Bristow & Anor, R. v [2017] EWCA Crim 2380

[2017] EWCA Crim 2380

No. 2017/02610/A4 & 2017/02612/A4

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Friday 21 st July 2017

Between

R E G I N ACrown

The Strand

London

WC2A 2LL

B e f o r e:

LORD JUSTICE SIMON

MRS JUSTICE MAY DBE

and

SIR ANDREW SMITH

_______________

ATTORNEY GENERAL'S REFERENCE

UNDER SECTION 36 OF

THE CRIMINAL JUSTICE ACT 1988

_______________

- v -

Between

ANDREW BRISTOW

MICHAEL PETERS

____________________

Computer Aided Transcription by

Wordwave International Ltd trading as DTI

165 Fleet Street, London EC4A 2DY

Telephone 020-7404 1400

(Official Shorthand Writers to the Court)

__________________

Ms J Ledward appeared for Attorney General

Mr M Jowett appeared for Offender Andrew Bristow

Mr N P J Clarke appeared for Offender Michael Peters

____________________

J U D G M E N T

[1]The Attorney General seeks leave to refer sentences imposed on 18th May 2017 at Bradford Crown Court on Andrew Bristow and Michael Peters as being unduly lenient. We grant leave.

[2]On 23rd March 2017, the offenders pleaded guilty to a number of offences at the first reasonable opportunity. The first offender, Bristow (aged 48), pleaded guilty to sexual assault of a child under the age of 13 (Child 1), contrary to section 7 of the Sexual Offences Act 2003 (count 3); vaginal rape of a child under the age of 13 (Child 1), contrary to section 5 of the 2003 Act (count 4); oral rape of a child under the age of 13 (Child 1), contrary to section 5 of the 2003 Act (count 5); and sexual assault of a different child under the age of 13 (Child 2), contrary to section 7 of the 2003 Act (count 8). Child 1 was aged 11 or 12 years at the time; Child 2 was aged 10 years at the time.

[3]The second offender, Peters (aged 71), pleaded guilty to taking indecent photographs of Child 1, identified as category A images, contrary to section 1(1)(a) of the Protection of Children Act 1978 (count 6); taking indecent photographs of Child 1, identified a category B images, contrary to section 1(1)(a) of the 1978 Act (count 7); sexual activity with a different child under the age of 13 (Child 3), contrary to section 9 of the Sexual Offences Act 2003 (count 11); and possession of indecent photographs of a child, contrary to section 160(1) of the Criminal Justice Act 1988 (count 12).

[4]On 18th May 2017, the offenders were sentenced by His Honour Judge Rose in the Crown Court at Bradford. The sentence in respect of the first offender was amended on 25th May, pursuant to section 155 of the Powers of Criminal Courts Act 2000. The resulting sentences were as follows: on count 3 (section 7 sexual assault of a child), 32 months' imprisonment; on count 4 (vaginal rape of Child 1), six and a half years' imprisonment concurrent, with a one year period of extended licence under section 236A of the Criminal Justice Act 2003; on count 5 (oral rape of Child 1), six and a half years' imprisonment concurrent, with a one year period of extended licence; and on count 8 (sexual assault of Child 2), two years' imprisonment, to be served consecutively. The total sentence was, therefore, a term of eight and a half years' imprisonment, with a one year extension period.

[5]The second offender was sentenced as follows: on count 6 (taking Category A indecent photographs of Child 1), four years' imprisonment; on count 7 (taking Category B indecent photographs of Child 1), twelve months' imprisonment concurrent; on count 11 (section 9 sexual activity with Child 3), two years' imprisonment, to be served consecutively; and on count 12 (possession of indecent photographs of a child), four months' imprisonment concurrent. The total sentence in his case was, therefore, a term of six years' imprisonment.

[6]Indefinite Sexual Harm Prevention Orders were made in respect of each offender, pursuant to section 203 of the 2003 Act, as amended.

