Carragher, R. v [2006] EWCA Crim 1306

Case No 2005/00088/B2[2006] EWCA Crim 1306
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Date Tuesday 9 May 2006
Between
R E G I N ACrown
Oxford Crown Court
St Alldates
Oxford
OX1 1TL
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Phillips of Worth Matravers)
MR JUSTICE HENRIQUES
and
MR JUSTICE GROSS
__________________
- v -
Between
JAMES REDMOND CARRAGHER__________________Computer Aided Transcription bySmith Bernal, 190 Fleet Street, London EC4Telephone 020-7421 4040(Official Shorthand Writers to the Court)__________________MR M M GEORGE appeared for APPLICANTMR S ASH appeared for CROWN____________________J U D G M E N T
[1]On 1 and 2 December 2004, in the Crown Court at Sheffield, before His Honour Judge Lawler QC, the applicant was convicted of seven counts of buggery and thirteen counts of indecent assault. So far as the counts of buggery were concerned, the verdicts on three counts (which included counts 1 and 2) were by a majority of 11:1; and the verdicts on four counts (which included count 60) were unanimous. The applicant had pleaded guilty at the commencement of the trial to one count of indecent assault and asked for three further such offences to be taken into consideration. At the end of the trial the jury acquitted the applicant of twelve counts of indecent assault and three counts of buggery. At the direction of the judge, they had earlier acquitted him of a further five counts of indecent assault and six counts of buggery. On 3 December 2004, he was sentenced on each count of buggery to fourteen years' imprisonment, and on each count of indecent assault to two years' imprisonment. Applications for leave to appeal against both conviction and sentence were refused by the single judge. They are renewed today with the benefit of an extension of time of seven days granted by this court.

The Facts

[2]The facts are unpalatable, but they can be shortly stated. The applicant was born in August 1940 and was thus aged 64 at the date of sentence. At the material times the applicant was a teacher at St William's Community Home, which was run by the Brothers of the Christian Schools on behalf of the Middlesborough Diocese Catholic Child Welfare Society and was intended to provide accommodation and education for vulnerable boys. From 1975 the applicant was the deputy head teacher, and from 1976 until his retirement in 1990 he was the headmaster. The applicant was not an ordained priest, but had taken solemn vows and was known as "Brother James".[3]The offences of which he was convicted spanned the period between 1969 and 1989 and involved thirteen boys, each of whom was under the age of 16. The counts reflected a continuous course of conduct whereby the applicant took advantage of very vulnerable children by buggering them or indecently assaulting them.[4]In 1993, in the Crown Court at Hull, the applicant had pleaded guilty to one count of buggery, one count of attempted buggery and twelve counts of indecent assault involving nine boys at St William's. These offences took place within the same period as those with which this court is concerned. For those offences he was sentenced to seven years' imprisonment, from which he was released in 1997.

Grounds for appeal against conviction

[5]The grounds for appeal against conviction fall into a very narrow compass. They relate to directions given to the jury in respect of evidence given by two complainants. One, S, was the complainant in respect of counts 1 and 2. The other, D, was the complainant in respect of count 60. It is necessary to summarise the evidence which each gave.[6]The complainant S said that he was sent to St William's in 1969 when he was 14. He stated it was the custom of the applicant to take boys for a swim during the early evening in the pool, which was in a separate building from the main complex. About six weeks after he arrived at St William's, the applicant took the complainant alone for a late night swim. Afterwards, the applicant said that he wanted to talk to him, so he sat on a towel on the floor. The applicant was naked and laid on top of him. He began to simulate sex whist pushing the complainant's shoulders down. He ejaculated over his stomach and put some of the semen into the complainant's mouth. Thereafter, he turned the complainant over and forcibly penetrated his anus with his penis. The complainant was terrified and too fearful to mention the incident to anyone else.[7]The complainant D said that he went to St William's in June 1987 when he was 14. He stated that after he had been there a few months, the applicant took him swimming alone late at night. Afterwards, when he went to get changed, his head was forcibly pushed down towards the bench and he felt a sharp pain in his bottom. During the assault the applicant held him by the waist and although he tried to resist he was unable to prevent the act of buggery occurring.[8]Before the judge's summing-up there was much discussion between counsel and the judge as to the extent to which the judge could properly direct that evidence given by one complainant was capable of supporting evidence given by another. This appears to have been treated as a matter of law, applying the "similar fact" principles to be found in DPP v Boardman [1975] AC 421 and DPP v P [1991] 2 AC 447. Mr George for the applicant argued that there was insufficient similarity between the facts spoken to by S and the facts spoken to by D to enable the evidence of each to constitute support for the other. The judge ruled against this submission.[9]That part of the judge's summing-up which summarised the evidence of S covers eight pages of the transcript. At the end of this summary he said:
"His evidence of the attack in the changing area of the pool where he was held down and forcibly buggered is capable of supporting the evidence of D."
[10]That part of the judge's summing-up which related to the evidence of D covers five pages of the transcript. In the course of this

the judge said:

