Fruen & Anor, R v (Rev 1) [2016] EWCA Crim 561

[2016] EWCA Crim 561Case No 201600957 A3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT LUTON AND CROWN COURT AT LIVERPOOL
T20150475; T20157479; T20157480
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 17/05/2016
Before
LORD JUSTICE TREACYMR JUSTICE DOVETHE RECORDER OF LONDON HHJ HILLIARD QC
Between
RCrownLionel Rae FruenDefendantDSDefendantR- v -Lionel Rae Fruen and DS
(Transcript of the Handed Down Judgment.Copies of this transcript are available from:WordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7414 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
S. Heptonstall (instructed by CPS Appeals Unit) for CrownS. Weidmann (Solicitor advocate instructed by Registrar of Criminal Appeals) for FruenD. Watson (instructed by Registrar of Criminal Appeals) for DSHearing Hearing date: 5th May 2016
Judgment As Approved by the Court

Introduction

[1]These cases involve a consideration of section 236A of the Criminal Justice Act 2003 (CJA 2003). This section was introduced into the CJA 2003 by section 6 and schedule 1 of the Criminal Justice and Courts Act 2015 which also inserted section 244A which governs release on licence of prisoners serving a sentence under section 236A. Section 236A introduces a new form of custodial sentence described in the heading as “Special custodial sentence for certain offenders of particular concern”. The section came into force on 13th April 2015. It applies to sentences imposed on or after that date, irrespective of whether the offence was committed before or after the section came into force. The section applies to someone convicted of an offence listed in schedule 18A to the Act, who was(a) aged 18 or over when the offence was committed and(b) is not sentenced to life imprisonment or an extended sentence under section 226A.[2]Schedule 18A contains four types of offence: i) Certain terrorism offences; ii) Sexual offences, namely offences under section 5 (rape of a child under 13) or section 6 (assault of child under 13 by penetration) of the Sexual Offences Act 2003 (SOA 2003); iii) Inchoate offences; and iv) Abolished offences.[3]Abolished offences are relevant in these appeals and are defined at paragraph 23 of schedule 18A as:
“An offence that – (a) was abolished before the coming into force of section 236A, and (b) if committed on the day on which the offender was convicted of the offence, would have constituted an offence specified in the preceding paragraphs of this Schedule.” (a) was abolished before the coming into force of section 236A, and (b) if committed on the day on which the offender was convicted of the offence, would have constituted an offence specified in the preceding paragraphs of this Schedule.”
[4]It is common ground that “abolished” means the same thing as repealed. Accordingly, historic sexual offences under the Sexual Offences Act 1956 which are the equivalent of an offence pursuant to section 5 or 6 of the SOA 2003 by involving penetration of the victim will be caught by this provision where sentencing takes place on or after 13th April 2015 and the offender was aged 18 or over at the time of the offence. The most common offences under the 1956 Act are likely to be indecent assault on a woman (section 14) and indecent assault on a man (section 15), but there are a number of other offences under that Act including rape (section 1), sexual intercourse with a girl under 13 (section 5), and buggery (section 12) which might nowadays be charged as offences contrary to sections 5 or 6 of the SOA 2003.[5]Section 236A provides: 236A.— Special custodial sentence for certain offenders of particular concern(1) Subsection (2) applies where— (a) a person is convicted of an offence listed in Schedule 18A (whether the offence was committed before or after this section comes into force), (b) the person was aged 18 or over when the offence was committed, and (c) the court does not impose one of the following for the offence— (i) a sentence of imprisonment for life, or (ii) an extended sentence under section 226A.(2) If the court imposes a sentence of imprisonment for the offence, the term of the sentence must be equal to the aggregate of— (a) the appropriate custodial term, and (b) a further period of 1 year for which the offender is to be subject to a licence.(3) The “appropriate custodial term” is the term that, in the opinion of the court, ensures that the sentence is appropriate.(4) The term of a sentence of imprisonment imposed under this section for an offence must not exceed the term that, at the time the offence was committed, was the maximum term permitted for the offence.(5) The references in subsections (1)(c) and (2) to a sentence imposed for the offence include a sentence imposed for the offence and one or more offences associated with it.(6) The Secretary of State may by order amend Schedule 18A by— (a) adding offences, or (b) varying or omitting offences listed in the Schedule.(7) An order under subsection (6) may, in particular, make provision that applies in relation to the sentencing of a person for an offence committed before the provision comes into force.” (a) a person is convicted of an offence listed in Schedule 18A (whether the offence was committed before or after this section comes into force), (b) the person was aged 18 or over when the offence was committed, and (c) the court does not impose one of the following for the offence— (i) a sentence of imprisonment for life, or (ii) an extended sentence under section 226A. (a) the appropriate custodial term, and (b) a further period of 1 year for which the offender is to be subject to a licence. (a) adding offences, or (b) varying or omitting offences listed in the Schedule.[6]Assuming that the pre-conditions contained in sub-section (1) apply, then sub-section (2) requires the court to impose a sentence of imprisonment equal to the aggregate of the appropriate custodial term and a further period of 1 year for which the offender is to be subject to a licence. Accordingly, where for a schedule 18A offence the court has not sentenced the offender to life imprisonment or an extended sentence under section 226A, it must pass a sentence under 236A. Passing an ordinary determinate sentence for a qualifying offence is no longer an option. In this respect the court in Fruen, whose case is considered below, fell into error. The further 1 year period of licence required by section 236A(2)(b) is a period of licence over and above the period of licence which would have applied had the offender been sentenced to a determinate sentence of imprisonment. For example, an offender sentenced to 6 years’ imprisonment by way of an ordinary determinate sentence will be released on licence at the half-way stage and, by reason of section 249 CJA 2003, will remain on licence until the end of the 6 year term. In the case of an offender sentenced under section 236A, the court is required by section 236A(2) to add to the “appropriate custodial term”, namely 6 years, a further 1 year period for which the offender is to be subject to a licence. So, if that offender is released after 3 years, he will be on licence of 3 years in the ordinary way plus a further year.[7]Section 244A makes particular provision for release on licence of those serving sentences under section 236A. Unlike prisoners serving an ordinary determinate term, section 236A prisoners are not automatically released at the halfway stage. They cannot be released until the Parole Board has considered the matter and (section 244A(4)(b)) is satisfied that it is not necessary for the protection of the public that the offender should be detained in custody. If the Parole Board does not direct a prisoner’s release during the period of the appropriate custodial term, the prisoner must be released at the end of that term.[8]Those provisions clearly raise the possibility that some offenders sentenced under section 236A may not be released until the expiry of the custodial term. But for the provisions of section 236A such offenders would be released into the community at the end of the custodial period, having failed on public safety grounds to satisfy the Parole Board that they could properly be released. Such release would be unconditional and without being subject to any form of licence.[9]It is clear to us that the purpose of the new legislation was to ensure that such persons were subject to licence for a period after release even though, by definition, they had not been found to be dangerous by the sentencing judge. The effect, therefore, is not dissimilar to a modified form of extended sentence imposed under section 226A, although one important point of difference is that the case must be considered by the Parole Board once the offender under section 236A has served half rather than two thirds of the custodial term.[10]The approach to fixing the appropriate custodial term in these cases will be governed in the usual way by application of the relevant sentencing guideline. Where sexual offending is historic or non-recent the principles out at annex B of the Sentencing Council’s guidelines apply, derived as they are from R v H & ors [2012] 2 Cr App R (S) 21. Briefly put, the level of sentencing is to be guided by use of the applicable guideline for the equivalent modern offence but limited to the maximum sentence available at the time of its commission. Where an historical offence such as indecent assault does not plead the fact of penetration in the particulars there must either have been an admission of penetration by the defendant to the court or a finding by the judge that penetration had taken place in order for the offence to come within the ambit of sections 5 or 6 of the SOA 2003.[11]Section 236A(4) reinforces the guideline approach that a sentence of imprisonment for an offence under the section must not exceed the maximum term available at the time the offence was committed. This may have the effect that the sentence for a very old indecent assault offence committed at a time when the maximum was 2 years will, by reason of section 236A(2), be limited to a maximum of a custodial term of 1 year plus the further 1 year additional licence period. Such a result would not inhibit the court in an appropriate case from passing consecutive sentences as discussed below.

