No: 200307123/A2 
Neutral Citation Number: [2004] EWCA Crim 2535
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Thursday, 7th October 2004
 
B E F O R E:

THE VICE PRESIDENT
(LORD JUSTICE ROSE) 

MR JUSTICE RICHARDS 

MR JUSTICE BEAN 

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

ATTORNEY-GENERAL's REFERENCE NO 98 OF 2003    
 
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Computer Aided Transcript of the Stenograph Notes of 
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MR M HEYWOOD appeared on behalf of the ATTORNEY GENERAL
MISS C BRISCOE appeared on behalf of the OFFENDER
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J U D G M E N T
1.	THE VICE PRESIDENT:  The Attorney-General seeks the leave of the Court, under section 36 of the Criminal Justice Act 1988, to refer a sentence said to be unduly lenient.  We grant leave.
2.	The offender is 42 years of age, having been born in May 1962.  He pleaded not guilty at a plea and directions hearing, on 28th March 2003, to an offence of indecently assaulting a 9 year old boy.  The case was adjourned for trial.
3.	On 8th September 2003, after a six day trial, he was convicted.  Sentence was adjourned for a report to be prepared.  On 25th November 2003 Mr Recorder Grant, at Leicester Crown Court, first sentenced the offender to an extended sentence of 4 years' imprisonment, under section 85 of the Powers of Criminal Courts (Sentencing) Act 2000, the custodial term of which was 12 months and the extension period 3 years.  The Recorder also made an order under section 28 of the same Act disqualifying the offender from working with children and he informed the defendant of his obligation to notify his details to the police upon release, pursuant to Part I of the Sex Offenders Act 1997.  However, the Recorder had second thoughts.  Later the same day, in exercise of his powers under the slip rule, the court reconvened and, on this occasion, the Recorder ordered that the offender be returned to custody, under section 116(2) of the 2000 Act, to serve 2 years of the outstanding balance (which was approximately 2 years and 9 months) of a 6 year extended sentence, which had been imposed in the Leicester Crown Court in October 2000.  He directed that that 2 year period be served before the 12 month custodial part of the 4 year extended sentence which he had imposed.
4.	The facts were that, on 21st April 2002 a boy, who at the time was 9 years and 9 months of age, and who lived with the other members of his family in Leicester, went with his father and two other 14 year old boys to help his father in his landscaping business.  At about 10.15 they went to an area of wasteland on an industrial estate which had recently been leased by the boy's father.  They began to work clearing the land.  At about 4 o'clock in the afternoon the father left the boys for about half-an-hour and, during that period, the victim of the attack as he became, left the other two boys and went to sit on the roof of a small breeze block hut, dangling his legs over the edge.  The offender appeared. He engaged the boy in conversation. He asked him to come down, which he did.  The boy shouted for one of his friends, but the offender said: "No no, it's all right, come closer, I can't hear." Without any warning he seized the boy's arm and held the boy's body against him.  He told the boy that he wanted to feel him. He seized and turned towards him the boy's head and kissed him on the lips. He put his hand down the boy's trousers, pulled up his T-shirt and took hold of the boy's genitals, rubbing them with his hand.  The boy, who was in shock, did not say or do anything.  The offender ran off.
5.	The other two boys, the friends of the victim, went to look for him.  They found him crying and upset.  He was also concerned because his father's keys had fallen to the ground when he had jumped off the wall.  Soon afterwards the boy's father returned.  He was not able to find the offender when he was told what had happened but subsequently, by virtue of closed circuit television, there were pictures of nearby business premises from which the police were able to identify the offender.  In consequence, he was arrested and later interviewed on 24th September.  He made no comment.
6.	There was a statement, made on 9th October by the boy's mother, describing the effect of the offence on her son. For the first few months those effects were profound:  he was tearful and had nightmares; he was reluctant to leave the house; later he had temper tantrums and when disciplined he would cry and shout: "Why did it happen to me?" Subsequently he improved so that, by the time the statement was made, he was no longer tearful and violent.  But there was an apparently permanent effect at that time: he was no longer happy to play away from home; he was distrustful of others, particularly strangers, and he thought the offence had made him feel dirty.
