Neutral Citation Number:
[2017] EWCA Crim 1276
Case No:
201701962/A2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Tuesday, 15 August 2017
B e f o r e
:
LADY JUSTICE RAFFERTY DBE
MR JUSTICE SWEENEY
MR JUSTICE HOLROYDE
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R E G I N A
v
BENJAMIN BROOKS
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Computer Aided Transcript of the Stenograph Notes of
WordWave International Ltd trading as DTI,
165 Street  London EC4A 2DY,
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
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Mr J Woodward
appeared on behalf of the
Appellant
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J U D G M E N T (Approved)
If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (
Sexual Offences (Amendment) Act 1992)
, or where an order has been made in relation to a young person.
1.
MR JUSTICE HOLROYDE: On 13th February 2017, in the Crown Court at Preston, this appellant, a highly regarded doctor of previous good character, pleaded guilty to four offences against young girls. On 7th April 2017 he was sentenced to a total of 28 months' imprisonment and the usual ancillary orders were made. He now appeals against his sentence by leave of the single judge.
2.
The
Sexual Offences (Amendment) Act 1992
applies to protect the young girls who are the victims of the sexual offences in this case. Accordingly nothing may be published in any report during their respective lifetimes which would identify any one of them as the victim of any of these offences. In addition an order made pursuant to section 45 of the Criminal Evidence and Youth Justice Act 1999 in relation to the fourth complainant and we confirm the order made below. We will refer to each of the complainants solely by initials.
3.
We can deal comparatively briefly with the facts. The appellant was 27 at the time of the offences. He is now 28. He was a qualified doctor, working at a busy hospital in Blackpool. He was well regarded by all who knew him and worked with him. He had achieved a first class degree and in his medical training was said, by at least one of the senior doctors who supervised him, to be simply "outstanding". We have read many testimonials. They speak very highly of his positive good character and attainments. They also express very clearly the utter bewilderment felt by all who know him as to his commission of these offences, which they all regard as entirely out of character for the man they know and admire.
4.
The offences were as follows. At about 8.15 pm on 20th November 2016 and therefore during the hours of darkness, the appellant approached two girls, who were standing together on a street corner. We will refer to them as "C", aged 10 and "M" aged 12. He asked them their names and ages and invited them to walk up the street with him. They refused. He then took hold of C's clothing, pinching the skin of her chest, and asked: "Do you want to see my dick?" He then began to pull his trousers down. Both girls ran away in distress. They went into a nearby shop and tearfully asked to use the phone to call their parents.
5.
Evidence of the impact of this offence, charged in count 1 as an offence of sexual assault of a child under 13, contrary to
section 7 of the Sexual Offences Act 2003
, show that C had become very nervous. She was unwilling to go out on her own. For a time, she insisted on her mother’s being upstairs with her if she took a bath. She suffered nightmares. She began for the first time to get into trouble at school. She became freshly worried when she learned of the offence charged in count 6, to which we will come.
6.
Count 2, an offence of sexual assault, contrary to
section 3
of
the 2003 Act
, was committed on 27th November 2016, at about 6.50 in the evening and therefore again when it was dark. On this occasion the appellant approached two girls, to whom we will refer as "A" and "B", both aged 14, who were near a bus stop. He asked them for advice on which bus he needed to reach a particular destination. He then said that he was going to walk anyway and invited them to walk part of the way with him on the basis that he claimed to be new to the area. They refused and walked away. He followed them. He smacked A's bottom over her clothing. She screamed. The appellant ran off. The girls reported what had just happened to two passersby. One of them chanced to work at the same hospital as the appellant and recognised him.
7.
Only about 15 minute later that evening, the appellant committed a further offence of sexual assault charged in count 3. He approached two other girls, to whom we will refer as "M" and "J". He again asked for directions to his supposed destination. He went on to talk about phones and about banks, giving the girls the impression that he was stalling for time. Suddenly he put his hand down M’s top and inside her bra. He briefly touched one of her breasts. He told her that she had "nice boobs". The girls walked quickly away. They reported what had happened to their parents.
8.
The effect of the offences committed that evening were shown by the impact evidence to be as follows. In relation to count 2, A said that she felt jumpy and scared after the offence. For a time she did not go out at all. Unhappily, when she did go out with her friend B, they again saw the appellant (this seems to have been the occasion of count 6). A also mentioned that she became upset at school whenever she saw a particular teacher who happened to bear some resemblance to the appellant and who therefore reminded her of the incident.
9.
M, the complainant in count 3, also described being very upset. She became nervous about meeting her friends. She worried about what might have happened if she had been on her own and not, as was in fact the case, accompanied by her friend, J. She was shocked when she later learned that the appellant was a doctor. She said it made her wonder whether she could trust anyone in the future.
10.
Two days later, on 29th November, the appellant was arrested. He was released on police bail to return for interview on 28th January 2017. The final offence, charged in count 6 as an offence of intimidation, contrary to
section 51 of the Criminal Justice and Public Order Act 1994
, was committed whilst the appellant was on police bail and indeed the day before he was due to return to the police station.
11.
The victim of count 6 is B, who had made a witness statement about the assault on A. She saw the appellant in the street and immediately ran to the doorway of her father's home nearby. The appellant stood by the gate and called her by name. She ran away. She took shelter in a local shop and the police were called. As a result of that offence she said she felt scared, particularly because the appellant somehow knew her name. She suffered nightmares. She would not go out on her own and she was wary of strangers.
