Tiffany, Attorney-General's Reference No 52 of 2009 [2009] EWCA Crim 2125

Case No 200903002 A1[2009] EWCA Crim 2125
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 2 October 2009
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE MAURICE KAY
MR JUSTICE SWEENEY
MRS JUSTICE SLADE
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL'S REFERENCE NO 52 OF 2009
(ARTHUR GEOFFREY TIFFANY)
Computer Aided Transcript of the Stenograph Notes of
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Mr P Wright QC appeared on behalf of the Attorney General
Miss K Robinson appeared on behalf of the Offender
J U D G M E N T

LORD JUSTICE MAURICE KAY:

[1]This matter comes before the court as a reference by the Attorney General under section 36 of the Criminal Justice Act 1988. At the outset of the hearing we granted leave for the application.[2]The offender, Arthur Geoffrey Tiffany, was born on 18 April 1958 and is therefore now 51 years of age. On 14 May 2009, he was convicted after a trial in Leeds Crown Court of 12 sexual offences. The victim in each and every case was a young girl to whom we shall refer as "C", who was born on 2 June 1995. The offences were committed when she was between 9 and 11 years of age.[3]The offences comprised four counts of sexual assault, for each of which there was a sentence of four years' imprisonment; seven counts of rape, embracing vaginal, oral and anal rape, for which the sentences for the vaginal and anal rapes were ones of 11 years' imprisonment, and the ones for oral rape were of six years' imprisonment; and finally, for a count of watching a sexual act, there was a sentence of two years' imprisonment, all those sentences to run concurrently. Accordingly, the total sentence was one of 11 years' imprisonment. The offender was disqualified from working with children without limit of time. He was made the subject of a Sexual Offences Prevention Order and placed upon the Sex Offenders Register for life.[4]The facts are on any view extremely serious. In about November 2004 when she was aged 9, C and her three younger siblings were entrusted into the foster care of the offender and his wife. They were professional foster carers receiving approximately £5,000 per month for their services. The offender was a man of hitherto good character. He had been married to his wife for some 25 years. They had two adult daughters, and had been employed as foster carers since 2002. They had had some seven foster children in all, although three of them were short-term. The placement of C and her three younger siblings was a long-term placement.[5]C had considerable emotional problems. The children had been neglected by their natural parents. C had suffered violence at their hands and had witnessed sexual activity when in their care. She demonstrated a profound reaction to separation and to her past, which manifested itself in her deliberately soiling and discarding her underwear. The offender was aware of the manifestation of her emotional and psychological vulnerability, but was unaware of the violence or any other reason connected with her past.[6]With time, C appeared to settle within the foster placement and her problems appeared to be resolving. However, in 2007 she began to soil herself again, and in July 2007 she disclosed an offence of sexual assault, which was later to become count 10 on the indictment. C informed her social worker about that, and said that she had been assaulted whilst at home and whilst the offender's wife had been away overnight. All this led to the offender being challenged about the allegation by his wife. He admitted the truth of the allegation to her, as indeed he did to his two natural daughters and to a social worker. He maintained such admissions when interviewed by the police on 17 August 2007. His admission was of touching C in the region of her vagina, but he denied penetrating her. He also asserted that it was C who had initiated the sexual activity.[7]In the immediate aftermath of the complaint the offender left the family home and moved to alternative accommodation. In August 2007, a month or so after her initial disclosure, C made further disclosures and was re-interviewed. She described a prolonged history of offending that commenced soon after C had moved into the family home when aged 9 in November 2004, until July 2007 when aged 11.[8]Count 1 involved the offender touching C's vagina under her clothing when he was alone with her. The offender soon graduated to touching her vagina and breasts whilst they were alone together in his workshop (that was count 2). He engaged in the process of the sexualisation of C by showing her pornographic material, including magazines and videos whilst either in the workshop or in the house. The images shown to the child included acts of oral and vaginal intercourse. The offender also showed the child images of the offender engaged in an act of sexual intercourse with an unidentified woman that he had captured on his mobile telephone (that was count 14).[9]Whilst in the workshop, the offender performed acts of oral sex on C (that was count 3). By the time she was ten, he had raped her in the bedroom vaginally (count 5) and orally (count 6). The offences of rape were opportunistic and when the mother was out of the house. C described the act of rape taking place "plenty of times" and "at least eight or nine times". The acts of rape continued when she was 11. They took place in the bedroom (count 7, vaginal rape) and in the kitchen area (count 8, also vaginal rape). On occasion the offender would masturbate until ejaculation and invite C to lick his semen from his penis. She declined to do so. Sometimes he would smear chocolate spread on his penis and force C to suck his erect penis. The offender continued to rape C when the occasion presented itself, and this included further acts of vaginal rape (count 11), oral rape (count 12) and anal rape (count 13).