No. 201704165 A1
Neutral Citation Number: [2017] EWCA Crim 2463
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Friday  3rd  November  2017

B e f o r e:

LORD  JUSTICE  SIMON

MR  JUSTICE  DOVE

and

THE  RECORDER  OF  PRESTON
(His Honour Judge Brown)
(Sitting as a Judge of the Court of Appeal Criminal Division)

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ATTORNEY  GENERAL'S  REFERENCE

UNDER  SECTION  36  OF

THE  CRIMINAL  JUSTICE  ACT  1988

R E G I N A
 
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GLYN  BARRINGTON  JONES

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Mr P Jarvis appeared on behalf of the Attorney General

Mr M McNiff appeared on behalf of the Offender 

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J U D G M E N T
LORD JUSTICE SIMON:
1.   Her Majesty's Attorney General seeks leave to refer to this court, under section 36 of the Criminal Justice Act 1988, sentences passed on the offender, who is now aged 57, as being unduly lenient.

2.  The sentences were passed on 22nd August 2017 in the Crown Court at Norwich in respect of seven counts on an indictment.  The offences were charges of indecent assault, contrary to the provisions of section 14(1) of the Sexual Offences Act 1956.

3.  The offender had earlier, on 26th April 2016, initially pleaded not guilty to each count on an indictment containing 13 counts.  However, in early August 2016, one month before a second trial listing, the defence approached the prosecution with an offer to plead guilty to some of the counts on a particular factual basis if the prosecution were willing not to proceed on the remaining counts.   The prosecution accepted this offer.

4.  The seven offences were committed between October 1979 and April 1996.  The indecent assaults took place on six girls, five of whom were under the age of 16 when they took place.  Most of the offending took place when the offender, who was born in July 1960, was a school teacher and the victims were pupils at the school where he taught.

5.  The offender made it clear to the victims that he was attracted to them.  He pressed his advances on them to the point where they permitted him to kiss them.  In respect of three of the victims, the conduct went further.  It included the offender groping their naked breasts, inserting his finger into their vaginas, and in the case on one victim, inserting his penis into her mouth.  The offender relied on the victims to keep his conduct secret, and they carried the burden of this secret into adulthood.

6.  The agreed factual basis of the offender's plea was as follows.  In count 1, the victim was "LM", who was about 14 at the time.  The offence took place between 7th October 1979 and 7th October 1981.  It consisted of the offender kissing her on the mouth.

7.  In counts 3 and 5, the victim was "VK", who was under 16 at the time.  The offences took place between 1st December 1989 and 31st January 1991.  They consisted of him kissing her on the mouth (count 3) and inserting his penis into her mouth (count 5).

8.  In count 7, the victim was "KS", who was 16 at the time.  The offending took place between 1st January 1992 and 31st August 1992.  It consisted of him inserting his fingers into her vagina.

9.  In count 8, the victim was "NJ", who was under 16 at the time.  The offence took place between 1st January 1992 and 31st August 1992.  It consisted of him kissing NJ on the mouth.

10.  In count 10, the victim was "LP", who was under 16 at the time.  The offence took place between 1st January 1993 and 26th March 1994.  It consisted of him touching her naked breasts and kissing her.

11.  In count 13, the victim was "NS", who was under 16 at the time.  The offence took place between 1st September 1995 and 30th April 1996.  It consisted of him kissing NS, touching her naked breasts and her vagina.

12.  For these offences the offender was sentenced by His Honour Judge Bate as follows: count 1 (LM, kissing her on the mouth), one month's imprisonment; count 3 (VK, kissing her on the mouth), three months' imprisonment, concurrent; count 5 (VK, inserting his penis into her mouth), two years and six months' imprisonment, consecutive; count 7 (KS, inserting his finger into her vagina), twelve months' imprisonment, consecutive; count 8 (NJ, kissing her on the mouth), three months' imprisonment, consecutive; count 10 (LP, touching her naked breasts and kissing her on the mouth), six months' imprisonment, concurrent with the sentence on count 8, but consecutive to the other counts (which was therefore effectively a consecutive sentence of three months); and count 13 (NS, kissing her, touching her naked breasts and her vagina), nine months' imprisonment, consecutive.  The total term was a sentence of five years' imprisonment.

