Attorney General's Reference No 70 of 2008 [2009] EWCA Crim 100

[2009] EWCA Crim 100Case No 2008/06150/A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday 21 January 2009
The Strand
London WC2
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)
MR JUSTICE PITCHFORD
and
MR JUSTICE RODERICK EVANS
Between
R E G I N ACrown
ATTORNEY GENERAL'S REFERENCE No. 70 of 2008
UNDER SECTION 36 OF
THE CRIMINAL JUSTICE ACT 1988
- v -
Between
B W
Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)190 Fleet Street, London EC4ATelephone No: 020-7421 4040(Official Shorthand Writers to the Court)
Miss S Whitehouse appeared for Attorney GeneralMr R Lowe appeared for Offender
J U D G M E N T

THE LORD CHIEF JUSTICE:

[1]This is an application by Her Majesty's Solicitor General under section 36 of the Criminal Justice Act 1988 for leave to refer to this court for review a sentence she considers to be unduly lenient. The sentence was passed by His Honour Judge David Morris in the Crown Court at Newport on 21 October 2008.[2]The offender is 72 years old. He was born in August 1936. He has not previously been convicted.[3]He was charged with 20 counts of indecent assault on a female aged under 13 years contrary to section 14 of the Sexual Offences Act 1956. The charges related to indecent assaults on six girls.[4]On 19 September 2008, after an unsuccessful application was made on his behalf to stay the indictment as an abuse of process on the basis that it was an extremely stale prosecution, the offender offered to plead guilty to one count of indecent assault in relation to each of the victims. The plea was offered, and accepted, on the basis that they represented specific indecent assaults and that they were not specimen counts. The offender was accordingly sentenced on that basis.[5]The sentence imposed by Judge Morris on 21 October 2008 was a Community Order with requirements to participate in a Sex Offenders Programme and to attend probation appointments for a period of three years. The offender was also disqualified from working with children and made subject to the notification requirements of the Sexual Offences Act 2003.[6]In brief summary the allegations of sexual indecency involved the offender fondling the vaginas of his nieces in the late 1950s, early 1960s and 1970s, and then, after a twenty year gap, another incident where the vagina of a great niece was fondled in about 1992 or 1993. It is important to note that there was no penetration and no other additional touching in relation to the offences to which he had pleaded guilty.[7]We need not name, and we shall not identify, any of the victims by name. The first, K, was 5 years old when she found herself alone in the house with the offender. He fondled her in the area of the vagina. By the time these matters came to light she could not remember whether the fondling had occurred under or over her clothing.[8]The second girl, S, was subjected to much the same kind of indecency in the course of a car journey she was taking with the offender to his home when he stopped the vehicle in a lane. He moved his hand up her leg higher and higher. She held her dress her down on her thigh and between her legs and said no to him. He made a reply to the effect of "Let me and I will give you pocket money". She said, "No". The offender desisted and they drove on.[9]The third girl, E, was aged 6 or 7. She was in bed with mumps in 1961 or 1962. The offender put his hand under the bedding and inside her pyjamas.[10]A similar incident occurred in the course of another car journey. The offender put his hand inside H's knickers and touched her vagina. He asked her not to tell, that it was their secret.[11]The fifth of the incidents involved J. The offender visited her in her bedroom in 1968 or 1969, pulled up her nightdress and touched her in the area of the vagina.[12]The last victim, L, is a great niece of the offender. Her sister saw the offender touching L in the area of her vagina when she was 5 or 6 years old. The victim herself had no recollection of the incident.[13]Following this last incident the family became aware of what had happened to L. A meeting was held in which, the offender having made admissions of what he had done, the family decided on the action to be taken. The decision was that if the offender promised not to do it again and to receive treatment, then he would not be reported to the police. He agreed. He went to see his general practitioner to whom he confessed his offences and he attended for further professional treatment. In the end he discharged himself. Since then there have been no further offences.[14]These matters would not have come to light, save for something entirely coincidental. In April 2007 the offender's brother and sister-in-law, with whom he was living, fostered a child. A family member, who knew about the offender's criminal behaviour, was very concerned about the possible implications for another small child in the home where the offender was living. Information was given to the police because the member of the family was concerned for the welfare of any foster children.[15]Following that information, a meeting was held between the police and Social Services. In May 2007 Social Services visited the address where the offender was living to check the accuracy of the information. When he was asked, the offender admitted to the social workers that he had indecently touched his nieces. He made reference to having received medical treatment for his problem. He gave his consent that his medical records about the treatment for his sexual problems should be disclosed to the social workers. Social Services were therefore able to confirm that he had received hospital treatment in 1993.[16]Following all that, a police investigation commenced. The victims made the allegations that they had suffered sexual abuse at the hands of the offender when they were children. The offender was invited to attend the police station in Newport in late November. He was then arrested on suspicion of indecent assault upon the victims. In the presence of his solicitor, and on his advice, on interview he made no comment to the allegations.[17]When the case was listed for trial it was submitted on the offender's behalf that the allegations were so old and so delayed that he could not receive a fair trial and thus an abuse of process would be constituted. That submission was rejected. Accordingly, the case was adjourned for trial. However, on 19 September 2008 the offender pleaded guilty to one count of indecent assault involving each of the six victims.[18]The judge adjourned sentence. He indicated that his preliminary view was that the matter was so serious that only immediate imprisonment could be considered. A pre-sentence report was prepared. It is clear from the report that the judge's observation had rightly been conveyed to the author of the report and that it had influenced her response.[19]On 16 October 2008, after hearing the prosecution opening and the mitigation advanced on behalf of the offender, Judge Morris was troubled by the contents of the pre-sentence report. It is at this stage that the Reference becomes sparse. It does not begin to convey the extreme care with which Judge Morris approached this difficult sentencing decision. The problem with the pre-sentence report can be seen by a contrast between these two paragraphs:
