Neutral Citation Number:
[2017] EWCA 1145 (Crim)
Case No:
201700302 A2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Friday, 7 July 2017
B e f o r e
:
LORD JUSTICE HOLROYDE
HIS HONOUR JUDGE ZEIDMAN QC
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
MOHAMED IGAL
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
Trading as DTI
8th Floor, 165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr J Hasslacher
appeared on behalf of the
Appellant
The Crown did not attend and was not represented
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T (Approved)
1.
MR JUSTICE HOLROYDE
: The provisions of the Sexual Offences (Amendment) Act 1992 apply to protect the victim of these offences. Accordingly, no matter relating to her shall during her lifetime be included in any publication if it is likely to lead members of the public identify her as the victim these offences. This prohibition will continue unless and until waived or lifted pursuant to the Act.
2.
On 4 November 2016 in the Crown Court at Woolwich, this appellant was convicted at the conclusion of a trial before Her Honour Judge Downing and a jury of two offences of rape of a child under 13 years of age, contrary to section 5(1) of the Sexual Offences Act 2003. The offences had been committed in 2010, when the complainant was 10 years old. She lived with her aunt and uncle on a housing estate. The appellant lived on the same estate. He befriended the complainant by talking to her as she walked to and from the local shops. After a short period of casual acquaintance, in the course of which it seems the complainant had become emotionally attached to the appellant, he took her to a quiet location on the estate and persuaded her to give him oral sex. This happened more than once (the complainants evidence was to the effect that there had been 3 such occasions in all), and included ejaculation on the complainants face. Within a short time, the appellant introduced other youths to the complainant. They too wanted oral sex from her. It seems that the offending stopped at a time of increased police presence in the area, and the complainant later moved away from the estate.
The appellant was arrested on the 15 July 2015. He denied all the allegations, and denied that he was responsible for Facebook exchanges with the complainant in which he had referred to the oral sex.
3.
On 16 December 2016, the trial judge sentenced the appellant to concurrent terms of 7 years and 9 months' imprisonment on each of the two counts and made the appropriate ancillary orders. The appellant now appeals against his total sentence by leave of the single judge. He has had the advantage of representation by trial counsel, Mr Hasslacher, for whose written and oral submissions the court is very grateful.
4.
A victim personal statement which was made available to the judge for the purposes of the sentencing hearing set out in clear terms the effect of these offences on the complainant and the consequences of the offences for her relationship with members of her family. Without going into the details of personal matters, the complainant was subsequently taken into care. She was left with a feeling that she had been abandoned at a difficult time. As a result of her experiencing these offences, she indicated that she had found it difficult to trust anyone. That had affected her relationships with others. She had been in a state of mental turmoil which had affected her exam results. She had found it understandably very difficult to report matters to the police and, having done so, she had had a most anxious wait for some 18 months or more before the matter was finally resolved at trial. She summarised the effect of the offences in these stark terms, saying that they had "destroyed my life and my family".
5.
The appellant was born on 12 September 1993 and so is now 23 years old. At the time of the offences he was aged 16, approaching his 17th birthday. He had no criminal record at that time. Subsequent to these offences, and starting in 2014, he has made a number of appearances before the courts for offences involving drugs, culminating in a 6-month custodial sentence in 2016. He has no other convictions for any sexual offences.
6.
In a pre-sentence report, the author assisted the court to the extent which was possible given that the appellant was still denying his guilt and maintaining his innocence. The author of the report did not assess him as a dangerous offender as that term is defined for sentencing purposes. The learned judge did not make any finding of dangerousness.
7.
At the sentencing hearing, submissions were made by Mr Hasslacher as to the correct application of the Sentencing Council's definitive guideline on sentencing for sexual offences. Counsel argued that the appropriate categorisation of these offences under the guidelines was category 3B. The learned judge disagreed. She concluded that it was a case of category 2 harm for two reasons: firstly, because the complainant was particularly vulnerable due to her personal circumstances; secondly, because the judge treated the offence as being a sustained incident. The learned judge then concluded that the case was one of category A culpability, again for two reasons: first, a significant degree of planning was involved; secondly, she found that grooming behaviour had been used against the complainant.
8.
For a category 2A offence in the case of an adult offender the guideline indicates a starting point of 13 years' custody and a range of 11 to 17 years' custody. For a category 3B offence by an adult offender the starting point is 8 years' custody and the range from 6 to 11 years. Thus there is, as Mr Hasslacher emphasises, a very significant difference in the guideline starting point as between the two categories, although the respective sentencing ranges do overlap to a limited degree.
9.
The judge took into account as a serious aggravating factor the evidence which showed that through the appellant the complainant had been introduced to other young men who had also taken advantage or tried to take advantage of her. She concluded that in all the circumstances the appropriate sentence for an adult offender after a trial would be 12 years' imprisonment. Having regard to the appellant's young age at the material time, she reduced that to 8 years. She made a further reduction of 3 months because the appellant had been subject to a period of detention. Thus she arrived at the total sentence of 7 years 9 months' imprisonment.
10.
