Attorney General's Reference No 367 of 2014 [2015] EWCA Crim 257

[2015] EWCA Crim 257Case No 201405120/C1
IN THE COURTS MARTIAL APPEAL COURT
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 6th February 2015
Strand
London, WC2A 2LL
B e f o r e:
PRESIDENT OF THE QUEEN'S BENCH DIVISION
(SIR BRIAN LEVESON)
MR JUSTICE ANDREW SMITH
MR JUSTICE PHILLIPS
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.273 OF THE ARMED FORCES ACT 2003
ATTORNEY-GENERAL'S REFERENCE NO 367 OF 2014
Computer Aided Transcript of the Stenograph Notes of
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Mr O Glasgow appeared on behalf of the Attorney General
Mr C Hewertson appeared on behalf of the Offender
J U D G M E N T
[1]PRESIDENT OF THE QUEEN'S BENCH DIVISION: On 4th September 2014 in the Military Court Centre at Portsmouth, before the Assistant Judge Advocate General, Judge Hill, this offender, who is 28 years of age, was convicted of two charges of assault by penetration. On 9th October she was sentenced to terms of 1 month and 8 months' detention in the military detention centre, those sentences to be served consecutively, making 9 months in all. In addition, she was required to comply with the provisions of Part 2 of the Sexual Offences Act 2003 in relation to notification for some 10 years and included in the relevant list by the Independent Safe Guarding Authority pursuant to the Safeguarding Vulnerable Groups Act 2006. Her Majesty's Solicitor-General now refers the sentence imposed upon the offender to this court, pursuant to provisions of section 273 of the Armed Forces Act 2003 on the grounds that he contends that it is unduly lenient. We grant leave.[2]The facts can be summarised in this way. The offender and the victim, M, were both in the Royal Navy. The offender was an Acting Leading Hand the victim an Able Rating. Although the offender was in fact senior in rank to the victim, both participated in the Leading Rates Leadership Course, and all participants were treated as being on equal footing irrespective of rank.[3]They met for the first time on the course and, whilst both openly gay, neither had expressed any romantic or sexual interest in the other. The offender was in a long-term relationship. The victim was married although in the process of divorcing her partner and was, in consequence, vulnerable.[4]The three week course concluded on 13th March 2014 and passing out parade was due to take place on the following day. The participants on the course went on shore leave that evening to celebrate. The offender and the victim consumed alcohol and both were intoxicated. The group they were with returned to the accommodation block in HMS Collingwood at about 2.00 am. The offender asked the victim if she was "coming for a cuddle" but the victim declined, saying:
"No, I'm going to bed. Goodnight."
[5]A few minutes later, without permission, the offender entered the victim's room. The door was then shut but not locked because she wished to be awoken for the purpose of attending the passing out parade. As the door was opened the victim awoke and asked what the offender was doing and was told by her, she had "come for that cuddle". The victim said:
"I don't think that's a good idea"
. But she accepted in her evidence that she acquiesced to her being there and may have lifted the duvet cover to provide space for her to get into bed with her. The victim did not think it was normal but did not feel threatened because the offender was drunk and they were friends. She did not believe that there was any sexual intent. The victim fell asleep but was awoken when the offender tried to touch her breasts. The victim clasped her arms to her sides in order to prevent this whereupon the offender put her hand inside the victim's underwear and touched her vagina. Again on this occasion, the victim tensed her legs to prevent any further assault but the offender persisted and penetrated her vagina. The victim immediately grabbed the offender's forearm and pushed the offender's hand away and said:
"I think you should stop", and "
You need to stop. No". As soon as this happened the offender stopped.[6]The victim then told her:
"It's not going to happen. You should go."
