Attorney General's Reference No 59 of 2006 [2006] EWCA Crim 2096

Case No 2006/2950/A2[2006] EWCA Crim 2096
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of Justice, Strand London, WC2Date Monday, 7 August 2006
B E F O R E:
THE VICE PRESIDENT (LORD JUSTICE LATHAM)
MR JUSTICE STANLEY BURNTON
MRS JUSTICE DOBBS DBE
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 59 OF 2006
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MR D PENNY appeared on behalf of the ATTORNEY GENERAL
MR M BORRELLI QC AND MR G FISHWICK appeared on behalf of the OFFENDER
JUDGMENT
[1]THE VICE PRESIDENT: This is a reference under section 36 of the Criminal Justice Act 1988 in which Her Majesty's Solicitor General seeks leave to refer to this court a sentence imposed on the offender by His Honour Judge Thorpe at the Chichester Crown Court on 22nd May 2006. The sentence in question was a sentence of 51 weeks' imprisonment on three counts of sexual activity with a child contrary to section 9 of the Sexual Offences Act 2003 which sentences were to be served concurrently and each sentence was suspended for a period of two years.[2]The offender had pleaded guilty to those three counts on 2nd March 2006. He was born on 3rd August 1944 and is now aged 61. The girl in question was born on 6th March 1991 and was 14 at the time of the activity about which complaint was made. Her account of what happened was that she and the offender, who was a neighbour, were good friends - in fact she described him as like a father. The activity between them about which she complained started when she was 13 and involved what she considered with hindsight was inappropriate handling. She then said that that moved on to sexual intercourse with her on a regular basis and sexual behaviour including oral sex.[3]The offender was arrested on 23rd September 2005 as a result of those complaints. He was interviewed and admitted straightaway that he had indeed had a sexual relationship with the girl. He said that it began in about April 2005, that is when she was 14. His account of how it started was that they had been playing around together; she asked him if he had any condoms. He thought that indicated a willingness for sexual intercourse. Ultimately, when it came to trial, his admissions were as follows: on one occasion he had penetrated her digitally with his finger; on two occasions he had had full sexual intercourse with her, on both occasions protected sexual intercourse using condoms.[4]When the matter came before the court on the plea and case management hearing on 2nd March 2006, that was the basis of plea which was reduced to writing and put before the judge. The offender pleaded guilty to a re-cast indictment which charged offences after the date when the girl was 14. He pleaded guilty in accordance with his basis of plea to the first three counts in that indictment. Prosecuting counsel at the time indicated that the prosecution in effect could only accept those pleas if those counts were treated as sample counts, which would have been in accordance with the girl's interview with the police. Counsel representing the offender at the time made it plain that that could not be an acceptable basis upon which the matter should be dealt with at that time. The matter was therefore adjourned with the judge indicating that there should be a Newton hearing in order to resolve the very clear difference between the two accounts by the offender on the one hand and the girl on the other. In fact bearing in mind the nature of the indictment which included counts other than the three counts to which the offender pleaded guilty, it would have been more appropriate for the matter to have been dealt with by way of a trial of the further counts in which a jury could have given its verdict in relation to the difference between the two accounts. Be that as it may, the offender's solicitors wrote on 26th April 2006 saying that a Newton hearing would not be required but that the offender stood by the basis on which the pleas had been offered.[5]The matter accordingly came back before the court on 28th April in what can only be described as that unsatisfactory situation because the issues between the offender and the girl had not been resolved either by a Newton hearing or by a trial. On that occasion prosecuting counsel indicated that he considered that he was bound by the acceptance of the pleas. On behalf of the Solicitor General it is submitted to us that that was not correct. We are not in a position to know today what in fact may have transpired between counsel at the time. The fact is that the judge considered that he could and should deal with the matter on the basis of plea put forward by the offender. In those circumstances the issue of sentence was adjourned for the obtaining of medical reports; and the remaining counts on the indictment were ordered to lie on the file.[6]On 22nd May, as we have indicated, the offender appeared for sentence before His Honour Judge Thorpe. There was no victim impact statement from the girl before the judge at that time, although she had written an informal letter the previous day which was brought to court on her behalf by her mother. Bearing in mind, in our view rightly, the fact that it was not in proper form, the judge did not read that letter. It is unfortunate that the opportunity was not taken to reduce the information in the letter into appropriate form which would have enabled the girl's views to have been before the sentencing judge.[7]During the course of the hearing before His Honour Judge Thorpe, the offender called as a witness his daughter who gave an account of the family history and told the judge about her father. She described how the offender had suffered a serious accident resulting in severe incapacity some years previously, as a result of which he had not worked or not worked to any significant extent. At about the same time his wife had deserted the family which consisted of four children all of school age. The offender had managed to provide for and cope with the demands of the family for more than six years on his own, that included supporting a son who was regularly in trouble, and in addition to that he had provided regular help to the complainant who had difficult home circumstances. There had never been any concern about the offender's sexual behaviour prior to the incidents in question.[8]The judge having heard that evidence was clearly impressed by Miss Doe and in his sentencing remarks he said as follows:
"Nelson Doe, you have pleaded guilty to three counts. I give you credit for that plea. I reduce the sentence I would otherwise have passed. Given the point at which you pleaded guilty, which is the first opportunity, I deduct the maximum I can do, which is one-third. I give you credit for the fact of your previous good character. The best mitigation is that of having saved that young girl the misery (and I use the word advisedly) of having given evidence."
