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1. The applicant in this application seeks leave to appeal against a sentence imposed by His Honour Judge Burgess at Londonderry Crown Court on 17 January 2000, when he was sentenced to an effective total of nine years for offences involving child abuse. He had pleaded guilty on arraignment on 25 October 1999 to one count of assault with intent to rape, three separate counts of indecent assault and one of assault occasioning actual bodily harm, the victim in each count being C, a girl of 10 years, the daughter of the woman with whom the applicant was living. He was sentenced to the following terms:

2. Count 1, assault with intent to rape, 9 years;

3. Counts 2, 3 and 4, indecent assault, 7 years;

4. Count 5, assault occasioning actual bodily harm, 3 years.

5. All sentences were concurrent. The judge considered whether he should make a custody probation order, but decided against doing so, considering it more appropriate in this case to apply the provisions of Article 26 of the Criminal Justice (Northern Ireland) Order 1996. The application for leave to appeal was confined to the sentence of nine years imposed on Count 1.

6. C, who was born on 29 September 1988, is the eldest of four children. Her mother, who is divorced, had been living with the applicant for about 17 months when the offences took place. On the evening of 5 February 1999 C’s mother went out about 9 pm, leaving the children in the applicant’s care. The applicant, who had drunk a considerable amount, watched television with the children, then sent the three younger children to bed. C was left alone with him, sitting at the end of the sofa on which he lay.

7. Prior to leaving the house C’s mother had told her to go to bed when the applicant started to watch a video which he had rented earlier that evening. When he commenced to play the tape C attempted to retire to bed. The applicant refused to allow her to leave the room. He grabbed her round the waist, pushed her down on the sofa and took off her pyjamas, pants and vest, leaving her naked but for her socks. As she struggled and hit out, he repeatedly digitally penetrated her vagina. C’s evidence suggests that more than one finger was used and that it caused her considerable pain.

8. The applicant then pushed her to the carpet where, having taken off his own shorts he digitally penetrated her vagina and possibly her anus, later attempting to masturbate himself. Throughout the assaults in the living room C attempted to replace her clothes, but was prevented by the applicant from doing so. He did eventually permit her to get dressed, then carried her up to her bedroom. C complained that she was sore, to which he replied that he did not care.

9. The applicant put her into bed, pulling up the bedclothes. She said that she was going to sleep, but he ordered her to get out of bed, disregarding her protests of feeling tired. He took her into the bedroom which he shared with her mother and removed her clothes again as he held her down. He removed his shorts and digitally penetrated her vagina again, causing her even more pain than before. C said in her video evidence that he did so on three occasions on her mother’s bed, and bit her and kissed her repeatedly on the cheek. As he was lying on top of her he said to her “I’m going to fuck you all night.” She described feeling his penis touching her leg, and said that it felt soft. It may be observed that he experienced erectile difficulties and earlier in the evening he had been unable to obtain an erection when attempting to have intercourse with C’s mother. C reported a remark by him in the course of her evidence which may indicate that he was still suffering the same difficulty when interfering with her. She told the medical examiners that he tried to put his penis inside her, but she thought that he was unable to do so. She gave Dr Knowles an account of the applicant massaging his penis and trying unsuccessfully to obtain an erection, and was clear that it was because he could not do so that he hurt her with his fingers instead.

10. C continued to struggle during the assault and eventually succeeded in pushing the applicant off the bed on to the floor, at which point she ran naked from the house and sought refuge with her neighbours. She was crying and cold and blood was running down her legs. The neighbours attended to her and contacted her mother. At that stage C did not tell what had happened, and asked her mother not to get the police or a doctor, but later that night she did give her an account of what the applicant had done to her. The applicant denied that he had done anything when asked by C’s mother. On subsequent police interviews he claimed to have no recollection of what had happened because of the amount of alcohol he had drunk. He did, however, tell C during the assaults that he would lie about the incident.

11. C was examined on the evening of 6 February 1999 by Dr Sandi Hutton and Dr Amanda Burns. They noted a small oval petechial bruise above the left nipple, typical of a “love bite”, seven small scratches under her chin, consistent with being grasped under the chin, tenderness in the super pubic area, significant purple bruising on both sides of the perineum lateral to the labia majora, and a large laceration extending from the posterior fourchette to the margin of the anus. Examination of the genital area caused such discomfort to C that it was decided to continue it under anaesthetic. This was done at Altnagelvin Hospital the following day, when Dr Burns recorded the following findings:

12. The laceration of the posterior fourchette was treated with three sutures. Dr Burns’ report concludes with the following comment:

13. A victim impact report prepared by Dr Elizabeth McGavock concludes that C suffered traumatic sexualisation, powerlessness and betrayal. She fears that she may have further psychological suffering and that she may experience difficulty with heterosexual relationships and trust. There may be a greater risk of her becoming depressed in the future. She expressed the following opinion about her prognosis:

14. Dr Erin Knowles, who has done regular therapeutic work with C since the incident, expressed concerns about her future, particularly when puberty commences and the extent of the abuse becomes evident to her. Although she appears on the surface to have recovered remarkably well from her ordeal, this is due at least in part to her denial and avoidance behaviour, which are an adaptive mechanism to help her overcome a crisis situation. Dr Knowles also stated in her report that she was in no doubt that in his previous activities the applicant was –

15. The applicant is aged 36 years and is a self-employed lorry driver. He was married young and is divorced, with two sons. He had a steady relationship with C’s mother for a period before the incident, which had progressed well, though she expressed some concerns about his drinking. He has significant problems with alcohol abuse and tends to act irrationally when drunk. He has had problems with sexual functioning in conjunction with a medical complaint relating to his penis, and it is likely that these problems were exacerbated by his excessive drinking. The probation officer felt that he was minimising or denying the problems. He has previous convictions for offences involving violence, including an offence of indecent assault against his sister-in-law. The probation officer concluded that in order to reduce the risks of further offending the applicant should on release from prison undertake programmes relating to sex offending, anger and alcohol management and increasing awareness of the effects of his behaviour on his victims.