Community orders and suspended sentences

[12]Before we turn to certain matters relating to the imposition of section 236A sentences, we wish to comment on two situations which might arise where a schedule 18A offence has been committed. Firstly, section 236A does not confine the court to imposing a custodial sentence (life/extended sentence/section 236A sentence) whenever a schedule 18A offence is committed. In particular, it does not prevent the court from passing a non-custodial sentence such as a community order. Whilst most cases involving or tantamount to an offence contrary to section 5 or 6 of SOA 2003 will require a significant custodial sentence, there may be exceptional cases where, for example, a lengthy community order with a requirement of participation in a sex offender treatment programme may be the most appropriate form of sentence. Where such exceptional cases arise, section 236A does not preclude such a course being taken.[13]A second issue relates to suspended sentences. Since a suspended sentence is treated as a sentence of imprisonment by section 189(1) CJA 2003, in theory there appears to be no barrier to a section 236A sentence being suspended. In practical terms, however, such a result is counter-intuitive given the terms of section 236A. Moreover, a variety of practical complications would arise from implementation (and also possible later breach), and render making such an order wholly undesirable. Courts should not suspend a sentence under section 236A. Ordinarily the court will be considering an immediate custodial sentence: in the unusual event that the court might have considered suspending the sentence, it should consider making a community order instead.

