No: 200803009 A4 
Neutral Citation Number: [2008] EWCA Crim 2310
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Friday, 10 October 2008

B e f o r e:

LADY JUSTICE HALLETT 

MR JUSTICE PITCHFORD 
 
RECORDER OF CARDIFF
(Sitting as a Judge of the Court of Appeal, Criminal Division) 
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R E G I N A 

v 

STEPHEN LARCOMBE
 
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Mr JA Ingram appeared on behalf of the Appellant
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J U D G M E N T
1.	LADY JUSTICE HALLETT:  My Lord, Pitchford J, will give the judgment of the court.  
2.	MR JUSTICE PITCHFORD:  Following a trial at Southwark Crown Court, the appellant, on 7 April 2008, was convicted of two offences of sexual assault on a male contrary to section 3 of the Sexual Offences Act 2003.  On 6 May 2008, he was sentenced by HHJ Pitts to two and a half years' imprisonment on each count concurrent.  He now appeals that sentence with the permission of the single judge.  
3.	It is submitted by Mr Ingram on behalf of the appellant that the sentence fell well outside the relevant guidelines and is accordingly manifestly excessive.  He submits that in one or two passages of Judge Pitts' sentencing remarks he appeared to take into account circumstances which may not have been proved on the evidence in order to reach a conclusion about the danger presented by the appellant to young boys.  
4.	The appellant is a 46 year‑old man.  He worked in the jewellery industry.  He had been married, but was divorced, maintaining a good relationship with his former wife and their teenage daughter.  For financial reasons he had, at the time of these offences, no permanent home, but was moving between the homes of friends and a caravan in the Tunbridge Wells area.  
5.	On 6 January 2006, he boarded a train having finished work and having consumed alcohol.  At about 10pm a 15 year‑old boy, whom we shall refer to as "R", boarded the same train at Tunbridge Wells.  R sat alone in one of the block of four seats facing one another in pairs.  The appellant sat across the aisle from him and began to stare intently at the boy.  The appellant moved to sit in the seat alongside R, and when the train entered a tunnel, placed his hand on the boy's knee, before moving it to his inner thigh.  When R attempted to remove the appellant's hand, he gripped his thigh even tighter.  After a moment, R protested, got up and moved further down the carriage.  He was followed by the appellant.  R recognised a friend and stayed with that friend until he arrived at his stop.  On arrival, both R and the appellant alighted from the train.  R was met by his mother, who found him to be tearful and shaken.  There was a closed circuit camera in the carriage, whose view recorded the movements of R and the appellant, but not the details of the assault.  
6.	The second incident occurred on 12 May 2006.  This time the appellant's victim, J, was aged 16.  At Tunbridge Wells Station during the afternoon, J noticed the appellant looking at him intently.  He also seemed to be interested in a five year‑old boy.  J boarded this train, followed by the appellant.  J sat in the window seat and placed his bag on the vacant seat next to him.  Notwithstanding that there were several seats available to the appellant, the appellant approached J and asked him to remove his bag from the seat next to his, and J having done so, the appellant sat down next to him.  When the train moved off, the appellant began to stroke J's knee and thigh.  As the train was approaching Paddock Wood Station, the appellant moved his hand to J's penis and stroked that area over his trousers.  Like the earlier victim, J was shocked.  He got up to leave the train.  There was no apparent reaction from the appellant.  They left the train at the same top and J noticed that the appellant was following him.  He ran to a nearby shop, where he remained until he thought that it was safe to go home.  He ran home, and on his arrival he was found to be in a state of acute distress.  The judge in his case saw an impact statement which demonstrated continued suffering.  In the case of R, it was explained that no impact statement had been made because the boy was trying to put the matter behind him.  Again, CCTV footage was available which pictured the appellant and the victim.  As a result, he was eventually identified and arrested.  
7.	The appellant accepted travelling on the trains but denied the offences.  He pleaded not guilty.  His victims therefore had to give evidence.  The appellant did not himself give evidence.  He was, however, acquitted of two further counts of assault, allegedly committed in a public house because, as the judge found, the boys could not be sure that the touching which then occurred was other than accidental.  However, on the same occasion, the appellant was heard to say that he only liked little boys, and that one of the boys was the right size for him.  The judge, having heard that evidence, appears to have accepted it.  
8.	The judge delivered, in his sentencing remarks, a very full description of the offences.  In summary, he said that he was dealing with two separate offences on public trains in a period of five to six months.  His victims had been targeted and traumatised.  The appellant had declared his preference for boys.  He was thus a predatory paedophile.  He presented a risk to boys, but he could not on present information find that the appellant was dangerous under the Criminal Justice Act provisions.  The appellant was continuing to deny the offences, so there was no acknowledgment of any personal problem.
9.	In his sentencing remarks, the judge also expressed a view that the sentencing guidelines for the offence of sexual assault were of limited value to him since they looked only at the mechanics of the offence, that is to say the touching and not the wider aggravating features which the judge had identified.  The table to which the judge was referring appears at page 33 of the Definitive Guideline, Sexual Offences Act 2003, published in April 2007.  Where the contact does not involve the genitalia of the offender or the victim, and the victim is aged 13 or over, the starting point is a community order and the range is an appropriate non‑custodial sentence; that is a community order or fine.  That is the starting point which, in our view, applies to the first of the offences committed by the appellant, and would have applied to him had that been the only offence he committed.  
