H, R. v (Rev 4)

The court is once again revisiting issues which arise in the context of crimes brought to justice many years after they were committed, sometimes described as “historic” or “cold” cases.

In R v F [2011] EWCA Crim 1844 guidance relating to abuse of process applications arising from delayed prosecutions was promulgated. The present cases all arise in the context of historic sexual crime, that is, sexual offences committed many years ago but only recently brought to conviction. What this means in reality is that justice has eventually caught up with the criminal, sometimes years and sometimes indeed decades after the crime was committed.

The issue is the correct approach to the sentencing decision. Although a number of different questions arise, stripped to essentials specific guidance is required about the extent, if any, to which the court passing sentence should reflect the levels of sentence which would have been likely to have been imposed if the defendant had been convicted at a trial shortly after the offences were committed and, by contrast, the extent to which events during the long period between the commission of the crime and the sentencing decision may be relevant. We have examined numerous sentencing decisions in this court. Conflicting approaches to these questions are discernable. Accordingly leave was given in each case either by the single judge or this court for these interesting questions to be examined and decided.

The first six cases, H, Ferris, W, P Walker, Dan and S were heard together on 11^th October. Robertson and P were heard together on 13^th October. In Robertson the appeal was dismissed at the end of the hearing. This judgment deals with the remaining seven appeals, and provides the reasons for our decision in Robertson.

The descriptions, “historic” or “cold” cases, are not confined to sexual crime. Advances in science, for example, with DNA techniques, have led to successful prosecutions in many so called “cold” cases of homicide and other serious offences. In such cases ignoring any express statutory provisions, such as those to be found in schedules 21 and 22 of the Criminal Justice Act 2003 (the 2003 Act), the broad sentencing principles should coincide.

In cases of sexual crime, in particular sexual crime involving children or boys and girls who have recently reached puberty, it is a common feature and where it appears, effectively integral to the impact on the victim of the crime that he or she is ashamed shy, hesitant, fearful or terrified, or as a result of a combination of all these considerations, reluctant or unable to make a complaint at or close to the time of the offence.

On occasions those who do complain within the family or school environment are ignored and rejected, and thereafter feel powerless to help themselves. Thus it is that the crimes do not come to the attention of investigating authorities until years later, when with maturity, sometimes as a result of parenthood itself, but in reality for a variety of different reasons, the truth of what happened in childhood emerges. Such cases do not involve a delayed investigation. Until the report is made to the police there is nothing to be investigated.

On other occasions complaints brought to the attention of investigating authorities, whether proximate to the event or not, were not prosecuted. It was frequently thought that a conviction was unlikely, a view reinforced by the technical requirements of corroboration, in particular in relation to the evidence of children, which did not disappear until the coming into force of the Criminal Justice Act 1991. These earlier complaints may be resurrected by subsequent allegations.

We do not overlook a small number of exceptional cases (none of which are included in this group), where the perpetrator of the crime, haunted by a sense of guilt of what he did many years earlier, reports himself to the police, and triggers off the investigation. That raises specific sentencing problems. For the moment, however, it is sufficient to observe that this course is always open to every offender, but the majority live what often appear to be ordinary lives hoping, and indeed in many cases expecting, that their criminal activities will never come to light.

Self-evidently, the sentencing decision cannot be made until the defendant has been convicted. By definition, in historic cases, that will be years after the crime was committed. The criminal conduct will sometimes span different legislative provisions governing the substantive law of sexual crime, and variations in the maximum penalties. Sometimes, and this is the general trend when variations are introduced by statute, and perhaps well exemplified by reference to cases of causing death by dangerous driving, the maximum sentence is increased. There are however occasions when, as in the case of sentencing for theft, the maximum sentence is reduced. The legislation applicable to the present cases includes the Attempted Rape Act 1948, the Sexual Offences Act 1956, the Sexual Offences Act 1967, the Sexual Offences Act 1985, the Sexual Offences (Amendment) Act 1976, the Sexual Offences (Amendment) Act 1992 and the Sexual Offences Act 2003.

Over the same period, while the substantive law and sentencing provisions have been changing a variety of different sentencing regimes have been in force. The Powers of Criminal Court (Sentencing) Act 2000 was but one vast piece of legislation in the deluge of legislative provisions which have come, and gone, over the years. In the meantime provisions relating to the release of prisoners subjected to custodial penalties have also been changed. These include the Prison Act 1952, the Criminal Justice Act 1991, and the Criminal Justice Act 2003 which came into force in April 2005. These legislative provisions are not compartmentalised. For example, section 86 of the Powers of Criminal Courts (Sentencing) Act 2000 contains provisions relating to the release of those convicted of sexual offences committed before September 1998. We shall not anxiously parade an inclusive list of all the relevant statutory provisions. It would be unbearably long. We simply remind, with now customary trepidation, ourselves that yet further proposed legislation relating to sentencing regimes and prisoner release is currently in contemplation.

What is the judge to do? We must return to first principles. In relation to each of these appeals, the matters to be taken into account are explained in Chapter 1 of Part 12 of the 2003 Act. This contains general provisions about sentencing. They are well known. Sentencing judges cannot ignore statutory provisions which are currently in force. They apply to each and every sentencing decision, whenever the crime in question was committed, at the date of sentence. No specific provision is made for historic or cold cases. The judge is required to deal with the offender having regard to the express purposes of sentencing. These are defined in section 142 as:

“…(a) the punishment of the offenders,

(b)

the reduction of crime (including its reduction by deterrence),

(c)

the reform and rehabilitation of offenders,

(d)

the protection of the public, and

(e)

the making of reparation by offenders to persons affected by their offences.”

In considering the seriousness of any offence the court is directed by section 143 to:

“…consider the offender’s culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused.”

The harm caused may of course be very long-standing harm, and in historic cases the evidence may show that the impact of the crime years after it was committed is still disturbing and painful to the individual who is now an adult.

As is well known, the 2003 Act created the Sentencing Guidelines Council. By section 172 it was the duty of the sentencing court to “have regard” to any guidelines issued by the Sentencing Guidelines Council. In accordance with its responsibilities, in 2007 the Sentencing Guidelines Council issued a definitive guideline relating to the Sexual Offences Act. Then, from April 2010, the Coroners and Justices Act 2009 (the 2009 Act) in effect abolished the Sentencing Guidelines Council and created a new body with additional responsibilities as the Sentencing Council for England and Wales. The overall effect of this legislation was that the definitive guidelines issued by the Sentencing Guidelines Council in relation to sexual cases continue in operation, at any rate until reconsidered by the Sentencing Council. By section 125 of the 2009 Act every court, when sentencing an offender, is required to follow any relevant guideline including the sexual offences definitive guideline, unless satisfied that to do so would be contrary to the interests of justice. In short, consistently with the statutory provisions, the starting point for the sentencing decision should normally be assessed by reference to the guidance in force on the sentencing date.

It is clear, however, that the definitive guideline relating to the Sexual Offences Act 2003 followed some very broad changes in the statutory identification of different forms of sexual crime. Thus there are examples of sexual activity which constituted crimes before the Sexual Offences Act 2003 came into force which are described as different crimes, and the penalties increased. So, for example, non-consensual oral penetration was formerly indecent assault, whereas now it constitutes rape.

In principle, the defendant must be sentenced in accordance with the sentencing regime applicable at the date of sentence. Nevertheless as the offence he committed years earlier contravened the criminal law in force at the date when it was committed, he is liable to be convicted of that offence and no other, therefore the sentence is limited to the maximum sentence then available for the offence of which he has been convicted. Changes in the law which create new offences, or increase the maximum penalties for existing offences do not apply retrospectively to crimes committed before the change in the law. In short, the offence of which the defendant is convicted and the sentencing parameters (in particular, the maximum available sentence) applicable to that offence are governed not by the law at the date of sentence, but by the law in force at the time when the criminal conduct occurred. The appeal of Khannan aka Preston vividly illustrates this principle. In such circumstances what we describe as retrospectivity would be unlawful.

