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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Attorney Generals Reference No. 67 of 2009 [2009] EWCA Crim 2221 (13 October 2009) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2009/2221.html Cite as: [2009] EWCA Crim 2221, [2010] 1 Cr App Rep (S) 106, [2010] 1 Cr App R (S) 106

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		13 October 2009

THE LORD CHIEF JUSTICE:

1. This is an application by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988 for leave to refer to this court for review a sentence which she regards as unduly lenient. The sentenced was imposed on 13 July 2009 in the Crown Court at Birmingham by His Honour Judge Juckes QC. We grant leave.
2. The offender was born in February 1991. He is of previous good character. On 24 April 2009, at the earliest opportunity, he pleaded guilty to a number of offences involving sexual abuse of his younger sister who was then aged under 13. The offences were of rape, contrary to section 5 of the Sexual Offences Act 2003 and a number of offences of sexual activity with a child member, contrary to section 25(1) of the 2003 Act.
3. A basis of plea was prepared; it reveals the extent of the offender's criminality. The basis of plea, to which we shall return shortly, was endorsed and accepted by the prosecution.
4. The sentence imposed by Judge Juckes on 13 July was twelve months' detention in a young offender institution, concurrent on all counts. The offender was reminded of the notification requirements of the Act and made subject to a Sexual Offences Prevention Order.
5. As we have recorded, the victim of the sexual offences was the offender's younger sister. Over a period of about three years, when she was aged between 11 and 13 and he was aged between 14 and 16, he committed a variety of sexual acts with, towards or against her. On one occasion he raped her. There was penetration of her vagina with his penis. Although it was penetration sufficient to constitute the offence of rape, it was as minimal as it could have been for that purpose. On other occasions he penetrated her vagina with his finger. He inserted his tongue into her vagina, and on other occasions he masturbated and ejaculated in front of her. There was one occasion when he ejaculated directly onto her.
6. The offences came to light in January 2009. The girl's mother noticed that she had some tissue paper wrapped around her wrists and some superficial cuts to her arm, which the victim said had been self-inflicted because she had been annoyed by a friend at school. Her mother did not accept that and questioned her further. Eventually the girl told her mother that the offender had "done things" to her. Unsurprisingly, she was distressed. As a result of the revelations the mother of the victim (and of the offender) contacted the police.
7. The victim was interviewed by the police. She summarised the incidents. She could not remember the precise number of times different offences had taken place. She said that the first incident occurred when she was 11 years old. It was this incident which appears to have formed the basis of the charge of rape to which the offender pleaded guilty. That incident (and we do not underestimate its seriousness) occurred very early on in this catalogue of offences when the victim was about 11 and the offender was about 14. It is an unusual feature of the case that no further incident involving sexual intercourse actually took place, although the offences became steadily more serious in their nature.
8. The victim explained that she had not spoken to anybody about that incident or indeed anything else. She did not appreciate the severity of the situation, and no doubt she was unable to bring herself to describe what had happened to her.
9. It is unnecessary to set out the offences in any further detail. They have been summarised already. The victim said that she hated what had happened to her and that she hated the offender because of what he had done to her. Some of the things that he had done to her had caused her pain. She had never engaged in any sexual activity before. The offender had never used a condom when engaging in sexual activity with her. It is to be noted that this was the offender's first sexual experience as well as the victim's.
10. The offender ceased molesting his sister at about the time when she entered puberty. There were troubles within the family, into which it is unnecessary to go (nothing to do with these matters), and the offender was ejected from the family home in the summer of 2008. There has been no further recurrence of sexual abuse.
11. Following the statement made by the victim, the offender was arrested on the following day. He was interviewed. He was immediately candid and frank. He admitted all the allegations that his sister had made. He stated that the activity started when his sister was aged 10 or 11. They would play games together in which they would pretend to be adults. The games then led to him kissing her, and so on, until eventually the games which had been innocent and harmless became sexual and damaging. He also explained that after the sexual activity with his sister was brought to an end, he had formed an adult relationship with a girlfriend. He accepted that he had instigated the sexual activity on the majority of the occasions when it took place.
12. Eventually the offender's contentions were reduced into a basis of plea which was accepted by the Crown. In that basis of plea the offender admitted, first, that there was only one incident of minimal penetration of the complainant's vagina with his penis. The note records that the act was not complete as he thought better of it and withdrew. Second, while not suggesting that his sister was in any sense enthusiastic about the sexual activity, or that she ever instigated it, she did not physically resist it. Third, whenever she told him to stop, he did so. That is not unimportant. Finally, save for the one occasion, he did not ejaculate onto her body. That incident, like the rape, was one that occurred very early in the chronology of events.
13. This on any view was a difficult and sensitive case. Pausing for a brief moment, the impact on the parents of these two children when they discovered what had been going on must have been enormous. There were also other, obvious, sensitivities which need no discussion in the course of this judgment.
14. The pre-sentence report set out the account of the offences given by the offender. It was effectively the same account as he had given to the police and which was consistently maintained throughout all the investigations. The assessment of the offender at the time when the report was written was that he was emotionally damaged and extremely vulnerable. He said that he had regularly self-harmed since he was 13, but that there had been no medical intervention. The self-harm involved self-mutilation, overdosing, morbid thoughts and mood swings. He also suffered from an ongoing eating disorder. The report concluded that the offender was preparing himself for the fact that a custodial sentence would be imposed on him. He understood that. He explained that he himself had been the subject of a sexual assault following his arrest. There was a regret expressed about what would be available to him in the area in which he lived as a sexual offender who was still very young and the specialist of specialist courses and treatment. The writer of the report concluded:

"Despite the seriousness of the sexual assaults, the court may take into account the defendant's young age, traumatic childhood experiences and his willingness to undertake appropriate offence focused [treatment] in order to reduce risk factors."

15. Given the youth of the offender at the time when these offences were committed, a psychological report was prepared on him. The assessment was made by a clinical psychologist, Mr Dennis Trent. The report is dated 9 June 2009. It is a very lengthy document. It is unnecessary to set out all its details. It records that the offender is a "markedly damaged young man who sees himself as isolated, marginalised, rejected and unaccepted". It was recommended that he should be viewed as an individual with a significant well of unexpressed anger and hostility; that if control over that broke down he would be capable of being a significant risk to himself and others. He should be seen as someone who is somewhat isolated. It was strongly recommended that he should enter into "therapeutic relationships" within which to explore recent and past events.
16. Some of the contents of the reports as we have narrated them may give the impression that the concern of the offender was with himself and his future. However, it is plain from the documents that concern about the effect of his conduct on his younger sister was very much present in his mind.
17. When the case came before Judge Juckes the matter was canvassed in close detail first by the prosecution, then on behalf of the offender, and then by the judge. The judge was invited to consider the relevant sentencing guideline for cases involving sexual crime. He said that he had them with him. Plainly he considered them. As the case unfolded, he invited counsel for the offender to address some of the more serious features of the case. Mr Barker, who has appeared for the offender today, made a powerful plea in mitigation. He identified in particular the way in which the offender had an "immense feeling of shame" after he had carried out the sexual acts. He felt disgusted with himself. On the day when sentence was to be passed he still had that feeling, which Mr Barker suggested might never go away. However, the judge was concerned that the offender had taken advantage of the innocence of the child and her lack of knowledge of these matters. He also noted that the offender was a young man who did not have the maturity that an older individual would have.
18. The issue of how to deal with count 2 had to be addressed. The judge noted that a case of rape is always an extremely serious offence. The judge examined the details of precisely what the physical act had involved. He noted in any event that there was the significant aggravating factor of the penetration. He then addressed with counsel the matters put forward in mitigation.
19. In his sentencing remarks the judge considered the impact on the victim: the length of time for which the "serious offending" had gone on and the serious consequences for her, which would be something she would never forget. There was every possibility that the result would be permanent psychological harm. On the other hand, and to the credit of the offender, the judge recognised that he had been completely frank with the police. He had pleaded guilty at the first opportunity. He had no previous convictions. Although the offending had gone on for a period of time and represented a breach of trust, the offending had in the end stopped not because the offender was caught, not because of anything that happened to him, but because he had decided to bring this misconduct to an end. The judge took note of the glowing character references which had been sent by those who knew the offender after he had been ejected from his parents' home. He thought it was to the credit of the offender that he had managed to change the course of his life in a dramatic way and that, having left home, he had not declined, as many might have done, into drink or drugs or crime generally.
