Attorney General's Reference (No. 104 of 2004); R v Garvey (Wayne)
| Jurisdiction | England & Wales |
| Judge | THE VICE PRESIDENT |
| Judgment Date | 25 October 2004 |
| Neutral Citation | [2004] EWCA Crim 2672 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No: 04/4724/A6 |
| Date | 25 October 2004 |
[2004] EWCA Crim 2672
IN THE COURT OF APPEAL
CRIMINAL DIVISION
The Vice President of the Court of Appeal, Criminal Division
Lord Justice Rose
Mr Justice Henriques
Mrs Justice Dobbs
No: 04/4724/A6
MR RICHARD HORWELL appeared on behalf of the ATTORNEY GENERAL
MR RICHARD CLEWS appeared on behalf of the OFFENDER
: The Attorney General seeks the leave of the court under section 36 of the Criminal Justice Act 1988 to refer a sentence said to be unduly lenient. We grant leave.
The offender was born in December 1972, so is now 31. He was indicted with a single count of assault by penetration, contrary to section 2 of the Sexual Offences Act 2003. On 28th May 2004, at the section 51 preliminary hearing, he pleaded guilty and sentence was adjourned for reports. On 22nd July 2004 he was sentenced to eighteen months' imprisonment and reminded of the notification requirements under the Sex Offenders Act 1997.
The judge who passed sentence was Mr Recorder Heaton, sitting at Leeds Crown Court. We comment in passing that we find it surprising that such a case was listed before this recorder. We would have expected it to be listed either before a circuit judge or a recorder especially authorised to deal with serious sex cases, which this recorder was not.
In summary, what happened was that, in the early hours of the morning, the offender went to the home of an adult female. He knew, for reasons which we shall come to, that the door at her premises would not be locked. He also knew that she would be on her own and that it was likely that she would be asleep. He went into her bedroom, removed his lower clothing, got into her bed, and, while she was asleep, digitally penetrated her vagina for between five and ten minutes. The lady awoke to find the offender in her bed with his arm around her. Eventually, in interview, he admitted the offence.
In a little more detail, the victim was a 23-year-old married lady living with her husband in West Yorkshire. On 30th April 2004 she went with her husband to a neighbour's home for a drink. The offender, his partner and their children were also there. During the course of the evening, when the victim was dancing, she became uncomfortable because the offender was trying to push himself against her.
Soon after midnight, she was very much the worse for drink and decided to go home. Her husband decided to stay. They only had one key, and so she announced (and the offender, no doubt, heard) that she would leave the door open. She left the party. She crossed the road to her home and went to bed.
She awakened about 5.45 am. There was an arm around her waist, which she knew was not that of her husband. She was frightened. She jumped out of bed. She saw it was the offender. He was awake and naked from the waist down. He put his trousers on and said that he loved the victim as a friend. She told him to leave. He attempted to cuddle her and say that he had meant nothing by what he had done. The lady was, understandably, frightened and felt threatened. The moment he left, she locked the door and telephoned her husband. He came back and found his wife in shock. The police were called.
The victim felt sore in her vagina. She noticed that two buttons on her pyjama top had been undone and she had an aching pain in her left arm.
Not very long after, about 7 am the same morning, the offender was arrested. It was 1st May 2004 and the new Act had come into force.
At first, he denied doing anything to the victim, but later admitted having gone to her home and found her asleep. He said that he had digitally penetrated her for between five and ten minutes, and also touched one of her breasts. He said that he had taken alcohol, cannabis and amphetamine.
He has appeared before the criminal courts on eight previous occasions, for nine offences of violence or dishonesty. But he has no previous convictions for sexual offences and he had not previously been sentenced to custody.
There is a psychiatrist's report upon the offender, which shows that, after the offence, the offender developed a major depressive disorder. He was assessed as having the potential to pose serious harm to females if his cognitive skills and awareness did not improve, and there remains a moderate risk that he will reoffend.
On behalf of the Attorney General, Mr Horwell draws attention to what he submits, rightly, are two aggravating features: first, the offence was committed in the victim's home; secondly, the victim was very vulnerable, in that she was asleep in bed and had consumed a large quantity of alcohol.
Mr Horwell draws attention to the mitigation to be found in the plea of guilty at the earliest opportunity and the development of a depressive disorder of mild to moderate intensity since the offence.
Mr Horwell referred to three authorities: Milberry [2003] 1 Cr App R (S) 399; Attorney-General's Reference No 51 of 1999 [2000] 1 Cr App R (S) 407; and Scott Stuart Brown [2002]...
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Legal Commentary
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