No: 2012/4268/B4 & 2012/3016/B4 
Neutral Citation Number: [2012] EWCA Crim 2458
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Friday, 2 November 2012
 
B e f o r e:

LORD JUSTICE PITCHFORD 

MR JUSTICE HICKINBOTTOM 
 
HIS HONOUR JUDGE BONEY QC 
(Sitting as a Judge of the CACD) 
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R E G I N A 

v 

J.OC
 
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Mr M Smith appeared on behalf of the Applicant
Mrs K Taylor appeared on behalf of the Crown
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J U D G M E N T
1.	LORD JUSTICE PITCHFORD:  This is an application for leave to appeal against conviction and sentence which has been referred to the full court by the Registrar.  For reasons which we shall give, we grant leave.
2.	At Leeds Crown Court before Her Honour Judge Belcher, between 27th February and 7th March 2012, the appellant was tried upon an indictment containing 14 counts in which he was charged with sexual offences against his sister and against his daughter.  The complainants are entitled to their anonymity and by reason of their family connection with the appellant the title to this judgment shall be anonymised with the initials "JOC".
3.	On 7th March 2012 the jury returned verdicts of guilty and the appellant was sentenced as follows.  Count 1, rape of T, contrary to section 1 Sexual Offences Act 1956, five years four months' imprisonment.  Count 2, indecency with a child, T, contrary to section 1 Indecency with Children Act 1960, six months' imprisonment.  Count 3, indecent assault of T, contrary to section 14 Sexual Offences Act 1956, two years' imprisonment.  Count 4, indecent assault of T, nine months' imprisonment.  Count 5, indecent assault of T, 18 months' imprisonment.  Counts 6 and 7, indecent assault of T, 12 months' imprisonment each count.  Count 8, indecent assault of T, six months' imprisonment.  Count 10 and 11, sexual assault upon L, contrary to section 3 Sexual Offences Act 2003, two years' imprisonment each count.  Count 12, causing or inciting a child (L) to engage in sexual activity contrary to section 10 Sexual Offences Act 2003, imprisonment for public protection with a minimum term of 42 months.  Count 13, engaging in sexual activity in the presence of a child (L), contrary to section 11 Sexual Offences Act 2003, two years' imprisonment.  Count 14, sexual assault of L, contrary to section 3 Sexual Offences Act 2003, two years' imprisonment.  
4.	The judge ordered the sentences to run concurrently save that the sentence of five years and four months on count 1 was ordered to run consecutively to the sentence of imprisonment for public protection imposed on count 12.  It follows that the custodial element of the sentences imposed comprised the minimum term of 42 months, followed by a determinate custodial period which would represent two‑thirds to three‑quarters of the sentence of 64 months imposed.
5.	The judge also imposed an indefinite Sexual Offences Prevention Order in the following terms:  
"The defendant is prohibited from: 
1.  Approaching, seeking to approach or communicating by whatever means, directly or indirectly with [T] and [L]. (The victims in this case).  
2.  Having any unsupervised contact with any young person under the age of 16 years, except in the presence of that child's parent or guardian or other appropriate adult. (Save for any inadvertent or unavoidable contact with a child under 16 years).  
3.  Inviting or having any young person under the age of 16 years in his house, or any other residence where he may stay on a temporary basis.  
4.  Seeking or undertaking any employment whether for payment or otherwise which is likely at some time to allow him unsupervised access to a child under the age of 16 years."
6.	T is the appellant's sister.  In April 2011 her niece, the complainant L, revealed that she had been sexually abused by her father (the appellant).  L's grandparents expressed some doubt as to the truth of the allegations she was making, whereupon her aunt (T) revealed that she too had been abused by her brother from a very young age.  A complaint was made by L to the police and later T also made a complaint.  
7.	Count 1 charged the appellant with the rape of T between 10th November 1981 and 12th December 1982.  T was born on 11th December 1976.  Eleventh December 1981 was therefore her fifth birthday.  The appellant was born on 27th March 1971.  He was therefore aged 10 and 11 during the period when the alleged rape occurred.  Further specimen acts of indecent assault and indecency were charged in counts 2 to 8 between 10th December 1981 and 26th March 1985.  
