Attorney General's Reference No. 112 OF 2005

LORD JUSTICE KEENE: This is an application under section 36 of the Criminal Justice Act 1988 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 we treat this therefore as the hearing of the Reference.

On 21st October 2005 at the Crown Court at Exeter before His Honour Judge Boothman, the offender was convicted after a trial of four counts of indecent assault. On the same occasion he was sentenced to 30 months' imprisonment on each count concurrently, making a total of 30 months' imprisonment. He was disqualified from working with children and ordered to register as a sex offender indefinitely.

The four counts involved three victims to whom we shall refer as L, A and B. L and A were aged 11 at the time of the offences and B was 14. The offences consisted in each case of masturbating the victim, in two instances to ejaculation. Two of the offences were against L. In three of the offences the victim was at the offender's home at night for a sleepover because the victim was a friend of the offender's nephew who lived with him. The other offence took place while the boy was camping in a tent with the nephew.

The offender was a cub scout leader and one of the victims was a cub scout. The offender was in his late thirties at the time of these offences. The first offence against L took place in 2000 at the offender's home. The offender told L that he had a nice stomach and began to rub the victim's stomach. The offender then began to touch the victim's penis and to masturbate him to ejaculation. He told the victim this was to get rid of the old sperm so that new ones could be made. The offender persisted in the assault even though the victim asked him to stop. The victim did not know what to do to stop the offender but said he realised that what the offender was doing was wrong. He was told not to mention what had taken place.

The second offence against L was in the same year and took place in a tent. The offender came in, laid down beside the victim and again masturbated him to ejaculation. Some time later the victim asked to see a counsellor. He was unable to describe orally what had happened and in the end put the details down in the form of a letter.

The second victim, A, was assaulted in 2002 and again was 11 at the time. He met the offender through the scout movement since this victim was a cub scout. During a sleepover the offender began to masturbate the victim. He told him that he had been a nurse and that as part of his work he had to rub oil into young boys' penises. On his return home the victim had been upset and did not want to go to scouts any more. He later left the scout movement.

The third victim, B, was assaulted in early 2003 when he was 14. During a sleepover the offender gave him alcohol in the form of lager and vodka. This caused the victim to vomit. His pyjamas were then changed and he was put to bed. The victim's memory of events is somewhat clouded by the alcohol which he was given, but he recalled waking up to find the offender touching his penis. The offender masturbated the victim. The victim resisted and pushed the offender away causing him to fall off the bed. The victim was noted by his mother to be quiet and withdrawn when he returned from the sleepover.

The offender denied all the allegations at interview and did so again at trial. He is now aged 42. He has a previous conviction for indecent assault on a 10-year-old boy. That took place in 1979 when the offender was aged 15.

Counsel for the Attorney General submits that the sentences passed in this case failed to reflect properly the seriousness of the offences, the need to deter others from offences of this kind and public concern about such cases.

Attention is drawn on behalf of the Attorney General to a number of aggravating factors in the case. First, the offences involved a breach of trust in respect of the victims. Second, there were three separate victims of this indecent behaviour. Third, they were all young. Fourth, the indecent conduct was of a persistent nature. Fifth, the nature of the indecency is described on behalf of the Attorney General as being serious, involving in two of the instances masturbation to ejaculation. Sixth, reference is made to the offender's previous conviction for indecent assault. Seventh, one of the victims was given alcohol by the offender and then indecently assaulted after he had fallen asleep. And finally, attention is drawn to the effect of these offences on the victims. We shall return to that in due course.

Miss Bennett Jenkins, who appears today on behalf of the Attorney General, recognises that there was no evidence of grooming the boys or of payment of money to them. Nonetheless, on the authorities, to which we shall come, it is submitted that the sentence of two-and-a-half years was and is unduly lenient.

For the offender Mr Crabb accepts that the sentences passed in this case were lenient, but he challenges whether they were unduly so. He emphasises that the previous conviction for indecent assault took place a long time ago when the offender was only 15. He also emphasises that these were not specimen counts and that no threats were employed by the offender nor, as we have indicated already, was any money used in order to persuade the boys to allow the indecency to happen. It is accepted by Mr Crabb that these were serious offences and accepted also that they must have had some effect on the boys but it is argued that the judge heard the boys give evidence and was therefore in a good position to assess the impact on them. Moreover, our attention is drawn to a recent report on the offender which indicates that he now recognises his responsibility for these offences and has asked to be assessed for a sex offenders treatment programme. Consequently, the submission is that the sentences passed here were not unduly lenient.

Before turning to the authorities we remind ourselves that cases of indecent assault on boys can vary greatly in their facts. The acts amounting to indecent assault vary, so of course does the age of the victim, as does the number of victims and the effect on the victim or victims. Nonetheless, having said that, it seems to this court that some guidance can be obtained from previous decisions. In Clarke [1997] 2 Cr.App.R (S) 53 there were three victims aged between 11 and 15 and the defendant was, as in the present case, in a position of trust. The assaults, again, consisted of masturbation. Three years' imprisonment after pleas of guilty was upheld on appeal.

In Nicholson [1998] 1 Cr.App.R (S) 370 the appellant had been convicted after a trial. He was convicted of nine offences in respect of two victims. He had some previous convictions for such offences and there was a breach of trust involved. Again the general nature of the assaults was that of masturbation, although not to ejaculation. A total of four-and-a-half years' imprisonment was upheld.

Finally, in Staples [2001] 2 Cr.App.R (S) 119, a scout master was convicted after a trial of 17 counts against four victims aged between eight and 11. Most of the charges, though not all, involved touching the boys' penises over their clothing. Four years' imprisonment in total was upheld on appeal.

There can be no dispute, it seems to us, that the present case contained a number of aggravating features. In particular, the offences involved a breach of trust. There were three victims in all. They were aged 11 in two cases and 14 in the other. Two of the offences involved masturbating to ejaculation and in one of the others alcohol was administered to the boy almost certainly in order to secure his sleepy compliance.

Given the passage of over 20 years since the previous offence, we do not attach great weight to the offender's record, but the sentences in this case did have to reflect two further factors. First, the effect on the victims who seemed to have been troubled and considerably upset by these events. We have seen impact statements which the sentencing judge did not have before him. They indicate for example that one of the victims found that he could not sleep after the offence against him. Another refers to the offences as having had a devastating effect on his relationship with girls and that he feels very insecure. The other factor to which we would refer is the absence of any pleas of guilty in this case. That of course does not increase the sentence but it means that there is no mitigation available in that respect. All three victims in this case had to go through the trial process and to give evidence and thereby relive these unhappy experiences.

We take into account the matters referred to by Mr Crabb on behalf of the offender but having done so we conclude that the total here of two-and-a-half years' imprisonment after a trial simply did not reflect the serious features to which we have referred. That total sentence was not merely lenient, it was unduly so.

An appropriate sentence in total at first instance in this case would have been one of five years' imprisonment. We have of course to make allowance for the fact that the offender has already been sentenced once and has been under the impression for a time that his total sentence was 30 months' imprisonment. We allow therefore for the factor normally described as double jeopardy. Doing so, we conclude that the appropriate sentence now is one of four years' imprisonment on each count to run concurrently. We therefore quash the sentences of imprisonment imposed below and in their place impose ones of four years' imprisonment on each count to run concurrently. That will therefore give a total of four years' imprisonment.