The extent of the ban on retrospectivity needs to be clearly understood. In R (Uttley) v Secretary of State for the Home Department [2005] … the House of Lords considered the problem of retrospectivity in the context of prisoner release. Prior to 1983 Uttley committed a number of sexual offences, including three rapes. At that time the maximum sentence for rape was life imprisonment. He was not prosecuted until 1995. He was then sentenced to 12 years imprisonment. Under the statutory provision then governing release he was released after serving two thirds of the sentence, but remained on licence until he had completed three quarters of the sentence. The licence provisions imposed restrictions on his freedom, and he was liable to recall to serve the balance of his sentence if he failed to comply with the conditions. By contrast, if he had been sentenced to 12 years imprisonment under the release regime applicable in 1983, subject to good behaviour, he would have been released at the same point of the sentence, but unconditionally and the sentence would have expired on his release. Consistent with long established common law principles, Article 7(1) of the European Convention of Human Rights prohibits the imposition of a heavier penalty than one “applicable” at the time when the offence was committed.

In the Court of Appeal Uttley was granted a declaration of incompatibility on the basis that the release provisions under the new regime (that is after 1992) were harsher than the penalty which would have been imposed under the regime which applied in 1983. In the House of Lords it was held that an infringement of Article 7 would only arise “if a sentence imposed on a defendant which constitutes a heavier penalty than that which could have been imposed … under the law in force at the time that his offence was committed” (per Lord Phillips at paragraph 21). The applicable maximum sentence for rape was life imprisonment. A sentence of 12 years was a lesser penalty. The view of Lord Rodger and Lord Carswell can be summarised in a brief sentence taken from the decision of the Judicial Committee of the Privy Council in Flynn v HM Advocate [2004] UKPC 1 that “the object of the provision (that is Article 7) appears to have been to prevent a sentence being imposed which could not have been imposed at the time of the offence, because the maximum was then lower”. In the result therefore in historic cases, provided sentences fall within or do not exceed the maximum sentence which could lawfully have been imposed at the date when the offence was committed, neither the retrospectivity principle nor Article 7 of the European Convention are contravened.

The same broad approach can be discerned in R v Round and Others [2009] EWCA Crim. 2667. The issue was the eligibility or otherwise of the appellants for release under home detention curfew and the variation consequent on the way in which the sentence was structured. Hughes LJ identified the “general principle that early release, licence and their various ramifications should be left out of account upon sentencing “is a matter of principle of some importance”. Addressing the argument that the judge should consider early release possibilities when calculating his sentence or framing his order, he continued, “We are quite satisfied that it is neither necessary, nor right, nor indeed practicable, for a sentencing court to undertake such examinations. Ordinarily, indeed, it will be wrong to do so”. This analysis was consistent with and followed earlier decisions in this court in R v Bright [2008] EWCA Crim. 462 and R v Giga [2008] EWCA Crim. 703.

We have considered a large body of earlier judicial decisions, many more than we have felt it necessary to refer to in this judgment.

Perhaps we should begin by seeking to identify the sentencing guidance on sexual offences which would have been available at different dates during the last forty or so years. There were, in fact, very few sentencing decisions relating to historic sexual crime, not least because, as we have already explained, if complaints were made long after the event, the reality was that they were not prosecuted.

For most of the period during which the offences with which these appeals are concerned there was no broad guidance on sentencing in sexual offences, and in any event, nothing like the carefully structured definitive guidelines with which we have now become familiar.

We note that in Willis [1974] 60 Cr App R 146 guidance was issued for the sentencing in buggery cases. For offences lacking both aggravating and mitigating factors the level would normally be from three to five years. The court then identified some of the aggravating and mitigating factors. Neither list was all embracing. Lawton LJ went on to suggest that many of these features would be relevant in cases of indecent assault on boys, adding that it was not “the label of indecent assault which was important but the nature of the act”. Some cases were not serious, but in others “the assault may take the form of a revolting act of fellatio, which is as bad as buggery, maybe more so. Sentences should reflect the seriousness of the act constituting the indecent assault”.

In R v Roberts and Roberts [1982] 4 Cr App R (S) 8 the court identified a number of features which underlined the seriousness of rape. The length of the sentence would depend on all the circumstances. A number of aggravating features of the crime were identified. Both appeals against sentence were dismissed. The court returned to the issue in Billam [1986] 8 Cr App R (S) 48 and on this occasion, giving judgment in ten different cases of rape which were listed together, Lord Lane CJ offered further observations on the length of sentences appropriate in cases of rape. He identified cases where the starting point should be 5 years’ imprisonment, and then others where it would be 8 years, and yet further circumstances in which a 15 year sentence or indeed a life sentence would be appropriate. Having done so, he then identified a number of matters which would aggravate the crime, and therefore lead to a sentence “substantially higher than the figure suggested as the starting point”. He then turned to consider the starting point for attempted rape, normally less than for the completed offence, especially if desisted at a comparatively early stage, but also acknowledged, as one of the cases then before the court illustrated, that some aggravating features of the offence might make an offence of attempted rape even more serious than some examples of the full offence.

In Attorney-General’s Reference (No1 of 1989) 11 Cr. App. R (S) 409 a sentence for incest was increased from three years to six years. Guidance was offered to sentencing courts just because it was “very difficult to reconcile the various sentences for the crime of incest which had been imposed or approved by different decisions of this court”.

As far as we are aware no other guidance was offered in cases involving sexual offences before the well known guideline case of R v Millberry and Others [2003] 1 WLR 546, to which we shall come in due course.

These guideline cases provide a very narrow and unsatisfactory basis for making any realistic assessment of the likely level of sentence if a historic sexual crime had come to light at or shortly after the time when it was committed. The Criminal Appeal Reports (Sentencing) series of law reports was not published until 1979. The first volume, in contrast with today, was a very modest tome. The first edition of Dr David Thomas’s monumental work, Current Sentencing Practice, was not published until 1987. In reality there was no overall guidance to the correct approach to sexual crime, and in particular to the approach to be adopted in historic cases.

We can now come to sentencing decisions since the early 1990’s. We do not propose to identify all the many cases where this court has or may have been concerned with sentencing in historic sexual abuse crimes. The body we have assembled in this judgment is quite sufficient to highlight the various trends. It is a truism, and has long been a truism, that when passing sentence, the court should reflect on all the facts, including events since the offence was committed, with, according to Bird [1987] Cr App Re (S) 77, account to be taken of the defendant’s subsequent positive good character. In Tiso [1990-91] 12 Cr App R (S) 122 the court was clear that allowance should be made for a defendant who changed from a criminal life-style to a law abiding way of life, acknowledging the positive emergence of favourable features, the mere fact of delay, particularly in cases of sexual abuse should be approached with caution as a feature of mitigation. In such cases there were many reasons, including the consequences of the offences themselves, and developing understanding of the consequent problems which contributed to potential delay.

In Cuddington [1995] 16 Cr App R (S) 246 a two judge constitution of the court considered the case of an appellant who was 22 years old when sentenced, but 15 or 16 when he babysat for and indecently assaulted two nieces when they were aged between 8 and 12 years. The children complained to their mother. Child Protection and Social Services became involved. The appellant denied the allegations, and the issues were not then pursued. It was in those circumstances that the court observed:

“The most telling point…seems to be…that had the matters been discovered and timeously dealt with, the appellant would have been entitled to be treated as a juvenile and detained for no more than 12 months. Whilst that is not in itself definitive of any sentence which should later be imposed upon him, it is a powerful factor to be taken into account.”

