No: 200404164/A6 
Neutral Citation Number: [2004] EWCA Crim 3028
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Wednesday, 10th 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 95 OF 2004    
 
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Computer Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
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MR WHITTAM appeared on behalf of the ATTORNEY GENERAL
MR P GREANEY appeared on behalf of the OFFENDER
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J U D G M E N T
1.	THE VICE PRESIDENT:  In view of some of the submissions made to this Court, it is perhaps worth drawing attention to the nature of this constitution, namely that there are two women and one man.
2.	The Solicitor-General, on behalf of the Attorney-General, seeks the leave of the Court to refer sentences said to be unduly lenient, under section 36 of the Criminal Justice Act 1988.
3.	The offender is 51, having been born in June 1953.  On 17th June 2004, following a seven day trial before Henriques J, at Leeds Crown Court, the offender was convicted on three of the counts in the indictment.  Two, in counts 3 and 4, were of assault occasioning actual bodily harm and the third, on count 6, was of indecent assault.  On 25th June he was sentenced to a community punishment order in relation to each of those three counts, the total sentence being one of 80 hours.
4.	The offender began a relationship with the victim, S, in 1994.  She is now 43 years of age.  They started to live together, together with her two children, some 7 months after they had started their association.  In November 1999 the offender pushed S against a bed during the course of an argument in circumstances to which, in a moment, we shall come.  In consequence, she sustained fractured ribs, and that gave rise to count 3.  In November 2002, the offender and S, while in a car, had an argument.  In the course of it, S sustained a bruise to her cheek.  That gave rise to count 4.  On 11th April 2003, after the offender and S had separated, the offender, again in circumstances to which we shall come, returned to the home which he and S jointly owned and in which she was still living.  On that occasion he pushed her onto the bed, he felt one of her breasts, and he caused bruising to her thigh and a minor injury to her neck and hand: that gave rise to the indecent assault in count 6.  In the incident giving rise to count 3 on 26th November 1999, injuries were sustained by S in these circumstances.  After the parties had had an evening out, and returned home, S began smashing up ornaments.  That was not in any way attributable to any conduct by the offender.  There was broken crockery everywhere.  An argument followed.  The offender pushed S against the bed and it was not immediately apparent that she had, in consequence, sustained injuries.  When the offender took S to hospital the following morning, complaining of pain in her ribs, she was discharged home after examination. Although X-rays taken at that time did not show any fractures, fractures to the ninth and eleventh ribs were shown in January 2000.
5.	Three years later, in November 2002, the offender and the victim were travelling in a car and an argument broke out.  In the course of it the offender sustained a gash to his right eye, which required butterfly stitches, and S a bruise to her cheekbone, which measured 1.5 by 2 centimetres.  She said that it was the offender's conduct in pushing her face into the gear stick in the car that caused that injury.  She went to hospital. She told the doctor there that her partner had assaulted her and had used his fist on her.  However, when she gave evidence, as in due course she did before the jury, she accepted that he had not punched her.  On X-ray there was no sign of bony injury. This gave rise to count 4. 
6.	Count 6 occurred on 11th April 2003. The offender and S had by that time separated and she was continuing to live in the home which they had shared and which both owned.  S was in the bedroom, wearing a dressing gown, as she had been washing her hair.  The offender pushed her onto the bed and felt one of her breasts and caused the injuries of a minor kind to which earlier we referred.
7.	It is at this point pertinent to identify the background of the relationship between these two. The offender had been a policeman for 30 years and had retired on health grounds in 2002, having injured his shoulder in a motorcycle accident.  S had also been a police officer, although at the time of the offences she was a civilian employed by the police as manager of a Victim Support Unit.  The two had met at a police station, the offender, at that time being a detective constable, and S being married to a police sergeant.  It was in that context that the relationship between the two of them began.
8.	It is also pertinent to mention certain findings of fact by Henriques J who, as we have said, had conducted the trial over 7 days.  He found that the three counts reflected the totality of the offender's misconduct towards S over the several years of their relationship.  He also found that the relationship was a volatile one, and that there had been aggression on both sides.
9.	In relation to count 6, the learned judge found that S had been playing the offender off against the new man in her life, and had been sending text messages to the offender.  Had those text messages not been sent, he would not have gone to the house on the occasion in April which gave rise to count 6.
10.	On behalf of the Solicitor-General, Mr Whittam draws attention to what he submits are two aggravating features.  First, there was more than one offence.  Secondly, the assaults were committed against a woman in the context of a relationship.  As it seems to us, that of itself is a neutral factor, in that a woman who used violence to a man in the context of a relationship would also fall to be sentenced appropriately.  
