Attorney General's Reference No. 150 OF 2004 [2005] EWCA Crim 680

Case No 2004/7096/A7[2005] EWCA Crim 680
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 10 March 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE TUCKEY
MR JUSTICE RODERICK EVANS
SIR CHARLES MANTELL
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 150 OF 2004
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MR R HORWELL appeared on behalf of the ATTORNEY GENERAL
MR A FORD appeared on behalf of the OFFENDER
J U D G M E N T

LORD JUSTICE TUCKEY:

[1]Following a five day trial in the Crown Court at Carlisle, Lawrence Bowe, who is now 62 years, was convicted of 12 counts of indecent assault, one count of attempted rape and one count of assault occasioning actual bodily harm. On the same day the trial judge, His Honour Judge Taylor, sentenced him to a total of four years' imprisonment. The Attorney General applies for leave to refer that sentence to this court on the grounds that it was unduly lenient. We grant leave.[2]The short facts are that the offender sexually abused two of his stepdaughters between 1977 and 1982, and then over 20 years later sexually abused a stepgranddaughter. In each case the girls were between the ages of 11 and 15. The early offences came to light after complaint was made by the stepgranddaughter.[3]The elder of the two stepdaughters, LP, was born on 3rd August 1965. The younger, DP, was born on 8th November 1966. They, together with their four siblings, lived in Carlisle. In 1979 their mother married the offender. He took responsibility for the six children but soon began sexually to abuse his two stepdaughters.[4]LP was abused between the ages of 13 to 15. The offender frequently put his arm around her waist which made her feel uncomfortable. He then progressed to placing his hands over her breasts over her nightshirt. This conduct was repeated frequently most weekends and it often occurred when he returned home after an evening's drinking. The first of the counts relating to LP was a sample count which reflected this indecency.[5]Two further counts of indecent assault related to occasions when the offender entered LP's bedroom and touched her breasts and vagina. When she told him to stop what he was doing he paid no attention to her protests and told her to 'shut up'.[6]The most serious count in the indictment charged an attempted rape on LP. This occurred when she was 14 after she had come home from school. The offender called her into his bedroom, made her sit on the bed, lifted her upper clothing to expose her breasts and then pushed her back onto the bed and pulled down her knickers. He exposed his erect penis and attempted to rape her. For some time he touched her breasts and tried to penetrate her, but she kept her legs together and prevented him from doing so. It was only when someone was heard at the front door that the offender stopped and told LP to leave. She went to her room and cried.[7]The final count relating to LP related to an indecent assault which occurred a few weeks later. The offender took LP into his bedroom where he held her and lifted her t-shirt and bra. She struggled and cried and was able to get away. She said she was going to tell her mother what had happened to which the offender replied that she would not be believed. She became hysterical and ran into her bedroom.[8]So far as LP was concerned, the judge imposed sentences of one year concurrent for each of the four offences of indecent assault and three years concurrent for the offence of attempted rape.[9]We turn to the offences against the second stepdaughter, DP. When she was 11 the offender was discovered looking at her through the keyhole of the bathroom whilst she was in the bath. Shortly afterwards he started to touch her breasts. The first count of indecent assault related to an occasion when she was at the kitchen sink and the offender stood behind her and put his hands under her clothing and touched her breasts. A specimen count related to the fact that the offender repeatedly went into her bedroom late at night whilst she was asleep and touched her vagina and breasts. On occasions he pulled out pubic hair. She often awoke to find him touching her. She protested and cried, but he carried on regardless. She began to stay away from home as frequently as she could in order to avoid him.[10]The third count of indecent assault concerning DP related to an occasion when she was about 12. She was in bed asleep. The offender entered her bedroom wearing only underpants and had been drinking. He woke her up, pulled off the bed cover and pulled down her knickers. He touched her breasts and vagina and then digitally penetrated her. It was very painful and she cried. He then pulled his underpants down, got on top of her and told her he was going to give her a baby. She continued to cry and said that she would tell her mother, at which he became enraged and repeatedly punched her in the face and mouth telling her that he would kill her if she did so. The following day she was seen by LP with a swollen and bruised face who described her as being unrecognisable. The assault was charged as an assault occasioning actual bodily harm.[11]After this incident nothing as serious happened again but the offender continued to touch DP's vagina at every opportunity. The last of the indecent assault counts in relation to this girl was a sample count to reflect that conduct.[12]The sexual abuse of DP did not stop until she left home when she was 17. She subsequently made a statement which said that she left home to get away from the offender but continued to feel desperate and dirty, believing that her mother did not care for her.[13]So far as DP was concerned, the judge imposed concurrent one-and-a-half year sentences for each of the four offences of indecent assault and the assault occasioning actual bodily harm.[14]The clock then moves forward 20 years, by which time another of the offender's stepchildren had married and had had two children of his own, the younger of whom, SB, was born on 4th April 1992. The stepson had separated from his wife and came to live with his mother in Carlisle. SB came to stay there occasionally overnight. In early 2004 SB's mother began to see that SB was reluctant to make these visits. Finally she refused to go and complained to her mother that the offender had been touching her.[15]The first two counts of indecent assault in relation to SB related to a time in May 2003 when she was asleep in bed and the offender came into the bedroom, woke her and touched her breasts. A few hours later he returned and again touched her breasts. On two or three subsequent visits the offender had stood behind her, placed his hand inside her knickers and touched her vagina. Those occasions were the subject of the two further counts of indecent assault.[16]So far as SB was concerned, the judge imposed concurrent one year sentences for each of the four offences of indecent assault involving her but made these sentences consecutive to the total sentences of three years which he imposed for the offences against the other two girls.[17]The offender was arrested in March 2004. Both in interview and at trial he denied all the allegations made against him.[18]In sentencing the offender