20. At the end of his careful assessment of all the factors in the case, the judge took a starting point of three years but gave appropriate credit to all the matters to which he had referred, including the plea of guilty and the frank admissions to the police, and, no less important, the fact that the offender was still very young. He therefore reduced the sentence to one of twelve months' detention in a young offender institution.
21. In the submissions on behalf of the Attorney General, it is acknowledged by Mr Altman QC that this sentencing decision was not straightforward. It was a decision which was reached by a Circuit Judge who has had a lifetime of experience in the criminal justice system. Our attention was drawn to a decision of this court in R v Thomas [2005] EWCA Crim 2343, [2006] 1 Cr App R(S) 101, which provides some helpful indications of some of the more salient features which apply in a case of interfamilial sexual misbehaviour. We understand the judge's view that the sexual activity which was established in this case should be examined as a totality, and that therefore justice did not require him to treat count 2 (rape) as an offence of much greater seriousness than the other offences which involved digital penetration of the victim's vagina. The good sense of that approach is not in dispute in this case. Therefore what was required was for the judge to make his assessment of sentence in the light of the familial sexual activity, taking account of the aggravating features as well as the mitigating features in the context of a maximum sentence which, as the offender was at most 16 years old when the offending came to an end, was one of five years' imprisonment. Mr Altman has helpfully drawn our attention to a number of aspects of the current Sentencing Guidelines Council's definitive guideline to which we, like the judge, must have regard. The most helpful of these is to be found at page 139 under the heading "Sexual activity with a child family member and inciting a child family member to engage in sexual activity when the offences are committed by a person under the age of 18". It follows, lest there be any doubt about it, that when an offender is aged 18 or over, the maximum sentence is nearly three times as high as the sentence for an offender who is under the age of 18. In that context the sentencing range is said to be a detention and training order between six and 24 months. This is not more than a guideline. None of the specific aggravating factors noted in the guideline was present here. There was no background of intimidation or coercion. There was no misuse of drugs, alcohol or indeed any other substance. There were no threats which deterred the victim from reporting the incident -- and nothing to suggest that the offender suffered from or was aware that he suffered from (because he did not) a sexually transmitted infection.
22. On the other hand, an innocent girl who had not reached puberty was subjected to systematic and persistent abuse. A custodial sentence was inevitable and appropriate. The question now is whether the sentence imposed is one that was unduly lenient and, if so, whether this court should interfere with it.
23. This sentence could, without any realistic prospect of a successful appeal by the offender, have been longer than it was but there are a number of other circumstances which need to be addressed: the circumstances in which the horseplay and fun gradually became sexual activity; the age and lack of maturity of the offender when it began; the fact that he brought it to an end through his own volition; and when interviewed much later he was candid and frank and did not for one moment seek to hide the truth of what had happened. Thereafter, he pleaded guilty as soon as he could, following a sexual assault of which he had been the victim. He now has a release date of 22 November -- that is one month away.
24. We agree with Mr Altman's opening submission that this was a very difficult sentencing decision for this experienced judge. It remains a very difficult sentencing decision. However, having reflected on all the material which has been drawn to our attention and which we have endeavoured to summarise, we have reached the conclusion that we should not interfere with the decision made by Judge Juckes. Accordingly, although we have granted leave, this application will be refused.

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