Forbes & Ors, R v

These appeals were heard together as they raised related issues that have arisen in sentencing for historic sexual offences. Before setting out the specific appeals, it is helpful to refer to the applicable general principles.

In October 2011, Lord Judge CJ set out in R v H [2011] EWCA Crim 2753, [2102] 1 WLR 1416, [2012] 2 Cr App R (S) 21, [2012] Crim LR 149 guidance on the sentencing of historic sexual offences.

That guidance was codified by the Sentencing Council in annex B of the Definitive Guideline on Sexual Offences published in 2013. It is a convenient statement of the applicable principles which, subject to the view we express at paragraph 20 about paragraph 9 of Annex B, a court should apply without the need to refer to R v H or other cases.

As is clear from paragraphs 1 and 2 of annex B, reiterating what was said in R v H:

Although these principles are clear and, as we shall explain, clear guidance was given in annex B, various issues have arisen in relation to their application.

Paragraph 3 of the annex B provides:

“The court should have regard to any applicable sentencing guidelines for equivalent offences under the Sexual Offences Act 2003.”

This reflected [47] of H where Lord Judge CJ said:

“(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.

(b)

Although sentence must be limited to the maximum sentence at the date when the offence was committed, it is wholly unrealistic to attempt an assessment of sentence by seeking to identify in 2011 what the sentence for the individual offence was likely to have been if the offence had come to light at or shortly after the date when it was committed. ….”

(emphasis added)

It was submitted on behalf of the prosecution that the court should, after selecting the applicable current guideline, sentence in accordance with the guideline, capping the sentence, if required, by the maximum sentence provided by the legislation for the offence in question. We do not consider that the submission is consistent with R v H or annex B. A court should, in assessing the appropriate sentence in any case, have regard to the maximum sentence applicable to the offence and not simply apply in a mechanistic way guidelines premised on much higher maximum sentences. It is important to recall that under the provisions of the Coroners and Criminal Justice Act 2009 the duty of the court under s.125 (1)(a) to follow the guidelines only applies to offences committed after the coming into force of the Act on 6 April 2010: see the commentary to the decision on R v H at [2012] Crim LR 149 at 157.

The phrase “have regard to” (which was intended to have the same meaning as “by measured reference to”) was intended to make it clear that the judge should not simply apply the relevant guideline applicable at the date of sentence, subject to any lower statutory maximum sentence applicable at the date the offence was committed, but use the guideline in a measured and reflective manner to arrive at the appropriate sentence.

As annex B makes clear, what is required is first the selection of the relevant guideline and then the determination of the sentence having regard to that guideline as adjusted by reference to the maximum sentence applicable to the offence charged. It is therefore important for the sentencing judge to guard against too mechanistic an approach, either in terms of an equivalent offence or in adopting the figures in the guideline without having regard to the fact that generally higher maxima are provided for some of the modern day offences. Whilst a judge should have regard to the current guidelines in this way, the judge should go no further and should not attempt, as the judge mistakenly did in AG Reference 27 of 2015 [2015] EWCA Crim 1538, to construct an alternative notional sentencing guideline.

The appeal of Rouse provides an illustration. The judge correctly identified that the equivalent offences to the counts of indecent assault on a male contrary to s.15(1) of the Sexual Offences Act 1956 were (a) s.5(3) of the Sexual Offences Act 2003 (the 2003 Act) in relation to inserting his penis into the mouth of the complainant, and (b) s.6 in relation to digital penetration of the anus. However he did not take into account that the modern offences have significantly higher maxima (see paragraphs 144-145 below), but in view of the aggravating features and the multiple offending count, no criticism could be made of the overall sentence imposed.

There will be occasions when the court should look at more than one guideline in order to arrive at the appropriate sentence. The appeal of Warren provides a helpful example. Warren procured scouts in his charge to inflict sadomasochistic sexual assaults on him; he pleaded guilty to charges of indecency with a child contrary to s.1(1) of the Indecency with Children Act 1960. The judge selected as the modern equivalent the offence under ss.16 and 17 of the 2003 Act – which was intended to cover cases of 16-18 year old youths who consent to the sexual activity but whose consent is vitiated by the relationship of trust with the adult in question. However this was not a happy choice as the children were all below the age of consent – half under 13 and the others 13; the two relevant guidelines were therefore those under s.8 of the 2003 Act (for those under the age 13) and s.9 (for those who were 13), but it was necessary to have regard to the fact that the maximum sentences greatly exceeded the maximum sentences under those guidelines for the offences committed: see paragraphs 63-65 below.

The court is, as has been stated, not concerned to ascertain what sentence would have been passed if the case had been tried shortly after the offence had been committed; it is only concerned to ascertain the statutory maximum. There may, however, be rare cases where a broader inquiry is necessary. An illustration is provided by the appeal of BD where BD was under the age of 14 when he committed some of the indecent assaults. As we set out at paragraph 110, BD could not have been sentenced at the relevant time to any custodial sentence for those offences because of his age. For the reasons we give at paragraphs 111-121, we concluded that, taking into account Article 7 and the common law requirements of fairness, it would not be right to impose on him a custodial sentence for those offences. The appeal in that case is to be contrasted with that of Rouse where, although only a little older, a custodial sentence would have been available at the time of the offending (see paragraph 144). The rare circumstances of the appeal in BD should therefore not operate as encouragement or licence to courts to consider a similar exercise in any other situation.

Paragraphs 4-6 of annex B give guidance on culpability and harm caused:

“4.

The seriousness of the offence, assessed by the culpability of the offender and the harm caused or intended, is the main consideration for the court. The court should not seek to establish the likely sentence had the offender been convicted shortly after the date of the offence.

5.

When assessing the culpability of the offender, the court should have regard to relevant culpability factors set out in any applicable guideline.”

The guidelines make clear the factors that are to be taken into account, as aggravating or mitigating factors. It is essential that the court avoids double counting, by bearing in mind that the starting points will reflect the essential gravity of the offence in question. As we explain in the next paragraphs, taking advantage of a relationship to commit an offence may have already been taken into account in the selection of the starting point; something more is therefore required to establish abuse of trust as a separate aggravating factor or to justify placing the offence in a particular category of culpability.

It is evident from the appeals that one issue that has caused difficulty is “abuse of trust” as an express aggravating factor and as used in respect of culpability extensively in the definitive guideline.

Whilst we understand that in the colloquial sense the children’s parents would have trusted a cousin, other relation or a neighbour (as in the case of Forbes – see paragraph 47 and Farlow - paragraph 208) to behave properly towards their young children, the phrase “abuse of trust”, as used in the guideline, connotes something rather more than that. The mere fact of association or the fact that one sibling is older than another does not necessarily amount to breach of trust in this context. The observations in [54] of R v H should be read in this light.

The phrase plainly includes a relationship such as that which exists between a pupil and a teacher (as in the case of Clark who grossly abused his position of trust as a teacher at a boys’ preparatory school by a sustained course of conduct over 7 years – see paragraphs 70 and following), a priest and children in a school for those from disturbed backgrounds (as in the appeal of McCallen - see paragraphs 86-92 and 97) or a scoutmaster and boys in his charge (as in the case of Warren to which we have already referred). It may also include parental or quasi-parental relationships or arise from an ad hoc situation, for example, where a late night taxi driver takes a lone female fare. What is necessary is a close examination of the facts and clear justification given if abuse of trust is to be found.

Paragraph 9 of annex B provides:

“9.

If the offender was very young and immature at the time of the offence, depending on the circumstances of the offence, this may be regarded as personal mitigation.”

In R v H, at [47(c)] the view is expressed that immaturity goes to culpability. We consider that to be the approach that better accords with principle than the guidance given at paragraph 9 of annex B. In assessing such culpability, it is necessary to look at all the facts and reach an overall assessment. For example, in the appeal of Forbes, although he was only 16 when he embarked on the course of offending, he knew it was wrong and continued offending when an adult. Immaturity was therefore a factor of little weight in that appeal (see paragraph 48), but in the appeal of Tarrant it was a factor of greater weight for the offence which had occurred when he was 15 (see paragraph 175).

In the absence of reliable evidence of the maturity of the particular offender when he committed the offences, the maturity of a youth should be assessed by reference to the maturity of a youth of the offender’s age at the material time.

When sentencing an adult offender, the Youth Guidelines and Part 7 of the original Sentencing Guidance Council Sexual Offences guideline (in relation to sentencing young offenders for offences with a lower statutory maximum sentence under the 2003 Act) will not be generally applicable as they are predicated on the basis that the offender is still a youth. Their relevance in these circumstances is confined to the emphasis placed in each on the significance of immaturity at the time of the offending to the assessment of culpability. They are not relevant for any other purpose. R v GB [2015] EWCA Crim 1501 should not be followed. Although none of these appeals involved an identification of an equivalent offence from those covered by Part 7, cases will arise where one of those offences will be an equivalent offence (such as on the facts of GB) and the lower maximum sentences applicable for a Part 7 offence will need to be considered as part of the sentencing exercise in order to arrive at the appropriate sentence in accordance with paragraphs 9 and 10 above.