[7]The facts, in summary, were that in July 2015, in a police search of property where the second offender lived, a number of indecent images of children and a quantity of shredded paper were found. When forensically reconstructed, further indecent images of children were discovered. The police investigation led to the identification of two of the children featured and one further child, two of whom gave accounts to the police.

[8]About ten years ago, when aged 11 or 12, Child 1 had been groomed by the offenders into removing her clothes and escalating sexual contact with the first offender, culminating in a sexual assault by him (touching with his naked penis against her naked genitalia, count 3) and later a vaginal rape (count 4). There was photographic evidence of the vaginal rape and of a further oral rape (count 5), both of which took place in the presence of the second offender who took photographs of this penetrative sexual activity (count 6), and other indecent images of Child 1 involving sexual activity (count 7).

[9]Later in 2006, the first offender came into contact with Child 2 (then aged 10 years) and the daughter of his brother's partner. When the child was left in his care, he engaged in escalating sexual conduct towards her, culminating in him grabbing her naked breasts under her clothing (count 8). One of the reconstructed photographs showed the second offender naked on a bed, holding the penis of Child 3 (a naked 13 year old boy, count 11). Also recovered from his house were a number of indecent images of children: by reference to the Sentencing Council Guidelines, ten category A, 64 category B and 69 category C (count 12).

[10]The facts in more detail are these. On 23rd July 2015, police officers went to a house in Athol Crescent, Halifax, then the address of the second offender, who was present. When arrested, he said, "he warned me this would happen months ago". Officers recovered some indecent images and a quantity of shredded paper from the waste container of a shredder. Despite what one of them was later to say to the police, it appears that for a number of years the offenders had been in a sexual relationship with each other and had lived together.

[11]The indecent images included several indecent images of a prepubescent female (Child 1). As a result of the investigation, Child 1 was identified. She is now aged 24. She was interviewed by the police on 21st October 2016. She described having approached the offenders in the street in Halifax when she was aged 11 or 12, when in the company of her younger sister. She asked them for a cigarette. The offenders were friendly and gave them cigarettes. She and her sister discovered where they lived and would visit them. They would be given cigarettes. There had been a time when she was on her own and wanted a cigarette, and so went to the offenders' flat. The first offender asked her to visit without her sister. She did so thereafter, about three or four times a week. She described the offenders as being nice to her. They would provide cigarettes, cups of tea and general conversation. She described having a very difficult childhood, particularly in relation to difficulties with her mother. This was why she was able to spend so much time away from her own family.

[12]After a time, the second offender offered to give her money if she would take off her top. At first she refused, but agreed after some persuasion. She took off her T-shirt in the living room in the presence of both offenders and was given £5. Later, this progressed to taking her top off in the bedroom. When she protested that she didn't like what was happening, the offenders told her not to worry, that nobody would know, but that if she told anybody she would get into trouble.

[13]The first offender told her that they would give her more money if he could put his penis on her vagina. They went into the bedroom and he asked her to undress. After undressing himself he lay on top of her. He rubbed his penis on the outside of her vagina and touched her chest with his hands (count 3, sexual assault).

[14]Later, the first offender inserted his penis into her vagina. She protested that he was hurting her, told him to stop and tried to push him off. He got off her after about ten minutes (count 4, vaginal rape). As she recalled it, that was the last time she saw the offenders. She did not return to their home. She had never told anyone of what had taken place, until asked about it by the police. At the time, she feared that she would get into trouble if anyone found out, as the offenders had warned her she would.

[15]The intact images recovered in 2015 show the first offender with his penis in her vagina, and, although not referred to by Child 1 in her Achieving Best Evidence interview, with his penis in her mouth, as well as other indecent images of Child 1, involving non-penetrative sexual activity. From the appearance of the photographs, they were possibly taken at around the same time in the same location. In some of the images, including those involving penetrative and non-penetrative sexual activity, the second offender is visible in a mirror in the room, taking the photographs (counts 6 and 7). Child 1 only recalled the second offender being present some of the time and was not aware of having been photographed until she was shown edited images by the police. Although upset by the images, she was able to identify herself in them. She later attended an identification procedure and identified the first offender.

