England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT OF EXETER
His Honour Judge Cottle
T20177052

		Royal Courts of Justice Strand, London, WC2A 2LL
		13/03/2018

Lord Justice McCombe:

1. This case was an application by the Solicitor General, under the Criminal Justice Act 1988 s.36, for leave to refer to this court sentences passed on two offenders which he submitted were unduly lenient. We heard the application on 22 February 2018. At the conclusion of the hearing, we granted leave to bring the application and announced our decision on the substantive reference.
2. We found the sentences in issue to have been unduly lenient and in substitution for the sentences of imprisonment for 15 months, suspended for two years imposed upon each offender (which we quashed) we imposed immediate sentences of imprisonment of 2 years and 9 months on Lee Pollard ("the First Offender") and 3 years 6 months on Marc Allen ("the Second Offender). We said that we would give our reasons for our decision later. These are the reasons.
3. On 2 November 2017, in the Crown Court at Exeter, after a joint trial of both offenders before HHJ Cottle and a jury, the First Offender was convicted of one offence of sexual activity with a child (contrary to SOA 2003 s.9). The offence was penetration of the child's vagina with the penis. The Second Offender was convicted of two such offences, involving penile penetration of the mouth of the same child and the mouth of another child. The offences all occurred at the same premises on the night of 25-26 September 2015.
4. On 22 December 2017, both offenders were sentenced by the judge, as we have said, to sentences of 15 months imprisonment, suspended for two years. In the Second Offender's case the terms of imprisonment on each count were the same and were ordered to be served concurrently. Both offenders were required to attend a sexual offender programme and the Second Offender was required in addition to perform 125 hours unpaid work and to undertake rehabilitation activity requirements, as directed, for up to 10 days.
5. In overall summary what happened was this. Late one evening, the offenders attended the flat of a 22-year-old woman. Her younger sister and two friends (all aged 14) were present, already under the influence of alcohol. The offenders supplied all but the younger sister with amphetamine, and more alcohol. At the flat, after the first offender began sexual activity with the older woman, the offenders engaged in sexual activity with one / two of the younger girls. The first offender penetrated the vagina of one during sexual intercourse in the bedroom and the kitchen. The second offender penetrated the mouth of the same girl, and the mouth of another of the younger girls with his penis. The two offenders left the following morning.
6. The three girls involved were A, L and M. All were 14 years old. M's older sister was S, then aged 22. S lived at a flat in a coastal town in western England with her two children. She had invited the First Offender to visit her that evening, but she had not heard from him and thought the plan had fallen through. She invited her sister, M to come and stay overnight. Meanwhile A and L, while at school, had discussed independently the possibility of staying somewhere together overnight, but could not arrange where that should be. M wanted to join in the "sleep over" and asked her sister, M, whether she, together with A and L could all stay at S's flat. S agreed. A and L told their respective parents that each was staying with the other; they did not reveal to them that they were going to stay at S's flat.
7. When they got to the flat alcohol was consumed by all the girls. They decided to go to the beach, either in swimming wear or in their underwear. They stayed out for a short time and on return to the flat remained scantily dressed. At about 10 p.m., S got a text message from the First Offender to say that he was coming to visit. She told him that her sister was staying with her and had friends with her, thinking that this would deter the visit. However, it did not and both offenders then arrived at the premises shortly thereafter. There were introductions and the girls were asked their ages. It seems that when told that they were all 14, the offenders expressed surprise. The offenders told the girls that they were 24, as indeed they were.
8. The offenders had brought more alcohol with them and the First Offender produced some amphetamine. Amphetamine "bombs" were made with the use of cigarette papers. Some of these were consumed by the girls, but not, it seems, by M. Recollections as to what happened then vary. However, the essence of the events, as stated in the Reference, appears to be this.