[10]The offences were accompanied with acts of coercion and force as he held her hands to her side, ignored her distress and threatened that if she disclosed the abuse, then she, together with her younger siblings, would be forced to move out of the foster setting. On one occasion he drove past her natural parents' house. This caused C to be extremely frightened.[11]In interview, the offender denied any further acts of abuse over and above the single matter to which he had earlier made admissions. He also denied showing C any explicit material.[12]It is plain from his sentencing remarks that the judge clearly accepted that this was a very grave case indeed. He said this. "[C] was a young girl who came to your home having had a dreadful upbringing. She was entitled to look to you for care and protection, and what you did to her was the grossest abuse of trust. And you have had no remorse. You have not pleaded guilty to these matters and you are not entitled to the credit which a plea of guilty would have entitled you to. You did not even have the courage to plead guilty to the allegation which you had admitted to a number of people on numerous occasions. That means inevitably that [C] had to give evidence in this court and be cross-examined. I do not add to your sentence for that, it simply means that you cannot get credit for a plea of guilty. This was conduct which went on over a period of time. It was repeated vaginal and oral rape; on one occasion it was anal rape. These were the grossest possible offences. Inevitably a substantial prison sentence must follow."[13]All of those comments seem to us to be entirely appropriate. Two questions arose as regards the length of any sentence. The first question was whether this was a case satisfying the dangerousness requirements of the Criminal Justice Act 2003. There is no doubt that the judge was alert to that possibility. Indeed, as defence counsel at trial (who was not Miss Robinson) stood up to mitigate, the judge immediately observed that he had to consider the question of dangerousness. Counsel accepted that, but said that the catalogue of offences were against a single complainant in a domestic environment as opposed to a stranger environment, and there was an absence of violence. He submitted that those factors, together with the previous good character of the offender, were such as to obviate the application of the dangerousness provisions. The judge accepted that submission briefly and without any further elaboration.[14]In addressing us today on behalf of the Attorney General, Mr Wright QC has wisely concentrated on the length of the determinate sentence rather than upon the issue of dangerousness. The reason is that the Criminal Justice Act 2003 only applies in this respect to offences committed after 4 April 2005. So far as the indictment was concerned, the earlier offences were all pleaded in a way which left open the possibility that they were committed before that date. The later offences amounting to one sexual assault and three rapes (vaginal, oral and anal) were pleaded in a way which clearly fixed them at dates after the commencement of the Act. But having regard to the chronology and the imprecision of some of the dates, and having regard to the fact that the judge did consider dangerousness from the vantage point of having presided over the trial, Mr Wright accepts that it is less easy for us to interfere with his conclusion about that, albeit that conclusion was expressed in somewhat desultory terms.[15]It seems to us that, in deciding whether the sentence passed was unduly lenient, we should confine ourselves in this case to the question of the undue leniency of the determinate sentence. That we shall do.[16]The determinate sentence of 11 years was said by the judge to be arrived at by reference to the guideline case of Millberry and others [2003] 2 Cr App R (S) 31. As is well-known, that case described different starting points depending upon the seriousness of the criminality. It is abundantly clear to us, and indeed is not disputed by Miss Robinson, that the starting point under the Millberry guidelines for this case was one of 15 years.[17]At paragraph 22 in Millberry, Lord Woolf CJ, giving the judgment of this court, referred to "15 years and upwards" as the starting point for a campaign of rape, adding:
"This is recommended where the offender has repeatedly raped the same victim over a course of time, as well as for those cases involving multiple victims."
On any view, this case falls within that category.[18]It is then necessary to have regard to the aggravating and mitigating features. These are set out in the final reference signed by the Attorney General and there is no issue about them. The aggravating features are listed as(1) the extreme youth of C;(2) her extreme and obvious vulnerability;(3) the serious breach of trust involved;(4) the offences were accompanied by acts of degradation (ejaculation, inviting her to lick his semen and the smearing of his penis with chocolate spread);(5) the grooming of the victim by exposing her to images of a sexual nature;(6) the coercive and exploitative manner in which she was made to submit to his demands and not complain;(7) the profound effect that the offending had on an already emotionally damaged and extremely vulnerable child, together with the consequences for the family unit.[19]The mitigating features amounted to the age of the offender and his previous good character. However, as far as that is concerned, in Millberry the Lord Chief

