R v Ben Corran and Others
| Jurisdiction | England & Wales |
| Judge | THE VICE PRESIDENT |
| Judgment Date | 02 February 2005 |
| Neutral Citation | [2005] EWCA Crim 192 |
| Docket Number | No: 200404939/A2200406622/A6200406386/A4200406378/A3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 02 February 2005 |
[2005] EWCA Crim 192
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Guideline Court
The Vice President
(Lord Justice Rose)
Lady Justice Smith
Mr Justice Owen
No: 200404939/A2200406622/A6200406386/A4200406378/A3
MR N MASON appeared on behalf of the APPELLANT CORRAN
MISS S JONES appeared on behalf of the APPLICANT CUTLER
MISS G JOHNSON appeared on behalf of the APPLICANT HEARD
MR T CROWTHER appeared on behalf of the APPLICANT WILLIAMS
We have heard together four unrelated cases one appeal with leave of the Single Judge and three applications for leave to appeal referred to the Full Court by the Registrar. Each, at least in part, involves consideration of a sentence passed in relation to one or more of the new offences created by the Sexual Offences Act 2003, which came into force on 1st May 2004.
These cases give this Court the opportunity to give some further, preliminary, non-prescriptive guidance to sentencers in the Crown Court confronted by the problems to which the Act gives rise.
Before turning to the particular cases, we make some general observations. Historically the offence of rape has consisted of intentional penetration of a woman's vagina by a man's penis, without her consent, knowing that she did not consent or reckless as to consent. The 2003 Act has greatly expanded the circumstances in which sexual penetration can give rise to an offence punishable by life imprisonment. First, by section 1 the definition of rape is extended to include intentional penile penetration of the anus or mouth, so the victim may be male. Secondly, by section 2, assault by penetration extends to intentional penetration of the vagina or anus by a part of the body or anything else, so the victim may be male or the offender female. Thirdly, in relation to children under 13, by section 5, intentional penile penetration of the vagina, anus or mouth is rape and, by section 6, intentional sexual penetration of the vagina or anus is assault by penetration regardless, in each case, of consent.
It is apparent that rape can now be committed in a much wider variety of circumstances than before the Act. The age of the offender is immaterial. In all cases the maximum punishment available is life imprisonment. But the level of punishment appropriate will depend on the circumstances of the particular case.
This Court has given guidance on sentencing in relation to rape as defined in section 1 and assault by penetration as defined in section 2, in Attorney-General's Reference No 104 of 2004 ( R v Garvey) [2004] EWCA Crim 2672, where it was concluded, in paragraph 28, that the aggravating and mitigating features identified in R v Millberry [2003] 2 Cr App R(S) 142, continue to be of assistance, though the starting point for non penile penetration should generally be lower than for penile penetration. The Court also indicated that, following Millberry, for young offenders the sentence for rape and assault by penetration should be significantly shorter than for an adult.
Against that background, we turn to the offence of rape of a child under 13, contrary to section 5 of the Act. We say, at once, that no precise guidance can be given. The appropriate sentence is likely to lie within a very wide bracket, depending on all the circumstances of the particular offence. There will be very few cases in which immediate custody is not called for, even in relation to a young offender because the purpose of the legislation is to protect children under 13 from themselves, as well as from others minded to prey upon them.
The offence is of such seriousness that custody is likely to be called for even when the new sentencing provisions of the Criminal Justice Act 2003 come into force later this year. There will be some offences, for example where there is no question of consent, and where significant aggravating features, as identified in Millberry are present, where a long determinate sentence, or a life sentence, will be called for, in accordance with existing authority on seriousness and dangerousness, as amplified by the Sentencing guideline Council's guideline on seriousness, by reference to sections 142(1) and 143(1) of the Criminal Justice Act 2003, when those provisions come into force.
Although absence of consent is not an ingredient of the offence, presence of consent is, in our judgment, material in relation to sentence, particularly in relation to young defendants. The age of the defendant, of itself and when compared with the age of the victim, is also an important factor. A very short period of custody is likely to suffice for a teenager where the other party consents. In exceptional cases, of which there is one before this Court, a non-custodial sentence may be appropriate for a young defendant. If the offender is much older than the victim a substantial term of imprisonment will usually be called for.