9. Sexual activity started, perfectly lawfully, between S and the first offender, who began kissing and cuddling in her bedroom. However, after others in the group came into the room, it progressed into something akin to an orgy, primarily in the bedroom, involving two of the younger girls, over several hours. It seems the further sexual activity was, to a degree, initiated by the two victims, who were (by now) heavily intoxicated, but it went on over several hours.
10. During the course of the night, in the presence of others, the second offender engaged in sexual activity – first with A, and then with L – which involved penetrating the mouths of both girls with his penis [Counts 3 and 4].
11. At 03:24, the second offender placed an order with a delivery company, for alcohol and other goods. He ordered a bottle of vodka, some Coca-Cola, some lager and two packs of condoms. The offenders then left the flat to get cash, and returned to the flat with the items, presumably having arrived back as the goods were being delivered.
12. Everyone inside the flat consumed more alcohol and became drunker, and the sexual activity resumed. In the bedroom, in the presence of others, the first offender penetrated the vagina of A with his penis, using a condom. Perhaps because S became upset about this, the first offender and A moved to the kitchen, and sexual intercourse between them continued there [Count 1]. This was the last of the sexual activity that night.
13. The following morning the First Offender and S spoke about what had happened. He said he did not regret it and asked her not to tell anyone. None of the participants said anything about the incident for some little time. A and L said later that this was because they were ashamed at their own behaviour. Rumours circulated at the girls' school about what had gone on and the police became involved. The offenders attended the police voluntarily for interview under caution in December 2015 and January 2016. They denied sexual activity.
14. The First Offender accepted some sexual activity with the adult, S, and denied being told the ages of the others who, he said, he assumed the same age as S. He agreed that the girls had taken drugs but denied that either he or the Second Offender had supplied them. The Second Offender denied the delivery of alcohol and/or condoms.
15. At the hearing at the Crown Court on 19 May 2017 the Offenders entered pleas of "not guilty" to the charges. At trial, between 30 October and 2 November 2017, they accepted some sexual activity had occurred, but not all that was alleged, and they said they reasonably believed that A and L were over 16. The convictions followed.
16. As for antecedents of the Offenders, they were these.
17. The first offender has three convictions (a minor public order offence, two offences of possession of cannabis, all committed in 2011 and 2012, the latter in breach of conditional discharge for the first drugs offence). He had cautions for battery (2009) and handling stolen goods (2011).
18. The second offender has two convictions as a juvenile (criminal damage in 2008 and arson in 2009). Later in 2009, as an adult, he was convicted of a Section 4 Public Order Act offence and then assault occasioning actually bodily harm, for which he received a suspended sentence of imprisonment. In December 2013, he was initially sentenced to a Community Order with supervision and programme requirements for an offence of battery. However, he failed to comply with the requirements of the Community Order on three occasions in 2014 and 2015. On the final occasion, 18 March 2015, the order was revoked and his sentence for the original battery offence was varied to an eight-week sentence of imprisonment, suspended for 12 months.
19. There were Pre-Sentence Reports before the court.
20. For the First Offender, in summary, the report revealed the following.
21. In interview with the probation service the First Offender admitted that vaginal intercourse had taken place with A, but maintained that he was not aware, nor that he should reasonably have been aware, that she was under 16 years old, the "age of consent". He referred to her behaviour, drinking, smoking and making advances to him, indicating (he said) that she was older than 14. He accepted that he should have resisted the advances, but blamed his own intoxication with drugs and alcohol for failing to do so. He placed considerable blame on the adult S, as having responsibility for the younger girls.