the judge said:

"You took on six children when [their mother's] husband died and there is much to be said to your credit, but regrettably you succumbed to the temptation of fondling three members of the family sexually and in respect of one or two occasions you went rather further than anybody can describe as simply over-familiarity."
We have to say, having regard to the facts of these offences which we have set out at some length, that we find those comments very difficult to understand. Nevertheless, the judge took into account the offender's age, the fact he had no previous convictions and what he described as the "very, very considerable delay" so far as the earlier offences were concerned and passed the sentences to which we have referred.[19]On behalf of the Attorney General, Mr Horwell submits that these sentences were unduly lenient. The aggravating features were: there were three victims; the offending had revived after a lapse of 20 years; the victims were very young; the offences were repeated; the offender was in a position of trust and responsibility and grossly abused that position; in two cases at least violence and threats were used; and the offences included one of attempted rape.[20]In support of his submissions Mr Horwell has referred us to a number of authorities: Millberry which sets the scene for sentencing in serious sex cases; Attorney General's References of 2003 [2004] 1 Cr.App.R (S) 499 where this court made it clear that, although the age of the offender and the fact that the court was dealing with stale offences were matters which could be taken into account, they should only have a limited impact; and Attorney General's Reference No3 of 1995 [1996] 1 Cr.App.R (S) 26 where it was said that an offence of attempted rape in similar circumstances to these would have merited a sentence of six years at and after a trial.[21]Mr Ford on behalf of the offender has emphasised the unique position which the trial judge has in a case of this kind to form a view about the harm which the offences have caused, the culpability of the offender and the risk which he poses to the public. He makes the point that guideline cases are no more than that and urges us to say that a total of four years was not unduly lenient, but if it was it was not so unduly lenient as to require this court to increase the sentence.[22]Valiantly though those submissions were made, we are unable to accept them. Having regard to the aggravating features which Mr Horwell identified and to the authorities to which we have been referred, we think that the least total sentence which could have been imposed on this offender following a trial was one of eight years. Taking account of double jeopardy the total sentence which we propose to substitute will be one of seven years. The way we will do this is to say that for the offence of attempted rape, which was count 9 in the indictment, we increase the sentence to one of five years which is the least sentence which we think the judge should have imposed. So far as the offences against SB are concerned, we think the trial judge have imposed consecutive sentences of three years concurrent on each count so as to bring the total to eight years. But we will only increase those sentences to two years, so as to produce the reduced total of seven years. Otherwise the sentences imposed by the judge will stand.