Attorney General's Reference No. 142 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 a sentence said to be unduly lenient. We grant leave.

The offender is now 32, having been born in February 1973. He was convicted, following a trial, on 1st October 2004 of four offences of indecent assault and one offence of indecency with a child. Following adjournment for the preparation of reports, he was sentenced by His Honour Judge Smith, at Preston Crown Court, on 1st November 2004 to an extended sentence of 4 years under section 85 of the Powers of Criminal Courts (Sentencing) Act 2000 the custodial term of which was 2 years' imprisonment concurrently in relation to the offences to which we have referred, with a further consecutive sentence of 3 months' imprisonment imposed in respect of a Bail Act offence committed during the course of the trial. In addition, there was an extended licence period of 2 years.

In summary, during a period of 18 months the offender indecently assaulted the 10 year old friend of his stepdaughter, kissing her, touching and pressing his penis against her vagina and masturbating in her presence. The girl (to whom we shall refer as T) was born on 4th July 1992 and lived with her family. She was a friend of the daughter of the offender's partner. As a result, she would stay overnight with the offender and his family and indeed take trips away with the offender's family. When she was 10 years old she was first assaulted and that conduct continued until she was eleven-and-a-half.

Count 1, of indecent assault, related to the period to which we have referred. The victim stayed overnight. She was in bed with her friend, watching a video, when the offender came into the room, put his hand under the duvet and beneath her underwear and touched her vagina for a minute or so. Count 2 was a similar offence, which occurred when the girl was camping with the offender and his partner's daughter. On that occasion, he kissed the girl, putting his tongue inside her mouth. Count 3, of indecency with a child, alleged that, during 2003, the girl was sleeping over and found herself alone in the living room with the offender, who took his penis out and encouraged her to touch him, which she did. He then masturbated himself. Count 4, of indecent assault, during 2003, related to the same occasion as count 3, a little later. On the sofa, the offender pulled the girl's knickers down and put his penis against her vagina. The victim told him to get off. He did. He masturbated himself to ejaculation and wiped himself on a black and red sweatshirt. Count 5, of indecent assault, related to the final assault occurring on New Year's Eve 2003 when the girl and her friend were sleeping in the offender's bed. Later the offender got into the bed and undid the zip on his trousers. She felt him touching her over her nightie. As he moved his hand towards her vaginal area, she grabbed his hand and told him to stop: he did. It is to be noted that this case does not involve penetration of the girl.

In her video recorded interview the victim told the police that, during her visits, the offender would provide her with cigarettes, money and alcohol. He told her she was beautiful and when she was 16 he would leave his partner and they would live together. The offending came to light on 16th January 2004. The offender was interviewed. He denied the allegations and claimed the girl was fantasising. However, the red and black sweatshirt, to which earlier we referred, was scientifically examined and revealed the presence of his semen.

He has convictions for theft, using threatening and abusive words and behaviour and criminal damage. But he has not previously lost his liberty.

In the pre-sentence report, the probation officer observed that, in view of the offender maintaining his innocence, no meaningful discussion was possible. The author of the report assessed the risk of re-offending as lying within the medium range. Non-custodial disposal was not suggested.

Miss Cheema, on behalf of the Solicitor-General, draws attention to four undoubted aggravating features: first, the position of responsibility occupied by the offender and the betrayal of trust which his conduct indicated; secondly, the youth and vulnerability of the girl; thirdly, the repetition of the conduct over a significant period of time, and fourthly, the nature of the conduct in touching the vagina of a 10 year old girl in the way which we have described.

Miss Cheema draws attention to the mitigation to be found in the absence of previous convictions in relation to sexual abuse. She draws attention to three authorities: R v Simpson 12 Cr App R(S) 674, Attorney-General's Reference No 20 of 1998 (R v Pidcock) [1999] 1 Cr App R(S) 280 and Attorney-General's Reference No 32 of 1998 (R v Gilks) [1999] 1 Cr App R(S) 316. She submits that the sentence passed was unduly lenient, failed to reflect public concern about cases of this kind and failed to be, as she submits it ought to have been, a deterrent sentence.

On behalf the offender, Mr Ashmole submits that this was an experienced judge passing sentence, who had the advantage of seeing witnesses and gauging the impact of the offender's conduct on the girl. He accepts that there is not in this case any remorse on which reliance can be placed and that custody was inevitable. He stresses that the present term of custody is the offender's first such term. Mr Ashmole accepts that there was a breach of trust but, he submits, it was not of the gravest kind. He also draws attention to the prison report which refers to the offender making good progress. There is also reference in that report to the grave illness of the offender's daughter.

Mr Ashmole's submission is that, if the Court takes the view that the sentence passed was duly lenient, it should exercise its discretion not to interfere.

We take all of these matters into account. We would have expected, in the court below, following a trial, a custodial sentence of the order of 3 years in relation to these offences, in which case a consecutive sentence, in relation to the Bail Act offence, would have been unlikely to have been as much as 3 months and might well have been of the order of 1 month. It follows that the sentence passed was sentence, so far as its custodial aspect is concerned. We entertain some doubt as to whether the total sentence can properly be characterised as unduly lenient, when the extended period of licence is taken into account.

Accordingly, this is not a sentence with which, in the exercise of our discretion, we think it appropriate to interfere. Therefore, we do not do so.