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
		25 January 2018

LORD JUSTICE SIMON:

1. This is an application by the Attorney General under section 36 of the Criminal Justice Act 1988 for leave to refer to this court sentences which he considers to be unduly lenient. We grant leave.
2. This is a case to which the anonymity provisions of the Sexual Offences (Amendment) Act 1992 apply. This means that there must be no reporting of the case which is likely to lead to the identifications of the victims of the offences.
3. The first offender is [W]. He is aged 31. The second offender is [J]. He is aged 32. The two men are cousins.
4. On 4 October 2017, in the Crown Court at Cardiff, the offenders were convicted of a number of serious sexual offences following a trial. In the case of [W], seven offences of rape, contrary to section 1(1) of the Sexual Offences Act 1956, charged as counts 1 to 7; and one offence of indecent assault, contrary to section 14(1) of the 1956 Act, charged as count 17. In the case of [J], five offences of rape, charged as counts 8, 10, 13, 14, 15; two offences of indecent assault, counts 9 and 16; and one offence of attempted rape, contrary to section 1(1) of the Criminal Attempts Act 1981, charged as count 12.
5. On 14 November, they were each sentenced to a total of 5 years' imprisonment, comprising 5 years for each offender in respect of each offence of rape. In the case of [J], 3 years' imprisonment for the offence of attempted rape. In case of [J], 2 years for the offence of indecent assault involving penetration, count 9; and 12 months' imprisonment for all other offences of indecent assault. All the sentences were ordered to run concurrently.
6. [W] is the oldest of his mother's nine children and was born in [a date in] 1986. He grew up in Maesteg in South Wales with his step-sister, KR, who was born in [a date in] 1990. Their mother's sister lived in the same village and had four children of her own. The oldest was [J], born in [a date in] 1985. The younger of his two sisters was JJ. She was born in [a date in] 1990.
7. In an interview conducted on 18 August 2016, KR revealed that when very young she had been sexually abused by her older brother and her cousin. The abuse had started when she was aged either 7 or 8 when she was at home being babysat by [W]. He had taken her up to bed and began to kiss her, removing her knickers and assaulting her by putting his fingers inside her vagina. He then penetrated her with his penis. This caused her considerable pain and she recalled feeling confused by what was being done to her.
8. Thereafter, this became a regular feature of her childhood. She suffered "lots of the same thing" whenever their mother was out and he was supposed to be babysitting. He would take her to her bedroom and rape her. She was frightened of her older brother, whom she described as very aggressive and "massive compared to me", although he was never actually violent to her. These rapes were represented by a three specimen counts on the indictment, counts 1, 2 and 3.
9. On one occasion, their younger brother, 1 year younger than KR, witnessed the abuse of KR and told their mother that the first offender was "sexing" her. Their mother demanded that she tell her the truth and, after trying to deny it at first, she eventually confirmed that [W] had "put his willy in me". Her mother's response was to shout, "You stupid girl. Why did you let him?"
10. As a result of that incident, [W] moved out and went to live with his grandmother. However, she lived in the same street, so KR continued to see her older brother regularly and he would still be asked to come and babysit when his mother went out. She begged her mother not to go out and leave her with him but her mother told her not to be stupid, adding, "I've got to have a life".
11. In addition to raping her by penetrating her vagina with his penis, [W] would also anally rape her. He would push her face down onto a mattress and lie on top of her so that she was struggling to breathe. She recalled feeling "sick to her stomach". He would then touch her anus, spitting on his hands and using the saliva as a lubricant. He would push his penis into her anus or her vagina, depending on his preference on any given occasion. She would cry but he would tell her to shut up and stop being a baby. The anal rapes were represented by three specimen counts, counts 4, 5 and 6.