7.	On behalf of the Attorney-General Mr Heywood draws attention to what he submits are a number of aggravating features in this case. First, the victim was young. Secondly, there was a degree of physical compulsion used, albeit not exceeding that necessary to achieve the indecent purpose. Thirdly, there has been a significant effect on the victim (the long-term effects upon whom cannot yet be known). Fourthly, there was an apparent absence of remorse, in that a trial was necessary.  Fifthly, the offence was committed while the offender was on licence and before the expiry of the 6 year extended term of imprisonment imposed on him in circumstances to which, in a moment, we shall come.
8.	Mr Heywood draws attention to the mitigation to be found in the comparatively short duration of the attack.
9.	The offender has appeared on three previous occasions before the courts and has been dealt with by way of probation, community service and a sentence of imprisonment.  The last of those sentences was imposed at the Leicester Crown Court on 6th October 2001 and was, as we have indicated, an extended sentence of 6 years, the custodial term of which was 3 years and the extension period 3 years.  That was imposed for an offence of indecent assault, committed on 5th December 1999 and involving a 13 year old girl who looked like a boy, by reason of the way in which she dressed and had her hair cut.  She was approached in broad daylight, having been followed by the offender on the bus from which she had alighted. She was seized by the offender, saying he only wanted to touch her.  He put his hands down her shorts and digitally penetrated her vagina, causing pain. He eventually released her and she ran away.  The expiry date of the sentence was 3rd May 2006 but, having regard to the term served by the offender after he had been arrested for the offence, the subject of the present Reference, the maximum period which the learned Recorder could have ordered the offender to serve in relation to that 6 year sentence would have been the period of 2 years and 9 months.  As we have indicated, he made an order in relation to a period of 2 years.
10.	There was before the Recorder a report from a probation officer assessing the risk of physical and emotional harm to the public, especially young people, from the offender, as high.
11.	On behalf of the Attorney-General Mr Heywood draws attention to Attorney-General's References Nos 37, 38 etc [2004] 1 Cr App R(S) 499.  In the course of giving the judgment in that case Kay LJ drew attention to the four dimensions which have to be considered when dealing with sentence in a case of this kind:  first, the degree of harm to the victim; secondly, the level of culpability of the offender; thirdly, the level of risk posed by the offender, and fourthly, the need to deter others. Mr Heywood also drew attention to the considerations relevant to the imposition of an extended sentence discussed in the judgment of the Court in R v Nelson [2002] 1 Cr App R(S) 565.
12.	The way in which Mr Heywood put the matter overall was that it had been anticipated by the prosecution that there might be an appeal against sentence by the offender, in the light of the Recorder's change of mind: in consequence, to some extent this should be regarded as what he described as a "defensive Reference" by the Attorney-General.  The principal thrust of Mr Heywood's submission was that a term of 12 months in custody was unduly lenient in relation to the gravity of this conduct, the effect upon the victim and the risk posed by the victim.
13.	On behalf of the offender Miss Briscoe submits that 12 months was an appropriate period, bearing in mind that, as the learned Recorder pointed out when he passed sentence, the duration of this attack was extremely short. There was no physical violence involved and, albeit that the defendant pleaded not guilty, he did express concern for the victim of this attack.  In consequence, she submits that this Court should not interfere with the sentence imposed by the learned Recorder.
14.	In our judgment, a 12 month period of custody was unduly lenient, having regard to the features of this offence which we have identified.  However, bearing in mind that it would, if this Court decided to interfere with the sentence, be necessary to impose a custodial term less than that which would otherwise have been appropriate in the court below and bearing in mind that we do not think it desirable that the Attorney-General should launch defensive References, we do not think that this is a case in which this Court should interfere.  We make clear, as we hope we have, that we do not regard the 12 month custodial term which was imposed as being other than unduly lenient.  But, for the reasons we have given, we do not interfere with it.