13.  We turn to the facts in more detail.  We deal first with count 1.  LM was born in October 1966.  In the late 1970s and early 1980s she lived with her family on the lower floors of a large house in Plymouth.  The upper floors of the house were reserved for lodgers.  The offender and his wife at the time lodged in one of the upper rooms.  He was training to be a teacher.  LM had a soft spot for him.

14.  One day, when she was aged 13 or 14, and the offender was aged 19 or 20, she went up to his bedsit to deliver a message.  She was in her school uniform.  The offender and his wife were at home.  When the offender's wife was in the bedroom and he was alone with LM in the kitchen, he kissed her passionately on the lips and inserted his tongue into her mouth.  She knew that it was wrong, but accepted during her ABE interview with the police many years later that she may have wanted the offender to kiss her because she was attracted to him.  At the time, she did not tell anyone about what had happened.

15.  Counts 3 and 5 related to VK.  She was born in January 1975.  Between the ages of 12 and 15, she attended Lynn Grove High School.  When she was 13, the offender joined the school as a PE teacher.  He was in his late twenties at the time.  She got on well with him and soon became attracted to him.  At a school disco in late 1989 or early 1990, she slow danced with him.  This made her think that he was attracted to her as well.  Later, he left a message inside one of her notebooks in which he wrote that he wanted to make love to her.

16.  One lunchtime, when she was 14, VK found herself alone with him in the area outside his office.  He kissed her on the lips.  It was a long kiss (count 3).

17.  VK's mother owned a house in Bradwell which she rented out to tenants.  She employed the offender to decorate the house in his spare time and at weekends.  One day, when she was 15, VK went to the house when the offender was working there.  They went into the back bedroom.  They kissed passionately.  The offender then asked VK to perform oral sex on him.  She felt embarrassed and told the offender that she did not really want to do so.  He ejaculated in her mouth (count 5).

18.  That summer, VK met a boyfriend of her own age and so nothing else happened between her and the offender.  She knew that the sexual contact with him was wrong because she was only 15 and he was her teacher.

19.  Count 7 concerned KS.  She was born in September 1975.  She was one academic year behind VK at the school.  She was sporty and she came to know the offender well.  When she was 15, she was partnered with him in a school tennis tournament.  Afterwards he gave her a card thanking her for being his partner.  He signed the card with a kiss and also gave her some perfume.

20.  He started to make comments of a sexual nature both to KS and about her to others.  The boys in her year teased her about the offender's obvious attraction towards her.  She hated their jokes.  The offender kept pestering her to go out with him.  She was not attracted to him, but eventually she relented.  He took her out for a meal.  They went to a restaurant in Norwich, after which the offender drove her back to his house.  They went inside and lay down on the sofa together.  The offender slid his hand under her underwear and penetrated her vagina with his fingers.  She could feel his erect penis pressing against the side of her abdomen.  That was as far as it progressed.  It was her first sexual encounter.  She felt sick and angry about what had happened, but decided not to tell her family about it.

21.  Count 8 concerned NJ.  She was born in February 1978.  She, too, was a pupil at the school from 1990 onwards.  The offender was her form tutor.  He was very attentive towards her.  She felt that she was one of his favourites and developed a crush on him.  She was aware of rumours in the school that he fancied KS.

22.  In 1991 or 1992, when she was just 14, NJ went on a school ski-ing trip.  The offender was one of the members of staff who also went on the trip.  One evening, when she was feeling upset about being away from home, he took her to his room.  Moments later he started to kiss her passionately.  He inserted his tongue into her mouth.  She pulled away.  He said that he should not have kissed her.  He said that he did it because he had strong feelings for her.  He told her not to tell anyone about what he had done, otherwise he would get into trouble.

23.  Count 10 concerned LP.  She was born in April 1978.  She attended Hellesden High School in Norwich.  The offender began to work there as a PE teacher in September 1992.  When she was 15, he became her PE teacher.  He would gaze at her and comment on the size of her breasts.  He asked her if she wanted to meet up outside of school.  She was flattered but wary.  He persisted in asking her until she relented.  She agreed to meet him in town.  He turned up with a large bunch of white roses.  They walked around town for a while and then went to his car.  He drove her to a secluded area.  She did not want anything physical to happen, but she was happy to chat with him in the car.  When they reached the secluded area, the offender pulled over.  The atmosphere inside the car made her very uncomfortable.  The offender was excited and breathing heavily.   He said that he wanted to kiss her.  He leant across and kissed her passionately on the lips.  At the same time, he inserted his tongue into her mouth and ran his hands up the inside of her top so that he could fondle her naked breasts.  She could see through his trousers that he had an erection.  He asked her to get into the back of the car.  This frightened her because she was a virgin.  She became visibly upset and asked the offender to drive her home, which he did.