It is sometimes the case that offences have been committed whilst the offender was considerably younger and it is said that the offender has since that time been a man of good character. Paragraph 8 of annex B provides:

“8.

Where there is an absence of further offending over a long period of time, especially combined with evidence of good character, this may be treated by the court as a mitigating factor. However, as with offences dealt with under the Sexual Offences Act 2003, previous good character/exemplary conduct is different from having no previous convictions. The more serious the offence, the less the weight which should normally be attributed to this factor. Where previous good character/exemplary conduct has been used to facilitate the offence, this mitigation should not normally be allowed and such conduct may constitute an aggravating factor.”

As this paragraph makes clear, what is of material significance is proper evidence of positive good character. It is therefore necessary to examine carefully all the circumstances. For example, in the appeal of Clark, he committed the offences whilst teaching at a boys’ boarding school; thereafter there was evidence that he had had very good qualities as a teacher and what was said to be a constructive life as an organ builder and volunteer organist. However we were not persuaded that this sufficed to amount to exemplary conduct (see paragraphs 77-79). In the appeal of Tarrant, the evidence was that he established a positive life style (see paragraph 161), but that was tempered by the fact that he had lent himself to a cover up (see paragraph 175).

Annex B provides at paragraph 6:

“The court must assess carefully the harm done to the victim based on the facts available to it, having regard to relevant harm factors set out in any applicable guideline. Consideration of the circumstances which brought the offence to light will be of importance.”

As is evident from many of the appeals, the effect on the victims can be devastating. Where the judge has heard evidence from the victims, then he will be well placed to make that assessment (see for example the case of McCallen at paragraph 97). However, it must be borne in mind, so that double counting is avoided, that the starting points and sentencing ranges provide for the effect on the victim which is the inevitable effect of this type of serious criminal behaviour. There has to be significantly more before harm is taken into account as a distinct and further aggravating factor and or before a judge makes a finding of extremely severe psychological or physical harm so as to justify placing the offence in the top category of harm.

We would observe that some of the victim personal statements before us contained matters that should not have been contained in them. The prosecution and police must keep the relevant guidance in mind when preparing such statements.

Paragraph 7 of annex B provides:

“The court must consider the relevance of the passage of time carefully as it has the potential to aggravate or mitigate the seriousness of the offence. It will be an aggravating factor where the offender has continued to commit sexual offences against the victim or others or has continued to prevent the victim reporting the offence.”

Passage of time in cases where there are threats or other conduct designed to discourage the complainant from reporting the offence is not a mitigating factor of any material weight; an illustration is provided by the appeal of Forbes (physical violence and a threat to kill – see paragraphs 42 and 48).

It is the duty of the prosecution to reflect the criminality alleged in the counts on the indictment and, in so doing, to provide the judge with appropriate powers of sentence upon conviction. Those who draft indictments should consider the use of multiple offending counts to avoid this difficulty when a prolonged course of conduct involving similar abuse is alleged.

The Criminal Procedure Rules 2015, Crim PR 10.2 (2) supplemented by the Criminal Practice Directions 2015, CPD II Preliminary Proceedings, 10A. 13 make it clear that more than one incident of the commission of an offence may be included in a count if those incidents taken together amount to a course of conduct having regard to the time, place or purpose of commission.

Furthermore, as Fulford LJ observed in A v R [2015] EWCA Crim 1177, where a prosecution fails to specify a sufficient minimum number of occasions with a multiple incident count or counts, they are not making proper use of the procedure. In cases of substantial abuse it will often be unhelpful to draft the count as representing, potentially, no more than two incidents. The prosecution needs to ensure that there is a sufficient number of broad course of conduct counts, or a mix of individual counts and course of conduct counts, such that the judge will be able to sentence the defendant appropriately on the basis of his criminality as revealed by the counts on which he is convicted.

In the appeal of Tarrant, one of the two counts in the indictment was incorrectly framed so that it only entitled the judge to sentence on the basis that one incident had occurred – see paragraph 167 below. As the judge had not sentenced on this basis, we had to allow the appeal. The error on the indictment should not have been made for the reasons we have given.

Two of the other appeals illustrate a lack of care in relation to offences that are no longer current. It is necessary for the prosecution to consider the ingredients of the offence with particular diligence and to check that the offence charged is correctly laid.

Where the provisions of s.236A of the Criminal Justice Act 2003 apply, the judge should impose an additional one year period of licence beyond that normally applying. Where the application or the appeal is dismissed, this court cannot rectify the situation without falling foul of s. 11(3) of the Criminal Appeal Act 1968. (See the analysis at [29] and [30] in R v Fruen & anor [2016] EWCA Crim 561.)

An example from the appeal of Farlow may assist. The provisions of s.236A of the Criminal Justice Act 2003 apply to count 16 in respect of Farlow (see paragraph 203), so that the judge should have imposed an additional one year period of licence beyond that normally applying. He did not do so. Since we have refused the application relating to sentence, we are unable to rectify the situation for the reasons given.

STEPHEN JOHN FORBES

The appellant, Forbes, now 56, was convicted at the Crown Court at Bournemouth on 1 July 2015 before HH Judge Fuller QC and a jury of sexual offences that had taken place between the mid-1970s and early 1980 when he was between 16 and 21 and the male complainants between 7 and 13. He was sentenced to an overall term of 17 years’ imprisonment. The offending comprised:

All the offences arose from Forbes’s close relationship with two brothers, C1 and C2. In 2014 the complainants reported to police that they had both been sexually abused by Forbes in the mid-1970s and early 1980s when they were aged between 7 and 13 and Forbes was aged between 16 and 21. The abuse occurred at his family home where the complainants were frequent visitors.

Count 1 related to an incident when C1 was aged about seven and Forbes about 16. Forbes called C1 into a bedroom and asked if he wanted to play cards. As they played, Forbes started to fondle C1. He took out his own penis and began masturbating. He put his penis into C1’s mouth before sucking C1’s penis and inserting his fingers into C1’s anus. Count 2 was drafted as a multi incident count (covering at least 25 occasions) reflecting sexual abuse of a similar nature that continued until C1 was thirteen. Count 3 represented another specific occasion: C1 was aged about eight or nine when Forbes attempted to insert his penis into C1’s anus. C1 recalled screaming out loud which caused Forbes to desist.

The first abuse of C2 alleged in count 4 was when C2 was aged about six or seven. Forbes asked him to help carry some papers upstairs. Once in the bedroom Forbes took out his own penis and started masturbating. He caused C2 to grab hold of his penis which he then forced into C2’s mouth. C2 felt frightened and shocked. He too was then abused on a regular basis on at least 25 occasions until he was thirteen. Count 5 was drafted as a multi incident count to reflect this behaviour.

Both boys were shown pornography and both made to suck Forbes’s penis to the point of ejaculation. There were some occasions when both complainants would be in the room together and witnessed the abuse of the other. The loser at cards would be made to perform sexual acts with Forbes whilst the other had to watch. On one such occasion C2 was so upset he suffered an asthma attack.

Forbes threatened C1 to prevent him from telling anyone. He warned C1 that he would not be believed and that both complainants would be put into a children’s home or boarding school if he complained. When C1 tried to stand up to Forbes, Forbes took him down to a local stream, ducked him repeatedly, and told him that he would be killed if he said anything. The abuse stopped in about July 1980 when Forbes married and moved out of the family home.

The judge treated the indecent assaults we have described as what would now be characterised as oral rapes. The offences represented broadly a Category 2A offence under the guideline for s.5 of the 2003 Act because of the vulnerability of the age of the complainants when the offending started, the threats of violence and the abuse of trust in taking advantage of the complainants in a home environment in which they were expected to be safe. The aggravating features included repeated ejaculation, the presence of a second child when the acts were committed and the repetition of the assaults over a number of years.

The judge took in to account Forbes’s youth and the fact that Forbes had no previous convictions for sexual offences. However, Forbes’s record includes previous convictions for 24 offences of dishonesty, criminal damage, public order offences, and offences of battery and common assault. His most recent conviction was in 2008 for Assault Occasioning Actual Bodily Harm and Breach of a Non-Molestation Order.

It was contended on the appeal that the total sentence of 17 years’ imprisonment was manifestly excessive in general and in particular because:

The focus of the submissions made on behalf of Forbes was that the offences were committed many years ago when Forbes was still a very young man. The current and applicable Sexual Offences Definitive Guideline was directed at offences with a much higher maximum penalty. He did not challenge the judge’s decision to equate the offences with offences of rape of a child contrary to s.5 of the 2003 Act or to his placing the offences in Category 2A.

For the reasons given in paragraph 16-18, we have revisited the issue of culpability and abuse of trust. There was no evidence put before us that when a young teenager, Forbes was placed in a position of trust which he abused, as opposed to taking advantage of opportunities that presented themselves when alone with his younger relations. It may well be that the position changed as he grew older, but there is no evidence of that. In his sentencing remarks the judge referred simply to Forbes having taken ‘advantage of the boys within the home environment in which they were entitled to be safe and protected’. This would not suffice to sustain a finding of abuse of trust for the purposes of categorisation and we shall approach sentence on the basis that Category 2B is more appropriate. This provides a starting point of 10 years and a range of 8-15 years.

