No: 200402965/A4 
Neutral Citation Number: [2004] EWCA Crim 2863
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Thursday, 4th November 2004
 
B E F O R E:

THE VICE PRESIDENT
(LORD JUSTICE ROSE) 

MRS JUSTICE HALLETT DBE 

MRS JUSTICE DOBBS 

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

ATTORNEY-GENERAL's REFERENCE NO 67 OF 2004    
 
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Computer Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
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MR M ELLISON appeared on behalf of the ATTORNEY GENERAL
MR M GALLOWAY appeared on behalf of the OFFENDER
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J U D G M E N T
1.	THE VICE PRESIDENT:  The Solicitor-General, for 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 now 70 years of age, having been born in May 1934.  This Reference was before the Court on 21st July 2004 and was then adjourned in order that medical opinion might be sought in relation to the offender's health.  There is now available, from the offender's General Practitioner, a letter dated 30th July 2004 to which later we shall return.
3.	The offender initially pleaded not guilty to all counts in the indictment at a plea and directions hearing on 22nd January 2004. On 20th February he pleaded guilty to six offences of indecent assault on a male, contrary to section 15(1) of the Sexual Offences Act 1956, committed against his stepson, D, between 1980 and 1987 when D was between the ages of 6 and 12.  They were counts 2, 3, 4, 5, 6 and 7.  On two occasions, count 2, when D was 6 or 7 years old, and count 3, when he was between 8 and 12 years old, the offender got into the bath with him and got D to masturbate the offender with his hand. The offender thereafter orally and manually masturbated D on more than one hundred occasions, after D had gone to bed and usually when D's mother was out at night working.  Counts 4 to 7 were accepted as specimen counts in relation to that multiplicity of occasions.  One specimen offence of indecent assault, contrary to section 14(1) of the Act was committed against the offender's stepdaughter, R, between 1980 and 1984, when she was aged between 4 and 7 years.  That was count 12.  The offender, on numerous occasions, tickled and touched her on the chest, having undone her pyjamas when she was in bed.  There was one specimen offence of indecency with a child, contrary to section 1(1) of the Indecency with Children Act 1960, committed against the same stepdaughter, between 1980 and 1989, when she was aged between 4 and 12, and that was count 13.  The offender in relation to this count had persuaded the girl to comb his pubic hair on a number of occasions while he was in the bath.
4.	The offender was sentenced by His Honour Judge Hume Jones, at Taunton Crown Court on 30th April 2004, to a community rehabilitation order for 3 years, with a condition of attendance at the Thames Valley Sex Offender Programme.  He was required to register under the Sex Offender Act for a period of 5 years.
5.	In a little more detail, the facts were that D was born in April 1974 and R in January 1976.  In 1978 their mother separated from their father and in 1980 began a relationship with the offender.  In 1982 he moved into the family home in Minehead.  He and the children's mother married soon afterwards.  Her employment involved a good deal of night shift work and the offender, who worked as a gardener, was often, in consequence, alone in the house with the children in the evening.
6.	D's first memory of indecent conduct by the offender when he was 6 or 7 years old.  D was in the bath and had shut the door.  The offender came in and also got into the bath.  The offender showed D how to masturbate the offender and when D began to cry the offender shouted at him.  The boy did tell his mother that the offender had done something and she asked the offender if it was true, but he denied it.  The boy's mother told him that he must have imagined it.  In consequence, when this behaviour recurred, D did not again tell his mother, or anybody else.
7.	On a later occasion, when D was still under the age of 9 years, the offender came into the boy's room when he was asleep and woke him up.  The boy pretended to be asleep.  The offender pulled down the bed clothes and put the boy's penis in his mouth and manually masturbated the boy.  That behaviour happened again and again over a period of years, until the boy was 12.  It usually happened when the boy's mother was out in the evening, working.  In order to try to avoid this sort of behaviour, the boy moved the ladder of the bunk bed in which he slept and wore two pairs of underpants.  But the offender was able to overcome those defensive devices.
8.	There were occasions when the boy heard his sister, R, crying during the night.  At the time, he had his suspicions about the offender's conduct towards her, but they were, at that stage, no more than that.
9.	The offender stopped assaulting the boy when he was about 12.  By that time he was big enough, physically, to prevent the offender behaving as he had been doing.  When the boy was 18 he left home and went to Australia for several years, returning to the United Kingdom in 1996 or 1997.  For a period, he again lived with his mother and the offender.  But there was an argument between the youth (as he then was) and the offender.
10.	The impact upon the boy was significant.  From the age of about 11 he had suicidal thoughts. A consultant psychiatrist has treated him since January 2003, and has diagnosed in him a mental disorder of uncertain precise classification but it involves episodes of consideration of self-harm by the boy which are entirely consistent with him having experienced severe childhood trauma.
