Neutral Citation Number: [2018] EWCA Crim 2066
Case No: 201802961/A4 
IN THE COURT OF APPEAL
CRIMINAL DIVISION

REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988 

Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Tuesday, 18 September 2018 
 
B e f o r e:

LORD JUSTICE DAVIS

MRS JUSTICE SIMLER DBE 

MR JUSTICE DOVE 
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R E G I N A 
v 
ANTONIO LAWRIE 
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Computer Aided Transcript of the Stenograph Notes of 
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(Official Shorthand Writers to the Court)
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Miss K Broome appeared on behalf of the Attorney General

Mr J Swain appeared on behalf of the Offender
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J U D G M E N T (Approved)
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LORD JUSTICE DAVIS:  
1.	This is an application on behalf of Her Majesty's Solicitor General seeking leave to refer a sentence on the ground that it is unduly lenient.  We grant leave.
2.	The position is this.  The offender is a man called Antonio Lawrie.  He is aged 22, having been born on 22 January 1996.  Following a trial at the Crown Court sitting at Southampton before His Honour Judge Burrell QC and a jury, the offender was, on 15 March 2018, convicted of seven counts of sexual assault of a child under the age of 13, contrary to section 1 of the Sexual Offences Act 2003.  Count 7 had in terms been charged as a multiple incident count and alleged conduct on no fewer than 10 occasions.
3.	On 21 June 2018 the offender was sentenced by the trial judge to a term of two years' imprisonment on each count concurrently, suspended for two years, with a condition of a supervision order for a period of two years and a rehabilitation activity requirement for a maximum of 60 days.  In addition, the offender was made the subject of a restraining order in extremely wide terms, to the effect that he should have no contact with any person under the age of 16, directly or indirectly, except for unavoidable contact in public areas, the period of that order being stated to last for 10 years.  It was also a consequence of the sentence as imposed that there be a notification requirement for a period of 10 years.
4.	The background facts are these.  
5.	The female complainant, who may be styled "M", was born on 21 January 2009.  The offender was a family friend, M's mother having been known to him since he was a teenager.  It appears he used regularly to be at her home, sometimes sleeping overnight and sometimes babysitting her children.  
6.	On 29 May 2017, a relative of M (in fact her mother's cousin) saw the offender touching M's vagina, as she said.  The mother was told and the mother sought to speak with M.  M (then aged eight) burst into tears.  The police were then contacted.  
7.	On 30 May 2017 and then again on 30 June 2017, M was interviewed by police officers.  M said that the offender had touched her on the vagina, which she described as her "private areas", both under and over clothing on approximately 20 or 25 occasions since 3 January 2017.  
8.	The details relating to the particular counts were these.  So far as count 1 was concerned, M was to say that the first time things happened was when she was aged seven ‑ she in fact became eight on 21 January 2017.  She said that it happened in one of the bedrooms at her home.  She recalled the offender saying to her that it was a new beginning of the year and he needed to do something and then rubbed her private areas over her clothing with his hand.  She thought it lasted for about 10 minutes.  She told him to stop and then ran downstairs.  
9.	So far as count 2 is concerned, that related to the second or third month.  On this occasion the offender, according to her, rubbed her vagina and said: "I love you, so fast and slow".  M naturally enough did not know what he meant.  He was on one knee and was using his hand to rub her but this time this was under her clothing.  She said 'no' but he ignored her.  This happened in the bedroom of her house.
10.	As to count 3, M recalled another occasion when she was in bed asleep and the offender was looking after her as her mother was out.  He woke her up and asked her to go downstairs, so she did.  They went to the front room and here the offender rubbed her vagina.  She could not recall if it was over or under clothing.
11.	Counts 4, 5 and 6 related to 29 May 2017, that is to say the day before M was first interviewed by the police.  M said that on that day when she was in the kitchen the offender rubbed her vagina over her underwear.  She had been wearing a skirt and t‑shirt at the time.  She told him to stop because it was "rude" but he did not stop.  He then stopped when an adult came in.  It had been noticed that the offender had been giving M a lot of his attention that day.  During a game M went over and a relative saw his left hand underneath M's dress.  The relative thought that she saw the offender push aside her underwear and rub her vagina but could not be sure.  M was to say that the offender's hand was on top of her underwear.  At all events, he then removed his hand when he saw the relative looking.  During another game, M was seen astride the offender in the region of his crotch area.  M was also to say that when she was then in her bedroom, the offender rubbed his penis on her back over her dress.  She described the sensation of wetness on the back of her dress.  When the dress was subsequently forensically examined, the offender's semen was recovered from the upper back area of her dress.  M was to say that the offender had also pulled down her underwear and touched her vagina.  She tried to close her legs but he kept opening them.  When she asked him to stop, he said: "Why do you want me to stop?"  Someone was then heard coming up the stairs and the offender then desisted.
12.	Count 7 was the multiple incident count relating to no fewer than 10 occasions other than the ones previously set out in the indictment.  M was to say that the touching had happened around 20 or 25 times since the first occasion at the beginning of January 2017, although she could not recall the detail of each such occasion.  She was to say that there was one occasion where the offender said that he would hurt her if she told anyone and on another occasion when he had started to do something the offender had put his hand over her mouth to stop her calling out.
13.	The offender was in due course arrested and interviewed by the police.  In short he said he had hugged M from the front, but he denied any sexual activity.  When interviewed on a second occasion, he produced two prepared statements denying the allegations and thereafter answered no comment to all questions asked.  He was charged on 27 September 2017.
14.	The mother of M put in a victim personal statement describing the effect on her daughter M.  It is the mother's perception that the offender has completely damaged M:  "She is not the same little girl".  The mother is disgusted by what the offender has done and is concerned that he should not have any chance to do this again to any other child in the future.  In addition, there is a recording relating to M's own reaction to what happened.  As the judge described it, she appeared "quite chirpy in the video" but also described M's reaction to the events which had happened to her.  Of course, as is well‑known, sometimes the impact of such matters can have a delayed and long term reaction; on other occasions sometimes not.
15.	When the trial was concluded and the verdicts of the jury delivered, the judge, who of course had had the benefit of seeing and hearing the evidence as it unfolded, indicated that an immediate custodial sentence could be expected.  However, quite rightly he adjourned sentence for reports and in due course a report was obtained from a consultant psychologist and also from an experienced probation officer.
16.	These reports loomed large at the sentencing hearing.  The report of the clinical psychologist is dated 18 May 2018.  It was based on one interview with the offender.  It is to be noted that the offender was still denying all responsibility for the offending.  The psychologist referred in some detail to the family background of the offender and also to his educational history.  As to his personal relationship history, it appears that the offender has had one previous sexual relationship of a rather limited nature with an adult, but otherwise reported himself as being "not that interested in sex".  
17.	It appears that in educational terms the offender had struggled significantly.  It appears that he had speech difficulties when a child and also suffered from dyslexia.  There was a detailed appraisal of his intelligence rating.  The psychologist assessed that fully and recorded a full IQ score as measured at 71.  This was at the bottom of the average range and was on the border of the learning disability ranges.
18.	The psychologist was to say, and the judge was to accept, that the offender had had significant difficulties with his intellectual functioning and that would have impacted upon his wider functioning.  The psychologist also recorded the view that the offender "appears naive and somewhat vulnerable from same age peers ..." It was noted that he had had very limited relationship experiences as an adult, his only relationship having lasted for four weeks.  The psychologist then said this:  