However, the guideline for s.5 is directed at one offence. Here, there were numerous offences of rape of a child under 13, over a lengthy period, with a number of aggravating features including ejaculation, threats, blackmail and violence to prevent disclosure and the commission of offences in the presence of the other child. Most importantly, there were two victims. There was little mitigation. Although Forbes was only 16 years of age when he embarked upon the abuse, he had sufficient maturity to know that what he was doing was wrong even then and continued offending as an adult. He intimidated his victims into keeping quiet for years. Thereafter, he may not have committed any sexual offences but he has lived a far from exemplary life. Very little weight, therefore, can be placed on the passage of time in his case. Given the very serious nature of the offences, the harm caused and the high level of culpability, although the total sentence was severe, we are not persuaded that it was manifestly excessive. The appeal is dismissed.

In the circumstances it is not possible to implement the provisions of s.236A of the Criminal Justice Act 2003 which applied to two of the counts.

BARRY JAMES WARREN

The appellant Warren, now 78, was sentenced to an overall term of 10 years’ 6 months’ imprisonment on 12 October 2015 by HH Judge Bacon QC in the Crown Court at Norwich for offences committed by him as a scoutmaster on young boys (aged 6-13) between 1976 and 1994 when he was aged between 39 and 57. He had pleaded guilty on two separate indictments.

On indictment 0021 the facts show that the offences took place when Warren took boys on a trip to the Norfolk Broads. Warren invented a game. He produced whips and said that the boys should take it in turns to hit him. He lay down on his back and appeared to be aroused. The boys were required to whip his shorts in the area of his penis. In a second game the boys were obliged to use a teaspoon to pour cold water down the leg of Warren’s shorts on his groin area. Again, it was clear that he was aroused. There was a basis of plea in which Warren said that counts 1 and 2 on this indictment represented a single incident and that any contact with the complainants was over clothing.

The offences on the second indictment came to light after publicity had been given to the first indictment. The activities represented in this indictment again involved boys being required to whip Warren in his groin area in circumstances where he was aroused and on occasion appeared to have ejaculated although, since he was clothed, this was not visible. On occasions the boys whipped him in that way for up to 30 minutes. On other occasions they were invited to use a lighter to singe Warren’s pubic area. Others described using different implements to strike Warren on his penis area or the dropping of a sledgehammer head on his testicles when his penis was erect. On one occasion boys were asked to stand on Warren’s genitals while wearing shoes. It is apparent that these activities occurred both with boys on their own and with groups of boys.

In a basis of plea Warren contended that in relation to each matter the activity was over clothing. That applied to the offences to be taken into consideration as well. The prosecution accepted that in relation to count 12 he had awoken a boy from his sleep by touching him on his groin area through his clothing. In relation to the other counts, the prosecution did not seek a trial of the issue as to whether Warren’s naked penis had been exposed. The case proceeded on the basis of plea. The maximum penalties available were two years for the indecency with a child offences, five years for the gross indecency offences and 10 years for the indecent assault (count 12).

All offences occurred during boat trips to the Norfolk Broads where, as the judge put it, the boys were effectively trapped and prey to Warren’s perverted demands. There was the clearest breach of trust involved. A large number of boys had been abused and the offending took place over a period approaching 20 years. There was offending in the presence of other boys who were debased by what they saw. Some of the victims had provided impact statements showing effects reaching into their adult lives. They spoke of common features of difficulties with relationships, families or trust. They said they had suffered flashbacks, anxiety, sleeplessness and nightmares.

In passing sentence the judge said she had taken account of totality and of Warren’s health problems although those were manageable within the prison system. Warren had no previous convictions. A pre-sentence report showed a lack of victim empathy and a denial of sexual motivation. His health problems included diabetes requiring daily medication, high blood pressure and high cholesterol. He also had some spinal problems.

In relation to indictment 0291 there was an irregularity. The charge of gross indecency was laid contrary to s.13 of the Sexual Offences Act 1956. By reason of the provisions of s.7(1) and (2)(a) of the Sexual Offences Act 1967 that charge was time barred.

The matters should have been indicted as offences of indecency with a child contrary to s.1 of the Indecency with Children Act 1960 which was the process adopted in relation to all but one count on indictment 0021. The relevant evidence was in no way changed. Warren did not suggest he was misled in any way as to what he was admitting.

It is clear that the prosecution had always intended to charge under the 1960 Act but that when the indictment was drafted the statement of offence erroneously referred to s.13 of the 1956 Act. The particulars of offence were adequate to convey an offence committed under the 1960 Act. Warren’s counsel was alive to the point. He expressly disavowed any reliance on it and did not suggest that the guilty pleas were a nullity or that the convictions recorded were unsafe. We are satisfied that the defect is one of form rather than substance so that the pleas entered are not invalidated.

In the circumstances we order amendment of the court record below to record convictions on indictment 0291 in relation to counts 1 and 2 under s. 1 of the Indecency with Children Act 1960.

It was contended that the overall sentence was manifestly excessive since:

The principal focus of the submissions was that the sentence of 10½ years reflected an even longer sentence because credit was due for guilty pleas. The judge did not indicate what discount had been granted, but since the pleas had been entered at a relatively early stage, although not at the first opportunity, we accept that a discount of 25% was appropriate. That would suggest that after a trial the judge had in mind a sentence of about 14 years. This was said to be too long, particularly where there was no penetrative conduct and no skin to skin contact.

In passing sentence the judge selected the guidelines in relation to ss.16 and 17 of the 2003 Act as being equivalent offences to those indicted. She identified the case as falling within Category 3A. That was not a happy choice of comparator since those offences are primarily intended to cover cases of young people between 16 and 18 who consent to the activity in question but where that consent is vitiated in consequence of a particular relationship of trust with the offending adult. In this case the victims were all children, well below the age of consent and about half of them were under the age of 13, with the remainder being 13.

Applying the guideline for sexual activity with a child under 13 (contrary to s.8 of the 2003 Act) the relevant category is Category 3A which shows a starting point of five years and a range of 3-8 years’ custody. However, it should be noted that the maximum penalty for activity under this section is 14 years’ custody which is very considerably in excess of the maxima available for the offences to which Warren pleaded guilty. On the other hand, the guideline for sexual activity with a child of 13 or over (contrary to s.9 of the 2003 Act) shows at Category 3A a starting point of 26 weeks’ custody with a range from high level community order to three years. Again, the maximum sentence for this offence is 14 years. About half of the 14 victims would have come within this guideline under s.9 rather than the guideline for the s.8 offence.

This analysis shows the difficulty at times in selecting an equivalent offence from modern guidelines in order to follow the practice set down in R v H and annex B both by reference to the factual circumstances and modern maximum sentences which may greatly exceed maxima applying when an offence was committed.

We do not accept the prosecution’s contention that the matter should be approached solely by reference to the guideline for the s.8 offence (sexual activity with a child under 13); firstly, because some of the victims were in fact 13; secondly, because of the higher maximum sentence available under the modern guidelines. As H indicated, as annex B sets out, and as we have set out at paragraphs 8 and following, what is required of the sentencing court is to have regard to the modern guidelines. This was undoubtedly serious offending over a significant period of time and in serious abuse of trust reposed in Warren as a scoutmaster.

The boys involved in indictment 0021 were significantly under the age of 13. Warren’s perverted activities undoubtedly adversely affected a number of the boys on an ongoing basis as their victim statements demonstrate. A substantial sentence was called for even taking account of the fact that there has been no further offending since the mid-1990s and the offender’s age and health. We also bear in mind that these were non-penetrative offences. In addition, there is credit to be given for guilty pleas.

It seems to us that the resolution of this case depends on considerations of totality as the Sentencing Council’s guideline on totality demonstrates. Even when consecutive sentences are appropriate, as they are here, the court must test the overall sentence against the requirement that it be just and proportionate. We think that the judge failed to give sufficient weight to this factor with the result that the overall sentence was simply too long.

We consider that an appropriate overall sentence would have been seven years. We achieve that by substituting six month sentences for the 12 months imposed on counts 4, 6, 7, 9, 10 and 11 of indictment 0021, and by substituting 12 months’ imprisonment for the 18 months’ imposed on count 12 of 0021. The sentences on counts 1, 2 and 3 remain in place. All the other sentences will run consecutively to one another. This gives a total of seven years’ imprisonment. To that extent this appeal is allowed.

JOHN CLARK

The appellant Clark, now aged 80, was convicted on 29 October 2015 before HH Judge Climie and a jury in the Guildford Crown Court of 25 offences of indecent assault on a male contrary to s.15(1) of the Sexual Offences Act 1956 and one offence of buggery contrary to s.12 of the same Act committed between 1974 and 1981 when Clark was aged 39-46 and the complainants between 7 and 13. The trial judge sentenced him to a total of 20 years’ imprisonment. The maximum penalties available were 10 years’ imprisonment for indecent assault and life imprisonment for buggery. His application for leave to appeal against sentence has been referred to the Full Court by the Registrar.

