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Court of Appeal in Northern Ireland Decisions
You are here: BAILII >> Databases >> Court of Appeal in Northern Ireland Decisions >> JC, R v [2003] NICA 19 (30 May 2003)
URL: http://www.bailii.org/nie/cases/NICA/2003/19.html
Cite as: [2003] NICA 19
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NICF3931
NICHOLSON LJ
[1] On 16 December 2002, JC (the offender) was sentenced at Londonderry Crown Court by the Recorder of Londonderry, Her Honour Judge Philpott QC, on a plea of guilty by the imposition of Probation Orders for three years in respect of a number of offences committed against young children. The Attorney General referred the case to this Court to review the sentences, on the ground that it appeared to him that the sentences were unduly lenient. [2] The offender pleaded guilty on 25 September 2002 to three counts of indecent assault, contrary to section 52 of the Offences against the Person Act 1861, upon young girl, 'A', between 1 December 1968 and 31 December 1970, one count of indecent assault against another young girl, 'B', between 1 April 1970 and 30 April 1972 and one count of indecent assault against a third young girl, 'C', between 1 May 1976 and 31 May 1978. He pleaded not guilty to a count charging him with attempted rape of A. On 2 October 2002 he was re-arraigned and pleaded not guilty to attempted rape but guilty to the offence of indecently assaulting A and the Crown accepted this plea. [3] The case was adjourned for pre-sentence reports and victim impact reports and, as stated, the Recorder imposed a Probation Order for three years in respect of each, of the six counts. As a result he was required to register on the sexual offenders register for a period of five years. [4] The series of offences commenced in or about December 1968 with A aged four years, the daughter of his wife's sister. She would often go to the home of the offender who lived nearby her parents' home. On many occasions he touched her inappropriately; he made her masturbate him frequently and on one occasion placed his penis in the area of her vagina and ejaculated between her legs. He told her that what he and she had was special and that she was not to say anything to anybody about it. He would give her money on each occasion that he indecently assaulted her. After the last incident to which we have referred, she never went to his house by herself. She was then six years of age. The second, third and fourth count on the indictment were sample counts and the first count referred to the last and most serious incident. [5] The fifth count was a sample count relating to her elder sister, B. In or about 1970 when she was seven years old, she would go to the offender's home and she recalled in particular one incident of digital penetration of her vagina. Again inappropriate behaviour occurred over a period of approximately two years. [6] The sixth count related to a third sister, C. The incident of which she complained occurred between 1976 and 1978 when she was seven or eight years of age. It occurred at the offender's home when he got on top of her on a bed and forced her to touch the inside of his thigh. It ended when the offender's wife came into the bedroom but the child refused to disclose to her what had happened. [7] None of the offences came to light until 1994 when A told her uncle. He then approached B who confided in him. C told her sister B, about what had happened to her. They decided not to report the matter to the police until their mother died, as she was close to her sister, the wife of the offender, but did so in December 2001 as they were concerned about the safety of the offender's grandchildren and felt ready to make complaints against the offender and ensure that he was prosecuted for what he had done to them. They made detailed statements in February 2002 for the purposes of the case. [8] The offender was interviewed by the police in the presence of his solicitor on Wednesday 13 February 2002. He was aware that his three nieces had made complaints to the police about his conduct and went to Strand Road Police Station with his solicitor. He informed the detectives who interviewed him that he was admitting the charges, that it was the hardest thing he ever had to do, that it was hard to remember as it was over thirty years before that the first incidents with A occurred, that men from his own family circle had come to see him about the allegations but he had not been threatened by them at any time. The girls did not confront him. He said that what happened, "had done his mind in" for the last twenty years and he left his work over it. The complaints made by the three girls were put to him. He said he could not remember any incident involving C. He denied digital penetration of B. He repeated that he was going to plead guilty. At a second interview the allegations made by A were put to him. He said that he could not remember but that he was admitting them. [9] As outlined above he pleaded guilty to five counts of indecent assault on 25 September 2002 and admitted a sixth offence of indecent assault on 2 October 2002. [10] The offender is now 63 years of age. He told the probation officer that his sexual preference had always been for adult females but accepted that the age of his victims caused great concern and he agreed to participate in available treatment programmes. He had no previous criminal convictions. He did not dispute the victims' version of events which indicated that he got sexually aroused and sometimes ejaculated during the encounters. He expressed remorse for what took place and displayed a good level of insight into the impact of this type of activity on victims of sexual abuse. The probation officer considered that his crimes seemed to be linked with a period when he was misusing alcohol on a regular basis and had now ceased this habit; his willingness to participate in a sex offenders treatment programme should also militate against the chance of recidivism and reduce the risk of harm to the public. He agreed with the probation officer that his actions were a blatant breach of trust which had resulted in alienation from his community of origin. [11] He told his general practitioner, whose report was placed before the Recorder, that he had a long-standing history of low mood with recent associated thoughts of life not worth living. He attributed his low mood to events involving three young girls. He told him that this last occurred in 1968, that he had not drunk alcohol for 15 years and was on medication for depression which the GP increased. [12] There was a psychiatric report from Dr Michael Curran. He told Dr Curran that he had remained rather withdrawn over the last 20 years, gave up drinking about this time, became deeply depressed when the disclosures were made and was on antidepressants. He presented as a rather fatigued man. He revealed that the majority of the contents of the victims' statements were correct and proposed that alcohol was responsible for some of the acts perpetrated. He said he was troubled about what he had done for years and felt deeply ashamed and guilty. Dr Curran said that in his professional opinion and given the time scale since the index offences, he did not consider that the offender was at a high risk of committing similar offences again. [13] The Recorder had available to her victim impact reports on two of the victims. We have taken these into account. [14] In her sentencing remarks the Recorder said,"You are not the man before me today who committed the offences twenty years ago, nor do you look [to your victims] like the man who committed the offences against them when they were 6, 7, 8 years of age. ... Because of your age, and only because of your age, I am going to give you a Probation Order ... for three years and it will in effect lengthen the time [you have] to remain on the Sexual Offenders' Register."