11.	Mr Whittam draws attention to a number of mitigating features.  As originally drafted those features included two which have been deleted from the final Reference.  The mitigating features to which Mr Whittam draws attention are, first, that the offender has no previous convictions. Secondly, he had the benefit of many positive character witnesses, including one from his former wife of 18 years.  It is said that it is not a mitigating feature, as was suggested in the original Reference, that the offender had been a serving police officer for 30 years.  Next, Mr Whittam draws attention to the fact that the offender was awaiting an operation on his shoulder.  We are not persuaded that that in itself is a mitigating feature.  Next, Mr Whittam accepts that the offences were not part of a campaign of violence.  That is apparently so from the time scale of the order of three-and-a-half years to which we have already referred between the first and last of these offences.  It was said in the original draft that it was mitigation that the violence had arisen out of a relationship where, on occasions, as the judge expressly found, aggression was bilateral.  But that allegedly mitigating feature is deleted from the final draft.  Next, Mr Whittam refers to the mitigation to be found in the fact that, for a period of some 15 months, the offender had had hanging over him two allegations of rape made by S.  Of those alleged offences, he was acquitted.  Finally, Mr Whittam draws attention to the terms of the pre-sentence report, which were favourable, assessed the offender as not presenting a risk of committing further offences, and suggested a community punishment order might be appropriate.
12.	Mr Whittam, in his oral submissions to this Court, explained the withdrawal from the final Reference of the two mitigating features appearing in the initial draft by reference to the consultation paper on domestic violence and sentencing issued by The Sentencing Advisory Panel, on 12th July 2004. As was pointed out to Mr Whittam in the course of his submissions, what appears in that consultation paper by way of suggestion may or may not, following consultation, form the basis of proposals by the Sentencing Advisory Panel to the Sentencing Guidelines Council.  Whatever proposals are made by the Sentencing Advisory Panel to the Sentencing Guidelines Council may or may not find their way into draft guidelines prepared by the Sentencing Guidelines Council.  Whatever is in such draft guidelines as ultimately emerge may or may not, following comment by the Home Affairs Select Committee, the Home Secretary of the day and such other persons who may be consulted, find their way into final guidelines emanating from the Sentencing Guidelines Council.  As it seems to us, no useful purpose would be served by this Court speculating on what, over a process of months and possibly years, may or may not be the outcome of those sequential activities.
13.	In the meantime, as Mr Whittam rightly accepts, this Court approaches the task of sentencing in this case in accordance with principles well established by decisions of this Court.  Those decisions include Attorney-General's Reference No 98 of 2002 [2003] EWCA Crim 1018, where the Court, in particular in paragraph 11 of the judgment given by Kay LJ, accepted that good character and public service are matters properly to be reflected in sentencing for violence in a domestic context.  Indeed, as is apparent from Attorney-General's Reference No 22 of 2002 [2002] EWCA Crim 1500, paragraph 13 the Attorney-General himself has hitherto accepted that good character in public life is a mitigating feature in relation to such offenders.  It is true, as Mr Whittam pointed out, that in R v Millberry & Ors [2003] 2 Cr App R(S) 142, in a judgment of the Court given by Lord Woolf CJ, by reference to offences of rape, it was said that the scope for mitigation afforded by a defendant's good character in relation to so serious an offence is limited and would not justify a substantial reduction in sentence.  But it will be apparent from the rehearsal of the facts of the three offences with which we are concerned, that by whatever yardstick they are judged, they cannot properly be characterised as being serious offences.
14.	Mr Whittam submits that the offender's mitigation was not such as to justify the learned judge in imposing a sentence other than imprisonment which would, absent the mitigation, have been the sentence which the judge, (as is apparent from page 3 of the transcript of his remarks), would have imposed.  Mr Whittam further submits, on instructions, that where private misconduct in a domestic context is involved, public service and conspicuous good character are not capable of being mitigating factors.  We reject that submission as a matter of principle and on authority by reference to the two Attorney-General's cases to which we have referred.
15.	Mr Whittam also submits, on instructions, that there is, in the domestic context, a dividing line properly to be drawn between physical violence and other conduct including violence to property.  We reject that submission.  Each case, as it seems to us, has to be assessed for the purpose of sentence by reference to all the facts.  It would, as it seems to us, be absurd in relation, for example, to count 3, to ignore the circumstances in which the offender came to push S against the bed, namely, that, entirely without blame on his part, she was breaking up property in the matrimonial home.  For our part, that seems to us to be a factor to which regard can and should properly be paid.
16.	Mr Whittam's central submission is that the sentence passed by the learned judge was unduly lenient and failed to mark the gravity of the offences, the aggravating features which he identified and the need to protect the public, particularly women, from harm from indecent assaults and other violence committed by a partner.  It is said that an immediate custodial sentence ought to have been imposed.
17.	There is no doubt that the sentence passed by the learned judge was a lenient one. We reject the submission that it was unduly lenient.  Following a seven day trial in which both the offender and S gave evidence (and it is to be noted that not only was S's evidence contradictory within itself in the respect which we earlier identified, but was clearly not accepted by the jury in relation to the more serious allegations made against the offender), the judge was peculiarly well placed to assess the culpability of the offender's conduct.  We have already rehearsed, and do not repeat, the findings of fact which the learned judge made on the evidence which he had heard, both as to the totality and time span of the offender's misconduct and as to the circumstances in which it had occurred.
18.	As it seems to us, the sentence which the learned judge passed was well within the range of his judicial discretion having considered the matter in that way, over that length of time.  In those circumstances, we refuse leave to refer this sentence to this Court.