22. The report said that the First Offender displayed little "victim empathy". He said that he could not "fathom how the offence may have impacted upon [A]", and did not appear to appreciate the vulnerability of a victim in that situation or the increased vulnerability from the drugs supplied to her. The author of the report, however, was satisfied that this offender did not have a sexual interest in children generally, that the act was not premeditated and was not the result of "grooming".
23. Importantly, for the sentencing in this case, this offender's circumstances had changed very significantly since the offence. At the time of the offence, he had separated from his partner and contact with his young son had been withdrawn. He had, however, been reconciled with his partner, and they moved to Suffolk for a fresh start. Both started work, and the First Offender had undertaken counselling. However, in February 2017, whilst on his way to work on an apprenticeship scheme in quantity surveying, he was involved in a serious road traffic collision. He was hospitalized with significant leg injuries, and suffered other complications. He had had surgery and hydrotherapy. More treatment was awaited. He suffered significant pain on a daily basis. His mobility was substantially reduced and he was wheelchair-dependent approximately 75% of the time. He had lost his apprenticeship place, his partner had become his full-time carer and was not working; thus they were dependent on benefits, and were in debt as a result. He was affected by PTSD as a result of his accident and was on medication to help with sleep. His lifestyle had changed dramatically, and he rarely left his home. The writer of the report stated "his priorities have changed so significantly in the intervening period between offence and conviction dates that his empathy levels appear to have been influenced. He presents almost without emotion regarding the offence itself when discussing events" and "his accident and its effects appear to have overshadowed any previous issues or concerns for Mr. Pollard and in my assessment he finds it very difficult to reconcile his current self with the offending behaviour of which he is convicted". The report indicated that the First Offender expected to receive a prison sentence and was concerned that that would impede his plans to enter into property development with the benefit of compensation he expected to receive in respect of the motor accident.
24. The report's conclusion was that he posed a low risk of general re-conviction and a medium risk of sexual re-offending, based upon the customary statistical tools. As a result of progress in his life in the interim (independently of statistics), the risk of reconviction was said to be medium generally. The recommendation was for a suspended sentence with a 60 session programme requirement and an overnight curfew.
25. The Pre-Sentence Report for the Second Offender, in summary, said this.
26. The Second Offender continued to struggle to take full responsibility for his behaviour, and to some extent blamed the girls. He maintained he had no knowledge of the age of the girls, believing them to be about 18, and denying that any discussion about their ages took place. The author considered that his attempts to deflect responsibility were attempts to absolve himself of some guilt, denial, as well as being evidence of distorted thinking. The Second Offender considered that blame had been disproportionately placed with him, instead of with the First Offender and S, the other adult present. He denied plying the children with drink, although agreed they had consumed some of the alcohol he had brought, and accepted he had not prevented them from doing so or questioned whether their consumption was appropriate. He said to the probation officer that oral sex was initiated by the victim (A) without his consent, and also insisted the sexual activity was brief, rather than sustained (as suggested by the evidence). He had made a number of suicide attempts by overdosing on his father's medication. He had been diagnosed with depression, but was non-compliant with anti-depressant medication when engaged in binge drinking, which appeared to be of some regularity. He was considered to be at low-risk of general reconviction, but a high risk of sexual reconviction, although the risk of repeat sexual offending was not imminent. He was not assessed as having a specific sexual attraction to children. In the event that an immediate custodial sentence was not imposed, he was assessed as suitable / eligible for an Unpaid Work Requirement, and an Accredited Sexual Offending Programme Requirement. A Rehabilitation Activity Requirement was considered the most appropriate way to address and monitor his alcohol misuse."