Single offences

[14]We next consider the structure of sentencing under section 236A. Where a single such offence is being dealt with, there is no problem. The court identifies the appropriate custodial term and adds to it a further year’s period of licence. The court will pronounce the sentence, for example, as a single sentence of, say, 7 years, comprising a 6 year custodial term plus a further 1 year period of licence. Sentencers will already be familiar with this type of composite single sentence, representing two different elements, from passing section 226A extended sentences. The concept is the same.[15]Obviously the court will take care not to exceed the maximum sentence for any individual count. In doing so it must take note of the one year licence extension which forms part of the section 236A sentence. Accordingly, a court which might previously have been minded to impose a maximum 10 year sentence for an historic indecent assault will, in sentencing under section 236A, need to respect that maximum by passing a 10 year sentence comprising a 9 year custodial term and a 1 year further extension period.

Multiple offences – concurrent sentences

[16]Where the court is sentencing for multiple offences, the picture needs further analysis. Where the court is passing concurrent sentences for multiple offences including section 236A offences, there should not be any particular difficulty.[17]Concurrent sentencing may involve counts involving ordinary determinate terms and section 236A sentences. No difficulty arises from those types of sentence running concurrently alongside one another. Where the judge proposes to sentence concurrently on a number of section 236A counts no problem arises as to the further period of licence because in each case that further period of one year attached to each count (as it must be), will run concurrently. The issue discussed below in relation to consecutive section 236A terms does not arise.[18]In terms of release on licence where concurrent terms are imposed, section 244A(2) as already stated involves consideration of the case by the Parole Board. Section 244A(6) provides that, in the case of concurrent sentences, section 263(2) CJA 2003 applies. In effect, in relation to concurrent terms, an offender will not be eligible for release until the relevant portion of the longest of the concurrent terms has been served.

Multiple offences – consecutive sentences

[19]We next turn to the situation where consecutive sentences including section 236A offences are to be passed. If, as in the case of DS below, there is a combination of ordinary determinate terms and section 236A sentences to be passed, no particular problem arises if the section 236A sentences are to be passed consecutively to the other counts. In the case of DS, the judge passed an overall term of 5 years’ imprisonment in relation to the first victim, and then in relation to the second victim passed a series of internally concurrent sentences totalling 9 years, some of which were clearly intended to fall within section 236A, and ordered them to run consecutively to the 5 year term. In relation to release, section 244A(6) provides that reference to the Parole Board for consideration of release in the case of consecutive sentences involving section 236A offences is to be determined by section 264(2). This, as in other cases involving consecutive terms, provides through section 264(6) a mechanism for determining a release date where section 236A offences are involved.[20]However, a further and more difficult issue arises in the context of consecutive sentences. There is in principle no reason why a court should not be permitted to impose consecutive section 236A sentences if it considers it appropriate. The situation might well arise where an offender has committed section 236A sexual offences against different victims. The court would be fully entitled so to sentence in accordance with the totality guideline. Although section 236A(5) refers to a sentence of imprisonment imposed under section 2 as including a sentence imposed for that offence and one or more offences associated with it, that does not preclude the passing of consecutive sentences if necessary. It would be very surprising if the contrary were the case. There is nothing in section 236A which affects or limits the power provided by section 154(1) Powers of Criminal Courts (Sentencing) Act 2000 to impose a consecutive sentence. Moreover, in the analogous field of extended sentences under section 226A this court has held that it is permissible to pass consecutive extended sentences. See for example, R v Pinnell & Joyce [2012] 2 Cr App R (S) 30 at [48] and R v Francis & Lawrence [2014] EWCA Crim 631 at [50]-[57]. If such a course is taken the question arises as to whether the terms of section 236A(2) mean that where consecutive sentences are passed there will be a series of consecutive further one year periods of licence to be served. Or, where consecutive terms are imposed can the further period of licence be limited to one year?[21]It may be argued that the purpose of the legislation was in section 236A cases to ensure, in circumstances where the offender had to serve the appropriate custodial term in full, that some period of licence was served and that that period was limited to one year. Since the appropriate custodial term will, by reference to section 236A(3) be the term that the court considered appropriate for the offending before it, where that term represents the sum of two or more custodial terms imposed under section 236A, the court, by reference to subsection (5), could treat the aggregate of the custodial terms as amounting to the appropriate custodial term before imposing the further period of 1 year’s licence. As section 236A(5) covers a sentence under section 236A(2) for a Schedule 18A offence and all offences associated with it (i.e. dealt with at the same time), that should have the effect of the further 1 year licence period being imposed once and once only.[22]In addition, it is possible to conceive of cases involving multiple counts where consecutive sentences are justifiable and which would result in quite significant extension periods being imposed. This particular point may be somewhat overstating the argument. Although theoretically possible, it ought not to arise in many cases and the likelihood is that in those cases a section 226A extended sentence would be passed in any event, rather than a section 236A sentence.[23]Although these arguments have attractions, there appear to be two problems. Firstly, it is well-established in the case of section 226A extended sentences that the sentence passed is a single indivisible sentence comprising a custodial term and an extension period. It is not possible for one element of that sentence (the custodial term) to run consecutively whilst the other element (licence period) runs concurrently. The sentence is indivisible and all of it must be imposed concurrently or consecutively. This principle is by now well understood in extended sentence cases. We note that the language of section 236A(2) is almost identical to that used in 226A(5) so that the same analysis must apply. Moreover, the language of section 236A(2) is mandatory (“must be”). A section 236A sentence must comprise the aggregate of the appropriate custodial term and a further one year period of licence. The counter-argument raised by reference to subsection (5) would seem to infringe the principle that the sentence passed is comprised of two indivisible elements.[24]Accordingly, we feel forced to the conclusion proposed by Mr Heptonstall in his very helpful submissions which is that where consecutive section 236A sentences are imposed, consecutive further periods of licence must follow. The consequence for judges is that they will need to give careful consideration to the structuring of their sentences as decisions as to whether to make sentences concurrent or consecutive will impact upon the length of the further licence period. Whilst the issue has not arisen in the specific cases before us, the argument has been addressed in detail when considering the section as a whole and we therefore consider it appropriate to give this guidance.