The offences arose during Clark’s employment as a music and history of art teacher at a boarding preparatory school in Surrey. Between 1974 and 1981, when aged 39-46, he sexually abused four of his pupils on numerous occasions.

C1 was abused on two occasions between the ages of 10 to 13. The first occasion involved Clark taking C1 into the organ loft where they could be alone. Clark undid his trousers, placed C1’s hands on his penis and got him to masturbate Clark to ejaculation. On the second occasion Clark arranged for C1 to visit him at his home. Clark asked C1 to take off his clothes and get into bed. Clark did likewise. Clark got C1 to lie on top of him and masturbate him. C1 complied but not to ejaculation. C1 became frightened when he felt Clark’s penis against him. He left the room.

C2 was abused on a regular basis from the ages of about 9 to 13 whenever Clark could get C2 alone, be it in the organ loft, in the library, in a classroom, on a school trip or Clark’s home. Clark would hug and kiss C2 and become aroused. He would place C2’s hand into his (Clark’s) trousers and get C2 to masturbate him. He would place his hand into C2’s trousers and touch his penis or he would get C2 to give him oral sex by holding C2’s head and pushing his mouth unto his penis until he ejaculated into his mouth. C2 described this as an almost daily occurrence; sometimes happening more than once in a day. Clark would also perform oral sex on C2 and would insert his fingers into C2’s anus at the same time. On at least one occasion, he inserted his penis into C2’s anus. C2 claimed that Clark ‘had sex’ with him and another boy, C3, on a school trip.

C3 was abused on 10 or more occasions from about the age of seven. He was also abused by another master. Clark first asked C3 to sit on his lap during a piano lesson. Clark guided C3’s hand under his leg so that it touched Clark’s crotch. He could feel Clark’s penis through his clothes. After four or five assaults of this kind, Clark took C3 up to the organ loft, removed his erect penis from his trousers, covered it in a handkerchief and made C3 masturbate him. This happened on about 10 occasions. C3 further claimed that Clark arranged for him and another boy to masturbate each other. Clark warned C3 that he would not want his friends to find out what was going on.

C4 was also sexually assaulted by Clark and another master. Aged about 11, C4 joined the school choir. Clark would hold C4 back at the end of choir practice. Pretending to put his hands around C4’s stomach to demonstrate the correct breathing technique, he would hug him from behind, kiss him and rub his body up against him. C4 could feel Clark thrust his penis against him, grunting as he did so. This happened at least twice a week after choir practice. Clark similarly took advantage of a Saturday club to hold C4 back when the others left and to abuse him. The last time Clark assaulted C4 was during the Christmas holiday of 1978/79. Clark arrived unannounced at C4’s home and on a pretext drove him back to school. In the organ loft he undid C4’s trousers and started to masturbate him. He then undid his own trousers and made C4 masturbate him. He pushed C4 down to his knees and tried to push his penis into the boy’s mouth. This was too much for C4. He told Clark that he did not want to and could not do it. He tried to get away but undeterred Clark rubbed up against him with an erect penis. Clark only stopped when he sighed as if he had ejaculated. C4 begged to be taken home.

For years the complainants buried their experiences. The first of the complainants to involve the police was C1. He went to the police in 2002 and the police invited Clark to an interview under caution in which he denied the offence. In the absence of any corroborative evidence, he was not charged with any offence. The case was closed in April 2003. Six years later, feeling suicidal, C1 went to the school chapel and slit his wrist. Fortunately, he was found in time. He has since received psychiatric counselling. In November 2010, when C2 was also engaging in counselling, he was encouraged by his mother to speak to the police and the investigation which led to Clark’s prosecution in earnest. Clark was arrested. In interviews, he denied the allegations, calling them ‘disgusting’, ‘absolute rubbish’, ‘wicked’ and ‘hurtful’ lies.

On the appeal it was submitted that the sentence of 20 years was excessive in general. The specific points made were:

There were placed before the court a number of character references in which friends and colleagues spoke warmly of Clark’s qualities and ability as a teacher. Some of the letters were not provided to the trial judge, as they should have been; no adequate explanation for that failure was proffered. A summary was provided of what was described as Clark’s ‘constructive and blameless life’ since the offences. Clark had worked as an organ builder and restorer, as a teacher/choir master at another preparatory school and as a volunteer organist for the National Trust. It was suggested that this amounted to evidence of such positive good character that the total sentence should be reduced. Finally, we were invited to bear very much in mind the state of Clark’s health. We were told that Clark has undergone surgery for cancer of the bowel, treatment for prostate cancer and was described as frail. Unfortunately, we have no up to date medical reports to that effect; the most recent prison report made no reference to his ill health.

For the most serious of the offences, the modern equivalent offence is undoubtedly s.5 of 2003 Act, rape of a child under 13. We have our doubts as to whether the material before the judge justified what appears to have been his finding of severe psychological harm “at the most extreme end” so as to place the offences in Category 1, but they undoubtedly fall into Category 2A. There was sufficient in the victim impact statements and in the evidence before the court, in respect of at least two of the victims, to make a finding of severe psychological harm and the victims were all particularly vulnerable.

Clark’s culpability was also very high. A significant degree of planning went into deliberately isolating the boys; Clark groomed them and committed the offences in gross abuse of trust. The aggravating features included ejaculation in respect of each complainant, specific targeting of vulnerable children, abusing a child in the presence of another and an unpleasant remark made to at least one child designed to prevent his reporting the abuse. The mitigating factors were limited. Clark has led a law abiding life for a large number of years but one cannot describe it as exemplary. We were unimpressed by the fact that, knowing his own proclivities, he took up a post at another school for young boys (albeit there is nothing to suggest he offended). He is now old and frail and suffers from ill health.

For an eighty year old man, a sentence of 20 years which means that he will most probably spend the rest of his life in prison merits the most anxious scrutiny by this court. We therefore give leave.

However, we cannot ignore the fact that this was sustained and systematic gross abuse of vulnerable young children in Clark’s care solely for his sexual gratification. He gave no thought to or simply ignored the grave consequences for the children. Having left the school and his victims behind him, he enjoyed many years of productive life. His victims have not been so lucky. Given the seriousness of the offences and the particular circumstances of them we are driven to the conclusion that the sentence, although severe, was not manifestly excessive.

In the circumstances it is not possible to implement the provisions of s.236A of the Criminal Justice Act 2003.

ANTHONY JOHN MCCALLEN

On 16 December 2015 in the Crown Court at Leeds before HH Judge Marson QC and a jury the applicant McCallen, now aged 70, was convicted of one offence of buggery, contrary to s.12(1) of the Sexual Offences Act 1956 and 10 offences of indecent assault on a male, contrary to s.15(1) of the sexual Offences Act 1956 in the period between 1979 and 1981 when he was aged between 33 and 47. The complainants were aged between 12 and 17.

On 4 January 2016 he was sentenced to a total of 15 years’ imprisonment. The sentence comprised:

McCallen applies for leave to appeal against sentence following a referral of his application to the Full Court by the Registrar.

McCallen had been ordained as a priest in 1970 and was appointed chaplain to St William’s School in 1977. Between 1977 and 1980 he lived in the presbytery at the school. Although he remained in that post he did not live on the school premises after 1980. All the victims on the indictment had been resident pupils at the school.

St William’s was an “Assisted Community Home with Education” under the provisions of the Children and Young Person Act 1969. It was established to provide for the educational and living needs of boys from a Roman Catholic background who were emotionally or behaviourally disturbed. The religious requirement was relaxed over time and Local Authorities across North East England placed disturbed boys of any or no religious background there.

The offences of which McCallen was convicted involved four males, all adolescent residents of the school at the time.

McCallen regularly sexually assaulted C1, then aged between 15 and 17, by coming to his bed at night, touching his penis and masturbating him. On one occasion McCallen raped him anally when visiting McCallen’s house for tea. These matters were the subject of 2 counts of indecent assault and the count of buggery.

McCallen touched C2’s penis both over and under clothing, when C2 was between 14 and 16 years old. This conduct occurred many times and in many different locations across the St William’s estate including in the chapel and in C2’s bedroom. These assaults were the subject of five counts of indecent assault.

On one occasion when C3 was between 13 and 16 McCallen entered his bedroom, touched his penis over clothing before exposing his own penis and instructing C3 to masturbate him.

McCallen kissed C4, when he was between 12 and 13, in a sexual manner on two occasions.

In 2010 Humberside Police began a criminal investigation into allegations of historic sexual abuse at the school between 1965 and 1993. As a consequence, the matters we have set out came to light.

In 1993 McCallen was convicted of one count of being knowingly concerned in the importation of an indecent video, six offences of taking indecent photographs of young boys, and two offences of indecent assault. He was sentenced to a total of three and a half years’ imprisonment, reduced on appeal to two years’ imprisonment. Those offences were committed against the sons of parishioners. Those offences did not involve boys from St William’s.

