Case No: 201101757 D1
Neutral Citation Number: [2012] EWCA Crim 9
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SOUTHWARK
HIS HONOUR JUDGE ROBBINS
201101757 D1
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 20/01/2012
Before :

LORD JUSTICE ELIAS
MR JUSTICE EADY
and
MR JUSTICE MACDUFF
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Between :

	ROBERT CLARKE	Appellant	
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	REGINA	Respondent	

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Mr Stephen Earnshaw (instructed by BBM) for the Appellant
Ms Lisa Wilding (instructed by The Crown Prosecution Service) for the Respondent

Hearing date : 23 September 2011
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Judgment
Lord Justice Elias : 
1.	This is an appeal against both conviction and sentence arising out of various offences committed in the course of an aggravated robbery in 1984.  Evidence linking the appellant to the offence did not emerge until 2009 as a result of improvements in fingerprinting techniques.  The jury could not agree on the first trial and there was a retrial in the Crown Court at Southwark before H.H.J. Robbins.  On 2 March 2011 the appellant was convicted as follows:
Counts 1 & 2	Two count of rape	
Counts 3 & 4	Two counts of indecent assault	
Count 5	Aggravated burglary	
Count 6	False imprisonment	
Count 7	Incitement to commit indecent assault 	

2.	On the same day, he was sentenced to the following concurrent terms of imprisonment:
Counts 1 & 2	16 years imprisonment	
Counts 3 & 7	4 years imprisonment	
Count 4	2 years imprisonment	
Counts 5 & 6	10 years imprisonment	

3.	The total sentence was therefore 16 years.  There were certain consequential orders, such as the obligation to notify the police pursuant to the Sexual Offences Act 2003.
4.	The appellant now appeals against both conviction and sentence by leave of the single judge. With respect to the conviction he gave leave on one only of the three grounds advanced in the Notice of Appeal. Counsel initially sought to renew the application with respect to the other two grounds, but he wisely abandoned one argument, relating to abuse of process, before the court.  He still seeks permission to advance his appeal on the other ground relating to the admissibility of certain bad character evidence.
5.	On the date of the appeal it was drawn to our attention that this Court was proposing to give a judgment on sentencing in historic sex abuse cases in the case of R v H  [2011] EWCA Crim 2753. We had doubts whether the approach of the judge to sentencing this appellant had been correct.  Accordingly we agreed that if we rejected the conviction appeal, we would not determine the sentence appeal but would do so after consideration of the decision in H, after considering any written representations which the appellant wished to make about that decision.  We indicated that we would dismiss the appeal against conviction and would give our reasons when we handed down the decision on sentence.  This we now do.
The background.
6.	The essential facts can be summarised as follows.  On 20th August 1984, a man broke into a flat at on Beulah Hill, London, SE19. Two tenants, M, a woman of 22, and A, a man of 18, were at home. In the course of a protracted attack, the man, who had entered with an iron bar (count 5), raped and indecently assaulted M (counts 1-3) and indecently assaulted A (count 4). He effectively forced A to touch M’s breasts (count 7) and left both M and A tied up so they could not leave the premises (count 6). The man terrorised and threatened them throughout, and also stole M’s purse, a gold watch and some jewellery.
7.	Eventually A and M freed themselves and called the police. The next day a palm print was recovered from the sill beneath the window through which the man had left. In 1984, the automatic fingerprint recognition system could only search for fingerprints and so no match could be made. In January 2009, the ‘cold case’ unit reviewed the case and ran the print through a national database which now contained palm prints. On 24th January 2009, the print was identified as that of the appellant, and on 26th October 2009 he was arrested. 
8.	The prosecution case relied principally on the palm print and ‘bad character’ evidence relating to the appellant’s previous convictions in 1982 for indecent assault and in 1985 for indecent assault and aggravated burglary. 
9.	The defendant gave no comment interviews and chose not to give evidence before the jury.  His case (as put to witnesses) was that the print had been left on the window sill at some other time. He did not dispute that the print was his or the offences had been committed as described. The sole issue for the jury was whether they could be sure that it was the appellant who had committed the offences.
The evidence before the court.