She said to the offender: "You should go back to your own room" but the offender did not leave. Rather than have an argument the victim moved away from the offender and went back to sleep, believing the offender was suitably chastised and would do nothing more.[7]Soon after, however, there was a more serious assault. The victim woke to find the offender had locked her leg around one of the victim's legs and was penetrating her vagina. This was causing her pain. The victim stated that she was "really scared" and shocked. The offender's fingers were moving in and out. The victim said:
"You've got a girlfriend" to try to shock the offender into stopping. When the offender carried on the victim said: "
I think you should stop. Just stop". She managed to free her leg and the offender stopped the assault and apologised. The offender remained in the victim's bed until the two of them awoke at 6.00 am.[8]Prior to the passing out parade, the offender repeatedly apologised for what she had done and sent a text message in the following terms:
"I'm honest, so sorry ... I'm not drinking any more. I can't understand how I got like that. You must proper hate me."
The victim made an immediate complaint.[9]The offender was interviewed by service police, when she said that the sexual activity between her and the victim had been consensual. She denied that the victim ever asked to stop or to leave the room. Furthermore she said there had been but one incident of penetration not two. She maintained that account and was convicted after a full trial.[10]The offender had one previous irrelevant conviction for driving with excess alcohol and before the sentencing Tribunal, a pre-sentence report was available. To the writer of the report, the offender refused to accept the gravity of what she had done and described the assaults as a drunken fumble.[11]She did however express regret. The author concluded that the offender presented a low risk of re-offending generally and provided a number alternative disposals and considered the question of the offender's dismissal from the Navy.[12]The Court Martial had before it a statement from the victim which described the impact of the offences upon her. She explained that when she subsequently returned to her ship she found it difficult to sleep on board as her cabin door has to be left unlocked, because she shares it with five other women. Furthermore, at weekends when she was on duty as a First Aider, her cabin also had to remain unlocked in case she needed to attend an incident. She found attending the Court Martial very difficult and had since been diagnosed with an adjustment disorder. She has struggled to form and maintain new relationships and has found it hard to trust people intimately. She is worried about the chance of having to meet the offender.[13]When passing sentence the Assistant Judge Advocate General observed that had not both the offender and the victim been in drink neither of them would have been in this situation and none of this would have happened. He went on to observe that the offender knew and knew well that by doing what she was doing she was in the territory of what was firmly forbidden. He said that her behaviour had gone "way beyond the nature of trying it on".[14]He took account of her age, her lack of previous convictions and her extremely good service record. He observed that the offender's demeanour throughout the trial and in particular from the point when the verdict was delivered was such that genuine remorse was in evidence even though she had not pleaded guilty. He said:
"It is not a case for instance you are in any sense a cold blooded sexual predator who has been prowling corridors or dormitories looking for sleeping victims. It simply is not that sort of case. We think therefore that the difficult issue we have to resolve is whether we leave you in a position to continue with a service career after you have served a sentence of custody. We think that we can do justice in the case by preserving your position in the Navy. The sentence of the Court will be one of nine months' detention in total."
[15]The explanation for this last remark is that the presumption is that in cases of detention in excess of 12 months, the offender will be discharged, whereas there is no such presumption in cases of under 12 months' detention. In addition, the Court-Martial had clearly considered dismissal as an option.[16]These remarks were the subject of some further elaboration in a letter written by the Assistant Judge Advocate General to this court following the Reference. The letter says this:
"In a military case Dismissal is of course punishment. Where Dismissal is not awarded as a punishment, (as in this case), a defendant may still be administratively discharged from the Service, (for employment related reasons). Where a defendant is sentenced to Detention for twelve months or more but not Dismissed the defendant's Commanding Officer must consider whether to discharge the defendant administratively on completion of his sentence, the presumption for discharge unless there are clear Service reasons for retention. In determining sentence in this case the Court Martial had this information in mind."