16. Dr Ian S Bownes, a consultant forensic psychiatrist who examined the applicant in December 1999, recorded that he “talked at some length and with a good deal of emotion and conviction about his feelings of guilt and remorse.” He expressed his conclusions as follows:

17. It may be noted, however, that Dr IG Hanley, a consultant clinical psychologist who examined the applicant in October 1999, found on his psychometric tests that the applicant tended to present himself in a falsely favourable light, and it may be necessary to be careful about accepting his asseverations at face value. We also bear in mind Dr Knowles’ view which we have quoted about “grooming”.

18. The learned judge in his very full and carefully thought out sentencing remarks considered the approach which the court should take to sentencing for the different offences to which the applicant had pleaded guilty. He recognised that the maximum sentence applicable in a case of indecent assault is ten years’ imprisonment, and that allowance had to be made for a plea of guilty and the possibility that there may be even worse cases of such crimes. If it had not been for these factors, he would have regarded the appropriate sentence as being close to the top of the range. He accordingly imposed sentences of seven years on each of counts 2, 3 and 4. He pointed out that the maximum sentence for assault with intent to rape is imprisonment for life and compared the instant case with that in R v Harkness (1993, reported in the JSB Sentencing Guideline Cases, vol 1, section 2, p 38), where this court affirmed a sentence of seven years as appropriate. He then looked at the appropriate term in two ways, first, by considering what it would be if there had been a completed rape and, secondly, by starting from the ground up, as it were, and considering the culpability of the applicant’s acts themselves. He expressed the view that if it had been a completed rape in a contested case he would have regarded a sentence of fourteen or fifteen years as merited. Looking at the case from the other end, he would have started at the level which he had accepted as right for indecent assault and added a further period to reflect the additional factor of the applicant’s expressed intent of raping the victim. He accordingly decided to impose a term of nine years on Count 1.

19. He went on to look at the possibility of making a custody probation order, as enjoined by Article 24 of the Criminal Justice (Northern Ireland) Order 1996. He decided that it was more appropriate that the applicant should be subject on his release from prison to the terms of Article 26 – to which we shall refer in more detail later -- and made an order under that provision instead of a custody probation order.

20. Mr Finnegan QC for the applicant focused on two main submissions:

21. We are unable to accept the correctness of the first proposition. By Article 12(1) of the Treatment of Offenders (Northern Ireland) Order 1989 the maximum sentence for indecent assault was increased from two years to ten years. By Article 12(2) and (3) Parliament increased the maximum sentences for attempted rape and assault with intent to rape to imprisonment for life, clearly marking these offences as potentially more serious and requiring heavier sentences. This is in our view reflects the relative gravity of the several offences in most cases. An indecent assault on a female may vary widely from inappropriate touching to a very grave bodily invasion, such as occurred in the present case. When the offender commits an attack with the intention of committing rape, but it falls short of a completed rape, it may, depending on the facts, amount to attempted rape or, if it is not in law an attempt, to assault with intent to rape. Either crime is regarded by Parliament as one which should carry a maximum penalty as great as that prescribed for rape itself. It is then open to the sentencer to fix the appropriate penalty in the light of the offender’s acts and their consequences and other circumstances applicable to the case.

22. We are quite satisfied that the learned judge was fully justified in imposing a sentence of nine years on Count 1. He has had regard to the many aggravating factors and has made full and fair allowance for any mitigating factors. This was an abominable offence, which must attract condign punishment. The nature and quality of the applicant’s acts, taken together with his intention to rape the victim, foiled only by his inability to obtain an erection, were such that we do not regard a sentence of nine years as in the least excessive. The difference between that and the sentences of seven years on the indecent assault counts can be accounted for by the extra ingredient of the intention to rape. Even if it could not, the judge would in our view have been quite justified in imposing what he rightly regarded as a proper sentence on Count 1, even if he was constrained in sentencing on Counts 2, 3 and 4 by the statutory maximum.

23. We are equally satisfied that the judge was correct in his approach to Articles 24 and 26 of the Criminal Justice (Northern Ireland) Order 1996. He established that in the public interest it would be advisable that the applicant should be under the supervision of a probation officer after his release. The conditions for the application of Article 24 and the making of a custody probation order therefore applied, and the judge could have made such an order if he thought fit. He regarded it as inappropriate, however, because of the availability in this case of the provisions of Article 26, under which the applicant will be released on licence instead of being granted remission and will be under the supervision of a probation officer until the completion of the full period of the sentence imposed. This provision is designed specifically for the supervision of persons convicted of sexual offences and should ordinarily be put into operation in such cases when the conditions contained in Article 26(1)(b) are satisfied, namely that the court is satisfied so to order, having regard to –

24. We consider that the judge was fully justified in regarding it as a proper case to put this provision into operation. It follows that he was correct to regard it as inappropriate to exercise the power contained in Article 24, for that power and the provisions of Article 26 are mutually exclusive.

25. We accordingly refuse the application for leave to appeal against the sentence.