27. A, in a Victim Personal Statement, said that this incident was her first sexual experience. She described shame and embarrassment. She had lost her friendship with L and others. She suffered from stress, sleep loss and exam results had suffered. She lost the prospect of further education and anxiety had increased as the trial approached. Her socialising had diminished through lack of confidence in herself.
28. L described similar feelings of shame and disgust. Her falling out with A led to the incident becoming known at school. Her behaviour deteriorated and she consumed alcohol. There was strain as the trial approached. She was subjected to social media comments after the trial. She had taken an overdose of painkillers after this and had been admitted to hospital overnight. Her A level studies had been postponed.
29. In passing sentence, the judge summarised the events we have described above and the personal circumstances of the Offenders as revealed by the Pre-Sentence Reports. He also referred to the Victim Personal Statements and referred to the shame felt by the victims. He said, "They must accept a degree, I underline "degree", of responsibility for how the evening worked out". A little earlier, he had described the sexual activity as "…consensual, utterly consensual…".
30. In reference, to the Second Offender the judge said that he would undoubtedly feel a sense of injustice if he received a different sentence from the First Offender, referring here it is to be assumed to very different mitigation available to the First Offender. He then indicated that he would pass a suspended sentence imprisonment on each. He made no reference to the sentencing guidelines.
31. For the Attorney-General it is submitted that these were Category 1A offences within the Guideline, in view of penile penetration and significant age disparity between offenders and victims. It was undoubtedly the case that the offences fell within category 1, in terms of "Harm"; it was age disparity which, it was argued, took the cases into category A for "Culpability". The starting point for sentence in such a case is 5 years' custody, with a range of 4 to 10 years. If the culpability level fell within the lower B category, the starting point is 1 year's custody, with a sentencing range of a "high level community order" to 2 years' custody.
32. Aggravating features are identified by the Solicitor General as (i) taking advantage of vulnerability (lack of parental care and intoxication); (ii) commission of the offences in the presence of others (including children); (iii) offending under the influence of alcohol and drugs; and (iv) (with regard to the Second Offender) two victims.
33. As for mitigation the Solicitor General refers to: (i) absence of relevant previous convictions; (ii) (for the First Offender) changed personal; circumstances; and (iii) delay in the commencement and prosecution of the proceedings. Ms Ledward accepted that part of this delay was inexplicable, but some could be attributed to a prosecution request to delay the trial while A and L sat their GCSE examinations in the summer of 2017.
34. The reference directs us to the Sentencing Council's Sexual Offences Guideline and to the Guideline on the Imposition of Community and Custodial Sentences and in particular to the passages in the latter Guideline relating to the suspending of custodial sentences. We are referred also to the cases of Attorney-General's Ref (Wigmore) [2016] EWCA Crim 1813 and Hackett [2017] 2 Cr App R (S) 10. Of these, perhaps the more helpful in this case was Hackett.
35. In the Hackett case the offender (aged 19) attended a party and subsequently had sexual intercourse with a 14-year-old girl after both had alcohol and cocaine brought by the offender's friend, having assumed (but not checked) that she was 16. Sweeney J said at paragraph 14 of the judgment: "we have no doubt that this was not a Category 1A offence. The appellant did not ply the victim with alcohol and drugs in order to have sexual intercourse with her. It was a Category 1B offence, but one significantly aggravated, in our view, by the fact that, as the appellant knew, the victim was very much the worse for drink and drugs; the fact that the appellant was himself also under the influence of drink and drugs; the age gap, albeit ameliorated by his immaturity; and the fact that the offence was committed in the presence of two others, albeit not for their benefit and not filmed by anyone". The Court concluded that the offence ought to have attracted a notional sentence after trial at the top of the Category 1B range (i.e. 24 months' custody). Allowing 20% credit for his guilty plea, the court substituted an immediate custodial sentence of 19 months, rather than 32 months.
36. The Solicitor General, through Ms Ledward, submitted that the sentences passed in this case were unduly lenient for the following reasons:

i) there was a significant disparity in age between the offenders and the victims. As such, the Learned Judge ought to have approached these offences as falling within Category 1A of the Sexual Offences Definitive Guideline for offences of sexual activity with a child (starting point five years' custody; range four to 10 years);

ii) the Learned Judge failed to afford sufficient weight to the numerous additional aggravating factors, which indicated the offenders bore a high degree of culpability;

iii) the Learned Judge afforded excessive weight to the personal mitigation of the First Offender in particular;

iv) there was no basis for reducing the sentence of the Second Offender because of the personal mitigation of the First Offender, which did not apply to him;

v) the resulting sentences ought to have been of such length that they were not amenable to suspension;

vi) in any event, in light of the seriousness of the offending, appropriate punishment could only be achieved by immediate custody and any sentence imposed ought not to have been suspended.

37. For the First Offender, it was submitted by Mr. Fridd that the judge's sentence, while perhaps lenient, was not unduly so. The widely differing starting points for sentence in cases within Categories 1A and 1B were pointed out by him and he submitted that to place this case between the starting point of 5 years and of 1 year identified in the Guideline categories, as the judge did, was correct. The disparity in age, he argued, was not "significant" in terms of the Guideline or at least it was well possible to conceive of cases in which the disparity would be much wider. He submitted that this was a case where the rubric appearing in the guideline (at p.47), just above the grid setting out the starting points and sentence ranges, could properly be applied in the First Offender's case:

"Where there is a sufficient prospect of rehabilitation, a community order with a sex offender treatment programme requirement under section 202 of the Criminal Justice Act 2003 can be a proper alternative to a short or moderate length custodial sentence."

38. Mr Fridd pointed out that the judge saw A, the victim of this offence, in giving evidence and saw the First Offender do so likewise. Aspects in A's evidence accepting some responsibility for the offence are quoted in the written argument. It is submitted that the number of aggravating factors were not "numerous", as the Solicitor General would wish us to find, and that the judge rightly put weight upon the very powerful personal mitigation resulting from the road accident. The injuries suffered by the First Offender would cause the impact of any immediate custodial sentence to be that much harder for this offender.
39. For the Second Offender, it was submitted that this sentence was passed by one of the country's most experienced Circuit Judges and that he had conducted a full trial. Counsel for the Second Offender supported the submissions made on behalf of the First Offender and said the judge was right to place weight on the mitigation available to this offender also. He was right to make no differentiation in sentence between the two offenders, notwithstanding the perhaps weightier mitigation that could be invoked for the First Offender.
40. The differences between the starting points and in the range of sentences for category 1A and category 1B may indeed appear surprising at first, as Mr Fridd submitted: Category A starting point 5 years, range 4-10 years; Category B: starting point 1 year, range high level community order to 2 years. There is, it seems, no room left in the guideline for sentences between 2 years and 4 years. The bottom of the sentence range under culpability A is only 1 year below the starting point. However, we think that this characteristic of the Guideline probably derives from the feature pointed out by Phillips J during argument, namely that once one removes all the features of Culpability A (appearing in the list on page 46 of the Guideline and including "significant disparity in age") from the case in question, one is left (primarily) with cases of offender and victim of relatively close ages involved in early youthful and affectionate relations, with a consequently less serious level of culpability.
41. Looking at the judge's comments in the argument prior to sentence, he was careful to point up the difference in age between these offenders and the victims. While all were relatively young, we think that the Solicitor General is right to say that there was a significant disparity of age and we think the judge held a similar view, although he did not spell that out in his sentencing remarks.
42. We would add that the features of the case, mentioned by the judge, that the activity was consensual and that the victims had to accept "a degree, I underline, a degree of responsibility" were, we consider misplaced. We refer in this regard to the comments of Lord Thomas of Cwmgiedd CJ in Attorney-General's Reference (No. 53 of 2013) (Wilson) [2014] 2 Cr. App. R. (S) 1 about consensual sexual activity initiated by an underage girl, which seem relevant to the feature of consensual activity in cases of this type generally. At paragraphs 19-20 of the court's judgment in that case the Lord Chief Justice said this:

"19. … It has been clear since at least the Offences Against the Person Act 1861, and subsequent nineteen century legislation, that the purpose of Parliament in passing legislation to make it a crime punishable with imprisonment to have sexual relations with those under 16 was to protect those under 16. Indeed the Criminal Law Amendments Act 1885 makes it expressly clear that that was the purpose of the legislation. That can be see from the preamble to the Act and was made clear by this court in R v Tyrell [1894] 1 QB 710.