Some practical points

[25]We understand anecdotally that the provisions of section 236A have not been applied by practitioners and judges in a significant number of cases. The case of Fruen below is one such example, and as will be seen, we are driven to the conclusion that we cannot intervene. It follows that the clear intention of Parliament has been thwarted in his case and that he has received a lesser sentence than the court was required to impose on him.[26]Whilst of course judges carry the primary responsibility for their sentences, there is a duty upon practitioners who appear before the courts, particularly prosecutors, to ensure that they give assistance to busy judges who will often have a list of cases beset with legislative traps arising from a torrent of sentencing legislation often couched in opaque terms. It may therefore help if we provide a checklist of points to consider.[27]Checklist a) Is the offence listed in schedule 18A? b) If the offence is a repealed historic sexual offence, did it involve rape or penetration of a child under 13? c) Was the offender aged 18 or over when the offence was committed? d) Section 236A cannot apply if the court imposes life or an extended sentence for the offence or an associated offence. e) A sentence is to be expressed as a single term comprising the custodial element and a further one year period of licence. f) Each offence qualifying for section 236A must be sentenced in the terms set out at e) above. g) Are the section 236A sentences to run concurrently or consecutively to one another? If concurrently, the overall custodial term for those offences plus 1 year further period of licence should be stated at the end of sentencing. h) If consecutively, the total custodial term for those offences as well as the total further period of licence should be stated at the end of sentencing.[28]It would clearly be helpful if those settling indictments were able to assist in recognition of section 236A cases by drafting counts which take account of threshold ages of alleged victims or defendants, or by identifying if a relevant penetration occurred. This will not always happen and the failure of an indictment to identify such matters is not a fatal impediment to the imposition of a section 236A sentence if the sentencer states that he is satisfied on the evidence that age and penetration criteria have in fact been met. See R v Harries [2008] 1 Cr App R (S) 47 at [11] to [12].

Failure to apply section 236A

[29]Where, as in Fruen, the judge imposed an ordinary determinate sentence when he should have imposed a section 236A sentence, two possible options for this court dealing with an appeal against sentence have been raised. The first would be to interpret the sentence as being the expression of an appropriate custodial term with an unexpressed further licence of 1 year. We do not consider that this is a viable option if this court maintains the custodial term imposed. To add in the previously unexpressed further licence period would mean that the sentence was greater than that imposed below and thus fall foul of section 11(3) Criminal Appeal Act 1968. Even leaving aside the fact that a section 236A offence does not have the automatic release provisions which apply to an ordinary determinate sentence, the further period of licence would involve an additional element exposing the offender to risk of recall after he would otherwise be free from supervision.[30]A further option would be to treat the determinate sentence imposed (6 years in Fruen’s case) as representing a section 236A offence comprising a 5 year custodial term and the one year further licence period. This seems to us to be an inappropriate solution where, (as we do in Fruen’s case), the court holds that the custodial term imposed was appropriate. It would thereafter be wrong to re-engineer what the court has concluded was an appropriate custodial term so as to bring the case within the ambit of section 236A. The situation might well be different if this court concluded that the custodial term imposed was too long and reduced it by a period of at least a year. This would enable the court properly to substitute the reduced custodial term and to add to it the further one year period of licence which should have been imposed in the first place, without infringing section 11(3). In cases where that situation does not apply, we consider that the court should follow the course taken in R v Reynolds [2007] 2 Cr App R (S) 87 at [24] by not interfering with the Crown Court’s sentence.

