England and Wales Court of Appeal (Criminal Division) Decisions

Royal Courts of Justice

Strand

London WC2A 2LL

Tuesday 7th April 1998

B e f o r e:

LORD JUSTICE HENRY

MR JUSTICE KEENE

and

HIS HONOUR JUDGE COLSTON QC

(Acting as a Judge of the Court of Appeal Criminal Division)

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R E G I N A

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LOFF JAMES LENNON

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Handed-down judgment of Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD Tel: 0171 831 3183

(Official Shorthand Writers to the Court)

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MR P ROCHE (MR H SOUTHEY) appeared on behalf of the Appellant

MR E GLUCKSTEIN (MR D BOWEN) appeared on behalf of the Crown

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REASONS FOR JUDGMENT

(As approved by the Court)

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LORD JUSTICE HENRY: On 1st April 1998 we dismissed this appellant’s appeals against both conviction and sentence. Our reasons for dismissing the appeal against conviction were given at that time. So far as sentence is concerned, we were then met with a submission that it had been laid down in the case of D [1997] 2 Cr App R (S) 5 that there was an “established sentencing tariff” (after a trial) in a case like this of a sentence of imprisonment of between 13 and 18 months. We did not accept that there was such a tariff, but postponed our reasons for dismissing the appeal against sentence pending fuller consideration of the cases said to lay down such a tariff.

The facts of the case were these. The victim was nine at the time of the offence, and the appellant 52. He stood in a position of trust to her because of his four-year relationship with the girl’s mother. On the offence in question, the jury convicted of the indecent assault after acquitting of a count of attempted rape arising out of the same facts. The complainant’s account was that the appellant had masturbated onto his jeans and then jumped onto her and pulled her trousers and knickers off and tried to put his penis into her. The judge sentenced on the basis that the jury had found the appellant guilty of the surrounding circumstances short of the attempted rape itself. He treated it as a single isolated act, but aggravated by the girl’s youth and the breach of trust. The judge said in terms that there was a deterrent element in the sentence.

Our fuller researches support the doubts we felt as to whether the authorities cited justified the “established tariff” suggested.

The Sexual Offences Act, 1956 received the Royal Assent on 2nd August 1956. It was, as the heading to the Act made plain:

“An Act to consolidate (with corrections and improvements ...) the statute law of England and Wales relating to sexual crimes ...”

"

Section 14(1) provides:

“It is an offence ... for a person to make an indecent assault on a woman.”

Section 15(1) provides:

“It is an offence for a person to make an indecent assault on a man.”

The punishment for those - and all other offences under the 1956 Act - are provided for in the Second Schedule: see Section 37.

In 1998 it might be taken for granted that the maximum penalty for the offence - indecent assault - should be the same whether the victim is a man or a woman. That was not the view taken by Parliament 42 years ago. The 1956 Act provides the maximum sentence for indecent assault:

on a woman 2 years

on a man 10 years

The only available means by which, in bad cases, the courts could impose a sentence of more than two years on an offender would be those in which the indictment contained more than one count and the sentence could properly be structured so as to involve consecutive sentences. That option would, of course, not be available in every case.

The need to give added protection to young girls was recognised by Parliament four years later when, by Section 2(i)(b) of the Indecency with Children Act, 1960, the maximum sentence for “indecent assault on a girl who is stated in the indictment and proved to have been at the time under that age” (ie, 13 years) was increased to five years. Even that limited change meant that the courts’ powers of sentence in relation to indecent assaults on males of any age were twice those which applied in the case of offences against girls under 13.

It was not until 1985 - 29 years after the Sexual Offences Act, 1956 was passed - that Parliament saw fit to legislate for equality between the sexes so far as victims of indecent assault are concerned.

The Sexual Offences Act, 1985 provides, by Section 3(3), that the maximum sentence for indecent assault on a woman - regardless of her age - is ten years. That amendment took effect on 16th September 1985. We underline the fact that, by the Sexual Offences Act, 1985, Parliament was increasing the maximum sentence for indecent assault on a woman (over the age of 13) from two years to ten years, and for such an offence on a girl under 13 from five years to ten years.

