England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		24 July 2018

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LORD JUSTICE SIMON:

1. The Solicitor General seeks leave to refer to this court a sentence passed on the offender in the Crown Court at Liverpool on 25th May 2018 by Miss Recorder Goode under section 36 of the Criminal Justice Act 1988 as being unduly lenient.
2. The offender, who is now aged 69, was charged with two counts of indecent assault on a male, contrary to section 15(1) of the Sexual Offences Act 1956.
3. The victim in each case was J and the particulars charged that on two occasions between 15th August 1989 and 14th August 1991 the offender assaulted him when he was aged between 10 and 12 by touching his penis.
4. The offender pleaded not guilty to the offences but was convicted following a trial on 18th May 2018. He was sentenced a week later to a term of twelve months' imprisonment concurrent on each count and made the subject of a sexual harm prevention order for a period of ten years.
5. In the late 1980s and early 1990s the offender lived with his wife and two children at an address in Winsford, Cheshire. His son was friends with J. The two boys would play video games at the offender's home and in that way J got to know the offender.
6. Some time in 1990 or 1991, when he was aged between 10 and 12, J stayed over at the offender's home. He slept on his friend's bedroom floor while his friend slept in his own bed in the same room. During the course of the night, J woke up to find that the offender was masturbating him. The offender had come into the room when J and his son were asleep. He had then reached under J's blanket and into his boxer shorts in order to grab his penis. J was shocked. Initially he froze, uncertain what to do. He then rolled away, causing the offender to release his grip. The offender then left the room. This conduct was charged as count 1.
7. J did not tell anyone about what had happened to him. He remained friends with the offender's son, but he avoided going into the offender's home in case he tried to touch him again.
8. Some months later, the offender's son asked J if he wanted to stay with him in the family caravan. J knew that the offender would be there but presumed that, because the caravan was so small and all the offender's family would be sleeping in it, there would be no possibility of the offender touching him there, and so he agreed to go. His stay in the caravan passed without incident and so he assumed that the offender was no longer a danger to him.
9. Some months later (and about one year after the assault in his friend's bedroom) J agreed to stay over at the offender's house again. As before, J slept on the floor while the offender's son slept in his own bed. For the second time, J awoke in the night to find the offender masturbating him. J pulled away again. The offender stopped and then left. This conduct was charged as count 2.
10. After that, J and the offender's son drifted apart, in the main because J did not want to have anything further to do with the offender.
11. Over the years, J told a number of people about what the offender had done to him. During a holiday with some friends when he was in early 20s, he told them about the assaults, and this revelation prompted him to have a mental breakdown. He was admitted to a psychiatric hospital for around three months when he returned from the holiday. Thereafter, he was prescribed anti-psychotic medication.
12. After seeing a television programme some years later, J decided to approach the police and give them his account.
13. The offender was located and arrested. When police interviewed, he said he could not remember J. He denied masturbating any of his son's friends.
14. On 31st July 1992 the offender had been sentenced for one offence of indecent assault on a male aged 16 or over and for one offence of indecent assault on a male under 14. The sentences were consecutive terms of three months' imprisonment, both suspended for two years. Those offences were committed at around the same time as the offences against J and in circumstances that were similar.
15. There was a short form pre-sentence report dated 23rd May 2018. In interview with the author of the report the offender denied committing the offences against J. He explained that J had made false allegations against him. He explained that he is the carer of his disabled husband. His children are adults and he has occasional supervised contact with a grandchild. The author of the report stressed that the offences present serious cause for concern because they show that the offender had poor self-control and a propensity to participate in sexually predatory activity. He also had limited insight into why he offended in the way he did. He presented as posing a low risk of general reconviction but a medium risk of serious harm to children. As an alternative to custody, the author suggested that a community order, with an unpaid work requirement and a rehabilitation activity requirement, might be appropriate.
16. In his first witness statement dated December 2016, J described himself as an innocent child who had been terrified by the offender's action. The offender had left a scar on his life and his mental breakdown was due to that sexual abuse.
17. In a victim personal statement dated 29th January 2017 that was not before the Recorder on the date of sentencing, J wrote that, for years, he had buried the secret of what the offender had done to him. He was scared of what people might think of him if they knew. He found it difficult to form relationships and had suffered periods of depression, paranoia and poor mental health as a result of the assaults. In his late teens, he self-harmed as a way of coping with his thoughts about abuse.
18. On 18th June 2018 this victim personal statement was placed before the Recorder under the slip rule provisions (section 155 of Powers of Criminal Courts (Sentencing) Act 2000). The Recorder, having considered the victim personal statement, decided not to alter the original sentence. Mr Jarvis has informed the court that the unfortunate omission in failing to place the victim personal statement before the Court was due to a prosecution oversight.
19. At the outset of the sentencing hearing, defence counsel informed the Recorder that the offender now admitted his guilt in relation to the offences against J and also in relation to his convictions from 1992, his case at trial being that he had not committed those offences either.
20. In mitigation, counsel handed to the Recorder two references that referred to the care the offender provides for his disabled husband. His husband has severe learning difficulties and mobility issues, and is unable to manage his life day to day. Defence counsel submitted that a sentence of immediate imprisonment would have a significant impact on the offender's husband.
21. He accepted that the modern equivalent offence was sexual assault of a child under 13, contrary to section 7 of the Sexual Offences Act 2003. That offence has a maximum sentence of fourteen years' imprisonment, whereas the offences of which the offender stood convicted each carried a maximum sentence of ten years' imprisonment.
22. By reference to the Sentencing Council's definitive guideline for sexual offences, defence counsel accepted that the offences fell into category A culpability because there was an abuse of trust, since J was staying over in the offender's home when the assaults took place.
23. As for harm, counsel submitted that none of the category 1 factors applied and so the case fell into category 2 because the offender had touched J's penis. For the modern equivalent offence, that gave a starting point of four years' imprisonment, with a range of three to seven years.
24. Prosecution counsel invited the Recorder to find that the abuse had caused J severe psychological harm which would elevate the harm into category 1. The Recorder was not persuaded by that argument on the strength of the evidence she had heard at the trial, but she added that:

The undoubted effect upon the complainant is an aggravating feature.

