No. 2017/04614/A42

Neutral Citation Number: [2017] EWCA Crim 2509
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Thursday  14th  December  2017

B e f o r e:

LORD  JUSTICE  SIMON
	
MRS  JUSTICE  YIP  DBE
	
and

HIS  HONOUR   JUDGE  LUCRAFT  QC
(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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J  D

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Mr P Jarvis appeared on behalf of the Attorney General

Mr M Saffman (Solicitor Advocate) appeared on behalf of the Offender

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J U D G M E N T
LORD JUSTICE SIMON:
1.   The provisions of the Sexual Offences (Amendment) Act 1992 apply to the offences in this case.  Under these provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence.

2.  This is an application by Her Majesty's Solicitor General under section 36 of the Criminal Justice Act 1988 for leave to refer to this court a sentence which he considers to be unduly lenient.  We grant leave.

3.  On 18th August 2017, in the Crown Court at Manchester, following a trial at which he had refused to appear, the applicant (aged 26) was convicted on a number of counts: counts 1 and 2 were charges of sexual assault of a child under the age of 13, contrary to section 7(1) of the Sexual Offences Act 2003; and counts 3, 4, 5 and 6 were charges of sexual assault, contrary to section 3 of the 2003 Act.  The victim in each case was "NC".  Counts 1 and 2 covered the period 31st January 2010 to 30th January 2011.  It involved the sexual touching of NC when she was 12.  Counts 3 and 4 were charges of Sexual assault between 31st January 2011 and 30th January 2012; and counts 5 and 6 were charges of sexual assaults between 31st January 2012 and 30th January 2013.  Count 7 was a charge of rape, contrary to section 1(1) of the 2003 Act.  The particulars were that on 16th May 2016 the offender had vaginally raped "CC" (NC's younger sister).

4.  The sentences passed by Ms Recorder Goode were as follows: on counts 1 and 2, 12 months' imprisonment concurrent; on counts 3-6, two years' imprisonment, concurrent with each other and with the sentences passed on counts and 2; and on count 7, a term of five years' imprisonment, concurrent.  The overall term was, therefore, one of five years' imprisonment.

5.  NC was born in January 1998; her younger sister, CC, in August 1999.  The victims and the offender were cousins.  The offender is six years and ten months older than NC, and eight years and five months older than CC.  When he was 11 years old, the offender moved into the victims' home to live with them, their parents and their younger siblings.  His aunt and uncle welcomed him as a member of the family.  The victims and their parents saw him as an older brother and son.

6.  When NC was 12 years old and the offender was 18 or 19, he started to sexually assault her.  The first assault happened when her mother left her alone with the offender in the flat where he was living at the time.  They were sitting on the sofa watching television.  The offender laid NC down on the couch and started to run his hands up and down her body over her clothing.  He touched the entrance to her vagina over her clothing and asked her if she liked it.  He then tried to get her to touch his penis, but she pulled her hand away.

7.  This abuse went on for about three years, which was the period covered by counts 1 to 6 on the indictment.  When she was aged 13 and 14, the abuse progressed to touching the entrance to her vagina under her clothing.  This would happen in the kitchen in the family home at a time when only NC and the offender were awake.

8.  NC told CC about the abuse, and CC told their mother, who insisted on driving them both to the police station.  On the way there, NC told her mother that she was lying.  This upset her mother who decided not to make a complaint to the police.

9.  In July 2013 the offender was sent to prison for committing offences of robbery.  He was released from that sentence in August 2015 and returned to live with the victims.  

10.  In May 2016, CC was 16 and the offender was 25.  He had a job.  One day he returned home from work and spoke to CC in her bedroom.  He sat down on the bed and then grabbed both CC's breasts and started to rub them over her clothing.  She told him to stop.  He ignored her.  He then grabbed her bottom.  This caused her to fall back on the bed.  He stood up and pulled down his trousers to expose his erect penis.  He took off CC's leggings and knickers.  He climbed onto the bed and guided his penis towards her vagina.  She struggled, but he was stronger than she and eventually he was able to force his penis into her vagina.  He raped her.  He stopped after about five minutes.  

11.  He got up and put his clothes back on.  He then left.  CC had a shower and changed her clothes.  She then left the house to gather her thoughts, before returning.  When she arrived back home she locked herself in her bedroom and stayed there all night.

12.  A few days later there was an exchange of messages online between CC and the offender about the rape.  During those messages the offender apologised to CC for what he had done.  He offered to go away and never return if she agreed not to report the matter to the police.  He then disappeared.  There were reports that he had been seen in the local area, but he did not return to the victims' home.

13.  On 12th June 2016 the offences were reported to the police.  The offender was arrested and interviewed on 15th July.  He put forward a prepared statement in which he denied committing any sexual assaults against the victims.  He answered "no comment" to all further questions.  He was subsequently charged.

