Attorney General's Reference No. 53 of 2011 [2011] EWCA Crim 2598

[2011] EWCA Crim 2598

Case No 2011/03658/A2

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Thursday 27 October 2011

Between

R E G I N ACrown

The Strand

London WC2

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

(Lord Judge)

MR JUSTICE BUTTERFIELD

and

MR JUSTICE HENRIQUES

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ATTORNEY GENERAL'S REFERENCE No. 53 of 2011

UNDER SECTION 36 OF

THE CRIMINAL JUSTICE ACT 1988

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- v -

Between

FARHAN AHMED

__________________

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Mr E Garnier QC (the Solicitor General) and Mr T Little appeared for Attorney General

Miss S Smaller appeared for Offender/Applicant

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J U D G M E N T

THE LORD CHIEF JUSTICE:

[1]On 12 May 2011, following an eight day trial in the Crown Court at Burnley before Mr Recorder Clarke QC and a jury, the offender, Farhan Ahmed, was convicted of four sexual offences. They were all part of one incident perpetrated on the same victim which lasted almost two hours. They were rape by penetration of the mouth, attempted vaginal rape, assault by digital penetration of the vagina, and rape by penetration of the mouth. Following conviction the offender was sentenced to detention for public protection. The minimum term specified was five years. Time spent in custody on remand was ordered to count against that five year term.

[2]The offender's applications for an extension of time (three weeks) and for leave to appeal against sentence have been referred to the full court by the Registrar. The appeal is against that part of the sentence that relates to detention for public protection. Although the assessment of dangerousness is not challenged, it is submitted on the offender's behalf that an extended sentence would have been the appropriate way in which to deal with the element of dangerousness.

[3]There is also before the court an application by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988 for leave to refer the sentence to this court on the ground that the specified minimum term of five years is unduly lenient. We grant leave.

[4]On behalf of the offender the response is that the five year term may be on the lenient side, but that it fell within the appropriate sentencing parameters for the offences committed by the offender.

[5]The victim of these unpleasant sexual crimes was a widow in her mid-sixties. Just after midnight on 28 October 2010 the offender, who was then 17 years old, was in a town in Lancashire looking for a woman with whom to have sexual intercourse. About the streets he found no one. He attempted to gain access to a number of properties until about 1.30am when he entered the victim's home. He did so by going through the back yard into the house. He was armed with a stick.

[6]The victim is a very slight lady, 4ft 11" tall. She was grieving for her son who had died eight months previously of leukaemia. She had cared for him in this very house. She heard a noise in her kitchen. It had been made by the offender. She went to see what it was. The offender went outside and then returned into the property. He had the stick in one hand and in the other he had a bread knife which he had taken from the victim's kitchen.

[7]The inference from the evidence is clear. The offender was determined to find a woman with whom to have sexual intercourse whether she consented or not. In the real world the possibility of consent (although this is what the offender argued at trial) in the circumstances of this case is utterly absurd. When he entered the house his intention was not, as with most burglars, to steal property, but to have sexual intercourse whether or not the victim he found in the house was willing.

[8]The offender ordered the victim to lock the door. She attempted to do so. He took the key from her and put it in his pocket. He waved the stick at her and said, "If you co-operate with me I won't hurt you". He then took hold of another knife. The victim had a cordless telephone in her hand and he removed it from her. He pushed her into the sitting room. He asked who else lived at the property and whether she had a boyfriend. She said that her husband had been dead for thirteen years and that she did not have a boyfriend. She pointed to the photograph of her dead son and said that he had died from leukaemia. The offender asked her a number of embarrassing sexual questions. He pulled his erect penis from his trousers, grabbed hold of the victim's head and pushed it down onto his penis. He said, "I'll look after you. I'll give you good sex. Suck my dick". He made the victim perform oral sex on him for one or two minutes. He held her head by the hair so that she could not move away.

[9]The offender asked the victim where the bed was. She said that it was upstairs. He still had the knives in his hand. He directed her upstairs and said, "If I find anyone I'll kill you". She said that she wanted to go to the lavatory. He let her do so, but he watched. He then moved away from her and was physically sick. That did not deter him. Still holding the knives, he told the victim to undress. He pushed her from behind onto the bed. He tried to put his penis into her vagina. He then said that he was drunk and so he could not "do it". He kissed her mouth and her right breast. On a number of occasions, but without success, he attempted to put his penis into her vagina. When he failed he penetrated her vagina with his fingers. She said that that was "very painful". He then ordered her to suck his penis. He held her head tightly and forced her to perform oral sex "like a piston movement". This continued for so long and with such forcefulness that she pleaded for a break because her jaw was hurting.

