R v Willis (Peter)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWTON |
| Judgment Date | 17 December 1974 |
| Neutral Citation | [1974] EWCA Crim J1217-4,[1974] EWCA Crim J1217-7,[1974] EWCA Crim J1217-1 |
| Judgment citation (vLex) | [1974] EWCA Crim J1217-8 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 3854/B/74 |
| Date | 17 December 1974 |
[1974] EWCA Crim J1217-1
Lord Justice Lawton
Mr. Justice Mocatta
and
Mr. Justice Cantley
No. 3854/B/74
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. HOFFMAN appeared as Counsel for the Appellant.
This is an appeal, by leave of the single Judge, against sentences totalling five years' imprisonment passed upon the Appellant by His Honour Judge Streeter at the Crown Court at Canterbury on the 9th September, 1974. The Appellant had pleaded guilty to buggery with a boy aged eight, for which he was sentenced to five years, and with an indecent assault on a boy aged nine, for which he was sentenced to a concurrent term of three years. He asked for seven other offences of indecent assault upon small boys to be taken into consideration.
The buggery took place in the following circumstances. The Appellant, who is now twenty-four, has for some time been leading an aimless life. (He is said to be of dull intelligence but he is not sub-normal.) He is suffering from no mental disorder within the Mental Health Act, 1959. He is, however, said to have a personality disorder. He is immature, untruthful and irresponsible. He has no appreciation of the damaging effects his deviant sexual behaviour may have on the personalities of the other persons involved. For some months before he committed the offences under review in this case he had roamed around the area where he lived, doing no work and leaving both his parents and welfare officers in constant fear as to what trouble, not necessarily criminal, he was going to get into next.
On the 8th May, 1974, in the course of his roamings, he went to a place known as The Sluice at St. Mary's Bay in Kent. He had been there before and knew the place was frequented by small boys who played and fished there. On the day of the offence one of the boys said to him: "Do you want to join our club?" One of the activities of the members was undressing in sight of one another. The boys were aged between eight and thirteen. The younger ones may have reached the stage of development when they were becoming interested in their own bodies and the elder ones may have been prurient; but there was nothing to suggest that any of them were actively encouraging the Appellant to commit homosexual acts with them. The Appellant joined in their undressing activities. After some horseplay he buggered one of the youngest boys. Something of what had been going on was seen by passers-by. Enquiries started. The Appellant was interviewed by the police the next day. He admitted the buggery; he was charged and released on bail.
Whilst on bail on the 6th June he went to a fair at Rye. He there got into conversation with a boy aged nine. He started some horseplay with him during which he committed an indecent assault. The boy told his father what had happened. Thereupon the father seized hold of the Appellant. The police were sent for. The Appellant admitted the indecent assault, which had taken the form of fondling the boy's buttocks and penis. The offences taken into consideration had been committed between 1st April and 5th June, 1974. The boys involved were about the same ages as the boys named in the indictment and the indecent assaults were of the same kind as that charged in the indictment.
The Appellant had two previous convictions for indecent assault, both in 1969 and on girls aged about ten. For the first offence he was fined; for the second he was put on probation. He was examined by psychiatrists in December 1970 and again in April 1971. Following his arrest for the offences in this case he was examined yet again, this time by Dr. Cleobury. He reported to the Crown Court that the Appellant posed problems, not of treatment but of management. He found no indications that psychiatric treatment would be of much help.
This case presented Judge Streeter with a difficult sentencing problem. The experience of this Court is that judges differ considerably in the way they deal with this kind of case. The single Judge suggested that this Court might think this an appropriate occasion for giving some guidance to judges. We will try to do so; but we wish to stress that our experience has been that these cases tend to differ widely in their facts. Nothing we say in this judgment should be taken as a desire on our part to put judges into sentencing strait-jackets.
