Sturt, R. v

MR JUSTICE GRIFFITH WILLIAMS: The appellant appeals by leave of the single judge.

He is 64 years old and of previous good character. He was a golf professional who owned and ran a business called The Golf Factory. R, who was 12 years old, attended there for golf lessons.

In the Crown Court at Snaresbrook the appellant pleaded guilty to two offences of sexual assault on a male child under 13 (counts 3 and 4) and on 1st August 2008 he was sentenced by His Honour Judge King to concurrent sentences of 3 years' imprisonment. He had pleaded not guilty to two other counts of sexual assault (counts 1 and 2) and they were left on the file on the usual terms. The judge also made a sexual offences prevention order which we will consider later in this judgment.

The grounds of appeal advanced on his behalf by Mrs May are that the sentence does not reflect sufficient credit for the appellant's admissions and early pleas of guilty, his previous good character and the basis of plea that there were just the two incidents. It is submitted that the sentence equating to a sentence of four-and-a-half years' imprisonment following conviction was manifestly excessive. The issue can be briefly stated; it is whether the starting point of four-and-a-half years' imprisonment was manifestly excessive.

The facts demonstrate an element of grooming. At the beginning the appellant, whilst sitting on a chair at his desk, would get R to stand beside him and then hold him around his lower back, hips and waist. This conduct graduated to him pulling R's trousers down and holding him around his stomach and lower back and moving his hands over his genital area and over the buttocks. Then on 11th March the appellant pulled down R's trousers and pants and masturbated him. He then said: "I'm sorry, I shouldn't have done that, I am sorry. It is not right." He attempted to do the same thing and tried to put his mouth towards the boy's genitals but the boy moved away and so he desisted. The appellant then said that he was sorry and asked the boy not to tell anybody because he would lose his wife and children. The boy said that he could not do that because it was a criminal offence and the appellant then handed him his own phone so that the boy could contact his parents. When the boy was picked up by his father, he told him what had happened and as a result the police were contacted.

Police officers went to the appellant's home. His response was to apologise and to admit what he had done. When he was asked later why he had done it, he said that he did not know, it had just happened.

The Definitive Guideline issued by the Sentencing Guidelines Council provides that for these offences the starting point should be 3 years, with a sentencing range of 1 to 4 years. We have concluded that notwithstanding the aggravating feature of the abuse of trust and an element of grooming, that the starting point adopted by the learned sentencing judge was too high because it failed to reflect the very important mitigation that the appellant used no force, did not press his attention upon R when he offended against him on 11th March and immediately apologised. It also an important consideration that the appellant appreciated R's upset and assisted him in making contact with his parents so that he could be picked up and taken away.

In all the circumstances the decision that we have reached is that the appropriate sentence in this case was one of 18 months' imprisonment. There is no appeal against the terms of the sexual offences prevention order but the sentencing judge ordered that it should be in force indefinitely. Section 107(1)(b) of the Sexual Offences Act 2003 provides that an order should be for a fixed period not less than 5 years or until further order. We are satisfied that the appropriate order in this case is that that order should be until further order. It will then be for the appellant, if he chooses, to apply to the Crown Court for any variation of the terms of the order and after 5 years for its discharge in accordance with the provisions of section 108 of the Act.

For the reasons that we have given the appeal is accordingly allowed to this extent. We quash the sentences of 3 years' imprisonment and substitute for them concurrent sentences of 18 months' imprisonment and we amend the operative period of the sexual offences prevention order as we have indicated.