He then went on to indicate that the offences were aggravated by the fact that they were repeated and that they constitute a clear breach of trust, given the relationship between him and the girl; but he took into account expressly the basis of plea. Having noted that the courts have a special duty to protect the young and vulnerable in society, he indicated that the sentence that he would have had in mind in normal circumstances was one of two years' imprisonment but then indicated that in the light of the evidence given by the daughter, by which he had been extremely impressed, he would quite exceptionally reduce the sentence from two years' imprisonment to 51 weeks which he was prepared to suspend.[9]Mr Penny, on behalf of the Solicitor General, submits that that sentence simply failed to mark appropriately the gravity of the offences to which this offender had pleaded guilty. He has referred us in particular to the judgment of this court in R v Corran and others [2005] 2 Cr.App.R (S) 453 and has referred us to the individual applicant Cutler and the court's views about the appropriate sentence in his case. We have also been referred to the case of R v Wingrove [2006] 1 Cr.App.R (S) 233.[10]On the basis of those authorities, Mr Penny submits that the appropriate starting point for sentence in the present case should have been one of three years' imprisonment; and accordingly the judge should not have been considering any sentence which would have justified a suspended sentence. In any event, he submits, even if a sentence of two years or less could be said to have been appropriate, there were no exceptional circumstances which could have justified the suspension of such a sentence.[11]On behalf of the offender, Mr Borrelli QC has submitted that this is one of those cases where an experienced judge has taken a particular view of the appropriate sentence for the offender, has done so in the light of evidence which he heard, that he started from an appropriate starting point -- in other words that two years' imprisonment bearing in mind the pleas of guilty and the basis of plea could not be categorised as unduly lenient and that he was accordingly entitled to extend to this offender the additional measure of clemency which he did by reducing it to 51 weeks and that there were on the basis of the evidence exceptional circumstances justifying the suspension of that sentence.[12]We have considered those submissions and it is right to say that we have done so in the light of the fact that we have before us a witness impact statement from the girl in proper form. That document, of course, is not relevant to determining whether the sentence imposed by the sentencing judge was unduly lenient. That would be inappropriate. But it forms part of the background against which we view the overall sentence in this case.[13]There is no doubt, in our judgment, that Mr Penny is correct. The sentence of 51 weeks' imprisonment was in itself unduly lenient. The sentence of two years' imprisonment which was what the judge had clearly in mind in the first instance would have been, in our judgment, an appropriate sentence to extend clemency to this offender as the judge considered it was appropriate to do. In other words, bearing in mind his background, bearing in mind the evidence of his daughter, bearing in mind his plea and bearing in mind the basis of plea, two years would not in itself be an unduly lenient sentence. But there was no justification for its further reduction to 51 weeks. We consider, further, that the Solicitor General is correct to say that there are no exceptional circumstances which justify the suspension of any sentence of imprisonment. The position, however, today is that the offender has been given a noncustodial sentence. Our conclusion that the sentence should have been one of immediate imprisonment therefore needs to be mitigated appropriately for double jeopardy. We consider that the right sentence is one of 18 months' imprisonment on each of the three counts of the indictment to be served concurrently.[14]We accordingly give leave to the Attorney General to refer the case to this court, conclude that the sentence was unduly lenient and substitute a sentence of 18 months' imprisonment.[15]Mr Borrelli, consideration needs to be given to when Mr Doe should surrender in order to commence that sentence.[16]MR BORRELLI: My Lord, a representative from the instructing solicitors who have had conduct of this case throughout is present in court. Arrangements have already been made in the sense that Mr Doe is aware that if he was ordered to serve an immediate term he knows the position and matters will be put in hand during the course of today.[17]THE VICE PRESIDENT: We have to direct a particular time by which he should surrender. We are usually willing to consider, say, 24 hours or so, if arrangements need to be made in order to put his position in order.[18]MR BORRELLI: Unless I am given a tug from behind, may I take up that kind offer and say 24 hours from now, so 12 o'clock tomorrow.[19]THE VICE PRESIDENT: Yes. We need to identify a police station to which he should surrender.[20]MR BORRELLI: It will be Worthing Police Station. My Lord.[21]THE VICE PRESIDENT: Then we direct that he should surrender himself to the police station at Worthing by midday tomorrow and the sentence we have imposed will commence from the time of his surrender to that police station.[22]MR BORRELLI: Yes, my Lord.

Cited in 1 later judgment