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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> AO, R v [2016] EWCA Crim B4 (16 December 2016) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2016/B4.html Cite as: [2016] EWCA Crim B4

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		16 December 2016

LORD JUSTICE BURNETT: On 1st March 2016 in the Crown Court at Winchester before Her Honour Judge Susan Evans QC and a jury, the appellant was convicted of four sexual offences against the same young victim, a cousin. He was sentenced by the judge on 15th April 2016 to a total of 18 years' imprisonment, which comprised 17 years' custody and a further licence period of one year. That last feature was a mandatory requirement by virtue of section 236A of the Criminal Justice Act 2003 which had recently been introduced by way of amendment.

The sentence was made up as follows. On count 1, rape of a child under the age of 13, contrary to section 5 of the Sexual Offences Act 2003, 18 years' imprisonment under section 236A, comprising the custodial and further licence periods we have referred to. Count 2, rape of a child under the age of 13, contrary to the same statutory provision, the same sentence to run concurrently. On count 4, sexual assault of a child under the age of 13, contrary to section 7 of the Sexual Offences Act 2003, four years' imprisonment to run concurrently with the other sentences. On count 5, sexual assault of a child under the age of 13, contrary to the same statutory provision, a similar sentence of four years' imprisonment to run concurrently. The rapes were oral rapes. Various ancillary orders were made and given the nature of the convictions the usual automatic statutory provisions apply.

With leave of the single judge the appellant appeals against sentence, having abandoned an appeal against conviction.

The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. Unless waived or lifted under section 3 of the Act, no matter relating to the victim in this case shall, during her lifetime, be included in any publication if it is likely to lead members of the public to identify her as the victim of these offences.

The facts in summary are these. The appellant is now aged 26. His victim, K, is his first cousin. She is now 14. Her mother is the appellant's paternal aunt. She allowed the appellant to stay in her home from time to time when he had nowhere else to go.

The first oral rape occurred in the second half of 2010 when K was only eight and the appellant was 19. It occurred at night. The appellant was meant to be sleeping in the living room of the family home, but he went upstairs to K's bedroom where she was in bed. Other family members were in their own bedrooms. K told the appellant to get out of her room, but he did not do so. Instead, he put his hand around the front of her neck to the extent that she struggled to breathe. When she opened her mouth he forced his penis into it. She tried to turn away but he stopped her from doing so by holding down her arms. K was unable to say how long the appellant kept his penis in her mouth but the time came when he removed it, re-dressed himself and went back downstairs.

The second oral rape occurred at night when K was 12 years old. She was sleeping in the living room because her own bed was broken. The appellant was supposed to be sleeping upstairs but he came down to where she was in bed on what is described as the large sofa in that room. K told him to get out because she was trying to sleep. He refused. At that point she was sitting on the sofa. She was unable to describe precisely how what then followed happened, but the appellant somehow sat on one of her legs, pushed her back and pinned her down on the sofa. He then straddled her and sat on her neck. She closed her eyes trying to look away, but as she did so he pushed back her head and put his penis into her mouth. He had been cooking some food in a microwave. The microwave 'dinged' and it was that that appears to have led the appellant to stop, remove himself, get his food and go back upstairs.

Some time after the second oral rape there was another incident which occurred when K was sleeping on the big sofa in the living room. When she woke up the appellant was next to her licking her breast. He had pulled up her top and pulled down her bra. She turned over and subsequently got off the sofa and slept on the floor. The final incident occurred either on or shortly before a day on which the police were called to the house for an unconnected reason. There had been a monumental row, the detail of which is immaterial for the purposes of this appeal. That incident occurred on 29th November 2014. The appellant and one of his friends had been to a party and had come back to the house in the early hours of the morning. Both were drunk. K was sleeping again on the big sofa in the living room. She was in her underwear with a blanket covering her up. It appears that the appellant's friend was very drunk and effectively collapsed onto another sofa and went to sleep. K was half asleep at this point when she felt the appellant try to put his hands down the front of her pants. When she realised what was going on she kicked the appellant in the groin, which provoked him to slap her forcibly on the outside of her thigh. The slap was so hard that she fell onto the floor and screamed. Her mother, who was upstairs, heard the scream and came down. At the same time the friend woke up. The slap caused a red mark and when her mother saw it she became panicky and got angry. The appellant shouted and claimed that he and K had been play fighting. He subsequently left the house.

