Case No: 200904417/A5 
Neutral Citation Number: [2009] EWCA Crim 2857
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Date: Thursday, 8th October 2009
 
B e f o r e:

LORD JUSTICE MOSES 

MR JUSTICE OPENSHAW 

HIS HONOUR JUDGE ROOK QC
(Sitting as a Judge of the CACD)
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REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 OF THE CRIMINAL JUSTICE ACT 1988 

ATTORNEY‑GENERAL'S REFERENCE NO 71 OF 2009   

(ANDREW SYMES) 
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Mr A Edis QC appeared on behalf of the Attorney General 
Mr I Halliday appeared on behalf of the Offender 
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J U D G M E N T 

1.	LORD JUSTICE MOSES:  This is a reference, under section 36 of the Criminal Justice Act 1988, in which the Attorney‑General applies for leave to refer a sentence, which, in her submission, was unduly lenient.  We have already indicated to Mr Evans, on behalf of the Attorney‑General, that we shall give leave.
2.	The essential point of the application is that the trial judge who also sentenced this respondent failed to follow the guidelines applicable to the offence, gave no specific reasons as to why she did not follow those guidelines and in giving her reason for the sentence, failed to demonstrate that there were good reasons for departing from the relevant guidelines.
3.	The offender is 47 years old, born on 18th February 1962.  As frequently occurs in cases of this nature, he is a man not only of good character in the sense that he has never been in trouble before, but of positively good character, having worked in a responsible job throughout his life and having earned the trust and approbation of both those who know him and of those with whom he works.  They are anxious still to employee him.
4.	He was, unfortunately, however, guilty of five sexual assaults, contrary to section 3 of the Sexual Offences Act 2003 in respect of the young daughter of the lady with whom he was living.
5.	The judge, Her Honour Judge Hagen, at Bristol Crown Court, conducted the trial, since the offender disputed that he was so guilty, adjourned sentence, following the preparation of a pre‑sentence report and then passed the sentence which is the subject matter of the reference.  The sentence that was passed was one of 12 months' imprisonment, suspended for 2 years concurrent on each of the five counts. The respondent was also made the subject to a supervision requirement for 2 years and a requirement to attend the Thames Valley Sex Offenders Programme.  He was placed on the Sex Offenders Register for 10 years.
6.	The respondent started to live with the mother of the child in 2006.  She had two daughters and the victim was the youngest, born on [a date in] 1994.  The offences came to light in September 2008 when finally and reluctantly the young girl told her mother that the respondent had been touching her.  She was interviewed by the police shortly after and the offender left immediately, never going back to live with the family.
7.	The offences she described in interview and at trial were offences whereby usually in drink or drunk, the offender would climb into her bed, wearing boxershorts and then, whilst she was wearing her pyjamas, hug her, fondle her breasts, put his hand beneath her pyjama bottoms and rub her vagina with his fingers.  When she told him to go, or if he was alerted to a noise, he would stop.  No allegation of penetration was pursued.
8.	Two of the offences occurred when the girl was 11, three was when she was 13.
9.	The dilemma she faced in fearing the breakup of the family and of getting him into trouble was demonstrated in her answers during interview.  Her mother, who has never since lived with this offender, describes the affect on the family and the trauma caused to her young daughter in her victim impact statement.  Throughout, the offender denied the offences.
10.	A pre‑sentence report described his good character and the risk, despite his denial of further sexual offences being low, although inevitably drawing attention, in the light of his denial, to his lack of insight.
11.	The judge was referred to the relevant guidelines.  Those guidelines contain a number of features applicable to this case.  One of the factors indicating a more than usually serious degree of harm is the fact that these sexual assaults took place on the same victim, on repeated occasions, namely five ‑‑ the third of the features identified in the guideline Sexual Offences Act 2003 Definitive Guideline.  Further, the guideline makes it clear at page 15 that it relates to sentencing in respect of someone who is a first‑time offender.  It was agreed that the relevant guideline is the one headed "sexual assault of a child under 13" and that the nature of that activity is one that merits a starting point of 2 years custody, with a sentencing range of 1 to 4 years.  It is of note that that guideline does not take into account the seriously aggravating feature of breach of trust.
