Neutral Citation Number: [2015] EWCA Crim 1501
Case No.: 2015/2250/A8 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand 
London, WC2A 2LL 

Date: Thursday, 6 August 2015

B e f o r e: 

THE VICE PRESIDENT
LADY JUSTICE HALLETT DBE 
 
MR JUSTICE JEREMY BAKER 
 
MR JUSTICE GOSS 
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R E G I N A 

V 

G.B. 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Mr C Falk appeared on behalf of the Appellant

The Crown did not appear and was not represented
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J U D G M E N T 
1.	MR JUSTICE GOSS:  On 15th May 2015 in the Crown Court at Wood Green, following earlier pleas of guilty entered on 13th April 2015, the appellant was sentenced to 15 months' imprisonment for one offence of incest, contrary to section 10(1) of the Sexual Offences Act 1956 and to concurrent sentences of eight months' imprisonment for two offences of indecent assault, contrary to section 14(1) of the same Act.  He now appeals with the permission of the single judge against those sentences.  
2.	Having been convicted of an offence listed in Schedule 3 to the Sexual Offences Act 2003, the appellant was required to comply with the notification provisions of Part 2 of that Act for the appropriate period and as a result of his conviction of an offence specified in the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009 he will also be included in the relevant list by the Independent Safeguarding Authority.
3.	The anonymity provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence.  No matter likely to lead to the victim's identity shall be published during her lifetime and this judgment should be anonymised accordingly.
4.	The appellant is now 68 years of age.  The complainant, MB, is his sister.  She is 15 months younger than him.  As children, they lived with their parents and two younger siblings in a two room apartment, all six of the family sleeping in the same bedroom.  The family was uneducated and of limited means.  It is common ground that the children would witness their parents having sex.  
5.	When the appellant was 14, and she was 13, he started sexually abusing his sister.  He would lift her bedsheets and would reach under the covers, touch her between her legs, including the outside of her vagina, and insert his fingers inside her vagina.  She was frightened to cry out and wake the family.  That abuse, the offences charged as indecent assault, lasted for a period of about six months and ended when they moved home and she got her own bedroom.  She did not tell her mother about what had happened.  She thought her mother preferred the appellant and that she would not be believed and be told off. 
6.	Subsequently, when he was 15 and she was 14 years old, the appellant committed the offence of incest.  He came home one evening from work in his overalls, having just left school and was working in a local garage as a trainee mechanic.  He went into her bedroom and told her to lie on her bed on her side, not to make a sound or move and to lift her leg.  When she did, he had sexual intercourse.  He did not ejaculate inside her vagina.  The incident ended with him throwing her a £1 note.  Again, she did not tell her mother because she feared that she would not be believed.  Her father left home in about 1968 and both parents have since died.
7.	The complainant has had a troubled adult life suffering from depression, self harming, attempting to take her life and blaming the appellant's actions for the breakdown of three of her marriages.  When she was in her forties she told her mother what had happened.  In 2008 she travelled from her home in South West England to confront the appellant in his home.  She recorded what was said and asked him to apologise for what he had done.  There were some admissions from the appellant and an apology.  She eventually reported the matter to the police in 2013.  When interviewed, the appellant made partial admissions.
8.	The appellant was 67 years of age when sentenced.  The judge did not accept his mitigation that he did not realise that what he was doing was wrong.  It was, said the judge, natural instinct not to have any kind of relationship with one's immediate brothers and sisters.  Neither did the court accept as mitigation that he undoubtedly copied what he overheard and oversaw his parents do.  Even in the early sixties, said the judge, people knew what was right and wrong, children included.
9.	He referred to the appellant's plea of guilty and entitlement to full credit, thereby sparing his sister the terrible ordeal of giving evidence, and the impact the offences had had on her in terms of a lifelong feeling of isolation and that she was to blame, not having the courage to tell anyone what had happened.  She had had support from the appellant in her life, but it did not stop her feeling as she had.  
10.	The judge assessed the appellant as not being a risk to anyone, having not committed any crime for over 40 years and having glowing testimonials from family and friends.
11.	The judge commented that the current sentencing guidelines were not entirely apt because of the enormous age of the case.  He referred to the definitive guideline for an adult offender wherein a category 1B case, which counsel agreed this was, identified a starting point of three‑and‑a‑half years' imprisonment and a range from two‑and‑a‑half to five years for the incest offence and observed that, after a trial, it would have been in the region of four years' imprisonment.  It was necessary, said the judge, to consider the legislation that existed back in the early 1960s and the sentencing climate at those times.  The appellant was young at the time, 14 or 15 years old, and she was even younger, 13 or 14.  She did not resist his advances but in no way did that mitigate what happened.
12.	The court did not consider it would be right to suspend any sentence of imprisonment as not only was it a question of what was right for the appellant, but also it was a question of doing what was right by the public and the community, as well as what was right for the complainant.  
13.	The appellant is now 68 years of age and of positive good character.  Nine letters from his family, including the complainant's daughter whom he looked after at the complainant's request when she was 18, spoke of his positive influence, devotion, generosity and kindness to others.  He has supported the whole family, including the complainant, financially.  He paid for a wedding and took her on family holidays.  He was full of remorse for his actions as a teenager.