It was not until 15th February 2015, so almost three months after that last incident, that K eventually told her mother about what had been going on. The appellant was quickly arrested. He was interviewed on three occasions. He answered questions by denying the offending. His case at trial was that K had fabricated the allegations, save in respect of the slapping incident. He accepted that he had slapped K but denied it occurred as a part of a sexual assault. He said that they had been play fighting.

Before turning to the judge's sentencing remarks, we refer to the personal statements made by K's mother in this case. K was not herself able to make such a statement because of the additional trauma that would be involved in doing so.

Perhaps the most striking aspect of the information conveyed in the statements is that K had previously been a victim of rape. The information that has been provided to us by Miss Knight, who appears on behalf of the appellant, is that the precise date of the other rape is not entirely clear but it appears to have occurred shortly before the first occasion upon which the appellant raped K. The judge concluded that the appellant was well aware of the fact that K had been raped by another man. It appears from that that his awareness probably emerged some time after he had first raped the complainant, but before the second occasion upon which he raped her and thus before the two sexual assaults.

In the first statement from K's mother, dated 21st October 2015, she explains that K had been coming to terms with the earlier rape. The man concerned had been convicted on his guilty plea in early 2013. But as a result of the later events, K had recently become withdrawn and would not socialise. She had sleeping problems and had developed a strategy of covering herself up with large, baggy clothes. Her anxiety in the presence of men had led her to react badly to a male teacher at school, as a result of which she was excluded from school in mid-2014. She has had to move schools in October 2014 and again in April 2015. K cut her hair down to her scalp. We have the photographs of that. It is clear, taking this information together, that we have a young girl who has been making every effort to try to ensure that men and boys do not find her attractive.

There was an incident before the appellant's trial when he was seen relatively locally to where the family live. When K found out she became hysterical. She took an overdose and had to be hospitalised. The pain attaching not only to K, but to the whole family, of remaining in the family home where these events had occurred became too much. As a result they have had to move home. K's mother felt a particular sense of betrayal because she had treated the appellant as a son. She became clinically depressed. The result was that she was put on anti-depressant medication and suffered a dramatic loss of weight.

The second statement which is dated 4th March 2016 explains that K had started to comfort eat, and as a result had gained a lot of weight. Since the earlier statement she had twice more overdosed and been hospitalised, first in the spring of 2015 and then in November.

There is a short medical report from K's GP dated September 2015. That describes her as "troubled and tormented" with continuing mental health problems for which the abuse is a major factor. His overall conclusion was that "She will continue to be traumatised by her abuse into the future."

The judge noted that the appellant used violence in connection with both of the oral rapes. That is a factor referred to in the relevant guideline.

In considering the question of harm, the judge referred to K's obvious distress in her ABE interview and during cross-examination. The judge noted that K was especially vulnerable because of the previous rape of which the appellant became aware. The judge referred to the mother's statements, the contents of which we have summarised, and the enormous impact of the appellant's offending upon K.

The question arose whether for the purposes of the relevant guideline the appellant's conduct should be treated as a breach of trust. In this regard the judge observed that K's mother treated the appellant like a son and had invited him into her home when he had nowhere else to go. She thought that the appellant was like a brother to K and had no reason to think that she was any danger to him. The judge was careful, if we may respectfully say so, in dealing with this issue. She was aware of authority from this court which had indicated that in the context of sibling abuse within a family, a sibling is not to be regarded for the purposes of the guideline, at least without more, as being in a position of trust. We note that the judge was sentencing in April 2016. Miss Knight has drawn our attention to the decision of this court in Forbes and others [2016] EWCA Crim 1388 in which judgment was given on 12th September 2016. We shall return to the principles enunciated in that case as it affects the question of breach of trust.