12. This happened so often to KR that it became part of everyday life: "That's just the way it was and there's nothing you can do about it because my mother knew and nothing changed". She described how [W] would sometimes ejaculate over her and sometimes when she went to the lavatory after being raped she would find a mixture of blood and semen. He also sometimes tried to put his penis in her mouth but she would cry so much that he gave up.
13. KR told the police that her cousin [J] had also abused and raped her. The first occasion he abused her he pushed his fingers into her vagina. This had been when she was 8 years old. Having done it to her once, he assaulted her again and again. He then progressed to raping her. He would do this by holding her, using saliva as a lubricant and forcibly penetrating her vagina with his penis from behind. The rape would finish when he ejaculated. He would then say to her, "You clean that up, it's your fault". This conduct was reflected in a single specimen count of rape, count 10.
14. There were occasions when the two offenders would rape her together, taking it in turns to penetrate her: "They thought it was funny". There were specimen counts of rape specifically to reflect rapes committed in this way: count 7 for [W] and count 8 for [J].
15. Count 12 related to the very last offence to be committed. KR recalled an occasion when she was in the basement of [J's] home, which was a squalid space at the bottom of the house used for storage, generally in a filthy condition with dog mess and rubbish all around.
16. She described an occasion when [J] had tried to rape her just as he had done before but on this occasion they were interrupted by his younger brother. Instead, both offenders and both victims went for a walk in the mountains. It was a memorable afternoon as KR fell and broke her arm. Her evidence was that no further offences were committed after that date.
17. Her cousin, JJ, was interviewed by the police on the same day as KR, 18 August 2016. She recalled the first occasion her brother, [J], had attempted to engage in sexual activity with her. She had been playing under a little snooker table when he had taken off his clothes to expose his erect penis and tried to grab hold of her. However, their father had caught him and punished him by giving him a beating.
18. Undeterred, he would wait until their parents were out of the house or when JJ was alone upstairs. He would take her into his bedroom or, more often, their mother's room, asking if she wanted to watch a video with him. He would then demand something in return. He would put her into the bed, remove her knickers and rape her vaginally. JJ would cry as this happened, not least because of the pain. But he would just put his hand over her mouth to silence her and carry on.
19. She remembered that her brother would ram his penis into her causing her such pain that she would kick her legs out. When it was finished, she would be crying. She would go and clean herself up and find that he had ejaculated. She said that this happened frequently to the point when it was happening on an almost daily basis. These repeated rapes were represented by three specimen counts, 13, 14 and 15.
20. Counts 16 reflected a specific occasion witnessed and described by JJ when [J] had sexually assaulted KR in the basement of JJ's home. [W] was also present. JJ saw [J] touching KR in the area of her vagina while [W] was abusing JJ. This was reflected in count 17.
21. While they were together in the basement of JJ's home, [W] assaulted JJ by rubbing his erect penis all over her, including against the outside of her vagina but she did not recollect that he had penetrated her and she only recalled this happening on a single occasion.
22. The two offenders were arrested and interviewed under caution. Both denied that any sexual activity had ever taken place with either of the victims.
23. The two victims were not entirely sure when the offending had started beyond saying that they had been 6, 7 or 8. However, given the ages of the offenders, the indictment was framed to allege offences committed only on or after 30 September 1989, the date on which the application of the principle of doli incapax was abolished.
24. On 30 September, [W] was 12 and [J] was 13. KR was 8 and JJ was 7.
