2017/03898/B5
Neutral Citation Number: [2018] EWCA Crim 510

IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Tuesday  13th  March  2018

B e f o r e:
LORD  JUSTICE  GROSS

MRS  JUSTICE  LANG  DBE

and

SIR  PETER  OPENSHAW

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R E G I N A
 
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J R W

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Mr R H Ashton appeared on behalf of the Appellant

Mr A Langdale appeared on behalf of the Crown

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J U D G M E N T
Tuesday  13th  March  2018

LORD JUSTICE GROSS:  I shall ask Mrs Justice Lang to give the judgment of the court.

MRS JUSTICE LANG:
1.  The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences.  Accordingly, nothing shall be published which may lead to the complainant being identified.

2.  On 4th August 2017, following conviction in the Crown Court at Derby before His Honour Judge Cooke and a jury, the appellant was sentenced for ten historic sex offences and two offences of cruelty to a child.  

3.  The offences and sentences were as follows. On counts 1 and 2, indecent assault on a woman, contrary to section 14(1) of the Sexual Offences Act 1956, four and a half years imprisonment on each count concurrent. On counts 3 and 4, indecency with a child, contrary to section 1(1) of the Indecency with Children Act 1960, 21 months imprisonment on each count concurrent.  On counts 5 and 6, rape, contrary to section 1(1) of the Sexual Offences Act 1956, 22 years imprisonment on each count concurrent.  On counts 7 and 8, buggery, contrary to section 12(1) of the Sexual Offences Act 1956, eleven years imprisonment on each count concurrent.  On counts 9 and 10, indecent assault on a woman, contrary to section 14(1) of the Sexual Offences Act 1956, 21 months imprisonment on each count concurrent. On counts 11 and 12, cruelty to a person aged under 16, contrary to section 1(1) of the Children and Young Persons Act 1933, 21 months imprisonment on each count concurrent.  The total sentence was 22 years imprisonment.

4.  The appellant appeals against sentence with the leave of the single judge.

5.  The complainant was the appellant's daughter who, from the age of six, had experienced some fifteen years of sexual abuse and violence.  This was a gross abuse of trust by a parent.  She was vulnerable -  she had learning difficulties and she was meek by nature.  The appellant threatened her with further violence if she reported him, telling her that no one would believe her.  As a result of being raped by him she became pregnant and had to have a termination.  She left home at age 21 in order to escape from the abuse.  Despite years of counselling, she remains damaged and traumatised.

6.  The judge was entitled to impose the sentence for the most serious offences (rape) to reflect the overall criminality of the appellant's conduct and to impose concurrent terms for the other offences.  The judge concluded that the offences of rape fell within category 1A of the sentencing guidelines (at page 10).  Ordinarily, the starting point would be fifteen years custody, with a range of thirteen to nineteen years custody.  However, the guidelines provide that offences may be of such severity, for example, involving a campaign of rape, that sentences of 20 years and above may be appropriate.  

7.  The judge concluded that this case fell into that category, since the appellant had conducted a fifteen year campaign of rape against the complainant.  The judge found that there were several aggravating factors: she was vulnerable; the offences took place in her own home, where she was entitled to feel safe; she was driven to leave her own home to escape from the appellant; and he threatened her and played on her gullibility to deter her from reporting him.

8.  The judge took fully into account the appellant's age (72) and his medical conditions.  He recognised that prison would be a difficult experience for him.  It was a mitigating factor that he had not committed any other offences, but, as the guidelines state, less weight can be accorded to previous good character when the offences are very serious.  The judge expressly had regard to the principle of totality and therefore did not apply an additional upward adjustment to reflect the lesser offences.

9.  In our judgment, the total sentence was neither wrong in principle, nor manifestly excessive.  The judge was entitled to conclude that this very serious and lengthy campaign of rape and violence by a father against his vulnerable daughter fell within the category of case which merited a sentence of 20 years custody or more.  He correctly identified the aggravating factors under the guidelines and took into account the mitigating factors: in particular, the appellant's age, his medical condition and good character.  The judge expressly had regard to totality and adjusted the sentence accordingly.  Therefore, the appellant's appeal against the total sentence of 22 years imprisonment must be dismissed.

10.  The Registrar has drawn to our attention that the offences of digital penetration of a girl under 13, contrary to section 14(1) of the Sexual Offences Act 1956, in counts 1 and 2, are subject to the provisions of section 236A of the Criminal Justice Act 2003, and so the sentences passed should have been the appropriate custodial term, followed by a one year licence period.  The combined total should not exceed the five year maximum sentence for the offence.  Since the error makes no difference to the length of the sentence which the appellant is liable to serve, and he will be on licence for up to eleven years in any event, we consider that it is unnecessary on this occasion to adjust the sentences passed on counts 1 and 2.