A total sentence of five years' imprisonment for indecent assault and attempted rape on the defendant's grandchildren was not manifestly excessive, the judge could have passed consecutive sentences for the indecent assaults but had had in mind the principle of totality.Appeal with leave of the single judge, against a total sentence of five years' imprisonment, imposed at Snaresbrook Crown Court on 8 May 2003 following a plea of guilty, for six counts of indecent assault on a female and attempted rape. The two victims were the defendant's ('D'), natural grandchildren and were each between eight and thirteen years of age at the time of the offences. The counts represented specimen counts for indecent assaults that happened two or three times a year to each girl and consisted of touching over and under clothing and digital penetration. In 2001 the family went camping in France. During a storm one of the victims became frightened and got into D's bed. D was naked and undressed the victim, he attempted to rape her but was unable to achieve an erection and abandoned the attempt. Both the victims told their mother but she disbelieved them, however, due to one of the victim's behaviour social services became involved and were told of the abuse. D was arrested in January 2003 and made full and frank admissions. D appealed sentence on the ground that it was manifestly excessive given; (i) D was aged 73; (ii) his wife had suffered diabetes and breathing difficulties and due to her condition they had ceased to have sex twelve years ago; (iii) the offences were committed whilst he was impotent; and (iv) he had a good employment record. The judge had given insufficient credit for D's good character and his plea of guilty. D further contended that the court should treat the attempted rape as no more than a serious indecent assault.HELD: (1) The court had to bear in mind there was a course of conduct over a period of nine years involving two young girls. D had been in a position of trust and had breached that trust. D pleaded guilty to attempted rape and it was that offence that fell to be dealt with. (2) The judge could have imposed consecutive sentences for the indecent assaults and the sentence of five years for the attempted rape had to be seen in the context of his behaviour as a whole. The judge had in mind the totality of the sentence and the sentence passed was not manifestly excessive.Appeal dismissed.

[2003] EWCA Crim 3212