Lionel Fruen

[31]Lionel Fruen was sentenced on 29th January 2016 having pleaded guilty at an earlier stage. He was sentenced for 2 counts of indecent assault contrary to section 14(1) of the Sexual Offences Act 1956. For count 1 he was sentenced to 3 years and 4 months’ imprisonment. For count 2 he was sentenced to 2 years and 8 months’ imprisonment to run consecutively. The total sentence therefore was one of 6 years’ imprisonment. In addition the court made a Sexual Harm Prevention Order of indefinite duration. The Registrar has referred Fruen’s case to the full court.[32]Count 1 involved a child, A, whose mother was a close friend of the applicant’s then wife. On an occasion between October 1993 and October 1995 when A was aged about 8 or 9, her mother and the applicant’s wife had gone out for the evening. The applicant was left to look after his own children and A. He was not happy about this. During the evening he made A sit on his lap and in the presence of his young sons put his hand inside her pyjama bottoms and knickers and touched her vaginal area. He penetrated her vagina with his finger whispering “You like this don’t you”. A was upset but felt too scared to tell anyone what had happened.[33]Count 2 involved a different child, B. The applicant’s relationship with his ex-wife had come to an end and he began dating another woman whom he later married. She had two daughters, including B, so that the applicant became their stepfather. On an occasion between May 2001 and May 2003 when B was aged between 10 and 12, she went to the applicant’s bedroom to ask if she could go out. Her mother was out at work and the applicant was in bed. He pulled the bedcovers aside and asked for a cuddle. B got into bed. He put his hand on her hip, undid her dressing gown and started to rub her thigh. Then he placed his thumb on her vagina and began rubbing her clitoral area for about two minutes saying “Don’t tell mum about this little cuddle.” Matters came to light in 2015 after the applicant drunkenly told B’s mother that he had touched child A. He had previously admitted to her that he had touched child B but B’s mother was in denial and took no action. The police became involved and both girls, by now young women, reported what had happened.[34]These are two specific offences against the two young girls. There were victim impact statements from B and her mother. In the case of B, that showed that this offending has had a very serious effect on her life. She said that it had destroyed her childhood and teenage years. B’s mother had also been significantly affected as she felt great guilt that she had not protected her daughter and had time off from work with stress and faced the possibility of losing her home as a result of this applicant’s custodial sentence. The applicant had convinced B’s mother initially that B was a liar and mentally unstable and that what she had said about the abuse was untrue. In the case of A the victim was younger and had suffered a penetrative offence committed in the presence of other children. Like the offence in relation to B, there was a breach of trust.[35]This applicant is 59 years of age. He has no relevant previous convictions. There was a pre-sentence report which assessed him as posing a medium risk of harm to female children.[36]In passing sentence the judge was conscious that the offences had been committed under a different sentencing regime and that the maximum sentence for each offence was 10 years. He was aware of the need to look at totality and to look at current sentencing practice when passing sentence, as both annex B of the definitive guideline and R v H & ors [2012] 2 Cr App R (S) 21 require. He commented that the fact that the applicant had managed to evade justice for some time did not mean that his sentences should be less than they would be if they had been committed today. He correctly identified count 1 as now being equivalent to a section 6 offence under the Sexual Offences Act 2003, and count 2 being equivalent to a very serious section 7 offence.[37]Prior to credit for plea, the sentence on count 1 was 5 years which the judge said had regard to totality. On count 2 the sentence prior to credit was 4 years imprisonment. The grounds of appeal urged that the judge paid insufficient regard to totality in setting the sentence at 9 years prior to credit for plea. Moreover, it is said that the judge should have given considerable weight to the applicant’s drunken confession to B’s mother which led to his arrest.[38]In relation to count 1, if the judge put the case into category 3A of the guideline for a section 6 offence that would have had a starting point after a trial of 6 years with a range of 4-9 years. Thus it will be seen that even if the judge did not take a higher starting point by reason of the presence of the offender’s children and the fact that the victim was significantly under 13 years, the judge in starting at 5 years before credit for plea, had regard to totality.