"His evidence in relation to this act of buggery, members of the jury, is capable of supporting S when he speaks of similar conduct, S of course being at the other end of the indictment."
[11]Mr George has submitted to us that the judge was wrong to give these directions and that, applying the similar facts test, there was not sufficient similarity between the evidence of the two witnesses for one to be treated as supporting the other.[12]We have some doubts about the validity of applying the old law in relation to similar facts in the manner in which Mr George has sought to do. That law related essentially to the admissibility of evidence which was prejudicial because it showed that the applicant had misconducted himself on another occasion. That law has now been replaced by sections 101 to 106 of the Criminal Justice Act 2003.[13]No question of admissibility arose in relation to the evidence of S and D. Furthermore, the evidence of each was relevant in relation to the allegations in respect of the other insofar as each was part of a large body of evidence which demonstrated that the applicant had a propensity to bugger or otherwise sexually abuse boys in his care. Thus the statement that the evidence of S was capable of supporting the evidence of D was strictly correct. So far as the judge's direction in relation to D was concerned, however, he expressly emphasised the relevance of the similarity between the evidence of the two witnesses. Plainly when summing up a judge must be careful not to direct a jury that the evidence of one witness supports the evidence of another because of similarity, unless the facts in question justify such a direction.[14]The defence raised in relation to the evidence of S and of D was that the evidence of each was untruthful, although no allegation was made that the two witnesses had colluded. Whether the details of the offence described by S had similarities to the details of the offence described by D sufficient to reinforce the apparent veracity of each was essentially a matter for the jury. We think it inconceivable that the short direction by the judge that the evidence of each was capable of supporting the evidence of the other can have had any effect on the appraisal by the jury of the veracity of two witnesses that they had heard examined and cross-examined. For what it is worth, we consider that the description given by S of being forcibly buggered in the changing area, after being taken by the applicant for a night swim, bore sufficient similarities to the description given by D of suffering the same fate, to satisfy the test in DPP v P, albeit that the details in relation to what took place before the act of buggery differed. In this case something like twenty years separated the two incidents described, a fact to which the judge drew the jury's attention and which would have reduced any relevance of the similarity between the two incidents.[15]For the reasons we have given, we do not consider that the directions given by the judge in relation to the evidence of S and D were objectionable in law, nor that the direction in question can have made any difference to the verdicts reached by the jury. The renewed application for leave to appeal against convictions in relation to counts 1, 2 and 60 on the ground of misdirection is refused.

Grounds for appeal against the sentence

[16]The approach of the judge to sentencing was to consider the appropriate total sentence for all the conduct covered by the offences for which the applicant was sentenced in 1993 and those to which he had pleaded guilty, or of which he had been found guilty before the judge, and then to deduct the seven year sentence imposed in 1993. No complaint is make of that approach. In adopting that approach, the judge had regard to the fact that the applicant had pleaded guilty to the offences for which he was arrested in 1993. He concluded that the appropriate total sentence was 21 years.[17]The comments made by the judge, in explaining the reasons for this sentence, included the following:
"In general terms, these complainants in one way or another were very vulnerable boys from difficult and disturbed backgrounds and additionally sometimes with criminal histories, even at their young age. Each was sent to St William's where, I am satisfied on the evidence that I have heard, they were subjected to a strict and authoritarian regime. That included physical and sexual abuse at your hands. You preyed upon their vulnerability and relied upon you position of power and threats to ensure that they complied and did not complain. It is difficult to imagine the fear they must have suffered as well as confusion and turmoil in their young adolescent minds at what was happening to them. In some cases there was systematic grooming; in others you seized the opportunity to abuse. You had taken solemn vows and, although you were not ordained as a priest, you breached those vows persistently over that long period. For a substantial part of the time, you were the Principal of the school. It about as bad a case of gross breach of trust as one can imagine."
We would endorse those comments.[18]Mr George has submitted that, adopting the approach of the judge, a sentence of 21 years' imprisonment was too long. He has referred us to two authorities. The first is R v Alden and Wright [2001] 2 Cr App R(S) 401, where a sentence of fifteen years was upheld in the case of a man who was at first a housemaster at a former approved school and who later became the Deputy Headmaster. He was convicted of four counts of buggery, five of indecent assault and one of gross indecency. There were six complainants who were aged 13 to 16 at the time of the offences, which were committed over a 17 year period between 1967 and 1984. The sentencing judge referred to that case and remarked that the overall number of complainants in the present case was much greater, as was the conduct and the number of offences. So far as that decision is concerned, Mr George has the further difficulty that it was an appeal by the defendant against the sentence. The court gave no indication that suggested that a higher sentence would not necessarily have been appropriate.[19]That is not so in the case of the other authority relied upon by Mr George, R v Brizzalari [2004] EWCA Crim 310. There the court upheld the sentence of a total of fifteen years in the case of a residential social worker at an assessment centre who was convicted of 17 counts of indecent assault, three counts of rape and one count of buggery, involving eleven complainants. In upholding the sentence, the court nevertheless observed:
"It may will represent the heaviest sentence that could properly have been passed but in our judgment it does not go beyond that."
Mr George realistically conceded that the facts of this case are more serious than those of Brizzalari and that a sentence of more than fifteen years was accordingly appropriate, but he suggested that it should not have been a sentence as high as 21 years. He also submitted that, when sentencing, some latitude must be left to cater for the possibility of offences even more serious. We do not accept that proposition as being one of inevitable application. A level may be reached where there is no further scope for increasing the sentence, notwithstanding that there may be circumstances in which even more heinous offending could be imagined.[20]In this case it is relevant to consider the recent guidance given by this court in R v Millberry [2003] 1 Cr App R 25 in relation to rape. The court said that 15 years and upwards should be the starting point for a campaign of rape, including repeated rape of the same victim over a course of time. This case involved forcible buggery and indecent assault of a multiplicity of young boys over a very lengthy period in gross breach of trust. We consider that there is nothing wrong with the sentence of 21 years' imprisonment imposed by the judge for that offending. Accordingly, this renewed application for leave to appeal against sentence is refused. _________________________________