2018/01797/A4
Neutral Citation Number: [2018] EWCA Crim 2264
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Tuesday  14th  August  2018

B e f o r e:
LADY  JUSTICE  SHARP  DBE

MR  JUSTICE  FOSKETT

and

MR  JUSTICE  NICOL

- - - - - - - - - - - - - - - - - - -

R E G I N A
 
- v -

L  D  G

- - - - - - - - - - - - - - - - - - -

Computer Aided Transcript of Epiq Europe Ltd, 165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

 - - - - - - - - - - - - - - - - - - -

165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400
Email: rcj@epiqglobal.co.uk

- - - - - - - - - - - - - - - - - - -

Mr B Kogan appeared on behalf of Applicant

Mr S Heptonstall appeared on behalf of the Crown

- - - - - - - - - - - - - - - - - - -

J U D G M E N T
This transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.

WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child.  Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media.  Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached.  A person who breaches a reporting restriction is liable to a fine and/or imprisonment.  For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. 

Tuesday  14th  August  2018

LADY JUSTICE SHARP:  I shall ask Mr Justice Foskett to give the judgment of the court.

MR JUSTICE FOSKETT: 
1.  The provisions of the Sexual Offences (Amendment) Act 1992 apply to the offences with which this case is concerned.  It follows that no matter relating to the victim of the offences 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 matter comes before the court as a renewed application by the applicant for leave to appeal against sentence after refusal by the single judge.

3.  For reasons that will become apparent, the position before us is entirely different from that put before the single judge – and, indeed, from that put before the sentencing judge.  We grant leave to appeal and will henceforth refer to the applicant as the appellant.

4.  On 5th February 2018, in the Crown Court at Snaresbrook, before His Honour Judge Zeidman QC, the appellant faced an indictment containing eleven counts.  He pleaded guilty to counts 1 and 2 which charged indecent assault, contrary to section 14(1) of the Sexual Offences Act 1956.  He pleaded guilty on a basis that was not acceptable to the prosecution.  He pleaded not guilty to the other nine counts.  Count 3 was an allegation of indecency with a child (the same alleged female victim as the victim in counts 1 and 2).  Counts 4 to 11 were allegations of indecent assault on a male (the appellant's younger brother).  

5.  The trial of those counts could not commence on that day, but started two days later before His Honour Judge Lafferty.  On 16th February 2018, the appellant was acquitted on all the counts to which he had pleaded not guilty but, of course, he fell to be sentenced in relation to counts 1 and 2.  The victim of those offences had given evidence in the trial in relation to count 3.

6.  We need not go into great detail about the two offences reflected in counts 1 and 2.  As will be apparent already, they were allegations of a historic nature; indeed, they went back over 40 years.  They were indicted as having been committed between 1st January 1976 and 31st December 1977.  The victim was the appellant's younger sister, who was aged between 9 and 10 at the time.  The appellant was treated by the judge as being aged 11 at the time of the offences.  The victim was seventeen months younger than the appellant.

7.  The allegation made by the victim was that the appellant used force upon her in order to have sexual intercourse with her on two occasions about six months apart.  She said that there had been a degree of penetration on each occasion.  The basis of the appellant's plea, which the trial judge also had not accepted at the outset, was that the activity was consensual and, effectively, experimental, and that there had been no actual penetration.

8.  Having heard the evidence in the trial, the judge indicated that he could not accept some of the more extravagant claims as to the use of force made by the victim and that "they went well beyond the bounds of credibility"; but he concluded that the appellant would have had to have used a significant amount of force to subdue her to his will when she did not want to do what he wanted her to do.  The childish experimentation was, he concluded, one-sided.

9.  The appellant, his sister and brother had been brought up by their mother.  Their father had left the family when the appellant was about four years old.  The judge said that the appellant was trying to deal with his sexual emotions at that stage, which were not governed by any kind of adult supervision.  There was a lack of care and supervision by the children's mother, who was quite happy to bring men into the home and to engage in sexual activity within the hearing of her children – and on one occasion within the view of the appellant.  That indicated that this was a household that was not just chaotic, but there was a great deal of sexuality in the air.  The judge concluded that the appellant decided to use his sister, who was a completely unwilling participant, to satisfy his sexual desire.  

10.  Sentence was postponed for the preparation of a pre-sentence report.  The sentencing hearing took place on 23rd March 2018.  Counsel for the prosecution (not Mr Simon Heptonstall, who appeared before us) produced a Sentencing Note for the judge, dated 1st March 2018, which Mr Barry Kogan, who represented the appellant, had the opportunity to see and comment upon.  He produced a Sentencing Note dated 15th March.  They were agreed that the maximum sentence for indecent assault on a girl under 13, pursuant to section 14 of the Sexual Offences Act 1956, was five years' imprisonment and that the modern equivalent offence, given the judge's finding to which we have referred, would be rape of a child under 13, contrary to section 5 of the Sexual Offences Act 2003.  The maximum sentence under that section is life imprisonment.

11.  It was common ground that, on what was taken as the correct approach to the sentencing exercise, the judge should have regard to any applicable guidelines for an equivalent offence under the more recent Act.  The argument before the judge was whether, as the prosecution contended, these should be treated for present day sentencing purposes as category A culpability offences, because of the violence used, and whether the harm to the victim should be treated as category 2, or whether, as Mr Kogan contended, the offences were both category 3B offences. The judge made it clear that he considered it was culpability category B and that it was somewhere between category 2 and category 3 in relation to harm.