The sentencing remarks indicate the judge recognised that the breach of trust that she had in mind was not of the usual sort, but she observed that this appellant was an adult who had been invited into the house to stay and was trusted not to harm the children. It was for that reason that the judge concluded that the appellant's behaviour could properly be described as an abuse of trust for the purposes of the guideline, albeit a lesser breach of trust than would be permitted by, for example, a parent or step-parent responsible for the same conduct.

The judge had in mind the appellant's previous convictions, the most serious of which was for causing grievous bodily harm in 2012. On 9th March 2013 he received a suspended sentence of 18 months, suspended for two years. It follows that the second rape and both offences of sexual assault were committed in breach of that suspended sentence order. Rather than activating all or most of that sentence, the judge treated it as an aggravating feature and took it into account when arriving at the overall custodial element of 17 years. The judge noted that alcohol had clearly been a factor in one of the offences and that it appeared to have been a factor in the previous offending. Miss Knight has confirmed that it was. We remind ourselves that committing offences whilst under the influence of alcohol is an aggravating and not a mitigating offence.

The judge accepted that the appellant had himself suffered a difficult and unsettled childhood. His circumstances as a young adult were also difficult and he was immature. She was mindful that his offending had destroyed his relationship with part of the family which had been important to him, but noted that it was entirely his own responsibility. There was no sign of any remorse.

Taking all these matters into account, the judge concluded that for the purposes of the guideline the rape offences individually should be located at the lower end of Category 1A. She had noted the vulnerability of K but she relied in particular on the extreme nature of the severe psychological harm described by K's mother and supported by her GP. She also relied upon the abuse of trust as she had identified it to be.

The judge approached the sentence on the basis of evaluating the overall criminality of what was before her, taking into account the two additional sexual assaults and the aggravating features to which she had referred. It was in those circumstances that she arrived at a sentence of 17 years in custody with the additional one year's licence, i.e. an overall sentence of 18 years pursuant to section 236A.

Miss Knight, who appears for the appellant today, advances one ground of appeal which has two components. She submits that the judge erred in placing the offending in category 1A of the sentencing guideline for the rape of a child under 13. That is for two particular reasons: first, she submits that the judge was wrong to conclude that K suffered extreme severe psychological harm as a result of the appellant's offending. Thus, she submits, the case does not fall within Category 1 at all but should be within Category 2. Secondly, she submits that the abuse of trust in the sense identified by the judge does not amount to abuse of trust for the purposes of the guideline and in particular the aspect of the guideline dealing with culpability. In those circumstances for culpability purposes the case should be considered as falling within Category B rather than Category A.

Expanding a little upon Miss Knight's submissions with regard to severe psychological harm, she emphasises, rightly, that the severe sentences identified in the guideline necessarily take account of the fact that in all cases of this nature there is some psychological damage to the children concerned. She draws our attention to what was said by the Lord Chief Justice in Forbes on the question of harm. At paragraph 26 he said this:

"As is evident from many of the appeals, the effect on the victims can be devastating. Where the judge has heard evidence from the victims, then he will be well placed to make that assessment (see for example the case of McCallen at paragraph 97). However, it must be borne in mind, so that double counting is avoided, that the starting points and sentencing ranges provide for the effect on the victim which is the inevitable effect of this type of serious criminal behaviour. There has to be significantly more before harm is taken into account as a distinct and further aggravating factor and or before a judge makes a finding of extremely severe psychological or physical harm so as to justify placing the offence in the top category of harm."

In short Miss Knight submits that despite the features identified in the statements from K's mother and the confirmation from her general practitioner of the impact of this offending, the psychological harm in this case should not even be described as severe, let alone an extreme example of severe psychological harm.

By reference to the same authority, this time at paragraphs 16 to 18, Miss Knight submits that whilst to the layman what occurred would be regarded as an abuse of trust, for the purposes of the guideline the visits of a cousin to stay in a house and there abuses a child are not sufficient. She relies on paragraph 16 to 18:

"16. It is evident from the appeals that one issue that has caused difficulty is "abuse of trust" as an express aggravating factor and as used in respect of culpability extensively in the definitive guideline.

