count 14 related to multiple similar incidents when J was between the ages of ten and twelve.
- For the purposes of the guideline on Sexual Offences, it was common ground before the judge that the nature of the offending fell within category 2A. The planning and abuse of trust, the latter because the children were left with and stayed with their grandparent, dictated culpability at category A. The fact that naked genitalia and breast area were touched suggested category 2. The starting point for a single offence was therefore four years' custody, with a category range of three to seven years' custody.
- The applicant had no relevant previous convictions, and was treated as being, effectively of good character. He is 79 years old and suffers from a constellation of ailments, substantially controlled by medication.
- The location of the offending was in the home of the victim's grandparents, where they should have felt particularly safe. Whilst this might be regarded as an aggravating feature, one has to be careful not to double count the abuse of trust element, which propelled this case into the higher level of culpability.
- There was a feature of this case which was undoubtedly an aggravating factor. That was the applicant's suggestion to at least one of his victims that if she told anyone, she would not be believed and would be hated by the family.
- One of the factors that can take a case from category 2 into category 1 is "severe psychological harm." It is almost inevitable that offending of this nature will cause some psychological harm, although occasionally that does not occur. But the degree of such harm, even if it falls short of severe can significantly influence where in the range any particular sentence should lie. So too, clearly, can the nature of the sexual assault with which the case is concerned.
- One of the realities often seen in cases of familial sexual abuse is that the damage caused by the offending extends beyond the children concerned, and engulfs their parents and other members of the family. The judge had before him statements from the mothers of these children, themselves all sisters, which were read into evidence at the sentencing hearing. They illuminate the severe damage done to the children in this case, and the wider harm caused to the family, and in particular to the mothers of the children and their fathers.
- The offending was clearly serious within the context of the range of activity encompassed within the offence of Sexual Assault in section 7 of the 2003 Act. The offending against each child would have justified a sentence above the four year starting point, had there been only one victim. The judge reasoned that, before considering the late plea, for which a 10 per cent discount was appropriate, and before considering totality, the simple addition of sentences, had each been sentenced separately would yield a starting point of about sixteen years. It was by discounting for totality and the late pleas that he arrived at eleven years.
- We recognise that this was a severe sentence, and that other judges might have arrived at a slightly lower sentence overall but we are unable to conclude that the sentence overall of eleven years can properly be described as manifestly excessive. In those circumstances, as we have indicated, we refuse this renewed application. Mr John, thank you very much indeed for your assistance.