It is against that legislative background that we turn to consider the authorities. Dr David Thomas’s Current Sentencing Practice includes no less than 43 cases relating to decisions of the Court of Appeal (Criminal Division) under the heading “Indecent Assault on a Young Child”. We have looked at them all. In our judgment, however, it is imperative to remember the point made by Judge J when delivering the decision of this Court, presided over by the Lord Chief Justice, Lord Lane, in H [1991] 12 Cr App R (S) 589:

“This Court of course takes due notice of decisions in similar cases but recognises that the circumstances of all offences of indecency vary infinitely in their different circumstances.”

To that we would respectfully add that sentences in earlier cases must also be viewed against the statutory framework which was in force at the time when the offences were committed. It appears to us that counsel may not always have had that factor in mind when addressing this Court in appeals against sentence when the Crown has not been represented.

The authority principally relied on by Mr Roche in seeking to persuade us that the sentence of two years’ imprisonment passed upon the appellant by His Honour Judge Hardy was manifestly excessive was D to which we have already referred. The headnote reads:

“Two years’ imprisonment imposed on a trainee priest for an indecent assault on a girl aged 10 left in his care reduced to 18 months.

The appellant was convicted of indecent assault on a female, a girl aged 10. The appellant, a trainee priest, met the mother of the complainant through working in a charitable organisation. One night the child was left in a flat in the care of the appellant. The child complained that the appellant had got into her bed naked and pressed her vagina with his hand; the child then got out of the bed and left the flat. The appellant denied the offence. Sentenced to two years’ imprisonment.

Held: (considering V (1981) 3 Cr App R (S) 315, S (1986) 8 Cr App R (S) 325, G (1987) 9 Cr App R (S) 391, M (1992) 14 Cr App R (S) 126 and A (1993) 14 Cr App R (S) 779) the cases showed that there was an established tariff of sentencing for this type of offence. On a plea of guilty for repeated indecent assaults where there had been a breach of trust, sentences of between nine and 12 months’ imprisonment had been approved. It followed that in the present case, which involved a trial, the sentence would have been in the region of 13 to 18 months. The case involved a gross breach of trust, but only one isolated act. The sentence of two years’ imprisonment was excessive; a sentence of 18 months’ imprisonment was substituted.”

The offence in D was committed on 17th November 1995 and it follows that it was governed by the Sexual Offences Act, 1985. The judgment of the Court dealt with the so-called tariff as follows:

“Mr Lynch referred us to a number of decided cases, dealing with the appropriate sentence in cases of this kind: V (1981) 3 Cr App R (S) 315, S (1986) 8 Cr App R (S) 325, G (1987) 9 Cr App R (S) 391, M (1992) 14 Cr App R (S) 126 and A (1993) 14 Cr App R (S) 779). Those cases show that there has been an established tariff of sentencing in respect of this type of offence. On a plea of guilty, for repeated indecent assaults, where there has been a breach of trust, sentences of between nine and 12 months’ imprisonment have been approved by this Court. Thus it may be said that the maximum sentence, speaking broadly, following the tariff in this case, which was a contested trial, would be in the region to 13 to 18 months’ imprisonment.”

When that passage was drawn to our attention, we were concerned at the fact that it appeared that the courts were broadly putting a maximum (after a trial) of 18 months in relation to an offence where the statutory maximum was ten years.

Although we have considered all the 43 cases referred to in Current Sentencing Practice, we confine ourselves to reviewing those to which the Court was referred in D. Examination of those authorities show that two were decided under the old, pre-1985 law, and that the remainder relied heavily on those authorities.

First, V [1983] 3 Cr App R (S) 315. For our purposes the facts are adequately summarised in the headnote:

“Two years’ imprisonment reduced to nine months in the case of a man of 28 who indecently assaulted his two nieces, aged 11 and 10, the assaults not being the most serious of their kind.

