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ATTORNEY REFERENCE NO 60 OF 1999 [2000] EWCA Crim 23 (23rd March, 2000)
Case No: 99/4006/R1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE ATTORNEY GENERAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday 23 MARCH 2000
B e f o r e :
LORD JUSTICE MANTELL
MR JUSTICE KAY
and
MR JUSTICE SACHS
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ATTORNEY REFERENCE NO 60 OF 1999
-
- - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr R Hough (instructed by the Applicant Attorney General)
Mr N Moore (instructed for the Offender)
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Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE MANTELL:
The offender before the court is aged 47. On 9th May 1978 he was sentenced at
Birkenhead Crown Court to a total of two years imprisonment having pleaded
guilty to ten offences of indecent assault on a male person under the age of
fourteen and one offence of indecent assault on a female under the age of
fourteen. He had asked for twenty nine other offences to be taken into
consideration. On 18th June 1980 he was placed on probation for three years
for one offence of indecent assault on a male person under the age of fourteen
having had four other offences taken into consideration. On 25th March 1986 he
was sentenced to a total of four years imprisonment for seven offences of
indecent assault which in the main involved masturbating the two young sons of
a married couple whom he had befriended. He is presently serving a total
sentence of twelve years imprisonment imposed by His Honour Judge Griggs on 2nd
June 1999 when sitting in the Exeter Crown Court. That total represents
twenty-two concurrent sentences ranging from eighteen months to twelve years
for offences of taking indecent photographs of children, indecent assault,
gross indecency, inciting gross indecency, assault with intent to commit
buggery, buggery and rape. He had pleaded guilty to all but three of the
offences. The three offences of which he was convicted were of assault to
commit buggery, buggery and rape. The sentences passed for those offences were
eight, twelve and twelve years respectively. On a charge of buggery to which
he had pleaded guilty the sentence was one of ten years. All the offences
involved children, boys and girls, and as stated during the hearing nothing is
to be reported which might reveal the identities of those children.
It is the view of the Attorney General that the total sentence of twelve years
was, in all the circumstances, unduly lenient. Through counsel he has applied
for leave pursuant to section 36 of the Criminal Justice Act 1988 to refer the
case to this Court so that we might review the sentence and if we deem it
appropriate to substitute a longer sentence or possibly, for those offences in
respect of which such a sentence is available, a sentence of life
imprisonment. We grant leave.
After the offender had been released from the sentence of four years
imprisonment he obtained employment in Liverpool as a cashier earning
approximately £15,000 pa. We interpose the information that the offender
had been an undergraduate student at Hull University although he had left
without taking a degree. During the time that he was living and working in
Liverpool he met and became friendly with a lady, C.D., who lived in
Wolverhampton. He took to visiting C.D. at weekends. Their relationship was
platonic. However C.D. had a son, M, who was at that time about five years of
age. Her other children were in care. Through his friendship with C.D. the
offender met a neighbour A.R. and her five year old son D. His circle of
acquaintances grew and included C.A., who was A.R's six year's old nephew. The
offender was generous towards the children and their families. He took them on
holidays both in this country and abroad. In 1997 all three families moved to
Torquay. The offender helped with removal expenses. On Wednesday 26th
November 1997 the offender was arrested in Liverpool following complaints of
sexual abuse. Found in one of his pockets was a video entitled "Dangerman 2"
which depicted the offender committing a variety of indecent acts with children
who were later identified from the tape. It was the complaints which preceded
his arrest and what was seen on that tape and another recovered from Amsterdam
which led to the charges of which he was eventually convicted. In summary it
was alleged against him that over a period of eight years between 1989 and 1997
he had sexually assaulted a total of at least three girls and ten boys whose
ages ranged from five to twelve.
Regrettably it is necessary to review the various offences in a little more
detail. We begin with the seven charges involving the boy M. The evidence in
support came from what M had to say and what was to be seen on the video found
in the offender's pocket and on the tape which had been recovered by police
officers from Amsterdam. On the tapes are a number of scenes showing the
offender masturbating M and M masturbating the offender. M is also shown
kissing the offender's penis and at one point the offender can be seen
urinating on M's body, face and penis. At another time the offender is seen to
put his finger into M's anus. The tapes also show the offender massaging M's
anus with cream. It is apparent that parts of the film were taken in M's home.
Another section of the tapes shows the offender appearing to bugger M whilst
masturbating the child's penis. Although the offender denied that he was
committing buggery the jury found otherwise. Quite apart from what is to be
seen on the tapes M recalled a number of occasions when the offender
masturbated him and one in particular when the offender attempted to bugger him
whilst the two were visiting a theme park in New Brighton.