10.	M gave evidence.  Her original statement, dated 21st August 1984, was read to the jury. At about 10.30pm, A had banged on her bedroom door. The door burst open and A, and a man described as “coloured man, about 6’3” tall, black hair, with a blue balaclava” came in. The man had a sock over one hand, and was brandishing an iron bar, and had a knife in his belt. He made them both strip naked, and made A face the wall, and M lie on the bed. He got on top of M, and bit her breasts hard (count 3.) He digitally penetrated her and then raped her (count 1.) He then told her to go over and face the wall, and she heard him say to A “Lie down on the bed and open your legs.” 
11.	The man demanded money and began to look around for things to steal. He took M’s purse, watch and jewellery, threatening her. He forced A and M to accompany him to the other bedrooms as he went through their things, and the belongings of Nicky, the owner of the flat. As they moved between the bedrooms, he put his finger between M’s legs.  He was still swinging the bar about; later, he put it down and had the knife from his belt in his hand. 
12.	He then tied up A and M in A’s bedroom, making A lie on the floor face down. He said he would disconnect the telephone and that-                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 he would be walking home and if they left the flat or called the police he would come back and use the knife. He made M, whose hands were tightly tied behind her back, lie on the bed and again sexually assaulted and then raped her (count 2.) Afterwards, he seemed nervous himself. He told them both not to move, and then climbed out of the window, saying something like “Thank you for your business.” Eventually A and M managed to get free and called M’s boyfriend and, when he arrived with some of his friends, the police.

13.	M’s second statement of 21st August 1984 was also read. She clarified that she could only see the man’s eyes and eyebrows, which were both black. She referred to him as “coloured” and “half caste.” He had made A touch her breasts and lower parts, which he had done very briefly.
14.	M’s third, recent statement of 16th September 2009 was also read. She confirmed the earlier accounts, and said that by “coloured” she meant “black.” She would not have said ‘half caste’ because the man was not of mixed race. There had been no previous burglaries in the period she had lived there.
15.	In cross-examination, she dealt specifically with the suggestion that the palm print might have been made when the defendant was in the house socialising.  She denied this, saying that she had lived in the flat for about two weeks. There had been no parties or social gatherings while she was there.
16.	A, the male victim, then gave evidence.  His first statement, dated 21st August 1984, was read to the jury.  It was in very similar terms to that of M. A described the man as black, about 6,’ slim and muscled, with short afro hair and good teeth. He was clean-shaven, with no scars on his face. He was about 18, and had a deep voice, with no real accent: “he sounded like he had been here all his life.”  He had worn a blue scarf over the bottom of his face.
17.	A’s second statement dated 21st August 1984 was also read. He described the man as 18-20, possibly a bit older, and his voice as “deep and English sounding with a slight negro accent.” He had made a photofit of the man which was a reasonable likeness. 
18.	A’s third statement, made in August 2009 after the investigation had been reopened, was also read. He said, inter alia, that he could no longer remember much detail as he had shut out what were traumatic memories but he believed his original statements were accurate.
19.	In cross-examination, he said that he had only lived at the flat for about two weeks. He had not had any visitors to the flat or in his bedroom, and there had been no parties. 
20.	Nicky Martin, the owner of the flat, gave evidence that she had bought the flat at Beulah Hill in about February 1984. It was uninhabitable, and she had completely cleaned and redecorated it, including the woodwork and the windows. M and A were her first tenants; there had been no parties and no “socialising with locals. No young black males had been in there” before this incident. 
21.	Dr Green, a police surgeon, gave evidence about M’s injuries when she was examined at Norbury Police Station on 21st August 1984. 
22.	DC Watts gave evidence of the appellant’s arrest and charge. He had made no comment in interview. The vaginal swabs taken from M in 1984 had insufficient DNA material to analyse at the time, and had been destroyed before the investigation was re-opened. In cross-examination, she said that the front door of the flat had not been fingerprinted at the time. The e-fit originally compiled by A had been destroyed. None of the stolen property had ever been recovered. She confirmed details relating to the appellant’s appearance: in 1983, two years previously, he had had a one inch scar on his forehead; between May 1982 and February 1984 his height was variously recorded between 5’ 9” and 6’ 1”.  At the time of these offences, he was 16 years and 10 months.  
23.	Admissions were also read about, inter alia, the recovery of the palm print on 21st August 1984 and its identification as the appellant’s print. The iron bar and knives had not had any fingerprints.  
24.	The admissions also set out information about some of the appellant’s previous convictions. These were admitted by the judge pursuant to the Criminal Justice Act 2003 and one of the grounds of appeal is that they should not have been.  They were as follows.
