Attorney General's Reference (No. 52 of 2003); R v Webb
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 09 December 2003 |
| Neutral Citation | [2003] EWCA Crim 3731 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 2003/04711/A2 |
| Date | 09 December 2003 |
[2003] EWCA Crim 3731
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
The Lord Chief Justice of England and Wales
(The Lord Woolf of Barnes)
Mr Justice Gibbs and
Mr Justice Fulford
Attorney General's Reference No. 52 of 2003 Under Section 36 of The Criminal Justice Act 1988
No. 2003/04711/A2
MR S DENISON appeared on behalf of the ATTORNEY GENERAL
MISS M LEWIS appeared on behalf of THE OFFENDER
Tuesday 9 December 2003
Her Majesty's Solicitor General applies under section 36 of the Criminal Justice Act 1988 for leave to refer to this court for review a sentence which he regards as unduly lenient. We have granted leave.
On 24 July 2003, in the Crown Court at Cardiff, before His Honour Judge Gaskell, the offender, who is now aged 30, was convicted after a trial of the following offences: count 1, indecent assault contrary to section 14(1) of the Sexual Offences Act 1956; count 2, indecent assault against the same section; count 3, indecency with a child contrary to section 1(1) of the Indecency with Children Act 1960; count 4, attempted rape contrary to section 1(1) of the Criminal Attempts Act 1981; and count 5, indecent assault contrary to section 14(1) of the Sexual Offences Act 1956.
He was sentenced to a total of four years' imprisonment and was ordered to register as a sex offender for life, and he was disqualified for life from holding employment which involves working with children. The sentence of imprisonment was made up as follows: on count 1 (indecent assault), 12 months' imprisonment; on count 2 (indecent assault), twelve months' imprisonment; on count 3 (indecency with a child), 18 months' imprisonment; on count 4 (attempted rape), four years' imprisonment; and on count 5 (indecent assault), 18 months' imprisonment. All the sentences were ordered to run concurrently.
Counsel who has appeared on behalf of the Solicitor General before this court was not counsel who appeared on behalf of the prosecution in the court below. As far as we are aware, counsel then appearing for the prosecution did not give the experienced trial judge any assistance with regard to the two guideline cases which had recently been before this court in relation to sentencing in cases of this sort. In the first, R v Milberry, Morgan and Lakenby [2003] 1 Cr App R 396, this court reconsidered sentencing in cases of rape, having regard to a report of the Sentencing Advisory Panel, and sought to give assistance to courts as to the appropriate level of sentencing for offences of this nature. The second case was Attorney General's References Nos 91, 119 and 120 of 2002 ( R v E, R v K and R v G) [2003] 2 Cr App R 151. If, as we consider should have happened in the court below, the attention of the judge had been drawn to the two authorities, we cannot believe that he would have imposed the sentences which he did, having regard to the facts which it will be necessary to describe.
It is part of the duty of prosecuting counsel to draw to the judge's attention before sentence is passed any relevant guideline cases and to have copies available for him (or her) to look at if he (or she) wishes to do so. The judge, if he (or she) is unaware of the authorities or needs reminding of them, should take advantage of that offer so that he (or she) can have the guidelines well in mind when he (or she) comes to pass sentence. This court is well aware that when prosecuting counsel appear before an experienced judge they sometimes feel diffident about taking such action because they expect an experienced judge who is familiar with sentencing tariffs to be familiar with the guidelines and that he would perhaps be offended that counsel should take that action. In our judgment counsel appearing for the prosecution should not be so inhibited. It is the duty of prosecuting counsel to draw relevant guideline cases to the judge's attention. The judge must understand that that is the duty of counsel. It would be quite wrong in those circumstances to suggest that counsel should not do his duty in the way indicated. It is easy enough for the judge to say, "Thank you for the offer of assistance but it is not required."
6. This case demonstrates that perhaps even experienced judges, although the guidelines should be well known, may not be as familiar with them as they should be and in consequence they impose inappropriate sentences. That does not benefit the administration of justice. The public are given the impression that courts are not taking cases as seriously as they should or, alternatively, that they are imposing sentences which are too high. In either event it may lead to cases coming before this court in a way which would not have occurred if attention had been paid to the guidelines in the way we have indicated. We very much hope, in view of what has been said in this court today, that the practice to which we have referred will be meticulously followed by prosecution counsel in future. If it is not, then counsel involved in a case which comes to this court as a result of there being non- compliance may expect to receive a very frosty reception.
The facts of this case can be summarised as follows. Between August 1997 and March 1998, when the victim (who should not be named or identified) was aged 11, the offender committed indecent acts with her when she was left in his care, progressing from kissing and cuddling her to undressing her, touching her vagina, making her perform oral sex, attempting to rape her and, finally, indecently assaulting her by inserting an object into her anus.
The victim is now aged 17. She was born on 18 May 1986. She is the second of four children born to her parents, having an older brother aged 20, and sisters who are twins. The family were practising Jehovah's Witnesses and regularly attended the local...
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