In context, this observation was unsurprising. There was good evidence against the appellant some years before he was eventually prosecuted. In any event he was very young at the time when the offences were committed. The appropriate sentence was 12 months’ imprisonment. Accordingly his appeal against sentence was allowed.

The decision in Cuddington was drawn to the attention of the court in R v Dashwood [1995] 16 Cr App R (S) 733 and was considered in the judgment of Lord Taylor CJ. Addressing it he observed:

“We take the view that there is no axiomatic approach to a problem of this kind which would entitle the court to say that the right sentencing approach is to look at the matter as at a particular date. We consider that the matter has to be looked at in the round. The fact that the series of offences was committed when the offender was 14-15 is, as was said in Cuddington, a powerful factor in affecting the appropriate sentence to pass as at today. On the other hand it is not the sole and determinative factor. We also have to look at how a 14-15 year old might be dealt with today and we have to look at all the circumstances of the case.”

He repeated that all matters had to be looked at in the round.

Given the importance subsequently attached to Cuddington, there are two features of these decisions to be borne in mind. First, in Cuddington itself the court was not purporting to lay down any sentencing principle. Two judge constitutions of this court do not normally do so. It was case specific that “the most telling point” was the likely outcome if the case had been pursued at the time when it could have been pursued, and in any event that consideration was not “definitive”, but a “powerful factor”. Dashwood emphasised that there was “no axiomatic approach”, that the sentence had to be looked at in the light of all the facts including the youth of the offender when he committed the offences. The Court of Appeal itself, assessing the sentence, expressly considered the way in which such a young offender would be dealt with at the date when the appeal was heard. In other words, current sentencing policy at the date of sentence was relevant and should not be ignored. This was an early articulation of the approach subsequently adopted in the guideline case of Millberry.

In R v Bowers [1999] 2 Cr App R (S) 97 the court treated the observations of Lord Taylor CJ in Dashwood as approving rather than expressing reservations about the ambit of what the court had said in Cuddington. In view of our earlier observations we would have been much more hesitant than the court in Bowers about the extent of the approval given in Dashwood to Cuddington. In particular, no reference was made to Lord Taylor’s direction that the court would also have in mind current sentencing policy was a relevant consideration. In R v Fowler [2002] 2 Cr App R (S) 99 the court decided that it was bound by Bowers to follow Cuddington, again without reference to Dashwood.

These issues were examined in the well known guideline case of R v Millberry and others in a constitution presided by Lord Woolf CJ, with Rose LJ, the Vice President of the Court of Appeal Criminal Division and Hett J (as she then was) forming the constitution. The entire question of sentencing in rape cases was examined. As to historic cases “the same starting points” used for contemporary sentencing policy applied. The fact that the offences were stale could be taken into account “but only to a limited extent”, just because it was always open to an offender to admit the offences. The absence of any earlier reporting was often explained by the relationship between the offender and the victim, which in such cases was frequently an aggravating feature of the offence. The court might take a more lenient view than it would otherwise because of the age of the offender (including) “…a reduced risk of re-offending. In addition, the court is always entitled to show a limited degree of mercy to an offender who is of advanced years…”. As it seems to us, this unequivocal decision diluted any surviving principle to be derived from Cuddington and the decisions which purported to follow it.

This approach was followed shortly afterwards in Attorney-General’s Reference (Nos 37, 38, 44, 54,51, 53, 35, 40, 43,45, 41and 42 of 2003) [2003] 1 Cr App R (S) 84. The court dealt with 12 unrelated cases involving sexual crime. Some involved historic sexual abuse. These were said to present a particularly difficult sentencing task when sentencers were confronted by a man of mature years frequently accompanied “by his distraught family”. Nevertheless there was a need for consistency of approach to sentencing in these cases, and the specific guidance given in Millberry to the correct approach to “historic” cases was emphasised.

In McKendrick [2005] 2 Cr App R (S) 68 the court accepted that the age of the defendant at the time when the offences were committed might be a relevant feature bearing on his culpability. Nevertheless it expressly rejected the suggestion that the sentence was too high, observing “there can be little doubt that if the trial had taken place in 1982 the sentence would have been less because in general the sentences for rape were at a lower level than they are now. But the judge was plainly right to sentence in accordance with the current sentencing principles, and there is no complaint about that”.

In Patterson [2006] EWCA Crim. 148 an offence committed in 1988 was brought to justice in August 2005. The appellant apologised for his actions shortly after the offence was committed, but did so which in terms suggested that it was less serious than was in fact the case. However by 1999 he informed the rector of the parish that he had anally raped the victim, and he wrote to the victim’s foster mother explaining that the offence was more serious than had first been thought. A few years later the former rector realised that the matter had not been resolved so he contacted the police. The victim was traced but could recall little of the incident. The appellant surrendered to bail, and after declining to comment in the first interview, in the second admitted the full offence. It was argued that Willis provided the appropriate guidance, and that it had indeed been followed for many years. (See Aldon and Wright [2001] 2 Cr. App. (S) (401)). The sentencing judge followed the guidance provided in Millberry. He did so, first, because the court had specifically adverted to male rape and held that the same guidelines should apply as in cases of female rape, second, because buggery without consent is male rape in fact if not in name, and third because the offence of buggery with a boy under 12 carried the same maximum sentence of life imprisonment under the legislation in force at the time when the offence was committed as it did under the Sexual Offences Act 2003. The judge was also “guided” by the observations in Millberry about sentencing in historic cases which made it clear that “the same guidelines apply in those cases, subject to adjustments to reflect the circumstances of the case, one of which may be the lapse of time”. On the appeal against sentence the court concluded that the sentencing judge was right to apply the guidance provided in Millberry rather than Willis, and to allow the appellant credit for his good character and good behaviour since the date of the offence.

In Attorney-General’s Reference (No 39 of 2006) [2007] 1 Cr App R (S) 34 in a “historic” case, the judge imposed a suspended sentence taking account, among other features, of the time which had passed since the offences were committed as part of the conclusion that there were sufficient exceptional circumstances to enable him to suspend the sentence. Ordering an increased immediate custodial sentence, the court rejected the conclusion that the circumstances were exceptional.

In R v B [2009] EWCA Crim 1062, the appellant, a happily married man, revealed to his wife that when he was 15 he had had a sexual relationship with his much younger step-sister and that when her mother and his father discovered what had been happening he was thrown out of the house. In her evidence the victim made clear that she had been entirely willing to participate, although, because of her age, her consent could not be treated as “real” consent. After this relationship came to an end the appellant himself had had a blameless life. He had married and helped bring up his young children. The sentence was reduced, the court applied what was described as the “principle” enunciated in Cuddington, referring at the same time to Dashwood, (but only in the limited way identified in Bowers and Fowler.) No reference was made to Millberry and the subsequent cases. We regard this as a fact specific decision which needed no reinforcement by reference to Cuddington.

In Mansfield [2009] EWCA Crim 2158, another “historic” case, the court rejected the criticism that the judge had been wrong to attach weight to current sentencing guidelines, that is the definitive guideline issued in 2007 by the Sentencing Guidelines Council. Although they were not available at the time when the offences were committed, “they are important in that they reflect the seriousness of all sexual offences,…sentencing now passed for offences of historic sexual abuse must reflect modern attitudes to such offending”. This observation is clearly derived from the passages in Millberry dealing with historic sex cases. The judgment continued, “the judge’s sentencing for historic offences of rape and other offences of non-consensual penetration should continue to follow the guidance given by this court in R v Millberry…”.