25. In her sentencing remark the Recorder also referred to J's vulnerability, on account of the fact that he was asleep when the offender began to assault him. She added that, whilst there was an abuse of trust in this case, the effect of that was rather limited because the offender had not been "in a particular relationship of trust" towards J. In the opinion of the Recorder, the facts of the case just came within category 2A: "But it is at the lower end of the range of that sentencing range had the court been dealing with the matter under the current legislation." She recognised that, on account of the differing maximum sentences for the index offences and the modern equivalent offences, it was necessary to have measured reference to the definitive guideline. Taking into account the offender's age, his lack of offending since 1992 and the impact that a term of imprisonment would have on his husband, the Recorder decided that the least sentence she could impose was a term of twelve months' imprisonment concurrent on each count.
26. Mr Jarvis, who appears for the Solicitor General, submits that these sentences were unduly lenient. The modern equivalent offence was an offence of sexual assault of a child under the age of 13, contrary to section 7 of the Sexual Offences Act 2003 (see page 37 of the definitive guidelines). The offending fell into category 2 of harm because there was a touching of J's naked genitalia and it is fell into category A of culpability because there was an abuse of trust, in that J's parents had entrusted their child to the offender's care and he had abused the trust they had reposed in him. The starting point for a category 2A offence under section 7 is a term of four years and a range of three to seven years. He submits that the offences were aggravated by the fact that J was particularly vulnerable, being asleep when both assaults were begun, by the fact that the offender's own son was in the room and the long-term impact on the victim, even if that fell short of "severe psychological harm". In these circumstance the offence should have been towards the top of the range, before consideration was given to a measured adjustment to take into account that the maximum sentence for an offence under section 15(1) of the 1956 Act was ten years and the maximum sentence for section 7 offending under the 2003 Act is fourteen years.
27. The Solicitor General recognises that there was mitigation available to the offender, as the Recorder found, but submits it was not so powerful that it justified reducing the term of imprisonment to twelve months.
28. Mr Jarvis points out that if the offender had pleaded guilty at the earliest opportunity, on the Recorder's approach, the sentence would have been a term of eight months concurrent on each term, when the maximum was a term of ten years.
29. Mr Jarvis also points out that the Recorder was sentencing for two offences and that, although there was nothing wrong in principle with concurrent sentences, the overall sentence had to reflect the fact that the offending was not a single incident or an isolated aberration but was predatory and was repeated.
30. For the offender, Mr Treadwell submitted that this was a lenient sentence, but not unduly so. There had been no offending since the 1990s and, as he submitted, the offender had at least some degree of responsibility for his disabled husband. He accepted that psychological harm to the victim was relevant, although he argued that it was not "necessarily" due to this offending. He accepted that the offender was in a position of trust; but there was not, he submitted, an abuse of trust in the sense set out in Forbes. He also argued that there needed to be a measured adjustment to take into account the different offending regimes. He put that adjustment at 40%.
31. The sentencing exercise was not straightforward, and it is clear that the Recorder thought carefully about the sentences she passed. She found that there was an element of abuse of trust, although she described it as a "limited element of trust", given that the offender was not in a particular relationship of trust.
32. We accept that, having presided over the trial, she would have been in a position to assess that particular factual circumstance and whether, and to what extent, the offending constituted an abuse of trust (see Forbes [2017] 1 WLR 53 and AH [2017] EWCA Crim 117).
33. The Recorder concluded that the offending would have fallen within the lower end of the range from three to seven years for a category 2A offence if it had been dealt with as an offence charged under section 7 of the 2003 Act. She then reduced it to a term of twelve months to take into account, first, the measured adjustment in view of the different maximum sentences and, secondly, the mitigation of his age, the period of time since his last offending, the testimonials from his neighbour and the particular impact of a sentence of imprisonment on the offender's husband.
34. In our view this offending fell towards the top of category 2B or towards the bottom of category 2A. There were material matters of mitigation; and in relation to the last of those relied on by Mr Treadwell - the impact on the offender's husband - particularly so. However, in our view, the sentences of twelve months did not sufficiently reflect the fact that there were two sexual offences, committed against a boy who was entitled to feel safe when sleeping in the same bedroom or space as his friend. As Mr Jarvis submitted, this was not a single aberrant offence: there were two offences, separated in time, committed by a sexual predator, who used two opportunities to commit sexual offences against a child, with serious psychological consequences for his victim. In our view the sentences of twelve months were unduly lenient even with an allowance for a measured adjustment. The least sentence that would have reflected the seriousness of the offending were terms of 30 months.
35. Accordingly, we grant leave to refer and substitute this sentence on each count, to be served concurrently.