Croudace, R v [2018] EWCA Crim 2513

Case No 20182413/A1

[2018] EWCA Crim 2513

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Thursday, 11 October 2018

Strand

London, WC2A 2LL

B e f o r e:

LORD JUSTICE McCOMBE

MR JUSTICE GOOSE

HIS HONOUR JUDGE FARRER QC

(Sitting as a Judge of the CACD)

Between

R E G I N ACrown

Between

GEORGE CROUDACE

Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

Mr B Mark appeared for Appellant

J U D G M E N T

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[1]MR JUSTICE GOOSE: On 15 May 2018 in the Crown Court at Newcastle upon Tyne, the appellant, George Croudace, who is now aged 71, was sentenced by Mr Recorder Elliott QC to nine years and six months' imprisonment. The appellant had pleaded guilty to the offences for which he was sentenced at the first reasonable opportunity, on the 27 March 2018. Leave to appeal his sentence was granted by the single judge.

[2]The total sentence of nine years and six months was imposed for offences on two indictments. On indictment T2017 0953, count 1, sexual assault of a child under 13, contrary to section 7(1) of the Sexual Offences Act 2003, a sentence of three years and four months' imprisonment; for a similar offence in respect of a different complainant, count 2, a consecutive sentence of three years and four months' imprisonment; for a further similar offence against another complainant, count 3, a sentence of two years' imprisonment to run consecutively. On indictment T2017 1093, three offences of making indecent photographs of children, contrary to section 1(1)(a) of the Protection of Children Act 1978, a consecutive sentence of ten months' imprisonment, comprised of ten months on count 1, four months on count 2 and one month on count 3, all concurrent to each other.

[3]Due to the nature of these offences the provisions of the Sexual Offences (Amendment) Act 1992 apply. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall, during that person's lifetime, be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.

[4]The appellant was before these offences a man of previous good character who had worked as a civilian employee with the police and, for over thirty years, had been a foster parent with his wife in North Shields. Throughout the time of the appellant's offending he continued to act as a foster parent.

[5]The appellant's adopted daughter, MR had two children, FC and DC. On 26 August 2016, MR was putting FC to bed when she stated that the appellant, her grandfather, did rude things to her. FC was aged eight at the time of this disclosure. MR confronted the appellant who denied the allegations. The following day MR spoke to DC, who was aged six. He stated that the appellant had played with his penis. The police were subsequently contacted and the appellant was arrested on 27 August 2016.

[6]On 15 October 2016, KW, who was the mother of ARW, was told by MR about the police investigation. KW then disclosed that her daughter, ARW, who was aged four or five, had disclosed to her a year earlier that the appellant had touched her vagina. She had not previously reported this to the police. ARW had, at the time of this offence, been left in the care of the appellant as a babysitter two or three times a month.

[7]In their police interviews, FC disclosed how the appellant kept putting his hands down her pants. The incidents took place in the appellant's home in either the bedroom or the living room and had happened nearly every time FC went to the appellant's house. This offending comprises count 1 and related to touching FC's genitalia over her clothing. DC stated in his interview that the appellant tickled his testicles and his stomach. He described this as happening on many occasions. He stated that the appellant touched his testicles under his pants and inside his underwear. This offending comprises count 2 and involved touching genitalia under clothing. ARW was interviewed and described the appellant touching her vagina by putting his hand inside her underwear. This had occurred in the toilet of the appellant's home whilst his wife had been in the kitchen. This comprises count 3, a single occasion of touching genitalia under clothing.

[8]Once the appellant had been arrested in relation to offences of sexual assault of a child under 13, being offences on indictment T2017 0593, the police conducted a search of the appellant's home and recovered four laptop computers. Evidence obtained from those computers formed the three counts on T2017 1094. Count 1 related to 225 Category A still images and 16 Category A videos. Count 2 related to 194 Category B still images and eight Category B videos. Count 3 related to 313 Category C still images and 3 Category C videos. The range of the ages of the children depicted in the images was between 2 and 14 years. There had also been evidence of systematic searching for key words linked to indecent images of children, the earliest of which dated back to 2007.

[9]Victim personal statements were obtained from the mothers of each of the children in the sexual assault indictment. The statements gave clear evidence of the profound effect on both the children and their families of the offending. The consequences of the appellant's offending against those victims will last for many years.

[10]In sentencing the appellant, the Recorder imposed four years' imprisonment on counts 1 and 2 on indictment T2017 0953. Those sentences were categorised as 2A under the Sexual Offences Guideline, providing a starting point of four years' imprisonment and a category range of three to seven years. The Recorder increased the sentence to reflect the fact that the offending had occurred on many occasions in counts 1 and 2 and the very young ages of the victims. At page 2D of the sentencing remarks, the Recorder also treated the abuse of trust and touching of naked genitalia as aggravating factors. He stated:

"The starting point according to the Guidelines should be one of four years but in the light of the aggravating features given, namely the ages of the children, the abuse of trust that applies in this case and the touching of the naked genitalia, I increase the starting point to one of six years."

That sentence was then adjusted downwards to take into account the significant mitigating factors, namely the appellant's previous good character, the contents of the pre-sentence report, as well as the appellant's history of chronic moderate depression identified in the psychological and psychiatric reports obtained upon the appellant. Before discount for plea the Recorder arrived at a sentence of four years' imprisonment on counts 1 and 2 of this indictment. The Recorder then stated at page 2F:

"You then have the benefit of a plea of guilty at the first reasonable opportunity which reduces that sentence by a third and in those circumstances the sentence … is one of three years four months to run consecutively, making six years and four months."