McCallen’s co-defendant, Carragher, was a teacher at the school and a lay member of the teaching order there. Carragher was convicted of 11 offences of indecent assault on a male and three offences of buggery between 1970 and 1990; he was sentenced to a total term of nine years’ imprisonment. In 1993 he had been convicted of 12 offences of indecent assault, one of buggery and one of attempted buggery. On that occasion he had been sentenced to a total term of seven years’ imprisonment. Having served that sentence, in 2004 he was convicted of seven offences of buggery and 15 offences of indecent assault. For those offences he received a sentence of 14 years’ imprisonment. In determining the 14 year sentence the Learned Judge had assessed the appropriate term as 21 years but made allowance for the term of seven years already served.

All Carragher’s offending had been carried out against boys at the school. In passing the sentence on him in January 2016 Judge Marson QC carried out the same exercise and adjusted the sentence to take account of the terms previously served.

The judge saw the victims give evidence and was well-placed to form a view of the effect of these offences upon them. In passing sentence, he said:

“Over a period of many years …………. committed offences of indecent assault and buggery on boys in your care. These boys were entitled to look to you to care for them, to educate them and to guide them so that when they were released they would have a better chance of living a decent and honest life. In many ways you had been acting in loco parentis. It is perfectly clear that you targeted some of the most vulnerable boys. You groomed them, abused them for your own sexual gratification, threatened them to ensure that they did not complain…………….

These victims were particularly vulnerable, not least by reason of the fact that they were the subject of court orders and were not free to leave. They were effectively trapped and there was no escape from you. It is difficult to imagine a worse case of breach of trust.”

He described the boys as suffering from severe long-term and continuing psychological harm. Their lives had been blighted by the offences committed against them.

The judge assessed the offence of buggery as being equivalent to rape contrary to s.1 of the 2003 Act and assessed it as Category 2A, with a starting point of 10 years’ custody within a range of 9 to 13 years. He treated the indecent assaults as sexual assaults under s.3 of the 2003 Act and assessed them as Category 1A with a starting point of four years for a single offence within a range of three to seven years. He made the sentence on the buggery consecutive to concurrent sentences on all the indecent assaults.

It was properly conceded that the terms of imprisonment and the totality of them could not be said in themselves to be wrong in principle or manifestly excessive. The point advanced on behalf of McCallen was that the approach taken in Carragher’s case to the earlier sentences should also have been adopted in McCallen’s case.

In Carragher’s case he had to be sentenced for a third time for offences arising out of the same series of offending against the same category of boys who had been resident at the school. However, McCallen’s previous offending had been committed in different circumstances against the sons of his parishioners and not the residents of the school. If the judge was sentencing in 2016 for those other offences he would, rightly, have passed consecutive sentences, or concurrent sentences which took account of the totality of the offending.

In our view the judge was right. There was nothing wrong in principle with the sentence imposed for these offences. The application for leave to appeal is refused.

BD

The appellant BD, now aged 58, was convicted at the Crown Court at Bristol before Mr Recorder Atkinson QC and sentenced on 11 September 2015 to a total of 5½ years’ imprisonment for a number of sexual offences committed between 1968 and 1977 when he was aged 11-19; the female complainants were aged 8-12.

There is no complaint about the sentences imposed for the offences against C2. The appeal relates solely to the offences against C1.

The overall offending against BD’s two younger siblings took place between 1968 and 1977 when BD was aged between 11 and 19. The two complainants and BD were then living together in the family home. This abuse came to light many years later.

In relation to counts 3 to 8 C1 alleged that BD had sexually abused her, initially by penetrating her vagina digitally. This rapidly progressed to vaginal intercourse which took place on a regular basis. C2 witnessed some of these incidents. At the time when the offending against C1 took place, there was an irrebutable common law presumption that a child under the age of 14 was incapable of sexual intercourse. BD could therefore not be prosecuted for rape. Instead he was prosecuted by way of specimen counts of indecent assault, even though the conduct relied on by the prosecution amounted to full penetrative sexual intercourse.

In relation to the offences against C2, the abuse took place on a number of occasions and took the form of rubbing C2’s buttocks and fingering his anus.

Victim personal statements were before the court. It is apparent from those that both C1 and C2 were significantly damaged by their experiences. C1 spoke of a stolen childhood and the whole of her life being affected. C2 spoke of nightmares, flashbacks, low self-esteem, shame and self-harming. He was ultimately diagnosed with post-traumatic stress disorder.

BD is now 58 years of age. He has no convictions for any other matter. The sentencing judge received three letters from other family members. They spoke of him as a hardworking and devoted family man.

The grounds of appeal focus on the fact that when the offences against C1 were committed, BD was aged under 14. S.17(3) of the Criminal Justice Act 1948 as amended provided that the Crown Court should not impose imprisonment on a person under 17 years of age. As we set out in the next paragraph, no form of custodial sentence would have been available had BD been sentenced at the time the offences were committed. Thus it was argued that a sentence of imprisonment imposed in 2015 would be qualitatively different from that which could have been imposed at the time. It was wrong retrospectively to impose such a sentence which would contravene Article 7 of the European Convention on Human Rights which provides that a heavier penalty should not be imposed than one that was applicable at the time the offence was committed.

Investigation in this case has shown that an offender under the age of 14 at the time of this offending could not have been sentenced to any custodial sentence.

Article 7(1) of the Convention provides:

“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”

It is the latter sentence which is operative in this matter.

Article 7(1) was considered in R (Uttley) v Secretary of State for the Home Department [2005] 1 Cr App R (S) 91. At [21] Lord Phillips said:

“It follows that Art. 7(1) will only be infringed if a sentence is imposed on a defendant which constitutes a heavier penalty than that which would have been imposed on the defendant under the law in force at the time that his offence was committed.”

Similarly, at [42] Lord Rodger said:

“The decision of the European Court demonstrates, however, that art. 7(1) does not envisage such speculative excursions into the realm of the counter-factual. Its purpose is not to ensure that the offender is punished in exactly the same way as he would have been punished at the time of the offence, but to ensure that he is not punished more heavily than the relevant law passed by the legislature would have permitted at that time. So long as the court keeps within the range laid down by the legislature at the time of the offence, it can choose the sentence which it considers most appropriate.”

Similar comments were made in the other judgments. In that case, in short, the House of Lords was satisfied that there was no breach of Article 7 provided the sentencing court sentenced within the maximum sentence available at the time the offence was committed. Changes to the regime in relation to release on licence did not affect the situation.

In H, Lord Judge clearly drew upon the decision in Uttley in holding at [18]:

“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 offence was committed, neither the retrospectivity principle nor Article 7 of the European Convention are contravened.”

The issue was also considered in R v Bowker [2007] EWCA Crim 1608. That case involved the sentencing of an offender who was 17 at the time of the offence, albeit by only 2 days, but who was 18 at the time he was dealt with. The argument was raised that there was a breach of Article 7. The reference to the “applicable” penalty was not merely to the maximum for the offence but the maximum available as punishment for the appellant at the time of the commission of the offence. This Court rejected that argument, stating that the provisions of Article 7 (1) were clearly directed to the mischief of retroactive or retrospective changes in the law. In Bowker there had been no change in the law. The penalties for violent disorder remained the same. All that changed was the penal regime to which the offender would be exposed as a result of the normal operation of existing law as to his age at the time of conviction. The court therefore did not consider that it was constrained in any way by the provisions of Article 7.

None of those cases had to deal with the situation whereby at the time of the commission of the offence a custodial sentence was not available. We consider that that makes a difference. There is no logic to testing the matter by reference to the maximum available sentence of imprisonment in relation to an offender for whom custody was not an option at all by reason of the statutory provisions to which we have referred at paragraph 110 above. The passages to which we have previously referred in Uttley at [21] and [42] do not seem to us, in the circumstances, to be inconsistent with a consideration of the sentencing regime applicable to BD. It is of note that at [43] Lord Rodger indicated that Article 7(1) might be engaged if, for instance, a sentence of imprisonment was subsequently to become a sentence of imprisonment with hard labour. This must have been on the basis that such a sentence would have represented a different type of sentence from that applicable at the time of the offence.

At [46] Baroness Hale said:

“When considering what are the “limits fixed” by the law, the maximum duration of any permitted sentence of imprisonment … may not be the only relevant factor. There may be changes in the essential quality or character of such a sentence which make it unquestionably more severe than any sentence which might have been imposed at the time of the offence. Examples might be the reintroduction of hard labour with every sentence of imprisonment or the automatic conversion of a sentence of imprisonment of a sentence of transportation. These may seem fanciful today. Less fanciful might be the replacement, for certain juvenile offenders, of committal to the care of the local authority with determinate sentences of detention in prison department establishments. The care order was ostensibly a welfare disposal, rather than a penalty, although of indefinite duration up to the age of 18. The detention order was unquestionably punitive in intent and effect, although of definite duration. There must, at the very least, be an argument that art. 7 is engaged by such a change.”

We have come to the view that whilst, based on the authorities cited, Article 7(1) is not offended in any case where a custodial sentence was always available for an offender (even if the type of custodial sentence may be different), the same cannot be said where initially no custodial sentence was available at all.