The appellant, a married man of 28, pleaded guilty to two counts of indecent assault. He had behaved indecently towards his two nieces, aged 10 and 11, over a period of about six months. The assaults consisted of touching the girls’ private parts and exposing himself to them; there was not suggestion of any attempted penetration or the use of force. Sentenced to two years’ imprisonment.

Held, the sentence of two years was too heavy. Twelve months would have been the right sentence if the appellant had not pleaded guilty. The sentences would accordingly be reduced to nine months’ imprisonment”

That was case, of course, decided under the law as it was before the Sexual Offences Act, 1985, and, in our opinion, there is a real danger in such cases being cited today in support of the appropriate level of sentencing as opposed to highlighting general principles such as the type of aggravating or mitigating features which are relevant in every case, whatever the current statutory framework may be.

Next, S [1986] 8 Cr App R (S) 325. For our purposes the facts can again be taken from the headnote:

“Fifteen month’s imprisonment reduced to nine in the case of a man of 58 who indecently assaulted two girls who were related to him.

The appellant, a man of 58 pleaded guilty to two counts of indecent assault. On several occasions he had assaulted the 12-year-old step-daughter of his son by placing his finger in her vagina, and the seven-year-old grand-daughter of his wife by touching her outside her clothing. Sentenced to a total of 15 month’s imprisonment.

Held, (considering V (1983) 3 Cr App R (S) 315) these assaults were no more serious than those in V, where sentences totalling two years were reduced to nine months, partly on the ground of the appellant’s plea. The sentence in the present case was out of scale, and a sentence of nine months would be substituted.”

What is not clear from the headnote, but is clear from the judgment, is that the offences had occurred in 1984, prior to the Sexual Offences Act, 1985. In our opinion, as with V so with S, little help can be derived from that case as to the correct level of sentencing in 1998.

In G [1988] 9 Cr App R (S) 391, the judgment of the Court was given by Stocker LJ, who had also presided over the Court in S. Again, we refer to the headnote:

“The appellant pleaded guilty to indecent assault on a girl aged 13. The appellant had been baby-sitting: when the parents of the child returned he went out to a party where he consumed alcohol, and later returned to the house where he had been baby-sitting, went to the bedroom where the girl of 13 was sleeping and inserted his finger into her private parts. The appellant admitted the whole matter when interviewed by the police. Sentenced to two years’ imprisonment.

Held: (considering V (1981) 3 Cr App R (S) 315 and S (1986) 8 Cr App R (S) 325) in order that there should be uniformity of sentence so far as it was possible to achieve that object, the Court considered that the sentence of two years was too long. V was decided before the increase in the maximum sentence for indecent assault on females, but that was not so in S. The fact that the increase had been made by statutory dictate did not necessarily mean that the principles applied in V and S were not equally applicable today. Accordingly, the Court felt that having regard to all the matters of mitigation, the appropriate sentence would have been nine months’ imprisonment. As the appellant had been in custody for nearly six months, the sentence would be reduced to one which would permit his immediate release.”

At page 393, Stocker LJ said:

I should say the case of V was decided before the increase of the maximum sentence from two years to 10 years which was made by the 1985 Act. That is not so in the case of S. But the fact is that although the increase has been made by statutory dictate, it does not necessarily follow from that that the principles that were applicable in V and S are not equally applicable today.”

S was, of course, decided after the Sexual Offences Act, 1985 had come into force but, as we have noted above, it was a case involving offences in 1984. Insofar, therefore, as the passage we have quoted from Stocker LJ may be taken to mean that the principles of the level of sentencing are not affected (or should not be affected) by the increase in the statutory maximum we respectfully disagree.

In M [1993] 14 Cr App R (S) 126 the facts were that:

“The appellant pleaded guilty to three counts of indecent assault and one of indecency with a child. The victim of the offences, a girl aged between 13 and 15, lived next door to the appellant: the appellant invited her into his house to show her how to use a computer. Over a period of two years the appellant assaulted the victim in various ways, eventually touching her vagina and inviting her to touch his penis. Sentenced to 18 months’ imprisonment.”