Justice said at paragraph 29:

"The defendant's good character, although it should not be ignored, does not justify a substantial reduction of what would otherwise be the appropriate sentence."
[20]We do not and cannot see this as a case in which the mitigating features outweigh the aggravating features. Indeed, the contrary is obvious. The breach of trust was of an extreme kind, being a breach of trust by a professional foster parent, repeated on numerous occasions over a two-year period. The references to C's age and obvious vulnerability which was known to the offender, coupled with the accompanying acts of degradation, the grooming and the other matters referred to as aggravating features plainly put this case above the starting point of 15 years. The mitigating features, such as they are, cannot have a dramatic effect on discounting the effect of the aggravating features.[21]In all these circumstances, we have come to the conclusion that the sentence of 11 years' imprisonment was indeed unduly lenient. We are entirely satisfied that it was unduly lenient by a substantial measure. Accordingly, what we propose to do is to quash the sentences of 11 years. In our view, the appropriate sentence for those offences which attracted the sentences of 11 years following a trial was a sentence of 17 years. We are conscious of the element of double jeopardy, and we think it should impact on the sentences we now substitute. However, having regard to the fact that these were long sentences in any event, we take the view that double jeopardy here is of limited application (see Attorney General's Reference No 82b of 2000 (Vinnicombe) [2001] 2 Cr App R (S) 60.[22]What we shall do is discount the substituted sentences by a year and replace all the sentences of 11 years' imprisonment with concurrent sentences of 16 years' imprisonment.[23]So far as the sentences of six years for rape are concerned, the judge passed those in respect of the oral rapes. In our view, those too ought to be adjusted upwards. In one sense there is no real reason to distinguish between the different forms of rape on the indictment. However, we shall simply raise the sentences of six years to sentences of 12 years by reference to the principles to which we have referred.[24]We leave undisturbed the sentences of four years for the sexual assaults, and the sentence of two years for watching a sexual act. We have, as we have said, found this to be a case of considerable gravity, which did not attract sentences of anything like the severity which ought to have been imposed.[25]We ought to add that, in expressing our reasons, we have referred throughout to the case of Millberry. We have had regard to the fact that the Sentencing Guidelines Council's Definitive Guidelines on Sexual Offences are in play in this case. So far as we can see, and both counsel accept this, they do not depart from, but indeed reinforce, the guidelines that were propounded in Millberry.[26]Accordingly, having considered the reference, we quash the sentences for rape and substitute the higher sentences to which we have referred. Thank you both very much.[27]MR WRIGHT: My Lord, so far as the ancillary orders are concerned, they remain extant.

LORD JUSTICE MAURICE KAY: Yes. Thank you. He did have time on remand?

[29]MR WRIGHT: My Lord, may we ascertain the precise figure and inform your Lordship's clerk of that figure.

LORD JUSTICE MAURICE KAY: Yes. Plainly the time on remand should continue to count, but you can tell the court the exact figure when we have risen. Thank you both very much.