No: 2006/1169/A2
Neutral Citation Number: [2006] EWCA Crim 1044
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Wednesday, 12th April 2006
 
B E F O R E:

LORD JUSTICE TUCKEY 

MR JUSTICE BEATSON 

THE RECORDER OF BRISTOL
(Sitting as a Judge of the CACD) 

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REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 CRIMINAL JUSTICE ACT 1988 
 
ATTORNEY-GENERAL's REFERENCE NO 29 OF 2006    
 
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Computer Aided Transcript of the Stenograph Notes of 
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MISS Z JOHNSON appeared on behalf of the ATTORNEY GENERAL
MR D POTTER appeared on behalf of the OFFENDER
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J U D G M E N T 
1.	LORD JUSTICE TUCKEY:  The Attorney General seeks leave to refer as unduly lenient concurrent sentences of two-and-a-half years in a young offender institution passed by Judge John Rogers QC on 10th February 2006 in the Mold Crown Court on the 19-year-old offender, G R, for a variety of sexual offences against his two younger sisters.  We grant leave to refer that sentence to this court.
2.	In summary, over a period of about 18 months the offender sexually abused his two younger sisters, K and E, by putting his penis into their mouths and on occasion ejaculating into the mouth of the elder one, K.  During the period of his offending he was aged between 16 and 18.  K was aged between eight and ten and E was aged five at the material times.  
3.	The indictment to which the offender pleaded guilty at the first opportunity contained eight counts and alleged offences which were committed before the relevant sentencing provisions of the Criminal Justice Act 2003 came into force on 4th April 2004 (counts 1 to 4), an offence that was pleaded in such a way that it includes the commencement date (count 5), and offences that were committed after 4th April 2004 (counts 6, 7 and 8).  
4.	Counts 1 to 6 related to K.  Counts 1 and 2 charged indecency with a child and counts 3 to 6 charged oral rape of a child under 13.  Counts 7 and 8 related to E and charged causing and/or inciting a child to engage in sexual activity on 7th October 2005.  The offender was sentenced to two-and-a-half years in a young offender institution concurrent on each count, apart from count 8 where the sentence was one of 18 months.  His name was to be placed on the sex offenders register for life and he was disqualified from working with children. 
5.	The facts in more detail are as follows.  The offender lived in mid-Wales.  His family had been known to the local social services department for at least 15 years.  K was born on 13th September 1995; E on 8th January 2000.  They, together with the offender and two brothers aged eight and five, lived with their mother who was of a very low IQ.  
6.	The offences against K started in 2003 when the offender would tell her to go to his room and then follow her in and shut the door.  He would pull her trousers and pants down and kiss her on the bottom and private parts (counts 1 and 2).  He would tell her to rub his private parts and then progressed to making her take his penis into her mouth (count 3).  This offending occurred over two years on numerous occasions (counts 4, 5 and 6).  K said it happened more than 20 times.  On more than one occasion the offender ejaculated into K's mouth.  He also kissed her mouth with his tongue and touched her chest.  The offences would usually occur when their mother was out with friends or at bingo.  The offender told K not to tell anyone what he was doing or else he would hit her.  K did tell her mother something about what had happened but when her mother tackled the offender about it he claimed that K was lying.  She continued to trust him.  
7.	On 7th October 2005 she went out to bingo leaving the offender in charge of the children.  She got home late that evening and the following morning E went to her mother and said that the offender had asked her to put his "winkie" in her mouth the night before whilst she had been out at bingo.  The offender when tackled with this again alleged that the allegation was a lie, but this time the mother did speak to other family members and in due course the police were informed.  The offender was arrested and made no comment in interview.
8.	Although the offender had received a caution in 2002 for a matter involving dishonesty, he had no previous convictions. 
9.	The sentencing court had before it reports from a social worker and a pre-sentence report prepared by the probation service.  The social worker describes the offender as having been assessed as having a mild learning disability He had an IQ of 64.  She described the family as socially and emotionally isolated and financially impoverished.  In discussion the offender had said that he did not know whether he would re-offend.  He thought he would not, but he might.  She said however that he had been compliant, attended appointments and talked openly about the matter, but he appeared to have a limited understanding of the effect of his abuse on his sisters and the rest of the family.  
10.	The pre-sentence report said that the offender was unable to see things from the victims' perspective and did not appear to understand the seriousness of his offending.  The probation officer's risk assessment was as follows:
"... based on his attitude to the current offences and denial of wrongdoing, he is assessed as a medium risk of re-offending.  
Based on the serious harm caused by the current offences and the fact that [the offender] does not appear to understand the seriousness of his behaviour, he is assessed as at high risk of causing serious harm in the future.  The risk is of sexual abuse and is specifically in relation to vulnerable children and in particular to females." 
We are not quite sure how these two paragraphs are to be reconciled, but the report went on to say that the risk would be greatly reduced if appropriate supportive housing could be secured for the offender.  
11.	The probation officer's conclusions highlight the very difficult sentencing task which the judge had to undertake in this case.  Due to the offender's learning difficulties he would not be eligible for any of the accredited programmes available for sex offenders in prison.  There were also serious concerns that he might be bullied and victimised in the prison environment.  The probation officer recommended a community sentence but added that if he were to be sent to prison she would ask for an extended period on licence to be imposed in order to monitor him when released and complete some offence-focused work.  A hospital order was also a possibility in this case, but it is clear from the report that the offender's best hope lay in securing proper housing and doing some offence-focused work which the probation service would be able to provide him with after his release from custody.
12.	The aggravating features of this case were the age of the victims, the fact that there were two of them and that the offences were repeated many times against one of them.  They were committed in breach of trust and the offender threatened to hit K if she told anyone about what had occurred.  The offender had displayed an element of persistence in that he continued to commit offences after he had been confronted about his behaviour by his mother.  The mitigating features include the age of the offender, the fact that he had no previous convictions, his plea of guilty at the earliest opportunity and that he had an IQ of 64 which meant that he was assessed as having a mild learning disability.
13.	Before us today the Attorney General does not submit that the judge should have sentenced the offender as a dangerous offender under the provisions of Chapter 5 of the Criminal Justice Act 2003.  Rather, Miss Johnson on his behalf submits firstly that the sentence of two-and-a-half years was unduly lenient, but even if the custodial term cannot be criticised she submits that the judge should in the circumstances have imposed an extended sentence allowing for the offender to be dealt with in the community during an extended licence period.
14.	Cases such as this pose very challenging sentencing problems for judges.  Of course the seriousness of the offence has to be marked and had to be marked in this case by a custodial sentence.  But the court is not required to deal with cases mechanistically.  The offender was a boy of very limited intelligence who between the ages of 16 and 18 had committed very serious offences against his two younger sisters.  But if the risk of his offending again was to be reduced custody was not the answer.  He could not benefit from sex offender programmes in prison and he might be bullied or victimised there.  Support in the community by the provision of suitable accommodation and help from the probation service offered him the best hope.  That might be secured by an extended sentence, as the Attorney General submits, but will, it seems to us, inevitably be offered to this offender when he is released from the custodial sentence which he has received.  The fact that his family have been known to and supported by social services for many years supports that view.  The judge might have imposed an extended sentence here for very obvious reasons, but this experienced judge decided not to do so.  The essential task he had to perform was to strike the balance between punishment and rehabilitation and we conclude that in this case he did so.  Some judges might have passed a longer sentence; some judges might have imposed an extended sentence, but we do not think that this sentence can be characterised as unduly lenient by the judge's decision to limit the term to two-and-a-half years and not to impose an extended sentence.