[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Jones, R v [2009] EWCA Crim 237 (5 February 2009) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2009/237.html Cite as: [2009] 2 Cr App R (S) 76, [2009] 2 Cr App Rep (S) 76, [2009] EWCA Crim 237

[New search] [Printable RTF version] [Help]

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Thursday, 5th February 2009

1. MR JUSTICE HEDLEY: This is an appeal with leave of the single judge, against a sentence imposed on 29th July 2008 by His Honour Judge Richards sitting in the Crown Court at Newport, of 9 years' imprisonment. This was consequent on the appellant's conviction by a jury on 9th July of an offence contrary to section 38(1) of the Sexual Offences Act 2003 of sexual activity with a person with a mental disorder by a care worker.
2. The circumstances of the offence are truly grotesque. The complainant was a 76-year-old woman with severe dementia. The venue of the offence was a care home in South Wales. On 13th February 2007, in the later evening, the appellant, who was a 22-year-old male care worker, was, contrary to policy and rules, working on his own. It is a matter of some concern that he had an employment record which indicated that that had happened before, albeit with no obvious nefarious purpose. This was an appellant who although a man of good character, was a man with significant learning difficulties of his own. He claimed that he had been left on his own and he took the complainant to her bedroom for the purposes of putting her to bed. Shortly thereafter he activated the emergency alarm. Help came and the complainant was speedily removed to hospital where she required emergency surgery to deal with severe tears to her perineum stretching effectively from the anus to the vagina and there was a grave risk of serious permanent injury or even death if had she not been treated.
3. There was no evidence at all that she had been injured earlier on and no evidence of blood anywhere except in the bedroom. The medical evidence was that the injuries had most likely been caused by insertion into her vagina of a penis or penis-sized object. It was clear that this could not have been done by anyone else. Although denied throughout by the appellant, on that apparently strong circumstantial evidence he was duly convicted.
4. The learned judge correctly concluded that the dangerousness provisions should not apply in this case.
5. When the matter of sentence arose there was a considerable debate about the guidelines of the Sentencing Council in relation to sexual offences. This was raised really because the mischief that lay behind the offence with which the appellant was actually charged was the prevention by care workers of having sexual relations consensual or otherwise with those for whom they were responsible. The guidelines propounded proceeded rather on the basis that sexual activity was essentially consensual. In this case it manifestly was not. Therefore, on that ground alone, the guidelines were of no particular assistance to the judge.
6. It was, perhaps with the wisdom of hindsight, a pity that debate developed in relation to guidelines for another offence. Be that as it may, the maximum penalty for the offence of which the appellant was convicted was 14 years and therefore there was quite sufficient scope for the learned judge to sentence correctly under this offence.
7. The learned judge made it clear, correctly in our view, that the guidelines were not applicable to the offence with which he was dealing. He said: "Your crime was much more serious than that", and then he went on to say that he had regard to other guidelines.
8. In our judgment, the learned judge was correct to conclude that the guidelines did not apply in this case. That was sufficient for the approach to this sentencing exercise. The aggravating features were there for all to see. Against that had to be balanced the appellant's good character and the personal disadvantages from which he himself suffered. The question that has exercised this court in the final analysis is whether in all the circumstances the sentence of 9 years was manifestly excessive.
9. With great respect to the learned and experienced judge, it is the view of the court that that sentence was excessive and that the proper sentence, to reflect the gravity of this offending balanced against the factors in favour of the appellant, so as to mark not only the seriousness of the offence but the culpability of the offender, would have been one of 7 years' imprisonment. In the circumstances this court proposes to allow the appeal and substitute for the sentence imposed by the judge a sentence of 7 years' imprisonment.