Attorney General's Reference No 34 of 2004 [2004] EWCA Crim 1470

Case No 200401743 A0[2004] EWCA Crim 1470
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 26th May 2004
Strand
London, WC2
B E F O R E:
LORD JUSTICE HOOPER
MR JUSTICE LEVESON
MR JUSTICE RODERICK EVANS
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 34 OF 2004
Computer Aided Transcript of the Stenograph Notes of
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MR M ELLISON appeared on behalf of the ATTORNEY GENERAL
MISS R BUTLER appeared on behalf of the OFFENDER
J U D G M E N T
Wednesday, 26th May 2004

LORD JUSTICE HOOPER:

[1]Her Majesty's Attorney General applies for leave to refer a sentence as being unduly lenient. We grant that leave.[2]The offender's name is Michael John Webb. He is 47 years old.[3]On 5th March 2004 he pleaded guilty to indecent assault on a male person under the age of 16, contrary to section 15(1) of the Sexual Offences Act 1956. He was sentenced by His Honour Judge Hall on the same day to six months' imprisonment, with an extended licence period of two and a half years.[4]The agreed facts are as follows. The victim of the offence, BS, aged 14 years, first met the offender when they both attended a football referees' course at Wycombe Wanderers Football Club in November 2002. Thereafter they occasionally met in similar circumstances. They also spoke quite often on the telephone. The offender would telephone BS at home, sometimes several times a week, which resulted in BS trusting him and looking up to him.[5]BS wanted to attend an adult football match that the offender was due to referee on Saturday 15th March 2003, but it was difficult for BS to travel there. The offender had spoken to, but had never met, members of BS's family. BS's parents had come to understand from the offender that he was caring alone for two sons. It was agreed with the mother of BS that he would spend two nights (14th and 15th March) at the offender's home so that he could attend the match.[6]The offender collected BS from his mother's place of work in the early evening of Friday 14th March 2003. On the way to his home the offender told BS that he would sleep on the settee downstairs. However, later in the evening he said that he would put up a Z-bed for BS in his bedroom. On behalf of the Attorney General, Mr Ellison suggests, and we agree, that this shows a degree of pre-planning on the part of the offender. The offender's sons, aged 16 and 19 years, were both present during the evening and overnight. They each had their own bedroom.[7]Before they went to bed the offender questioned BS at some length concerning his relationship with his parents, during which BS became upset and tearful. It seemed to BS as if the offender was trying to identify a "soft spot" capable of upsetting him, and it did. Mr Ellison comments that this demonstrates exploitation on the part of the offender. We agree. Once BS became upset, the offender put his arm around BS and cuddled him for some time. When they went to bed they both undressed to their underpants and BS got into the Z-bed. That bed had been placed close enough to the offender's bed to enable him, whilst lying in his bed, to touch BS. BS tried to go to sleep, but the offender began to question him about his family life and again BS became upset. The offender invited BS to sit on his bed and he again put him arm around him. Then he asked BS to lie down on the bed with him and he put his arm around him. Before BS went to sleep the offender had his front against BS's back. Later:
"The offender took BS's hand and placed it over his crotch area under his boxer shorts and onto his penis. BS pretended not to be awake. The offender then placed his hand under BS's boxer shorts and touched his penis for a while. BS turned over onto his front and took his hand away from the offender's crotch. The offender again put his hand on BS's penis and he then pulled BS's boxer shorts down to his knees. The offender started to rub BS's bottom, opening and closing his buttocks with his hands. BS could then feel that something was inserted into his bottom, but he had no idea what it was, it went in quite far and was then removed. The offender then touched BS's penis again, making it erect, before he pressed his own buttocks against BS's penis for some time. When the offender moved his position BS got up saying he needed a drink"
. He left the room and looked for his clothes but could not find them. He then returned to the bedroom and told the offender he was going to sleep on the Z-bed. The offender then reached out and took hold of BS's hands, saying that he loved him. After a while the offender pulled his hand away. The offender told BS to get back onto his bed, so he did, being able to think of no excuse for not doing so. A little later BS said he was too hot as an excuse to get off the offender's bed. He went downstairs, found a fleece top (that was not his) and left the house, wearing only his boxer shorts and a fleece. It was just after 04.00 hours and he made a 999 emergency call to the police. That, in our view, is significant in that it shows the traumatic effect on BS of the offender's behaviour.[8]Police officers met BS at 04.05 hours and found him to be apparently shocked and a little confused. There were reports before the court which indicated that BS subsequently developed difficulties sleeping and some behavioural problems that affected his family life and school work. In September 2003 BS was diagnosed as having post-traumatic stress disorder and thereafter received a protracted period of counselling. We have read the victim impact statement dated 9th February 2004.[9]The offender was arrested at 05.55 hours on the morning of 15th March. He accepted that when he and BS had discussed BS's home life, BS had become upset and that he, the offender, had put his arm around him, but he denied any indecent conduct with him and denied inviting him to lie on his bed. He said that BS's allegations were probably just an attempt to "draw attention to himself".[10]The offender has no previous convictions.[11]The basis upon which the offender pleaded guilty was that he disputed the prosecution facts only insofar as he did not hide BS's clothes from him and that he did not masturbate when he touched BS.[12]The mitigation advanced by the offender included reference to the fact that if he was given a custodial sentence of more than six months, he would lose his home, because of problems with the mortgage, and that his younger teenage son, C, would have no home to go to and no means whatsoever by which to support himself.[13]In mitigation Miss Butler said:
"The problem is with the younger boy [C]. [C] is still at home, [C] being the contact with [BS] in the first place. [C] lives at home full-time. The relationship with their mother is not such that they can go and live with her in any event. She runs a bed and breakfast and has a fairly full clientele list at any given time so there is not space for [C] to go and live with his mother. He sleeps in a store-room as and when he does go and visit her but there certainly is not permanent accommodation for [C]. He is still at college ..."
[14]Miss Butler went on to say that there was no means whatsoever by which C could support himself and that there was no way that money could be mobilised in order to support C were the father to be sent away for a period longer than six months. The judge was asked to bear those factors in mind "very, very highly" when considering the period of custody.[15]There is then further reference to the severe problems faced by the offender's parents, one aged 74 and the other aged 85, and the role that the offender played in their care.[16]In concluding her submissions on mitigation, Miss Butler said:
"... any period of custody that you impose today will wreak havoc in the lives certainly of [C], to a slightly lesser extent [J] [another brother] and then the parents, so the risk is that there will be more victims to what has already been a most unfortunate incident, and it would be very regrettable that [C's] career could not progress to fruition ... "
[17]In passing sentence, the learned