i.	"It is therefore my opinion that [the offender's] borderline learning disability is, at least in part, a contributing factor in the aetiology of his offending behaviour.  A lower level of intellectual functioning, developmental delay and increased level of general vulnerability, can be seen as both a risk factor and also a mitigating factor within his offending behaviour."

19.	The psychologist went on to say, and again the judge plainly accepted, that the position of the offender as a vulnerable and somewhat naive young man impacted upon what he had done and upon his general functioning.
20.	The pre‑sentence report was dated 19 June 2018.  That also records the offender's disinclinations to accept responsibility for the offences of which the jury had convicted him.  Amongst other things, the detailed report of the probation officer said this:  

i.	"The defendant presents as someone who on the surface is a capable young man.  However underneath the surface he has a range of intellectual disabilities which affect how he thinks and behaves."  

21.	It was noted that after his conviction the only response of the offender had been to the effect: "Which prison will I go to?"  However, it was said that although he may have appeared unperturbed at the prospect of going to prison, that masked the reality and it was said that his immature outlook as well as his learning difficulties hampered his ability to comprehend the impact and consequences of his offending.
22.	The report set out further matters in great detail.  So far as risk of re‑offending was concerned, it was assessed that there was a low risk of general offending but a medium risk of further sexual offending with a medium risk of causing serious harm to children.
23.	Whilst the writer of the report acknowledged the likelihood of an immediate custodial sentence, various recommendations were made as to how the problems of the offender could be addressed.
24.	So far as the sentencing guidelines are concerned, it was agreed before the judge that the appropriate categorisation was that of Category 2A for offences of sexual assault of a child under 13.  That would suggest a starting point of four years' custody with a range of three to seven years' custody.  We stress that relates to one offence.  However, before us today it is rightly accepted that Category 2A only would relate to the offending involving touching of naked genitalia under the clothing.  Therefore, for the other offences involving touching over the clothing, Category 3A would be in point.  That connotes a starting point for one offence of one year's custody, with a range of 26 weeks to two years' custody.  Of course in the present case there were numerous offences of which the offender had been convicted.
25.	The matter was debated at some length before the trial judge.  When he came to pass sentence, the judge recorded the facts.  The judge noted that the offender had a low IQ with the assessment being put at 71.  The judge referred to the fact that the offender had been convicted of serious assaults "largely involving rubbing of a child's vaginal area over clothing", although as we have said there were also at least other incidents involving rubbing under clothing.  
26.	The judge referred to the guideline and then later on said this:  