"4.2 It is my opinion that [the offender] poses a high risk of serious harm to children. The nature of this abuse is sexual assault and manipulation or intimidation of vulnerable individuals. This opinion is also confirmed by the risk assessment tool currently used by the National Probation Service. 4.3 [The offender] has been assessed as falling into the low risk category using Risk Matrix 2000."
[20]The judge decided that he wanted more information. He adjourned the case so that it might be obtained both from the author of the pre-sentence report and from the court liaison probation officer. He told the offender that the offences he had committed were serious. He recorded that they had been committed many years ago and that he had not offended in this way for a large number of years. He noted that the offender had made admissions at the time when the family first became aware of his "disgraceful conduct" and had made further admissions which ultimately ended in a guilty plea. He said that normally such offences could only be dealt with by immediate imprisonment. He decided however that a tension arose in this case between the public interest to see that sex offenders were locked up for a period of time and the interests of the offender. He remanded the offender in custody whilst further information was provided.[21]Following the luncheon adjournment the court liaison officer gave evidence. The judge was concerned about the differences that we have indicated. The evidence given by the liaison probation officer was fairly summarised by counsel for the Crown when he said:
"The risk of offending is low, but if the re-offending did occur, then the risk of harm to a person would be high."
[22]There remained, however, the view of the author of the pre-sentence report that a custodial sentence would be appropriate. The judge wanted to know from her why she had formed this opinion and to examine how, if at all, any Sex Offender Programme which might be available in prison would work and make any difference to the offender. He therefore decided not to pass sentence at that stage. His view was that imprisonment was almost inevitable but that in fairness he should explore any possible alternatives, albeit he said:
"I do not presently take a view that there is one, but if there is then I ought to know about it and be able to consider it on its own merits."
Accordingly the case was adjourned.[23]The author of the pre-sentence report attended court on 21 October and gave evidence. She began by dealing with the way in which a programme might work. Following a detailed analysis of the possibility with the element of punishment very much in mind, the witness was cross-examined on behalf of the applicant. She agreed that she had been influenced by the view expressed by the judge when she had first produced her report, but her conclusion remained unaltered.[24]Following a consideration of all that material the judge came to pass sentence. His sentencing remarks show the meticulous and balanced approach that he had taken in reaching his decision. He addressed all the significant features of the offender's criminality. He reminded himself of the views expressed by the author of the pre-sentence report, to which she had adhered in her evidence, and he reminded himself of the basis of the offender's plea by which he was bound. He also recognised that none of the incidents of sexual indecency for which he had to sentence the offender involved any penetrative sexual interference, that none was marked by oral sex, and that none involved the offender persuading or cajoling the child to touch him indecently. The judge considered those matters before he turned to the "subjective elements" of the case. He said:
"You are now 72 years of age. You have not re-offended since 1992. There are no young children within the family setting within which you now reside, and it is not suggested that you present as a danger to young children generally given the pattern of your previous and now admitted offending. I am asked to consider whether it is really necessary in the public interest now to send a man like you to prison." 25. "
The public interest should be that offenders of this type are dealt with in a way, whether it is simply by locking them up, or in any other way, which removes or minimises any risk of re-offending." In the offender's case there was no risk, given his age, that could not be managed within the community. Accordingly, for "very special reasons which apply to this particular case alone" the judge declined to pass an immediate custodial sentence.[25]The Solicitor General points to the following aggravating features. The offender was in a position of trust; there were six victims who were all very young girls at the time when they were indecently assaulted; and there would be a considerable impact on the victims (save for the last one who had no recollection of it).[26]On the other hand, the Solicitor General acknowledged that there were the features of mitigation which the judge regarded as sufficient in the end to persuade him to pass "an exceptional sentence".[27]It is suggested that the offences should have been met with a sentence of immediate imprisonment. It is acknowledged by Miss Whitehouse, who appears today on behalf of the Solicitor General, that the judge gave careful consideration to the sentencing exercise. However, it is contended that in the end he gave undue weight to the mitigating features and insufficient weight to the aggravating factors. It is said:
"The authorities demonstrate that the good character of the offender and the age of the offences are of comparatively little weight."
So, too, it was suggested, is the age of the offender.[28]Inherent in this application is what we perceive to be the danger that the sentencing process should be approached as if it involves compartmentalisation. In many cases of serious sexual assault it is true that too much weight should not be given to the age of the offender or indeed the age of the offences, particularly if the offender has deliberately pressurised his victims into silence. But these matters do not cease to be factors which may form part of available mitigation. They are not always of "comparatively little weight". Nothing is always of little weight. Everything must depend on the individual circumstances of the specific case and the sentencing decision which the judge has to make in relation to the defendant who is standing before him in the dock. And in these applications our concern is with the eventual sentence, and whether it is properly to be described, in the round, as unduly lenient.[29]This sentence was imposed by a very experienced trial judge who had most carefully considered every single serious and aggravating feature of the offences committed by the offender. In the end he decided that the right sentence was a non-custodial sentence for an offender who was aged 72, in poor health, none of whose offences had involved sexual penetration of any of his victim, whose offences (apart from one) had happened at least thirty years or more ago, and whose last offence occurred sixteen years earlier, of which the victim herself had no recollection, and following which, under pressure from his family when these matter came to light he had attended his general practitioner and had received treatment, following which no further offending had occurred.[30]A non-custodial sentence in our judgment was within the proper range of the judgment and responsibility vested in the judge. If the sentences are to be regarded as merciful, perhaps it is salutary to remind ourselves of the observations of Lord Lane CJ in one of the very first Attorney General's References following the implementation of the 1988 Criminal

