Neutral Citation Number: [2009] EWCA Crim 2202
Case No: 2009/2079/A6
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Date: Monday, 12 October 2009

B e f o r e:

LORD JUSTICE RIX 

MR JUSTICE McCOMBE 
 
MR JUSTICE BURNETT 
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R E G I N A 

v 

P.M.
 
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Computer Aided Transcript of the Stenograph Notes of  
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Miss E Pearson appeared on behalf of the Appellant 
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J U D G M E N T 

1.	MR JUSTICE McCOMBE:  At a plea and case management hearing on 15th September 2008 in the Crown Court at Cardiff, before His Honour Judge John Curran, not guilty pleas were entered on the appellant's behalf to all the counts of a ten count indictment alleging, principally, sexual offences against the appellant's stepdaughter.  The appellant, by then in custody, had been due to be present via video link but did not attend.  His case is that on that occasion he was receiving medical attention and could not attend.  A trial date was fixed for 3rd November 2008.  However, on 31st October 2008 a report was received raising concerns about the appellant's fitness to plead and stand trial.  The trial date was adjourned and a new date set for 16th February 2009.  The complainant had not attended court but had been warned for 4th November, which was the second day of the initial fixture.  
2.	By the time of a further hearing on 20th December 2008 before His Honour Judge Morris QC, it had become clear that the appellant was fit to plead and at the beginning of February defence solicitors were told that the appellant wished to plead guilty to specimen counts of rape of his stepdaughter (counts 6 to 8 on the indictment) and two assaults (counts 9 and 10).  Those proposed pleas were acceptable to the Crown.  The trial date was vacated and the case was listed for mention on 16th February, again before Judge Morris.  
3.	On 3rd April 2009 the appellant was sentenced by the same learned judge to sentences of 8, 10 and 12 years' imprisonment respectively on counts 6, 7 and 8 on the indictment, and to four months' imprisonment for each of the assaults (counts 9 and 10).  All the sentences were ordered to run concurrently, giving rise to a total sentence of 12 years' imprisonment.  A period of 277 days spent in custody on remand was ordered to count towards sentence.  He was disqualified from working with children indefinitely.  He now applies for leave to appeal against the sentence by leave of the single judge.  
4.	The facts of the case were these.  The victim was born on 26th April 1990 and is now aged 19.  The appellant is her stepfather, although throughout the events which we shall relate she thought that he was her biological father and she had been raised in that belief.  The appellant met the victim's mother in the early 1990s when the victim herself was about two years of age and they had married in 1993, going on to have two children of their own.  
5.	From the time that the victim was 16 and for a period between April 2006 and June 2008 she was repeatedly raped by the appellant and indeed at the age of 16 she fell pregnant by the appellant.  When told that she was pregnant, the appellant told her to tell people that the father of the child was a boy at school and not him.  In August 2006 she suffered a miscarriage and the pregnancy did not continue to full term.  Within about two weeks of the miscarriage the appellant began to pester her again for sexual favours.  
6.	The victim told the police that the rapes had taken place in the family home and on occasions elsewhere, for example during journeys in the car.  She said that the appellant would engineer situations in order to be able to have sex with her.  He was very controlling of her and was extremely possessive.  He disliked her going out with her friends and indeed tried to prevent it at times.  He did not like her being in contact with boys and he went so far as to delete their telephone numbers from her mobile phone.  He tried in effect to stop her having any sort of normal social life.  He was possessive to the extent that at the time of family holidays his wife would often stay at home to look after the other children and he would take this victim with him and they would share a room, so that in effect she was with him 100% of the time.  He had also told her on occasions that he loved her and in 2008 he had gone so far as to suggest that they should run away together.  When she pointed out that she was his daughter and not his partner, he simply said: "Would it be different if I wasn't your father?"  But she said no, she was his daughter.  It was only when she went to the police that she learnt for the first time that the appellant was not her natural biological father.  
7.	In order to keep her silent about what was going on there were threats issued.  The appellant told her that if she ever told anyone about these events he would kill her.  In 2008 he said he would dig a hole for her and would do 10 years for her, saying that he would still get out and see the light of day, but she never would.  He also made accusations that she was having sex with other family members.  He was violent to her on occasions and counts 9 and 10 reflected two occasions in 2008 when he assaulted her by slapping her to the face.  One of those occasions took place after he had accused her of "being with" her own brother.  