The Court reduced the 18 month sentence, passed by the trial judge, to 12 months. The only case cited to the Court was V. The judgment reads:

“The Court draws attention to the case of V [sic] (1981) 3 Cr App R (S) 315, where, in the case of a man of 28, a sentence of two years’ imprisonment was reduced to nine months, he having indecently assaulted his two nieces aged 11 and 10. Those assaults consisted of touching the girls’ private parts and the man exposing himself. There was not in that case any suggestion of attempted penetration and the use of force. It is was not a feature of the case. It was there held that the sentence of two years was too heavy. Twelve months would have been the right sentence if the appellant had not pleaded guilty. A reduction of three months would give proper credit for his plea. So it was that the sentences were reduced to nine months in that case.

Of course, it can sometimes be misleading and unhelpful to try and draw too accurate a comparison between the facts of any one case and those of another. Nevertheless, we have come to the conclusion that, given this appellant’s good character, the fact that he is unlikely to commit this sort of offence again, the fact that these offences were not the worst of their kind and the fact that he pleaded guilty, albeit at the last moment, were all factors which, in the judgment of this Court, should have led the sentencing judge to pass a shorter sentence than that which he did.”

It does not appear that the Court’s attention was drawn to the entirely different statutory framework which applied when V was decided and, with respect, we doubt whether, in those circumstances, M should be regarded as other than a decision on its own facts.

Finally, A [1993] 14 Cr App R (S) 779. The headnote reads:

“Two years’ imprisonment upheld for two offences of indecency with a 12-year old girl.

The appellant pleaded guilty to two offences of indecency with a child. The appellant was in company with two 12-year-old girls, one the daughter of a lodger in his home and the other her friend. The appellant persuaded one of the girls to touch his penis and masturbated in front of them; on another occasion he encouraged both girls to masturbate him. Sentenced to 12 months’ imprisonment on each count consecutive.

Held: (considering V (1981) 3 Cr App R (S) 315, and M (1992) 14 Cr App R (S) 126 the present case was serious, as it involved a degree of planning and an element of compulsion in relation to one of the girls. The conduct of the appellant in masturbating was more serious than in M. The sentences were not too long.”

That case involved two counts of indecency with a child contrary to Section 1(I) to the Indecency with Children Act, 1960. It follows that it cannot, in our judgment, be regarded as an authority on the proper level of sentencing for indecent assault - not least because at the time of that decision, the maximum sentence for indecency with a child was two years’ imprisonment. We note in passing that, with effect from 1st October 1997, the maximum sentence for that offence was increased from two years to 10 years, thus bringing it into line with indecent assault on both males and females: see Crime (Sentences) Act, 1997, Section 52. We also note that Glidewell LJ there said of V that it was

“... not very much help. A great deal has happened since 1981 and in particular a great deal more is known about offences relating to children and the effect they can have on children”

We agree.

In our judgment, the authorities we have sought to review cannot, when read in the light of the statutory framework in force at the material time, be said to provide a tariff sentencing bracket at the level referred to in D. To that extent we respectfully disagree with that decision which may need to be regarded as confined to its own facts.

It is not the purpose of this judgment to seek to lay down guidelines for sentencing in cases of indecent assault. It is never easy to sentence in such cases. The circumstances of each case will, as we have already noted, vary greatly.

What the judge must do, as we see it, is to tailor the sentence to the particular facts of the case before the court. In most cases the personal circumstances of the offender will have to take second place behind the plain duty of the court to protect the victims of sexual attacks and to reflect the clear intention of Parliament that offences of this kind are to be met with greater severity than may have been the case in former years when the position of the victim may not have been so clearly focused in the public eye.

In this case, the sentence of two years passed by His Honour Judge Hardy cannot be regarded as manifestly excessive for an offence which involved a grave breach of trust. It is for these reasons that we have dismissed this appeal against sentence.