Attorney General Reference No 125 Of 2004

THE VICE PRESIDENT: The Solicitor General for the Attorney-General seeks the leave of the Court, under section 36 of the Criminal Justice Act 1988, to refer sentences said to be unduly lenient. We grant leave.

The offender is 70, having been born in April 1934. On 16th August 2004 he was convicted of a number of sexual offences against his granddaughter. Sentence was adjourned for the preparation of reports and on 20th September the offender was sentenced by His Honour Judge Neligan, at Maidstone Crown Court, where and before whom the trial had been conducted, to a total of 3 years' imprisonment and a number of ancillary orders. That sentence of 3 years was passed on counts 5 and 6, which were of attempted rape; 18 months' imprisonment concurrent was the sentence on counts 1, 2 and 3, which were indecent assault, and 12 months concurrently was the sentence on count 4, which was indecency with a child. A Sexual Offences Prevention Order was made under section 104 of the Sexual Offences Act 2003, to last indefinitely, with conditions to ensure that the offender never lived with a child under 16, nor allowed a child under 16 to come into premises where he was staying and nor should he approach or communicate with anybody under the age of 16 in a public place, without good reason. The offender was also disqualified for an indefinite period under section 28 of the Criminal Justice and Court Services Act 2000 from working with children. He was also told of the reporting requirements in relation to the Sex Offenders Register.

In summary, the offences were committed between July 1992 and July 2000. During that period the offender sexually abused his granddaughter when she was between the ages of six-and-a-half and 13. He progressed from touching her private parts, under her knickers, to inserting his fingers into her bottom and vagina and making her touch his exposed penis. Those offences occurred on many, possibly hundreds, of occasions. On one occasion he tried to put his exposed semi- erect penis into her vagina and then into her anus.

In a little more detail, the offender and his wife had a daughter who had five children, of whom the victim of these offences, who is now 18, was one. She was born in July 1986. The children would all visit the offender and his wife on a regular basis and the offences occurred in the offender's home.

In a video recorded interview, in March 2003, the girl, who was then 16, told the police that the offender had began to touch her improperly when she was about six-and-a-half years old. He did this on a regular basis and repeated his behaviour almost every time she was alone with him. The first of those occasions was reflected in count 1 in the indictment, which, as we have said, was an offence of indecent assault. When she was nine, he began to insert his fingers into her bottom and into her vagina. That course of conduct went on until she was about eleven-and-a-half. He put his fingers into her vagina, she said "a lot". Count 2, likewise of indecent assault, was a specimen count in respect of those many incidents. The insertion of his finger into her bottom occurred on several occasions and count 3 of indecent assault reflected that conduct. On some days, according to the girl, he might touch her intimately on some five or six separate occasions. She described his conduct when they were alone in the room as being "pouncing like a tiger, like an animal".

When she was about 9 years old he began to expose his penis to her and to get her to touch it. That gave rise to count 4, which represented one example of that conduct. On occasions she managed to avoid his attentions. For example, she locked herself in the bathroom for several hours after he had, on the first occasion, made her touch his penis. There was an occasion in the greenhouse, when he tried to put his penis into her vagina by sitting her on top of it. He tried then to put it in her anus in the same way. She was shaking and she kicked him and managed to escape. The account she gave was that those two incidents, on the same occasion, occurred when she was about 13, and counts 5 and 6 of attempted rape related to those two specific offences. She did not feel able to tell anyone, partly because the offender had told her not to dare to do so, as no one would believe her any way, and partly because she was concerned about whether she would be believed and about the arguments which might result.

When describing these matters i the video interview, she became extremely distressed, as indeed she did in court, when, as is apparent, she had to give evidence before the jury. It was suggested to her, in cross-examination, that she had made up these allegations.

The girl's parents separated in 2001 when she was 15. The children lived with their mother but continued to have contact with the offender but she made her complaints after her younger sister had made allegations of sexual inappropriately against the offender. Those allegations were the subject matter of a first trial against the offender, in relation to which the judge discharged the jury and ordered a retrial, in relation to the counts which became counts 1 to 6 in relation to this girl.

The offender was arrested on 16th February 2003. He denied any form of sexual misbehaviour. He claimed to have been impotent since 1987. He suggested that her father might have put her up to these allegations in order to get back at his ex-wife.