24.  Count 13 concerned NS.  She was born in February 1981.  She started at Hellesden High School in 1993, when she was aged 12.  She got on very well with the offender.  He flirted with her and she fancied him.  The offender said that she was pretty.  Sometimes he would drive her home.

25.  When she was aged 14 or 15, she went to Alton Towers on a school trip.  The offender was one of the teachers on the trip.  They went on a long flume ride together.  She sat between the offender's legs.  When the flume went through a series of tunnels, the offender kissed her passionately on the lips.  She described it as a "snog".  He put his hand under her top and felt he naked right breast.  He also put his hand down inside her knickers and touched her genitalia.  She allowed the offender to do this.  She liked the attention she received from him.  Looking back, she later realised how wrong his behaviour was.

26.  The offender was arrested and interviewed in November 2015.  He denied committing any offences against any of the victims.  When the interviewing officers referred to a number of letters written by him to KS, he declined to answer any further questions.  In a second interview in December, he continued to deny the offences in their entirety.

27.  In his basis of plea, the offender accepted that he had acted in breach of trust in relation to the offences charged in counts 3, 5, 7, 8, 10 and 13.  

28.  At the time of the sentencing exercise he had no criminal convictions, cautions, warnings or reprimands.

29.  There was no pre-sentence report.

30.  In his sentencing remarks, the judge described the effect of the offences on the victims as follows:

"The enduring impact on these mature ladies of being molested in this way as young teenage girls is movingly described in their own words.  It is a telling reflection of the pupil-teacher relationship that [VK] refers to you throughout in her victim personal statement as Mr Jones.  She recalls how you made her feel special, complimented her on her sporting skill and appeared interested and cared about her.  Such observations could be made about many fine teachers who have followed this honourable profession with distinction over the years.  However, for you it was a charade and a device.  Gaining in turn the confidence of [VK] and then similarly aged girls – other similarly aged girls – was the means by which you went on to exploit and abuse that relationship in the several ways described by the prosecution.  You relied on them to keep secret what you had done to them and they each bore that burden for many years, whilst you continued to lead an outwardly respectable life as a man of apparent good character.  In fact, as a consequence of your pleas to this indictment you had been a clandestine sex offender since the age of 19 when you were a trainee teacher at college in Plymouth."

31.  Prosecution and defence counsel submitted helpful sentencing notes for the judge which focused on Annex B to the Sentencing Council Definitive Guidelines on Sexual Offences.  As to counts 1, 3 and 8 (kissing LM, VK and NJ on the mouth when they were under 16), prosecution counsel submitted that the modern equivalent was sexual activity with a child, contrary to section 9 of the Sexual Offences Act 2003, where the maximum sentence is fourteen years' imprisonment, in contrast to the maximum sentence of two years' imprisonment on count 1 and ten years' imprisonment on counts 3 and 8.  The offences fell into category 3A, and so the starting point was six months' imprisonment, with a range of a high level community order to three years' custody.

32.  As to counts 10 and 13 (kissing LP and touching her naked breasts, kissing NS and touching her naked breasts and genitalia, when both victims were under 16), prosecution counsel submitted that section 9 of the 2003 Act was again the modern equivalent offence, but this time the offences fell into category 2A, with a starting point of three years' imprisonment and a range of two to six years.

33.  As to count 5 (penetrating VK's mouth with his penis when she was under 16), prosecution counsel submitted that section 9 of the 2003 Act was again the modern equivalent offence, but this time the offence fell into category 1A, with a starting point of five years' imprisonment, and a range of four to ten years.

34.  As to count 7 (penetrating KS's vagina with his finger when she was 16), prosecution counsel submitted that the modern equivalent offence was abuse of position of trust, sexual activity with a child, contrary to section 16 of the 2003 Act, where the maximum sentence is five years' imprisonment – so fully one-half of the maximum sentence for the offence in count 7.  The offence fell into category 1A, with a starting point of 18 months' imprisonment, and a range of one to two years.