It appears from his calculation that an error was made in reducing a four-year sentence by one-third to three years and four months, rather than two years and eight months. It does not appear that this error was brought to the attention of the Recorder at the hearing. In respect of count 3 of this indictment, relating to ARW, the Recorder adopted the same starting point of four years. He then stated:

"Taking into account the aggravating features and particularly the fact that you were entrusted with babysitting ARW and her mother leaving you in the belief that she was safe and could be protected, I increase the starting point to five years."

Taking into account mitigation, the Recorder then reduced that sentence from five years to three years and discounted that sentence by one-third for an early guilty plea to a sentence of two years. This was ordered to run consecutively to each of the other sentences on this indictment. This created a total sentence on this indictment of eight years and eight months.

[11]The sentences on the second indictment, T2017 1093 of ten months' imprisonment with concurrent sentences on each count, is not the subject of any criticism. An appropriate sentence was imposed allowing for aggravating and mitigating features and the discount for plea.

[12]On behalf of the appellant, it is argued that the sentence of nine-and-a-half years was manifestly excessive and/or wrong in principle. The grounds of appeal rely principally on the issue of totality, namely that the sentence cumulatively created a sentence that was manifestly excessive. Whilst it is also argued on behalf of the appellant that insufficient weight was given to the mitigating factors, as well as the psychiatric and psychological evidence, the total sentence was too high. Essentially, therefore, the appellant contends that the sentences whether individually on indictment T2017 0953 or cumulatively on both indictments were too severe.

[13]We have considered the submissions made on behalf of the appellant carefully and we have come to the conclusion that the total sentence of nine-and-a-half years was manifestly excessive. In sentencing the appellant, the Recorder adopted the correct Category 2A on counts 2 (in relation to DC) and 3 (in relation to ARW) of indictment T2017 0953. These were two offences of sexual assault of a child under 13 where the touching was of genitalia under clothing. This brought the offending into Category 2 harm. Due to a clear breach of trust, culpability A was appropriate which created a starting point of four years' custody and a range of three to seven years. However, the Recorder appears to have treated as aggravating features the abuse of trust and touching of naked genitalia to increase the sentence before mitigation and plea discount to six years. The abuse of trust was the factor that raised this offending into culpability A under the Guideline; the touching of naked genitalia was the factor that led to Category 2 harm under the guideline. It appears therefore that some element of double-counting may have occurred, by using the same factors to increase the sentence within the category range. However, an important factor that did increase the seriousness of these offences is the very young age of the children.

[14]After increasing the sentence in respect of the aggravating features, the Recorder gave a substantial discount to reflect mitigation, arriving at a four-year sentence. The Recorder then applied a one-third discount and arrived at a sentence of three years and four months on each of counts 1 and 2. It is unfortunate that this arithmetical error was not brought to the attention of the Recorder by either the prosecution or the defence because, a one-third discount from a four-year sentence created a sentence of thirty-two months, or two years and eight months, and not three years and four months.

[15]A further issue that arises in respect of the sentence on count 1, relating to FC, is that this was offending over many occasions but in touching over clothing rather than under clothing. Under the Guideline the correct category for this offending was Category 3A, because it did not involve touching of naked genitalia. The starting point for such an offence is one year's custody with a range up to two years. This offence was aggravated in its seriousness by the age of the victim and the fact that the offending was repeated on many occasions. The abuse of trust and touching of naked genitalia did not increase the sentence within the range. It follows, therefore, that the Recorder fell into error in using the Category 2A guideline for count 1 given that the touching was over clothing and not under clothing. This distinction in culpability is expressly recognised in the Guideline. Nevertheless, the offence merited a sentence at the top of the range of Category 3A which, after discount for mitigation, required a sentence of, in our judgment, eighteen months' custody.

[16]Count 3 relating to ARW was appropriately found to fall within Category 2A involving as it did, touching of genitalia under clothing. For this offence the Recorder correctly arrived at a sentence of three years' custody, notwithstanding that he appeared to use abuse of trust as an aggravating factor. Taking into account both aggravating and mitigating factors, and after credit for plea, a two-year sentence of imprisonment was entirely appropriate.

[17]Although the appellant seeks to challenge the imposition of consecutive sentences for each of the complainants, as well as the indecent image offences, such sentencing is not wrong in principle. Essentially the appellant's argument is based on totality, namely by adding each sentence to the other, save for those within the indecent images indictment, created a total sentence that was excessive. In our judgment, taking into account the correct categorisation of count 1 on indictment T2017 0593 relating to FC and applying the full one-third discount to the sentences, whilst making them consecutive, arrives at a sentence of five years and eight months. This is comprised of sentencing on T2017 0953 of twelve months' imprisonment on count 1, 2 years and eight months on count 2 and two years' imprisonment on count 3, each sentence being consecutive. On indictment T2017 1093, the indecent images indictment, with ten months' imprisonment to be served consecutively, provides a total sentence of six-and-a-half years' imprisonment.

[18]Accordingly, we quash the sentence of nine-and-a-half years' imprisonment and impose in its place a sentence of six-and-a-half years' imprisonment. To that extent the appeal is allowed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: Rcj@epiqglobal.co.uk