Forbes & Ors, R v, Court of Appeal - Criminal Division, September 12, 2016,  EWCA Crim 1388
|Resolution Date:||September 12, 2016|
|Issuing Organization:||Criminal Division|
|Actores:||Forbes & Ors, R v|
Case Nos: 2015/03224/A2, 2015/05026/A7, 2015/05275/A3,
2016/00581/A3, 2015/04548/A3, 2015/03093/A8,
2015/05872/A2, 2016/00134/A2, 2016/00603/A2
Neutral Citation Number:  EWCA Crim 1388
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
LORD CHIEF JUSTICE OF ENGLAND AND WALES
VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION
LORD JUSTICE TREACY
MRS JUSTICE MCGOWAN
JUDGE PETER ROOK QC
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J Newton-Price for the Appellant Forbes
T C E Brown for the Appellant Warren
A G Mainds for the Applicant Clark
J Dunning for the Applicant McCallen
N Fridd for the Appellant BD
Y Yangye for the Appellant Rouse
A Goh for the Applicant Tarrant
P Moss for the Applicant Foulkes
P McCartney for the Applicant Farlow
J Price QC for the Respondent
Hearing date: 20 July 2016
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JudgmentLord Thomas of Cwmgiedd CJ:
This is the judgment of the court to which each of us has contributed.
These appeals were heard together as they raised related issues that have arisen in sentencing for historic sexual offences. Before setting out the specific appeals, it is helpful to refer to the applicable general principles.
R v H and annex B to the Definitive Guideline on Sexual Offences
In October 2011, Lord Judge CJ set out in R v H  EWCA Crim 2753,  1 WLR 1416,  2 Cr App R (S) 21,  Crim LR 149 guidance on the sentencing of historic sexual offences.
That guidance was codified by the Sentencing Council in annex B of the Definitive Guideline on Sexual Offences published in 2013. It is a convenient statement of the applicable principles which, subject to the view we express at paragraph 20 about paragraph 9 of Annex B, a court should apply without the need to refer to R v H or other cases.
The basic principles
As is clear from paragraphs 1 and 2 of annex B, reiterating what was said in R v H:
i) The offender must be sentenced in accordance with the regime applicable at the date of sentence. The court must therefore have regard to the statutory purposes of sentencing and to current sentencing practice. Plainly the fact that attitudes have changed is of no moment as the late Dr David Thomas observed in his commentary on R v H:
``An offender brought to justice many years after the date of his offence, who complains that his sentence would have been less severe if he had been brought to justice at an earlier stage, may reflect on the fact that it was his choice not to take the initiative and admit the offences when the earlier more lenient sentencing policy was in operation.''
ii) The sentence that can be passed on the offender is limited to the maximum sentence available at the time of the commission of the offence, unless the maximum has been reduced, when the lower maximum will be applicable.
Although these principles are clear and, as we shall explain, clear guidance was given in annex B, various issues have arisen in relation to their application.
Regard to the guidelines for the equivalent offence
Paragraph 3 of the annex B provides:
``The court should have regard to any applicable sentencing guidelines for equivalent offences under the Sexual Offences Act 2003.''
This reflected  of H where Lord Judge CJ said:
``(a) Sentence will be imposed at the date of the sentencing hearing, on the basis of the legislative provisions then current, and by measured reference to any definitive sentencing guidelines relevant to the situation revealed by the established facts.
(b) Although sentence must be limited to the maximum sentence at the date when the offence was committed, it is wholly unrealistic to attempt an assessment of sentence by seeking to identify in 2011 what the sentence for the individual offence was likely to have been if the offence had come to light at or shortly after the date when it was committed. ....''
It was submitted on behalf of the prosecution that the court should, after selecting the applicable current guideline, sentence in accordance with the guideline, capping the sentence, if required, by the maximum sentence provided by the legislation for the offence in question. We do not consider that the submission is consistent with R v H or annex B. A court should, in assessing the appropriate sentence in any case, have regard to the maximum sentence applicable to the offence and not simply apply in a mechanistic way guidelines premised on much higher maximum sentences. It is important to recall that under the provisions of the Coroners and Criminal Justice Act 2009 the duty of the court under s.125 (1)(a) to follow the guidelines only applies to offences committed after the coming into force of the Act on 6 April 2010: see the commentary to the decision on R v H at  Crim LR 149 at 157.