[39]As far as count 2 is concerned, assuming that the judge put this into category 2A of the section 7 guideline which has a starting point of 4 years and a range of 3-7 years, the judge would have been fully entitled to impose an uplift to reflect the significant impact on B’s life as well as the effect upon her mother. Moreover, there was prolonged contact with a very intimate part of the body which again might have justified an increase. It follows from that, that a starting point of 4 years prior to credit for plea was conservative. Apart from the guilty plea we do not discern any other available mitigation. We are not impressed by the submission made about the drunken admission. It was significantly outweighed by other conduct of the appellant in denying responsibility. In the circumstances we are satisfied that there is no merit in the appeal against the term of custody.[40]We turn next to section 236A issues. As already noted the court below overlooked section 236A in this case. Count 1 was an indecent assault involving digital penetration of the vagina, so that in recent times it would have constituted an offence contrary to section 6 SOA 2003. The judge therefore should have passed a sentence under section 236A. We have found that the sentence of 3 years and 4 months’ imprisonment passed on this count was appropriate. To that should have been added the further 1 year’s period of licence. Count 2 was an indecent assault not involving penetration, so that an ordinary determinate sentence of imprisonment was appropriate. We have found that the term of 2 years and 8 months’ imprisonment was entirely proper. For the reasons given earlier in this judgment we cannot make the sentence on count 1 more severe by ordering the further licence period at this stage; nor are we disposed to reduce the overall custodial term which we have held to be appropriate. Accordingly, to this applicant’s good fortune, the sentence must remain as it is. The application relating to sentence is refused. This case is an illustration of the consequences of failure to apply section 236A: this applicant has been dealt with more lightly than Parliament intended.[41]The appropriate method of sentencing would have been to have imposed the ordinary term of custody on count 2 and then ordered the section 236A offence on count 1 to run consecutively to it.[42]This application for leave to appeal against sentence has been referred to the full court by the Registrar. The applicant was convicted of 19 counts of sexual offences at Liverpool Crown Court. He was subsequently sentenced on 18th January 2016 to a total sentence of 15 years, comprising a custodial term of 14 years’ imprisonment with a further period of 1 year for which the offender is to be the subject of a licence, pursuant to section 236A of the Criminal Justice Act 2003. In addition, a Sexual Harm Prevention Order of indefinite duration was made. The indictment had contained 30 counts and the jury acquitted of 11 of them. The judge had directed a not guilty verdict for lack of evidence on count 3 and the jury returned not guilty verdicts on counts 21-30. Those not guilty verdicts showed in relation to both victims that the jury was unsure that offences had been committed after particular points in time. Counts 1 and 2 and 4 to 8 related to the victim S. Counts 9 to 20 related to the victim A. We set out below a table summarising the offences and the sentences as expressed in the court record. Count Offence (State statutory provision/common law) Pleaded guilty or convicted Sentence Consecutive or Concurrent Maximum 1 & 2 Indecent Assault, s.14 SOA 1956 (22.8.00-21.8.01; S aged 6) Convicted 3 years imp Cts 1 - 2 & 4–8 Concurrent with each other 10 years 4 Indecent Assault, s.14 SOA 1956 (22.8.00-21.8.02; S aged 6 or 7) Convicted 5 years imp. Concurrent 10 years 5 Indecent Assault, s.14 SOA 1956 (22.8.02-30.4.04; S aged 8 or 9) Convicted 3 years imp. Concurrent 10 years 6 Indecent Assault, s.14 SOA 1956 (22.8.02-30.4.04; S aged 8 or 9) Convicted 5 years imp. Concurrent 10 years 7 Sexual Assault of a Child under 13, s.7 SOA 2003 (1.5.04-21.8.05; S aged 9 or 10) Convicted 3 years imp. Concurrent 14 years 8 Sexual Assault of a Child under 13, s.7 SOA 2003 (1.5.04-21.8.05; S aged 9 or 10) Convicted 5 years imp. Concurrent 14 years 9* Indecent Assault, s.14 SOA 1956 (26.10.00-25.10.02; A aged 4 or 5) Convicted 7 years imp. Cts 9 – 20 Concurrent with each other but all Consecutive to Cts 1 - 2 & 4 - 8 10 years 10* Indecent Assault, s.14 SOA 1956 (26.10.00-25.10.02; A aged 4 or 5) Convicted 9 years imp. Concurrent to Ct 9 10 years 11 Indecent Assault, s.14 SOA 1956 (26.10.00-25.10.02; A aged 4 or 5) Convicted 6 years imp. Concurrent to Ct 9 10 years 12 Indecent Assault, s.14 SOA 1956 (26.10.00-25.10.02; A aged 4 or 5) Convicted 7 years imp. Concurrent to Ct 9 10 years 13* Indecent Assault, s.14 SOA 1956 (26.10.02-30.4.04; A aged 6 or 7) Convicted 7 years imp. Concurrent to Ct 9 10 years 14* Indecent Assault, s.14 SOA 1956 (26.10.02-30.4.04; A aged 6 or 7) Convicted 9 years imp. Concurrent to Ct 9 10 years 15 Indecent Assault, s.14 SOA 1956 (26.10.02-30.4.04; A aged 6 or 7) Convicted 6 years imp. Concurrent to Ct 9 10 years 16 Indecent Assault, s.14 SOA 1956 (26.10.02-30.4.04; A aged 6 or 7) Convicted 7 years imp. Concurrent to Ct 9 10 years 17* Assault of a Child under 13 by penetration, s.6 SOA 2003 (1.5.04-25.10.05; A aged 7 or 8) Convicted 7 years imp. Concurrent to Ct 9 Life 18* Assault of a Child under 13 by penetration, s.6 SOA 2003 (1.5.04-25.10.05; A aged 7 or 8) Convicted 9 years imp. Concurrent to Ct 9 Life 19 Causing or inciting a child under 13 to engage in sexual activity, s.8 SOA 2003 (1.5.04-25.10.05; A aged 7 or 8) Convicted 6 years imp. Concurrent to Ct 9 14 years 20 Causing or inciting a child under 13 to engage in sexual activity, s.8 SOA 2003 (1.5.04-25.10.05; A aged 7 or 8) Convicted 7 years imp. Concurrent to Ct 9 14 years Total Sentence: 15 years, comprising a custodial term of 14 years imprisonment and on counts 17 and 18 a further period of 1 year for which the offender is to be subject to a licence, pursuant to s.236A CJA 2003. Minimum Term if applicable: n/a Time to count towards sentence under s.240/s.240A Criminal Justice Act 2003 n/a Victim Surcharge Order Nil Other relevant orders: Sexual Harm Prevention Order until further order.