D did not appear on either of the tapes but alleged that when he was about
twelve the offender had masturbated him on a number of occasions both in the
offender's car and elsewhere and sometimes when M was present. The offender
admitted all those offences and pleaded guilty. There was one incident
reflected in count 20 in the indictment when the offender made D rub and suck
his penis. The offender also admitted having been a passive partner in an act
of buggery committed with D.
We turn to the offences involving C. These include the only occasion when it
was alleged that violence was offered. C had told the police that the offender
had buggered him in late 1997 when on a visit to New Brighton. According to C,
D was in the next door room. The offender showed C a sword and said that if he
did not remove his trousers he would hurt D. He then buggered C. The next day
the offender repeated the threat to harm D if C said anything about what had
happened. This was one of the offences denied by the offender but found proved
by the jury. It had been charged as rape.
Mercifully it is not necessary to dwell upon the other offences which involved
several boys and the sisters of C and M. In one instance M's sister T aged
about eight was made to suck the offender's penis and in interview the offender
admitted masturbating himself against her and licking her vagina. "Dangerman
2" which runs for approximately 3¼ hours shows a number of young boys and
girls in different places masturbating each other and with the offender
involving himself in a similar fashion and taking part in oral sex. In one
sequence he is shown encouraging one boy to mount another having previously
rubbed oil into the second boy's buttocks.
Distasteful as it has been to review the facts it was necessary in order to
appreciate the extent of the offender's depravity. There can be no doubt that
the sentencing judge fully recognised the seriousness of the offences. He
stated:
"It is clear that you deliberately engaged in a course of conduct to gain the
confidence of vulnerable people, insinuating your way into their confidence so
that you could pursue your sexual activities with children. Your behaviour
with M, as it was described before the jury - sharing a bed with him almost
every weekend over a number of years from when he was aged five or six, taking
him and others on outings, on expensive foreign holidays, so that you could
continue with what you know is unacceptable - will not be tolerated by our
society. Through your contact with him you were able to meet a large number of
other young children, whom you have thereafter abused to a greater or lesser
extent, as you are aware, this court has before it reports on the sort of harm
which tends to be suffered by such young victims - a total of thirteen in total
featuring in the twenty two counts before the court."
In expressing himself in that way the judge was clearly acknowledging the
description of the offender given in opening as a "predatory paedophile". He
proceeded to pass what he described as commensurate sentences without recourse
to section 2(2)(b) of the Criminal Justice Act 1991. That was not because in
his judgment the provisions did not apply but because he considered that he had
already taken into account the relevant factors and to increase the sentence
further would involve the risk of double-counting. He had previously indicated
that it was not his intention to impose a discretionary life sentence.
It cannot be gainsaid that twelve years is a very substantial sentence indeed.
Even so it is submitted on behalf of the Attorney General that it is not long
enough and indeed that the judge was wrong not to impose a discretionary life
sentence in respect of those offences for which a life sentence is available.
He points to a number of aggravating features and in particular to the nature,
variety and span of the indecent acts, the ages of the victims, the breach of
trust, the effect on the children and the previous convictions. He has taken
us through a number of authorities. We list them: R -v- Willis
(1974) 60 CAR 146, R -v- Billam (1986) 8 CAR (S) 48, R -v- Baker
(1989) 11 CAR (S) 513, AG's ref. (43/1994)(R -v- Smith) (1995) 16 CAR
(S) 815, R -v- Paget (1998) 1 CAR (S) 80 AG's ref. (32/1996)(R -v-
Whittaker) (1997) 1 CAR (S) 261, AG's ref. (7/1997)(R-v-Fearon)
(1998) 1 CAR (S) 268, R -v- Leckey (1999) 1 CAR (S) 57.