8.	T gave evidence that when she was five years old the appellant required her to suck his penis while he was watching pornography.  On one such occasion he removed her underwear and inserted his penis into her vagina.  She protested that it was hurting and he desisted.  He kissed her with his tongue in her mouth.  Following this incident the appellant threatened to kill himself by hanging, in order to prevent T from taking any complaint to their parents.  Episodes of sexual abuse became more frequent after that incident.  The appellant touched T's vagina and on one occasion inserted his fingers.  He would use his tongue on her vagina and simulate sexual intercourse with her.  On one occasion he produced a knife and threatened T that he would cut her throat if she disclosed what he was doing.  On other occasions he told her that she would go to prison if they were discovered.  
9.	The abuse stopped during 1985 when the appellant was aged 14 years and T was aged nine years.  There was no obvious cause for the cessation of the appellant's offending against T identified during the evidence in the course of the trial.  The appellant simply stopped his conduct.
10.	L was born on 8th July 1995.  The appellant had custody of his daughter from shortly after her birth and they lived with his parents for some years.  The sexual abuse commenced about three years before L made her ABE interview.  It commenced when she was aged 13 years.  The appellant encouraged her to drink cider with him which he had told her to fetch from the fridge.  She became drunk and vomited.  He told her to go to bed but followed her.  She became aware of being naked in his bed while the appellant was rubbing his penis against her buttocks.  She told him to get off and went to her own room.  She ran out of the house naked, attempting to escape to T 's home, but the appellant followed and returned her.  The following day the appellant was suggesting to L that she had been shouting that she was going to shag him and that he was going to rape her.  That such an incident had happened in the street was known to the family.  The appellant suggested that L had been making a fuss and had exaggerated events.
11.	There was then a period when nothing untoward occurred until one night in October 2009 when L was aged 14.  The appellant told her to go to her bedroom.  He then sent her a text message in which he said: "Be mine for one night and I'll give you £100."  She went to see him in his own room to ask what he was on about.  He replied: "Let me shag you and I'll give you £100.  You can do 'owt with any boys you want and you can come in whenever you want."  He told her to go and think about it.  The following night he sent her a photograph of his penis.  She deleted the photograph and the text but not before she had shown the text to two of her friends.  
12.	The appellant continued with abuse by simulating sexual intercourse with L, masturbating himself in her presence and touching her vagina.  He told her that if she told anyone he would be locked up and as a result the family would suffer.  The abuse ceased when L was aged 14.  
13.	She was, at the age of 15, seeing a boyfriend of whom the appellant disapproved.  Her aunt, T, told her that she thought the appellant might do violence to the boyfriend.  L responded that if he did that she would tell her grandmother what the appellant had done to her.  This led to T's suspicions, culminating in the revelation in April 2011.
14.	The appellant's mother gave evidence that she knew nothing of the appellant's behaviour towards T.  However, during the six year period when the appellant and L had lived with her, she had noticed inappropriate behaviour by the appellant towards L and had warned him against it.  His response had been dismissive.  
15.	In interview the appellant did not respond to questions but gave a prepared statement denying the allegations.  He gave evidence denying any inappropriate behaviour towards either his sister or his daughter.  
16.	In respect of count 1 the judge directed the jury that having regard to his age at the time, in addition to the normal requirements for the offence of rape, they must consider the capacity of the appellant to commit the offence.  They must be sure that the appellant knew that the act he was committing was seriously wrong.  With that description of the evidence we turn to the single ground of appeal against the appellant's conviction upon count 1.  
17.	On 7th May 2012 counsel advised that there were no grounds of appeal but also advised that there were grounds for appeal against sentence.  Upon examination of the case, Miss Louise Sillis, a lawyer in the Criminal Appeals Office, noticed that the offence charged in count 1 took place when the appellant was aged 10 or 11 years.  In 1981 and 1982 the appellant would have had an absolute defence to the offence of rape since there was then an irrebuttable common law presumption that a child under the age of 14 was incapable of committing the offence of rape ‑ see R v Brimilow (1840) 9 C & P 366; R v Waite (1892) 2 QB 600; R v Fethney [2010] EWCA Crim. 3096 and R v Bevan [2011] EWCA Crim. 654.  The common law presumption was not abolished until the enactment of the Sexual Offences Act 1993.  
18.	It follows that the conviction upon count 1 was unlawful.  It is regrettable that nobody associated with the case was aware of the need to research the state of the presumption at the time when the offence was alleged to have been committed.  The trial seems to have proceeded upon the assumption that the prosecution had to prove the appellant's capacity to commit the offence by establishing his understanding that what he did was seriously wrong, but no one spotted that he was in law incapable of committing the offence at all.  