On the face of it Article 7 is clearly engaged, and in any event ordinary common law fairness would require a court to take account of the disconnect between the sentence imposed in mature life upon an offender and the non-custodial penalty applicable to a child at the time the offence was committed. In those circumstances we hold that a custodial sentence should not have been passed for the offences against C1.

Whilst the investigation which we have made represents a derogation from the principles stated in H and the guideline to the effect that the court should not seek to establish the likely sentence had the offender been convicted shortly after the date of the offence, it seems to us to be necessary. This should not operate as encouragement or licence to courts to indulge in a similar exercise in any other situation.

We turn then to the practical consequences of that conclusion. There has been no challenge to the custodial sentence imposed in relation to the offences committed against C2 when this offender was aged 16 to 19. Those were serious offences committed on a number of occasions. The judge plainly had in mind considerations of totality, taking account of the sentences imposed in relation to the abuse of C1 in fixing that term. Since those sentences can no longer be sustained, it is legitimate to give further consideration to the sentence imposed in relation to C2. Considerations of totality as between the two victims no longer apply. The offences relating to C2 have to be seen in the context that they had been preceded by separate serious offending against C1. Moreover, some of the offences involving C1 had taken place in the presence of C2, a material factor in considering the counts relating to him.

In the circumstances we consider that the appropriate way of dealing with this case is to pass no separate penalty in relation to counts 3 to 8, the offences against C1, but to increase the sentences on counts 9, 10 and 11 relating to C2 to reflect fully the circumstances in which those offences were committed. We consider that a sentence of three years six months’ imprisonment was appropriate and substitute that term to run concurrently on each of counts 9, 10 and 11.

It follows that the overall sentence of 5½ years can no longer be sustained. The appeal is allowed by reducing the overall sentence to one of 3½ years.

MARK ROUSE

The appellant Rouse, now aged 48, pleaded guilty on 11 May 2015 at the Woolwich Crown Court to seven counts of indecent assault upon a male person contrary to s.15(1) of the Sexual Offences Act 1956 committed between 1980 and 1985 when Rouse was aged between 13 and 18 and the male complainant aged 7 to 11. That offence carried a maximum of 10 years’ imprisonment at the time.

On 8 June 2015 he was sentenced by HH Judge Katz QC to a total of six years’ imprisonment.

The offences took place between August 1981 and June 1985 when Rouse’s family lived next door to the complainant’s family. The two families were friends.

Rouse was aged between 14 and 17 whilst C was aged between 8 and 11 years. It follows that the age gap was six years which was substantial in the context of their respective ages.

C would visit Rouse’s house. When he was alone with Rouse in his bedroom, Rouse touched C by rubbing his hand on C’s penis over his clothing. This conduct escalated to Rouse masturbating in front of C, showing C how to masturbate himself, and then to mutual masturbation. Rouse also kissed C sometimes using his tongue. (Counts 1 and 3 related to specific incidents whilst count 2 was a multiple incident count.)

It appears that there was a degree of grooming in that Rouse gave C gifts which he describes as sweeteners. Furthermore, whilst Rouse was never violent, he was described by C as being “sneaky” in talking him into engaging in things he did not want to do. Rouse asked C not to tell his parents.

After about a year the abuse progressed to Rouse inserting his fingers into C’s anus. (Count 5). This was a multiple incident count. This was said to have happened a few times over a three to four year period. Rouse made up a story about how to get wind out of C’s body which involved C crouching down and then Rouse inserting his finger into C’s anus.

Rouse tried to persuade C to engage in oral sex. C tried it but hated it. Rouse would then on other occasions try to put his penis in C’s mouth to see if C would give in but he continued to refuse to engage in oral sex (Count 4).

On one occasion Rouse, after digital penetration, attempted to insert his penis into C’s anus. C indicated that he did not like it and told Rouse that it hurt. Eventually Rouse desisted. The prosecution indicated that although the episode was charged as indecent assault, it would have amounted to attempted anal rape under the current legislation.

No further abuse took place after this apart from an occasion in June 1985 when Rouse’s family had recently moved and visited C’s family. Rouse, who was then 18, took C who was then 11, upstairs and rubbed his pubic area. Mutual masturbation took place followed by Rouse masturbating himself.

There was clear evidence that Rouse’s conduct has had a profound impact upon C who feels that it “took his childhood away from him”. A measure of the disturbance endured by C at the time can be found in an occasion when C was about 10 in 1983, he saw a television programme about AIDS which led to him confronting Rouse.

This was not a case where Rouse could rely upon good character since the offending. Indeed he was described by the judge as having become “something of an entrenched paedophile”. He appeared before the courts on three previous occasions for 24 offences between 2010 and 2015. In December 2010 he was sentenced to 15 months’ imprisonment for 3 offences of sexual assault of a female. In 2014 he was fined for failing to comply with notification requirements. In March 2015 Rouse was sentenced to 2½ years’ imprisonment for the offences of making or possessing indecent photographs of children.

The judge gave a 25% discount as Rouse had pleaded guilty at the plea and case management hearing.

The judge rejected, correctly in our view, the contention that Rouse’s conduct was sexual experimentation. He described the offences as predatory and, in many respects, bearing all the indications of bullying behaviour.

In compliance with the practice set down in R v H and annex B the judge selected equivalent offences from modern guidelines both by reference to the factual circumstances and the statutory maxima that applied when the offences were committed. He then gave a substantial discount for his youth at the time of the offending.

It is submitted on behalf of Rouse that:

When giving leave, this court acknowledged that this was undoubtedly a difficult sentencing exercise meriting further detailed consideration as to whether a starting-point of 15 years was appropriate, and whether the sentence of six years’ imprisonment was too long when regard was had to the possibility that had Rouse been charged in 2016, he may have been prosecuted for lesser offences (for example sexual activity with a child) and received lower sentences.

Whilst the judge expressly avoided undertaking the exercise of calculating what the likely sentence would have been at the time, he observed that Rouse would have been subject to a sentence under s.91 as a grave offence. This observation was incorrect as that provision was not in force at the time. S. 53 of the Children and Young Persons Act 1933 was in force in respect of certain grave crimes, but it did not apply to s.15(1) of the Sexual Offences Act 1956 because to qualify the offence would have had to have been punishable with 14 years’ imprisonment or more. We regard the judge’s comment as an indication of the serious view the judge took as to this offending.

He was correct, however, that the sentencing exercise did not involve a calculation of the sentence that would have been passed at the time. In any event, it is clear that custodial options would have been available at the time of Rouse’s offending. Under the Criminal Justice Act 1961 detention centre would have been available for offenders aged between 14 and 20 whilst an offender would have been eligible for borstal training from the age of 15. These were replaced by detention centre orders and youth custody by the Criminal Justice Act 1982 which commenced on 24 May 1983.

The judge observed that the equivalent offences under the current legislation in respect of count 4 (oral sex) would have been s.5 of the 2003 Act, (oral rape) as would also have been the case in respect of count 6 where attempted anal rape was alleged. The multiple incident count 5 covered acts of digital penetration of the anus where the equivalent offence would have been s.6 of the 2003 Act.

Whilst the judge correctly identified the modern equivalent offences in respect of these facts, the maximum penalty in respect of these offences is imprisonment for life whereas the maximum in respect of s.15(1) of the Sexual Offences Act 1956 is 10 years. In following annex B and having regard to the guidelines, it is essential that the court take into account the fact that the equivalent modern offence guidelines are in respect of offences with significantly higher maxima.

The judge was entitled to find that the harm to C was severe. The abuse was accompanied by grooming which would, applying the s.5 guideline, place the starting point for counts 4 and 6 at 13 years (Category 2A). In respect of count 5, the starting point for a single offence would be 11 years under the guideline for s.6.

In these circumstances it can be helpful to make some reference to the starting-point for sexual assault or sexual activity with a child under 13. If categorised as sexual assaults, the starting-points would have been four years (with a range of three to seven years) whereas under s.8 they would have been a higher figure of eight years (Category 2A) reflecting the penetrative nature of the sexual activity.

It must be borne in mind that there were a number of aggravating features:

We have considered with care the judge’s observation that counts 4, 5, and 6 if committed by an adult would have attracted a sentence in the range of up to 15 years. Having regard to the relevant guidelines in accordance with annex B, and making an allowance for the lower maxima, in the context of this series of offences (including the multiple offending count) and the various aggravating features, no proper criticism can be made of the judge’s approach.

Rouse’s youth and immaturity at the time the offences were committed were highly relevant to culpability. However, it is clear that the judge then went on to make a substantial and appropriate reduction to reflect these factors before applying the discount in respect of the pleas.

The judge took into account the totality principle. He was entitled to make these sentences consecutive to the term of imprisonment Rouse was already serving in respect of entirely unrelated and much more recent matters.

It follows that we have concluded that an overall sentence of six years was not manifestly excessive. Accordingly this appeal is dismissed.