[16]On 25th July 2015, police spoke to Child 2 (now aged 21). She said that just before she turned 11, in about June 2006, her mother had started a relationship with the brother of the first offender. After a period of time, when they had nowhere else to live, she, her mother and the first offender's brother went to stay with the offenders in their one bedroom flat in Yorkshire. For a period of two to three weeks she was left in the care of the offenders for long periods of time. The first offender began by making inappropriate comments and sending text messages asking to see her in her underwear. He would grab her T-shirt, try to look down it and try to put his hands down it. She tried to ignore this and to shrug it off. She would wake to find him sitting or lying next to her on the sofa where she slept. He managed to "grab [her] boobs" under her clothing (count 8). Several recovered photographs show the offender holding her with his hands over her breasts (over clothing). She tried to tell her mother what was happening, but her mother did not believe her, saying that the first offender was gay and therefore not interested in women. She and her mother did not stay long in Yorkshire, and there was no further contact between her and the offenders.

[17]Child 2 later attended an identification parade, and she too identified the first offender.

[18]Among the reconstructed shredded images were a number of indecent images of children. Ten images fell within category A (images involving penetrative sexual activity, sexual activity with an animal or sadism); 64 images fell within category B (images involving non-penetrative sexual activity); and 69 images fell within category C (other indecent images not falling within categories A or B).

[19]Among these images was a series of photographs showing the second offender naked on a bed with a 13 year old boy, who was also naked. In one of the images, the second offender was holding the boy's penis (count 11, sexual activity with a child).

[20]The boy was identified by the police but would not provide a statement. There was evidence from his father that the second offender was a friend of the family. The family lived in the South of England. The boy (whose younger sister had recently died following a terminal illness) would stay with the second offender in Yorkshire from time to time on his own, as did his siblings.

[21]The second offender was interviewed on the day of his arrest, 23rd July 2015. He admitted he had previously had a sexual interest in children, but said that he no longer did. He used to have images at home, but had been disposing of them. He accepted that some of the shredded images might be indecent. They would have been taken at a previous address. He said that he had shredded them about five years earlier.

[22]The first offender surrendered to the police station on 24th July 2015. He was arrested. In reply to the caution, he said, "must be bollocks". When interviewed, he said that he had been single since 1989 and was heterosexual. He had known the second offender for about 20 years. He had not lived with him or had any sexual relationship with him. At first, he said that he did not see much of the second offender, but later said that he visited him four to five times a day. He knew nothing of any indecent images found at the second offender's home. He denied that he was the male in the photographs with Child 1. He said that he did not know the female shown. He denied any knowledge of Child 2, or ever touching her sexually.

[23]The offenders were both interviewed on 28th January 2016. The first offender answered "no comment" to questions. The second offender said that he had been in a relationship with the first offender for 20 years and that they had lived together for fifteen to sixteen years. He gave mainly "no comment" answers in relation to images of Child 1, of which he was the photographer. He accepted that there might be indecent images of children in the shredded images, but he did not think that they would be of known children or of him. He recalled Child 2 visiting their home, but did not remember much about it. When the reconstructed images were put to him, he gave "no comment" responses.

[24]The offenders were charged and appeared at Bradford Crown Court for a preliminary hearing on 2nd December 2016. The indictment was not finalised until the hearing on 23rd March 2017, when the guilty pleas were entered. This was treated by the judge as the first reasonable opportunity, such as to attract full credit.

[25]The first offender had a number of previous convictions: 29 offences on fourteen different occasions (from 1986, when he was 18 years old, to 2009). The offences were mainly for dishonesty and driving offences. Apart from an offence of theft in 2009, he had not offended since 2000. He had no convictions for sexual offending, or any offences relating to children.

[26]The second offender had four previous convictions: a burglary and a driving offence in 1968, and two offences of attempting to commit an act outraging public decency in 1971. While using a hired car, he had followed two boys (aged 12 and 14) for approximately two hours. He had dropped a note containing indecent suggestions at their feet. The police were alerted and he made off.