In R v SM, RM [2010] EWCA Crim 1801, the sexual offences committed by RM had been committed some 36-40 years earlier when he was between 14 and 17 years of age. There had already been a police inquiry, but this had not been taken further forward because of the forgiving attitude of the complainant. The judgment continued that the judge “was obliged to apply the principles which emerged from the decisions in Cuddington, Dashwood and Fowler. From them two principles were identified.

“First, it is appropriate for a court in a case of this nature to consider what sentence the appellant was likely to have received had the offences been discovered at the time and dealt with timeously. Secondly, the court is entitled to have regard to the sentence that might have resulted had a defendant at the age of the appellant when committed the offence has come before the court today to be sentenced for such offences.”

These are “powerful factors”, not determinative, and the judgment underlined that the matter was to be “looked at in the round”, with particular reference to the reasons for the delay, and whether the defendants were responsible for it. This was a bold attempt to reconcile Cuddington and Dashwood as properly understood.

In Attorney-General’s Reference (No 78 of 2010) [2011] EWCA Crim 1131, another “historic” case, this court reflected on the observations in Mansfield in the context of R v Bao [2007] EWCA Crim 2781. It concluded that the Sentencing Guidelines Council’s definitive guideline could not offer applicable guidance to an offence which, at the time it was committed, was different in character and carried a much lower maximum penalty than the equivalent conduct now to be found in the Sexual Offences Act 2003. That was an appropriate approach on the facts. Virtually simultaneously a different constitution of the court was applying a different principle to the use of the definitive guidelines.

In Attorney-General’s Reference (No 7 of 2011) [2011] EWCA Crim 1269 the court considered Mansfield and suggested that courts were bound to acknowledge the more up to date and realistic approach to sentences of serious sexual crime involving children. Moses LJ observed that:

“the modern approach to the gravity of the offences is appropriate provided that account is taken of the charge by reducing the sentences to reflect the lower maximum relevant at the time they were committed. Thus, courts are bound to look at the Definitive Guideline identifying that guideline, not by the name of the offence which has now changed but, …by reference to the facts disclosed in the case.”

In R v Hartley [2011] EWCA Crim 1299, a “historic” case, the court presided over by Hughes LJ, the Vice President of the Court of Appeal Criminal Division, was required to approach “the question of sentence afresh”. Hughes LJ said:

“These were offences under the Sexual Offences Act 1956 before the change to maximum sentences made, now some years ago, by the Sexual Offences Act 2003. The guidelines issued by the Sentencing Guidelines Council relate to the 2003 Act. They do not accordingly apply directly, although they are perhaps relevant as of some assistance to the general relative level of sentences as between different forms of offending.”

In R v S [2011] EWCA Crim 1479 the court allowed for a reduction in sentence on the basis that the offences committed by the appellant took place before the new early release provisions introduced by the Criminal Justice Act 2003 were in force. As far as we can discern the attention of the court was not drawn to Round and similar cases. The correct principle was identified in R v Round and Others [2009] EWCA Crim. 2667.

In R v Moon [2011] 1 Cr App R (S) 34 a two judge constitution of the court considered a “historic” case of sexual crime. The judge approached his sentencing decision by considering current legislation. The court concluded that he was wrong to approach the sentencing decision by considering “what the sentence would be today”. One reason was that the offence to which the defendant pleaded guilty (unlawful sexual intercourse) was a different offence to the offence from “rape of a child under 13” which would apply now. The court went on “the correct approach is to look at the sentencing guidelines at the time when the offence was committed and prior to the introduction of the new Act”. That, in effect, is a return to Cuddington, albeit for different reasons, not least the difficulties of the changes in the law. No reference appears to have been made to the guideline decision in Millberry or the subsequent cases which followed it, or the definitive guideline relating to sexual offences, and indeed no specific reference was made to Cuddington or Dashwood. It is correct that unlawful sexual intercourse was not the same offence as the current offence of rape of a child under 13. But the culpability of the defendant in doing what he did was not changed by the way in which the offence was described. Subject to proper attention given to the maximum sentence for unlawful sexual intercourse at the time when the offence was committed, the approach of the trial judge was not open to criticism, at any rate to the extent that he had regards to levels of sentence current at the date of sentence for the defendant’s activity. This decision is inconsistent with Mansfield.

We can now summarise the principles to be derived from statute, the authorities which purport to provide guidance, and fact specific decisions In the search for principle it is impossible to reconcile them all. We suggest that with the exception of Millberry and Others, and the definitive sentencing guideline (used in the measured way we shall suggest) that the following considerations should be treated as guidance. We further suggest that reference to earlier decisions is unlikely to be helpful, and, again dealing with it generally, to be discouraged. Subsequent decisions of this court which do not expressly state that they are intended to amend or amplify this guidance should also be treated as fact specific decisions, and therefore unlikely to be of assistance to court.

(a) Sentence will be imposed at the date of the sentencing hearing, on the basis of the legislative provisions then current, and by measured reference to any definitive sentencing guidelines relevant to the situation revealed by the established facts.

The facts briefly summarised.

H was born in 1954. In about 1966/7 when his youngest sister PW was aged 11 and he 12, he followed her to the outside lavatory on the family farm and indecently assaulted her by inserting his fingers into her vagina. This occurred on about three or four occasions. Another sister was SM, who was seven years younger than the applicant. In 1970/2 when she was aged between 9 and 10 and he between 16 and 17 yours old, a similar indecent assault occurred when they were in the barn at the farm. This was a single incident. In 1976/9 the appellant then aged 22/23 exposed his penis to another sister, some 16 years or so younger than he was, aged 6/8 years, and when she refused to stroke it, took her hand and forced her to do so. This occurred on a number of occasions over a number of months. The fifth complainant was the appellant’s niece, who went with the applicant to a show. He was then 32 years old, and she was 8 years old. When they were alone he touched and stroked her left nipple with his finger under her t-shirt.

The first complaint was reported to the police in 2010. The other complainants then came forward. In interview the appellant denied all the allegations. Nevertheless on 19 April 2011 in the Crown Court at Hull before His Honour Judge Baker QC and a jury he was convicted of the counts involving these girls. Shortly afterwards he was sentenced to a total of 42 months’ imprisonment. He was sentenced to 6 months’ imprisonment concurrent on the counts relating to PW, 18 months’ imprisonment concurrent on the count relating to SM, 21 months’ imprisonment consecutive for the count relating to JH, with a further 3 months’ imprisonment consecutive for the assault on his niece. The appropriate ancillary orders were made.

When passing sentence the judge observed that sentencing in cases of this kind was difficult, and that the Court of Appeal had provided guidance to the effect that unless the offender was very elderly the age of the offences required the sentencing court to impose what would otherwise be the appropriate sentence. He was plainly referring to Millberry. However the current sentencing guidelines did not apply to these offences. For example the maximum sentence for some of the counts, which would nowadays be prosecuted as assault by penetration, is life imprisonment, whereas the maximum sentence for indecent assault under section 14 of the Sexual Offences Act 1956 was 5 years if the count asserted that the child was under the age of 13, and 2 years if it did not. From September 1985 the maximum sentence available for the indecent assault involving the appellant’s niece was 10 years’ imprisonment.

The judge took into account not merely that the offences were of some age, but that the first offences were committed when the appellant was very young indeed. There were no relevant previous convictions. He reminded himself of the totality principle.

The grounds and submissions on appeal argue, in essence, that the total sentence was manifestly excessive. Given the age of the appellant when the first offences were committed, a custodial sentence was unnecessary. The sentence for the last offence should have been ordered to be served concurrently.

The difficulty facing this appellant is that there were no less than five victims of sexual abuse, and although some had started when he himself was very young, he continued his sexual crimes when he grew up, and the gap in age between him and his victims became steadily wider. Similarly, in terms of breach of trust, that would be a feature without any real significance when his offending started, but by the time he was in his mid to late teens, he was undoubtedly in a position of trust with the young female relatives.