12.  In his sentencing remarks the judge said that had the appellant been an adult and pleaded guilty on exactly the same factual basis as the judge had found, namely, of compulsion and a significant degree of force to commit the offence, he would have imposed the maximum sentence of five years' imprisonment on each.  However, because the appellant was aged 11 at the time, as the judge treated him (resolving any doubt in his favour), the sentence had to be heavily discounted.  Following a trial, the sentence would have been two years' imprisonment on each count concurrent, but given the pleas of guilty on the day of the trial (albeit on a basis which the judge rejected), the sentence for each count was reduced by four months.  The net effect was a total sentence of 20 months' imprisonment.

13.  The original grounds of appeal sought to challenge some of the judge's factual conclusions in relation to the offences, contended that the judge had paid insufficient regard to certain mitigating factors, and failed to have regard to certain decisions of this court that (it was said) were similar to the present case and supported the proposition that an immediate sentence of imprisonment was not warranted.

14.  The single judge rejected those contentions and refused leave to appeal.

15.  When the case was reviewed by a Complex Case Officer in the Criminal Appeal Office on Friday 10th August 2018 (last week), the view was formed that this sentence may have been incorrectly imposed, having regard to the fact that a custodial sentence could not have been imposed for either offence at the time each was committed because the appellant was under the age of 14: see [110] of the judgment of this court in R v Forbes and Others [2017] 1 WLR 53 (a case that was not drawn to the attention of the judge and was not referred to by either counsel in their written notes to the judge).

16.  The other dimension to which the Complex Case Officer drew attention was that, prior to September 1993, a boy under 14 was deemed incapable of penetration and could not, therefore, be convicted as a principal of rape.  On that basis he questioned whether "measured reference" to the current rape guideline was appropriate if it is an offence of which the appellant could not have been convicted.  As a matter of fact in this case, the judge's conclusion was that a degree penetration was achieved.

17.  These matters were drawn to Mr Kogan's attention on Friday and the Registrar directed the attendance of the respondent today.  As we have indicated, Mr Heptonstall has appeared to assist and has, at short notice, produced a Respondent's Notice.  We are most grateful to him for his assistance.

18.  In short, the agreed position now is that the view of the Complex Case Officer is correct.  A custodial sentence could not have been imposed under the sentencing regime applicable at the time the offences were committed.  It follows that the judge should not have imposed a custodial sentence when sentencing the appellant.

19.  We should say that some questions have been raised as to the correctness of the view expressed in Forbes: see R v AM [2018] EWCA Crim 279 at [19] - [23].  However, the decision in Forbes is binding upon us and we take the issue no further.  Equally, it is unnecessary to express any view about the relevance or otherwise of actual penetration in this case.

20.  Inevitably, this case highlights the need for very careful attention to be paid by counsel – and, indeed, the court – when historic cases of sexual offences are being considered to the age of the offender and to the question of whether a custodial sentence could have been imposed at the time the offence was (or the offences were) committed.  It is one of the rarer cases where a broader enquiry than merely determining the statutory maxima for the relevant offences is necessary: see [10] of the judgment in Forbes.

21.  What is the appropriate disposal now?  Only a community disposal could have been ordered at the time the offences were committed.  Whilst no community disposal was considered by the judge, the pre-sentence report had raised the possibility of a period of probation, if the court considered an alternative to a custodial sentence, the purpose of which was for the appellant to "further explore his understanding and expectations of intimate relationships".

22.  The appellant has committed no further offence of a sexual nature for over 40 years and has been in a number of relationships.  We have given careful consideration to whether it would be appropriate to impose a probation order at this stage in substitution for the sentences which we must set aside.  But, against the background to which we have referred, we cannot see any need for the kind of guidance that the Probation Service could offer in those circumstances.  Furthermore, as it is, the appellant has served four and a half months in prison that he should not have served – the equivalent of a sentence of nine months' imprisonment.

23.  In those circumstances, it seems to us that the only realistic outcome is to make the appellant the subject of a short conditional discharge which, in the circumstances, will be six months.  Provided he commits no further offence during that period, the appellant will hear nothing more of this matter.  If he did commit a further offence, he could be re-sentenced for those two offences, though, of course, subject to the parameters set out in this judgment.

24.  This is plainly a highly unusual disposal, but this is a highly unusual situation.  We understand that this outcome may come as a shock to the victim of the offences.  However, the law is the law and there has been a change in the way the law treats offending of this nature from the way it was treated over 40 years ago.  The outcome of this appeal reflects that proposition.

25.  Accordingly, for the reasons given we allow this appeal and a conditional discharge of six months' duration will be imposed in substitution.

26.  MR HEPTONSTALL:  My Lady, my Lord, the change in sentence changes the fact of the notification provisions, so that they will expire at the end of the period of discharge, and, as section 99 of the Criminal Appeal Act says, the discharge starts from the date of the Crown Court's sentence.  That will be six months from 23rd March.

27.  MR JUSTICE FOSKETT:  Thank you very much.

____________________________________

Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 

165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400
Email: rcj@epiqglobal.co.uk