14.  On 13th July 2016, the offender committed offences of robbery and assault with intent to rob.  He pleaded guilty to those offences on 27th February 2017 and was sentenced to six years' imprisonment, with an extension period of two years, concurrent on each offence, pursuant to section 226A of the Criminal Justice Act 2003.  

15.  On 7th March 2017, he appeared at the Greater Manchester Magistrates' Court on the charges of committing sexual offences against NC and CC.  From there the case was committed to the Crown Court at Manchester.

16.  At his plea and trial preparation hearing on 15th May the offender pleaded not guilty to the seven counts on the indictment.  He declined to be present for his trial, and so the case proceeded against him in his absence.  

17.  He had five previous convictions from three previous court appearances.  His first conviction was for an offence of robbery committed in February 2008, when he was aged 16.  He pleaded guilty and received a sentence of three years' detention in a young offender institution.  In April 2013, when he was 22, he committed offences of robbery and possession of an offensive weapon in public, for which he received a total sentence of 56 months' imprisonment.  His last convictions were in February 2017 for the offences in respect of which he received the extended sentence.

18.  CC made a victim personal statement.  She described the offender and herself as being very close before the rape.  She saw him as a big brother.  He was protective of her and NC.  During the rape she was in a state of shock.  She could not believe what he was doing and afterwards she did not know what to do.  Emotionally she was "all over the place".  She would cry uncontrollably.  She did not tell her mother about what had happened, because she was terrified of the impact it would have on the family.  When she finally told her, "it felt like a real weight had been lifted from [her] shoulders".  She now feels anger towards the offender.  What happened had completely changed her perspective of sex.  She had started to perform badly at school and had to re-sit a number of exams.  The police investigation had consumed her life and she looks forward to the time when it is all over.

19.  NC also made a victim personal statement.  When the abuse started she knew that it was not right, but she did not appreciate just how seriously wrong it was.  As time went by, she came to realise that the offender was sexually abusing her.  As he was older than her and lived in the same house, she felt unable to speak to anyone about the abuse.  She was intimidated by him and felt that there was no escape.  She no longer felt safe in her own home.  When she became aware that the offender had raped CC, she felt anger and guilt that she had not spoken up sooner.  When she reported the abuse to the police, this caused all the memories to come flooding back.  The process of assisting with the investigation took a sizeable emotional toll on her.

20.  When it came to passing sentence, the Recorder focused on the rape offence.  She concluded that it was category 3 harm and category A culpability in view of the abuse of trust, with a starting point of seven years' custody and a category range of six to nine.  

21.  Mr Jarvis, on behalf of the Solicitor General, very properly recognises that the Recorder was in error in her assessment, since she regarded breach of trust as an aggravating factor in the sexual assault offences, with the possible exception of counts 1 and 2.  R v Forbes [2017] 1 WLR 53 makes clear that familial sexual offences by an older member of a family against a younger member of a family do not, for that reason alone, involve a breach of trust.  We accept that, serious as these offences were, they were not marked by the aggravation of a breach of trust.

22.  Mr Jarvis submits that the count 7 offence was properly a category 3B offence, with a starting point of five years' custody and a range of four to seven years.  The offence was aggravated by the fact that it occurred in the home that CC shared with the offender, by the steps taken to prevent her reporting the offence, and by the impact of the offence on her.  There was no real mitigation.

23.  He makes a similar point on abuse of trust in relation to the charges of sexual assault (counts 3-6).  They were category 2B cases – category B harm (touching naked genitalia), but category 2 culpability, without an abuse of trust.  For a single offence, the starting point would be a term of one year's custody.  However, he submits that, viewed overall, the offending involved two victims, and the offences against NC were committed over a period of three years.  On this basis the sentence on count 7 should have been a term of six years' imprisonment, with the sentences on counts 3-6 justifying a consecutive sentence of two years' imprisonment, taking into account that there was also the section 7(1) offending in counts 1 and 2.  

24.  It is clear from the sentencing remarks that the Recorder (albeit by a different and impermissible route due to her view about abuse of trust) concluded that the appropriate sentences were terms of six years' imprisonment on count 7, twelve months on counts 1 and 2, and two years on counts 3-6, the sentences on counts 1-6 to be served concurrently with each other, but consecutively to the six year sentence on count 7 – a total of eight years' imprisonment.

25.  The reasons why she did not impose such a sentence was that the offender had been sentenced to an extended sentence of six years, with a two year extension period, for the offences of robbery and assault with intent in February 2017; and her understanding of the effect of the decision of this court in R v Hibbert [2015] 2 Cr App R(S) 15.  On this basis the Recorder felt compelled to reflect the change in the offender's release regime when deciding on the final length of the custodial sentence she imposed.  Accordingly, she reduced the overall sentence from eight to five years in the way we have described.  Mr Jarvis submits that this was an error of principle and resulted in an unduly lenient sentence.

