No: 200505778/A9
Neutral Citation Number: [2006] EWCA Crim 259
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Wednesday, 1st February 2006
 
B E F O R E:

SIR IGOR JUDGE
(PRESIDENT OF THE QUEEN'S BENCH DIVISION) 

MRS JUSTICE DOBBS DBE 

SIR DOUGLAS BROWN 

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REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 CRIMINAL JUSTICE ACT 1988 

ATTORNEY-GENERAL's REFERENCE NO 110 OF 2006    
 
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Computer Aided Transcript of the Stenograph Notes of 
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MR R WHITTAM appeared on behalf of the ATTORNEY GENERAL 
MR B RICHMOND appeared on behalf of the OFFENDER
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J U D G M E N T
1.	SIR IGOR JUDGE:  This is a Reference by Her Majesty's Attorney-General, under section 36 of the Criminal Justice Act, of a sentence imposed on Malcolm D on 7th October 2005 in the Crown Court at Bristol.
2.	Malcolm D is now 56 years old. At the time of the first offence with which we are concerned he was 44 years old.  After a trial which took place in May 2005, presided over by His Honour Judge Foley, he was convicted of 18 counts of indecent assault.  The jury was unable to reach verdicts on three counts of rape and two counts of indecency with a child.  On 7th October he was sentenced to 2 years' imprisonment, with an extension to his licence period of 5 years. He was made subject to notification requirements for the rest of his life following his conviction.  There was a matter relating to the extension period which we have already dealt with. The judge did not make it apply to this specific count under which the power arose and we have done so and adjusted his order accordingly.  That is not the essential part of this application.
3.	The case in summary is this.  The offender indecently assaulted his stepdaughters. One we should identify as H, was indecently assaulted on eight occasions between 1994 and 1999 when she was aged between 8 years and 14 years.  The other stepdaughter, we shall identify as L, was indecently assaulted on 10 occasions between 1994 and 1999, when she was aged between 10 years and 14 years.  The indecent assaults on both victims consisted of touching the upper body, under their clothes and of digital penetration of the vagina.
4.	We shall take the facts in a little more detail.  H was born in September 1985 and L was a little older.  The offender married their mother in 1991. After the marriage the two girls continued to live as they had done with their grandparents, but they would spend weekends with their mother and the offender, until eventually they left the home of their grandparents and started to live with their mother and the offender.
5.	According to the evidence the first indecent assault on H took place when she was 8 years old, when she and her sister had come to stay with their mother and they slept in a double bed in a back bedroom.  The offender, purporting to read bed-time stories, lay beside her and, as she lay in bed, he slid his hand under the bed clothes, inside her clothing and touched her on her chest. Eventually, and no further detail is needed, this progressed to digital penetration.  That continued after the girls shared bunk beds in the front bedroom of the house.  The same sort of story applied to L.  She was not actually assaulted during any visits to the offender and her mother, but the assaults on her began after she moved in to live with them.  In her case, the first occasion took place as she lay in bed pretending to be asleep, when the offender put his hand under the bed clothes and indecently assaulted her.
6.	There was a pause in the pattern of assaults. The offender and his wife had a child of their own, another little girl.  At about the time of the birth of that child, in 1995, a gap in the assaults occurred but, after a while, they resumed.  The last offences in relation to H took place in 1998 and L in 1999.  Neither girl told anyone about the offences of which she had been the victim.  None of the offences involved both girls being assaulted at the same time.  But there was an unexpected comment made by H, about the offender, when she had had something to drink and they then talked about what had happened to both of them.  In due course H reported the matter to the police.
7.	The offender was arrested in April 2004. He strongly denied any kind of sexual offence with either of these children.  His denial was maintained at trial, and is still, as we understand it, adamantly maintained.
8.	The pre-sentence report before the court suggests that the offender should be assessed as presenting a high risk of harm to children. That is, of course, of importance, bearing in mind the age of his own daughter, now, approximately 9 years old.
9.	The basis of that conclusion appears to be largely the refusal of the offender to accept his guilt as found by the jury.  He is in denial and therefore unrepentant, and it is believed, on that basis, unsuitable for rehabilitative treatment.  We express no views about this, beyond noting that there is no suggestion, after a good deal of enquiry, that he may have been behaving inappropriately with his own daughter.
10.	The other feature of the evidence came in the form of medical reports. The offender has a family history of significant heart disease. The details do not matter, but he himself had a myocardial infarction in July 2001. He has been admitted to hospital with left ventricular failure. There have been a number of heart attacks and, in 2005 alone, he had to visit and be examined by cardiologists on no less than five occasions. That is a brief summary of the facts of the appellant's convictions.
11.	The seriousness of these offences is obvious.  The offender was the stepfather of the two girls.  Therefore he was in a position of trust and authority over them.  The assaults on each were repeated over a long period, as it appears, both before and after each girl had reached puberty. The offender was not to be sentenced for rape for he was not convicted of it.  The assaults involved digital penetration of the vagina as well as fondling the upper chests and, as they grew older, their breasts.
12.	Both girls remained silent, enduring the assaults for fear of what might happen if anyone were told.  Their mother, the appellant's wife, has chosen to stand by the offender, apparently confident that their own young daughter is not at risk from him. We are not making any comment either in praise or condemnation of her decision. We simply mention it to illustrate the devastating effect which offences like these can have on a large number of members of the family involved.
13.	As to the victims themselves, the impact of such crimes is always serious. It is accepted in a sensible, briefly structured submission, by Mr Richmond on behalf of the offender, that the sentence imposed by Judge Foley was a lenient one. The contention is that it was not unduly so.  Set against the matters of aggravation, to which reference has already been made, he points out that, when the offences started, and when they came to light, this was a man of positive good character, with psychiatric problems of his own, as well as the physical disability to which reference has already been made.  He focuses particularly on the support which the offender is offered by his wife and by a loyal group of friends.  He asks us to take note of the risk issue, at any rate in the sense that it is problematic for the reasons we have already endeavoured to explain. All that said, the offender, although a man of positive good character, well spoken of, lacked the benefit of a guilty plea.  No discount from his sentence would be appropriate on that basis.  We reflected on such an assistance as we may gain from other decisions of this Court in cases of this kind.  In our judgment, the sentence was unduly lenient.  Mr Whittam, in his submissions, indicated to us that his submission would have been that the appropriate range of sentence in this case would have been around 4 years' imprisonment.  That was helpfully presented to us and, as it happens, coincides with our own analysis.
14.	We have to reflect of course, not merely on the fact that sentence was unduly lenient, but whether that having been found, it is nevertheless appropriate for the sentence to be increased.  We have no doubt that it should be increased. There is no reason not to increase it.  We have to reflect on what is sometimes identified as the double jeopardy principle.  We have reflected on that.  Our conclusion is that the appropriate sentence in this case, now, is one of 3 years' imprisonment for the offences of indecent assault.  The consequence of that decision is that the notification period remains the same as the judge directed.