Without the benefit of a guilty plea, the sentence in total was not excessive.

These offences occurred in the early 1980s. JM and KM were brother and sister. Their parents separated when JM was about 4 years and KM about 8 years old. JM moved in to live with his father, his father’s new partner and her son, A, himself aged about 6 years. KM lived with her mother, but visited her father at weekends and in the school holidays.

At the time the appellant was aged 18 or 19 years. He was a lodger at the father’s home and would babysit and look after the children when the father and his new partner went out in the evening.

On one occasion in 1983 or 1984 when he was looking after JM and A, the appellant told the two boys to go to bed. JM played up, but eventually went to bed with A. The appellant got into bed between the two boys. He took JM’s hand and made him masturbate him for a short while.

At much the same sort time when KM was about 9 years old, she was staying with her father. She was lying on the sofa with the appellant. He pulled her on top of him and ground his groin into her while holding her in a bear hug. They were both fully clothed. However she was aware that he had an erection. This happened on more than on occasion. On another occasion she had gone to bed to avoid her father who was drunk. The appellant came in to comfort her. He put his hand on her thigh and his hand up her nightdress and touched her vagina over her underwear.

No complaints were made at the time. Then, in August 2008, JM told his mother about what had happened, and she approached KM, who revealed what had happened to her.

The appellant who was then living abroad was eventually arrested and interviewed. He accepted that he may have had fun fights with the boys, but denied any indecent touching. He maintained his denials at trial, but on 12 April 2011 at the Crown Court at Durham before His Honour Judge Bowers and a jury he was convicted of two counts of indecency with a child and one count of indecent assault. The available maximum sentences for the offences of indecency with a child were 2 years’ imprisonment, and for the indecent assault, where the indictment specified, as it did, that the child was under 13 years at the time, 5 years’ imprisonment.

In June 2011 the appellant was sentenced to 12 months’ imprisonment on each count, with the sentence on count 2 to run consecutively. The total sentence was 2 years’ imprisonment. The appropriate ancillary orders were made.

Passing sentence the judge recognised that at the time of the offences the appellant was still a teenager who had been put in a position of responsibility towards the children. He also noted that these were not the most serious of sexual assaults but the complainants were young at the time and the abuse had had a profound long lasting effect upon them. The judge reflected not only on the time that had passed, but the fact that the appellant had no significant convictions during the previous 25 years.

The grounds of appeal, and the submission, is that the offending was at the lower end of the scale, and the touching momentary. They occurred when the appellant was aged just 18 or 19 years. There were no relevant previous convictions, and the applicant was now married with children of his own, and had led a decent hard-working life since the offences were committed.

Balancing the aggravating and mitigating features of these offences was, and remains extremely difficult. In essence although the sexual assaults were not of the most serious kind, they had a significant impact on the victims while the appellant himself had put his relatively youthful sexual offending long behind him. The sentence was at the severe end of the appropriate sentencing bracket, but the case proceeded as a trial, and it would not be appropriate for us to interfere with the sentence imposed by a very experienced judge.

Between 1976 and 1980 the appellant’s daughter SHM was sexually abused when she was aged between 10 and 13 years. She confronted him. She eventually complained to the police and following a trial in January 2005 the appellant was convicted of eight counts of indecent assault and four counts of indecency with a child. He was sentenced to 5 years’ imprisonment for the offences.

At the time when she complained to the police SHM had contacted SM to ask if any of her children had been abused by the appellant. SM did not want to be involved at that stage and said that they had not. SM had begun a relationship with the appellant in 1984. She had three children, including the complainant, SAM who was born in 1976. In 1985 the appellant was a regular visitor to their home, and when SAM was aged 9 years or so, he began to abuse her. There was a careful grooming process, and gradually the appellant touched her breasts, and then in subsequent years digitally penetrated her vagina. This conduct continued while the child was aged between 9 and 12 years. She then told her own father what had happened. It appears that others were aware of the allegations. The abuse then came to an end, and there was a period when there were no further incidents until an occasion in about 1991 when the complainant was aged 15 years she was a virgin. The appellant caught her smoking a stolen cigarette out of her bedroom window. He told her that she was in trouble. He pushed her on to the bed and raped her. Ejaculating on to her leg. SAM finally reported the events to the police in July 2009.

The appellant denied any improper behaviour towards her. However on a re-trial, in February 2011 in the Crown Court at St Albans before His Honour Judge Plumstead the appellant was convicted of seven counts of indecent assault and one count of rape. The maximum sentence available for count one was 5 years’ imprisonment, for the remaining counts of indecent assault it was 10 years’ imprisonment, and for rape a sentence of life imprisonment was available.

In March 2011 he was sentenced to 15 years’ imprisonment for rape with no separate penalty ordered on the remaining counts. The appropriate ancillary orders were also made.

In his sentencing remarks the judge noted the age of the complainant when the abuse started. He noted that the offending had ceased, that the girl was raped when the appellant took the opportunity available to revenge himself for the fact that she had disclosed his earlier sexual abuse. The rape was very unpleasant and brutal. He had taken her virginity in circumstances where he intended further humiliation and to subjugate her.

The judge also noticed that this was the second occasion when he came to be sentenced for sexual abuse of a female child. He noted that SHM had given evidence at the present trial. As to SAM he had played the role of an affectionate father figure and having gained her trust began to abuse her. This was a bad case of rape of an under-aged girl following a bad case of repeated abuse by someone in a position of trust of a vulnerable child.

The judge acknowledged the appellant’s age, and that the danger he presented to the public was reducing as he became older. He considered the imposition of a life sentence, but decided that this was not required. The sentence would be structured so that no separate penalty would be passed on the counts of indecent assault, but that was not to be taken as an indication that they were not to be regarded as serious.

The grounds of appeal and the submissions developed at the hearing can be briefly summarised. The sentence for rape was, it is said, outside the range of the sentencing guidelines, and in any event the sentence had been imposed on a basis that was not supported by the evidence, producing a total sentence that was too high in view of the appellant’s age, the time that had elapsed since the offences were committed, and the fact that he had served a 5 year prison term in the meantime.

We disagree. There was a prolonged period of grooming involving sexual abuse and digital penetration of a child. When she complained it was brought to an end, and then, given the opportunity to take revenge on her, the girl, a virgin, was forcibly raped. The question for us is whether, following a trial, the total sentence was excessive. Given the overall criminality, in our judgment it was not. The judge could readily have imposed a series of concurrent sentences to reflect all the counts of indecent assault, with a separate consecutive sentence for the rape. Indeed given the seriousness of the offences of indecent assault, it would have been preferable if separate sentences had indeed been imposed on each count. On the whole an order for no separate penalty should be reserved for cases where the criminality is minimal. Be all that as it may, this was an appropriate sentence.

P Walker was a respected schoolmaster, teaching English physical education and drama at schools in the West Country. He retired in 2008. In 2010 allegations surfaced of a broadly similar nature which involved the commission of relatively low level indecent assaults against pupils at two schools.

When he was approached by the police he initially denied any wrongdoing or inappropriate behaviour. However at trial in February 2011in the Crown Court at Taunton before His Honour Judge Ticehurst he pleaded guilty to 10 counts of indecent assault involving 6 girls and 2 counts involving one boy. He was sentenced to 9 months’ imprisonment on each count with a sentence on one count to run concurrently, and the remainder consecutively, producing a total sentence of 54 months’ imprisonment. Appropriate ancillary orders were made. The essential facts of most of these assaults can be seen in the complaint made by PM. She arrived at school and was befriended by the appellant. He made clear that she was one of his favourites and gave her jobs to do. That was a form of grooming, because the tasks meant that she came into contact with him. He took advantage of the opportunities to stroke her legs, touch her bottom and her breasts. He habitually touched her bottom under her skirt or pinged her bra strap.