[15] At paragraph 6 of the Reference the Attorney General set out the aggravating features of the case as they appeared to him:-
(a) the victims were young and vulnerable;
(b) the offender was in a position of trust as the responsible adult apparently looking after these young children;
(c) the nature of the conduct was serious involving in one instance direct contact between the genital area of the offender and the genital area of the child for the purpose of gratification of the offender;
(d) there were a number of victims;
(e) the offending persisted over a lengthy period of time spanning almost 10 years;
(f) the victims were distressed and it is clear from the victim impact reports that the assaults have had marked consequences on the victims which continue;
(g) the offender used his home as a place of safety in which to carry out these attacks thereby indicating a degree of planning and pre-meditation and adding a predatory element to the attacks;
(h) payment of money to the children suggesting corruption.[16] At paragraph 7 he stated that the following mitigating factors appear to be present:
(a) the offender has pleaded guilty at the earliest opportunity;
(b) he indicated his intention to do so at first interview and made substantial admissions at that time;
(c) the offender has shown genuine remorse;
(d) the offences appear to have been committed during a period when the accused was abusing alcohol and for the last 25 years there is no evidence that he had committed any further such offences;
(e) he has no previous convictions;
(f) he has agreed to participate in available treatment programmes including contact with the Psycho-Sexual Unit at Gransha Hospital with the exception (sic) that he may obtain some benefit.[17] Mr Morgan QC in his succinct and admirably balanced oral submissions, referred to the relevant facts, to the two most serious incidents which related to A and B, to the Victim Impact Reports on them, highlighting relevant passages, to the pre-sentence report and the relevant matters mentioned in it, to the fact that the breaches of trust were committed in the home of the offender. He criticised the sentencing remarks of the Recorder in that there was no reference to the seriousness of the offender's conduct and the element of corruption by presents of money. He submitted that the Recorder gave too much weight to the recommendations of the probation officer. He pointed out that there was an element of risk of re-offending in that the probation officer advocated treatment and that Dr Curran stated that there was not a high risk of re-offending but recommended a need for supervision. He argued that the courts were not inclined to treat the age of the offenders as an exceptional factor and that there was not any exceptional factor justifying a non-custodial sentence. [18] He referred the court to the two most relevant authorities and the passages in them to which the court should give careful scrutiny. In the Attorney General's Reference (No.3 of 2001) (George Hall) (2002, unreported) the Lord Chief Justice stated:-
"The maximum term of imprisonment which a court could impose for either of the offences charged was two years at the time when they were committed. It has been increased to ten years for indecent assault, but remains at two years for inciting children to commit an act of gross indecency, a term which we have previously described as unrealistically low. It would, however, have been completely justifiable in the present case for the judge to have imposed consecutive sentences for this series of offences committed over a long period, subject always to the totality principle.
We have referred on all too many occasions in this court to the threat of sexual abuse to children in modern society and the duty resting on the courts to deal severely with those who may be tempted to harm young children sexually. As a general rule we consider that cases of this kind must attract immediate custodial sentences of some length, unless there is some altogether exceptional factor to take the case out of the general rule. We have to place renewed stress on the necessity for the courts to mark emphatically the abhorrence of society of acts such as those committed by the offender, particularly when they were premeditated and planned actions perpetrated on children toward whom he stood in a relationship of trust.