We consider first the submission that the judge should have imposed sentences
of life imprisonment. We take as our starting point the guidance to found in
Attorney General's reference (32/1996) (Steven Alan Whittaker) (1997)
1 CAR (S) CA 261 and in particular the passage appearing at 264 and 265
where the circumstances in which a discretionary life sentence can be imposed
were considered. Giving the judgment of the court Lord Bingham CJ said:
"It appears to this court that the conditions may be put under two heads. The
first is that the offender should have been convicted of a very serious
offence. If he (she) has not, then there can be no question of imposing a life
sentence. But the second condition is that there should be good grounds for
believing that the offender may remain a serious danger to the public for a
period which cannot be reliably estimated at the date of sentence. By "serious
danger" the Court has in mind particularly serious offences of violence and
serious offences of a sexual nature. The grounds which may found such belief
will often relate to the mental condition of the offender. So much is made
plain by Wilkinson (1983) 5 CAR (S) 105 in particular in the
passage at 108 where Lord Lane CJ cites the judgment of Lawton LJ in
Pither (1979) 1 CAR (S) 209 and continues: "It seems to us that
the sentence of life imprisonment, other than for an offence where the sentence
is obligatory, is really appropriate and must only be passed in the most
exceptional circumstances. With a few exceptions of which this case is not
one, it is reserved, broadly speaking, as Lawton LJ pointed out, for offenders
who for one reason or another cannot be dealt with under the provisions of the
Mental Health Act, yet who are in a mental state which makes them dangerous to
the life or limb of members of the public. It is sometimes impossible to say
when that danger will subside, and therefore an indeterminate sentence is
required, so that the prisoner's progress may be mentioned by those who have
him under their supervision in prison and so that he will be kept in custody
only so long as public safety may be jeopardised by his being his let loose at
large." It is therefore plain that evidence of an offender's mental state is
often highly relevant, but the crucial question is whether on all the facts it
appears that an offender is likely to represent a serious danger to the public
for an indeterminate time."
The learned judge had before him, as do we also, a report from Dr P L G
Gallwey, a Consultant Forensic Psychiatrist. The opinion expressed is as
follows:
(The offender) is a life-long paederist (sic) who has abused children on many
occasions. He appears to have predilection's with children around seven or
eight. This age happens to correspond with his age when he had some sexual
excitement with children of the same age as him and for entirely obscure
reasons has formed some kind of fixation point from which he has never grown
(sic) out of. He shows denial of the damage to his victims and although he
does not grossly irrationalise his behaviour he is rather hopeless about
changing. He had some treatment years ago from a psychiatrist in a form of
some kind of counselling. He has never had any kind of labinal suppressant
drug such as Ciprofen acitate. He denies ever forcing children to do anything
but the extent of his deviant behaviour, videoing himself and the children
together suggests that he was a very poor judge of their response to him. I
have no doubt that he will go to prison and during that time he should be
assessed by the treatment - at Grendon Underwood or for one of the sex
offenders programmes. He needs to be confronted with the damage his behaviour
does to children and because of his intelligence and general good personality
features outside his devious behaviour there is a chance he will be helped by
such a programme which might reduce his tendency to re-offending. However, he
has a very long history of paedophillia and any prognosis must be very guarded.
He is fit for whatever disposal the court feels appropriate."
It is suggested that the fact that prognosis must be very guarded brings the
offender within range of a life sentence on the principles in
Whittaker. We do not disagree. However, we are also mindful of
the role of this court in entertaining such a submission. In Attorney
General's ref. 61/1998 (1999) 2 CAR (S) CA 226 in which the court was
considering a submission that a determinate sentence was unduly lenient Lord
Bingham CJ giving the judgment said this at pp. 230/231:
"In approaching that question we must remind ourselves - and it is fundamental
- that the present jurisdiction is not intended and was never enacted to
restrict the legitimate sentencing discretion of judges it would be a
retrogressive development if judges were deterred from passing sentences which
in all the circumstances were justified, even if unconventional. On the other
hand as the court has frequently pointed out, there are some sentences which
fall outside the bounds of reasonable sentencing options open to a judge"
We take the view that whilst the conditions necessary for the imposition of a
life sentence would seem to be satisfied and certainly this court would have
been unlikely to interfere if such a sentence had been imposed, nevertheless
since the available psychiatric evidence seems to hold out some prospect of the
offender being cured of his deviant predilections it cannot be said that the
learned judge was wrong to reject the option of a life sentence. This seems to
us to be a case in which the reasonable available options included both a very
long determinate sentence and a sentence of life imprisonment. Accordingly we
would not interfere solely on the basis that the latter was rejected.
It is submitted, however, that if a determinate sentence was not inappropriate
then even so the total of twelve years was unduly lenient. We have mentioned
the authorities cited in argument. Of those it seems to us that Paget
is somewhat out of line with the others. We derive the greatest
assistance from Leckey which was not on the Attorney General's
original list and which we apprehend was not available to the sentencing judge.
In Leckey the appellant was a welfare officer who over a long
period of time had committed a large number of offences including buggery
against a number of boys in his charge. Although he had no previous
convictions it might be said that the breach of trust was more serious than in
the present case. This court, the Vice President presiding, reduced a sentence
of eighteen years to one of fifteen. In our judgment the offender in this case
ought to have received a similar sentence. It follows that the sentence of
twelve years was not only lenient but, we are persuaded, unduly so. However,
given the need to take account of double jeopardy we consider that any
interference with the sentence imposed by the learned judge would be
unwarranted. Accordingly the sentences imposed by the learned sentencing judge
will remain unaltered.
© 2000 Crown Copyright
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