[17]It may be that the Court Martial approached this case on the basis that the first question to decide was whether it was appropriate to permit the offender to be in a position to retain her service within The Navy or perhaps, to put the matter more appropriately, to be in a better position to argue that her services should be retained. If that was the approach of the Court Martial, we take the view that it was wrong. The first question which the Court Martial should address is the appropriate sentence for the offending with which it has to deal. The employment consequences follow (and may be of greater significance in certain cases which are inimal to military discipline); those consequences, however, should not drive the determination of sentence.[18]In this court Mr Glasgow, on behalf of the Solicitor-General, argues that the case fell within category 3B of the guideline issued by the Sentencing Council in relation to sexual offences. There is no issue as to that categorisation which is the lowest in the range of this serious offence. The starting point, therefore, was 2 years custody, with a category range from a high level community order to 4 years in custody.[19]Mr Glasgow submits that the following aggravating features were present. First, the offender entered the victim's room uninvited and, on the basis that she did so intending to indulge in sexual activity notwithstanding the absence of any relationship and indeed the refusal initially to admit the victim, she behaved in a premeditated and predatory fashion. A further aggravating feature was said to be the fact the offender targeted a vulnerable victim who was intoxicated and asleep in her room at night whilst she herself was intoxicated. There were repeated assaults and the victim had been deeply affected. Mr Glasgow recognised that the offender had no relevant previous convictions with an exemplary service record and had expressed remorse.[20]Mr Hewertson, for the offender, challenged each of these aggravating features save in relation to drink. He referred to the very short time that had elapsed between the offender entering the room and being allowed into the victim's bed and spoke of the repeated assaults as a continuum of one offending. He emphasised the mitigating features to which we have referred.[21]This was the state of the case when it came before court, differently constituted, on 11th December 2014. On that occasion Mr Glasgow informed the court that a decision had been taken that the offender's service with The Navy should be terminated but that this decision had not been communicated with the offender with the result that Mr Hewertson had had no opportunity to take instructions or to review the position in the light of that information.[22]In addition, the court had before it medical evidence from a community nurse, which spoke of a deterioration in the offender's psychiatrist condition, to such extent that she was currently at high risk of suicidal ideation. In the light of those facts the hearing was adjourned not merely so that instructions could be taken in relation to discharge but also so that a psychiatric report could be put before the court. Needless to say, evidence which is adverse to the offender would not be considered if not before the Court Martial. Where however it provides more information which may assist the offender in the exercise of its discretion, the court can properly admit it. We do admit this further evidence and the further exchange of correspondence that has dealt with the offender's employment position.[23]Before dealing with these additional features in the case, it is right that we say something about the facts and circumstances. In our judgment, this was a serious incident. Putting the aggravating features into the facts, M declined what was described as a "cuddle" which in any event would not have involved sexual activity and said emphatically that she was going to bed. Notwithstanding the offender entered the victim's room while she was asleep and as she awoke told she her she had come for "that cuddle" whereupon she was again rejected in terms it was not a good idea. It is clear the offender persisted and that M, affected by drink, believing her to be a friend and not feeling threatened allowed her into bed. To assert as the Assistant Judge Advocate General did, that neither would have been in that situation if they had not both in drink is to ascribe responsibility to M where she had none at all. She had not invited the offender into her room, she had twice rejected her advances but had relented as a consequence of persistence. She was then assaulted not once but twice. These were not mere fumbles but deliberate assaults. After the first occasion the victim told her to stop and to go back to her room. The offender remained and persisted and then committed a further assault.[24]In our judgment, whether Mr Glasgow, on behalf of the Solicitor-General, is correct to describe her behaviour as verging on the predatory albeit arising out of drink, it is undeniable that it was not merely "on the spur of the moment" and nothing akin to "fumbling". It took the form of escalating incidents.[25]As to the mitigation, we accept her prior good character and her exemplary service record although, as the sentencing guideline makes clear, these features do not carry great weight by way of reduction of sentence. As for her remorse, it must be underlined that she pleaded not guilty, asserting a positive case that there was but one incident which was consensual. It is clear from the correspondence that we have seen that she continues to maintain this. She did however express concern about the impact on M immediately following the incident but she had both caused it to her and further contributed to it by her determination to contest the prosecution (as, of course, she was entitled to do).[26]We now turn to the information that has come to the court since the court-martial. The first is that a decision has been taken to the effect that the offender's retention would be detrimental to the service. The Commodore responsible for the decision making has written:
"a. The RN has a duty to provide a safe environment to all its personnel, which would be compromised by retention of an individual who has committed such serious offences against another Service person in Service accommodation. Any risk of repeat, however low, is unacceptable. She could not be required to share accommodation with others, which would preclude sea-service and accommodation in shore establishment. b. Her career management restrictions mean she is limited in her employability, furthermore she cannot be allowed to undertake supervisory roles or positions of trust, particularly for impressionable youngsters, many of whom serve in the RN. The staff effort that would be required to manage her and the resulting burden on the Commanding Officer, Careers Managers and others to monitor restrictions is unacceptable."
