England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		17th July 2018

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LORD JUSTICE SIMON:

1. The Solicitor General seeks leave, under section 36 of the Criminal Justice Act 1988, to refer to this court a sentence which he regards as unduly lenient. We grant leave.
2. The sentence, which was passed on 15^th May 2018 in the Crown Court at Snaresbrook by Her Honour Judge Kamill, was a term of four months' imprisonment for an offence of assault by penetration, contrary to section 2 of the Sexual Offences Act 2003.
3. The offender is Christopher Bishop. He is now aged 48.
4. On 14^th May 2018 a jury was sworn to try the offender on two charges: count 1, assault by penetration; and count 2, rape. On the second day of the trial the offender pleaded guilty to count 1 and the jury returned a verdict of guilty on that charge. The jury was discharged from returning a verdict on count 2, which was ordered to lie on the file on the usual terms.
5. In addition to the sentence of four month's imprisonment, a restraining order was made under the Protection of Harassment Act 1977 for a period of five years.
6. The victim of the assault was the offender's domestic partner. They had been in a relationship for 23 years and lived together in a flat. They had three children, two of whom were adults and had left home. The youngest lived at home.
7. Following intervention by Social Services in relation to the youngest child, the police interviewed the victim. She told them that her relationship with the offender had been characterised by his jealousy and occasional violence. In the spring or early summer of 2015, he returned home drunk. He pestered her for sex. She made it clear that she did not want sex. He forced her onto the bed, held her down and inserted his fingers into her vagina. She constantly told the offender that she did not want to have sexual intercourse with him and was visibly distressed as to what was happening. The offender repeatedly called her a "bitch", a "slapper" and a "whore". Miss Flannagan submits that the name-calling was part of role play between them. He expressed his jealousy as to what he claimed was the victim's sexual infidelity. In any event, when he finished, he fell asleep. The following morning, he apologised for his behaviour.
8. The relationship continued until October 2017. It was ended by the victim. She complained to the police about the offender's behaviour in repeatedly sending her messages. He would not accept that the relationship was over. When answering a police questionnaire in relation to safe-guarding, she told them about the conduct that became the subject of the changes in the indictment.
9. The offender was arrested and interviewed. He denied having any sexual activity with the victim without her consent. He had said alcohol did not make him aggressive. He also accepted that he might call her a "bitch" or a "whore" if he thought she was looking at other men, or as part of consensual sexual play. He accepted, however, that he was jealous and insecure in his relationship with her.
10. The first day of the trial was taken up with an application to cross-examine the victim on the basis of section 41 of the Youth Justice and Criminal Evidence Act 1999. During the course of the application the judge expressed her opinion that it was inappropriate for the Crown Prosecution Service to bring a prosecution in the context of a relationship of this length, particularly given that the relationship had continued after the offence. The court was not there to determine matrimonial issues. A previous assault on the victim was a potentially more serious matter.
11. Following the judge's indication, there was a discussion between the prosecution and the defence. The defence requested a Goodyear indication as to the level of sentence on a plea of guilty to assault by penetration: see R v Goodyear [2005] 1 WLR 253. The application was made in writing and included the following agreed document:

My plea would be on the following basis:

1. I accept that there was an occasion when, during sexual activity, I was reckless as to [the victim's] consent to digital penetration.

2. I accept that it was not reasonable that I believed she was consenting.

3. I did not intend to hurt [her].

4. We used to engage in role play, where I sometimes play a more dominant role.

5. I sometimes held [her] down by her arms, but not her throat.

6. In the past few years our relationship has been calmer, and, I believed, happier.

7. [She] did not make me aware that she was unhappy. We continued to have a good sex life until our split in October 2017.

8. When asked to leave, I left and returned my keys.

9. There is no significant temporal relationship between violence in our relationship and sexual activity.

10. I accept assaulting [her] 18 years ago and 'flicking' her nose a number of years ago. She had a nose bleed. I slapped her away with my hand. There have been no further incidents since then.