11.	So far as R is concerned, she recalls the offender as being strict both towards her and to her brother.  There was some physical chastisement.  When she was under 7, and her mother was out working, the offender called her into his bedroom, unbuttoned her pyjama top and stroked her chest and tickled her.  On other occasions, when the mother was absent at work and the offender was in the bath, he would ask R to comb his pubic hair.  She did not tell her mother anything until she was 17 years of age, because she knew that her brother had told their mother and she had not believed him.  The girl, a young woman as she now is, feels deeply affected by the offender's conduct. Since the late 1990s she has suffered from depression.
12.	The offender and his wife separated and divorced in about 1998.  Prior to that, in 1997, the offender had admitted, within the family, his misconduct which we have briefly described.  Indeed, it figured, in consequence, in the divorce proceedings between him and his wife.  A complaint was not made to the police until early 2002. The offender was arrested in April 2003, when he made a "no comment" interview. At that time, a decision was made not to prosecute because the only evidence against the offender came from the boy.  The offender was, however, arrested again in September 2003, in relation to his conduct towards the girl.  He denied that he had abused her. He described her as "a little bitch" and claimed, at that stage, to the police, that both she and her brother were liars. He was charged in November 2003.
13.	He has no previous convictions.  At the time of sentencing he was 69 years of age.  The risk of him reoffending was assessed as low.
14.	On behalf of the Solicitor-General, Mr Ellison draws attention to what he rightly submits are three aggravating features.  First, the systematic abuse of the position of trust in the context of which these offences occurred.  Secondly, the very large number of serious assaults on D, over a period of years, and repeated offending against R when she was similarly of a young age.  Thirdly, there has been lasting and serious harm to both victims.
15.	Mr Ellison draws attention to three mitigating features.  First, the plea of guilty.  Secondly, the absence of previous convictions.  Thirdly, the offender's age and the fact that he is not in the best of health.  So far as his health is concerned, he had a mini stroke in the summer of this year, which settled down within 24 hours, but it has increased the offender's anxiety and his blood pressure.  There is a significant risk of the offender suffering a full blown stroke.  But, at the end of July, the offender's general practitioner initiated preventative therapy to minimise that risk.
16.	The submission which Mr Ellison makes is that the non-custodial sentence imposed was unduly lenient and failed to reflect the level of culpability of the offender, the consequences for the victims and the need to deter others.  Mr Ellison referred to R v Millberry & Ors [2003] 2 Cr App R(S) 31, Attorney-General's Reference Nos 91, 119 and 120 of 2002 [2003] 2 Cr App R(S) 338, Attorney-General's Reference No 5 of 2001 (R v Culshaw) [2001] 2 Cr App R(S) 473 and Attorney-General's Reference No 41 of 2000 (R v Harrison) [2001] 1 Cr App R(S) 372.
17.	On behalf of the offender, Mr Galloway frankly accepts, as is apparent from the transcript of his submissions in mitigation and sentence before the Crown Court judge, that he expected and had advised the offender to expect a custodial term in relation to this offending.  Mr Galloway points out that, despite the admissions made within the family in 1997, it was a period of years before the police became involved in these matters and it is now some 7 years since the offender admitted his conduct within the family.  It has to be borne in mind, in that regard, that, when the offender was seen by the police he gave a "no comment" interview and, subsequently on being re-interviewed in connection with the girl, he made the comments which we have rehearsed.
18.	Mr Galloway stresses that the judge took into account the age and health of the offender.  Mr Galloway submits that, having regard to the nature of the sentences, if the offender is to be sentenced to a custodial term, he will be exposed in pursuit to those experiences to which persons sentenced for these kinds of offences are commonly subjected.  Mr Galloway stresses the low risk posed by the offender, now, to children.  He invites the Court, if it takes the view that the sentences passed were unduly lenient, to take into account the double jeopardy involved in sentencing the offender a second time as well as the other features to which we have referred.
19.	In our judgment, taking all of these matters into account, we would have expected in the court below a significant period of custody to be imposed, having regard to the nature of the offender's conduct in breach of trust, the period over which that conduct persisted, the fact that there were two victims and that they have both been significantly adversely affected.  We would have anticipated, in the light of all these matters, a total sentence in the court below, taking into account the offender's age and ill-health, sentence of the order of 3 years' imprisonment.  But, taking into account double jeopardy, the offender's present state of health and the fact that, by reason of the sentence which we now pass the offender will be going into custody for the first time in relation to these matters, the sentence which we pass, concurrently on each of the offences, in substitution for and quashing the order made by the learned judge, is one of 18 months' imprisonment.  That sentence will be served from the date when the offender surrenders to custody. 
20.	THE VICE PRESIDENT:  Mr Galloway, have you any instructions in relation to where the offender is and when he might surrender to custody?
21.	MR GALLOWAY:  I have provided details to the clerk of the Court, it would be at Minehead police station and if this Court say within 24 hours, 12 o'clock tomorrow.
22.	THE VICE PRESIDENT:  Yes, very well, we direct that he surrender to Minehead police station by noon tomorrow.