Neutral Citation Number:
[2014] EWCA Crim 2907
Case No:
201403968/B5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Thursday, 18th December 2014
B e f o r e
:
LORD JUSTICE ELIAS
MR JUSTICE SIMON
MR JUSTICE COX DBE
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R E G I N A
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K
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Miss J Beckett
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J U D G M E N T
LORD JUSTICE ELIAS: On 24th July 2014 in the Crown Court at Bradford before the Recorder of Bradford (His Honour Judge Thomas) the appellant was convicted of assault of a child under 13 by penetration, contrary section to 6(1) of the Sexual Offences Act and a separate offence of rape, a vaginal rape of a child under 13, contrary to section 5 of that Act. He sentenced to 4 years for the rape and 2 years concurrent for the assault. He was 14 at the time of these offences, so the sentence was one of 4 years' detention in a young offender institution, pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. The time spent on remand was allowed to count in the usual way. He now appeals against sentence by leave of the single judge and he also renews an application to appeal against conviction after refusal of leave by the single judge.
The background is this. On 27th January 2013 the complainant, GR, was then 12 years old. She agreed to meet the appellant, who was then 14, near some shops close to her home in Bradford. They had previously contacted each other on Blackberry telephone messaging service but they had never met in person until that date.
The prosecution case was that the appellant had been with a group of youths where he met GR. She sat on his knee but declined his advances when he tried to kiss her. He took her into an alleyway and put his hand into her knickers. He touched her anus with his fingers and then inserted his penis into her anus. He put his finger into her vagina. He touched her breasts under her clothes and attempted to lick her vagina. He then inserted the tip of his penis into her vagina (that was the rape count). He pulled her by the hair and attempted to force his penis into her mouth. She managed to make good her escape and ran to her grandfather's house and later went home.
Medical evidence showed that she had sustained a number of superficial wounds about her body consistent with having been held against a rough surface with her legs forced apart. The trace of blood was found in her knickers. There was no evidence of infection on menstrual bleeding and so it appears to have been due to a graze to the vaginal caused by penetration. A swab taken from her breast contained the appellant's DNA.
The appellant lied in interview. He initially maintained that he had not met the victim and had never had sexual contact with her or anyone else. It was at his third police interview that he admitted meeting her but denied touching her breasts.
When giving evidence at trial he said that he had met her, that they hugged and kissed and with her consent he had touched her bottom and touched her breast underneath her clothes and underwear but she was happy and normal when she left him.
The evidence of the victim was not entirely satisfactory. She told a number of lies in her account. She had initially told her mother she was going to meet a friend when she had in fact arranged to meet the appellant. She did not make any immediate complaint when she returned home about the alleged incident. She lied to police officers who had taken details of her account and she said she had initially not named the appellant because his mother knew someone in her family.
There was an application for the case to be dismissed at half time on grounds there was no case to answer. Reliance was placed on the fact that the victim, as we have indicated, was in many respects an unreliable witness and had given inconsistent evidence. It was said that her evidence was not sufficiently credible.
In addition, a co-accused had made a similar application and that was successful. The submission of no case had some legs as the judge recognised in his ruling. There were very real criticisms to be made of the complainant's evidence as we have indicated. However, she had all times asserted that there had been the sexual assault including sexual penetration and her evidence had not wavered about that. As the judge noted too, there was independent evidence consistent with the Crown's case and her allegation of rape. There was the DNA evidence from the appellant found on her breast, there was the evidence of blood and some grazing of her intimate parts and, as the judge rightly noted, it would be rare for a judge to refuse to leave to a jury allegations of this nature.
The judge, it is true, did accede to the half-time application in relation to another boy, the other co-accused. We have not seen the ruling with respect of him but the judge did refer to the position of that defendant in his summing-up, when he said this:
"Just pausing there for a moment, [GR], of course, in her video recording had spoken about, not just [HK], being responsible for their sexual activity, but also being held by somebody else. When she came to give evidence before you of course in relation to the then defendant [KH], she gave an entirely different account of it and spoke about [KH] only at the very end of events giving her a cuddle before she went off, when all the sexual activity down the alleyway had finished."
One of the submissions advanced before us is that having allowed the submission with respect to the co-accused it should have been allowed here too. We wholly reject that submission. It is plain from that part of the transcript we have read that the position of the co-accused was an entirely different one. The evidence in relation to this applicant was very different and there was the supporting evidence which we have indicated over and above the testimony given by the victim herself.
In our judgment, the judge was fully entitled to leave this matter to the jury to assess the witnesses and to evaluate the evidence. He obviously gave the matter careful thought and reached a conclusion which he was perfectly properly able to reach. We therefore do not grant leave to appeal against conviction.
As far as the sentence is concerned, the judge indicated that if the appellant had been an adult he would have received a custodial sentence of 8 years. In the circumstances, given the age, he reduced this to 4 years' imprisonment in relation to the rape. He did not think a consecutive sentence would be appropriate because of the age of the appellant and also because the offence was committed on the same occasion.
The short point in relation to the sentence advanced by counsel is that insufficient consideration was given to the age and perhaps more importantly to the maturity of this particular appellant. It is said that in the circumstances something more than a reduction by 50% was appropriate.
It is unfortunate that he was sixteen-and-a-half by the time that he was sentenced. But the judge did recognise that he was only 14 when he committed the offences. The judge also had the victim impact statement which indicated, not surprisingly, that this young girl, not yet a teenager, had been badly affected by the experience. Nonetheless, we take into account the fact that a 4 year sentence is a very long time for a 14-year-old boy albeit now 16. We have reached the conclusion that the judge ought to have allowed a little more credit in this case, bearing in mind the age and maturity. We are aware the defendant had been the subject of a referral order on two occasions, one for burglary and one for theft of a cycle but they were very different offences to the sexual offences committed here. We also respectfully bear in mind that the judge was in a particularly good position to assess this defendant during the trial.
Nonetheless we have come to the view that in all the circumstances, given his age at the time of committing this offence and given the maturity or lack of it, that an appropriate sentence would have been one of 3 years' detention in a young offender institution. Accordingly we uphold the appeal in respect of sentence and for the sentence of 4 years' detention imposed by the learned Recorder, we substitute a sentence of 3 years' detention. To that extent the appeal against sentence succeeds.