Lewis, R. v [2010] EWCA Crim 579

[2010] EWCA Crim 579Case No 2009/06032/A6
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday 11 March 2010
Between
R E G I N ACrown
The Strand
London
WC2A 2LL
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)
MR JUSTICE COLLINS
and
MR JUSTICE GRIFFITH WILLIAMS
__________________
- v -
Between
KENNY MARTYN LEWIS__________________Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)165 Fleet Street, London EC4Telephone No: 020 7404 1400; Fax No 020 7404 1424(Official Shorthand Writers to the Court)__________________Mr M Fitton QC appeared for Appellant__________________J U D G M E N T
[1]On 13 October 2009, in the Crown Court at Exeter, before His Honour Judge Cottle, the appellant pleaded guilty to eight counts of misfeasance in a public office. He received a total sentence of four years imprisonment. He appeals against sentence by leave of the single judge.[2]At the time of the offences the appellant was a serving police officer. He misused his position for the purpose of sexual gratification with four women. Whether or not any act was other than consensual, this was very serious conduct and a grave misuse of his position as a police officer.[3]The first woman "R" was seen by the appellant in September 2005. She had been a witness to a road traffic accident which he was deputed to investigate. On 29 September 2005 he went to her home. She made a written statement regarding the accident. Thereafter she alleged that the appellant handcuffed her to a sofa and compelled her to give him oral sex. He indicated to her that because she was a lap dancer (of which he had seen a video) and he was a police officer, no one would believe her if she complained. She stated that some months later he returned to her home and the same thing happened. Finally, there was a further occasion when he attended her home again and (albeit without the use of handcuffs) oral sex took place. She also alleged that he contacted her by telephone and visited her on other occasions with a view to further sexual activity, but none took place. She was able to "fob him off".[4]The allegations that R made, which did not come to light until a considerable time later, led to three counts of rape which the appellant contested. It was his case that she had instigated the sexual activity, that all that happened was entirely consensual, and that, most importantly, he had never used handcuffs. It was put to him in interview that although he denied using them for the purpose of subduing her, they had been used as a "play thing". This he denied. He was acquitted of those three counts of rape.[5]We have had the advantage of submissions by Mr Fitton QC who represented the appellant at the trial. We are informed that the trial took place on the basis that the use of the handcuffs would be likely to determine whether or not the offence was consensual. If the jury believed the account given by the complainant that handcuffs had been used and had been used to overcome her unwillingness to permit sexual activity, then the defendant should be convicted. If, on the other hand, they were not satisfied that that account was true, then he should be acquitted. The judge directed the jury more generally as to the constituents of rape, but at no time was it the defence case, nor, we are told, was it left to the jury on the basis that the handcuffs might have been a "play thing" or that the appellant might reasonably have believed that there was consent when in fact there was none. Thus, Mr Fitton submits that the verdicts of the jury must have been taken to indicate that the sexual activity was consensual. The appellant had pleaded guilty to three counts of misfeasance in public office because he was a police officer on duty at the time and clearly misused his position as a police officer in doing what he did. Indeed, he attended in full uniform and his police car was parked outside the complainant's house.[6]The second woman who was subjected to the appellant's sexual activities was "S". She had been the victim of an assault. She attended the police station in July 2006. The appellant gave her a lift home. She was vulnerable in that she was clearly upset and crying. He attempted to console her. He put his hand on her knee in a reassuring way. He went into her flat. They went into a bedroom, whereupon he kissed her and touched her bottom, breasts and between the tops of her legs. The appellant was seen by S's sister and her friend to kiss her at the door as he left. As a result they attended the police station to make a complaint. When she was seen by police officers, the complainant stated that they were two adults who had consented to kissing and she did not wish to make a formal complaint. The appellant sought to contact her subsequently, but she made it plain that she was not interested. No further sexual activity took place.[7]The appellant pleaded guilty to two counts in relation to S. One involved the sexual activity and the other misuse of information which he obtained from the police computer.[8]There was a further occasion in which S alleged that sexual activity had taken place in a police car. The appellant accepted that there had been such activity on one occasion, but not in a police car. He said that he was off duty and it was in his own car. That count was not tried because S was too ill to attend court.[9]In October 2006 there were incidents involving a further woman "J". She had been arrested following a disturbance. The appellant contacted her after that incident. He began to visit her regularly and sexual activity took place on a number of occasions. She masturbated him and gave him oral sex whilst he was on duty and in police uniform. She moved her address at one stage, but he discovered where she was by misuse of the police computer. As a result there were two charges: misuse of the police computer and the sexual activities at her home. In relation to her also there was a further allegation of sex in a police car. Again, the appellant denied that it was a police car and said that it was his own car. The jury acquitted him on the basis that they did not accept the complainant's case that the activity had taken place in a police car when he was on duty.[10]Finally, at around Christmas time 2007 "L" was stopped by police officers and warned about her driving. No further details were taken from her. However, a couple of weeks later she received a telephone call from the appellant who said that he needed some information from her. He had obtained her details from police systems. He visited her, stayed for about an hour, and left when her housemates returned. She managed to avoid any sexual activity with him, although that was what he was after. He pleaded guilty to a count which alleged the misuse of the police computer.[11]For the sexual activity against the three women (S, J and L) the appellant was sentenced to three years imprisonment. For the counts of misuse of the police computer, he was sentenced to two years imprisonment. On the counts involving the first complainant R, he was sentenced to four years imprisonment. It is against that sentence that this appeal is brought. Mr Fitton realistically recognises that a sentence of three years imprisonment on the counts of misfeasance in public office and the concurrent sentences of two years imprisonment for the misuse of the police computer are not sentences against which any complaint can properly be brought.[12]The reason why the appeal against the four year sentence is brought is because of what the judge said in explaining why he imposed those sentences. He said:
"I accept of course the jury's verdict acquitting you of the rape of [R]; equally, however, I reject your assertions as to what happened on each of the three relevant occasions. I have no doubt at all that because of her occupation as a lap dancer you were encouraged to believe that she was a promising target for the only thing that you had in mind. Equally, I am quite sure that, as she said, you told her not to bother to make any complaint because nobody would believe the word of a stripper. Also, she was palpably honest in her description of the handcuffs that you produced and used to secure her wrists. It may not have been rape, but it fell little short of rape; she was at best grudgingly compliant. You used her, and you used your position as a police officer to get what you wanted. When she made it quite clear that she did not want any more to do with you, you continued to pester and harass her with phone calls, and you called uninvited and unwanted at her home, pestering her for sex."
The judge also referred to her evidence that the appellant had accessed pornography on her husband's computer.[13]Mr Fitton submits that those observations were entirely unexpected because the judge had never indicated to him during the course of mitigation that he had in mind to make such findings of fact. The observations were, he submitted, inconsistent with the jury's approach, having regard to the manner in which the trial took place and the issues which they had to decide.[14]In those circumstances in our judgment it was wrong of the judge to have dealt with the matter in that way. We can well understand that the appellant may feel a grievance that he has been dealt with more seriously than was justified, and on a mistaken and false basis. We take the view that it would be right to vary those sentences to ones of three years imprisonment. Accordingly, we quash the sentences of four years imprisonment on counts 4, 5 and 6, and substitute sentences of three years imprisonment. To that extent the appeal will be allowed. ________________________________