Before this court, Mr Hasslacher challenges the learned judge's application of the sentencing guidelines. He submits that the total sentence was manifestly excessive. We will address briefly the criticisms which he makes of the judge's approach to the sentencing exercise, but in the end the question we must consider is whether the total sentence was manifestly excessive for the offending of which the appellant had been found guilty.
11.
As to harm, we are satisfied that the learned judge was entitled to conclude that this was a category 2 case by reason of the complainant's particular vulnerability. Mr Hasslacher argues that, whilst undoubtedly vulnerable, the complainant was not particularly vulnerable. He points out that the offence is one which can only be committed against a child aged under 13, and therefore vulnerability consequent upon youthfulness is already catered for within the guidelines. Mr Hasslacher's argument in essence is that the circumstances established by the evidence did not show any particular vulnerability going beyond that.
12.
We disagree. This is a matter of degree and one which the trial judge is in the best position to assess. The evidence showed that the complainant was only 10 years old at the time, although it is said she looked older than her chronological age; for various family reasons she was largely isolated; she knew very few people on the estate where she lived; and, it seems, unhappily, that she was not being as well protected as she should have been by the aunt with whom she was living. Evidence showed, for example, that when the appellant, who must have struck the aunt as obviously much older than the complainant, visited the complainant's flat, the aunt appears to have been complacent about treating him as her niece's boyfriend.
13.
It seems to us that in all the circumstances, including in particular his introduction of other youths to the girl, that the appellant must quickly have realised that this complainant's family and personal situation was not one in which there would be any effective constraint upon her or upon him in persuading her to allow him to engage in sexual activity.
14.
All that said, and the offence for that reason properly being categorised as category 2 harm, we must respectfully disagree with the learned judge's view that it was also a category 2 case because it was a sustained incident. It seems that the learned judge was using that term, at least in part, to reflect the fact that more than one offence had been committed. That is a distinct point. We agree with counsel that the circumstances of the individual offences did not show that any one of them was particularly protracted or prolonged. In the end, however, that is not a point which assists the appellant so far as the judge's decision that this was a category 2 offence is concerned.
15.
As to culpability, the learned judge again had to determine a question of degree, namely whether there was here a significant degree of planning. Mr Hasslacher submits there was not. He argues that, whilst there may have been some planning, it could not be categorised as significant so as to make it a case of higher culpability. In our judgment, however, the learned judge was again entitled to make the decision she did. Whether or not the complainant looked rather older than her true age, the evidence does seem to us to show very clearly that the appellant quickly realised that she was responsive to his show of interest in her and he was able to take her to a secluded place where he could persuade her to engage on more than one occasion in oral sex with him. That being our decision in that regard, we do not think any purpose is to be served by a debate about the second ground on which the judge found higher culpability, namely grooming. Suffice to say that, in the context of this case, the interpretation which the learned judge placed on that word seems to us to have added nothing to the element of planning which she was entitled to find.
16.
Thus the judge was entitled, in our view, to categorise the case as she did for the purposes of the sentencing guideline. Having done so, she determined that the appropriate sentence for an adult offender would have been 12 years' imprisonment. That was towards the bottom of the category 2A range. It was in fact within the category 2B range, and only 1 year above the category 3B range for which Mr Hasslacher contends. Bearing in mind the serious aggravating feature rightly identified by the judge of introducing other young men to the complainant, and bearing in mind that the appellant was guilty of more than one offence, we think that no possible criticism can be made of the judge's decision that 12 years would have been the appropriate sentence for an adult. Indeed, it may be said that a rather longer sentence for an adult could not have been the subject of any successful complaint.
17.
We come finally to the point which merits particularly careful consideration and to which the single judge drew attention when granting leave to appeal, namely the extent to which the appropriate sentence for an adult fell to be reduced by reason of the appellant's age at the time of the offences. It is of course always necessary in the case of a young offender to consider his maturity as well as his chronological age, and when a custodial sentence is found to be unavoidable it is usual for the length of the sentence to be significantly shorter than would be appropriate for an adult. Although the position is now different under the guideline published by the Sentencing Council which has very recently come into force, the former guidance of the Sentencing Guidelines Council, which was current at the time of this appellant's sentencing, suggested that it may be appropriate, depending on maturity, to consider a starting point of between half and three-quarters of what would have been considered appropriate for an adult offender when sentencing an offender aged 15 to 17.
18.
In the context of a case such as this, in which the age of the complainant is an ingredient of the offence, it must also be borne in mind, as Mr Hasslacher rightly emphasises and as the judge rightly recognised, that a young offender is not only young, he is also comparatively close in age to his victim. In those two ways, therefore, his position is significantly different from that of an adult offender.
19.
We have considered this point with care. Our conclusion is that the learned judge made a reduction from the notional adult sentence which was in accordance with the guideline. Had there been but a single offence it might have been appropriate to make a rather greater reduction. But, as we have said, the judge here was passing concurrent sentences to reflect more than one offence of oral rape.
20.
For those reasons, we conclude that this sentence, although a difficult one for a young man to have to serve, cannot be said to have been manifestly excessive. We are grateful to Mr Hasslacher for his assistance, but we are unable to accept his submissions. The appeal accordingly fails and is dismissed.