England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		27 April 2018

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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.

MRS JUSTICE ANDREWS:

1. On 13 January 2018 in the Crown Court at Mold, the appellant pleaded guilty to a single count of sexual activity with a child, contrary to section 9(1) of the Sexual Offences Act 2003. For that offence he was sentenced on 12 March 2018 to a term of imprisonment of 27 weeks. In addition, a Sexual Harm Prevention Order was made under section 103 of the Sexual Offences Act 2003. The statute specifies that the minimum period of such an Order is five years.
2. The judge observed in his sentencing remarks that he intended to make a Sexual Harm Prevention Order for a period of three years, but such an Order would have been unlawful. It appears from the papers before us that the period of the Sexual Harm Prevision Order was adjusted to 10 years. The sentence of imprisonment the judge passed on the appellant was more than 6 months and less than 30 months. This meant that the period of compulsory registration under the terms of section 80 of the Sexual Offences Act was 10 years. We infer that when correcting the period of the Sexual Harm Prevention Order from 3 years to 10, the judge intended that the Sexual Harm Prevention Order should marry up with the period of compulsory registration.
3. The provisions of the Sexual Offences (Amendment) Act 1992 apply and therefore no matter relating to the victim of the offence shall, during her lifetime, be included in any publication if it is likely to lead members of the public to identify her as the victim of the offence, unless and until the Court directs otherwise.
4. The offence was a single offence that was committed in somewhat unusual circumstances. The appellant had been living with his wife and her three children in their house and the middle child, who we will call L, was just over 14 years old. Sadly, L suffered from a very painful medical condition which left her in considerable discomfort and affected her ability to sleep. The discomfort was alleviated by her having her feet massaged. On numerous occasions the appellant had helped in the evenings to massage the girl's feet and there had never been any complaint of any impropriety. However, in the early hours of the morning of 27 February 2017, as the appellant was massaging her feet, he ran his hands up her legs, massaging the top of her legs, and then placed the fingers of one hand inside her underwear, rubbing her skin in a circular motion just above her vaginal area. She reacted by shaking her head at him. He then stopped what he had been doing and apologised to her, saying that he loved her, perhaps too much. He left the room.
5. A complaint was made almost immediately. He was arrested. In interview he initially said that this was an accident and he had not intentionally placed his hand on her vaginal area. However, shortly before trial, when the case had been listed, he pleaded guilty to the offence and therefore accepted responsibility for it. The judge gave him credit of 10 per cent for that late plea of guilty.
6. It is contended by Mr Jones on behalf of the appellant that in sentencing, the judge double-counted various factors, which led to an unjustified increase in the length of the sentence. He also contended that the judge paid insufficient regard to the substantial mitigation, and that there were mitigating features that were not even mentioned in the judge's sentencing remarks. For all those reasons, he submitted that the sentence of 27 weeks was manifestly excessive.
7. In addition, Mr Jones contended that the Sexual Harm Prevention Order was unnecessary. He submitted that this was a somewhat unusual case, and that even if the court were to be persuaded that such an order was necessary, it should be for a shorter period, and that any harm could be properly addressed by a variation in its terms. We will take those matters in turn.
8. The offence was quite properly put into Category 3 of the Sentencing Council's Definitive Sentencing Guidelines, the judge having accepted that there was no touching of naked genitalia, and therefore it fell within the lowest category of harm. In terms of culpability it was undoubtedly culpability A because of the abuse of trust from the familial relationship (the child being the appellant's stepdaughter), and the significance of disparity in their ages to which the judge referred. The Sentencing Council has treated those as separate factors in weighing culpability. Although, as Mr Jones points out, in cases where there is an abuse of trust by a parent or similarly responsible adult in respect of a child, there is almost inevitably going to be a significant disparity in their ages, that is no reason not to treat it as a separate factor.
9. It may well be that the judge might have approached the matter in a slightly different order. He first looked at what he described as the "aggravating features" which he reflected in the sentence. He identified as aggravating features the fact that there was the serious breach of trust and the significant difference in ages, as well as other matters, before turning specifically to the Guidelines.
10. However, we are not persuaded that there was any double-counting. Even if one looks at the matter in the correct sequence, and starts with the Guidelines, this was a Category 3A offence, for the reasons we have already stated. In addition to that, the victim was vulnerable and trusting because of her medical condition, the impact of the behaviour upon her was very serious (she was now having difficulty in sleeping and suffering from flashbacks), and there had been a serious impact on her mother and her siblings as well. In addition, the offence was committed in the home and late at night -- two of the statutory aggravating features. All those matters would have justified a significant uplift in the starting point within the Guidelines of 26 weeks' custody.
11. There were, however, significant mitigating features. This was, as we have said, a single isolated incident, the appellant had no previous convictions of any relevance, and to some extent there was an expression of remorse recorded in the pre-sentence report, although the appellant was unable to explain the comment that he had made to the child when he apologised to her. The author of that report somewhat elliptically states "Mr P seems to be accepting responsibility for his offending". However, to his credit, he did not seek to justify his behaviour. He said he was feeling very guilty, and he was unable to believe that he acted in the way he did. He did not express any attitudes condoning any form of sexual abuse of children.
12. It is perhaps striking, in a case of this nature, that this is an appellant who has no previous history of interest in child sex activity. There is no history of looking at child pornography on the internet or anything of that nature, or of any sexualised interest in children in the period prior to the commission of the offence.
13. That said, when one balances the mitigating factors and the aggravating factors to which we have referred, plus the other significant mitigating factor that the judge relied upon, namely the appellant's care responsibilities for his elderly and infirm father, we cannot say that the starting point after trial of 30 weeks that was identified by the judge would have been a manifestly excessive point to start within the Guidelines, and therefore after giving credit for the plea of guilty, a sentence of 27 weeks was appropriate. We should add that we are not persuaded that the late guilty plea would have entitled the appellant to any greater credit than that which the judge in his discretion gave him.
14. That however leaves the question of the Sexual Harm Prevention Order. The test for making such an order is that it must be shown that it is necessary for the purposes of protecting the public or any member of the public, from sexual harm from the appellant. In this case there are none of the features that one would normally see in a case of this kind which indicates a necessity (over and above the registration requirements, which are mandatory) of making an order preventing the appellant from having contact with underage girls. He had never displayed any sexual interest in children before, this was an isolated event, and he was unlikely to ever be put in a position of massaging a child's legs in this way again. In those circumstances, we consider that there is great deal of force in the submissions that have been put before the court by Mr Jones.
15. We therefore allow the appeal to the extent of quashing the Sexual Harm Prevention Order. However, the existing custodial sentence must stand. The appeal is therefore dismissed on all other grounds.

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