i.	"Now in my own view, it was a very significant factor [that is to say borderline learning disability being in part a contributory factor in aetiology of the offending behaviour]."  

27.	The judge then went on to say this:  

i.	"I can put it another way in layman's language.  He himself was of a childlike mentality when these offences were committed and that lack of mental awareness and lack of intellectual awareness reduces the culpability ... "

28.	It should be noted that the phrase "childlike mentality" is that of the judge himself.  It finds scant reflection in either of the two reports of the psychologist or of the probation officer.
29.	The judge went on to refer to the details of the offender having difficulty forming relationships and the like, and the judge then went on to state that owing to the offender's low IQ and very limited intellectual functioning, he would not meet the criteria for an accredited sex offender's treatment programme and also that "there is no doubt in my mind he will be a very vulnerable person in prison."
30.	The judge then later said this:  

i.	"On the guidelines, if he were of 'normal' intellectual ability, then he should go to prison for at least three years or so, possibly more with the aggravating factors.  On the other hand he is, as I have said, very vulnerable and these offences arose, at least in part, as a result of his low IQ and lack of maturity, and borderline intellectual functioning and developmental delay..."  

31.	The judge then asked whether it was just to step outside the guidelines and expressed the view that in all the circumstances it was just to step outside the guideline.  He said: 

i.	"Sending this young man to prison would not reduce whatever risk he posed to the community.  The supervision being referred to is much more likely to protect the public than a period of time in prison where there is no guarantee of any treatment or counselling."  