26.  In Hibbert, the offender had been sentenced to an extended sentence of 16 years, comprising a custodial term of twelve years and nine months and an extended licence period of three years and three months.  After that sentence had been imposed, he was convicted and sentenced to a determinate time of four years' imprisonment for a number of drug offences.  The Court of Appeal was not critical of the length of the determinate sentence on its own, nor of the decision to order that it should run consecutively to the extended sentence.  The appellant in Hibbert was only eligible for release once he had served two-thirds of the custodial term (eight years and six months).  If the Parole Board concluded that he remained a danger to the public, he could be required to serve the entire term of twelve years and nine months' imprisonment before being released.  The concern expressed by the appellant was that, because the determinate sentence was ordered to run consecutively to the extended sentence, there was a danger that the determinate sentence would only begin once the Parole Board had determined that the appellant was safe to be released.  If the Parole Board decided not to order the appellant's release, then in theory he could serve twelve years and nine months in custody, and then have to serve a further two years (representing the custodial element of the four year determinate sentence) before he could be released on licence.  That, it was submitted, could lead to an overall sentence that was manifestly excessive.

27.  The court allowed the appeal, but not to the extent that it reduced the sentence imposed in respect of the drugs offence.  The court held that in the appellant's case the sentence imposed upon him for the drugs offences was entirely lawful and perfectly understandable.  The effect of it was that the appellant would become eligible to be released on licence after serving ten years and six months' imprisonment.  The court suggested that, in future, sentencing judges should make it clear how long a defendant would have to serve before becoming eligible for release on licence.  

28.  Mr Jarvis submits that the case of Hibbert does not stand as authority for the proposition that where a determinate sentence is ordered to run consecutively to an extended sentence, the length of the determinate term should be reduced in recognition of the release regime; quite the opposite.  In Hibbert the court said at [7] that, in general, the regime for release is irrelevant when it comes to determining what the length of a custodial sentence should be.  

29.  In the offender's case the effect of the sentence imposed by the Recorder was that the offender would serve six years and six months in custody before he could apply for release, that period comprising two-thirds of the custodial period of the extended sentence (four years), plus one-half of the determinate sentence (two years and six months).  To the extent that the learned Recorder felt compelled to reduce the sentence for the sexual offences from eight years' imprisonment to five years' imprisonment, she was, Mr Jarvis submits, in error.

30.  He accepts that the Recorder had to consider whether the total custodial period that the offender would have to serve before he could be considered for release (on this basis eight years) was just and proportionate to all of the offending, consisting of one robbery, one assault with intent to rob, one rape, and six sexual assaults.  But in this case there was no reason why such a term should be considered disproportionate, and there was no justification for reducing the length of the consecutive determinate sentence.  To this extent, the consecutive sentence of five years' imprisonment was unduly lenient.

31.  For the offender, Mr Saffman submits that each of the sentences was within the relevant guidelines; that the sentence for the rape fell within category 3B, with a starting point of five years' custody, and a range of four to seven years, and that was the sentence that was passed by the Recorder on count 7.  So far as totality is concerned, he refers to the guidelines, and submits that the court should reflect upon the total sentence before an offender is considered for release.  A reduction, he submits, is envisaged both by the guidelines and by the case of Hibbert to take into account the totality of the sentences.  Finally, he submits that the Recorder had conducted the trial and was in a good position to form a view about the seriousness of the offences.  That final submission is perhaps undercut by the Recorder’s view that in fact the overall offending justified a sentence of eight years' imprisonment, rather than five years.  

32.  In our view, the Solicitor General's reasoning and conclusions are correct.  Leaving aside her view about what she regarded as breaches of trust, the Recorder's initial approach to sentencing was correct.  These were serious offences against two victims in their own home by someone who was regarded as a brother.  The abuse of NC took place over a protracted period and fully justified an overall sentence of two years' imprisonment for the crimes committed against her.  The rape of CC was sudden and deeply shocking to its victim, and was aggravated by the factors we have identified.  In our view, the appropriate sentence for this offence was a term of six years' imprisonment, to run consecutively to the sentence of two years' imprisonment for the offences against NC.

33.  The question then is whether the total custodial period that the offender will have to serve before he is considered for release (eight years: four years for the robbery offences and four years for the sexual offending) is just and proportionate to the totality of the offending.  In our view, it is.  These were different, serious offences, committed at different times and with different victims.
34.  It follows that, in our view, the sentences that were actually passed were unduly lenient.  We will therefore order that the sentences of twelve months' imprisonment on counts 1 and 2, and the sentences of two years' imprisonment on counts 3 and 6 shall be served concurrently with each other.  But the sentence on count 7 will be increased to six years' imprisonment, which will be served consecutively to the sentences on counts 1 to 6.  The total term will, therefore, be a period of eight years' imprisonment.  That term will run consecutively to the sentence which the offender is currently serving.

35.  The imposition of the victim surcharge order imposed in this case was unlawful since the offences charged in the indictment were committed between 31st January 2010 and 16th May 2016.  Accordingly, we quash the victim surcharge order.