[27]There was a pre-sentence report in respect of the first offender. He told the author of the report that the sexual contact with Child 1 had been at her request. At first he had refused, but then he had agreed once she had told him that she was 16 years old. He said that the second offender had paid her for this. His advocate withdrew these lies at the sentencing hearing. He accepted that he had touched Child 2 over clothing. He did not fully understand that it amounted to sexual abuse, but accepted that he had behaved this way for his own gratification. We note that when it came to sentencing, the judge recorded his lack of remorse. The first offender denied having any specific sexual interest in children. He had himself been sexually abused at the age of 13. He blamed the second offender for encouraging him to commit the offences. The static risk assessment tools used by the Probation Service indicated a low risk of reconviction in the next two years. He was assessed as posing a "medium" risk of causing serious harm to young females, because the most recent offending was dated 2006, and thus any risk was not "imminent".

[28]A pre-sentence report in respect of the second offender was also before the sentencing court. The second offender admitted to the author that he had been offending since he was in his twenties – so for approximately ten years before his conviction in 1971. He estimated that he had sexually assaulted up to twelve children, some on more than one occasion. He met his victims in a variety of places and offered them money for sex. He would meet men who would share pictures of children they were abusing. He described his various preferences and motivations. He accepted that he had encouraged the first offender to engage sexually with Child 1 and that he had suggested taking the images (which had always been part of his offending). He showed clear signs of justifying his behaviour towards Child 3. He had himself become sexually active at the age of 12. He had been introduced by an older male to other men, and he then began to have sex with older men for money. He did not see what happened to him as abuse, and therefore struggled to see why his behaviour was damaging to his victims, saying "they never complained", and that he did not feel too bad as he had not forced any of the children to do anything. He was assessed by the author of the report as being a "predatory paedophile with a strong sexual attraction to children and for whom sexual deviance and offending has been ingrained from a young age". The author noted that there was clearly an established pattern to his offending, involving taking, sharing or downloading images and sharing details of vulnerable children through a paedophile ring to enable grooming and abuse. The author also noted that he had offended with his former partner, the first offender. Importantly in the present context, he was assessed as posing a high risk of serious harm. However, his openness in his interview perhaps demonstrated, in the view of the author of the report, a level of remorse and a suitability to engage in sex offender treatment.

[29]There were no victim impact statements before the court. In her ABE interview, Child 1 described a number of difficulties and behavioural problems she had experienced in her childhood, but did not link this to the abuse she suffered, which she had not disclosed to anyone before speaking to the police for fear of getting into trouble and not being believed. She said that she felt disgusting for having allowed them to do things to her, but that it was a bit of a relief having "got it out". She was upset when shown the photographs, not being aware that they had been taken, and expressed concern that the images might be on the internet.

[30]Child 2 said that she had been frightened at the time. She had tried not to think about what had happened for the past ten years, and had tried to forget that it had ever happened.

[31]Child 3 did not wish to speak to the police.

[32]We turn to the Attorney General's submissions, first in relation to the first offender. Ms Ledward refers to the Sentencing Council's Definitive Guidelines for sexual offences. The guidelines for offences of rape of a child under 13 (counts 4 and 5) are set out at pages 27 to 32. She accepts that there are no factors which raise the level of harm above category 3, but submits that there were a number of factors which raise the culpability into category A: an offender acting with others to commit the offence; grooming of the victim (Child 1); sexual images recorded; and deliberate isolation of the victim.

[33]Category 3A indicates a starting point of ten years' custody and a range of eleven to seventeen years. The guidelines for offences of sexual assault of a child under 13 (count 3) are set out at pages 37 to 40. The touching of naked genitalia places the offending in category 2 of harm; and the offender acting with others to commit the offence, the grooming of the victim (Child 1), the recording of the sexual images, and the deliberate isolation of the victim places this into category A culpability. Category 2A indicates a starting point of four years' custody and a range of three to seven years.

