Adcock, R v [2010] EWCA Crim 700

Case No 200906765/A3[2010] EWCA Crim 700
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday 5th March 2010
Strand
London, WC2A 2LL
B e f o r e:
MR JUSTICE GRIFFITH WILLIAMS
MR JUSTICE FOSKETT
Between
R E G I N ACrownv
Between
PETER ADCOCK
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr S Nichol appeared for Appellant
J U D G M E N T
[1]MR JUSTICE GRIFFITH WILLIAMS: On 28th September 2009, the day his case was listed for trial in the Crown Court at Manchester Minshull Street, Peter Adcock pleaded guilty to three offences (counts 6, 7 and 8) of sexual activity with a person with a mental disorder impeding choice. On 20th November 2009 he was sentenced to concurrent terms of 4 years, 4 years and 18 months' imprisonment respectively. Offences of sexual assault on a female (counts 1, 2 and 3) and assault by penetration (counts 4 and 5) were left on the file on the usual terms. He was required to comply with the notification to the police requirements in Part II of the Sexual Offences Act 2003, indefinitely. He appeals against the sentence of imprisonment by leave of the single judge.[2]The facts of the offending were as follows. The appellant's wife suffered from Huntingdon's disease and was a long time resident at a care home where he visited her on virtually a daily basis, but as she could not communicate with him, he frequently visited other residents at the home and gained a reputation as the "chocolate man" because he often gave residents After Eight mints.[3]The 57-year-old victim, BG, had been a resident at the home since 2000. She had suffered a severe stroke in 1999 which had left her with significant cognitive difficulties and unable to care for herself. She had been left with poor vision, little capacity for short-term memory, only patchy long-term memory. She was unable to care for her basic needs without prompting and was generally apathetic lacking in initiative and was incapable of even asking for a glass of water.[4]If she was left alone she would drift off to sleep and she could not hold full conversations with people but restricted her answers to "yes" and "no". Over her years at the home BG had displayed both sexual and non sexual dis-inhibited behaviour, although there is no evidence that the appellant knew of this. Her behaviour had been managed through a behavioural management programme but she was not someone who was able to decide whether or not to take part in a physical relationship with someone.[5]On 18th August 2008 the appellant visited his wife at the home. He was seen by two care assistants sitting with BG in the residents' lounge. It was noticed that her dress was up over her knees and he was rubbing her vagina through her underwear. A few minutes later he was seen to be holding her hand and rubbing her right breast. The two care assistants noted that both the appellant and BG appeared to be smiling. They reported the matter to the manager, who informed the police and on 20th August 2008 the appellant was arrested.[6]When he was interviewed under caution, he confirmed the observations of the care assistant. He added that such activity with BG at first occurred a few weeks earlier, that he had rubbed her breasts on three or four occasions and had inserted his finger into her vagina twice. On each occasion he stated that he held his hand and put it against her breast or vagina thus initiating the activity. He insisted that she had her own mind and was capable of refusing anything if she wanted to.[7]In his written advice, Mr Nichol, who acted for the appellant in the Crown Court, set out the history of negotiations which took place on 28th September 2009 and which led to the indictment being amended to add counts 6, 7 and 8, to the appellant pleading guilty and to the basis of plea.[8]The basis of plea was in these terms:
"Peter Adcock pleads guilty to three counts of sexual activity with a mentally disordered person contrary to section 30(1) of the Sexual Offences Act 2003 on the following basis: 1. That [BG] was a resident at Marple Dale Hall nursing home and, that he had known her for years prior to the incidents in June-August 2008. 2. That he fondled her breast on 3 or 4 occasions. 3. That he rubbed her vagina and inserted his finger in it on two occasions. 4. On each of the above occasions [BG] initiated the contact by guiding the defendant's hand and encouraged him to continue."
[9]While the prosecution was not prepared to accept paragraph (d) of that basis of plea, the judge (His Honour Smith) said that if the appellant was to plead on that basis the factual issues in paragraph (d) could not be resolved in a Newton hearing and he would be constrained to sentence on that basis. The appellant then pleaded guilty and the case was adjourned for reports.[10]We were told that although His Honour Judge Smith had reserved the case to himself, it was listed on 20th November 2009 before His Honour Judge Hull who was told by counsel for the prosecution of the history of proceedings before His Honour Judge Smith.[11]We consider it unnecessary to investigate the circumstances in which a case reserved to one judge was listed before another judge as the facts of this case demonstrate that practice should be avoided whenever possible.[12]Passing sentence His Honour

Judge Hull said:

"The case that you put forward to the police and the case which you pursued, albeit upon a diminishing basis, in these proceedings was that she led you on, that in particular she took your hand and put it where you believed she wanted you to put it and, whilst there clearly is material in the case (the nursing records and the like), which indicates that she would have been capable of executing that physical act, there is also an abundance of evidence to the effect she did not anything like the requisite mental capacity to engage in any form of sexual relationship with you and you would have known that and it is because of that that really it not open to you to suggest that you could have regarded anything which she did as leading you on. You knew that she extremely vulnerable and that she was, if I can put it this way, off limits and it follows from that, that the court inevitably regard these offences by you as involving significant depravity on your part."
Those sentencing remarks are a odds with paragraph d of the basis of plea and with the approach to sentence which His Honour Judge Smith had indicated. They are also seemingly at odds with the observations and experiences at the home of the victim's sexually dis inhibited behaviour.[13]Returning to the sentencing remarks

the judge said:

"In my judgment, the fact of these offences means that you must regard as posing a significant, if not high, risk of causing serious harm in the future to vulnerable females and it follows from that, that you must be dealt with today by the imposition of a significant determinate custodial sentence."
We are concerned by those observations. The appellant was to be sentenced for his offending. Any future risk should have been addressed by provisions such as a sentence for public protection, an extended sentence or a sexual offences protection order, if available. We will return to this.[14]The Definitive Guideline on offences pursuant to section 30(1) of the Sexual Offences Act 2003, provides a sentencing range of 8 to 13 years, with a starting point of 10 years' imprisonment, for one offence of penetration, with no aggravating or mitigating factors and a sentencing range of 36 weeks to 3 years, with a starting point of 15 months custody when the type of activity is contact with the naked genitalia of the victim by the offender using part of his body other than his genitalia.[15]Section 172 of the Criminal Justice Act 2003 requires a court to have regard to Guidelines, which are relevant to offender's case and section 174(2) of the Act, requires a court to give reasons for deciding on a sentence of a different kind or outside a particular range indicated by the guidelines.[16]Mr Nichol told us that there was mention of the Guidelines during his submissions in mitigation but the sentencing judge said nothing about them in his sentencing remarks and so we do not know why he decided to depart from the Guidelines. Furthermore, he said nothing of his starting point, or of the amount of discount that he gave for appellant's guilty pleas. It is unfortunate that this court does not have the benefit of that assistance. We have considered sentence afresh and for the reasons which follow, have determined there must be a departure from the relevant guideline.[17]Section 143(1) of the Criminal Justice Act 2003 provides that the seriousness of an offence should be determined by two main parameters: the culpability of the offender and the harm caused by the offence including the impact on the victim. Further, one of the general principles applicable to sentencing for sexual offences is that found in paragraph 1.3 of the Definitive Guideline on the Sexual Offences Act 2003. It reads:
"The guideline has been formulated on the basis of sentencing framework that is currently in force. For these types of offences more than many of others the sentencing process must allow for flexibility and variability. The suggested starting points and sentencing ranges contained in the offence guidelines are not rigid and movement within and between ranges will be dependent upon the circumstances and individual cases, and in particular the aggravating and mitigating factors that are present."
[18]We return to the basis of plea because the sentence had to reflect it. On that basis of plea there is force in the submission made by Mr Nichol that this was a case of ostensible consent, where the defendant's criminality arose out of his lack of judgment in acquiescing to the victim's request. He submitted there was no evidence that the defendant had planned the activity, nor that the victim had suffered mentally or physically as a result of that activity. The care home had in earlier years allowed the victim to behave in this way with others, and the records made it plain that she made sexual demands from time to time of those around her.[19]The appellant was 62 years old at the time of the offences. He was a man of previous good character. There were many witnesses (18 in all) who wrote of his devotion to his wife and to his two daughters, whose childhood was blighted by their mother's condition, of his exemplary employment record and of his standing in the community. The judge concluded in the passage from his sentencing remarks which we cited earlier that the facts of these offences mean that the appellant must be regarded as posing a significant, if not high risk of causing serious harm in the future to vulnerable victims. If that was his conclusion then, as the offences were specified offences, the dangerous offender provisions of the Criminal Justice Act 2003 should have been considered. That said, in the judgment of this court, that was not a conclusion which was justified on the evidence. Any risk of reoffending could have been addressed by measures such as a sexual offences prevention order.[20]Nothing we say in this judgment should be taken as in any way diminishing the gravity of the appellant's offending. He knew BG was vulnerable and he committed more than the one offence. But we have concluded that a sentence of 4 years' imprisonment was manifestly excessive. In the judgment of this court, following a trial, the appropriate sentence would have been 4 years. Although the appellant pleaded guilty when the case was listed for trial, it was only then that the prosecution abandoned its case that the offending was non consensual and added by amendment as we stated earlier, counts 6, 7 and 8 to which the appellant then pleaded guilty, on the all important basis of plea, which we emphasise lies at the heart of our decision on sentence in this case.[21]We consider that a 25 per cent discount would have been appropriate for the change of plea. In the result, we quash the sentences on counts 6, 7 and 8, and substitute for them sentences of 3 years, 3 years and 15 months' imprisonment respectively. To that extent and that extent alone the appeal is allowed.

MR JUSTICE GRIFFITH WILLIAMS: Mr Nichol, may we thank you for your assistance.

[23]MR NICHOL: Thank you my Lord.