Another girl, who was a pupil a few years later, was keen to obtain her entertainers badge with the Girl Guides. The appellant helped her during lunch breaks in the drama studio. He would ask her to simulate actions such as putting on jeans, or lying on the floor in such a way that her underwear was exposed. When jumping from the trampoline at school, girls were told to jump into the appellant’s arms and he would take the opportunity to hug them and feel their bottoms. KB tried to avoid this by jumping off the other side of the trampoline. On occasions the appellant would come behind her in the classroom on the pretext of checking her work and put his hand down her back and feel her bra strap and ping it.

TM was taught physical education by the appellant. She reported that the appellant had felt her bottom and put his hand down her back and pinged her bra strap. He tried to undo the clasp of her bra. She developed strategies to avoid him.

DH experienced indecent assaults of a similar nature, and so did RW and CD. No further description is needed.

The appellant moved schools. He befriended a boy JH, who was a pupil between 1993 and 1996. In his second year, the appellant started to touch him, by rubbing his genitals with the back of his hand whenever an opportunity occurred. When the complainant was using the computer, the appellant would sit beside him, rub his let against the complainant and put his hand on the top of the complainant’s leg. On another occasion he drew the complainant to him in a hug and spread his hands over JH’s bottom, touching and holding his genitals.

During the police investigations into these offences it emerged that a number of pupils at both schools had reported the habit of the appellant to engage in inappropriate behaviour. No action was taken by either school. Some of the complainants were told they were being silly and should not repeat what they had said. If something had been done at an earlier stage there would have been fewer victims of this appellant. We draw attention to the failures of the schools to take these complaints seriously, because they form part of the factual narrative, but there is no evidence to suggest that the appellant himself was involved in the negative response of the relevant authorities, and accordingly, this feature of the case does not aggravate his culpability.

The judge accepted that the appellant had committed what in context was intermittent low level offending. However this was not an isolated incident or an aberration, but deliberate offending which continued for many years. The appellant was in a position of trust and he deliberately targeted the complainants, befriending them, then grooming and then abusing them. He examined some victim impact statements, as we have, which show that the abuse had had a lasting effect on the victims.

There were very powerful references supporting the appellant. The judge took them into account and gave him credit for the guilty pleas. He noted evidence about the appellant’s medical condition. His concern was the cumulative effect of the offences which taken together became more serious. The judge took account of the sentencing guidelines, and indicated that the sentence reflected the overall seriousness of the offending.

The grounds of appeal, and the submissions on the appellant’s behalf was that the sentences both individually and cumulatively were manifestly excessive. The individual terms of imprisonment were too high taking account of current guidelines and past cases, and in any event failed to pay proper heed to the principle of totality and the mitigation. The particular features were the relatively low level of criminality involved in the individual offence, the fact that the appellant pleaded guilty, and that, born in 1950, he had no previous convictions or cautions. It was further suggested that account should have been taken of the relevant release provisions, and indeed the definitive guideline issued in 2007, from which is was suggested that the sentences, again, were excessive, the judge taking too high a starting point.

Taken together, there seems to us to be some force in these submissions. We do not under-estimate the seriousness of the offending, but as the judge accepted, in context this was intermittent low level offending. For example, the appellant was not convicted of any offence which involved digital penetration of the female victims. Moreover this case proceeded as a guilty plea. Given the way in which their early complaints had been disregarded or disbelieved, that would have provided considerable vindication for the victims helping to right the great wrong that had been done by those to whom their complaints were reported and who responded by doing nothing to help them. No doubt, the way in which they were treated at their schools when they reported what had happened would have contributed to the lasting consequences to the victims. Having regard to all these considerations, we have come to the conclusion that on the appellant’s guilty plea, and given his health (he suffers from cancer which is not asymptomatic), a sentence of 3 years imprisonment would have been appropriate. To that extent the appeal will be allowed. We shall achieve this sentence by reducing each of the sentences of 9 months imprisonment to 6 months imprisonment. The orders relating to concurrent and consecutive sentences will be unchanged.

During 1984 and 1985, when the appellant lived as part of a very close knit community, he babysat for one of his neighbours, CR. She had a son and two daughters. In 1984 her daughter S was aged 8/9 years and her daughter P was aged 6/7 years.

P recalled several incidents of abuse. She recalled an occasion when the appellant took her and her siblings upstairs to tell them a secret. She went into a bedroom where the appellant laid on top of her and rubbed her and penetrated her. She believed that he had penetrated her with his penis, which would have been rape. There was, however, some doubt whether the penetration had been penile or digital. The appellant was therefore convicted of indecent assault. A further similar incident occurred when the appellant was in her bed and her penetrated vagina.

She said that the appellant stayed in her bed overnight and was seen there by her mother in the morning when she brought him a cup of tea. When her mother left the room, she was abused again.

S viewed the appellant as her boyfriend. He was about 18 years old. She recalled an incident where she was lying on a sofa naked from the waist down and the appellant pulled down his trousers and lay on top of her rubbing his penis up and down and ejaculating. On another occasion she said that she and P were standing on their mother’s bed playing a game with the appellant. The game involved him rubbing his finger up their thighs and skirts to see who would be able to laugh last.

During 1984 the appellant babysat for the daughters of another neighbour. One of them, ES, was about 5 years old when the appellant woke her and took her from her bed into the front room. He persuaded her to suck his penis telling her that it would taste like lemonade. She believed from what had happened that he must have ejaculated in her mouth.

The offences against P and S were reported to the police in 2009, and after publicity, the offence against ES was reported in 2010. The appellant accepted that he had babysat for P and S and denied that he had ever babysat for ES. He denied that he had ever acted inappropriately towards any of them. He was convicted at Plymouth Crown Court before Mr Recorder Clee QC and a jury of five counts of indecent assault. Although it is clear that the children in question were aged under 13 years at the time when the offences were committed against them, the indictment asserted that the relevant victim’s age was under 13 years in three counts, in which case the maximum sentence was 5 years’ imprisonment, but two of the counts did not, in which case the maximum sentence was 2 years’ imprisonment. In any event three of the counts spanned the increase in the maximum sentence to 10 years’ imprisonment, which came into effect of 16^th September 1985, but there was no clear evidence that the offending occurred after that date.

The judge acknowledged that the offences were committed when the appellant was a young man, who had led a blameless life since. He took note of the positive character references. However the offences represented a gross breach of trust. He had been babysitting for very young girls. The total sentence was 5 years’ imprisonment, made up of concurrent and consecutive sentences.

The grounds of appeal and argument in support, urged that the appellant should have been sentenced as a 15-17 year old, which would have been his age in the mid-eighties, and the actual sentence made no allowance for age at the time of the offences. Insufficient regard was had to the appellant’s personal mitigation and the highly impressive character evidence put before the judge. If consecutive sentences had to be passed they should have been shorter, and the total sentence was excessive. In any event a maximum sentence ordered to run consecutively in the case involving ES was excessive.

We have examined these submissions with care. The offences were committed when the appellant was relatively young, but there was a significant age difference between him and his victims, and the sexual activity was far from unsophisticated. The offences involved digital penetration and in the case of the young child who was the victim of the last offence what would now be identified as oral rape. In other words, these were serious sexual offences. Among others on whom they had an impact was their mother, who was betrayed by him. The appellant has now led a decent life, and we have borne that in mind. If he had admitted these offences and pleaded guilty, no doubt the sentence would have been lower. We do not think it appropriate to interfere.

