Case No:
201000057 A1
Neutral Citation Number:
[2010] EWCA Crim 315
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date;
Friday, 12th February 2010
B e f o r e
:
LORD JUSTICE TOULSON
MRS JUSTICE COX DBE
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THE COMMON SERJEANT OF LONDON - HIS HONOUR JUDGE BARKER QC
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
R E G I N A
v
B
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Computer Aided Transcript of the Stenograph Notes of
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Mr B Gross (Solicitor Advocate)
appeared on behalf of the
Applicant
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J U D G M E N T
1.
LORD JUSTICE TOULSON: B appeals with the leave of the Single Judge against a sentence of eight months' imprisonment passed on her for the offence of causing her 15 year old daughter to engage in sexual activity involving intercourse over a period of seven and a half months up to her 16th birthday contrary to
section 10(1)
of the
Sexual Offences Act 2003
. She pleaded guilty to the offence on a written basis on 11th November 2009 at Snaresbrook Crown Court before HHJ Lamb QC. He adjourned the case for a social inquiry report and sentenced her on 9th December 2009. It is an unusual case in the sense that the appellant was not acting for sexual gratification.
2.
The appellant came to the UK with her husband from Bangladesh in 1984, so she had lived here for more than 20 years prior to the commission of the offence. She is now aged 54. She lived with her family in Bethnal Green. She speaks no English.
3.
The victim, V, was born in 1991. V is her oldest of four children. In 2006, the appellant became concerned because V was going out with a boy from her school who was one year older than herself and the appellant feared (wrongly as it happens) that they might be having sexual relations. The appellant did not approve of this and decided to arrange a marriage for V. The ceremony took place in April 2007. The man, K, was in his late 30s. They lived together after the "marriage" at the appellant's home. After a couple of months the man began to abuse her. The relationship came to an end in 2008.
4.
The matter came to the attention of the police in June 2009 after V, now aged 17, had begun another relationship and told staff at her school that she thought her mother was planning another marriage for her.
5.
The appellant had no previous convictions but in 2006 she was cautioned for assault occasioning actual bodily harm. The victim was V. As a result of this, social services became involved with the family.
6.
The appellant did not coerce V into going through a ceremony of marriage with K. V said that she went through that ceremony and lived with him because she trusted her mother. When asked how she felt about the matter herself, she said:
"I was okay with it. Pressurised."
7.
The appellant's written basis of plea included the following:
"1. She loves and wants the best for all her children, including V.
2. She became concerned about her daughter V's behaviour in 2006, when she began seeing a boy.
3. She discussed the situation with male relatives, who suggested she should explore arranging a marriage for V and provided her with contact details for K.
4. After telephone contact over a couple of months, she arranged for K to visit V at her home. She made it plain to both K and V that it was V's decision whether to marry K. V was keen to do so.
5. She consulted with religious leaders who counselled a period of delay but V was keen to proceed to a wedding.
6. She arranged a ceremony in April 2007 during which K and V were 'married' according to custom.
...
13. The defendant was brought up in rural Sylhet and is illiterate (in Sylhet and English). She was herself married at around age 15 to an older man with two children by a deceased wife, and who died soon after."
8.
The appellant's account to the probation officer who prepared the social inquiry report about the arrangement of the "marriage" was a little different. She told the probation officer that when she suggested the arranged "marriage" to V, "after being initially resistant to it, she saw her mother's perspective".
9.
As to the appellant's sense of wrongdoing, the report stated:
"When I questioned whether there was any sense of wrongdoing, specifically, when the wedding occurred, Mrs B did not think that there was; previously stating that she was married at the same age and this is not an unusual thing in Bangladesh - where she is originally from. I highlighted that she must have been aware that they would have had sexual intercourse and that this would be, in the UK, under the age of consent. She told me that she was not aware that it was."
10.
When the matter came before the judge for sentence, he expressed scepticism about her ignorance of the law and held a Newton Hearing, during which the appellant gave evidence through an interpreter. In his sentencing remarks the judge rejected the appellant's evidence that she was ignorant about the age of consent and gave his reasons for doing so. He concluded that she had used the "marriage" as a means of controlling V. He said:
"I am not here to punish you for arranging the 'marriage' to K. I am not here to condemn the practice of arranged marriages. My task is to sentence you for the unlawful sexual activity which followed and which you knew would follow the ceremony in your home...
I accept that you have lived an isolated life in this country. I accept that you have been influenced by this man ... who seems to have come from Bangladesh, suggested the wedding and conducted the ceremony. I accept that you have followed the precedent of your own life.
Nonetheless, in my opinion, your offence is so serious that neither a fine alone nor a community sentence can be justified for it. I am therefore going to pass a sentence of imprisonment. This will be the shortest which in my opinion matches the seriousness of your offence and takes into account the mitigating factors in your case and the period you will spend on licence following your release."
11.
Mr Gross, in his clear and succinct submissions, has advanced two interlinked points. First, he argues that the appellant acted purely out of love for her daughter and in what she believed to be her best interest. Secondly, her behaviour was natural, given her cultural background. In those circumstances, he submits that the judge was wrong to conclude that the offence required the imposition of a custodial sentence.
12.
On the first point, we do not see the appellant's motivation in quite the simple and stark terms that are advanced. The probation officer explored the complex subject of the appellant's motive in her interview and expressed her conclusions in the pre-sentence report in this way:
"When explaining why this offence occurred, it is difficult to point to one area of motivation; it is clear that underlying the behaviour that Mrs B presented was the need to have her daughter in a marriage as it is evident that she felt that her daughter's behaviour leading up the offence occurring appeared to be problematic. Mrs B, it could be suggested acted in a manner that was acceptable and in keeping with her own background, however, she failed to consider the best interests of her daughter and, more significantly, in the eyes of the law - the legality of her actions within the UK. Mrs B was motivated by the need to control her daughter and felt that allowing her to get married and, therefore engage in a sexual relationship as would be expected, was the best course of action for her. In failing to consider the consequences of her actions, she allowed a man to marry her daughter who then went on to abuse her and her family in their own home. Mrs B failed to see or acknowledge these concerns until it was too late. I would suggest that the need to 'keep up appearances' and to control her children generally in a traditional and draconian manner has led to these offences occurring. Mrs B did not act with malice in arranging the marriage, but actioned steps with poor insight into their effectiveness and with a degree of ignorance that cannot be excused."
That was a balanced appraisal of her motivation by an independent professional and we see no reason to approach that issue differently.
13.
As to the second point, that the appellant's behaviour was natural given her cultural background, the judge properly reminded himself that the law in this area is for the protection of children from all cultural backgrounds. Although the appellant did not intend that V should suffer harm, the consequences of her unlawful attempt to control her daughter's life in a quite unacceptable way were seriously harmful for V. In our judgment it is impossible to say the judge's conclusion that an immediate custodial sentence was required was wrong in principle or that the term of the sentence was manifestly excessive.
14.
The court was invited to express broader comments about the appropriate sentence for this type of offence because there appears to be no decision of this court in a case of this kind. We decline to do so for two reasons. First, the facts may differ considerably from case to case. Secondly, this is not a guideline case and the prosecution has not been represented. It would therefore be quite inappropriate for us to use this occasion to offer any indication as to what might be the appropriate upper or lower band of sentence in a case of this kind. We are satisfied that the sentence imposed by the judge was not manifestly excessive or wrong in principle. That is all that we are required to decide and this decision should not be treated as deciding anything more than that narrow question.
15.
For those reasons, this appeal is dismissed.