R v Michael Ian Graham [2024] EWCA Crim 1764

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[2024] EWCA Crim 1764

IN THE COURT OF APPEAL

Between

R E XCrown

B e f o r e:

LADY JUSTICE WHIPPLE DBE

MR JUSTICE LAVENDER

MRS JUSTICE STACEY DBE

____________________

- v -

Between

MICHAEL IAN GRAHAM

____________________

Computer Aided Transcription of Epiq Europe Ltd,

Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE

Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

_____________________

Miss P Pensheon appeared for Applicant

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A P P R O V E D J U D G M E N T

Date 2024-09-25

[1]The single judge has referred to the full court the applicant's applications for a short extension of time and for leave to appeal against a sentence of seven years' imprisonment imposed on him on 15 January 2024 in the Crown Court at Leeds for one count of buggery, contrary to section 12(1) of the Sexual Offences Act 1956, of which he had been convicted in the same court on 11 January 2024. We grant the extension of time, we grant leave to appeal and we proceed to consider the substantive appeal.

[2]The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, no matter relating to the victim of the offence, whom we will call "J", shall during J's lifetime be included in any publication if it is likely to lead members of the public to identify J as the victim of the offence. This prohibition will continue unless it is waived or lifted in accordance with section 3 of the Act.

[3]The indictment alleged that the offence was committed on a date between September 1989 and September 1991. The appellant was then aged between 20 and 22. It appears that the offence may have been committed during the first of the two years of the indictment period, given the evidence that J left the area during the indictment period. There was some confusion at trial as to how old J was at the time of the offence, but it was agreed that the appellant should be sentenced on the basis that J was 16 when the offence was committed.

[4]The appellant and J lived in the same rural community and they knew each other through the local branch of the Young Farmers Association. J had difficulties at home and was staying away from his family home. The appellant offered J somewhere to stay, which resulted in J staying in the home of the appellant's mother and sharing a bed with the appellant. After a few nights without incident, J awoke one night to find the appellant behind him in a "spooning" position. J's boxer shorts had been pulled down and the appellant was attempting to insert his penis into J's anus. The appellant succeeded in his attempt to a limited extent. J fought back and the appellant said, "What's wrong with you? I thought you liked it." At the time, J disclosed the offence to his parents and to a friend, but he did not contact the police. He first contacted the police in 2020, after the appellant had tried to contact him via Facebook.

[5]Meanwhile, the appellant had been convicted on 13 September 2012 of one count of indecent assault on a male under 14, eight counts of indecent assault on a male under 16 and one count of gross indecency with a male under 16. These offences were all committed between 1988 and 1992. The offences included touching both over and under clothing, masturbation and sucking a penis. The appellant received a total sentence of four years' imprisonment for those offences.

[6]At the sentencing hearing there were before the court a victim personal statement and two brief character references, but no pre-sentence report. The judge had heard the trial and we agree that no pre-sentence report was necessary.

[7]The judge considered the offence-specific sentencing guideline for the corresponding offence under the current law, namely rape. He placed the appellant's offence in category 2B, with a starting point of eight years' imprisonment and a range from seven to nine years. No complaint is made about that.

[8]The judge had regard to the fact that the maximum sentence for the offence at the time was ten years' imprisonment. The maximum sentence for rape is now (as it was then) life imprisonment. The judge also had regard to the fact that this was a short-lived incident and he said that he had considered the references.

[9]It was submitted to the judge that he should apply the totality principle to this offence and the offences of which the appellant was convicted in 2012. The judge said that he did accept, to some extent, what the appellant's counsel said about totality.

[10]In the light of all the circumstances, the judge decided that the appropriate sentence was seven years' imprisonment.

[11]There are two grounds of appeal. The first is, in effect, that the judge did not adequately reflect in the sentence which he imposed the mitigating factors, namely the appellant's youth at the time of the offence, the short-lived nature of the offence and the passage of time since the offence, especially as the appellant has committed no offences for over 30 years.

[12]The second ground of appeal is that the judge did not give adequate effect to the principle of totality. In relation to the second ground, it is submitted that the judge should have considered what sentence the court would have imposed if it had been sentencing the appellant for all 11 offences at the same time.

[13]We are very grateful to Miss Pensheon for the clear and persuasive manner in which she has made her submissions today in support of those grounds.

[14]As to the first ground, we observe that in his sentencing remarks the judge did not refer to any aggravating factors in this case, save that he did refer to the appellant's attempt to make contact with J after 30 years, which, as is clear from J's personal statement, significantly aggravated the harm caused by the original offence. In our judgment, that can properly be seen as an aggravating factor, but it is the only one. The judge said that the appellant was about 21 years of age when he committed the offence. He did not expressly say that he treated that as a mitigating factor, but it is well-recognised that defendants in the early years of adulthood are less mature than older defendants.