25.	On 21st October 1982, the appellant pleaded guilty to an attempted indecent assault (on GT, who was then a schoolgirl aged 15) and indecent assault (on WH, then aged 22). On 29th July 1985, he pleaded guilty to aggravated burglary and indecent assault on K and PM. He was in custody for burglary between 2nd April 1984 and 29th June 1984.  All the files for these offences had been destroyed, but the prosecution were able to obtain some details of these offences.
26.	In May 2010, GT provided police with her recollection of the first 1982 incident. The appellant had pushed her to the ground, and touched her on the vaginal area over her clothes, but had been disturbed by children walking down the path to school. The only detail available about the assault on WH was that she had been followed down a footpath and touched between the thighs. The appellant, then aged 14, was given a supervision order in relation to both offences.  
27.	K and PM also made statements in May 2010 setting out their recollection of the 1985 offences. On 5th January 1985, in Thornton Heath, K and P, a sister and brother aged 18 and 21, were confronted in their flat by the appellant, holding a knife. The lower part of his face was covered and he was agitated. He demanded their valuables and then tied them up in their bedrooms. K was tied with her hands behind her back, and the appellant pulled her knickers down, touching her genitalia and her breasts. The appellant ripped the phone from the wall, and rifled through their drawers, stealing jewellery and cash. Then aged 17, he pleaded guilty and was sentenced to three years youth custody.  
28.	As we have said, the appellant gave no evidence and nor did he call any. 
The sentence.
29.	The appellant had 30 previous convictions, spanning 1982 to 2009, predominantly for burglary and theft, and generally he had received custodial sentences for these offences. When convicted of the offences under appeal, the appellant was a serving prisoner, having been sentenced to four years imprisonment on 17th December 2009 for two domestic burglaries. 
30.	The appellant had three previous convictions for sexual offences namely the convictions for indecent assault in 1982 and 1985 which were the subject of bad character applications. On the last and most serious of these, he was sentenced to youth custody of one year, concurrent to a three year sentence for the associated aggravated burglary.  
31.	In passing sentence, the judge accepted that for the rapes committed at that time the case of Billam [1986] 1 WLR 349 laid down the appropriate principles. He bore in mind that the appellant was not quite 17 when the offences were committed, that much time had elapsed and that, despite many serious offences and substantial sentences, he had not committed any other sexual offences or offences of this gravity.
32.	However, the appellant showed no remorse whatsoever. The victims had had to come to court twice and the victim impact statements spoke volumes about the terrible effect of the offences on their lives.  They showed that the incident had been deeply traumatic for both complainants. 
33.	Many of the other aggravating features in R v Billam were also present: entry was forced; violence and weapons were used; there were repeated rapes; both victims were subject to terrible indignities; there were relevant previous convictions. These were despicable crimes deserving a very substantial sentence.
34.	We turn to consider the appeals, taking conviction first.
Conviction appeal.
35.	Before considering the detailed grounds of conviction, there were two matters helpfully raised by the Criminal Appeals office.  The first put in issue the validity of the conviction on count 4.  That count charged the appellant with an offence of indecent assault contrary to section 14 of the Sexual Offences Act 1956.  That provision is, however, concerned with indecent assault against a female; this was an indecent assault against a male and the appropriate section was section 15. 
36.	There is clear authority than in these circumstances the conviction cannot be upheld.  This is not a mere technical matter but is a point of substance. The particulars of the offence are not capable of sustaining the charge. The issue was recently addressed by this court in McKenzie [2011] EWCA Crim 1550 at paragraphs 39-43 where the relevant authorities were considered. The fact that there would inevitably have been a conviction if the appropriate charge under section 15 had been framed is not to the point.  Accordingly, we quash the conviction on count 4.  The prosecution accept that this must be done.  We are grateful to the Criminal Appeal Office for spotting this point.
37.	The second point is that the maximum sentence under count 3, the indecent assault contrary to section 14 of the 1956 Act, was two years and the judge gave four.  Accordingly, we reduce that sentence to two years.  Since it was a concurrent sentence it does not affect the sentence overall.
38.	The ground of appeal on which the judge gave leave was initially a complaint that “the brevity and speed of the summing up gave the perception of bias”. The judge gave leave on this ground but not in the way it had been advanced. He considered that there was nothing in the argument relating to the speed or brevity of the summing up, but he thought it arguable that the judge did not adequately put the case for the appellant before the jury. That is the way in which this ground has now been advanced.
