Attorney General's Reference No. 106 OF 2005

THE VICE PRESIDENT: 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 was born in December 1959 and is therefore now 45. On 19th July 2005, at a plea and case management hearing, he appeared on an indictment which alleged rape on three occasions and alternative counts of sexual activity with a person with a mental disorder impeding choice, contrary to sections 30(1) and (3) of the Sexual Offences Act 2003. It was indicated that there were likely to be pleas of guilty to the sexual activity counts and, in due course, such pleas, it was indicated by the Crown, would be acceptable.

In consequence, on 5th September, the offender pleaded guilty to those three counts and the matter was adjourned for a pre-sentence report. On 30th September he was sentenced by His Honour Judge Dobkin at Leeds Crown Court to a 2 year community rehabilitation order, with a 6 month condition of residence at a probation hostel in Middlesbrough or as otherwise directed. He was also told of his liability to make notification for a period of 5 years under section 80 of the Sexual Offences Act 2003.

The facts were these. The offender lived with his two teenage sons in Leeds. The victim was, at the relevant time, a 17 year old girl with learning difficulties, attending a Special Needs School. She was subject to a care order and the supervision of a social worker. She lived with foster carers during the week and with her mother at the weekends. Her mother lived near the offender.

There was evidence that the girl, albeit 17, looked quite young and someone described her as being "like a little girl really". Her full scale IQ was in the region of 65, which is within the mild learning disability range of intellectual functioning. Her vocabulary skills were those of a child slightly in excess of 8 years.

The offender knew the girl and her mother well because he had been to her mother's home on many occasions. The mother had a considerable number of problems of her own arising, in part at least, from her relationship with her partner, which deteriorated in the late summer and early August 2004, to such an extent that, on two Saturday nights, she took an overdose and was, in consequence, admitted to hospital. On a third Saturday night, after she had been out drinking, she had a severe asthma attack and was again admitted overnight to hospital.

On each of those three occasions, she asked the offender to take care of her daughter. Understandably, she trusted him. On each of those occasions she was discharged from hospital the next day. She saw the girl and, at that time, there was no cause for her to be concerned.

On 14th February 2005, when the girl spent the day at home with her mother because she was unfit to go to school, her mother noticed that she was quiet and withdrawn. She told her mother that the offender had had sex with her. Her mother at first did not believe it and further enquiries were made, including of a neighbour to whom the girl had made a similar allegation two days previously. The offender himself also told a neighbour that he had had sexual intercourse with the girl more than once.

To start with, after this information, the mother, thought it inappropriate to tell anyone, because the family were about to go on holiday. However, on the night of 26th February, after she had had a good deal to drink, she went round to the offender's to confront him. He declined to open the door. The following morning, in the early hours, he was arrested.

The girl, in a video interview, described having had sexual intercourse with the offender on three occasions in his flat. She said that she was going to say "no", but could not, so she had said "yes". She also said that the offender would not have known that she did not want to have intercourse with her. No contraception was used. In relation to the third occasion, she said that she had told the offender she could not do it because it was her time of month but, nonetheless, they had had intercourse.

When he was interviewed, the offender said that it was the girl who had instigated sexual activity between the two of them. He admitted mutual oral sex had taken place on each of the three occasions. He said that, after the third occasion, he had concluded that what he was doing was not right and was betraying the mother's trust. He therefore tried to keep away from the girl. He knew that she attended a special school, but he suggested that she was capable of being manipulative.

He was charged on 28th February and made no reply.

A clinical psychologist instructed by the Crown concluded, in a report on 12th July, that the girl showed a reasonable understanding of sexual matters, although she sometimes struggled to articulate her answers through embarrassment. She was likely to be able to consent to a sexual relationship, but her level of capacity to consent might fluctuate, depending on external factors.

While he was awaiting trial, the offender resided at an approved probation hostel and it is apparent from the report prepared for this Court, accompanied by an up-to-date report, that he is continuing to demonstrate a positive response towards supervision. He has engaged, fully, in all the pieces of work which he has been asked to do. He and his older son have moved away from the area where the girl lives and it appears that there is an excellent prospect of him being able to establish a home in that new area. He is likely to be offered a local authority tenancy there, so there is little, if any, prospect of him now coming in contact with the girl.

On behalf of the Attorney-General, Mr Heywood draws attention to a number of what, he submits, are aggravating features. The first two of which are undoubtedly well founded: they are that these offences were committed in breach of trust and were, as we have described, repeated. It is further said that it was an aggravating feature that oral sex was engaged in as well as sexual activity. That is conjoined with the considerable disparity of age between the two of them, namely a gap of 28 years, reflecting quite different levels of maturity.

Miss Davies, on behalf of the offender, questions whether those third and fourth alleged aggravating features can properly be so characterised. She also and with substance in our judgment, challenges the fifth aggravating feature, which is said to be an absence of true remorse. In our judgment, Miss Davies' submission on that aspect is well-founded. That aspect of the case derives from the first report by a probation officer in relation to the case. The author of that report was ignorant, understandably, of the contents of the subsequent psychological report to which we have referred. In our judgment, there is no basis for regarding the offender as having showed no remorse. On the contrary, it is, in our judgment, significant that he had desisted from this conduct, for the reason to which we have referred, before any complaint was made.

Mr Heywood draws attention to the mitigation to be found in the fact that the girl had indicated her consent to this activity, and that she has suffered no apparent physical or psychological injury, although of course the long-term effects, if any, cannot be known. Mr Heywood draws attention to the plea of guilty at an early stage, which is clearly a significant mitigating feature in this case.

The offender has a conviction, more than 20 years ago, in relation to which he was fined by magistrates for indecent assault on an adult woman. The judge correctly disregarded that conviction when passing sentence.

Mr Heywood submits that one would have expected, having regard to this girl's disability and the circumstances of this offence, a custodial sentence in the court below of the order of at least 12 to 18 months. It may well be that there is substance in that submission. The crucial question which arises, however, is that, granted, as seems to us to be the case, that this sentence was a lenient one, ought it properly to be characterised as unduly lenient in the light of all the circumstances to which we have referred?

Miss Davies submits that there were a number of very unusual features about this case, all of which we have already referred to in the course of this judgment. She submits that it would not be appropriate to characterise this sentence as unduly lenient.

In our judgment, that submission is well-founded. This sentence it is not of such leniency as can be categorised as unduly so. We add one footnote: Mr Heywood properly draws our attention to sections 26 and 28 of the Criminal Justice and Court Services Act 2000, which imposed a duty on the judge to consider, which he did not do, whether or not it was appropriate to make an order disqualifying the offender from working with children. There is, where an offence has been committed against a child an obligation to make such an order of disqualification, unless the judge takes the view that it is unlikely that the offender will commit an offence against a child in the future. We mention that matter because it is a statutory provision to which sentencers ought to pay appropriate regard. In the particular circumstances of this case, however, we accept Miss Davies' submission that, the judge, had he considered it, would almost certainly have concluded that it was unlikely that this offender would commit offences against children in the future. We say that having regard to the fact that he had desisted from this conduct in the circumstances to which we have referred, and because there was nothing in his record to suggest that he was in any way a menace to children. Having regard to all the circumstances, we decline to interfere with the sentence passed by the learned judge.