32.	The judge then proceeded to impose the sentence we have indicated, including the restraining order which seems to have been an order proposed by the judge himself in the course of discussion with counsel.  It had not been sought by prosecuting counsel himself.
33.	It is in those circumstances that it is said by Miss Broome, on behalf of the Solicitor General, that this sentence was unduly lenient.  It is said by her that the overall sentence involved an unwarranted departure from the sentencing guidelines and could not be justified by the intellectual and other difficulties referred to by the judge, which it is said were in any event overstated.  There is no suggestion whatsoever that the offender was not able to function in such a way as to know full well the difference between right and wrong and indeed his intelligence quotient is not even at the level of learning disability, even if on the borderline of it.  It is said that the judge simply was not justified in reaching a figure of two years' imprisonment and moreover it is said in any event was not justified in suspending such a sentence.
34.	On behalf of the offender, it is said by Mr Swain that whilst this sentence can certainly be accepted as being lenient, it is not, he said, to be regarded as unduly lenient.  He said that this was an experienced trial judge, as indeed he was, who had full grasp of the facts; and if this sentence was a merciful sentence designed to reform and rehabilitate then that was well within the province of the judge and this court should not interfere.  His alternative argument was that even if, contrary to his main submission, this sentence is to be regarded as unduly lenient, then the court still should not interfere but leave matters as they currently stand.
35.	One thing is clear, this judge was clearly alive to the fact that he was departing, and significantly departing, from the definitive guideline set by the Sentencing Council.  He plainly had in mind that, by reference to section 125 of the Criminal Justice Act 2003, he could only depart from the guideline if the interests of justice so required.  This therefore is not a case where a sentencing judge has departed from the relevant sentencing guideline without explaining why he or she has done so.  Here the judge had in terms explained why he had done what he had done.  In essence, that was because of the offender's learning and other difficulties and because of his immaturity which overall the judge had regarded as a "very significant factor" in terms of the causative effect on the offending.  Furthermore, the judge spelt out his concerns that the offender would be very vulnerable in the prison environment and moreover given his circumstances there were very limited or even perhaps no prospects of reform and rehabilitation whilst he was under a prison regime.
36.	We certainly accept that a sentence does not necessarily become unduly lenient simply and solely because it involves a departure, even a significant departure, from a relevant sentencing guideline.  The appellate court must and will have respect to a trial judge's carefully articulated reasons for departing from the relevant sentencing guideline.  But all that said, we do here have significant concerns with the judge's reasoning and approach.  
37.	Although the judge had, as we have said, described the offender as having a "child‑like mentality", that barely reflects the actual conclusions of the reports.  It cannot moreover be said that the offender had a very significant learning disability and, as we have said, everyone agrees that he knew the difference between right and wrong.  Whilst it may be that he was "somewhat naive" and had "an immature outlook", that cannot be altogether exculpatory for what he had done.  He was 21, the victim was only seven and eight at the time and he was well able to appreciate the gravity of what he was doing.  Moreover, in terms of rehabilitation, one might query just how effective what the judge had in mind might be, given that the offender was then, and as we gather from the latest reports still is, not accepting responsibility for his guilt.  Quite apart from that, the judge had in terms stated that the appropriate sentence in his view, had the offender been of "normal" intellectual ability, would have been in the region of three years or so, possibly more.  In our judgment, by reference to the guideline, that of itself very significantly understates matters.  As we have said, this guideline applies to one offence and here there were numerous offences spanning several months.  There were at least two incidents of touching M's genital area under clothing and many more offences besides of touching her over her clothing, as well as the unpleasant incident of him ejaculating over her dress.  The judge's sentencing remarks seem, with all respect, somewhat to have downplayed the sheer totality of the offending: offending moreover which had been sustained over a period of several months and involved, as was agreed and as is reflected in the categorisation for guideline purposes, an abuse of trust and an element of grooming, and furthermore, involved assaults on a 7/8‑year‑old victim in her own home at the time.  Moreover, there is the effect on her.  
38.	It seems to us that, by reference to the guideline and taking someone of "normal" intellectual aptitude, one would have expected a sentence of not less than five years and quite possibly in the region of six years having regard to the totality of this offending and having regard to the circumstances.  Accordingly, we think the judge's remarks on this aspect of the matter were, with respect, misplaced and that in turn has impacted upon his then reducing the sentence to as low as two years before then suspending it.
39.	Having carefully considered the matter, we simply do not think that the reports of the psychologist and of the probation officer relating to the offender's intellectual, emotional and personal difficulties could justify a sentence after trial of two years' imprisonment, which then furthermore could be suspended.  This offending is altogether too grave for that; and the judge was not justified in our judgment in using the reports so as to bring the sentence down so radically.  
40.	In our judgment, the judge's approach was, with all respect to him, flawed.  We do of course accept that he had had the benefit of the conduct of the trial; but even there it is perhaps of some note that at the immediate conclusion of the trial his reaction was that immediate custody would be inevitable.  
41.	We do of course acknowledge that a sentence ordinarily has to involve a balance between retribution on the one hand and rehabilitation on the other hand.  How that balance is to be struck will depend upon a trial judge's assessment of the circumstances of each case.  We here do understand the judge's concerns as to the offender's potential vulnerability in prison and to his lack of prospects of rehabilitation there.  But such considerations cannot justify in this case such a departure from the guideline as occurred here.  We say that with all respect to and giving all due weight to the explanations provided by this experienced judge. 
42.	Consequently, our conclusion is that there was and is no sufficient basis for a sentence covering the totality of these various offences of as low as two years.  Any sentence greater than that cannot, of course, by law be suspended.  We will nevertheless respect as much as we can the contents of the reports and we will respect as much as we can the evident desire of the trial judge for leniency.  We think that the very least sentence that could be imposed (and bearing in mind also that the offender had left court after the sentencing hearing not facing immediate custody) would be one of three years' immediate imprisonment.  
43.	Mr Swain did submit that if that were to be the court's view, then the court should refrain from increasing the sentence.  It is true that the court does have power not to increase a sentence notwithstanding a finding of undue leniency.  But that is only very rarely done and it is sufficient to say that it would not be justified in this particular case.  
44.	Finally, we should deal with the restraining order.  That was imposed in far too wide terms.  Indeed, it is not clear by reference to what statute the order was made, be it by reference to the Prevention of Harassment Act or by reference to the Sexual Harm Prevention Order regime.  On either basis so wide an order could not be justified.  It is sufficient to say that such an order should in any event be quashed. 
45.	Consequently, we will allow the appeal.  We will substitute concurrent sentences of three years' imprisonment immediate on each count.  We will quash the restraining order.  All other elements of the order will stand, including of course the requirement for registration under the Sexual Offences Act.  The offender is to surrender to his local police station no later than 11 o'clock tomorrow morning.  The local police station is, Mr Swain?  
46.	MR SWAIN:  I imagine it would be Southampton Central, my Lord.  
47.	LORD JUSTICE DAVIS:  Southampton Central Police station.  Are there any other points arising?  
48.	MR SWAIN:  No, I do not think so.  
49.	MISS BROOME:  Thank you, my Lord.  

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