DEAN TARRANT

On 28 September 2015 the appellant, Tarrant, now aged 48, was convicted at the Crown Court at Maidstone before HH Judge Joy and a jury of 2 offences of indecency with a female child contrary to s.1(1) of the Indecency with Children Act 1960 (counts 2 and 3). The maximum sentence for the offence was two years. The offences were committed between 1980 and 1989 when Tarrant was between 11 and 20 and the complainant between 4 and 13. He was sentenced to two years’ imprisonment upon each and the sentences were ordered to run consecutively – a total of four years. He was acquitted on one count of indecency with a child and three counts of indecent assault.

Tarrant applies for leave to appeal against sentence following a referral of his application to the Full Court by the Registrar.

Tarrant was the stepbrother of the complainant C by virtue of the fact that his father was in a relationship with the complainant’s mother at the time the offences occurred.

The offending occurred over 25 years ago. Tarrant is eight years older than the complainant.

The offending that the prosecution alleged formed the basis of count 2 occurred regularly between 1980 and 1989 when the complainant was a young girl aged between 4 and 13. It follows that Tarrant would have been aged between 11 and 20 years old during this period. The allegation in respect of this sample count was that Tarrant would on a regular basis get her to masturbate him to ejaculation and to perform oral sex upon him. He had promised her ice cream and money and had threatened her so that she would not tell anyone.

In contrast to count 2, count 3 related to a specific instance when the complainant was aged 7. Her mother witnessed this single episode of abuse perpetrated by Tarrant when he was 15 when he was masturbated by C.

The prosecution case was that C had originally made the allegations when she was around 13 years old. However this did not lead to a prosecution, as although Tarrant was arrested, he denied what was alleged and C’s mother backed his account. In January 2014 C reported the offences to the police.

In her victim impact statement, C described how Tarrant’s conduct had blighted her life and had had a devastating effect upon her. She has felt unable to care for her children. She has felt “utterly worthless” and attempted suicide. She has suffered from major mental health problems leading to treatment in psychiatric hospitals and a diagnosis of personality disorder. She has suffered from depression and anxiety.

Tarrant has no previous or subsequent convictions. He left home when around 21. He married in 1992. He has two sons from his marriage. He is separated from his wife and he has lived with his current partner for a number of years. The author of the pre-sentence report observed that he now has established employment, a family home and a positive lifestyle.

In his sentencing remarks the judge treated the case as representing serious child abuse leading to a severe breach of trust. He described count 2 as reflecting allegations of a regular and systematic abuse when his father and stepmother were out and so he drew the inference that there was some degree of planning and grooming in the nature of the offences. The judge described both Tarrant and his stepmother as controlling and manipulative.

He noted the profound impact Tarrant’s conduct had had upon the complainant and he observed that the complainant’s suffering had been intensified by Tarrant’s denial upon arrest in 1998 when the complainant’s mother had taken sides and C had been sent away to an aunt and only allowed to return to the family upon terms that she was prepared to say her allegations had been fabricated. This had severe consequences for the complainant who had gone through misery and lived with serious injustice for 30 years.

The judge stated he was taking into account Tarrant’s age, youth at the time of the offences as well as his good character apart from this offending.

On behalf of Tarrant, it was submitted that the total sentence of four years was manifestly excessive, in all the circumstances of the case. It was contended that the judge did not take sufficient account of Tarrant’s personal mitigation, namely his youth at time of the offending and his positive good character evidenced by various references from his friends and family.

It was further submitted that the judge should have imposed concurrent sentences as count 3 was a specific incident within the period specified in count 2.

It was accepted on behalf of the prosecution that count 2, whilst a specimen count, purported to allege a prolonged course of conduct committed over a period of eight years. In accordance with the principles in Canavan and others [1998] 1 Cr. App. R. 79 conviction on that count only entitled the judge to sentence in respect of a single incident. It follows that the judge had to sentence on the basis of just two specific incident counts.

Furthermore, arguably the judge had to pass sentence on count 2 on the basis most favourable to Tarrant. The prosecution suggests that this would be when the complainant was 13 and Tarrant 21. No issue was taken on behalf of Tarrant with this approach.

Repercussions flow from this. The two offences cannot be viewed as a prolonged course of conduct involving systematic and regular abuse. A proper inference cannot be drawn that either of the two offences necessarily involved planning and grooming. Nor can it be said that either involved an abuse of trust of a nature that should elevate the case into a higher category of the guidelines. Count 3 took place when Tarrant’s mother was present. The circumstances in respect of count 2 are unclear. It certainly cannot be said that on that occasion particular trust was being reposed in Tarrant to look after his step-sister.

Nevertheless, these two specific offences still represented serious sexual abuse upon a step-sister when a child. Whilst Tarrant was a youth, the age gap was eight years. The judge was well placed to decide that the offences had had a profound impact upon the complainant and there had been severe psychological harm.

The appropriate “equivalent” offence in respect of count 2 was s.8 of the 2003 Act (causing or inciting a child to engage in sexual activity). Since “breach of trust” must be taken out of the equation in respect the application of the guideline to this case, the case falls in Category 2B giving a starting-point of six years with a range of three to nine years.

Interpreting the jury’s verdict on count 3 as reflecting a time when the complainant was 13, the equivalent offence would be s.26 of the Sexual Offences Act 2003 (inciting a child family member to engage in sexual activity) rather than s.8. The case falls in Category 2A by reason of the nature of the activity (touching of Tarrant’s naked genitalia) and the significant disparity in age. This gives a starting point of four years with a range of two to six years’ custody.

It follows that the application of the definitive guideline to both offences provides for a starting point significantly above the maximum sentences for an offence under s.1 (1) of the Indecency with Children Act 1960.

The judge was entitled to find separate and distinct offences justifying consecutive sentences.

Clearly Tarrant’s immaturity at the time (particularly in respect of count 3) has significant bearing upon his culpability. He is entitled to a very modest allowance for his good character since 1989 although this is to be considerably tempered by the fact that he was found by the judge to have lent himself to a cover-up that existed in the wake of the original complaint by C in 1988.

If Tarrant had been convicted of a count alleging multiple offending we would have had no hesitation whatsoever in upholding the sentences and this appeal would have been devoid of merit. However, in the light of the fact that sentencing should have proceeded in this case on the basis of two separate occasions rather than a prolonged and systematic abuse, we have formed the view that the sentences were too long given his youth at the time of the offending.

Accordingly we give leave to appeal against sentence, and the sentences in respect of both counts will be reduced from two years to 18 months. They will continue to run consecutively. The overall sentence will be three years imprisonment. To this extent, this appeal is allowed.

ALAN CHARLES FOULKES

On 16 October 2015 in the Crown Court at Chester before HH Judge Shetty QC the applicant Foulkes, now aged 72, was convicted of sexual offences committed on a female child between 1979 and 1990. Foulkes was then aged 35-45 and the complainant aged 7-17. He was sentenced on 26 November 2015 to a total of 19 years’ imprisonment. The offences were:

His trial had originally been listed on 12 October 2015 and he had failed to answer his bail on that date. He admitted the offence of failing to surrender to his bail and on 26 November 2015 he was sentenced to two months’ imprisonment to run consecutively to the total sentence

Foulkes applies for leave to appeal against sentence following a referral of his case to the Full Court by the Registrar. He seeks an extension of time of 12 days in which to apply for leave to appeal the substantive sentence and to appeal the sentence on the Bail Act offence.

All the counts on the indictment concerned Foulkes’s step-daughter, C. The offending began when she was seven years of age and continued until she was old enough to leave home at the age of 17. Foulkes was 35 when the offending started and 45 when it ended.

In 1979, when C was 7, C, her younger sister and their mother moved in to live with Foulkes. He took advantage of her desire for his affection and at Christmas he gave her sherry which made her drunk; not, as was argued on the appeal, that she got herself drunk. Foulkes took advantage of her age and her drunkenness; he caressed her naked body, count 1, which was pleaded as a specific incident. That progressed to touching of her vagina on a number of occasions, count 2, again pleaded as a specific offence.

Matters progressed to digital penetration of her vagina, alleged in specimen counts 3 and 4; this occurred when she was aged 9-11. During the same time period he made her rub his penis, set out as specimen counts 5 and 6.

When C was about 10 or 11 Foulkes caused her to masturbate him in the car park of a shopping centre. They were in the front of the car and her 2 or 3-year-old sister was in the back of the car in a child seat; this was indicted as a specific incident in count 7.

The abuse continued throughout her childhood. On one occasion when she was about 11 Foulkes made her masturbate him in his bed. At some point her younger sister came into the room and asked C to come and play with her. Foulkes told her to go away and said that C was playing with him, not her. She continued to masturbate Foulkes until he ejaculated (count 8 – specific count). Foulkes continued to make her masturbate him when she was between the ages of 11 and 15 (count 9 – specimen count).

The first offence of rape occurred in 1987 when she was 15 years old during a camping trip with Foulkes. She woke in the middle of the night to the sound of Foulkes unzipping her sleeping bag. He got on top of her. She tried to push him off but was unable to. He penetrated her vagina with his penis and ejaculated (count 10 – specific count).