20. That long-standing principle is well-known. The reduction of punishment on the basis that the person who needed protection encouraged the commission of offence is therefore simply wrong. We agree with the submission of the Attorney General that an underage person who encourages sexual relations with her needs more protection, not less. Accepting that as the basis for sentencing for the reasons we have explained, the fact that the offender took advantage of what he asserted the victim did aggravated the offence. The Attorney General is therefore right to say that the victim's vulnerability was an aggravating rather than a mitigating feature."

43. There was, however, very significant mitigation that could properly be advanced for the First Offender, in view of the extra burden that any custodial sentence would mean for him in view of his severe injury. This must have led the judge to bring the initial sentence down. He referred to the progress that this Offender had made which led to the very positive recommendation in the Pre-Sentence Report in his case.
44. This led potentially to significant difficulty in reaching the correct sentence in the case of the Second Offender, whose mitigation was significantly less, although he had, as the judge put it, the "very strong point in mitigation" that he had not committed any further offences in the 2 ¼ year period that had passed. The judge said, in his case, this:

"And you would feel undoubtedly a sense of injustice if a different sentence were to be passed upon you than was passed upon your Co-Defendant and I recognise that. I do not think that that prevents me from passing an effective and immediate sentence upon you but it might seem to be unfair and I am not going to do that."

45. However, the researches by Spencer J in the course of preparation for the case revealed two important authorities, not cited to the judge or to us in the written materials for this Reference. They are Attorney-General's References Nos. 62, 63 and 64 of 1995 (O'Halloran & ors.) [1996] 2 Cr. App. R (S) 223 and Attorney-General's Reference (No. 73 of 1999) (Charles) [2000] 2 Cr. App. R. (S) 209. Those authorities reveal that the Second Offender would not be entitled, as the judge had thought, to feel any sense of injustice arising out of a shorter sentence being passed upon the First Offender owing to that offender's different mitigation.
46. In the first case, Lord Taylor of Gosforth CJ (delivering the court's judgment for himself, Brooke J (as he then was) and Forbes J) said (at p.227):

"… [We] resist the suggestion that where strong mitigation is available to one of a number of defendants all of the defendants are entitled to climb on the bandwagon and have the benefit of the mitigation which applies to the one. There is no disparity, in our view, if there are differentials between sentences of co-defendants where one defendant has a great deal of mitigation in his or her favour and the others do not. This is not disparity; it is justice."

That passage was quoted and applied by Lord Bingham of Cornhill CJ in giving the court's judgment in the second case (at p.212).

47. Bringing all these points together, it seemed to us that the present case had to be regarded as involving cases within Category 1A of the Guideline, as Ms Ledward submitted, with a sentencing starting point of 5 years and a sentencing range of 4 to 10 years.
48. Given the various features identified by the judge, in the Reference and in the arguments of counsel, again we think that Ms Ledward was correct in saying that the case should be treated as falling at the lower end of the category range. She submitted to us that a sentencing approach could be justified, allowing for aggravating and mitigating factors in each case, which in fact brought the sentences below the range in the Guideline range for each offender. She submitted, however, factoring in aggravating and mitigating feature to which we have referred, that the sentence for the First Offender could be no less than 3 years imprisonment and for the Second Offender 3 ½ years; such sentences would not permit them to be suspended which, she argued, would be inappropriate in any event.
49. As we have indicated, we decided that the sentences passed by the judge had been unduly lenient, for the reasons identified in the Reference.
50. In the end, we considered that the sentence for the First Offender should have been an immediate sentence of imprisonment, notwithstanding his difficult personal circumstances, but rather shorter than that advanced by Ms Ledward, namely 2 years 9 months. The sentence for the Seconder Offender we decided should be 3 years 6 months.
51. For these reasons, we made the decisions that we record at the beginning of this judgment.