The appellant was born in 1950. The offences go back not far short of 40 years. The first complainant was DB. Her mother was married to the appellant. They lived together with him as his family. When she was very young, small enough to be bathed in the kitchen sink by the defendant, he digitally penetrated her vagina. She shouted in pain, but he covered her mouth and told her to shut up. There was another similar incident a year or so later. He said that this showed her how much he cared for her. This penetration continued throughout her childhood, but with diminishing frequency when other forms of sexual abuse increased. When she about 5 or 6 years old she was made to perform oral sex on him. He shouted at her to go upstairs into the bedroom he shared with her mother. He was naked on the bed. He gave her a book which showed her a woman performing oral sex on a man. He asked her to do that “for daddy”. She went upstairs because if she did not do what she was told she was slapped. This incident involved the child taking his penis in her mouth and sucking it, and he also made her masturbate him, putting his hands around hers and rubbing her hand up and down his penis. When she stopped oral sex, he slapped her across the face, telling her she could not stop until it was finished, and he eventually ejaculated while she was masturbating him. Incidents like these continued on a weekly basis. As she became older DB started to refuse to behave as he required. He threatened that if she told anyone about what was happening it would get worse. She had been subjected to violence in the past, and she was in fear of him. She married in March 1988 and left the family home. She became involved with the police inquiry when the husband of her sister, TB, wrote a letter to the police reporting the defendant’s sexual abuse.

TB was 2 years younger than her older sister. The appellant was her natural father. The abuse on her began when she was 8 or 9 years old. There were incidents of sexual assault, involving touching her breast and vagina, to begin with over her clothing, and then inside her clothing. The sexual abuse then proceeded to oral sex which he forced her to perform on him. On two or three occasions he ejaculated into her mouth. The abuse continued from the age of about 8 or 9 years until she was 12 or 13 years.

A medical report revealed that the appellant had taken an overdose of 21 Anadin tablets in June 2010, but this had caused no long term damage. He was suffering from a degree of ischaemic heart disease. His General Practitioner could not say whether his heart condition will affect his life expectations.

The defendant was arrested in September 2009. He denied the allegations. However on 15 March 2011, when the case was listed for trial before his Honour Judge Lawler QC at Sheffield Crown Court he pleaded guilty to 19 counts of a 22 count indictment.

The judge was fully aware of the seriousness of these offences and the impact they had had on both women, who had suffered great distress. He had considered the statements made by each woman, and we have reflected on them, and the long term damage they had suffered.

This was a breach of trust of the grossest kind. The childhood of the children was destroyed, and their lives were blighted. The conduct was persistent and prolonged, and the appellant employed a position of power and authority to cajole and coerce and on occasions to use force to achieve sexual gratification with them.

The judge gave some credit for the guilty plea, although it was made at the latest possible moment. He said that credit would be given which would be somewhere in the region of 15%.

The judge considered the guidelines, but reminded himself that these offences occurred many years before the 2003 Sexual Offences Act had attached different labels to the offences and had rightly treated them as far more serious than before, by increasing the relevant penalties. He was acutely aware of the increases, and carefully reminded himself of the maximum sentences which were available to him.

His concern was the total sentence, which he fixed at 12 years’ imprisonment.

The argument on appeal is that the total sentence was excessive and failed sufficiently to take account of the guilty pleas, the antiquity of the offences, the appellant’s age and state of health at the time when they were committed, and the delay which followed his arrest. Reference is also made to matters of personal mitigation available to the applicant and who suffered from a degree of unstable angina. These were gross breaches of trust, with two victims, and serious coercive sexual abuse which went on for many years. Even making an allowance for the late guilty plea, the total sentence was not excessive.

This offence occurred in 1987. In the early hours of 5^th June a 17 year old girl was walking home through Slough towards Maidenhead. She had missed her last train. The appellant pulled up alongside her apparently to ask for directions. He offered her a lift, and propositioned her for sex. She told him to “fuck off” and tried to hide in a garden. However he pursued her and forced him into her car. He drove to an industrial estate. He performed oral sex on her, then raped her vaginally, ejaculating over her stomach. She reported the attacks, but for years the appellant was not caught. She feared for some time that she may have contracted a sexually transmitted disease, and of course, she knew that her attacker had remained at large. She was emotionally scarred by the experience, and her career and her life were both profoundly affected.

In 2002, as a result of an improvement in DNA techniques, a “cold case review” led to the appellant being traced. After a trial in December 2010 at Reading Crown Court before His Honour Judge John and a jury, he was convicted of kidnapping and rape. In March 2011 he was sentenced to life imprisonment on both counts. The minimum specified period was 8 years. Appropriate ancillary orders were made.

The appellant’s criminal record demonstrates that he is a sexual predator who is prepared to use violence against his victims. He was born in November 1955. By the time he was 20 he had twice been sentenced to Borstal Training. He committed two robberies late at night. In the first he head butted his victim and in the second he attacked a girl from behind, putting a knife to her throat, and dragging her into a telephone box. Further offences of violence resulting in prison sentences followed. In 1977 he forced his way into a house occupied, on her own at the time, by a 15 year old girl. He demanded money. He threatened her, stripped her and attempted to rape her. He forced her to masturbate him and then take his penis in her mouth. In 1978 he was sentenced to 5 years imprisonment.

Four months after his release he carried out another serious sexual crime. He hid in the hedgerow, armed with a broken bottle, and attacked a 14 year old girl who was on a bicycle. He tied her up with her shoe laces, forced her to strip, and then raped her orally and virginally. In 1981 he was sentenced to 8 years imprisonment for these offences. He was released in October 1986. And a few months later, in June 1987, the present offences of kidnap and rape were committed. He remained at large. His criminal activity was undiminished.

On Christmas Day 1987 at 4a.m. he grabbed a 25 year old woman around the neck, and put a knife to her throat. Fortunately for her he was disturbed and ran away. He was sentenced to 3 years imprisonment. Following his release in 1990, in the course of a burglary he knocked a 79 year old woman to the floor. A few days later he gained entry into a hostel on a pretext, where he assaulted a resident and demanded sex. For these offences he received a total sentence of 10 years imprisonment.

In 1997 he received a 5 year sentence of imprisonment after he enticed a 14 year old girl into a wood and indecently assaulted her. A 6 year sentence for attempted robbery followed in 2001. In February 2008, following conviction for robbery, he was imprisoned for public protection, and a minimum term of 2 years imprisonment was specified.

The psychiatric report before the court in March this year did not disclose any mental disorder. The judge concluded that the criteria for a sentence of life imprisonment were more than met. We entirely agree, and wisely there is no appeal against that conclusion.

The criticism directed at the sentence is concerned with the level of the appropriate determinate term. In reaching his conclusion the judge started by considering the guideline in Millberry, where rape is accompanied by abduction. He identified the forced oral sex and the extensive list of previous convictions as aggravating features. He concluded that “the very grave record for more serious sexual offending, including convictions before you committed these offences for both attempted rape and rape, raises the starting point further …”. The starting point was fixed at 16 years, from which it followed that the minimum term would be 8 years.

The grounds and submissions on appeal argue that the starting point of 16 years was too high. The judge had expressly taken into account the convictions which post dated the offences for which the appellant was to be sentenced. Reference was made to section 143(2) of the 2003 Act:

“In considering the seriousness of an offence (“the current offence”) committed by an offender who has one or more previous convictions, the court must treat each previous conviction as an aggravating feature if (in the case of that conviction) the court considers that it can reasonably be so treated having regard, in particular, to

(a)

the nature of the offence to which the conviction relates and it’s relevance to the current offence and

(b)

the time which has elapsed since the conviction”.

Mr Cook on the appellant’s behalf suggested that “previous convictions” must mean convictions for offences committed prior to the instant offences. Mr John Price QC for the Crown contended that “previous convictions” must mean any convictions committed before sentence. Otherwise the section would have specifically referred to convictions for any offence committed prior to the instant offence. Furthermore, he pointed out that the safeguard against any unfairness or injustice is that these convictions can only be regarded as an aggravating factor if the court “considers that it can reasonably be so treated”.