We do not overlook the observations of Lord Lane CJ in Attorney General's Reference (No 4 of 1989) 11 Cr App R (S) 517 at 521 on the approach to be adopted to these references, which we have regularly followed in this court:
'The first thing to be observed is that it is implicit in the section that this Court may only increase sentences which it concludes were unduly lenient. It cannot, we are confident, have been the intention of Parliament to subject defendants to the risk of having their sentences increased – with all the anxiety that that naturally gives rise to – merely because in the opinion of this Court the sentence was less than this Court would have imposed. A sentence is unduly lenient, we would hold, where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate. In that connection regard must of course be had to reported cases, and in particular to the guidance given by this Court from time to time in the so-called guideline cases. However it must always be remembered that sentencing is an art rather than a science; that the trial judge is particularly well placed to assess the weight to be given to various competing considerations; and that leniency is not in itself a vice. That mercy should season justice is a proposition as soundly based in law as it is in literature.The second thing to be observed about the section is that, even where it considers that the sentence was unduly lenient, this Court has a discretion as to whether to exercise its powers.'
[19] In Attorney General's Reference (No 2 of 2003) (2002, unreported) the Lord Chief Justice stated at paragraph 22:We must also have regard to the factor of double jeopardy, to the fact that the offender has been at liberty until now and to the possibility advanced by his counsel that he may have been prejudiced by the length of time which has passed since the offences were committed."
"We feel it necessary to repeat the passage, which we have quoted in several previous cases, from the Wolfenden Committee's Report (Report of the Committee on Homosexual Offences and Prostitution (Cmnd 247) (1957) in which it summarised the functions of the criminal law in the field of sexual offences:
[20] Accordingly we gave leave to bring the Reference in the present case. [21] Mr J P Lavery QC in his equally succinct and admirably balanced oral submissions, reminded us that the Recorder had three opportunities on three separate occasions to observe the offender and that this may well have led her to say that he was not the man who had committed the offences twenty years and more before sentencing. The events had been hanging over him for twenty years. In the dock he appeared fatigued, woebegone and dejected. Not merely was he 63 but the medical evidence indicated that he was in ill-health. He had a clear record. He had committed no offence before 1968 and had committed none since 1978. Alcohol had been the disinhibiting factor in the offences and he had not consumed alcohol for twenty years. He had gone voluntarily to the police. He was full of remorse. His concerns over what he had done had led him to give up work. The naming of him in public impinged on innocent members of his family. After he was sentenced a mob attacked his home and he had to move to a hostel in Lurgan. Living together with his wife ceased, although she stood by him. There were varying reactions from his four children, sometimes supportive, sometimes the opposite. His wife and four children were devastated. He had lost the ability to work and lived for twenty years as a recluse. The lenient sentence which the Recorder passed was imposed after careful consideration. [22] Mr Lavery reminded us of the words of Lord Lane which the Lord Chief Justice cited in Attorney General's Reference (No. 3 of 2001). The public perception of the offence was based on extracts from newspapers and media accounts which did not give the true picture. A plea of guilty was entered into as early as possible. The court, even if it considered the sentence unduly lenient, had a discretion not to alter the sentence. [23] Our task now is to balance the factors in order to determine whether the sentences passed were unduly lenient. In our judgment the gravity of the offences spread over ten years, the appalling consequences for the victims about whom we have reports and, no doubt, for the third victim and the wholly inadequate explanation proffered for their commission compel us to the view that an immediate custodial sentence was inescapable and that consecutive sentences in respect of each of the three victims were entirely appropriate. The totality of the sentences lay between three and four and a half years, having regard to the fact that the maximum sentence for indecent assault was at the time two years' imprisonment. Parliament has now raised the maximum sentence to ten years but not for this offender. [24] As the Lord Chief Justice said in Attorney General's Reference (No. 3 of 2001). the public interest in deterrence and marking the seriousness of these offences has to take priority over considerations personal to the offender. There are no exceptional factors in this case. It follows that the sentences passed by the Recorder were unduly lenient. [25] We have to take into account the element of double jeopardy and the events which have occurred since the sentences were passed. We could impose consecutive sentences but we have decided instead to impose a sentence of twenty one months' imprisonment on each count, each sentence to run concurrently. [26] Accordingly we quash the sentences imposed by the Recorder substitute a sentence of twenty one months' imprisonment on each count, each sentence to run concurrently. In cases of this kind it is not generally appropriate to impose a custody probation order, but we consider that an order under Article 26 of the Criminal Justice (Northern Ireland) Order 1996 should be made. [27] The judge in making the probation order imposed a condition, in the terms set out in the pre-sentence report, that the offender should attend a programme for the prevention of sexual abuse. We do not have power to impose such a condition when making an order under Article 26, but under Article 26(3) the Secretary of State has power to attach conditions to the licence and we commend to him a condition of this nature.'To preserve public order and decency, to protect the citizen from what is offensive and injurious and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are young, weak in body or mind, inexperienced or in a state of special physical, official or economic dependence'.