No: 2002/04980 AO
Neutral Citation Number:
[2003] EWCA Crim 3003
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Tuesday, 21 October 2003
B E F O R E:
LORD JUSTICE DYSON
MR JUSTICE MITTING
HIS HONOUR JUDGE FABYAN EVANS
Sitting as a Judge of the Court of Appeal Criminal Division
- - - - - - -
R E G I N A
-v-
CB
- - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - -
MR S PERIAN
appeared on behalf of the APPELLANT
- - - - - - -
J U D G M E N T
1.
MR JUSTICE MITTING: To avoid identification of the victim the appellant must be referred to in any report of this case as CB.
2.
The appellant is now 34 and apart from the offences which are the subject of this application, he is a man of good character. On 30th May 2002 he was convicted after a trial of two offences of indecent assault and four offences of indecency with a child. He was acquitted of one count of attempted rape, charged as an alternative to one of the counts of indecent assault.
3.
The offences were committed between August 1986 and January 1993 when, apart from the first four weeks, he was aged between 18 and 24. The two victims were his sister-in-law's niece, N, aged 8 or 9 at the time, and his niece, S, aged 7 or 8. The applicant and the two girls shared the same cramped bedroom in his brother's house, a house which he occupied immediately after his arrival in this country on 3rd August 1986. He exploited their physical proximity to him by inviting both N and S into his bed. He kissed N's vagina and touched it with his fingers. He rubbed his penis against her thigh (count 2). He got her to suck his penis (count 3). He shared a bath with her and got her to hold his penis (counts 4 and 5). He told N to keep that conduct secret and bribed her with sweets to do so.
4.
Later on, he turned his attention to S. He got her to masturbate him and touched her vagina with his fingers (count 6). He got her to sit astride him, while he was clothed, so that she could feel contact with his erect penis.
5.
The offences were not reported until 2001. He was arrested on 8th August 2001 and interviewed. He denied the offences. After release on police bail on 13th August 2001 he attempted suicide and left a suicide note in which he made qualified admissions of improper sexual conduct with N and S, but denied raping N. He maintained his denial of all offences at trial and, after conviction, to the probation officer who interviewed him. He was sentenced to a total of nine years' imprisonment: four years' imprisonment for the indecent assault on N, and five years' imprisonment consecutive for the indecent assault on S, with shorter concurrent sentences for the offences of gross indecency. Both girls, now young women, suffered as a result of the offences: N, from depression, which led her to receive counselling. As a result of the counselling she reported the offences against her. S suffered mood swings and difficulties with relationships.
6.
When passing sentence, HHJ Paget QC noted that the effect on N and S was serious and lasting, and that he had seen their distress for himself when they gave evidence.
7.
Founding himself on a line of authorities, which includes
R v Bowers
[1999] 2 Cr App R (S) 9, Mr Perian submits that the judge should have started at the sentence which the applicant would have received if the offences had been reported at the time. He suggests that the relevant time is 1987 or 1988, when the applicant was 18 or 19. We accept that submission in principle, but the relevant dates are 1986 to 1992 when he was aged between 18 and 24 and not just 1987 and 1988 when he was aged 18 or 19.
8.
The applicant was a young adult when these offences occurred. They spanned six years. The sentence imposed on him as a young adult would not, in our view, have been much different from that imposed at 34. It was undoubtedly a severe sentence, but these were serious and persistent offences against very young girls. The applicant did not have the mitigation of a guilty plea, which would have spared N and S the further anxiety and stress of a trial. Consecutive sentences were clearly called for. However, this court has had to ask itself whether, for these serious offences of indecent assault, perpetrated on two young girls, the total sentence of nine years, even after a trial, was too long. We have come to the conclusion that each sentence was moderately too long, so that the totality was excessive. In our view, the appropriate sentence for these offences should have totalled seven years.
9.
We therefore intend to allow this application for leave to appeal and, hearing the application as the hearing of the appeal, we will quash the sentence of nine years, substitute a total of seven years' imprisonment made up as to: three years for the indecent assault on N and four years consecutive for the indecent assault on S.
10.
To that extent, and to that extent only, this appeal is allowed.