Minshull, R v

THE VICE PRESIDENT: On 6th September 2004, at Warrington Crown Court, this applicant pleaded guilty to an offence of assault by penetration under section 2 of the Sexual Offences Act 2003. He was sentenced to five years' imprisonment. His application for leave to appeal against sentence has been referred to the Full Court by the Registrar.

The victim was a 13-year-old girl (she had just reached the age of 13) with severe learning difficulties. She was also partially sighted and partially deaf, to the extent, in relation to the latter condition, of requiring a hearing aid.

The applicant was a friend of her father and, in consequence, regularly visited her home. He was there on Sunday 11th July 2004. Her mother had to go out. She asked the applicant to look after the girl for five minutes. The applicant agreed, and he was left alone with the girl. She went to the toilet. As she was about to leave, the applicant entered the bathroom, pulled down her underwear, faced her away from him and stood behind her. He seized her wrists and held them forcibly. He then inserted his finger in her vagina and put it up and down. The girl was distressed. She asked the applicant to stop because it hurt her. He continued.

At that stage the applicant was interrupted because of the return to the premises of the girl's mother. The mother went into the bathroom. She found the applicant trying to hide behind the door. The girl told her mother what had happened. The police were called and, about quarter of an hour later, the applicant was arrested.

In interview, he denied the girl's allegation. He said that he had been desperate for the toilet and had gone to the bathroom, but nothing untoward had taken place. However, the girl's DNA was recovered from the applicant's right hand.

In passing sentence, the learned judge referred to the deliberate touching of this vulnerable 13-year-old girl and the finding of the DNA, which proved his guilt.

The applicant is 53 years of age, and in 1996, at Manchester Crown Court, for four offences of indecent assault on a female under the age of 14, he was sentenced to two years' imprisonment. The judge commented that that should have been a salutary warning. He went on to say that the starting point, had there been a trial, would have been seven years' imprisonment. Taking account of his prompt plea, the judge passed the sentence of five years, to which, at the outset, we referred.

On behalf of the applicant, Mr Le Brocq referred to a number of authorities, including Milberry [2003] 1 Cr App R (S) 396, and a number of decisions of this court in relation to sentences passed for indecent assault during the last ten or more years. He submitted that the judge's starting point, which he had thought was expressed to be six years but which the transcript shows to have been seven years, was too high. He submits that, by reference to suggestions of the Sentencing Advisory Panel in their Consultation Paper of 12th February 2004, the starting point for this offence should have been significantly lower than either six or seven years, and the final sentence should, in consequence, have been lower than the sentence passed by the learned judge in view of the plea of guilty.

Mr Williams, for the Crown, submits that there are aggravating features in this case, bearing in mind the vulnerability of this girl, by reason not just of her age but also of her other disabilities to which we have referred. He stresses, too, the breach of trust and the previous convictions to which we have referred.

In our judgment, previous decisions in this court in relation to the level of sentence appropriate for indecent assault involving digital penetration cannot now be regarded as authoritative in view of the provisions of section 2 of the Sexual Offences Act 2003. It is to be noted that, over the last twenty years or so, the maximum sentence for indecent assault has been increased from two years to ten years and the maximum sentence now provided for the offence of assault by penetration is life imprisonment.

In our judgment, for the reasons further elaborated in the judgment which has just been given by this court in Attorney-General's Reference No 140 of 2004 (Garvey), the starting point for assault by penetration is, in the ordinary way, where the offence is committed by an adult, likely to be in the region of four years.

In the present case, however, there are significant aggravating features. The age and specific vulnerability of the girl, the breach of trust and the previous convictions all, as it seems to us, serve to demonstrate that the learned judge's starting point of seven years, had there been a trial, was not only not too high but was correct. The sentence of five years which he passed is, as it seems to us, unimpeachable. It follows that this application must be refused.