12.	The judge, in making her sentencing remarks, makes no specific reference to the relevant guideline although it is plain that Mr Halliday, who has conducted the respondent's case both there and before us with conspicuous skill and frankness, had referred her to that guideline.  This case, therefore, underlines the importance that a judge should refer to the relevant guideline in her sentencing remarks and explain the reasons why, if a decision has been made to depart from those guidelines, she is not following them.  That has the merit not only of explaining and avoiding the sad consequences of an application such as this but also providing the discipline that every judge needs in reaching a decision explaining the reasons for it.  
13.	The judge announced her conclusion and rightly identified that the victim was a young vulnerable child, that the effect of these offences was to destroy the family and it amounted to a gross breach of trust.  All of that was entirely correct.  But she erred in her identification of the mitigating factors.  First of all, she pointed out that there was only one complainant and not a number of complainants.  Of course it would have been worse had there been a number, but the fact that there were, as properly described in the guideline, repeated offences against one complainant was an aggravating, not a mitigating feature.  Further, although she rightly identified that there was no risk of re‑offending, it minimised the gravity of the offence to describe what had happened as no more than drunken groping.  It was, as the guideline indicates, far more serious than that.
14.	Against those features, as Mr Halliday has so well reminded us, the impact of this on this man has been and will continue to be severe.  If he goes to prison he will lose his job.  He has brought shame upon himself from which it will be difficult for him to recover.  But this court has, on frequent occasions, emphasised the importance of the consistency which the guidelines are designed to maintain and that there must be good and cogent reasons, particularly in cases of sexual offences for, departing from them.  In our judgment, despite the clear features of mitigation and the extra impact, our conclusion is there was no basis for departing from the guideline in this case.
15.	The correct sentence on all these five offences to run concurrently was, we suggest, one of 2 years' imprisonment.  Because of the impact of allowing this application by the Attorney‑General, it is appropriate to reduce that to reflect that impact and we do so by reducing the sentence of 2 years' imprisonment, the appropriate sentence, to one of 15 months' imprisonment to run concurrent on each count.  There was no justification for suspending this sentence. 
16.	MR EDIS:  My Lords, I understand the offender is present and can therefore surrender.
17.	LORD JUSTICE MOSES:  The sentence will start from today.
18.	MR HALLIDAY:  May I briefly address the court on that issue?  My client is present in court today, as has been said, therefore he is in a position to surrender to that sentence, if your Lordship so directs it.  He does invite me to address the court and invite the court for seven days in which to surrender to this sentence.  First of all, as I have already indicated, he has prepared a letter of resignation for his employers.  He would like to attend his resignation in person.  Secondly, as I have mentioned, he is currently living with his father, 79 years of age in ill‑health.  His father has a medical appointment which he hopes to attend on 12th October.   
19.	LORD JUSTICE MOSES:  When?
20.	MR HALLIDAY:  When is the 12th?  Next Monday my Lord.   
21.	LORD JUSTICE MOSES:  Where would he surrender to if he does not surrender today? 
22.	MR HALLIDAY:  Any place of the court's choosing, back to Bristol Crown Court or the local police station.
23.	LORD JUSTICE MOSES:  Do you have any observations on that?  It is difficult to refuse, he has shown such responsibility turning up today.
24.	MR EDIS:  I have no submissions to make about it at all my Lord.  
(The Bench Conferred) 
25.	LORD JUSTICE MOSES:  There is a particular aspect of this of which I am reminded and we are very worried about.  That is the risks to himself of which those who have seen him speak.  I am deliberately talking in code.  You know what I am talking about.
26.	MR HALLIDAY:  I take your Lordships point entirely.  If anything, that is likely more a live issue once incarcerated rather than before.  At present under the doctor, he is under medication.
27.	LORD JUSTICE MOSES:  He has somebody with him today.
28.	MR HALLIDAY:  Whatever thoughts had crossed his mind are currently under control. 
29.	LORD JUSTICE MOSES:  Very well.  We will order that he surrender at Bristol police station.  The appointment is on Wednesday, is it, if we said Thursday. 
30.	MR HALLIDAY:  On Wednesday. 
31.	LORD JUSTICE MOSES:  We are to say Wednesday then.  Weston‑super‑Mare police station, by 10.30 on the Wednesday morning.  All right?
32.	MR HALLIDAY:  I know my client is grateful for that accommodation.