One of the difficulties which judges have in sentencing offenders of this type is their own reactions of revulsion to what the accused has been proved to have done. Right-thinking members of the public have the same reactions and expect the judges in their sentences to reflect public abhorrence of the graver kinds of criminal homosexual acts. There is a widely held opinion that homosexual offences involving boys lead to the corruption of the boys and cause them severe emotional damage. Judges of experience are often of this opinion because when considering homosexual offences they are frequently told in pleas of mitigation that the accused was made an homosexual as a result of being involved when a boy in homosexual acts by a man.
Judicial experience is not lightly to be disregarded, but it must be weighed against other sources of information; and the main one is the Report of the Departmental Committee on Homosexual Offences and Prostitution which was presented to Parliament in 1957 (Cmnd 247) and has become known as the Wolfenden Report. Many of its recommendations have been given statutory force, notably in the Sexual Offences Act, 1967, which provided that, subject to exceptions, a homosexual act inprivate should not be an offence. The most important exception relates to participating persons who have not attained the age of twenty-one. This reflects the desire of Parliament to protect the young, even from themselves. The younger a participating party is, the greater the need for protection. The revised punishments for homosexual acts in the 1967 Act provided for this since although the punishments prescribed in the Sexual Offences Act, 1956 were reduced, life imprisonment was retained for buggery with a boy under the age of sixteen. It follows, so it seems to us, that judges should always regard buggery with boys under the age of sixteen as a serious offence -and the younger the boy the more serious the offence.
Notwithstanding the provisions of Section 14 of the Criminal Justice Act, 1972, it would seem inappropriate in a case in which there were no strong mitigating factors to pass a sentence which did not result in immediate loss of liberty or with a loss of liberty for only a few months or a year or so. In our judgment the sentencing bracket for offences which have neither aggravating nor mitigating factors is from three to five years; and the place in the bracket will depend on age, and education.
Few offences, however, have neither aggravating nor mitigating factors. Many have both. When this happens the judge has to weigh what aggravates against what mitigates.
It may be helpful if we indicate what we believe to be the main aggravating factors, but we must not be taken to be making an all-embracing list or to be setting them out in order of importance.
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(1) Physical injury to the boy. This may come about as a direct result of penetration. The Wolfenden Report thought this was very rare (see para. 85); but it does sometimes occur in boys under the age of ten; and when it does the victim may be left for life with an embarrassing disability. Much more common is the case in which the offender has used violence to overcome the boy's resistance. This is a dangerous form of violence as it is used under the driving force of lust and may be maintained with fatal results if the boy struggles strongly. Offenders who use violence should be discouraged from repetition by severe sentences.
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(2) Emotional and psychological damage. Judges should not assume that either of these forms of damage is a probable result for a boy who has been the victim of buggery or that being buggered when young causes homosexuality to develop later in life (see para 98): these are possible results depending on the make-up of the boy rather than on the physical act itself. Paragraph 86 of the Wolfenden Report ended as follows:-
"On the question of more general emotional or moral damage, our medical witnesses regarded this as depending more on the surrounding circumstances, including the kind of approach made and the emotional relationships between the partners, than on the specific nature of the homosexual act committed."
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(3) Moral corruption. Although the act of buggery itself probably does not pre-dispose a boy towards homosexuality, that which leads up to the act may do so as, for example, by gifts of money and clothes and the provision of attractive outings and material comforts. In our experience enticements of this kind can be very corrupting indeed when the boys are young adolescents.
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(4) Abuse of authority and trust. Those who have boys in their charge must not abuse their positions for the sake of gratifying their deviant sexual urges. If they do so, they must expect to get severe sentences. The factor of deterrence comes in here. All who have charge of the young must be made to appreciate through the sentences passed by the Courts that society will not tolerate abuses of trust in this respect.
We turn now to the main mitigating factors.
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(1) Mental Imbalance. The Wolfenden Report rejected the theory that homosexuality is a disease (see para 30). Some psychiatrists try to persuade judges that it is and that its physical manifestations should be regarded as symptoms of the disease, rather than as breaches of the criminal law. Parliament has...
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