[27]Speaking for ourselves, we entirely understand those sentiments and although what is effectively an appeal against the decision has been lodged by the offender, Mr Hewertson has frankly recognised that it is more in hope than in realistic expectation that such an appeal would succeed. We for our part consider the reasoning of the Commodore to be entirely clear and effectively unanswerable, such that we considered whether we should order dismissal as a penalty of the court.[28]In that regard, we note that the Guidance on Sentencing in the Court Martial (Version 4) speaks of dismissal for serious sexual offences being ‘almost inevitable apart from in the most exceptional cases’ and underlines that ‘minor sexual assaults are more serious in a Service context than in civilian life because they can cause resentment and undermine unit cohesion’. We entirely endorse these conclusions and see no reason why they do not apply to this case. In the event, however, recognising that there are different consequences to dismissal by order and administrative discharge and having regard to the deference to which the military Court Martial is entitled from this court, we have declined to order dismissal but leave the matter to the Navy.[29]That leaves the medical position. The psychiatric evidence now before the court makes it clear that the offender has a long history of anxiety symptoms dating back to childhood, partially due to a very disturbed and abusive upbringing. The psychiatrist however concluded that she was constitutionally prone to anxiety and had received psychiatric care previously although this had ceased since she had become an adult. She dealt with her remaining symptoms self medicating with alcohol.[30]The psychiatric, Dr Craig Anderson, concludes:
"I would currently diagnose her with mixed anxiety and depression as defined in ICD-10 as F41.2. There is a significant risk of suicide and this is reflected in her current treatment plan. [The offender] is not currently fit for work nor active service. If her custodial sentence is extended her mental health is likely to deteriorate further. If she transferred to a civilian prison I would recommend she that she is placed in the hospital wing and remains under psychiatric supervision. She should continue with antidepressant medication for the foreseeable feature."
[31]That view entirely endorses the evidence that was available to the court on the last occasion, not merely from the community mental health specialist but also from a councillor who embarked on therapy with the offender in relation to her alcohol misuse and the impact of damaging childhood experiences.[32]In those circumstances, given the link identified by a psychiatrist between the offender's offending and her mental condition, the additional mitigating factor of a mental disorder, particularly where linked to the commission of the offence is available. In those circumstances, this court, as the Court Martial, must be entitled to take into account that condition by way of mitigation or (in the case of a Reference by the Solicitor-General as a potentially powerful and relevant circumstance) to put into balance when considering the exercise of discretion: see in relation to the responsibilities of the court in that regard R v Hall [2013] 2 Cr App R(S) 68, at para 14.[33]Furthermore, it is beyond argument that in relation to short sentences, or sentences where a non-custodial sentence may be replaced by a custodial sentence, the principal of double jeopardy remains available to the offender. This sets out the court's recognition of the offender's anxiety and trauma at being re-sentenced particularly where the end of the sentence is within the immediate future. We are told that this offender would be due for release in about 4 weeks if this court does not exercise its discretion to increase it.[34]We have no doubt that the sentence imposed by the Court Martial was indeed unduly lenient. In the normal course, we would not have hesitated to increase it. However, the circumstances of the offender's continued mental ill-health and the requirement to pay regard to double jeopardy principles, have allowed us exceptionally to conclude that it is unnecessary to exercise our discretion in favour of the Solicitor-General's submissions.[35]In those circumstances, although leave is granted as we have said, this Reference fails.