judge said:

"Miss Butler has eloquently told me about the effect that any sentence of imprisonment of any length would have on your sons, and on your father in particular, and I have read their heartrending letters to me and they reveal the good side of you."
Clearly, that mitigation was an important factor in the decision of the trial judge to pass a sentence of only six months.[18]We turn now to a statement by C's mother which has been prepared for these proceedings and submitted by the Attorney-General:
"I understand that it was suggested to the Court that I have refused to house my son [C]. I would like to make it clear that this is not the case. [C] who is now 16 years has always had a room at my home which he occupies for most of the week. As previously stated he does still stay at his father's address in Thame at weekends and occasionally during the week. [C] attends [the name of the college]. I pay for all his college costs including transportation. I take him from my home most mornings to Thame where he gets the college minibus and in the evening I collect him from his father's house and bring him home. I should add that I receive all the child benefit and Child Tax Credit relating to [C]."
[19]It is, to say the least, most unfortunate that the sentencing judge was misled in the way that he was about this matter. We are not suggesting, of course, that either Miss Butler or her solicitor knew about this apparent deception.[20]We turn to the pre-sentence report. The author of the report said that he regarded the risk of non-sexual offending as low and went on to say:
"As regards sexual offending there may be a higher risk, although Mr Webb is adamant that he will never allow himself to be in a situation where such behaviour could occur. He does however still struggle with self awareness, understanding why he offended, and has a limited acceptance and understanding of the victim's perspective. Self knowledge and victim awareness are key areas which impact on behaviour change."
There is then a reference to a proposal that the offender take part in sex offender treatment, such as that offered by the Thames Valley Project.[21]Mr Ellison, on behalf of the Attorney General, submits that the following aggravating features are present. We agree. The offender abused his position of trust to commit the offence and exploit the vulnerability of his victim. The victim was away from home, the offender learnt about his home problems and took advantage of that to indecently assault the victim.[22]In the skeleton argument prepared for this hearing by Miss Butler, she said that grooming was of limited duration over the evening of 14th March 2003. That is right. Mr Ellison has not suggested that there was any grooming before the evening in question. Nonetheless, we take the view that when the decision was made by the offender to put the Z-bed up in his room and to invite BS to come into his bedroom, the offender was planning for what was to happen thereafter.[23]It is submitted on behalf of the Attorney General that the assault was prolonged, probably about half an hour. Mr Ellison also submits that it involved both masturbating the victim and the insertion of something into his anus, making this a serious indecent assault. Mr Ellison then refers to the long term effects that this has had upon the victim.[24]As the Attorney General accepts, there were mitigating factors. First of all, the offender had pleaded guilty. However, he did not plead guilty until after the plea and directions hearing, albeit before the trial. He is not, therefore, entitled to full credit. Secondly, this was a single offence - this is not one of those cases where the court is concerned with a series of indecent assaults over a period of time. Thirdly, Mr Ellison points out that the offender has no previous convictions.[25]Mr Ellison drew our attention to three cases. In Attorney-General's References Nos 37, 38, 44, 54, 51, 53, 35, 40, 43, 45, 41 and 42 of 2003 [2003] EWCA Crim 1973 this court, presided over by Kay LJ, re-affirmed that sentencers should consider the following when passing a sentence for an offence of this kind, the degree of harm to the victim, the level of culpability of the offender, the level of risk posed by the offender to society and the need to deter others from acting in a similar fashion. The court re-affirmed the proposition that good character does not justify a substantial reduction.[26]In paragraph 6 Kay LJ summarised the submissions of the Attorney General in those twelve cases to the effect that far too great regard had been paid to the interests of the defendant and insufficient account had been taken of the seriousness of the offending. He repeated the Attorney General's submissions to the effect that the courts have failed to recognise the seriousness of the harm caused to the victim and the proper interests of the public at large, both in protecting others from serious harm from the individual offenders and also in deterring others from committing like offences. The court continued in paragraph 8:
"However, it is clearly undesirable for many reasons that courts should pass sentences that are out of line with proper sentencing practice. To do so can only cause public concern and affect the confidence of the public in the system. It runs the risk that people may feel that sexual offenders have not received proper punishment thereby increasing the danger that extra-judicial punishment may be meted out. An inadequate sentence frequently adds to the anguish of the victim, who feels that society has not recognised his or her suffering, particularly when they have had to steel themselves to speak of offending against them that they might have chosen not to rehearse publicly. Nor is such a sentence any kindness to an offender, who will in all probability be subjected to a reference to this court with the unnecessary anguish of having to start the sentencing process all over again."
[27]In paragraph 9 Kay LJ said that the court ventured to suggest that in some of the cases considered, if the sentencer had stood back and looked at the matter, he or she might well have recognised that too great a weight had been attached to the interests of the offender and insufficient weight to the victim's proper interests and the interests of the public at large. In our view, that also applies to this case.[28]Two further authorities were drawn to our attention by Mr Ellison. The first is Attorney-General's Reference No 5 of 2001 (Terence Culshaw) [2001] 2 Cr App R (S) 473. The case involved three offences committed some considerable time before over a period of some four years, starting when the victim was 7-8 years old. During visits to the offender's home, the offender performed sexual acts with the victim. The offender was convicted. In reaching the conclusion that the sentence of six months' imprisonment was unduly lenient, Lord Woolf, Chief Justice, giving the judgment of the court, said that it had reached the conclusion that if these matters were to come before the court today, having been committed fairly recently, an appropriate sentence would be not less than four years' imprisonment.[29]The other case to which Mr Ellison referred is Attorney-General's Reference No 41 of 2000 (David Harrison) [2001] 1 Cr App R (S) 372. In that case the offender had met a 13 year old boy, who attended a school for children with special needs. The offender took the boy to a restaurant and then to a swimming pool, later they met in a cafe, and subsequently went to the offender's flat, where the offender gave the boy a karate suit and a mobile telephone phone. They met again the following week when they again went swimming. The offender asked the boy to model for him and the boy agreed to do so. Subsequently the offender took a variety of photographs of the boy naked. The boy was given £20 and vouchers for the mobile telephone. Police officers found photographs in the offender's possession showing the boy and other children naked. Some photographs showed the offender and another boy apparently engaged in simulated sexual intercourse. He was sentenced to a probation order for three years and the Attorney General asked this court to review that sentence. In paragraph 20, Rose LJ, Vice President of the Court of Appeal Criminal Division, said:
"In our judgment, the circumstances of these offences were of a gravity which required the imposition of a prison sentence in the court below of at least 3 years' imprisonment in total. The gravity lay not so much in the nature of the sexual activity in itself but in the grooming of this vulnerable and handicapped boy, over a period of time and the giving of money and other gifts."
In that case the offender had pleaded guilty.[30]We turn to the mitigation advanced on behalf of the offender by Miss Butler. She submits, first of all, that the sentence should reflect the fact that the offence was not of a violent nature or confrontational. Thus, so she submits, it did not have the damaging physical effects that such violence might have caused. She accepted that there was harm of a psychological nature, although she asked us to treat the victim impact statement with some care because the offender is not able to challenge it.[31]The thrust of her submissions, it seems to us, was that harm of a psychological nature is somehow less important than physical harm. It is not, at least in this case. As the victim impact statement makes clear, BS has lost confidence in, and the ability to trust, other people and now suffers from post-traumatic stress disorder.[32]She submitted that the assault was at the lower end of seriousness. We do not accept that. This was an offence planned over a short period of time, but nonetheless it was a serious indecent assault involving masturbation and penetration.[33]Miss Butler submits that the sentence is not unduly lenient. We disagree.[34]Having regard to the authorities to which we have already referred, we take the view that the appropriate sentence was a sentence in the region of two and a half to three years' imprisonment.[35]Recognising the element of double jeopardy, the sentence which we now impose is one of two years' imprisonment.[36]We turn to the consequential orders that follow from that. The judge, under section 85, made an order extending the licence period for two and a half years. In the light of the alteration that we have made to the sentence, we take the view that the extended licence period should be one of two years.[37]Given that we have now increased the sentence, we are required to make the appropriate order under section 28 of the Criminal Justice and Court Services Act 2000, disqualifying the offender from working with children. Finally, we note that the provisions regarding the Sex Offenders Register will apply also to this offender.