12. The judge declined to give an indication as to sentence. After further time for consideration, the offender was re-arraigned on count 1 in the presence of the jury and pleaded guilty. The jury then returned a verdict of guilty. The judge told the jury that in her view the prosecution should not have been brought at all.
13. The offender had eleven previous convictions for fifteen offences prior to 2000, mostly for offences of dishonesty. On 8^th December 2000, he was sentenced to a term of six months' imprisonment for an offence of assault occasioning actual bodily harm; the victim was the same: his domestic partner. He had cut her ear with a blade.
14. There was no pre-sentence report, but this court has had the benefit of a pre-appeal report which refers to the offender's cocaine and alcohol abuse, which was a significant contributing factor to the commission of the section 2 offence.
15. The prosecution submitted to the judge that the offence fell within category 3A of the definitive guidelines for assault by penetration: higher culpability, but without the factors indicating higher or intermediate harm, with a starting point of four years' custody. The defence argued that it fell within category 3B: lower culpability, with a starting point of two years' custody.
16. In sentencing the offender to four months' imprisonment, the judge noted that Parliament had said that there can be sexual assaults within a marriage; repeated that, in her view, the case should never have come to the criminal courts; stated that the victim was vulnerable by reason of being a mother of two children and the offender had attacked her on two occasions; but did not state how she categorised the case within the definitive guideline.
17. For the Solicitor General, Mr Polnay submits that there were a number of aggravating features: First, the previous convictions, including a previous non-sexual assault on the victim, which we have mentioned, but also a second assault some three years before the present offence, which was described by Miss Flannagan for the defence as a "slap".
18. Secondly, the offence was committed while under the influence of alcohol. Against that, Mr Polnay recognises that there was the mitigation of the plea of guilty. He submits that the judge did not appear to sentence by reference to the guidelines, did not give reasons for passing the sentence that she did, and appears to have regarded the fact that the offence was committed in a domestic context made it less serious. He submits that the judge should have followed and applied the guidelines. The statutory aggravating factors were previous convictions and, most particularly, the previous violence against the victim. On that basis, it was a category 3A case, since previous violence against the victim is a factor indicating culpability A; and the starting point was, therefore, a term of four years' custody. Alternatively, he submits that the previous violence required an uplift from the starting point of a category 3B offence of two years' custody. In either case, since the guilty plea was tendered after the trial had started, the offender was not entitled to more than ten per cent credit for that plea.
19. For the offender, Miss Flannagan submitted that the judge had made clear that it was the length and positive nature of the relationship after the commission of the offence that gave her concern. Contrary to the submissions advanced on behalf of the Solicitor General, the judge did give reasons for imposing the sentence that she passed: the relationship had lasted 23 years and included raising three children; the victim had been attacked twice, although the offender had not been charged in relation to the second assault; the couple had stayed together in a caring relationship with consensual sex for at least two and a half years after the incident that gave rise to the charge under count 1; and the complaint came about indirectly, rather than an approach to the police by the victim herself. She further submits that the judge was not under a duty to impose a sentence within the category range of the guidelines and was entitled to conclude that none of the sentencing categories sufficiently resembled the case with which she had to deal. There was, she submitted, substantial mitigation founded on the agreed basis of plea: the offender's belief that the victim consented; the background of an adventurous sex life with role playing in which the offender played the dominant role; the offender's lack of awareness of the victim's unhappiness about the offence; the fact that the sex life had continued; the two of them had recently holidayed together; the significant gap between the previous violence and the index offence; the fact that the complaint had come about when the offender had texted her in beseeching terms after the end of the relationship; and the fact that the offender had been held on remand for six months. Finally, she submitted that the judge properly addressed her mind to the seriousness of the offending and passed a sentence which was within the category range of a category 3B section 2 offence, as the defence had submitted this was, a high level community order, up to four years' custody.
20. Miss Flannagan argues that this was a merciful sentence imposed by an experienced judge who had conducted the proceedings over a period of two days. She submits that the judge was in a good position to assess the weight to give to the factors that she took into account. She acknowledges orally that this was a lenient sentence but submits that it was not unduly lenient.
21. We start with some observations on the judge's approach. There are dangers in a judge saying at the start of a trial that the prosecution should not have been brought and to give the impression that, since it was a matrimonial issue, it was not for the court to determine. While a judge may question a decision by the prosecution, it is important to bear in mind that it is for the prosecution to decide whether or not to proceed with a case. It was unfortunate that the judge's remarks were made at a time when the victim had attended to give evidence at trial.
22. We also consider that the judge should not have repeated these remarks after the offender had pleaded guilty. In the words used, the judge may also have given the impression that the offence was less serious because it was committed in domestic circumstances. If so, that was to overlook the right of any individual to personal autonomy, both outside and within a relationship. The guidelines on domestic violence make clear that offences committed within a domestic context are no less serious than offences in a non-domestic context.
23. The judge did not indicate how she approached the sentencing guidelines or give reasons for her sentence, as required by section 174 of the Criminal Justice Act 2003. She noted that the offender had been on remand for the rape offence and passed a sentence for assault by penetration that allowed for his immediate release.
24. In our view, this offence fell within category 3B of the guidelines. There was a previous offence of violence against the victim, but it had been committed some considerable time before the index offence and the relationship had continued afterwards for many years. Category 3B has a starting point of two years' custody. There were matters of aggravation: the offence was committed while under the influence of alcohol. However, there were also the matters which mitigated the seriousness of the offence, which Miss Flannagan drew to our attention: importantly, the plea of guilty, which entitled the offender to ten per cent credit.
25. The Guidelines require the Court to consider, when the offence falls within Category 3B, whether the sentence can be suspended. In our view it can and should.
26. Taking all these matters into account, we have concluded that the appropriate sentence for this offending was a sentence of 21 months' imprisonment, which should be suspended for 24 months. That sentence will be substituted for the term of four months' imprisonment on count 1.