Thomas, R. v

THE VICE PRESIDENT: On 2nd December 2004 at Harrow Crown Court, this applicant pleaded guilty to two counts of sexual activity with a child family member, contrary to section 25(1) and (6) of the Sexual Offenders Act 2003. On 5th January 2005, he was sentenced by His Honour Judge Black to 4 years' imprisonment. His application for leave to appeal against sentence has been referred to the Full Court by the Registrar because this is the first occasion that there has come before this Court an offence of this kind under this section. We grant leave to appeal.

The victim was born in July 1987 and from the age of 11 she was in care. In 2002, she was placed in the care of the appellant and his wife who had children of their own and who were approved foster carers. The appellant and the victim got on well and their relationship became sexual. The two incidents giving rise to the counts in the indictment occurred after the victim was no longer in the appellant's care. She had moved to semi-independent accommodation elsewhere and there the appellant visited her. In July or August 2004, he had sexual intercourse with her with her consent.

The social worker with responsibility for the girl didn't know that the appellant was visiting until the girl told the social worker about this. The girl was in a condition of considerable emotional distress and has indeed made a victim impact statement. But it is apparent that little of that of which complaint is made in the victim impact statement can be attributed to the conduct of the appellant.

As a result of having disclosed the appellant's visits, the girl was given advice by the Welfare Department and a tape recorder was secreted in her flat.

On the evening of 1st September 2004 the appellant visited her and sexual intercourse again took place, giving rise to count 2. Some earlier activity between the appellant and the girl had been tape-recorded secretly by the girl. The appellant realised that that was being done and he sought to discover the whereabouts of the tape. He was unsuccessful.

The police were contacted. The appellant was arrested. He described in interview the two instances, one before he had been on holiday and the second in relation to which he had, in the circumstances which we have already identified, been set up by the girl. He pleaded guilty on the basis that these were the only two offences which he had committed, and that the majority of the girl's statement was not accepted by him.

The learned judge, in passing sentence, referred to the situation of trust which existed between the two parties. He took into account the aggravating and mitigating features, including the guilty pleas entered at an early stage and the fact that the appellant had no previous convictions. He also took into account the appellant's general behaviour over a period of time, though he was passing sentence, as he said, rightly, only for these two specific acts.

The pre-sentence report referred to the appellant's apparent inability or unwillingness to take responsibility for his offending and his lack of insight into the possible effects which his misconduct might have on the girl. The judge described the offences as a serious dereliction of duty as a former foster parent and he went on to pass the sentence of 4 years' imprisonment to which we have referred.

The appellant was born in December 1957 and therefore is now 47 years of age. There were before the judge, as there are before this Court, a bundle of references from children formally in the care of the appellant and his wife, which speak highly of him as a foster carer.

The submission which is made by Mr Bryan, on behalf of the appellant, is that the sentence passed by the learned judge was excessive. Mr Bryan drew this Court's attention to R v Hubbard [2002] 2 Cr App R(S) 473, an authority which was not brought to the attention of the sentencing judge, in which this Court upheld a sentence of 2 years' imprisonment in relation to a school teacher who had had sexual intercourse with a fifteen-year-old pupil at the school where he was employed. He had pleaded guilty to three counts of abusing a position of trust contrary to the Sexual Offences (Amendment) Act 2000, section 3.

Mr Bryan also invited the Court's attention to the guideline case in relation to incest, Attorney-General's Reference No 1 of 1989 11 Cr App R(S) 409. He submitted that offences of this nature can properly be addressed in three separate categories when determining their seriousness: he submitted that incest was the gravest category; sexual intercourse with a girl currently in foster care is the next most serious category; and the least serious category, submitted Mr Bryan, is sexual intercourse with one who is no longer in foster care. In our judgment, categorisation of that kind is not entirely appropriate. In the first place the considerations which apply to foster carers are not the same as apply to blood relations with whom the offence of incest deals. Secondly, we are not persuaded that, if the offence is committed against someone who was but is no longer in foster care, it is necessarily less serious than when committed against one who is still in foster care, particularly, where, as in the present case, the offence is committed against a girl in circumstances where it would almost certainly not have been committed had the girl not been in the appellant's care as a foster carer.

The gravamen of this offence, as it seems to us, lies in the abuse of the relationship with a child. It is to the family relationship as defined in section 27 of the 2003 Act that this offence is directed.

It is to be noted that a very wide variety of different levels of conduct can give to these offences. There are, as it seems to us, three particular factors which are pertinent to sentencing for this offence: the age of the parties; the nature of the sexual activity engaged in and the number of occasions when the activity occurs. So far as the age of the parties is concerned, the younger the child and the greater the gap between her age and the age of the defendant, the more serious the offence is likely to be. So far as the nature of the sexual activity is concerned, the nature and length of time of the penetration are relevant: penile penetration will usually, though not always, be more serious than non-penile penetration. Full sexual intercourse is likely to be at or near the top of the range of seriousness so far as the conduct is concerned (see the discussion about penetration in Attorney-General's Reference No 1O4 of 2004 (R v Garvey & Ors) [2004] EWCA Crim 2672. There are also observations which are of relevance to sentencing in this area to be found in the Court's decision in Corran & Ors [2005] EWCA Crim 192). The third factor is, as we have said, the number of occasions on which the sexual activity occurs. In the present case, there were two occasions, but they have to be viewed in the context of the background to which we have referred.

Mr Bryan stresses, by way of mitigation in the present case, the pleas of guilty, the fact that the appellant apparently did not appreciate that the activity in which he was engaged with a 17-year-old girl was a criminal offence and the excellent references and good character which the appellant had enjoyed prior to this misconduct. Mr Bryan invites us, as we do, and as indeed the sentencing judge did, to pay little attention to the victim impact statement.

Taking all these matters into consideration, in our judgment, the sentences of 4 years, following pleas of guilty, were manifestly excessive. Those sentences will be quashed and there will be substituted for them sentences of two-and-a-half years' imprisonment, concurrently on each count. To that extent this appeal is allowed.

MR BRYAN: Just looking at the notification requirements the judge in this case in fact said--

THE VICE PRESIDENT: He got it wrong.

MR BRYAN: He got it wrong. I think two-and-a-half years.

THE VICE PRESIDENT: Whatever is the appropriate period for notification which follows automatically for registration under the Sexual Offenders Act in the light of the two-and-a-half year sentence, will apply. I am told and I accept that it is in fact indefinite.

MR BRYAN: In fact?

THE VICE PRESIDENT: Registration indefinitely. Thank you.