10.	For manual contact between the offender and the genitalia of a victim aged 13 or over, the starting point is 12 months custody and the range is 26 weeks to two years.  That is the starting point which, in our view, applies to the second of the appellant's offences.  If that was all the assistance the guideline provided, then we would concur with the view of the judge.  However, the sentencing tables do not stand alone, and sentencers will be misled if they neglect the principles and explanatory guidance which apply to them. 
11.	The guideline provides much relevant guidance on the application of the tables.  Sexual offences in particular demand flexibility.  The starting points and ranges are not rigid.  Movement within and between ranges will depend on the circumstances of individual cases, particularly aggravating and mitigating features (page 5, paragraph 1.3).  All sexual offences where the activity is non‑consensual, coercive or exploitative result in harm (page 6, paragraph 1.10 and 1.11).  
12.	The difficulty of assessing seriousness where there is an imbalance between culpability and harm does not arise in relation to sexual offences (page 7, paragraph 1.13).  The guideline recognises the range of options open to sentencers, including the imposition of custodial sentences where the risk of re‑offending is high (page 10, paragraph 1.21).  The offence guidelines relate to sentencing on conviction for a first time offender after a plea of not guilty.  The list of aggravating factors is not exhaustive, but a factor which is an ingredient of the offence cannot also be an aggravating factor.  The presence of aggravating factors will influence the type and length of sentence significantly (page 15, Summary of General Principles).  
13.	The expected approach is for the court to identify the description which most nearly matches the particular facts of the offence.  This will identify a starting point from which the sentencer can depart to reflect aggravating or mitigating factors affecting the seriousness of the offence.  The particular circumstances may make it appropriate that the provisional sentence falls outside the range, including previous convictions.  Then the court will take account of personal mitigation, together with any plea of guilty (page 18, Sentence Ranges and Starting Points).  
14.	In non‑consensual offences, the younger the child and the greater the age gap between the offender and the victim the higher the sentence will be (page 19, paragraph 2.8).  The notes explanatory to sexual assault offences at page 32 make clear that the nature of the sexual activity will be the primary factor in assessing seriousness and should be used as the starting point, but the presence of aggravating factors can make an offence significantly more serious than the nature of the activity alone might suggest.  We note that one of the generic factors listed at page 10 indicating a more than usual serious degree of harm is the existence of multiple victims.  
15.	In our view, applying the guidance to the sentencing exercise in the present case, it seems to us that the judge was entitled, both from the evidence he had heard and described in his sentencing remarks and in the pre‑sentence report, to reach the following conclusions: 
 (1) The offences were committed on more than one person on occasions well separated in time.  This was not, in other words, an isolated offence. 
 (2) The conduct in which the appellant was prepared to indulge escalated. 
 (3) The appellant's physical contact was not just sexual, but also intimidatory of his victims.  There was a very significant age gap between himself and his victims which served to increase the threat they experienced.  
 (4) The offences were committed on public transport when the victims were isolated in the immediate area from others. 
 (5) The effect of the appellant's predatory conduct was to cause actual and immediate fear and distress.   
(6) The appellant's persistence in denial of the offences rendered the commission of further offences the more probable.  
 (7) The defendant had on another occasion expressed his sexual preference for boys.  
 (8) While the appellant was not judged yet to pose a significant risk of serious harm to the public, he was nevertheless, unless restrained, liable to cause further harm to other boys of a similar age.  His continuing denials made a therapeutic approach to sentencing beyond the ability of the sentencer.  
16.	It was, in our view, perfectly open to the judge, while acting within the guidelines, to conclude that the appropriate starting point was significantly beyond the 12 months custody listed for the second of the two offences.  We agree with the finding of the judge that the nature and repetition of offending completely changed the complexion of seriousness confined to one or other offence in isolation.  Accordingly, it required a substantial sentence of imprisonment.  There was no mitigation available.  The appellant stood his trial and persisted in his denial.  
17.	We have, however, considered whether, in the particular circumstances of this case, the judge imposed a sentence beyond the acceptable range.  It is quite clear from the guidelines that sexual assault which involves touching of the naked body of the victim is regarded as a much more serious offence than the offences committed by the appellant in the present case.  The length of the sentence imposed by the judge should have reflected the fact that the assaults in this case were on the boys' clothed bodies.  Having regard to that primary consideration, described by the notes at page 32 of the sentencing guidelines, it is our view that the upper limit of the sentence in this case was two years' imprisonment.  
18.	We propose, therefore, to allow the appeal to the extent that there shall be substituted for the sentences imposed by Judge Pitts sentences of two years concurrent on each count.