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Neutral Citation No. [2012] NICA 36	Ref:	MOR8592
Judgment: approved by the Court for handing down	Delivered:	24/9/2012
(subject to editorial corrections)*


 


IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND ________ R -v- DM DIRECTOR OF PUBLIC PROSECUTION'S REFERENCE (NUMBER 1 of 2012) ________ Before: Morgan LCJ, Higgins LJ and Coghlin LJ ________

MORGAN LCJ

[1] This is a reference by the Director of Public Prosecutions under section 36 of the Criminal Justice Act 1988 in respect of a sentence of 30 months imprisonment suspended for three years handed down to the respondent following a guilty plea on re-arraignment by the learned trial judge on 7 March 2012 at Enniskillen Crown Court for one count of sexual activity involving penetration with a child between 13 and 16 years contrary to Article 16 of the Sexual Offences (Northern Ireland) Order 2008.

Background

[2] The victim was just over 15 years old at the time of the offence. The offender was born in 1987 and was 23 years old when the offence was committed in late September 2010. On a Saturday night towards the end of September 2010 the victim was driving around Enniskillen with her friends. She saw her older cousin standing outside licensed premises and got out to speak to her. As a result of that conversation she rang her mother and arranged to stay at the cousin's house that night.

[3] She then went into the licensed premises with her cousin, her cousin's boyfriend and his brother, the offender. They all sat together and the victim consumed five vodkas all bought by the offender's brother. They then got a taxi back to the offender's house. The victim got out with the offender and assumed that her cousin and her boyfriend were also coming but they went on.

[4] The offender gave the victim more vodka in his house. He brought her to his bedroom and had sexual intercourse with her by consent. He ejaculated but did not use any form of protection. The next morning he phoned the victim's cousin and she collected her. At the end of October 2010 the victim realised that she was pregnant. She told her mother what had happened. She attempted to make contact with the offender by speaking to his brother but the offender did not respond. The victim's mother reported the matter to social services on 29 November 2010 and they contacted police. On 13 December 2010 the victim underwent a termination at a clinic in England.

[5] On 20 December 2010 the offender was interviewed at Enniskillen police station. He accepted that he knew the victim. They had both attended a christening party approximately a year and a half before the offence. During his interviews the offender denied having any form of sexual intercourse or activity with the victim on the night in question. He provided a DNA sample as a result of which it was possible to establish that he was linked to the foetal material which was recovered during the termination. Even then he maintained his denial until the morning of the trial.

[6] The pre-sentence report established that the offender lived with his widowed mother who suffered from mental health problems. He has been in regular employment. He had criminal convictions for driving offences and one conviction for disorderly behaviour but no past history of sexual offending. At the time of the plea he had been in an age appropriate relationship for 17 months.

[7] It was contended that there were a number of aggravating factors. The age difference was considerable in that the offender was approximately 8 years older than the victim. The sexual intercourse was unprotected as a result of which the victim became pregnant. The harm caused to the victim was considerable. She had to travel to England for a termination. A report from a consultant child and adolescent psychiatrist indicated that she suffered post-traumatic stress disorder and a mild to moderate depressive episode as a result of the offence. Prior to this episode she had been referred to CAMHS as a result of concerns about her emotional wellbeing and general behaviour and she was subsequently diagnosed as suffering from ADHD. Although she was no stranger to alcohol the amounts she consumed in the licensed premises together with the amounts that she was given at the offender's home would have rendered her vulnerable. Finally the persistent denial by the offender of any sexual activity left this victim isolated and uncertain as to whether she was to be believed even by her family at least until the DNA evidence came forward.

[8] The offender claimed particular credit for his plea. Crown counsel had indicated that a plea would represent a considerable relief to the complainant. That is invariably the position in this sort of case and it is difficult to see how the offender could expect much credit for this given what he had put this girl through in denying the fact of intercourse at all. The offence under article 16 of the 2008 Order is committed if assault by penetration of the victim is established and the offender does not reasonably believe that the girl is over the age of 16 years. The offender contended that the credit for his plea should be seen in light of the fact that he had a good working defence in relation to his belief. A Social Services record prior to the offence produced on disclosure noted that the victim might easily pass for seventeen or eighteen years old. Although we accept that the basis for such a defence was available we must also bear in mind that the offender would have come before the jury in circumstances where the victim was making the case that he was well aware of her age as a result of their meeting at her cousin's christening party and the offender himself had persistently lied to the police about having sexual intercourse with the victim.

[9] We do not accept that the offender's age should be a mitigating factor. At 23 years old he was a man of some maturity. We accept that he had to cope with the death of his father while a young teenager and that his application to work was in his favour. Such aspects of personal background generally carry little weight in offences of this kind. In terms of culpability this was not a case where the offender groomed the victim and the offence was not planned or premeditated to any appreciable extent. It is also submitted on behalf of the offender that the victim was not corrupted by the offence and that is accepted by the prosecution.

[10] In the course of the hearing we were advised that counsel for the prosecution and defence had discussed the case in chambers with the learned trial judge. We have been assured that no indication of sentence was given in the course of those discussions. It appears, however, that there were two such meetings. The first was some days before the re-arraignment. Junior counsel for the defence brought with him downloads from the victim's facebook page showing her in fashion poses. As we understand it this was material upon which the defence intended to rely on the issue of the reasonable belief of the offender that the victim was over sixteen if the case was contested. These photographs were again produced to the learned trial judge on the morning of the re-arraignment. Although there was no indication of sentence junior counsel for the defence suggested the possibility of a suspended sentence. The learned trial judge indicated that she was familiar with the victim's background having reviewed her social services records for the purpose of third party disclosure. Subsequent to that second meeting junior counsel for the defence was satisfied that the prospects of a non-custodial sentence were good and advised his client accordingly. The offender then changed his plea.

