No: 200504142/A8 
Neutral Citation Number: [2005] EWCA Crim 3637
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Wednesday, 21st December 2005
 
B E F O R E:

THE VICE PRESIDENT
(LORD JUSTICE ROSE) 

MR JUSTICE JACK 

MR JUSTICE OPENSHAW 

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

ATTORNEY-GENERAL's REFERENCE NO 86 OF 2005    
 
(CHRISTOPHER JAMES SMITH) 
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Computer Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
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MR R HORWELL appeared on behalf of the ATTORNEY GENERAL 
MISS J DAGNALL 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 23 years of age, having been born in November 1982.  He was charged with attempted rape and sexual assault on a child under 13 as an alternative.  His first court appearance was on 21st August 2004.  On 23rd March 2005 he pleaded guilty to attempted rape.
3.	On 8th July he was sentenced by His Honour Judge Fish, at Manchester Crown Court, to a 3 year community rehabilitation order, with a condition that he reside at a hostel or as directed by a probation officer.  He was also made the subject of a sexual offences prevention order for 5 years and he is subject to the notification requirements of section 81 of the Sexual Offences Act 2003.
4.	The sentencing process was somewhat protracted.  Indeed, we are told by counsel who appeared in the court below and appears before us that the matter was adjourned on some seven or eight occasions, in order for reports, psychological and otherwise, to be obtained.  Initially, there was an issue as to whether he was fit to plead.  Thereafter probation reports were obtained in relation to what might be the appropriate sentence.
5.	The facts were that the victim was 3 years old, having been born on 4th November 2000.  She is the offender's niece.  On 19th August 2004, he had been out drinking with his brother, who is the father of the victim.  They returned to the offender's brother's house to change before they went out again.  There were a number of people at that house, including a 14 year old girl who was a friend of the family.  
6.	The victim was put to bed.  A little later the 14 year old took the victim's 2 year old sister upstairs to her bedroom, which she shared.  The offender was in the children's bedroom getting changed.  The 14 year old went downstairs.
7.	A little later, the offender's brother went upstairs and looked into the girl's bedroom and at this stage the offender was sitting on the side of the victim's bed, without his underpants.  The brother accepted the offender's explanation that he was getting changed.  Some little time later, of the order of 45 minutes, the 14 year old went upstairs to check the children and, when she opened the bedroom door, she saw the offender lying on the little girl's bed.  The little girl's shorts and knickers were around her ankles and the offender's left hand was touching the top of her right thigh.  The offender was startled and sat up, saying: "We were just watching Snow White".  The little girl pulled up her knickers and jumped off the bed.  The 14 year old reported the incident to her mother.  The police were informed.
8.	The offender was interviewed on 20th August.  At first he denied that anything inappropriate had taken place.  But then he admitted having pulling the girls clothing down, and stroking her leg and bottom.  He said he had stopped when his brother came in.  Then he admitted that he had exposed his penis to the girl and had tried to put it in her bottom.  He said he would probably have continued if the 14 year old had not entered the room.  He said he had got carried away and was experimenting.
9.	There were two psychiatric reports, a psychological report and pre-sentence probation reports before the sentencing judge.  The offender is assessed as not suffering from any mental illness, but he is within the category of mild mental retardation or of having a mild learning difficulty.  His IQ places him below the threshold of intellectual ability which would have permitted him to attend a sex offender programme.  An adapted sex offender programme for offenders of his IQ is not available within the probation area where he lives.  The only adapted programmes in that area are within the Prison Service.
10.	The offender, according to the reports, displayed a high level of naivety about relationships and sexual contact.  A programme was arranged for the offender, to be conducted on a one-to-one basis by his supervising officer at a bail hostel.  It was on that basis and on the recommendation of the probation officer at that time that the judge made the order to which earlier we have referred.
11.	On behalf of the Attorney-General, Mr Horwell draws attention to the aggravating features in this case:  first, the extreme youth and vulnerability of the victim; and, secondly, that the full offence of anal rape was not committed because the offender was disturbed, rather than because of any want of intention on the offender's part.
12.	Mr Horwell draws attention to the mitigation to be found in the offender's admission that he had sought to penetrate the little girl, without which there would not have been evidence supporting the allegation of attempted rape.