39.	The renewed ground is that the judge erred in admitting the appellant’s previous convictions as relevant to propensity.  It is submitted that the 1982 convictions were too dissimilar and demonstrated no propensity to commit the sexual offences for which the appellant was charged.  Counsel admitted that the 1985 conviction was in many ways similar, although there were differences including no rape in that case, but the probative value was outweighed by its overwhelming prejudicial effect.  That was the view of the judge at the initial trial. 
40.	We shall deal with this latter ground first. The evidence of these convictions was admitted pursuant to section 101(d) of the Criminal Justice Act, the judge taking the view that the offences relied upon were capable of demonstrating propensity to the offences charged. In particular, the prosecution contended that the aggravated burglary charge bore striking similarities with the offence committed in this case.
41.	The judge noted an observation of Lord Justice Rose in the case of Hanson [2005] 2 Criminal Appeal Reports 21, he said this:
“A single conviction for a similar offence may amount to a propensity to commit similar offences depending on the particular facts of the case and the previous conviction.”
42.	The judge also referred to the judgment of Lord Justice Gage, giving the judgment of this court in R v Dymoski [2007] EWCA Crim 1440, in which, amongst other matters, the court held that a judge had been right to allow evidence of previous convictions for indecent assault, notwithstanding that the facts were dissimilar from the case in issue, because they were probative of the defendant’s propensity to commit offences of a sexual nature at the relevant time. That was the case where the relevant offences admitted under the bad character provisions were for indecent assaults committed within two years of the offences for which the appellant had been charged and which were some 27 years old.  Having regard to all these matters, the judge acceded to the application and in terms rejected the defence argument that the prejudicial effect outweighed the probative value.
43.	We have no doubt at all that the judge was entitled to admit this evidence.  All these offences were of probative value, and in particular the 1985 conviction. This is not a case where it can fairly be said that the past convictions had been used to bolster a weak case. There was undisputed evidence of the palm print in the bedroom, and very firm denials from the two tenants and the owners of the flat that there would have been any opportunity for the appellant to be in that bedroom on any social occasion.
44.	This evidence of these earlier convictions was highly relevant to the question whether the palm print may have been present innocently on that window sill. That is a less likely explanation for somebody with this kind of record than a person of good character. 
45.	This was a matter of discretion for the judge, and we think he exercised it properly and correctly.
Unfair summing up.
46.	The ground on which permission has been granted is that the judge did not fairly represent the appellant’s case in the summing up.  This is an extremely difficult argument to advance in circumstances where the defendant chooses not to give evidence, calls no witnesses and gives no comment interviews. 
47.	Ms Wilding, counsel for the prosecution, referred to the following observation of Lord Justice Watkins in Hillier & Farrer (1993) 97 Criminal Appeal Reports 349 at page 354:
“It is in our experience often, too often, we think, argued unavailingly almost always, in this Court that a judge has not presented properly in summing up a defendant’s defence, after that person has not given evidence We must make this clear yet again, namely that it is no part of a judge’s duty to build up a defence for someone who has not chosen to give the jury the benefit of his version of material circumstances and events. The judge’s obligation is limited to reminding the jury, in summary form, of what the defendant is said to have stated as to those matters at some time or another pre-trial and what assistance, if any, the Crown’s witnesses have provided”
48.	Here, the essential defence being advanced was that the palm print may have been innocently left on the window sill. The judge dealt fully with the evidence about that, which was all to the effect that it could not have happened in that way. It is true that he did not himself state that the expert evidence supported the possibility that the palm print may have been the result of the appellant leaning against the window sill. However, he invited counsel at the end of his summing up to draw attention to any other factual matter they felt he had omitted, and defence counsel drew attention to that point in the presence of the jury.  So the issue was fully before them.
49.	There were certain other peripheral matters on which the defendant was relying. One was the difficulties which necessarily arise in historic cases of this kind, but the judge expressly referred to them. He also referred to the fact that evidence which would otherwise have been available such as the vaginal swab and the photo kit, had been destroyed. Another matter relied on by the defendant was the fact that there was evidence that he had a scar in 1983, two years previously, and yet the evidence of the male complainant, A, was that he was clean shaven and had no scars. M’s evidence, which was recounted by the judge, was that he was wearing a balaclava and only his eyes and eyebrows were visible. All this evidence was referred to by the judge and indeed the point about the scar was again mentioned by defence counsel when invited to add anything at the end of the summing up.
