Attorney General's Reference No 53 of 2004

LORD JUSTICE KEENE: This is an application under section 36 of the Criminal Justice Act 1998 by Her Majesty's Attorney General for leave to refer a sentence to this court because it appears to him to be unduly lenient. We grant leave and treat this as being the hearing of the reference.

On 13 April 2004 at Carlisle Crown Court the offender pleaded guilty to 45 counts of indecent assault on a male person contrary to section 15(1) of the Sexual Offences Act 1956. He was sentenced on the same day by His Honour Judge Phillips to 5 years' imprisonment on each count to run concurrently. It was ordered under section 86 of the Powers of Criminal Courts (Sentencing) Act 2000 that he should remain on licence to the end of that sentence after his release. In addition he was disqualified from working with children indefinitely and ordered to register as a sex offender indefinitely. The total term of imprisonment imposed, therefore, was 5 years.

The offences involved the sexual abuse of three boys, each over a five period. In each case the victim was aged between 8 and 13 years. The offences took place between the mid 1970s and early 1980s over a period of seven years in all, but they only came to light more recently. In the case of each victim there were numerous incidents of masturbation of the boy by the offender and of oral sex both on the boy and on the offender. In the case of one of the victims there were incidents of masturbation where the offender inserted his penis between the boy's legs with the boy lying face downwards. We note that there were no offences to be dealt with by the judge of buggery or of anal penetration of any kind.

The offences arose out of a relationship between the offender and the families of the boys who are themselves related. There were regular family holidays together, which in time developed into the boys being allowed to travel for holidays on their own with the offender without any parental supervision. That was when the abuse began. There can be no doubt that the offender was trusted by the parents of the boys.

The sentencing judge rightly noted that the offences were aggravated by the buying of presents for, and the giving of treats to, the boys as inducements. In one case he promised the boy that he would receive £500 in the offender's will when he died. The offender also used a system of threats and punishments to induce the boys to comply with his wishes, on one occasion locking the victim out of their hotel room for three hours because the boy had refused to perform oral sex on him. There were threats to take back presents already given if the boy did not do as the offender wanted. By these processes he groomed each of the victims for the sexual abuse.

The first victim estimated that he had been subjected to at least 300 separate instances of abuse over the period of about five years. In the case of the second victim, the assaults occurred on almost every occasion when the offender was alone with him; those occasions being numerous. Those on the third victim were of a similar frequency.

In each case, we emphasise, the sexual abuse began when the offender was aged eight. Its continuation, in each case over a period of five years, has had a profound effect on each of the three victims. One boy, in his impact statement, speaks of not a day passing without thinking of the abuse he suffered and the fear he had of anybody finding out what had occurred to him. He described being unable to allow anyone to get too close or to know anything about him.

The second victim has suffered from severe depression and suicidal feelings. The third has found that the memories of the abuse have seriously affected his relationship with his wife and children to the extent that he could not stand physical contact with children.

This abuse occurred when the offender was between the ages of 36 and 43. He is now aged 65. He is a man without previous convictions. At interview he admitted the offences and, as indicated, he pleaded guilty in court.

In his sentencing remarks the judge noted a number of aggravating features possessed by these offences. First, the offender was in a position of trust in respect of each boy, being trusted by the parents. He clearly abused that trust. Secondly, there were three victims. Thirdly, the abuse began when each victim was young, only eight years old. Fourthly, the abuse took place over a protracted period, some five years or so, in each case. Fifthly, it occurred frequently during that time. Sixthly, it had a marked and profound effect on the lives of these boys and their families. Seventhly, there was deliberate grooming of each of them with a systematic use of presents and threats to achieve compliance.

The Attorney General draws attention to that accumulation of aggravating features, but he adds the fact that the offender clearly had, and continues to have, a complete lack of awareness as to the impact of his behaviour and the damage he has done. There is some issue as to that taken on behalf of the offender by Mr Hoare, but it is to be noted that the pre-sentence reports states that Mr Lowe "....does not now want to consider the harm he has created", and that he continues to see the boys as complicit in the offences.

The Attorney General recognises that there were some mitigating features present, namely the offender's previous good character and his pleas of guilty. Nonetheless, it is submitted on his behalf by Mr Lewis, that the total sentence of five years' imprisonment failed properly to reflect the seriousness of this offending and the aggravating features present; in particular, that there were three very young victims who were subject to many serious assaults committed over a prolonged period. In addition, it is contended that the sentences failed to punish the offender adequately and deter others from committing similar offences, as well as not reflecting the degree of public concern about this kind of abuse.

Consequently Mr Lewis submits that the sentences passed were unduly lenient. He argues that the judge adopted too low a starting point even though he identified most of the aggravating features. Reliance for that submission is placed on a number of authorities: R v Millberry [2003] Cr App R 25, R v Cubitt (1989) 11 Cr App R (S) 380; Attorney General's Reference No 12 of 1994 16 Cr App R (S) 559; R v Sweeney 1998 2 Cr App R (S) 43; R v Victor Burton-Barri [1999] 2 Cr App R (S) 253; Attorney General's Reference Nos 91, 119 and 120 of 2002 [2003] 2 Cr App R (S) 338; and the group of Attorney General's References from 2003 beginning with 37, which are reported collectively in [2004] 1 Cr App R (S) 499.