The phrase ``have regard to'' (which was intended to have the same meaning as ``by measured reference to'') was intended to make it clear that the judge should not simply apply the relevant guideline applicable at the date of sentence, subject to any lower statutory maximum sentence applicable at the date the offence was committed, but use the guideline in a measured and reflective manner to arrive at the appropriate sentence.
As annex B makes clear, what is required is first the selection of the relevant guideline and then the determination of the sentence having regard to that guideline as adjusted by reference to the maximum sentence applicable to the offence charged. It is therefore important for the sentencing judge to guard against too mechanistic an approach, either in terms of an equivalent offence or in adopting the figures in the guideline without having regard to the fact that generally higher maxima are provided for some of the modern day offences. Whilst a judge should have regard to the current guidelines in this way, the judge should go no further and should not attempt, as the judge mistakenly did in AG Reference 27 of 2015  EWCA Crim 1538, to construct an alternative notional sentencing guideline.
The appeal of Rouse provides an illustration. The judge correctly identified that the equivalent offences to the counts of indecent assault on a male contrary to s.15(1) of the Sexual Offences Act 1956 were (a) s.5(3) of the Sexual Offences Act 2003 (the 2003 Act) in relation to inserting his penis into the mouth of the complainant, and (b) s.6 in relation to digital penetration of the anus. However he did not take into account that the modern offences have significantly higher maxima (see paragraphs 144-145 below), but in view of the aggravating features and the multiple offending count, no criticism could be made of the overall sentence imposed.
There will be occasions when the court should look at more than one guideline in order to arrive at the appropriate sentence. The appeal of Warren provides a helpful example. Warren procured scouts in his charge to inflict sadomasochistic sexual assaults on him; he pleaded guilty to charges of indecency with a child contrary to s.1(1) of the Indecency with Children Act 1960. The judge selected as the modern equivalent the offence under ss.16 and 17 of the 2003 Act - which was intended to cover cases of 16-18 year old youths who consent to the sexual activity but whose consent is vitiated by the relationship of trust with the adult in question. However this was not a happy choice as the children were all below the age of consent - half under 13 and the others 13; the two relevant guidelines were therefore those under s.8 of the 2003 Act (for those under the age 13) and s.9 (for those who were 13), but it was necessary to have regard to the fact that the maximum sentences greatly exceeded the maximum sentences under those guidelines for the offences committed: see paragraphs 63-65 below.
The type of sentence: Article 7
The court is, as has been stated, not concerned to ascertain what sentence would have been passed if the case had been tried shortly after the offence had been committed; it is only concerned to ascertain the statutory maximum. There may, however, be rare cases where a broader inquiry is necessary. An illustration is provided by the appeal of BD where BD was under the age of 14 when he committed some of the indecent assaults. As we set out at paragraph 110, BD could not have been sentenced at the relevant time to any custodial sentence for those offences because of his age. For the reasons we give at paragraphs 111-121, we concluded that, taking into account Article 7 and the common law requirements of fairness, it would not be right to impose on him a custodial sentence for those offences. The appeal in that case is to be contrasted with that of Rouse where, although only a little older, a custodial sentence would have been available at the time of the offending (see paragraph 144). The rare circumstances of the appeal in BD should therefore not operate as encouragement or licence to courts to consider a similar exercise in any other situation.
Assessment of culpability
Paragraphs 4-6 of annex B give guidance on culpability and harm caused:
``4. The seriousness of the offence, assessed by the culpability of the offender and the harm caused or intended, is the main consideration for the court. The court should not seek to establish the likely sentence had the offender been convicted shortly after the date of the offence.
When assessing the culpability of the offender, the court should have regard to relevant culpability factors set out in any applicable guideline.''
The guidelines make clear the factors that are to be taken into account, as aggravating or mitigating factors. It is essential that the court avoids double counting, by bearing in mind that the starting points will reflect the essential gravity of the...
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