[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> J, R v [2009] EWCA Crim 2108 (10 September 2009) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2009/2108.html Cite as: [2010] 1 Cr App Rep (S) 89, [2009] EWCA Crim 2108, [2010] 1 Cr App R (S) 89

[New search] [Printable RTF version] [Help]

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Thursday, 10th September 2009

1. LORD JUSTICE ELIAS: On 17th November 2008 in the Crown Court at Hull, the applicant pleaded guilty to rape of a child under 13 (count 1); to causing a child to engage in sexual activity (count 2), to two counts of assault of a child under 13, by penetration (counts 3 and 5) and to two counts of sexual assault of a child under 13 (counts 4 and 6). He was sentenced pursuant to section 91 of the PCC(S)A 2000 by His Honour Judge Richardson as follows: count 1, 6 years' detention; count 2, 3 years concurrent; count 3, 2 years consecutive; counts 4, 5 and 6 in each case 2 years concurrent. That led to a total sentence of 8 years' detention pursuant to section 91. The judge also ordered that 332 days spent in custody should count towards sentence. He applies for leave to appeal against sentence, the matter having been referred to us by the Registrar.
2. The background is this. The applicant at the time of the commission of these various offences was only 14 years old. From early 2007 he lived with his mother and 5-year-old sister, L, the complainant in counts 1 and 2, in a flat in a hostel in Hull. The hostel catered for women who had suffered domestic violence. In October 2007 another family moved into another flat in the hostel. The family had a seven-year-old boy, C, who was the complainant in counts 3 and 4, and a 3 to 4-year-old called S, the complainant in counts 5 and 6. The mothers became friends. As a consequence the applicant became friendly with the other children.
3. The mother of C and S began to have some concerns about the applicant's conduct and she saw video clips on her son's mobile telephone which indicated that the applicant was behaving in unacceptable ways, for example, encouraging another child to punch S. On 14th January S told her mother that the applicant had "touched her la-la". C told her that the applicant had touched him also. That led to the police being contacted. The applicant was detained and interviewed and he made a number of admissions in the interview. He admitted that on two or three occasions he had anally and vaginally raped his 5-year-old sister. Before doing that he had touched her vagina and anus and continued when she told him to stop. He made her suck his penis for 3 or 4 minutes and warned her not to tell anyone (count 2). Count 3 related to an occasion when he inserted his finger into C's anus. Count 4 concerned an occasion when he masturbated C's penis and touched his bottom and warned him not to tell anyone. Count 5 concerned his inserting a finger into S's anus on two or three occasions and count 6 concerned the action where he touched S's vagina and masturbated her and again warned her not to tell anyone.
4. Credit was given in this case for the early pleas. It was noted that there was no previous conviction. The judge had the benefit of a number of reports. There was a pre-sentence report which said that the appellant did not appear to have the capacity to empathise with his victim. His IQ fell into the mild to moderate learning disability range and it was noted he had experienced inconsistent and neglectful parenting. No alternatives to custodial sentence was proposed as it was considered that he posed too great a risk to the victims.
5. There were two letters from Mr Weston, a consultant clinical psychologist, one in August 2008 and the other in April 2009. He confirmed that the IQ scores were well below the learning disability range. The applicant's maturity would be equivalent to a child at primary school age. He had no generalised idea of morality and would need supervision and direction. More recently, on 14th May, Mr Weston confirmed that it was doubtful whether the applicant should leave custody without support.
6. The judge recognised the great difficulty involved in sentencing somebody of this age, for offences of this nature. He noted that notwithstanding the guilty plea at the earliest opportunity, the sentences would have to be long. They would, of course, have been far longer had this been an adult offender, but he reminded himself that it was the welfare of the applicant that had to be at the forefront of the case. He noted the very damaging effects that offences this kind would necessarily have on the victims. He considered but rejected the possibility of invoking the dangerous offender provisions, but he concluded that the applicant had taken advantage of these very young children. He made threats against some of them. It was not a case of adolescent experimentation. He did know that what he was doing was wrong. Bearing all these factors in mind, the judge concluded that 8 years was the appropriate sentence.
7. Mr Gateshill today has made one single and simple submission. He says that bearing all the relevant considerations in mind but particularly focusing on the age, the lack of maturity and the low intelligence of this particular applicant, a sentence of 8 years was simply too high. It was the equivalent of a 12-year sentence, if there had been a trial. That, he says, is too much for a child of 14, however grave the nature of the sexual offences.
8. We think there is force in that submission. This was, as we have said, an extremely difficult sentencing exercise. There is the obvious public interest in protecting these and potentially future victims, but there is also very importantly the welfare of this child, then 14, to be taken into consideration. The balance is not an easy one. But we think that on this occasion the judge did pitch the sentence too high. We consider that an appropriate sentence would have been 9 years after a trial which, in view of the early plea should be reduced to 6 years. We think that strikes a difficult balance that has to be exercised in a sentencing exercise of that kind. To that extent we grant leave to appeal and to the extent that we substitute 6 years for 8 years, the appeal is successful.
9. LORD JUSTICE ELIAS: Mr Gateshill there is one further matter. We were very concerned that this boy had been on remand for such a long time before matters came to a head.
10. MR GATESHILL: The delay was caused by the clinical psychologist, Mr Weston, and further enquiries being put to him. There was an original report then there are two subsequent letters from him.
11. LORD JUSTICE ELIAS: There was certainly a long delay to sentence, but he seems to be on remand before then too.
12. MR GATESHILL: He was on remand before sentence, for July 2008.
13. LORD JUSTICE ELIAS: It is most unsatisfactory that a child should be in that situation for that long, waiting to know his fate. I know these things may sometimes be inevitable, but we have to say it is a matter which has caused us some concern.
14. MR GATESHILL: To be fair to counsel instructed originally visited this young person when he was in custody. He reported to me yesterday that the appellant himself was enjoying his stay at that establishment and really that was the best time of his life.
15. MR JUSTICE SIMON: That is also reflected in the 26th August report.
16. MR GATESHILL: It is a very sad case.
17. LORD JUSTICE ELIAS: That may be so for this child but the principle is a wider one.
18. MR GATESHILL: In this particular case, I do not think any harm was in fact done.
19. LORD JUSTICE ELIAS: We are grateful to you. Thank you very much.