[43]It will be seen there is an asterisk alongside counts 9, 10, 13, 14, 17 and 18. We have added that to denote the fact that each of those offences relates to digital penetration of A’s vagina. Counts 17 and 18 are brought contrary to section 6 of the Sexual Offences Act 2003. Counts 9, 10, 13 and 14 were offences of indecent assault contrary to section 14 of the Sexual Offences Act 1956 which was repealed by the 2003 Act. The facts of those four offences would today constitute a section 6 offence. As will be seen later this is significant for the purposes of section 236A.[44]The facts show that the applicant had sexually abused two step-granddaughters S and A between about 2000 and 2005. The children stayed most weekends at his home which he shared with their natural grandmother. The two girls considered the applicant to be their grandfather. It was rare for them both to stay at his home at the same time. In each case the abuse began when the girls were very young. In S’s case it started when she was about 6 and continued until she was about 10. In A’s case the abuse began when she was about 4 and continued until she was about 8. A period of 4-5 years was involved in each case. Both girls said that the applicant had watched pornography in their presence. Matters did not come to light until 2015 when A told her mother about the abuse. After that, S confirmed that she had been abused and the police became involved. Both girls gave accounts of systematic and repeated abuse occurring almost every time they stayed over.[45]In S’s case she was unable to remember a great deal of detail. The assaults upon her were non-penetrative, involving touching the outside of her naked vagina with his fingers for periods of time. The offending had happened both indoors and in the back garden. S said that she only really appreciated that what had happened to her was wrong about 3 years after the abuse stopped. She did not tell anyone about it for many years. There was a victim impact statement from S showing that she had been significantly affected.[46]In the case of A, she was able to give more detailed evidence. Counts 9, 10, 13, 14, 17 and 18 involved digital penetration of her vagina. Counts 11, 12, 15, 16, 19 and 20 involved the applicant placing or trying to place her hand on his penis. There was a victim impact statement from A. She was not as severely affected as S.[47]When the applicant was interviewed by the police he denied all allegations: they were simply untrue. He maintained that position at trial.[48]The applicant is 59 years of age. He has no previous convictions. He acted in gross breach of trust on a systematic basis in his abuse of two very young girls. There was a pre-sentence report. The applicant maintained his denials to the reporting officer. He alleged that the victims had implicated him for financial reward and described them as fantasists. He was assessed as representing a medium risk of causing serious harm to children.[49]In passing sentence the judge noted the applicant’s age, previous good character and work record. He had regard to the definitive Sentencing Council’s guidelines, including annex B relating to the sentencing of historic sexual offences. The judge also stated that he had regard to the totality guideline and that he reflected totality in the sentences passed.[50]The grounds of appeal complain that the judge failed to make sufficient allowance for totality and that the custodial sentence of 14 years was manifestly excessive. Additionally, it was argued that the judge failed to make any allowance for the fact that the jury found the applicant not guilty on a number of counts. As to this last point, we are unimpressed. The judge passed sentence on the basis of the jury’s verdicts which showed that there had been repeated and prolific offending against very young victims over a period of 4 to 5 years. Our task is to assess whether the judge sentenced appropriately for the counts upon which convictions were recorded including the facts underlying those counts. It is conceded that the sentences in relation to counts 17 and 18 attracted the provisions of section 236A of the CJA 2003, however it was submitted that the judge erred in failing to specify separately in relation to each of those counts the appropriate custodial term and the additional 12 months’ licence period. The judge is also said to have erred in imposing non- section 236A sentences to run consecutively to those passed on counts 17 and 18.