19.	The issue now arises whether the court should substitute a verdict for another offence.  Section 3 of the Criminal Appeal Act 1968 provides:  
"(1) This section applies on an appeal against conviction, where the appellant has been convicted of an offence and the jury could on the indictment have found him guilty of some other offence, and on the finding of the jury it appears to the Court of Appeal that the jury must have been satisfied of facts which proved him guilty of the other offence. 
 (2)The Court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of the other offence, and pass such sentence in substitution for the sentence passed at the trial as may be authorised by law for the other offence, not being a sentence of greater severity."
20.	No alternative count was laid in the indictment.  The court's power is therefore limited to substituting a conviction which the jury could have returned, had they been properly directed, pursuant to section 6(3) of the Criminal Law Act 1967 which provides as follows:  
"6(3) Where, on a person’s trial on indictment for any offence except treason or murder, the jury find him not guilty of the offence specifically charged in the indictment, but the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence falling within the jurisdiction of the court of trial, the jury may find him guilty of that other offence or of an offence of which he could be found guilty on an indictment specifically charging that other offence."
21.	In Hodgson [1973] QB 565 this court held that a jury could on a count of rape convict of an offence of indecent assault since the allegation of rape impliedly included the allegation both of indecency and of assault.  Since the victim was under the age of 16 no question of consent arose.  
22.	However, it was submitted on behalf of the respondent by Mrs Taylor that attempted rape is also an alternative verdict offence for the purpose of section 3(3) of the 1967 Act and therefore for the purpose of section 3 of the Criminal Appeal Act 1968.  
23.	In R v Waite in the Court of Crown Cases Reserved, Lord Coleridge CJ expressly left open the question whether, notwithstanding the common law presumption in favour of defendants under 14, they could be convicted of attempted rape at common law.  Lord Coleridge said this:  
"The rule at common law is clearly laid down by Lord Hale, that in regard to the offence of rape malitia non supplet aetatem; a boy under fourteen is under a physical incapacity to commit the offence.  This is a presumtio juris et de jure, and judges have time after time refused to receive evidence to show that a particular prisoner was in fact capable of committing the offence.  That is perfectly clear, and therefore, unless the Criminal Law Amendment Act has altered the common law, which cannot be successfully contended, this prisoner has not committed the felony charged.  The question whether he could be convicted of the attempt does not arise; on that point R v Brimilow, though not in point, bears some resemblance to the present case; but it certainly seems to me that a person cannot be guilty of an attempt to commit an offence which he is physically incapable of committing; that question, however, can be dealt with when it arises.  The conviction for the felony must therefore be quashed; but the prisoner will of course undergo the sentence of imprisonment on the conviction for assault, as to which there is no objection." 
We are unaware of and neither have the researches of counsel revealed, any occasion in the following 120 years on which that issue was confronted by the court.  We are not however prepared to assume that such an occasion did not take place.  
24.	At common law no offence of attempt could be committed where it would have been impossible, even in theory, for the defendant to succeed in committing the full offence ‑ see Horton and Smith [1975] AC 476.  Since the enactment of the Criminal Attempts Act 1981, which came into force on 28th August 1981, a defendant may be convicted of an attempt to commit an offence whose full commission was impossible.  In the present case there can be no doubt that the jury's verdict implies that they were sure that with the intent to have sexual intercourse with T, without her consent, and knowing that it was seriously wrong to do so, the appellant did an act which was more than merely preparatory to sexual intercourse.  The issue which arises on the present facts is whether as a matter of law there was no such offence of rape by a boy under 14 and therefore no offence of attempted rape available to the jury as an alternative verdict.  Mr Smith's submission is that the legal presumption was that the appellant was physically incapable of sexual intercourse and therefore could not be guilty of the attempt.  
25.	Mrs Taylor submitted in writing that the presumption renders the completed physical act impossible for the purposes of the common law.  For that reason the facts are presumed to be such that the commission of the full offence is impossible.  However, section 1(2) of the Criminal Attempts Act 1981 expressly provides that a person may be guilty of attempting to commit an offence even though the facts are such that the commission of the full offence was impossible.  This case, she submits, is no different in principle from that of the pick pocket who attempts to pick a pocket which is empty.