12.
When interviewed on the following day about these offences the appellant's initial reaction was to deny them. But within a matter of a very few days, he made his first appearance before the Crown Court and immediately pleaded guilty to the offences which we have summarised. He duly received full credit for those guilty pleas.
13.
We have also referred to the appellant's positive good character and to the evidence that his behaviour in committing these offences was wholly out of character. The learned judge was assisted by both a pre-sentence report and a psychological report, which sought to explain why such a man should have committed such offences. The clear picture which emerges from the reports is of the appellant being extremely and genuinely remorseful. It seems that, sadly, he had in recent years suffered a number of bereavements and other adverse events. He had been particularly affected by the deaths of persons close to him and by the terminal illness of his stepfather. He was concurrently under very great pressure of work. He was clearly working extremely long hours. He struggled with conflicting desires, on the one hand to pursue a planned relocation with his partner of some 5 years to Australia and, on the other hand, a desire to be near to his mother, in order to assist and comfort her through her husband's illness. The reports indicated that the appellant had simply tried to bottle up all these various emotional stresses, hoping that they would go away rather than seeking any professional help for them.
14.
The pre-sentence report mentioned what we regard as two troubling comments by the appellant. He said that before at least one of the offences he had been "battling with my head, on the one hand to commit an assault and on the other not to". He also expressed the feeling that if he had not been caught as he was, he might well have continued to offend in a similar way. Perhaps partly for that reason the author of the pre-sentence report assessed him as a medium risk of sexual re-offending, with a higher risk of harm to his victim as he did. The psychologist however felt that with appropriate therapeutic and other interventions, any risk of re-offending would be very low.
15.
Counsel relied on these reports and on the appellant's good character to submit that in all the circumstances the appropriate sentence would be a suspended term of imprisonment, with requirements of receiving appropriate counselling and therapy.
16.
In his sentencing remarks the learned judge fully recognised the many good aspects of the appellant's character. He also recognised the extremely heavy punishment which the appellant has brought upon himself: the loss of his reputation; the probable end of his medical career and in addition the loss of his relationship with his partner whom he had hoped to marry but who had ended the relationship as a result of these offences. But, concluded the learned judge, immediate imprisonment was necessary because of the profound effect of his offending on his young victims. Because these were different offences, on different occasions, against different victims, the learned judge concluded that consecutive sentences were appropriate.
17.
Giving credit for the guilty pleas he sentenced as follows: count 1, 6 months' imprisonment; count 2, 6 months' imprisonment consecutive; count 3, 12 months' imprisonment consecutive; count 6, 4 months' imprisonment consecutive. Thus he reached the total of 28 months' imprisonment to which we have referred.
18.
In his written and oral submissions to this court, for which we are grateful, Mr John Woodward submits, first, that the total sentence was far too long in the highly unusual circumstances of this case. In particular, submits Mr Woodward, the learned judge gave insufficient weight to the many points which could be made in the appellant's behaviour. Secondly, submits Mr Woodward, the sentence should not only have been shorter, but should properly have been suspended.
19.
In granting leave to appeal the learned single judge, May J, indicated that in her view the second of those grounds of appeal was doomed to failure because this was a case in which immediate imprisonment was plainly called for. She was however of the view that there were arguable grounds for appealing against the length of his sentence.
20.
We have listened with very great care to Mr Woodward's submissions. It is very sad to see a man with so many positive and commendable features of his character bringing disaster upon himself in this way. The likely ending of the medical career which he had single-mindedly pursued from a comparatively young age is a very heavy blow. Whatever the psychological mechanism which was here engaged, we have no difficulty whatsoever in accepting that the commission of these offences was so wholly out of character as to cause bewilderment to all who know the appellant.
21.
We regret however that we are driven to the conclusion that there is here no basis for challenging the learned judge's decision that immediate imprisonment was unavoidable. These were serious offences, committed against girls who were vulnerable because they were young and causing them significant harm.
22.
As to the length of the sentence, Mr Woodward advances really two points. Firstly, with specific reference to count 2, he challenges the judge's categorisation of that offence under the relevant Sentencing Guideline. Secondly, but more importantly in the context of the case as a whole, he challenges the totality of the sentence.
23.
Consecutive sentences were not here wrong in principle. We can well understand why the learned judge felt that all the sentences should be consecutive. We however, having reviewed the matter, take the view that more weight could and should have been given first, to the principle of totality, and secondly, to the very heavy consequences which the appellant has brought upon himself.
24.
We do not in any way diminish the seriousness of the offences. We do however seek to recognise that this is a young man who has done much good and who has brought upon himself consequences which will adversely affect his life for many years after any sentence the court imposes.
25.
In those circumstances, we have come to the conclusion that the sentence can be reduced to some degree. We quash the decision of the learned judge that the sentence on count 2 should be consecutive to other sentences and we order that it should run concurrently with the sentence on count 3. The effect of that alteration is that the total term of imprisonment is reduced from 28 months to 22 months. We are however not persuaded by Mr Woodward that any further alteration to the sentence can properly be made. We therefore allow the appeal to the limited extent we have mentioned.