[51]In relation to the offences against S, the guideline for sexual assault of a child under 13 (section 7) applies. We remind ourselves that the guideline relates to a single offence, whereas in this case there were multiple offences continuing over a number of years. The judge regarded this part of the case as falling within category 2A which shows a starting point of 4 years’ custody with a range of 3-7 years. The judge stopped short of concluding that this was a category 1A offence based on severe psychological harm. Having done so, he would have been entitled to move up from the starting point to reflect the impact on S’s life and the repetition of this offending on many occasions. The overall sentence passed could not reflect any mitigation for a guilty plea, and the applicant’s previous good character in the circumstances attracts little weight. The overall sentence of 5 years for the offending against S therefore represents a very modest increase on the starting point for a single offence. It is clear that the judge has made a significant discount for totality.[52]Turning to the offences against A, since many of these were penetrative in nature the guidelines for a section 6 offence apply whether the offence was charged as indecent assault or under the 2003 Act. This case falls within category 2A by reason of A’s extreme youth and the abuse of trust. For a single offence the guideline shows a starting point of 11 years with a range of 7-15 years’ custody. The overall sentence imposed for the offences against A was one of 9 years’ imprisonment. The same analysis as pertains in S’s case applies here. The judge clearly made significant reductions for totality.[53]Since these were offences committed against different victims in circumstances separate from one another, the judge was entitled to make the two sets of sentences run consecutively. It is apparent that considerations of totality permeated the whole of the sentencing process. The judge’s approach to the sentencing of these cases was careful and measured and reflected the modern approach to historical or non-recent offences. We do not consider that the total custodial sentence is manifestly excessive and this aspect of the application must fail.[54]In this case the judge had been alerted to the existence of section 236A. However, despite the care which the judge took in the sentencing exercise, matters were not entirely correctly dealt with. Firstly, having structured his sentencing with a mixture of concurrent and consecutive sentences to reflect the fact that offences had been committed against two separate victims, and thus arriving at an overall custodial term of 14 years, the judge wrongly stated that the applicant would be released after serving half of his sentence in custody. Such an error does not invalidate the sentence (R v Bright [2008] 2 Cr App R (S) 102).[55]Having stated that, the judge said “There will also be a further period of 1 year for which you will be subject to licence once you have been released.” By dealing with the matter in this way, the judge failed accurately to state the effect of the further licence period and, more importantly, did not identify the offences to which the further period of licence attached. He is obliged to do this because section 236A(2) is a new form of custodial sentence comprising two elements as explained earlier. Accordingly, for a valid sentence to be passed the judge should have attached the further period of licence to the relevant counts.[56]In this case the relevant counts were not only counts 17 and 18 which were straightforward section 6 SOA 2003 counts, but also counts 9, 10, 13 and 14 which were historic indecent assault counts which the judge had correctly identified as involving digital penetration in his sentencing remarks, and which fall within schedule 18A by reason of the “abolished offences” provision.[57]Having imposed ordinary determinate sentences in relation to the offending against S, and decided to impose consecutive but internally concurrent sentences for the offences against A, the judge should have identified those offences which fall within section 236A and passed section 236A-style sentences in relation to those counts. Subsequent to sentencing there was some uncertainty in the Crown Court office as to how the sentence should be expressed in the court record. The result can be seen in the “Total Sentence” section of the grid set out above. Unfortunately that is not accurate since it does not reflect the fact that additionally counts 9, 10, 13 and 14 were also liable to a section 236A sentence. The court record should be amended in accordance with this judgment so as to reflect the fact that each of the sentences on counts 9, 10, 13, 14, 17 and 18 is a section 236A sentence incorporating the further 1 year period of licence.[58]It is accepted on behalf of DS that those irregularities in expressing and recording the sentence do not give him any ground of appeal. It was fully understood at the time of the hearing by DS and his counsel that the overall result was that a 15 year sentence had been imposed, comprising a custodial term of 14 years plus a further 1 year period of licence.[59]For the reasons already given this application relating to sentence is refused.

Cited in 15 later judgments

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