17. Whilst we understand that in the colloquial sense the children's parents would have trusted a cousin, other relation or a neighbour (as in the case of Forbes – see paragraph 47 and F - paragraph 208) to behave properly towards their young children, the phrase "abuse of trust", as used in the guideline, connotes something rather more than that. The mere fact of association or the fact that one sibling is older than another does not necessarily amount to breach of trust in this context. The observations in [54] of R v H should be read in this light.

18. The phrase plainly includes a relationship such as that which exists between a pupil and a teacher (as in the case of Clark who grossly abused his position of trust as a teacher at a boys' preparatory school by a sustained course of conduct over 7 years – see paragraphs 70 and following), a priest and children in a school for those from disturbed backgrounds (as in the appeal of McCallen - see paragraphs 86-92 and 97) or a scoutmaster and boys in his charge (as in the case of Warren to which we have already referred). It may also include parental or quasi-parental relationships or arise from an ad hoc situation, for example, where a late night taxi driver takes a lone female fare. What is necessary is a close examination of the facts and clear justification given if abuse of trust is to be found."

We note that the starting point for a single Category 1A offence is 16 years with a range of 13 to 19 years. There is a substantial degree of overlap between Category 1A and Category 1B. Category 1B has a starting point of 13 years' custody and a range of 11 to 17 years' custody. There are overlaps between those two Category 1 examples and those that fall within Category 2. Indeed, the guideline contemplates that the top of the range for Category 2B is the same as the bottom of the range for Category 1A. This demonstrates, if it needs demonstrating, that the categories are not hermetically's sealed boxes from which defendants in criminal cases can seek to hop with the prospect of substantially reducing a starting point. As has been said so often in this court, the overall sentence a judge arrives at is a matter of judgment based upon all of the factors and features of a case.

Miss Knight draws our attention to the undoubted fact that for a single offence to fall into Category 1, one or more of the harm factors identified in the guideline must be of an extreme nature. In our judgment the material factors, which are in play in this appeal are "severe psychological harm" and that the "child is particularly vulnerable due to extreme youth and/or personal circumstances".

In our judgment the combination of the psychological sequelae identified with clarity by K's mother and by her general practitioner demonstrate not only that K has suffered severe psychological harm, but that it was appropriate for the judge to consider it to have been extreme. Furthermore, in our judgment the fact that the appellant raped and assaulted this child when he knew that she had been the victim of rape at the hands of another man, with problems already manifesting themselves, demonstrates that she was particularly vulnerable for the purposes of the guideline. We do not consider that the judge can properly be criticised for concluding that this was a Category 1 case.

The question then arises whether the judge was correct to categorise the nature of abuse of trust she described as sounding for the purposes of the guideline and thus leading to the conclusion that this was a Category 1A case. The judge did not have the benefit of the recent authority of Forbes. We accept Miss Knight's submission that in the light of the principle laid down by this court in that appeal, the nature of the abuse of trust in this case was not of the sort which would sound as abuse of trust for the purposes of the guideline. That said, what happened in this case, albeit not an abuse of trust for those purposes, nonetheless amounted to a significant aggravating feature. In colloquial terms this would be regarded as a grotesque abuse of the hospitality that the appellant was being offered by his family in circumstances where they were seeking to help him through some of his own difficulties. The question is whether the overall sentence of 17 years is manifestly excessive.

In our judgment, for the purposes of considering that question, it matters not whether the starting point for one's approach is to place the case at the bottom of Category 1A or towards the middle or top of Category 1B. Either way the starting points would be very similar. The guideline is concerned with a single offence. We have here two offences of rape separated by four years and two offences of sexual assault. The surrounding circumstances of this offending were very serious indeed. We have noted that the appellant was subject to a suspended sentence order. The judge might well have imposed a slightly shorter sentence for the headline rape counts and then activated either all or a very large part of the 18 month suspended sentence. She cannot be criticised in our view for the way she dealt with that aspect of the matter.

Taking all this into account, in our judgment despite the error which the judge understandably made in the light of the authority as it then stood, that error has no impact on the question whether this sentence is manifestly excessive. In our judgment it is not. In those circumstances this appeal will be dismissed.