We agree with Mr Price. This provision enables justice to be done in the individual case. In our judgment the court assessing the seriousness of any offence must reflect on the individual criminal who falls to be sentenced. As we have already indicated, a defendant who has lived an impeccable life for several years, filled with positive good work, is entitled to invite the judge to take those features into his life into account when he comes to be sentenced for a historic sexual offence. By similar reasoning, if he has committed one or more sexual offences in the meantime those, too, form part of the sentencing decision. The position can be tested in this way: if none of the appellant’s crimes after 1987 had been linked to him, not at the time when they were committed, but as a result of “cold case investigations”, he would have been before the court at Reading to be sentenced for all the offences, rather than the 1987 offences on their own. Whatever additional sentence would have been appropriate for the individual crimes committed after these 1987 offences, a minimum term of 8 years imprisonment for these two offences would have been entirely appropriate. In any event, irrespective of the post 1987 offences, this offence in 1987, committed by a man who had already been sentenced to substantial terms of imprisonment for attempted rape, and then rape, and who committed these offences within a very short time of his release can have no complaint. The sentence was appropriate.

In January 1978, an 18 year old married woman left work in a local public house at the end of the evening. She was on her way home, waiting for a bus. This appellant who is now 59 or 60 years old, but who was then 26 years old, walked up behind her and put his hand over her mouth. He put something into her back saying he had a knife and would kill her. He forcibly walked her to the rear of a local college. There he told her to close her eyes. He pulled off her clothing, and attempted to push his erect penis between her legs. He ejaculated over her inner thighs and clothing. He then ordered her to kneel down with her eyes shut, and forced her to perform oral sex on him. She believed that she was going to be killed. She was terrified. The Crown’s case was that he ejaculated again. He told the victim that she could go. She immediately reported the attack, which she believed had lasted over 20 minutes.

The effect on this victim was particularly traumatic. Shortly after the attack she discovered that she was pregnant. She was terrified that her pregnancy could have resulted from the appellant ejaculating over her inner thighs. Instead of any sense of joy at her impending motherhood, she was throughout the pregnancy in a state of mental turmoil. In fact, her husband was the father of her child.

No arrest was made until a “cold case review”. This led to the appellant’s arrest in 2009. His DNA profile matched a sample of semen recovered from the victim’s clothes. He was arrested and interviewed. He denied the offence. He contested his guilt at trial. He was convicted in January 2010 of attempted rape (Count 1) and indecent assault (Count 2) which reflected the only way in which in 1978 it was possible to indict for oral rape.

The appellant was convicted in 1973 for rape, indecent assault and common assault committed in 1973, in similar circumstances to the present offences. He was sentenced to 6 years imprisonment. He was released some 15 months before he attacked the present victim.

After the present offence was committed, in 2000 he was convicted of offences of gross indecency and indecent assault on a girl under 14 years of age. He was sentenced to an extended sentence of 6 years, and 3 years were stipulated as its custodial element. He was recalled to prison in 2003 following an allegation of indecent assault by a 16 year old which was not proceeded with, but which revealed that the appellant had breached the conditions of his licence by giving music lessons to minors. In 2007 he was convicted of harassment, effectively blackmailing an 18 year old woman to disclose covert filming of their sexual activity.

On 26^th February 2010 he was sentenced to life imprisonment for attempted rape and 2 years imprisonment concurrent for indecent assault. The minimum specified terms was 7 years 6 months which would have taken effect by the operation of section 67 of the Criminal Justice Act 1967 allowing for 176 days spent on remand.

If the court had the necessary jurisdiction, this sentence was entirely appropriate. However, at the time when the offence was committed, as a matter of statute, the maximum sentence available for attempted rape was 7 years imprisonment. This jurisdictional feature was overlooked both in the Crown Court, and in the Court of Appeal Criminal Division, where the only issues raised for consideration were the merits, or otherwise, of the sentence rather than the jurisdiction to impose it. It appears that after the appeal against sentence had been dismissed on the merits (a view with which, as we have indicated, we entirely agree) one of the counsel present in court expressed his concern about the jurisdiction issue to counsel then appearing. The only route to quashing this unlawful sentence was for the matter to be reported to the Criminal Cases Review Commission, which, with its customary efficiently, quickly referred it to this court.

In 1978 the maximum sentence for an offence of attempted rape was, by operation of the attempted Rape Act 1948, section 37 of the Sexual Offences Act 1956 and Schedule II(1)(b), 7 years imprisonment. The maximum sentence for attempted rape was increased to life imprisonment for offences committed after 16^th September 1985 as a result of sections 3 and 5(5) of the Sexual Offences Act 1985.

This is a most unfortunate case. The sentence imposed, although fully justified, was unlawful. It must be quashed. The reasonable understanding of the victim of the crime, that the life sentence was fully justified, has been dashed. That should not have happened. Without any consideration beyond the aggravating and mitigating features of the individual offence or offences, the sentencing decision in cases like these is never straight forward. It is made more complicated because of the variations in the maximum sentences lawfully available in historic cases varies. Particular care is therefore needed to ensure that before the sentencing hearing begins, the parameters of sentence in force at the time when the offence was committed are identified.

Justice will not appear to the victim to have been done, and for what it is worth, we do not think that the sentence which we must now impose appropriately represents this appellant’s criminality. Nevertheless the decision is unavoidable. It is a consequence of the legislation in force at the time, which we are bound to apply. Fortunately that has now been changed, and for such a crime committed today, the sentence imposed on this appellant would have been upheld.

In his submissions counsel did not contend that the particular offences did not merit the maximum sentence. No complaint is made about the concurrent sentence for indecent assault (which then represented the maximum sentence). These concessions are entirely realistic. Once the unlawful sentence for attempted rape is set aside, and the 7 year maximum sentence substituted for it, the only question which remains is whether the sentences on the two counts on the indictment should run concurrently or consecutively.

Mr Price QC reminded us of the principles which normally govern the imposition of consecutive terms of imprisonment, conveniently summarised in R v Ralphs [2009] EWCA Crim. 2555. He invited us to consider whether it is proper and appropriate to impose consecutive terms where this represents the only possible means to achieve the objective of public protection. We are unpersuaded that it is appropriate for consecutive terms of imprisonment to be imposed as a way of compensating for what the court believes to be an inadequacy in its sentencing powers. The principles are long established and well recognised. Consecutive sentences should not normally be imposed when the individual counts arise from what in reality is the same incident. Nevertheless, the fact that offences may be committed within a short, even a very short span of time of each other is not necessarily conclusive. A close examination of the facts may reveal that distinct offences occurred, each independent of the other, and each calling for distinct punishment to reflect the offender’s criminality where, in a case like this, each of the two offences represented the most serious harm and high culpability.

We have reconsidered the events of 17 January 1978. We are driven to the conclusion that the correct approach to these events is that the appellant and his victim were involved in two distinct and separate incidents, albeit consecutive, and the one following immediately after the other. In short, this young woman was the victim of two distinct sexual violations. In these specific circumstances we do not accept the submission that the imposition of consecutive penalties would be inappropriate. In reaching that conclusion we do not, of course, intend to question the normal practice by which the court imposing a sentence following conviction on a number of counts will normally impose a sentence on the major count of the indictment to reflect the overall criminality of the offender, with concurrent terms for the remaining counts.

In any event, for the reasons we have given, this appeal must be allowed. The sentence on count 1 must be quashed. We shall substitute a determinate term of imprisonment of 7 years. The sentence of 2 years imprisonment for indecent assault will run consecutively.