[34]In relation to count 8 (Child 2), the touching of the naked breast area places the offending in category 2 of harm; and there was grooming, abuse of trust and the recording of sexual images. As we have said, category 2A indicates a starting point of four years' custody, and a range of three to seven years.

[35]Ms Ledward points to an additional factor which aggravated the offending: the steps taken to prevent Child 1 reporting the incident.

[36]On behalf of the Attorney General, she accepts that the lack of material previous convictions and the guilty pleas at the first opportunity were mitigating factors.

[37]So far as the second offender is concerned, she points out that the guidelines for sexual activity with a child are set out in the guidelines at pages 45 to 49. The offence against Child 3 (count 11) involved the touching of naked genitalia, category 2 harm, and a number of features indicating category A culpability: abuse of trust, the recording of sexual images of the victim, and a significant disparity in age. The indicated starting point for a category 2A offence is a term of three years' custody, and a range of two to six years. Counts 6, 7 and 12 involved indecent photographs of children. The guidelines for offences relating to indecent photographs of children are at pages 75 to 79. These define the categories of image: category A images showing penetrative sexual activity; category B, possession of images involving non-penetrative sexual activity; and category C, other indecent images not falling within category A or B.

[38]Count 6 charged the taking of indecent photographs of Child 1 in category A. These were photographs taken by the second offender. It was, therefore, a production offence. The guidelines indicate a starting point of six years' custody, and a range of four to nine years for the production of category A images.

[39]Count 7 charged the category B photographs of Child 1 made by the second offender. The guidelines indicate a starting point of two years' custody, with a range of one to four years.

[40]Count 12 involved possession of indecent photographs of children within all three categories A, B and C. The sentencing should have been approached on the basis of the possession of category A images, with a starting point of one year's custody, and a range of 26 weeks to three years' custody.

[41]Ms Ledward points to an additional factor which aggravated the offending: the previous conviction for similar offending; the age and vulnerability of the children; the period over which the images were retained; his acting with the first offender in respect of Child 1; his attempts to dispose of or conceal the evidence through the shredding of the images; the fact that the child depicted in the images (Child 3) was known to the offender; and the fact that the offending involved an abuse of trust.

[42]Ms Ledward also accepts that the early admission to the police in interview and the guilty pleas at the earliest reasonable opportunity are important matters of mitigation.

[43]In summary, she submits that the sentences passed in the case of each offender were unduly lenient. The judge correctly identified the starting point for a single offence of the most serious offending committed by the first and second offender: counts 4 and 6 respectively. He correctly identified some of the most seriously aggravating features of the offending, in particular that the offenders had acted together. However, he failed to identify the other aggravating features, or to give any or any sufficient weight to the many higher culpability factors and aggravating features applicable in respect of both offenders. These ought to have resulted for each individual offence in a substantial departure from the starting point and a sentence based on the upper end of each applicable range before the application of credit for a guilty plea. She also submits that the judge adopted a starting point for a single offence, but failed to reflect the number of serious crimes committed by each offender, with an appropriate increase in sentence, particularly in respect of offences committed against the same victim on a different occasion: for example, count 3. The consecutive sentences that were imposed in respect of offending against further victims did not remedy this deficit.

[44]Finally, Ms Ledward submitted that the judge failed to impose an extended sentence, or did not give sufficient reasons for not doing so. She submits that this was a failure in respect of both offenders. Each demonstrably posed a significant risk of further serious harm to the public and the other statutory criteria were fulfilled.

[45]Mr Jowett now appears on behalf of the first offender, and Mr Clarke appears on behalf of the second offender as he did at the trial. Neither counsel submitted a Respondent's Notice and in this respect placed themselves at a disadvantage when it came to oral submissions in the light of the provisions of the Criminal Procedure Rules, Part 41.5. However, they advanced arguments which they invited the prosecution to adopt, and Ms Ledward did so. We have considered all these submissions.