14.	The grounds of appeal as originally advanced were that the sentence was wrong in principle on the grounds of the appellant's current age and the fact that the offences were committed 53 years ago when he was aged 14 to 15 and he had thereafter lived an industrious and blameless life.  Complaint was also made that the judge failed to have sufficient regard to the appellant being just as much a child as the victim and that his behaviour had undoubtedly been influenced by what he had observed his parents doing.  It was also submitted that the judge gave too much weight to the victim impact statement at the expense of the mitigation and that too much reliance was placed on current guidelines which, given the delay and youth of the appellant, were not really appropriate.
15.	The court has to assess the culpability of the offender and the harm caused by his offences, having particular regard to modern sentencing guidelines and consider all material facts relating to the offender since the offences.  The relevant Definitive Guideline of the Sentencing Council directs reference to Part 7 of the original Sentencing Guidelines Council Guidelines in relation to sentencing young offenders for offences with a lower statutory maximum sentence under the Sexual Offences Act 2003.  Regrettably, the judge was not referred to this part of the guideline.  Instead, he considered the guideline for adult offenders.  All the offences for which the appellant fell to be sentenced in this case were contrary to the Sexual Offences Act 1956.  The statutory maximum sentences at the time were seven years' custody for the offence of incest and two years' custody for the offence of indecent assault, regardless of the age of the offender.  The modern equivalent offences would be contrary to section 25 of the Sexual Offences Act 2003, sexual activity with a child family member, to which section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 applies, setting a maximum sentence for an offender aged under 18 at five years' custody.
16.	Part 7 of the Sentencing Guidelines Council provides a starting point of a Detention and Training Order of 18 months for a first‑time offender who pleaded not guilty for an offence involving penetration where one or more of the aggravating features is present, with a range of a Detention and Training Order of 6 to 24 months.  In cases in which there are no aggravating features, the starting point is a community order with a range of an appropriate non‑custodial sentence.  
17.	In relation to the starting point, the Guideline provides that: "for younger offenders [that is under 17], a court should consider whether a lower starting point is justified in recognition of the offender's age and maturity."
18.	None of the aggravating features referred to in the guideline were present in this case.  However, the assaults were part of a series of such offences which is an aggravating factor.  The identified mitigating factor of the small disparity in age between the victim and the offender was present.
19.	No reference was made at the sentencing hearing to this guideline.  In this respect the judge was significantly misled.  Thus, the starting point may not have been three‑and‑a‑half years' imprisonment as he assumed.  The Crown Prosecution Service, to whom we have given the opportunity to make submissions, agree.  Moreover, whenever sentencing a youth pursuant to section 41(1) of the Children and Young Persons Act 1933 and the Definitive Guideline of the Sentencing Council's Overarching Principles on Sentencing Youths, regard has to be had to the welfare of the offender.  At 1.3 of that guideline a sentencing court is reminded that it must be aware of: 
i.	"obligations under a range of international conventions which emphasise the importance of avoiding 'criminalisation' of young people whilst ensuring that they are held responsible for their actions and, where possible, take part in repairing the damage that they have caused. This includes recognition of the damage caused to the victims and understanding by the young person that the deed was not acceptable. Within a system that provides for both the acknowledgement of guilt and sanctions which rehabilitate, the intention is to establish responsibility and, at the same time, to promote reintegration rather than to impose retribution." 
20.	The appellant was not, of course, being sentenced as a 15‑year‑old youth.  It is necessarily artificial for a court to put itself directly into the position of sentencing an offender who was a young teenager at the time of the offence but is over 50 years older at the time of sentence.  However, the court must do its best.  It is common ground that if these events occurred and were brought to the attention of the authorities today, in the absence of aggravating features of the kind referred to in the guidelines, a 15‑year‑old boy who offended in this way might well be made the subject of a non‑custodial sentence in order to educate, repair damage and effect rehabilitation rather than to impose retribution.  
21.	We must ask ourselves therefore whether, on the facts here, the judge was justified in imposing a far harsher sentence on this appellant than would be imposed if he were a 15‑year‑old boy.  We note that this is not a case where the appellant's behaviour has added to the complainant's reasons for not revealing what had happened, over and above the natural reluctance of a victim of a sexual assault to come forward.  Further, as an adult, he has led an honest and industrious life for 50 years.  He has been of considerable assistance to all his family, including the complainant and her immediate family.  He is remorseful.  He has acknowledged what he did and he has been punished.  In our judgment, as is conceded by the Crown Prosecution Service, bearing in mind all the circumstances, it would be wrong in principle to impose an immediate custodial sentence on this appellant.  
22.	In reaching this conclusion we do not overlook the substantial harm suffered by the complainant.  We hope that she may have derived some comfort from her brother's belated acknowledgement of his behaviour.  Accordingly, we allow the appeal and quash the sentences passed in the lower court.  
23.	LADY JUSTICE HALLETT:  Mr B, what we intend to do is impose a community penalty with the least onerous conditions because you have already served 11 weeks, as we understand it.  Therefore the community penalty will be a penalty for three months on each count concurrent and there will be a condition of residence at the address you gave us earlier for one week.  The liaison probation officer in this court is going to make sure that the authorities where you are detained understand, but what that means is you are going to be released immediately, subject to a community order with a condition of residence of one week.  There will be a notification requirement for five years.