[10]Notwithstanding this further break and the opportunity to think again about what he was doing, the offender insisted that oral sex should resume. After a five minute break, during which he told the victim that he loved her, she was forced to continue the oral sex. Eventually he ejaculated into her mouth. As she opened her mouth the semen fell onto his pubic hair. He ordered her to wipe it off. When she got up from the bed she noticed that there was blood on her sheets, which she assumed had come from the violence perpetrated in the area of her vagina. In the result no vaginal injury was found. The blood came from a cut to her knee which she had sustained during the incident.

[11]The offender dressed. He ordered the victim, who was naked, to go downstairs and make him a drink. He drank it and gave her back one of her knives. As he left the victim asked for the return of the other knife. He gave it to her. After the ordeal she said that she felt "like a zombie".

[12]The offender was arrested on 30 October 2010 and interviewed on the following day. His initial response to questions was to answer "no comment". He then answered some questions about his movements that evening, but replied "No comment" when asked if he knew the victim or her address.

[13]At the trial a "no inference" direction was given because the offender's solicitor produced a contemporaneous witness statement asserting that the offender had given a full account to him before the interview, but that he had advised the offender not to answer questions because of the extent of pre-interview disclosure. The issue is not before us, but that decision may have been over-favourable to the offender.

[14]The offender was re-interviewed the following day, 1 November. This time he accepted that he had been into the victim's home. He said that he did not rape her; everything that had happened was with her consent; indeed, she had initiated the sexual activity between them; after it was over and before he left the house, she had invited him to return a week later.

[15]The offender's trial started on 3 May 2011. The victim gave evidence in court. She wished to face the offender. The offender gave evidence. It followed the terms of the account he had given to the police on 1 November: the victim had consented to all the sexual activity. On 12 May he was convicted on all four counts of the indictment. The jury had plainly rejected the offender's suggestion of consent which in his sentencing remarks the Recorder described as "ludicrous" and "preposterous".

[16]Subsequently the victim made an impact statement. It is a dignified and measured account of what must on any view have been an appalling ordeal. She describes various features of the incident and various events after the incident which added to her distress. She says:

"The anguish and torment this incident had left me with cannot be underestimated. This overshadowed the first Christmas I had ever spent with my grandson. I feel sad as this is time I will not get back. .... the following months greeted me with a rollercoaster of emotions. I try to detach myself from these emotions but sometimes I become tearful with no reason. The direct effect has been noises. Any noise hits me. Small noises especially as that were how the beginning of my nightmare started, with the noise from what I thought was my fridge. I still can't go into my kitchen if it is late at night. Even if I want a drink or need something out of there, I will go without rather than walk into the kitchen on my own. My house is not the same any more. I am not the same any more."

She speaks about the run up to the trial and the counselling that she was offered. It was pointed out that the offence happened when she was still grieving for the loss of her son.

[17]The offender was born in May 1993. He was 17 when the offence was committed and 18 when he was convicted and sentenced. He has no previous convictions. The court was supplied with a number of letters of support for him and describing his character. One from his mother is immensely supportive of him. She stands by him, notwithstanding the difficulty in which she must find herself.

[18]The pre-sentence report refers to a number of police reports on the offender which describe inappropriate sexual behaviour and unwelcome touching when he was younger. However, as the author of the pre-sentence report accepts, they were not at the more serious end of the scale. Having summarised that aspect of the offender's sexual misbehaviour at school, and bearing in mind that he has no previous convictions or cautions for any kind of offence, the author expresses concern about the claim that the offender's sexual activity was consensual which is justifiably regarded both as an attempt to explain his behaviour and to provide a shield to protect himself and his family from the seriousness of what he had done. It also suggests "a callous disregard for the victim and a complete lack of remorse". The pre-sentence report concludes:

".... I think there is a considerable likelihood that he will re-offend. More importantly, I think he falls within the dangerousness provisions as set out in sections 225 to 229 of the Criminal Justice Act 2003 in that I am of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences."

Neither the finding of dangerousness made by the Recorder on the examination of the facts of the trial which had recently concluded before him, nor the contents of the pre-sentence report, are challenged.

[19]Our attention has been drawn to a short report prepared by the young offender institution where the offender is currently detained. It refers to his immaturity. It is his immaturity coupled with his youth which form the basis of his counsel's submissions before us. Plainly age is a feature of this case. The offender is (and was when he committed these offences) a young man. There is some evidence of immaturity, although everything that occurred when the unfortunate victim was subjected to her dreadful ordeal is inconsistent with immaturity. In essence the argument is that an extended sentence would have been sufficient to meet the dangerousness posed by the offender. The Recorder is criticised for having failed to give sufficient attention to the extended sentence provisions before he reached the conclusion that detention for public protection was necessary.

[20]We shall assume that counsel's criticism is right. We have great reservations whether it is, in fact, right. The Recorder is very experienced. In reality he would not have overlooked all the dangerousness provisions before he came to his conclusion.

