RJ [2019] EWCA Crim 1269
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RJ [2019] EWCA Crim 1269 is an appeal against sentence heard by Lord Justice Holroyde, Mr Justice Choudhury and His Honour Judge Field QC, in which the Court of Appeal dismissed an appeal against a total sentence of six and a half years’ imprisonment imposed for historic sexual offences committed against the appellant’s younger half-sister nearly 50 years earlier.
The appellant was convicted following trial on 4 October 2018 at the Crown Court at Isleworth before His Honour Judge Curtis-Raleigh. He was sentenced to 18 months’ imprisonment on count 1, indecency with a child contrary to section 1 of the Indecency with Children Act 1960, three and a half years’ imprisonment concurrent on count 2, indecent assault contrary to section 14 of the Sexual Offences Act 1956, and three years’ imprisonment consecutive on count 3, a multiple incident count of indecent assault on at least three further occasions. The total sentence was six and a half years’ imprisonment. Leave to appeal was granted by the single judge.
The offences were committed between 1968 and 1971 when the appellant was aged between 17 and 20 and the complainant J was aged between 8 and 10. All the offences took place at night in J’s bedroom at the family home while the parents were downstairs. Some or all were committed after the appellant had been drinking. Count 1 related to the first offence, when the appellant exposed his penis and asked J to touch it. The offending escalated rapidly. Count 2 related to the first occasion when the appellant made J perform oral sex on him. J said that after the first such occasion the appellant would repeat the act every weekend that he could. Count 3 related to at least three further occasions of oral rape. When J was about 9 she told her mother what was happening, but her mother did not believe her and called her an evil child. The offending stopped thereafter, but the matter was not reported to the authorities until many years later.
The appellant was arrested in February 2017. In interview he denied the allegations, describing them as rubbish. He claimed to have had a good relationship with his family until a row at his 40th birthday. He maintained his denial at trial but was convicted. At the time of sentence he was aged 67. His only other conviction was for theft in 1983, which was irrelevant to the sentencing decision. No pre-sentence report was obtained.
In her victim personal statement J said she was still hurt by her mother’s failure to believe her disclosure and felt ashamed that she had been unable to do anything years ago. She said the offences had destroyed her relationship with her mother and taken her childhood away from her. When the appellant returned to live at the family home when she was about 13 she no longer felt comfortable in her own home and became a shadow of her former self. Despite her happy marriage and loving relationship with her own children, she continued to suffer flashbacks. After the appellant’s arrest the memories came flooding back, she became depressed, was signed off work and was prescribed antidepressants.
The judge was required by R v Forbes [2017] 1 WLR 53 to sentence in accordance with current sentencing practice but could not exceed the maximum sentences available at the time of the offences. Those maxima were two years’ imprisonment on count 1 and five years’ imprisonment on counts 2 and 3. It was common ground that the modern equivalent of counts 2 and 3 would be rape of a child under 13 contrary to section 5 of the Sexual Offences Act 2003, which carries a maximum of life imprisonment, and that the offences would today fall within category 2B of the relevant guideline with a starting point of ten years’ custody and a range of eight to thirteen years. In accordance with Forbes the judge was required to use the guideline in a measured and reflective manner to arrive at an appropriate sentence, rather than simply capping it at the historic maximum.
In his sentencing remarks the judge emphasised the lasting effect of the offences on J. He noted that if similar offences were committed today the sentence would clearly be in double figures. Important factors were the commission of the offences in J’s own bedroom where she was entitled to feel safe, and her young age. He took into account the mitigation advanced by Mr Fell: the appellant was aged 17 or 18 when the offending began, he was now 67, he had led a blameless life in the intervening years save for the single unrelated offence, and he was in poor health with an elderly wife largely dependent on him.
On appeal Mr Fell submitted that the total sentence was manifestly excessive having regard to the appellant’s age at the time of the offences, his age at conviction, his previous effective good character, his good behaviour since the offences and his ill-health. In oral submissions he added that the appellant had suffered a fall in prison at the beginning of 2019 in which he fractured his hip and arm and was now confined to a wheelchair, which added to the difficulty of serving a prison sentence. The principal focus of the submissions was on the appellant’s youth at the time of the offences.
The Court of Appeal held that the judge had been faced with a difficult sentencing task. He had to make measured and reflective use of the guideline for current offending and take into account that the appellant was only 17 when the offending began, making it appropriate to consider the guideline for sentencing young offenders, and was only a very young adult at the time of the latest offences. The court noted that no submission had been made that the appellant was particularly immature for his age. The appellant’s good conduct over many years was a factor in his favour, particularly bearing in mind his youth, but as both the guideline and Forbes at paragraphs 23 to 24 made clear, this could carry only limited weight against such serious offending. Ill-health could also in general carry only limited weight when balanced against the seriousness of the offending. Whilst the court recognised that serving a prison sentence had become harder for the appellant as a result of his recent injury, it did not regard that development as a factor bearing upon the sentencing decision.
The court held that the judge clearly had all relevant considerations well in mind and carefully balanced them. The total sentence of six and a half years’ imprisonment was within the range properly open to him and could not be said to be manifestly excessive. In short, the appeal against sentence was dismissed.