Clements, R v

MRS JUSTICE RAFFERTY: The identity of the victim is not to be made public directly or indirectly.

On 4th November 2008 in the Crown Court sitting at Northampton, this 59-year-old Appellant pleaded guilty and for two counts of sexual activity with a person with a mental disorder impeding her choice was sentenced to 8 years' imprisonment and for the same pleaded offence on another occasion to 6 years' imprisonment, the terms concurrent, the total 8 years. Consequential orders were made. By leave of the single judge he appeals against length.

At the Glenmoor House Residential Home in Corby, Northamptonshire, the Appellant and his partner would visit regularly and on each occasion spend a good part of the day with her father. Hence, in November 2007, Mrs June C, 72, herself a resident, made acquaintance with the Appellant. Mrs C had advanced severe dementia. She would go to the room which the Appellant and his partner were visiting, stay for a while, have a chat and then go. The general pattern enjoyed by the two visitors was at some stage to take her father outside. Over a six week period, leading up to 15th April 2008 the Appellant began to make excuses for not joining his partner and her father. At about 1 o'clock on the 15th, a care assistant, hearing the locking of Mrs C's room door, consulted the unit manager. The unit manager used a master key and opened the door impeded by what was described as "some force". There was then the sight of the Appellant in some haste tucking his shirt back into his trousers. He was banned from the residential home. The police were involved and two days later the Appellant was arrested.

In interview he said that his first entry to Mrs C's room was at her invitation. She had locked the door, closed the curtains, invited him to finger her clitoris and he had done so. He then put his fingers into her vagina (count 2, 6 years). On another occasion, perhaps the second visit, the Appellant had gone into her room. She took his penis, put it into her own mouth and he ejaculated but not in her mouth (count 1, 8 years). He also said, although neither admission formed a specific count, that on two occasions he had attempted but not succeeded in full penetrative sex and stopped because Mrs C complained about discomfort, and that he had touched her breasts.

Born on 10th January 1950 he had previous convictions which were wisely treated by the judge as without relevance. A pre-sentence report rehearsed his tendency to blame what he had done on Mrs C. There seemed to have been some pre- planning in what was the exploitation of a vulnerable adult for the his own sexual gratification.

Sentencing him, the judge having rehearsed the facts said that the guidelines (by which he meant the Sentencing Guidelines Council) did not adequately deal with this sort of case. The relevant part focused upon a single offence to reach its starting point, but this was not, this was two.

In Grounds of Appeal the complaint is that the judge's notional starting point was too high, none of the aggravating features of the guideline existed.

The Sentencing Guidelines Council work where relevant reads as follows: single offence of penetration of or by a single offender with no aggravating or mitigating factors, starting point 10 years custody, sentencing ranges 8 to 13 years' custody. Giving leave, the single judge felt that because of the Appellant's age, frankness, plea of guilt and the circumstances of the case, he should be allowed to argue that the judge's notional starting point of 12 years was too high.

As has been evident from what we have already said, the sentencing judge reflected anxiously upon how much definitive help was to be derived from the work of the Sentencing Guidelines Council. He concluded, as in our judgment he was entitled to, that here were two offences, not one, and that he had a public duty to reflect that in his sentencing. Seen in that context, his notional starting point of 12 years is understandable and we think unimpeachable and although the Grounds of Appeal suggested otherwise, we note and are grateful today to Mr Evans for his concession that this must be so.

The submission advanced today is essentially that because Mrs Cs' own difficulties would have precluded her providing evidence, the credit given to the Appellant for his plea of guilty should have been greater. Putting it very simply: had he not admitted what he did there would have been no prospect of his being caught. There was no evidence either of trauma or physical injury to Mrs C. Finally, Mr Evans urges that although the judge was anxious about the paucity of remorse or contrition felt or expressed by the Appellant, the Appellant was relatively unsophisticated and two things merit consideration: first, to his own counsel he had in his own way expressed remorse and echoed concessions and regret voiced in his interview under caution, and second, that the prison report commissioned by the single judge shows that he is remorseful, understands that what he did was wrong and regrets his actions.

This was a very difficult sentencing exercise. The facts were shocking and the judge sensibly achieved dispassion by reflecting carefully before sentencing. He was entirely correct to pass what is undeniably a stern sentence, but we find it impossible to conclude, for all the reasons we have rehearsed, that his notional starting point was too high and impossible to conclude that he gave insufficient credit for all those matters to which Mr Evans has ably taken us. That being so, grateful as we are, this appeal does not succeed.