26.	The competing submissions raise interesting questions of law which it is unnecessary for the court on the present occasion to resolve.  We consider that were it necessary to do so further researches into the origins of the common law presumption may well be required, together with a search of the cases since 1892.  Both counsel realistically acknowledge that the only relevance of a substituted conviction in the present case would be its impact upon the sentence ultimately to be imposed upon the appellant.  It is recognised on behalf of the respondent that the sentence of five years and four months imposed upon count 1 was designed to reflect the totality of the appellant's criminality in counts 1 to 8 inclusive and that the court has ample powers so to distribute the appropriate sentences as also to impose the appropriate sentence.  
27.	We shall therefore substitute for the conviction of rape in count 1 a conviction for indecent assault, contrary to section 14(1) of the Sexual Offences Act 1956.  That has been the conventional method of dealing with the situation which has arisen in the present appeal.
28.	We now turn therefore to the appeal against sentence and in so doing we shall consider also the appropriate sentence for the substituted conviction in count 1.  The first issue is whether it was properly open to the trial judge to make a finding that the appellant presented a significant risk for causing serious harm to the public by the commission of further specified offences.  We wish to pay tribute to the judge for the full and transparent explanation of her reasons for making the finding she did.  First, she noted that all the offences committed against L were specified offences.  Second, she noted the opinion of the pre‑sentence report writer.  Both children were vulnerable by reason of their ages and the distorted power relationship between each of them and the appellant.  Both had suffered enduring psychological injury.  The offences had taken place over a prolonged period of time.  In the case of L there had been a gross breach of familial trust.  In the opinion of the report writer:  
"... he poses as being a high risk of sexual recidivism, particularly if he has regular access to a victim."  
In further assessing risk, he said: 
"There is a high risk to female children of any age.  The risk is one of sexual abuse, short and long term psychological abuse and possible physical harm from rape.  Family members are particularly at risk and this may extend to any child under his care or with whom he has regular contact.  The two victims of his offences are particularly at risk."  
Third, the judge noted the threats which had been issued to both children to discourage them from reporting.  Thus the learned judge concluded that the appellant was a dangerous offender within the meaning of the statutory test.  In so doing, she expressly took account of the submissions made by Mr Smith on the appellant's behalf.  They are submissions repeated to this court in support of the appeal.  
29.	The offences against the appellant's sister were committed when he was aged between 11 and 14 years.  He then desisted from further offending for a period of over 20 years before the offences against his daughter commenced.  The offences committed against L did not involve penetration and while they were serious enough, they were not as serious as those committed against his sister.  The offending against his daughter also, as we have noted, appears to have ceased well before she made her complaint to her family, but it has to be accepted that she remained at risk living in the same household.  
30.	The judge concluded that notwithstanding these factors, the appellant, who was in denial, posed a significant risk of serious harm, not just to any junior female members of his own family, but to any young female he might come across in future.  We well understand that having listened to the evidence and observed the appellant during the course of the trial, the judge reached the conclusion she did.  However, our conclusion, based upon the objective factors to be observed in the evidence, is that while there was undoubtedly a risk of harm, it was not, having regard to the other means of protection available to the judge, a significant risk of serious harm.  The appellant would, on any view, be serving a substantial sentence of imprisonment.  When he was released conditions would be attached to his licence which would be designed to manage any remaining risk to the public.  The judge had the power, which he exercised, to impose a Sexual Offences Prevention Order of unlimited duration.  In our judgment, such risk as the appellant posed could adequately be contained by a determinate sentence of imprisonment.
31.	We therefore turn to the issue what length of determinate sentence was appropriate.  This was an unusual case.  There had been a campaign of sexual misconduct conducted by the appellant towards his infant sister while he himself was a child.  It was followed 20 years later by a lengthy period of gross sexual harassment against his own daughter.  An important consideration for the judge was the degree of harm which had resulted.  The judge described the impact of these offences on the victims in her sentencing remarks as follows:  
"In the course of her evidence [T] told the jury that she had decided never to speak of these things.  She said nothing as a child because you threatened to kill yourself or to kill her.  You said it would be her fault if you killed yourself and your mum and dad would be really sad.  You said she would go to prison and not you, all thoroughly frightening for a little girl.  Further, you told her she would be damaged goods and that nobody would ever want her.  She considered telling her best friend ... at school but she was frightened that [she] would not want to be friends any more or that [her] mum would not let [her] go out to play with her or would not let them go out together.  