25. Hospital records unearthed at the time of the offenders' trial showed that KR had broken her arm on 27 July 2000 and it was therefore agreed that notwithstanding the date ranges specified in the counts on the indictment, which extended to 4 June 2002, no offences were committed after that date. At that date, [W] was 13, [J] was 15. KR was 10 and JJ was just 9 years old.
26. The impact on both victims has been lasting and severe. As a teenager, KR self-harmed and attempted suicide by taking an overdose. She described herself as haunted by memories of the abuse she suffered as a child and felt that her innocence was stolen. In adult life she had found it impossible to trust men, could not tolerate being touched in certain ways and suffered flashbacks during moments of intimacy. She is now a mother of three daughters and described herself as overprotective. She feels unable to trust them into the care of any man, even their father and grandfather. She has a deep-rooted fear that they will be harmed as she was. She hoped to be able to rebuild her life after the trial.
27. JJ spent her teenage years trying to use drink and drugs to block out memories of her childhood. In adulthood her mental health had suffered and she was prescribed medication for depression and anxiety. She is insecure, does not trust men and finds that she cannot commit to any relationship. As a result of the offenders' continuing denial of the abuse she suffered, some within her family have sided with them leading to her being disowned and isolated.
28. [W] had a number of other convictions, although none for sexual offences. In 2005, he was convicted of affray. In 2011, he was convicted of criminal damage and thereafter was convicted four times for failing to comply with a community order that had been imposed.
29. [J] had no conviction but was cautioned in July 2009 for outraging public decency, having been seen masturbating at his window in view of passers-by.
30. In pre-sentence reports both offenders continued to deny the offences to the authors of their reports and accordingly no insight into their offending could be obtained.
31. In passing sentence, the judge noted that although the age difference between the offenders and their victims was only 4 years, it was significant at that age. He observed that the level of parental supervision of both the offenders and their victims had been extremely poor and that the offenders had taken advantages of this. The evidence was that [W] had warned his sister not to tell their mother and that if she did, she would be taken away from the family, and when she did tell her mother, she was told by her not to tell social services.
32. The child JJ had said that she was too scared to say anything because if she had opened her mouth [W] would have hit her. JJ too had told her mother what was happening but it seemed her mother was simply not interested and the abuse continued.
33. The judge described the offending as "a case of the, systematic and sustained serious sexual abuse of very young girls when they were powerless to prevent it". One of the most significant aggravating features was that not only did each offender know what the other was doing, but in relation to the crimes charged as counts 7 and 8 they took it in turn to rape KR.
34. The judge then considered the sentencing approach set out in the case of R v Forbes & others [2016] 2 Cr App R (S) 472 in relation to the sentencing of historic sexual offences committed by young people, and the Sentencing Council definitive guidelines for sexual offences for the rape of a child under 13.
35. He concluded that the offences charged as count 7 and 8, rapes committed by the offenders together, fell within category 2A with a starting point of 13 years and a range of 11 to 17 years. We note that these were agreed to be the modern equivalent offences. The judge also noted that for a campaign of rape sentences of 20 years or above might be appropriate. He noted that the more significant aggravating feature was that the offences of rape had been committed by each offender frequently and although the offending might not sit comfortably with the description "a campaign of rape", the fact that there were repeated rapes called for an upward adjustment. In addition, there was ejaculation with the constant fear for the victims of the consequences.
36. The judge concluded that if the offenders had committed the offences as adults the overall starting point would have been 16 years. But in the light of their youth at the time he reduced it to 5 years on the rape counts. He said this:

Where an offender is 15 to 17 years of age it is suggested that the reduction of half to two-thirds may be appropriate and to allow greater reduction for those under 15, however that is only a rough guide and again must not to be applied mechanistically.

37. He then passed the sentences on the other counts as we have described them.
38. For the Attorney General, Mr Jones submits that the following aggravating features were present. First, the victims were particularly vulnerable by virtue of their extreme youth. Second, each offender committed offences against two victims. Third, the offenders acted together to commit offences. There were countless occasions when they were together and even when they were not together, each knew of the other's offending and this reinforced the seriousness of the overall offending. Fourth, the offending was systematic and sustained, lasting for a period of 21 months. Fifth, the offenders were trusted to look after their victims. Sixth, on many occasions the offenders ejaculated. Seventh, there was a relatively significant disparity in age. Finally, the psychological impact on the victims has been lasting and severe.
39. He acknowledges that the following mitigating features were also present. First, the offending took place almost 20 years ago. Second, the offenders were themselves very young at the time. Third, the offences were committed in the context of a lack of parental supervision or responsibility. Fourth, [W] has no relevant previous conviction and [J] has no other convictions, albeit he has a caution for a relatively minor sexual offence.
40. He refers to the Sentencing Council definitive guidelines for sexual offences and to the definitive guidelines on sentencing children and young people. He submits that a total sentence of five years for multiple rapes and other sexual offences committed over a long period on victims who were aged between 7 and 10 was unduly lenient. The judge's starting point of 16 years for the rapes if they had been committed by adults was insufficient. Counts 7 and 8 were particularly serious.
41. Having adopted a starting point that was too low, he argues that the judge made too great a reduction to reflect their ages. This was relevant only to the assessment of their culpability. The guideline applicable to the sentencing of young people was of limited weight since the primary reason for imposing shorter sentences on young people was the risk of the adverse consequences of custody. The offenders are now adult.
42. He adds that the judge also appears to have misapplied the guidelines by reducing the sentence by two thirds. In fact, the guidelines indicate a reduction to a half or two thirds of the sentence for an adult.
43. For [W], Mr Gedge submits that this may have been lenient in terms of sentence but it was not unduly lenient. He makes a point that is adopted also by Mr Davies, on behalf of [J], that the judge had presided over the trial and was in the best position to assess culpability.
44. Mr Gedge refers to the background. [W] had an unstable upbringing and lacked familial presence or support. There were disruptions of accommodation and education, exposure to drugs and alcohol abuse, familial criminal behaviour and domestic abuse. These, he submitted, all had a bearing on his culpability. He recognises that there was an imbalance of power between the offenders and the victims; but he relies on the disadvantageous and difficult domestic circumstances of [W] as a substantial mitigating factor. He draws attention to a relevant lack of offending since these offences were committed. He acknowledges that the offending fell into category 2A but points out that the judge took a starting point that was at the top end within that range of 11 to 17 years.
45. For [J], Mr Davies repeats the submission that the judge was in a good, if not the best, position to assess the culpability of these offenders. He was particularly advantaged in the case of [J] because [J] had given evidence, and he was able to form a view of his intelligence and functioning ability. He submits that his client is not a man of high intelligence; and he draws attention to the evidence about the household and the squalid nature of the basement area where food and animals were kept, and to the lack of supervision and/or parental care in relation to the children. He makes the submission that the judge was able to make the appropriate evaluation of [J's] age at the time, his intellectual ability and lack of family support. He points out that the judge specifically addressed the question of whether it was a campaign of rape and based his assessment of the culpability on the basis that it was not.
46. We have considered the submissions. In our view, the judge was entitled to approach the sentencing process on the basis that the rapes fell within category 2A of the guidelines for rape of a child under 13. That approach (see page 31) indicated a starting point of 13 years and a range of 11 to 17 years for an adult and a single victim. However, there were a number of features of these crimes that increased their seriousness. There were two victims who were children. There was a relentless targeting of the victims, who were afraid of violence, and who were repeatedly raped week after week, month after month.
47. These were offenders who acted together reinforcing each other's criminality. There was ejaculation. The childhood of the victims was destroyed and the continuing effect of the crimes has been severe. These were offences which could properly be characterised as a campaign of rape.
48. In the light of these features, we would have expected the starting point for the rapes taken together and with the aggravating circumstances of the other offences, if committed by adults, to be a term of not less than 20 years and perhaps higher.
49. Against this had to be balanced the mitigating factor of their youth, their disadvantaged domestic circumstances and their immaturity at the time of the offences. At the end of the indictment period [W] was 13 and [J] was 15 but both might have been sentenced to detention under section 53 of the Children and Young Persons Act 1933 (as amended) if charged with the offences at the time.
50. However, Forbes makes it clear that there is no question of a court trying to examine what sentence would have been passed on the offenders at the time. In that case, this court considered the significance of the age of an offender when considering historic sexual offending. As the court indicated at paragraph 20, the immaturity of the offender goes to culpability. In the case of Forbes, the court said this at 22:

When sentencing an adult offender, the Youth Guidelines and Part 7 of the original Sentencing Guidance Council Sexual Offences guideline (in relation to sentencing young offenders for offences with a lower statutory maximum sentence under the 2003 Act) will not be generally applicable as they are predicated on the basis that the offender is still a youth. Their relevance in these circumstances is confined to the emphasis placed in each on the significance of immaturity at the time of the offending to the assessment of culpability. They are not relevant for any other purpose.

51. The general principles in the youth guidelines are of importance in assessing culpability by reference to maturity and age. However, the full extent of the reduction which might apply to the sentencing of a young person who is being sentenced is not appropriate in circumstances such as these, not least because the guidelines take into account a number of factors which do not apply; for example, the fact that in most cases a young person should be given the opportunity to learn from their mistakes (see paragraph 3.2) and the impact of a custodial sentence on a youth (see paragraph 3.4 of the guideline).
52. In the circumstances of this case, which importantly include the offenders' background and personal circumstances, we consider the correct reduction from the starting point was 50 per cent. Adopting this approach, in our judgment the sentences of 5 years on the rape counts were unduly lenient.
53. Accordingly, we quash the sentences on counts 1 to 7 in the case of [W] and counts 8, 10, 13, 14 and 15 in the case of [J] and substitute terms of 10 years on each count. The other sentences will be unaffected.

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