35.  Defence counsel submitted that the modern equivalent offence for all of the counts in the indictment was abuse of a position of trust, sexual activity with a child, contrary to section 16 of the 2003 Act; but in the alternative, if the modern equivalent was section 9, the culpability for each offence was B and not A.

36.  In his sentencing remarks, the judge noted that the offender fell to be sentenced for seven offences of indecent assault committed against six victims, five of whom were below the age of 16 when the offences occurred.  The offending took place between 1979 and 1996.  All but the first offence (count 1) were committed when the offender occupied a position of trust with regard to the victims and their welfare.

37.  The judge also considered the victim personal statements.  A common theme was that the offender made the victims feel special.  He gained their confidence and then exploited them to fulfil his sexual desires.  He relied on them to keep his actions a secret, which they all did for many years.

38.  In addition to the definitive guideline for sexual offences, the judge also considered R v Clifford [2014] EWCA Crim 2014 and R v Forbes [2016] EWCA Crim 138.  He agreed that the modern equivalent offences for counts 1, 3, 5, 8, 10 and 13 were offences contrary to section 9 of the 2003 Act (sexual activity with a child).  But he also recognised that, so far as counts 3, 5, 8, 10 and 13 were concerned, the maximum sentence for the section 9 offence (fourteen years' imprisonment) was greater than the maximum sentence for the offence of indecent assault under section 14 of the 1956 Act (ten years' imprisonment).  It followed that a degree of measured reference to the guideline was needed.  Section 16 of the 2003 Act (abuse of a position of trust with a child, sexual activity) was the appropriate modern equivalent for count 7, but there the maximum sentence for the current offence (five years' imprisonment) was significantly lower than the maximum sentence for indecent assault.

39.  The judge reminded himself that the definitive guideline was not to be applied mechanistically.  Matters of aggravation and mitigation needed to be taken into account, as did the principle of totality.  Weighing all of these matters in the balance, he decided that the overall sentence should be one of five years' imprisonment, with the individual sentences as set out previously in this judgment.

40.  Mr Jarvis for the Attorney General submits that the overall sentence was unduly lenient.  Beginning with the most serious offence (count 5), the modern equivalent was section 9 of the 2003 Act.  Culpability was A for three reasons: first, there was grooming; secondly, there was an abuse of trust; and thirdly, there was a significant disparity in age (VK was 13, and the offender was in his late twenties).  The starting point for a category 1A offence is five years' imprisonment, with a range of four to ten years.  The presence of multiple culpability A factors should have driven that sentence up from the starting point, before taking into account matters of aggravation.  As to the aggravating factors, there was ejaculation; and the offending had a clear and continuing impact on VK, who was vulnerable at the time.  As to mitigation, the offender had no previous convictions.  There was little evidence of remorse.  Mr Jarvis accepts that there then needed to be a reduction to allow for the fact that the section 14 offence in count 5 had a lower maximum sentence than the section 9 offence.  Credit for the offender's plea of guilty could realistically have been no more than about fifteen per cent, given that it was entered only a month before the trial, and a great many months after his initial arraignment.   That would have reduced the sentence yet further, but the final sentence on that count should still have been considerably higher than the actual sentence of two and a half years' imprisonment that was imposed on count 5.  If the overall sentence of five years' imprisonment for seven offences committed against six victims over a period of seventeen years by an offender who occupied a position of trust in respect of all but one of them was in the region of the sentence that should have been imposed on count 5 alone, then the obvious submission was that the final sentence did not adequately reflect the full criminality.  The sentence of five years' imprisonment was unduly lenient.

