A sentence of three years and ten months' imprisonment on one count of rape and two counts of indecent assault, which represented a course of conduct of abuse by a father against a daughter, was unduly lenient.Application by the Attorney-General to refer a sentence under s.36 Criminal Justice Act 1988. On 20 June 2002 at Leicester Crown Court, before HH Judge Benson, the defendant ('M') pleaded guilty to one count of rape. Previously on 25 March 2002, at a plea and directions hearing, he had pleaded guilty to two counts of indecent assault. He was sentenced to three years ten months' imprisonment for rape and 18 months for each count of indecent assault. Between the age of 14 and 16 M regularly raped and indecently assaulted his daughter, ('V'), now aged 35. On Saturday mornings V's mother worked. Whilst she was out and before V got up M went to her bedroom and touched her. He showered her and washed her, sometimes getting into the shower with her. One Saturday she was made to go to his bedroom, made to undress and was raped. This then happened every Saturday. V was too frightened to tell anyone as M had warned her not to. Once when she was 15 she threatened to tell and M seized her by her throat and threatened to kill her. When V was 17 years old M became a Jehovah's Witness and the abuse stopped. V didn't reveal anything until late 2001 when she made a statement to the police. Shortly before she made the statement, in November 2001 M surrendered to the police for interview. He admitted regularly indecently assaulting V but claimed no sexual intercourse had taken place. He was interviewed again and the specific allegations of V were put to him. Again he admitted touching V but said he could not remember any of the other allegations. He pleaded guilty to the count of rape on the first day fixed for trial. M's plea was tendered on the basis that the counts represented a course of conduct of rape and indecent assault when V was aged between 14 and 16 years old. The Attorney-General ('AG') submitted that meant he had raped V over 100 times. The judge was wrongly told by the prosecution that the offences had only come to light because M had surrendered to the police. The judge commented that those were "extraordinary circumstances" and by virtue of those circumstances he passed what he recognised as a lenient sentence. The AG referred the sentence as unduly given the aggravating factors of: (i) the offences happened in the family home, against the daughter, which was a gross breach of trust and abuse of power; (ii) it was repeated every Saturday for two years; (iii) V was only 14 when the abuse started; (iv) the offences were planned as his wife was out; and (v) the impact upon V and her mental state was of particular seriousness, she knew each Saturday that she would be raped and she had lived with the knowledge and effect for 17 years. The mitigating factors were the plea of guilty, albeit late, and the absence from M's record of any previous convictions, however, that was of minimal effect because the gravity, seriousness and length of time of the offences precluded M from saying he was of good character. The AG referred the court to Attorney-General's References No.4 and 7 of 2002) sub nom R v Lobban and R v Sawyers (2002) 2 Cr App R (S) 347 and submitted that the court of appeal should deal with the matter on the basis of the actual facts as distinct from the basis of the inaccurate belief of the sentencing judge. The starting point should have been 15 years, relying on R v Milberry (2003) CLR 207.HELD: (1) The sentence passed was unduly lenient. If there had been a trial the court below should have had a starting point of 15 years' imprisonment. The degree of harm and culpability were high. However, on the other hand the level of risk presented by M to society was very low. (2) Taking into account the principle of double jeopardy and the early admissions made by M to the police the sentence of three years ten months would be quashed and a sentence of ten years substituted for the count of rape with the 18 months imposed for indecent assault to run concurrently. (3) The indictment had not been drafted to reflect, by number and date, the course of conduct. There was only one count of rape and two of indecent assault. The sentencing judge proceeded on the basis, which all agreed was appropriate, that the counts represented specimen counts of a course of conduct. The question arose as to whether it was proper to do so. M did not then, or now, suggest that that was wrong but the point required resolution. (4) Where a defendant pleaded guilty on an agreed factual basis and was admitting multiple offences he could be sentenced accordingly. In a case of multiple offences there should be a written basis of plea for the avoidance of doubt. However, as M had admitted guilt for a course of conduct it was appropriate for the judge to sentence him with regard to the basis on which the plea was tendered.Leave to refer granted. Application allowed.

[2003] EWCA Crim 1078

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