In the most recent impact statement she speaks of the fact that she found it difficult to make friends and ... felt different from other children because of what was happening.  That not doing as she was told always resulted in something horrible happening and she found the whole thing terrifying.  In evidence and again in her recent statement she states that she never expected to speak of these things.  She knew it would rip your mother's world apart because of course her mother and your mother are the same lady and that lady is also [L's] grandmother.  It was clearly evident from your mother's enormous distress when giving her evidence how much it has also affected her.  
 [T] did not want her husband or her, your parents, to ever know about these things ...  
She describes the matter as changing her life forever and now that it has come to the surface, not only does she have to continue to live with what happened but she now knows her niece's experience to abuse, her husband knows what has happened, and this is now an enormous worry for the family."  
The judge then went on to describe the effect upon the appellant's daughter:  
"[L] too showed obvious distress and in the witness box and of course in her video interview with the police ... She could not bring herself to begin to talk about it and the first thing she said, 'I know my dad needs help and everything'.  Her evidence, too, was that you used to tell her not to say anything to her nan or grandad because you would get into trouble and be locked up and they would be upset.  You made her promise not to say anything and she too did not want to upset the family.  This child loved and trusted you, her father, her sole carer.  Indeed in her recent impact statement ... she states, 'I think I still love my dad but I cannot work out why he did these things that he did to me.  Maybe one day he will admit it and I will get to know why.'"  
32.	We appreciate that the judge so distributed her sentences between the counts of which the appellant had been convicted as to ensure that his overall criminality was reflected in the total sentence.  She considered that subject to the issue of risk on release, the total term which should be served in custody was not less than seven years.  We say that because the judge imposed two consecutive custodial terms.  First the minimum term of 42 months on count 12 and second, 64 months upon count 1.  As to the latter determinate sentence, the appellant was liable to serve a minimum period of two‑thirds of that sentence in custody, or 42 months, making 84 months or seven years in all ‑ the equivalent in modern terms of a determinate sentence of 14 years.  
33.	In our view, had it stood alone, the sentence of five years and four months' imprisonment upon count 1 for an offence of rape committed by an 11‑year‑old would have been excessive.  We shall impose for the substituted offence of indecent assault in count 1 a sentence of 12 months' imprisonment.  Nevertheless, knowing that what he was doing was seriously wrong, the appellant continued into his mid‑teens committing gross sexual acts against his sister, when she was aged 6, 7, 8 and 9 years.  We consider that the total sentence upon counts 1 to 8 should appropriately be four years' imprisonment.  
34.	As to the sentences in respect of the more recent offences against his daughter, the appellant was by then the father of the victim and himself a mature adult.  Those offences did not reach the seriousness of the offences committed against his sister, but his culpability was much greater.  Recognising that the minimum term imposed upon count 12 was designed to reflect all of the offending against his daughter, we conclude that the alternative determinate sentence of seven years' imprisonment was well deserved.  
35.	We agree with the learned judge that the sentences for each group of offences should be made consecutive to one another, making a determinate sentence of 11 years in all.  We reject Mr Smith's submission that a total sentence of seven years in any sense would reflect in total the appellant's criminality.
36.	We propose to achieve that result by imposing sentences of three years' imprisonment in respect of count 4, and four years' imprisonment upon count 5 in the indictment.  We have selected those counts because they represent gross sexual offending against a powerless young girl when the appellant was of an age to comprehend the enormity of his actions and of his threats.  We shall order that all sentences for counts 1 to 8 inclusive shall be concurrent with each other, making in respect of that group four years in all.  We shall order that the sentence on count 12 shall be seven years' imprisonment.  Accordingly, the sentence of IPP and its minimum term will be quashed.  All other sentences in that group will remain undisturbed.  All the sentences in counts 10 to 14 inclusive will be concurrent with each other, therefore making seven years, but consecutive to the four year sentence imposed upon counts 1 to 8, producing a total determinate sentence of 11 years' imprisonment.  
37.	Since we have allowed the appeal in respect of the indeterminate sentence, we have concluded that it was entirely appropriate to impose a Sexual Offences Prevention Order and Mr Smith has not sought to argue either that such an order would be inappropriate in the event that a determinate sentence was imposed, or that its terms were in any sense unnecessary.
38.	We would have interfered if the appeal had otherwise been dismissed because it seems to us that such an order would have been unnecessary if the appellant had been serving an indeterminate sentence.  To the extent that we have indicated therefore, the appeal is allowed.