On behalf of the offender, Mr Hoare acknowledges the aggravating features to which we have referred, but he emphasises not merely the early cooperation by the offender with the police but also his present age and relative poor health. It is recognised that these have only a limited effect these days upon the length of sentence as the authorities indicate but, nonetheless, it is emphasised that they are matters which should still be taken into account. It is argued that the five year sentence was one which properly reflected the great credit which has to be given for the mitigation of a prompt plea in cases of this kind. Had there been a trial, Mr Hoare submits that sentences in the region of about eight years would have been apt.

Some of the authorities referred to, it is stressed, reflect significantly longer periods of abuse than occurred in the present case. Mr Hoare accepts that there could have been no complaint if the sentence in total had been one or two years longer, but he submits that, even if lenient, the sentence imposed cannot be said to be so far below the expected level as to render it unduly lenient.

It seems to this court that the aggravating and mitigating factors in this case have been fully identified by the parties to this reference. We do not need to rehearse them individually again. The only additional matter which has some relevance, only we stress to a limited degree, is that these offences occurred between 22 and 30 years ago. The issue essentially concerns the appropriate length of custodial sentence in such a case on those acknowledged facts.

As was said in R v Burton-Barri, the relevant factors of cases such as this will include the ages of the victims, their number, the nature of the sexual misconduct, the frequency with which it occurred and whether it involved a breach of trust. We would add to that that the impact upon the victims will be of importance, as will whether or not there was systematic grooming of the victims. These matters are of course capable of almost infinite variety.

Moreover, on looking at the authorities, it seems to this court that, as the Attorney General submits, such sexual abuse of children has come to be treated more severely in terms of sentencing in recent years than would at one time have seemed appropriate. That is brought out in the group of cases beginning with Attorney General's Reference No 37 of 2003 which indicates that less weight these days is to be attached than in the past to such factors as the age of the offender, the staleness of the offences and the previous good character of the offender.

We do not intend to refer in any detail to the earlier authorities which have been cited to us. Guidance can be obtained from more recent decisions of this court, particularly those where there has been deliberate grooming of the victims and where several children were involved. We refer briefly to those which seem to us to be most relevant. In R v Sweeney the appellant had pleaded guilty to a series of sexual assaults on young girls aged between 6 and 14. There were seven victims in all and the assaults took place over periods of years, in some cases five, eight or even nine years. The assaults consisted mostly of digital penetration of the vagina. There was no oral sex involved and no threats or bribes or other forms of grooming. However, the impact on the victims was significant. The offender had been in a position of trust and he was aged 65 at the time of sentence. Reflecting his pleas of guilty, this court reduced his total sentence to 7 years' imprisonment.

In R v Burton-Barri, to which we have already referred, there were five victims, boys and girls, who were aged between 8 and 16 at the time of the offences. Again, there was a plea of guilty; again the appellant had been in a position of trust and he was aged 63 at the time of sentence. The assaults involved masturbation, oral sex and anal penetration either digitally or by an object. This took place in individual cases over four and six years and the appellant had given the children presents in order to achieve compliance. This court reduced the total sentence to one of 10 years' imprisonment. The case was, in certain respects, worse than the present one in that there were more victims, the abuse went on for longer in total and included anal penetration as well as oral sex.

One of the group of Attorney General References 2003, which began with number 37, seems to us to have particular relevance to the present case. It concerns an offender known as RD who was 63 and who had pleaded guilty to eight counts of indecent assault on a total of five boys. He had groomed them for his abuse, which consisted of masturbation, oral sex and stimulated intercourse. The boys were aged 9, 10, 11 and 13. In four at least of the cases the abuse was frequent and took place over something like two to four years. The offender had been in a position of trust and the abuse had had a serious effect on the lives of the victims. This court indicated that the appropriate sentence at first instance, had the offender not served already a sentence in Spain, would have been seven years.

Finally, we were referred to the Attorney General's Reference 112 of 2002 (Wood) [2002] Cr App R (S) 57 where the offender had been convicted after a trial of indecent assaults on four boys between the ages of 9 and 13 and one girl aged 13. The assaults consisted of masturbation, some digital penetration, simulated anal intercourse but no oral sex. The offender had been in a position of trust and had groomed and threatened his victims. Unlike many of these cases the offender had a record of previous offences of a similar kind in respect of children. He was aged 50. Allowing for double jeopardy the court increased the sentence to one of eight years custodial with an extended licence period of two years. Eight years was a longer than commensurate one to protect the public from serious harm.

In the light of those authorities, we turn to the present case. Here we have three victims who the offender deliberately groomed for abuse over about five years in each case. The effect on his victims' lives has been grave. He was undoubtedly in a position of trust. His pleas of guilty are important in a case such as this because they avoid the need for the victims to give evidence, but we also note the offender's failure to appreciate the harm which he has caused and the absence of real remorse.

Despite the mitigating factors, including his age, it seems to this court that at first instance there could not have been a total sentence of less than seven years' imprisonment. It follows that the sentences of five years' imprisonment were lenient. In this court's judgment they were unduly lenient. We shall quash them and in their place, having made allowance for double jeopardy because this is a reference, we shall in each case substitute a sentence of six years' imprisonment, those sentences to run concurrently. The total term, therefore, will be six years' imprisonment. As before, this offender must remain on licence for the whole of that period. The other orders made below will stand.