Justice Act:

"That mercy should season justice is a proposition as soundly based in law as it is in literature."
For these reasons this application will be refused. MR LOWE: My Lord, it remains, I am afraid --

THE LORD CHIEF JUSTICE: Yes, we have to sort out the sentence.

[32]MR LOWE: Yes. The order imposed under the Criminal Justice Act 2003 and I am afraid we all omitted -- and I take responsibility for it -- to notice that those orders covered offences before April 2005. I have discussed with what my learned friend what would have been the correct sentencing regime and we are, I think, agreed that it should have been a Community Rehabilitation Order under section 41 of the Powers of Criminal Courts (Sentencing) Act 2000 and the conditions of that order would be the same.

THE LORD CHIEF JUSTICE: In practical terms, if we say that the order will be a Community Rehabilitation Order under section 41 with the same conditions attached to it, that will be sufficient, will it?

[34]MR LOWE: Yes, I believe so.

THE LORD CHIEF JUSTICE: What has actually happened?

[36]MR LOWE: What has happened is that he has been to six or seven appointments with the Probation Service, all of which he has attended, but because of this application, and because of concern being expressed about various children in the family, the main part of the probation course was put on hold. The Probation Service are awaiting the judgment of this court before continuing. That is my understanding.

THE LORD CHIEF JUSTICE: And there are members of the family in court, are there not, Mr Lowe?

[38]MR LOWE: There are. His brother, who has been supporting him, and a number of the victims are here today.

THE LORD CHIEF JUSTICE: We shall say no more than that this must have been a dreadful matter for every single member of this family. We recognise that and we thank them all for coming.