Discussion

[11] In R v SG [2010] NICA 32 we indicated that the final report of the Sentencing Guideline Council on offences under the Sexual Offences Act 2003 is of assistance in selecting the appropriate sentencing range for this offence. That was a case in which the offender had been detected by the victim's father and agreed to stop the sexual activity. In fact he renewed his association with the victim as a result of which she became pregnant. It was, therefore, a case in which consecutive sentences were appropriate and the total sentence of 4 years imprisonment was one within the range of 3 to 7 years proposed in the report. It is clear, however, that the circumstances in which this offence can be committed vary widely and it will often be necessary to consider a sentencing range outside the parameters suggested.

[12] There are three decisions of the English Court of Appeal which are helpful in determining the appropriate range in a case of this type. R v Corran [2005] EWCA Crim 192 was a case in which the court gave preliminary non-prescriptive guidance in connection with the new offences created by the Sexual Offences Act 2003. The court concluded that earlier authorities suggesting a sentence on a guilty plea of 15 months imprisonment where there was consensual sexual activity between a man in his twenties and a girl under the age of 13 would remain of assistance. In R v Barrass [2006] EWCA Crim 2744 the court took Corran into account in imposing a sentence of 18 months imprisonment on a plea where the defendant was 26 and the victim 14 and the sexual intercourse had occurred at a party where alcohol was consumed. R v Frew [2008] EWCA Crim 1029 was decided after the promulgation of the Sentencing Guidelines Council report. That was a case of a single act of consensual sexual intercourse between a 29 year old man and a girl of 15 and a half as a result of which the girl became pregnant and underwent an abortion. The offender pleaded guilty. The court noted that the Sentencing Guidelines themselves referred to the need for flexibility and variability and a sentence of 2 years was reduced to 18 months taking into account Corran and Barrass.

[13] Even allowing for the aggravating factors in this case and the late plea these authorities would suggest that the sentence of 30 months imprisonment was stiff for an offence of this kind. The prosecution in argument accepted that such a sentence was at the top of or possibly outside the appropriate range. The authorities do, however, suggest that in cases of this type a suspended sentence is only appropriate if there are exceptional circumstances. The learned trial judge had available to her the social services paperwork which made it clear that Social Services were concerned in the context of the maturity of her appearance about the complications that was likely to cause in her [the victim's] life. We have already noted that this was not a case where the victim was corrupted. That appears to us to have been the principal factor leading to the imposition of a suspended sentence although the learned trial judge also referred to the risk assessment carried out by the probation service and the circumstances of the offence. Neither of those latter matters appears to weigh very heavily in favour of suspension.

[14] In coming to her conclusion the learned trial judge placed considerable reliance on the decision of the English Court of Appeal in Attorney General's Reference No 72 of 2009 (Kent) [2009] EWCA Crim 2437. That was a case where the offender had engaged in sexual intercourse with 2 girls aged 15 and 13. The girls were not naïve and were "streetwise". Neither was sexually inexperienced. The circumstances included blackmail by one and the use of the offender by the other to "slake her own sexual appetite". It is plain that this was an exceptional case quite unlike the circumstances with which we are concerned and in our view Kent gave no support for the view that a suspended sentence was appropriate in this case. Immediate custodial terms in these cases are in part deterrent to protect victims such as the child in this case. It appears that the court also had available statistics of the outcomes in England and Wales in 2008 and 2009 where there had been guilty pleas to this offence. The learned trial judge noted that 71-73% received immediate custodial sentences, 17% community sentences and the remainder suspended sentences. As the learned trial judge herself pointed out these figures reflect the very wide variety of circumstances in which this offence can be carried out and in no way assist in reaching the conclusion that this sentence should be suspended. We can see no proper basis for suspending the sentence in this case.

[15] On the assumption that the sentence is, therefore, unduly lenient we have to consider whether we should interfere with it. We accept that there was no indication as to sentence given by the learned trial judge. The information given to us indicates, however, that junior counsel brought downloads from the victim's facebook page into chambers plainly for the purpose of demonstrating the potential strength of the offender's case in relation to his reasonable belief in the age of the victim. As it happens these downloads were taken from facebook at the time of trial rather than the time of the offence so inevitably would have portrayed an older girl. We know that junior counsel mentioned in chambers the possibility of a non-custodial disposal and that he left chambers believing that the prospects for a non-custodial sentence were so good that he advised his client to adopt a pragmatic course and plead guilty.

[16] Although this is not a case like Attorney General's Reference (No 4 of 2004) [2005] NICA 18 where the inducement to plead was apparently consequent upon an indication of likely sentence in chambers that case makes it clear that the court should look closely at the circumstances of the plea where a pragmatic course is taken in the expectation of a non-custodial outcome. We know that there was a discussion about the strength of the offender's defence raised by junior counsel in the presence of the prosecution. We do not know what impression prosecution counsel had at the end of the meetings in chambers. No note of the meetings is available. Without prejudice to the guidance which this court has given in Rooney we reiterate that it remains vital that where for any reason there is a discussion about the substance of the case in chambers it should either be recorded or a note of the discussion prepared at the time or shortly thereafter by the judge. Such a course ensures that the public are reassured about the principal of open justice and this court is made aware of all of the circumstances surrounding a pragmatic plea if that follows. In this case the picture is somewhat clouded. In all of these circumstances we have come to the conclusion that we should not interfere with this sentence.