[46]An important feature of these crimes, and one that made the crimes more serious, was that the two offenders acted together. As

the judge noted in his sentencing remarks:

"You have descended to real depths of depravity, and I say that because you have offended together and not only have you not had regard to the feelings of your victims as they were subjected to your abuse, but you have not thought at all of how much more terrifying, how much more deeply unpleasant it will be for a child who is being abused, albeit possibly in different ways, by two grown men acting together." 47. "

You, Bristow, raped her. You raped her vaginally. You raped her orally. It was for your sexual pleasure and the pleasure of your partner. The fact that you acted together inflates the gravity of the offending and of course the fact that you, Peters, recorded these images with the knowledge of Bristow that you were doing so inflates it too."

[47]Another feature of the most serious offences (counts 4 and 5 in the case of the first offender, the rape of a child, and count 6 in the case of the second offender) was that the crimes were recorded in photographic images: the vaginal rape and the oral rape of a child. In our view, the judge failed to take sufficient account of these features.

[48]We start with the first offender. In our view, the overall sentence of eight and a half years' imprisonment, with a one year period of extended licence, for this offending was unduly lenient. The judge must have taken a starting point of slightly below ten years on counts 4 and 5 in order to arrive at the sentences of six and a half years' imprisonment for the offences against Child 1. That would have been appropriate for a single charge of rape under section 5 of the 2003 Act. However, there were two crimes of rape, multiple features of culpability, which by themselves would indicate an increase in the starting point, and there was the further offence of the sexual assault of Child 1.

[49]Taking into account these matters, in our view, the starting point in relation to counts 4 and 5 should have been not less than twelve years' imprisonment, and, with full credit for the guilty pleas, sentences of eight years' imprisonment. The sexual assault on Child 2 made the overall offending more serious. The judge was entitled to pass a consecutive sentence and might have imposed a more severe sentence on count 8. However, viewing the overall sentence as a matter of totality, we are not inclined to interfere with that sentence.

[50]So far as an extended sentence is concerned, in our view it was open to the judge not to impose an extended period of licence under section 226A in view of the time that had elapsed since these offences and the contents of the pre-sentence report. As is clear from the statute, it is not mandatory to impose such a sentence, even if there is a finding of dangerousness. The sentences on counts 3 and 8 are unaffected.

[51]Accordingly, we substitute for the sentences of six and a half years' imprisonment on counts 4 and 5, terms of eight years' imprisonment. These will run concurrently with each other and consecutively to the sentence of two years' imprisonment on count 8. The sentence on count 3 will be served concurrently with the sentences on counts 4 and 5. In addition, there will be the one year extended period of licence on counts 4 and 5, as the judge ordered.

[52]We turn to the second offender. In our view, here also the overall sentence failed to reflect the gravity of the offending. The rapes charged as counts 4 and 5 took place in the presence of the second offender who took photographs of the penetrative sexual activity (count 6). In our view, in the light of the features which we have identified, the starting point on count 6, taken with the offending charged in counts 7 and 12 on which concurrent sentences were passed, should have been towards the top of the range for this offence: nine years' imprisonment, not six years. With full credit for the guilty plea, the sentence on this count should have been a term of six years' imprisonment, and not four years.

[53]In the light of the pre-sentence report, we consider that he is a dangerous offender. It is clear that he is a predatory paedophile and that he demonstrably poses a significant risk of further serious harm to the public from the commission of further specified offences, notwithstanding his disavowal to the author of the pre-sentence report. The danger in his case is the underlying criminality involved in the offences charged as counts 6 and 7.

[54]In these circumstances, an extended sentence should have been passed under section 226A of the Criminal Justice Act 2003. In his case the extension period will be a three year period attached to the sentence on count 6.

[55]Accordingly, in the case of the second offender, we quash the sentence of four years' imprisonment on count 6 and substitute an extended sentence of nine years, comprising a custodial term of six years and a three year period of extended licence, to be served following the determinate sentence of two years' imprisonment on count 11, which remains undisturbed.

[56]The sentences on the other counts (counts 7 and 12) are unaffected and remain concurrent sentences. _____________________________________