The family moved home again when C was approximately 15 years old. Foulkes asked C to help him fit the carpets at the new home. She agreed and, whilst they were there, he raped her (count 11 – specific count). On a further occasion when she was aged 16 Foulkes raped her in the kitchen whilst she was cooking a meal (count 12 – specific count).

When C was 16 or 17 years old Foulkes arranged a Saturday job for her as a cleaner at the double glazing firm where he worked. On a number of occasions, he took her to a public house for lunch, bought alcohol for her then took her back to the office and raped her in an upstairs room (counts 13 and 14 - specimen counts).

On a number of other occasions when she was 16 or 17 Foulkes took C for a drink to a public house after work, then drove her to a quiet country lane and raped her in the car (counts 15 and 16 – specimen counts).

The abuse only came to an end when C was 17, had a job and a car and was able to move out of the family home. In late 2003 when C was aged 43, she brought these matters to the attention of the police, having made limited disclosure to her husband which resulted in her seeking counselling. She also had concerns about contact between Foulkes and her young niece, whom she felt was at risk. When asked by police why she did not tell anyone at the time, she said she felt “totally zombified” as if she was in a kind of comatose state.

After conviction Foulkes admitted the offences to the author of the pre-sentence report but said that C “never objected to what was happening”. In her Victim Impact Statement C described the abuse as escalating over a period of years. She said he progressed slowly and carefully, moving on to something “bolder”. He told her “it was their secret” and she feared that, if she put up effective resistance, he would move on to assault her younger sister. Her life and marriage are still seriously affected by the consequences.

The prosecution conceded that counts 8 and 9 were defective. The threshold age for the child in the indicted offences was 14 years of age at the time, not 16. On the facts of count 8, which was a specific offence, the victim was aged 11 years and the problem does not arise. However, on count 9, which was a specimen count, the period in the count spans the victim’s 14^th birthday. The count is defective and the conviction on the count must be quashed.

Instances of this sort of mistake are all too frequent. They are very costly but more importantly they cause unnecessary upset and distress to victims who simply cannot be expected to understand how such basic errors can be made

In his sentencing remarks the judge reminded himself of the applicable guidelines and considered the case of R v H. In passing sentence, he referred to the guideline for rape and the rubric “Offences may be of such severity, for example involving a campaign of rape, that sentences of 20 years and above may be appropriate”.

It was submitted that the sentence was manifestly excessive and that insufficient regard was had to the principle of totality. The judge had not paid sufficient regard to the fact that Foulkes was 72 and in poor health.

Complaint was also made that when setting out the composition of the total sentence the judge was wrong to describe what had happened as a “campaign” of rape and sexual assaults against a child. It was submitted that a campaign more properly describes a series of attacks on different victims.

Whether the use of the word campaign denoted more than one victim is an argument without substance, if the sentence passed is appropriate for the offending. In R v JH [2015] 1 Cr. App. R. (S) 59 this court observed that at paragraph 8:

“It is also unnecessary to consider whether a case of this kind is properly described as involving a campaign of rape. Perhaps rather than a campaign, this can simply be described as a case of repeat very serious offending against this young victim. But the rubric about offences being of a severity justifying a total sentence of 20 years and above is not confined to "campaign" cases. We are in no doubt that this is a case within the category justifying 20 years and above in total.”

Foulkes committed offences of increasing severity against his step-daughter over a period of 10 or 11 years. He succeeded in carrying them out by a combination of grooming and intimidation. They only stopped when she was old enough to leave. They have blighted her life. There is nothing manifestly excessive in the combined total sentence.

The principle that any sentence for Bail Act offences should be applied consecutively is well established. The submission that because the substantive sentence was lengthy the term of two months should not be imposed consecutively cannot be right. It would mean there was no effective punishment for such an offence. There is nothing wrong in principle nor manifestly excessive in the sentences imposed.

DAVID FARLOW

The applicant Farlow, now aged 69, pleaded guilty in the Crown Court at Teesside to offences of gross indecency with a child, indecent assault and attempted rape involving three young girls. They were committed between 1965 and 1980 when Farlow was 18-33 and the complainants 9-13. He was sentenced on 11 January 2016 by HH Judge Ashurst to a total of eight years’ imprisonment.

Counts 1 and 2 involving C1 took place shortly after her mother’s death. She used to visit Farlow’s home. She recalled Farlow exposing himself to her and trying to get her to touch his genitals (count 1). There was a separate episode where she found herself face down on the bed in Farlow’s bedroom. Farlow straddled her, rubbed his penis up and down the base of her back and in her bottom. She believed that he ejaculated (count 2).

C2 described regular sexual abuse between 1975 and 1980 involving her masturbation of Farlow and his digital touching of the outside of her vagina. In addition, he got her to kiss his penis after which he would straddle her and place his penis on the outside of her vagina. He told C2 that if she reported the abuse she would be unable to see her grandmother any more.

Count 16 involving C3 took place at some point between 1973 and 1975 when C3 was aged about 9. She lived next door to Farlow who by then was a teacher at the local secondary school. She and a friend visited Farlow’s parents’ house after he had invited them. He took them upstairs and whilst the friend was in the bathroom took C3 alone into his bedroom. He pushed her onto the bed, pulled her trousers down, exposed his penis and got on top of her, pushing his penis onto her vagina. He did this a couple of times. She was terrified. Fortunately the incident came to an end when she heard her father calling her to come in for tea. This caused Farlow to stop.

It is noteworthy that at about this time in 1974 Farlow pleaded guilty to indecency in respect of two girls and indecent assault in relation to two others, including C3. That offending involved getting the girls in a group and playing with them in a garden. He would give them piggy backs and used that opportunity to touch their private parts. For those offences he was sentenced to a probation order. Regrettably, that did not prevent him going on to offend in the way described over a number of years until 1980.

Farlow entered guilty pleas in relation to C1 and C2 at what was agreed to be an early stage. However he pleaded not guilty in relation to C3 and the matter was adjourned for trial for a period of several months after which he pleaded guilty to count 16 at the start of the trial.

Farlow has committed no further offences since 1980. He lost his employment as a teacher at the time of the 1974 offences. Since then he has worked with one employer as an interpreter and translator. He has married and brought up his wife’s daughter. There were three supportive testimonials from people who had known Farlow for many years. He has had treatment for metastatic prostate cancer. It has not been possible to ascertain the aggressiveness of the tumour. The judge, who had seen medical reports, said that this was not a case where Farlow was so ill that he should not be sent to prison.

The grounds of the application for leave to appeal submit that the total term of imprisonment was manifestly excessive. Reliance is placed on the fact that the offences were last committed about 35 years ago and that Farlow is now a man of 69 years who has been of positively good character since the commission of those offences. Moreover he is entitled to credit for his guilty pleas, albeit that credit is significantly reduced in relation to the attempted rape count. Farlow’s health is not good and he has shown a degree of remorse. In counsel’s submission, all of those factors combine to demonstrate that the total term was too long.

The judge found an abuse of trust in relation to all three girls. C1 was Farlow’s cousin, C2 his niece and C3 a next-door neighbour. All of the girls came from relatively sheltered backgrounds in which they considered it impossible to complain at the time about what Farlow had done. There was evidence from victim personal statements that each of them had seriously been affected by the offending. For the reasons we have given at paragraphs 16-18 we do not consider that the judge was correct to treat this as such a case.

In relation to C3 it must be borne in mind that the offence involved an attempt rather than the full offence and that it occurred on a single occasion. In relation to C2, the offending took place on multiple occasions whereas the guideline is predicated upon the commission of a single offence. The offending against C1 took place on the two occasions alleged. This case is exacerbated by the continuation of offending after the 1974 conviction and by the disparity in age between Farlow who was a mature adult in responsible employment. All three girls were of tender years and the offences took place over a significant period of time.

In sentencing, whilst it is clear that the judge had in mind the relevant principles set out at annex B of the definitive guideline, he did not make specific reference to any particular guideline. It is therefore not easy for us to see to what extent the judge’s finding of breach of trust affected the level of sentence.

Taking the most serious offence, the attempted rape of C3, the relevant offence is that under s.5 of the 2003 Act, rape of a child under 13. Even if one eliminates abuse of trust as a factor placing the case within culpability A, the starting point for a Category 2B offence is 10 years and that for a Category 3B offence is eight years. Allowing for the fact that this was an attempt as opposed to the completed offence, in a case where a guilty plea was tendered at an extremely late stage, it does not seem to us that any criticism can properly be made of the sentence of four years imposed.

As to the offences against C2, which involved multiple offences committed over a significant period of time, it cannot be said that even with rather greater credit for a plea of guilty, an overall sentence of three years was in any way excessive where the starting point for a Category 2B offence under the guideline for sexual assault of a child under 13 is two years. Similar observations apply to the counts relating to C1.

It is clear that the judge took account of such mitigation as was available to Farlow and that he had due regard to the principles of totality. The judge was fully entitled to pass consecutive sentences in relation to each victim, contrary to counsel’s submission. We are wholly unpersuaded that the overall sentence of eight years is open to proper criticism. There being no arguable grounds, this application is dismissed.