The offender has no previous convictions and suffers from diabetes and high blood pressure. He cares for his wife, who has suffered, for many years, from severe arthritis, asthma and glaucoma.

On behalf of the Solicitor-General, Miss Cheema draws attention to a number of aggravating features. First, that the offences were committed against a child. Secondly, that they amounted to a deliberate and escalating course of conduct over a number of years. Thirdly, they were committed in gross breach of trust. Fourthly, there was a very significant age gap between the offender and the child, and fifthly, there was an absence of remorse and contrition so far as the offender is concerned.

She draws attention to a number of mitigating features. frst, the age of the offender when sentenced and his ill-health. secondly, his good character; thirdly, both the attempts of rape, not, it is to be noted, in either case the full offence of rape, were committed on a single occasion, and finally, the offender's wife's ill-health has required the offender, when at liberty to do so, to look after her. Those responsibilities are presently being very largely undertaken by their daughter.

Miss Cheema submits that the total sentence of 3 years failed adequately to reflect the gravity of this case and the aggravating features present. The learned judge, she submits, paid too great a regard to the age and characteristics of the offender and insufficient heed to the interests of the victim. In consequence, she submits, the sentence was unduly lenient.

She draws attention to a number of authorities, First R v Millberry [2003] 1 Cr App R 396. Paragraph 8 of the judgment in that case, which draws attention to the materiality in relation to rape of the degree of harm to the victim, the level of culpability of the offender and the level of risk posed by the offender. She adds the fourth feature, in relation to sexual offences, identified by Mantell LJ, giving the judgment of the Court in R v EK & G [2003] 2 GALLR (S) 181 namely the need for deterrence. Miss Cheema also refers to paragraph 20 in the judgment in Millberry, which identifies the fact that the victim was a child suggests an 8 year starting point in relation to an offence of rape. She also draws attention to paragraph 29, where it is said that, although a defendant's good character in cases of this kind should not be ignored, "it does not justify a substantial reduction of what would otherwise be the appropriate sentence." Finally in that authority, she drew attention to the aggravating features identified in paragraph 32 of the judgment, the last being a history of sexual assaults by the offender against the victim. Miss Cheema also referred us to Attorney-General's References Nos 91, 119 and 120 of 2002, the judgment of Mantell LJ to which we have referred, Attorney-General's Reference No 52 of 2003 (R v Webb) [2003] EWCA Crim 3731 and Attorney-General's Reference No 31 and Ors of 2004 [2004] EWCA Crim 1934.

On behalf of the offender Mr Bowers, understandably, lay stress upon the ill-health of both the offender and his wife and the age of the offender. He concedes that the sentence passed by the learned judge was a lenient one. But the most serious of the offences was the attempted rape, which he stresses was less than the full offence of rape and, although there are two counts in the indictment, both related to the single occasion which we have identified. He sought to characterise the offender's conduct on that occasion as amounting really to a very serious indecent assault.

Mr Bowers also referred us to a number of authorities; Attorney-General's Reference No 71 of 2003 [2004] EWCA Crim 103, (R v Willison) (unreported, 10th October 2000), R v PK [2003] EWCA Crim 3212, Attorney-General's Reference No 67 of 2004 [2004] EWCA Crim 2863 and Attorney-General's Reference No 97 of 2003 [2004] EWCA Crim 1626.

In response to Miss Cheema's overall submission that the sentence in the court below ought to have been one of the order of 8 years, Mr Bowers submits that the Court should not interfere with the sentence passed in the court below, either on the basis that the sentence was not an unduly lenient one or that, even if it were, this Court should exercise its discretion in the light of double jeopardy and other considerations not to interfere.

All of those matters we take into account. In the light of the circumstances of this case, as we have sought to summarise them and in the light of authorities to which we have referred, we would have expected, in the court below, a total sentence of the order of 6 years' imprisonment. It follows that the sentence of 3 years passed by the learned judge was an unduly lenient one.

We take into account double jeopardy. The sentence which we pass, having regard to double jeopardy and to the additional aspects of the offender being required, as soon as can reasonably be achieved, to care for his wife, we quash the sentence of 3 years passed in relation to the offences of attempted rape and we substitute for those sentences a sentence of four-and-a-half years' imprisonment. That sentence will run concurrently with the other sentences imposed by the learned judge.