50.	In our judgment, one only has to read the summing up to realise that this was a perfectly fair recounting of the material evidence. The fact that the weight of evidence is heavily against the defendant does not mean that a judge is biased or unfairly represents the case when he reflects that in the summing up. 
51.	Accordingly, we reject the appeal against the conviction and uphold the verdicts of the jury, save for Count 4 which has to be quashed for the reasons we have given.
Sentence. 
52.	 We turn to consider the appeal against sentence.  It is alleged that the sentence was manifestly excessive; it was outside the relevant guidelines in R v Billam, which were applicable at that time, and in particular took no account that the appellant was 17 at the time and had not committed any further sexual offences. 
53.	Both counsel accepted that the judge had been right to sentence in accordance with Billam. Under the guidelines laid down in that case, the appropriate starting point where a rape is committed by a man who has broken into a place where a victim is living, or where he holds the victim captive, is 8 years. A number of aggravating features are then identified, 7 in all, of which 6 were present here, namely, violence over and above that necessary to commit the rape; using a weapon, two rapes, previous convictions for other serious offences, subjecting the victim, and in this case the other complainant, to sexual indignities independently of the rape, and the particularly damaging effect that these offences have had on the two victims.
54.	On any view, a sentence significantly higher than 8 years would have been merited for an adult offender, particularly given that there was of course no benefit of a guilty plea. The appellant contended, however, a highly relevant mitigating feature was that at the time of committing this offence, this appellant was still 16 or almost 17. The sentence which might otherwise be justified must be significantly reduced to reflect that fact. 
55.	The case of R v H shows that in fact the judge had been wrong to sentence the appellant as he would have done had he sentenced him shortly after the offences had been committed.  The Lord Chief Justice, Lord Judge, made it clear that although a sentence cannot exceed the maximum applicable at the date of the offence, even in historic cases a judge must sentence according to the legislative provisions and any relevant guidelines currently in force at the time of sentencing.   He said this: 
“ … it is wholly unrealistic to attempt an assessment of sentence by seeking to identify in 2011 what the sentence for the individual offence was likely to have been if the offence had come to light at or shortly after the date when it was committed.”
56.	Accordingly, the judge erred in taking Billam as laying down the appropriate sentencing principles.  We have to have regard to the current sentencing practices for offences of this kind.  That is not to say that the historic nature of the offence is irrelevant. As Lord Judge observed, the fact that a defendant was young and immature at the time of the offence would remain a continuing and important feature of the sentencing decision.  Also, mitigation may be found in an unblemished life since the offences were committed. Plainly that was not the case here, although it seems to us to be of some relevance in the appellant’s favour that there have been no convictions for sexual offences since these offences were committed almost thirty years ago. 
57.	We recognise that these were seriously grave offences, for all the reasons given by the judge.  The combination of offences merited a very substantial sentence.  We do not think that it could be said that sixteen years would have been manifestly excessive for an adult who chooses to fight the case.  But we accept the submission that a significant reduction must be given to take account of the age of the appellant, particularly since he has not committed any sexual offences since.  Although the judge purported to take that into consideration, he could not in our view have given it sufficient weight. The Sentencing Guideline Council’s guidelines on sentencing youths says that where there is no offence specific guideline, the starting point for someone of the appellant’s age should be between a half and three quarters of the sentence that would have been given to an adult offender depending on age and maturity.  As horrific and despicable as the offences were, we do not think that 16 years for somebody who was not yet 17 when he committed these crimes can be an appropriate sentence under the current regime.  It suggests a sentence for an adult in excess of twenty years, which in our view would be too long.   In our judgment the sentence was, therefore, manifestly excessive. 
58.	We think that an appropriate sentence, taking into these aggravating features and his age, would have been one of 12 years and we reduce the sentence accordingly.
59.	Therefore, we uphold the appeal against sentence and reduce it from 16 to 12 years. We do that by reducing the sentence on Count 1 and 2 to 12 years’ imprisonment in each case. As we have said, the sentence under count 4 must be quashed, and the sentence under count 3 reduced to 2 years. The remaining sentences stay the same.  The result is that the total sentence is reduced to one of 12 years. To that extent the appeal against sentence succeeds.