8.	There was, as a result of all this, some suicidal thoughts on the part of the victim.  She cut her wrists and the offences came to light when she texted her aunt to say that she wanted to kill herself.  It was when she then had further contact with the aunt that she told her what was happening and the mother was told and the whole incident came to the attention of the police.  
9.	When the appellant was arrested and interviewed on 28th June 2008 he admitted the physical assaults but he denied all sexual impropriety.  He claimed that the victim was making it all up to cover for the fact that she was having a sexual relationship with the aunt's partner.  
10.	The appellant is 43 years old.  He had 27 previous convictions involving some 61 offences, but mostly for dishonesty.  There was no previous sexual offending on his record.  
11.	The pre‑sentence report said that the appellant had been in "low mood" during the interview and was unable to give an explanation of why the offences had been committed.  He expressed remorse but in the view of the probation officer his inability to discuss the offences made it difficult to judge the extent to which that remorse was genuine.  He was however regarded as presenting a low risk of reoffending generally, but a high risk of causing harm if he became established in a family environment in the presence of young female children in the future.  There were also some concerns expressed as to the risk of his own self‑harm.  
12.	There was also in the light of what we have described a psychiatric report available to the learned judge which said that the appellant suffered from a moderately severe personality disorder of a paranoid anti‑social and impulsive type, with some borderline and emotional personality traits leading to an unspecified psychogenic psychosis.  He did not, the doctor thought, suffer from a schizophrenic illness and the psychotic symptoms came to the surface when he was under stress to which he was vulnerable.  In the doctor's view his mental health needs were being met within the prison service and he concluded that it was very difficult to comment on whether the appellant's offending was in fact linked to any of his own mental health problems.  
13.	In passing sentence the learned judge said that this was a serious and disturbing case.  He concluded that the appellant did not fall within the dangerous offender provisions of the Criminal Justice Act 2003.  He stated however that the offences were committed in breach of trust on a young girl who thought that he was her biological father.  The judge said he took into account the gravity of the cases and the aggravating factors.  He said he gave, as he put it, considerable credit to the appellant for his pleas which had meant that the complainant had not been required to attend court or to give evidence, although as we have mentioned she was warned to attend on the second day of the original trial fixture.  
14.	Although, as we have indicated, the sentencing remarks do not state so expressly, counsel said in her advice that the judge in effect treated the pleas as having been entered between the plea and case management hearing and the trial (paragraph 13 of counsel's helpful advice in this case).  In other words, on that basis he would not have given a full discount for the pleas.  The position is not entirely clear when one looks at the exchange of remarks between counsel and the judge during the Crown's opening of the case when it seems that the judge was intending either to treat the hearing on 16th February 2009 as the effective PCMH (see page 2H of the transcript) or to give credit from the date of the original PCMH (see page 3B to C).  In either of those cases it would appear that the learned judge was intending to give full credit for the pleas, although as we say the matter is not entirely clear.  
15.	On the present appeal it is argued that the sentence was excessive either because the learned judge took too high a starting point for sentence or failed to give adequate credit for the pleas.  In her excellent submission to the court this morning, Miss Pearson has emphasised two points.  First, that this victim was in fact over 16 and so while she was still a child the sentencing guidelines bracket with which we are concerned deals with children much younger than she in fact was.  This sentencing guideline gives a starting point of some 15 years after trial with a bracket up to 19 years.  She also submits that the defendant's mental health was possibly poor at the time of the offences and she notes what the psychiatrist said about that and the issue not being clear.  Miss Pearson recognised of course the threats that were issued, which we have outlined above, and the seriously aggravating factor of the pregnancy.  The plea of guilty is of course to be taken into account.
16.	In our judgment, in this case, if one were to assume that the learned judge gave a credit for plea of somewhat less than the full 33 per cent as seems in the end to be the case, and perhaps giving so much as a quarter of the relevant period as a starting point by way of credit, the sentence implies a sentence after trial in the region of 16 years.  In our judgment a sentence of that length after a trial for these offences with the aggravating features that we have mentioned is far from being excessive.  In our judgment it would have been well within the learned judge's discretion to pass such a sentence after a contested trial.  Giving the approximately quarter discount from that starting point for the pleas of guilty, one reaches a period of 12 years which in our view was entirely appropriate in the circumstances of this case.  
17.	Notwithstanding the cogency of Miss Pearson's helpful submissions this morning, we have reached the conclusion that this appeal must be dismissed.