[15]As for the short duration of the incident, this is perhaps better seen as the absence of an aggravating factor, rather than as a mitigating factor. The offence is committed as soon as there has been penetration. "Sustained incident" is a factor listed in the guideline as indicating that the harm falls within category 2, rather than category 3.

[16]We accept that the passage of time since the incident can constitute a mitigating factor, especially if there has been no further offending, and that it was a mitigating factor in this case. The judge did not expressly address this issue in his sentencing remarks.

[17]Turning to the second ground of appeal, we begin by saying that we do not consider that the issue which this raises is properly to be seen as the application of the totality principle: see [14] of the judgment of this court in R v Cosburn

[2013] EWCA Crim 1815

. However, it is undoubtedly the case that the court has a discretion when sentencing a defendant to take into account a sentence which the defendant has already served in respect of similar offences. The position was summarised by this court at [18] of its judgment in R v Green

[2019] EWCA Crim 196

[2019] 4 WLR 37

, as follows:

"In our judgment, the learned Recorder, whilst adopting a thoughtful and careful approach to what was a difficult sentencing exercise, was nevertheless wrong to refuse to take into account the previous custodial sentence simply on the basis of the gravity of the instant offences (see her sentencing remarks cited at paragraph 13 above). We cannot see that this is a proper basis upon which so to refuse. Faced with a situation such as this, the judge sentencing in respect of the new offences, should consider all the circumstances in deciding what, if any, impact the previous sentence should have on the new sentence to be passed. Thus, we endorse the nuanced approach of Simon J in Cosburn's case. Without laying down an exhaustive list, those circumstances may include: ◦ how recently the previous sentence was imposed; ◦ the similarity of the previous offences to the instant offences: in this regard, we would remark that it will usually be helpful to obtain as much information as possible about the previous offences; ◦ whether the offences overlap in terms of the time they were committed; ◦ whether on the previous occasion the offender could realistically have 'cleaned the slate' by bringing the further offences to the attention of the police and asking them to be taken into consideration (we can envisage cases of historical sex abuse against multiple victims many years previously where the offender might genuinely have forgotten some of his offending and have made a genuine but in fact incomplete effort to clean the slate); ◦ whether to take the previous sentence into account would, on the facts of the case, give the offender 'an undeserved, uncovenanted bonus which would be contrary to the public interest' as referred to by Treacy LJ in McLean: this will particularly be the case where a technical rule of sentencing has been avoided or where, for example, the court has been denied the opportunity to consider totality in terms of dangerousness; ◦ the age and health of the offender, particularly if the latter has deteriorated significantly as a result of his incarceration and any other relevant circumstances including, for example, his conduct whilst in prison; and ◦ whether, if no account is taken of the previous sentence, the length of the two sentences is such that, had they been passed together to be served consecutively, that would have offended the totality principle. Having considered such matters and any others relevant to the instant case, the judge, having reached the appropriate sentence for the instant offences (taking into account the totality principle in respect of the new offences alone), then has a discretion whether or not he or she should make some further allowance or reduction to take account of the previous sentence. As stated by Simon J the end result may well be the appropriate sentence for the instant offence(s) without any further reduction being necessary or desirable."

[18]It appears from his sentencing remarks that the judge was of the view that this was an appropriate case to exercise that discretion. The issue, therefore, is whether sufficient account was taken of this and the other factors relevant to the sentence.

[19]Looking briefly at the factors listed in Green, the appellant's previous sentence was imposed in 2012, 11 years earlier. The previous offences were similar to the present offences: they were all sexual offences against boys. The previous offences overlapped in terms of time with the present offence. The appellant could have cleaned the slate in 2012. On the other hand, taking the previous sentence into account would not give the appellant an undeserved benefit. The appellant is now 55 years old. We have not been told of any relevant health issues. Finally, in our view, not to take account of the previous sentence would mean that the length of the two sentences was such that if they had been passed together, that would have offended the totality principle.

[20]In the light of all of those factors, we have concluded that the combination of the mitigating factors of the appellant's age at the time of the offence, the time which has elapsed since the offence, with no further offending since 1992, the need to have measured regard to the maximum sentence for the offence when it was committed and the matters referred to in Green are cumulatively such that the sentence of seven years' imprisonment was manifestly excessive.

[21]Accordingly, we quash that sentence and we impose instead a sentence of five years' imprisonment.

[22]For the avoidance of doubt, we state that the appellant will be released no later than halfway through this sentence, namely after two years and six months. The remainder of the sentence will be served on licence in the community. The appellant must comply with all the conditions of his licence, failing which he will be at risk of recall to prison to serve the remainder of the term in custody. ________________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk ______________________________