Other factors include the nature of the relationship between the two and their respective characters and maturity, the number of occasions when penetration occurred, the circumstances of the penetration, including whether contraception was used, the consequences for the victim, emotionally and physically, the degree of remorse shown by the defendant and the likelihood of repetition. A reasonable belief that the victim was 16 will also be a mitigating factor, particularly where the defendant is young. A plea of guilty will, of course, be pertinent, in accordance with the guideline issued by the Sentencing Guidelines Council.
Pre Act authorities such as R v Bulmer 11 Cr App R(S) 586, R v Oakley 12 Cr App R(S) 215 and R v Brough [1007] 1 Cr App R(S) 55, which indicate a sentence of the order of 15 months for a defendant in his twenties, will continue to provide assistance, particularly bearing in mind that life imprisonment was the maximum sentence for the pre-Act offence of having sexual intercourse with a girl under 13.
Before the coming into force of the Sexual Offences Act 2003, sexual intercourse by a man with a girl under the age of 16 was punishable by 2 years' imprisonment, but a defendant under the age of 24 had a defence if, with reasonable cause, he believed the girl to be 16 or over and had not previously been charged with such an offence. Sexual activity other than intercourse with an under 16 year old of either sex is now a criminal offence and the penalty has been increased substantially.
Sections 9(1) and (2) makes it an offence punishable with up to 14 years' imprisonment to engage in penetrative sexual activity with a person under the age of 16, if the offender does not reasonably believe the other person is 16 or over, or under the age of 13. If the offender is under 18, the maximum sentence, by section 13, is 5 years on indictment. Section 10(2) contains similar provisions in relation to causing or inciting a child to engage in penetrative sexual activity.
These increases in the maximum penalty must be appropriately reflected in sentences imposed by the courts in relation to offenders of whatever age. The factors which we have identified in paragraphs 7,8 & as among those relevant to sentence, in relation to the rape of a child under 13, will also be relevant in relation to penetrative sexual activity, under section 9 and section 10 subject to the one obvious difference that, in section 9 and section 10 offences, where the other party is 13 or over, reasonable belief that he or she was 16 or over will afford to a defendant of any age a defence rather than, as in section 5 rape, merely mitigation. Sentencers should of course bear in mind that, as indicated by the penalties provided by Parliament, an offence contrary to section 5 will generally attract a heavier sentence than an offence, even where the victim is under 13, contrary to section 9 or section 10. The sentence for section 9 and section 10 offences is likely to be less where the victim is under 16 rather than under 13.
Section 7 provides a maximum of 14 years on indictment, for sexual assault on a child under 13. Section 8 provides the same penalty for inciting a child to engage in penetrative sexual activity. The age of the offender and consent by the victim are both immaterial to the definition of the offences in sections 7 and 8. The factors relevant to sentence will include the nature of the assault or penetrative activity, and the period of time it lasted, and all the other factors identified in paragraphs 7,8 & 9 relation to a section 5 offence, appropriately adjusted, in relation to section 7 offences, to apply to assault rather than penetration.
Pre-Act authorities will continue to be of assistance, subject to them being viewed through the prism of the increased sentence for sexual assault from 10 to 14 years. In relation to section 7 offences, the custody threshold will not always be passed. Generally speaking, despite the similar maximum penalties, section 7 offences will be less serious than offences contrary to sections 8, 9 or 10.
Sections 11 and 12, respectively, create offences for persons over 18, engaging in sexual activity in the presence of children either under 16 not reasonably believed to be 16 or over, or under 13, and for the purposes of sexual gratification derived from causing such a child to watch such activity. It is to be noted that the maximum penalty for these offences is 10 years on indictment. They will usually attract a lesser sentence than that appropriate for sexual activity with a child, in contravention of sections 5, 7, 8, 9 or 10. Factors relevant...
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