Neutral Citation Number: [2011] EWCA Crim 1269
Case No: 201100745/A7 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Date: Thursday, 7th March 2011
 
B e f o r e:

LORD JUSTICE MOSES 

MR JUSTICE KEITH 

THE RECORDER OF LEEDS
(HIS HONOUR JUDGE PETER COLLIER QC)
 (Sitting as a Judge of the CACD) 
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 REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 OF THE CRIMINAL JUSTICE ACT 1988 

ATTORNEY‑GENERAL'S REFERENCE NO 7 OF 2011

(JOHN DAVID SMITH) 
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Miss Z Johnston appeared on behalf of the Attorney General 

Mr N Sandys appeared on behalf of the Offender 
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 J U D G M E N T 

1.	LORD JUSTICE MOSES:  This is a Reference by the Solicitor‑General pursuant to section 36 of the Criminal Justice Act 1988 in relation to a series of sexual offences, most importantly committed by the offender against his niece in which the not uncommon issue arises as to how the judge should approach offences committed under the Sexual Offences Act 1956 in the context of the Definitive Guidelines under the Sexual Offences Act 2003.  It raises the important point as to how the judge should approach the totality where there has, over a considerable period, been a variety of offending.
2.	The offender is the uncle of a girl, P, who was sexually assaulted over a considerable period many years before.  The victim, P, was 20 when she disclosed that her uncle, the offender, had abused her.  She had suffered considerably, it is important to note, as a result of his offending with depression and other conditions associated with that depression.
3.	The offending was particularly serious since it took place over the period between 1996 and 2003.  There was an established pattern of offending.  It escalated because as a result of the threats of this offender the niece did not complain.
4.	Count 1 illustrated the start of the offending.  The offender was 33 to 35 years old.  The offender massaged the young girl's chest under her clothes, saying that some people show love in different ways.  The victim's contemporaneous account shows the delima of the young niece:  "I'm not sure it was right, he said it was a secret." Count 2 alleged a similar offence.  Count 3 demonstrates the escalation.  She was 10 to 11 years old and the offender inserted his fingers into her vagina, causing her to bleed.  She felt sick and dirty and described the offender as using brute force.  Count 4 was a similar count of digital penetration.  Count 5 demonstrates that matters got worse.  The uncle was 35 to 40, the girl was 13 to 14. He undid her trousers and then digitally penetrated her and then committed what would now be called oral rape.  Count 6 occurred when she was 14 and involved this offender massaging her breasts and kissing one of them under her clothes.  In relation to those offences involving the niece, the total sentence was one of 3 years, 6 months on the first two, 3 years for the offences of digital penetration and oral rape, a total of 3 years' imprisonment.
5.	The next count, count 7, involved a totally different girl, although a similar pattern of offending.  The offender knew the girl's grandmother and in May 2006, when inviting her to watch a film at his house and to eat a pizza this offender touched her high up her thigh and over her clothes on her private parts.  He continued seeking to groom her by touching her bottom when they went outside and when she complained she suffered the indignity of being disbelieved by members of her family.
6.	But once the offender was arrested for the other offences the complaints were renewed.  On his arrest the subject matter of counts 8 to 13 were discovered.  There were found on his secondhand computer 1,541 level 1 images of young children, 44 at level 2, 31 at level 3, 43 at level 4 and one at level 5.
7.	In relation to the offences against the other girl, the offender was sentenced to 1 years imprisonment and in relation to the images on his computer to 4 months' imprisonment to run consecutively.  Thus the total sentence was 3 years and 4 months' imprisonment and a Sexual Offences Prevention Order was imposed.
8.	The judge, His Honour Judge Compston, sitting at Oxford Crown Court, in imposing that total, carefully considered the appropriate level of sentencing by reference to the Definitive Guidelines and acknowledging, that the offences against the niece were committed before the introduction of the 2003 Act and therefore required discounting down to allow for the fact that the maximum for those offences, which covered a very wide variety was 10 years' imprisonment and not life.
9.	The judge's approach was correct in so far as the courts are bound to acknowledge the more up to date and realistic approach to sentences of this gravity.  This was pointed out in the judgment of Openshaw J in this court in R v Mansfield [2009] EWCA Crim 2158 12.  Even though the offences were committed at a time before 2003 Act was brought into force, the modern approach to the gravity of the offences is appropriate provided that account is taken of the charge by reducing the sentences to reflect the lower maximum relevant at the time they were committed.  Thus, courts are bound to look at the Definitive Guideline, identifying that guideline, not by the name of the offence which has now changed but, as the Recorder of Leeds pointed out in argument, by reference to the facts disclosed in the case.
10.	Looking at those guidelines, it seems to us that the submission advanced on behalf of the Solicitor‑General by Miss Johnson is correct.  The sentencing involved two errors.  Firstly, the sentences in relation to count 1 to 5 did not adequately reflect the gravity of that course of conduct over so many years.  It did not reflect the abuse of trust between uncle and niece.  It did not reflect the fact that the offender had threatened the girl to keep quiet and that she had obeyed those threats.  It did not reflect the physical harm caused by the digital penetration and the gravity of what would now be called oral rape.  Nor did it reflect the aggravating feature of the impact, the psychological damage to the victim.
11.	In those circumstances, we take the view that the sentence of 3 years imposed in relation to counts 3, 4 and 5 was plainly too lenient and the correct sentence should have been one of 5 years in respect of counts 3, 4 to 5.  All those offences should be concurrent, as the judge says, making a total of 5 years.
12.	The next error related to the offence so far as the girl, H, is concerned.  The Solicitor‑General does not submit that the 1 year is plainly inadequate but does submit that the sentence ought to have been consecutive.  We agree and in helpful submissions Mr Sandys did not argue on behalf of the offender to the contrary. In those circumstances the sentence of 1 year imprisonment should be made to run consecutive to of the total of the 5 years in respect of counts 1 to 6, making a total of 6 years' imprisonment.
13.	The judge rightly ordered that the 4 months' imprisonment for the images on the computer should run consecutively.  The Solicitor‑General does not submit that the total of 4 months was plainly inadequate although we should record our view that it was probably the absolute minimum that could be passed for so many offences including substantial numbers at levels 2, 3 and 4.
14.	But we bear in mind what is loosely described as double jeopardy, namely the fact that the impact of any increase on sentence will hit this offender much more gravely than it would have done had the sentences been passed originally.
15.	In those circumstances, to reflect that element, we shall change the sentence of 4 months on counts 8 to 13, so that it runs concurrently, making a total of 6 years in all.  We wish to stress that had it not been for that element of what is described as double jeopardy, the sentences would have been high and they would certainly have been substantially higher had they been committed under the 2003 Act.  
16.	What this Reference does teach however is the importance of a judge standing back at the end having conducted a systematic analysis, as this judge carefully did and asking himself whether the total properly reflects the total criminality.  It did not in this case.  So, to the extent we have identified the sentences will be increased.
17.	To reiterate the sentences on counts 1, 2 and 6 remain the same; counts 3, 4 and 5 are increased to 5 years; count 7 stays the same but is made to run consecutive; counts 8 to 13 remain the same but for the reason we will be concurrent.  Six years in all.