41.  For the offender, Mr McNiff submits: first, that neither the sentences imposed, nor the approach adopted by the judge offended the principles for sentencing historic sexual offences, as set out in Annex B of the Sentencing Council Guidelines (at page 155).  The experienced sentencing judge plainly had these principles in mind.  He rightly identified count 5 as the most serious offence (the insertion of the offender's penis into VK's mouth).  He then identified how the offences would be categorised within the guidelines for a section 9 offence and concluded that it would be category 1A, with a starting point of five years' imprisonment and a range of four to ten years.  Secondly, he recognised that a measured adjustment needed to be made to give effect to the fact that the maximum for the offence under section 9 was fourteen years' imprisonment, and for the section 14 was ten years' imprisonment.  This required an allowance to be made in reduction of the sentence.  Thirdly, although cases of particular gravity due to more than one feature of aggravation may merit an upward adjustment from the starting point before any further adjustment is made for aggravating and mitigating factors, Mr McNiff submitted that they will not necessarily do so.  The judge recognised the potential for overlap between disparity of age and the linked factor of abuse of trust.  Fourthly, the judge rightly eschewed a mechanistic or formulaic approach and accordingly reached sentences on count 5 (as well as the other counts, each of which were single incidents) which met the justice of the case.  He acknowledged that the total sentence of five years' imprisonment might be regarded as "generous and merciful", but it was not, he submitted, unduly lenient. The important principle, which it was necessary to apply, was the principle of totality, which was not one that was addressed in the Reference.  He recognised that the offender had offended over a considerable period (seventeen years or so); but, although he plainly could not be advanced as a man of good character, he had since 1996 not committed any further offences and had conducted himself as a successful and experienced teacher.  He had left the country for Australia twenty years ago and the effect of these charges had been both a catastrophic loss of character and, a loss of family support.  He had been investigated since 2015.  He had voluntarily returned to the United Kingdom.  There had been an aborted trial fixture, which resulted in a further eight months' delay.  Mr McNiff further drew attention to an unusual feature of the case, which he had also drawn to the attention of the sentencing judge, that the offender would not be able to leave the country during the licence period which, he submitted, was a material matter to consider.

42.  Finally, Mr McNiff submits that the judge rightly gave appropriate credit for the offender's guilty plea.

43.  In our view, the starting point is to recognise that most of these offences were serial crimes against young girls by someone who was in a position of authority which required him to care for them and not to abuse them.  That was a matter fully recognised by this experienced judge.  He referred to the sentencing principles which apply to historic sexual offences, which necessarily require the exercise of a considerable measure of judgment.  That is a judgement which is reposed in judges and recorders in the Crown Court, subject to a right to appeal against a sentence which is manifestly excessive and a right to review a sentence that is unduly lenient.  

44.  The judge here had the advantage of written submissions from both prosecution and defence, which he took into account.  He rejected, for example, the defence submission that the relevant modern equivalent of the section 14 offences was not section 9, but section 16 of the Sexual Offences Act 2003, with its lower maximum sentence.

45.  The judge's sentencing remarks are clear and to the point, and they were supplemented by fuller, written sentencing remarks which were uploaded to the digital file.  These fuller remarks set out in more detail the authorities to which the judge properly had regard.

46.  The question for this court is whether, despite this, he arrived at an overall sentence that can properly be characterised as unduly lenient.  Mr Jarvis rightly recognised that this was a difficult sentencing exercise.  He focused on the most serious offence (count 5, penile penetration of the mouth).  This was plainly a category 1 offence within the meaning of the Sentencing Council Guidelines for section 9 offences in terms of harm.  We recognise also that there were elements of abuse of trust, grooming and disparity of age that placed the offending within category A culpability, as the judge also recognised.

47.  However, these were matters of aggravation which overlapped and we are not persuaded that they called for an uplift within the category range.  At this point in the sentencing exercise, the judge had to bear in mind the measured adjustment to take into account the different maxima for the section 14 and section 9 offences – ten and fourteen years' imprisonment respectively – before considering matters of mitigation and the credit due for the offender's guilty plea.

48.  On this basis, if count 5 had been the only offence, we would have expected the sentence to be not less than three and a half years' imprisonment, even with the powerful mitigation to which we have referred.  However, it was not the only offence.  The judge had to consider the issue of totality in relation to sentences which are not the focus, or at least not the main focus, of the Attorney General's criticisms. A number of other sentences were ordered to be served consecutively.  They were in respect of separate incidents involving separate victims; and the judge gave effect to the important principle of totality while sentencing for the overall offending.

49.  Looking at the overall sentence, we have concluded that it was a lenient sentence, but that it should not be characterised as unduly lenient.  

50.  Accordingly, we grant leave to the Attorney General, but in the circumstances we will not interfere with these sentences.