[21]Having made the assumption that the criticism is justified, it falls to us to consider whether or not the sentence imposed was wrong in principle. We have been properly reminded that the correct approach to a sentence of detention for public protection is that it should be approached as if it is the last but one weapon in the court's armoury to protect the public.

(S) 22, where the court made this observation:

"As we have emphasised, imprisonment for public protection is the last but one resort when dealing with a dangerous offender and, subject to the discretionary life sentence, is the most onerous of the protective provisions."

We have that principle clearly in mind. We have been shown an example of its recent application in R v Short

[2011] EWCA Crim 1527

. We have, therefore, applied that principle.

[22]When the Recorder came to pass sentence he had in mind all of the facts: the offender's age at the time when the offences were committed; the absence of previous convictions; and the references, including the advantage the offender had in the support of his family and in particular of his mother. He had read the pre-sentence report in relation to the danger that its author believed the offender represented. He thought carefully about the dangerousness provisions as set out in the Criminal Justice Act 2003. It is that observation that leads us to doubt that the Recorder overlooked the way in which the sentencing ladder should be ascended. He had in mind that over time and while in custody young people have the capacity to improve and mature so that they cease to represent a significant risk. He said that the submissions would have been better addressed had the offender acknowledged what he had done. We cannot help reminding ourselves, as the Recorder was at pains to remind himself, that the offender continues in total denial. In the light of his continuing refusal to do so, the Recorder was unable to give very much weight to this part of the submissions then made to him. He expressed himself in clear and unequivocal terms: there was a significant risk to members of the public of serious harm occasioned by the commission of further specified offences by the offender. Having expressed himself in that way, he identified the "many aggravating features" of the offence. He concluded that the danger represented by the offender necessitated a sentence of "imprisonment for public protection".

[23]We have reflected on all these features of the case. We have come to the conclusion that, notwithstanding the offender's relative youth, public protection requires that the sentence of the last but one resort should be imposed. We agree with the Recorder's view that detention for public protection was the required order. We give leave to the offender to appeal out of time. We do so conscious of the fact that the argument presented on his behalf has been carefully crafted and presented with great care and meticulous attention to detail by counsel on his behalf. We are grateful to her.

[24]We turn to the submissions of the Attorney General that the minimum term ordered by the judge was unduly lenient. Our attention was drawn to the decision of the court in Attorney General's Reference Nos 73, 75 and 03 of 2010 (R v Anigbugu and Others)

[2011] EWCA Crim 633

. The Recorder had been at pains to seek to find assistance in the decided cases. Unfortunately, he overlooked, and counsel appearing before him certainly overlooked, this decision. If the Recorder had had this decision in mind, we suspect that he may have taken a higher starting point than he did. Anigbugu and Others were cases of very similar factual situations to the present. The facts of two cases represented the ultimate nightmare for any woman asleep alone in her own home at night. The third case involved a serious sexual assault on a woman who was caring for a fragile, elderly man whose home was burgled. The court said:

"3. .... to be burgled and then subjected to the dreadful indignity of a violent sexual offence is to become the victim of a pitiless, wicked crime. .... these are pitiless, life-scarring, deliberately committed crimes .... of course every allowance should be made for such genuine mitigation as there may be (and often there will be none), there is no room in the sentencing process for mercy, save for an appropriate sentencing discount for those who plead guilty, face up to what they have done, and spare their victims the further ordeal of having to give evidence in a public court."

[25]The submission on behalf of the Attorney General is that in the end the Recorder failed to have those principles in mind. The submission on behalf of the offender is that the sentence fell within the appropriate parameters -- maybe at the bottom end of the appropriate scale, but not so far off the scale as to be unduly lenient.

[26]The serious features of this case are these. This was a premeditated, planned attack. The offender entered the victim's house as a trespasser, looking for sex with a woman, whether or not she consented. Having entered the house, the sexual attack to which she was subjected was sustained and involved a number of different forms of sexual indignity. She was alone and utterly vulnerable in her own home, threatened with a stick and then with two knives taken from her kitchen. She was attacked in more than one room and in her own bed. The ordeal lasted for over an hour and a half. There were breaks in the attack which might have led the offender to reflect for one brief moment on what he was doing and to bring it to an end. Instead, it went on and on until he ejaculated into the victim's mouth. The harm and the distress suffered by her need no further elaboration.

[27]Our conclusion can be briefly expressed. This was an unduly lenient sentence. Because of the offender's age we have, in accordance with ordinary sentencing principles, reflected on the lowest level of sentence which would not be unduly lenient. We have come to the conclusion that a twelve year sentence would have been appropriate. Accordingly, the specified minimum term in this case must be raised from five years to six years. ____________________________