13.	Furthermore, save for a caution for an offence of dishonesty, the offender was of previous good character.  He pleaded guilty.  He suffers from a degree of mental retardation to which we have referred and does not seem to understand the gravity of that which he did.  It is also said that the offence was not premeditated, though having regard to his decision to change his clothes in the little girl's room, that aspect, as it seems to us, must be open to question.
14.	The submission which is made on behalf the Attorney-General is that a community penalty failed to reflect the gravity and circumstances of the offence, in particular the youth and vulnerability of the little girl, and was unjustifiably the circumstances, which were not wholly exceptional so that a non-custodial penalty for such an offence against a child might possibly be contemplated.
15.	On behalf of the offender, Miss Dagnall submits that the sentence passed was not unduly lenient, particularly in view of the offender's mental retardation.  He has a recurring drink problem and we understand that he is due to appear tomorrow at a hearing arising from his failure to comply with a number of aspects in relation to his residence in the hostel.  He has, as is apparent from the reports which are before us, on many occasions taken alcohol when he should not have done and to excess.  He has not attended at meetings when he should have done and he has not paid his rent as he should have done.
16.	Miss Dagnall rightly points out that the judge's sentence was passed in the light of the probation officer's recommendation in the report of 7th July, which was the most recent of the reports before the judge.
17.	There are before this Court further reports dated 26th September and 16th December 2005.  To the substance of those reports we shall, in a moment, refer.
18.	Miss Dagnall canvassed the possibility that, having regard to the fact that one-to-one encounters had been taking place between the offender and his supervising officer, it might be possible for the offender to be moved to a different area where an appropriate Sex Offender Treatment Programme might be available in the community.
19.	We take all of those considerations into account.  Miss Dagnall adds, by reference to the judge's mention of a figure of 5 years as being an appropriate custodial term for this case, if a community order were not made, that that represents somewhat too high a figure.
20.	This case was, for the Crown Court judge and remains for this Court, a very difficult one in which to identify the appropriate sentence.  It seemed to the judge, on the material before him, including the probation officer's recommendation, that a community penalty was the best option at that time, it being contemplated that, while resident at a hostel, the offender would be able to undertake specific offence-focussed work related to sex offences against children.  It is now apparent, from the further reports prepared for this Court, that this has proved to be impossible.  There is, as we have said, no adapted Sex Offender Treatment Programme available for this offender, in the community.  Even if there were, it is apparent from the further reports that it is doubtful whether he could successfully participate in such a programme. The work needed to reduce the risk of re-offending will not be possible pursuant to the existing order.
21.	In any event, this, as everyone has always recognised, was a very serious offence, in view of the age of the child, who was harmed to a degree not presently ascertainable.  Although no grooming was involved and the offender does not pose the same risk as a predatory paedophile, the offender's decision to change his clothes in the child's bedroom shows a degree of planning and preparation, whether or not the offender himself is conscious of this.  Clearly the offender presents a risk to children because, in the terms of the report, dated 26th September 2005 "deviant sexual arousal towards children is present." The probation officer's view now is that a sentence of imprisonment of more than 3 years is necessary, if the offender is going to be able to complete a 9-month adapted Sex Offender Treatment Programme.  
22.	In our judgment, the order made in the court below was unduly lenient.  We would have expected there a custodial sentence, even on a guilty plea, of at least 5 years, as the judge himself recognised had he thought custody appropriate.  Taking into account double jeopardy, that is to say that the offender is being sentenced a second time, and all the other circumstances of this case, we quash the order made in the Crown Court.  For the purpose of preventing the commission of further offences and securing the offender's rehabilitation, we substitute under the section 85 the Powers of Criminal Courts (Sentencing) Act 2000, an extended sentence of 5 years, the custodial term of which will be three-and-a-half years and the extended licence period of which will be 18 months.  That sentence will run from the date on which the offender surrenders.  We make an order that he surrender by noon tomorrow.  We also make an order that he shall be disqualified from working with children.  He will also be liable indefinitely to comply with the notification provisions of the Sex Offenders Act.