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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Homer, R. v (Attorney General's References v No 12 of 2001) [2002] EWCA Crim 353 (04 February 2002) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2002/353.html Cite as: [2002] EWCA Crim 353

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2 Monday 4th February 2002

1. THE VICE PRESIDENT: The Attorney-General seeks the leave of Court, under section 36 of the Criminal Justice Act 1988, to refer a sentence said to be unduly lenient. We grant leave.
2. The offender is 49 years of age, having been born in September 1952. On 31st October 2000, she was convicted, following a trial before Sachs J at Stafford Crown Court, of rape on count 1 and indecent assault on count 3. She had earlier pleaded guilty on counts 4 and 10, to two allegations of taking indecent photographs of a child.
3. Her partner, David Souter, was likewise convicted by the same jury of rape. He had earlier pleaded guilty to a number of offences of indecent assault, taking photographs of a child and firearms offences.
4. Sentence was adjourned pending the preparation of reports and, on 19th December, the offender was sentenced to 4 years' imprisonment for rape, 2 years concurrently for indecent assault and 18 months concurrently for the two offences of taking indecent photographs of a child. Souter was sentenced to life imprisonment, the judge indicating that he regarded 11 years as the appropriate determinate sentence with five-and-a-half years to be served.
5. In outline, the facts were these. The offender married a man called Homer in 1976. They had two children, a boy born in 1979 and a girl born in July 1982. She also had another son from a previous relationship. She and her husband separated in about 1994, and she began working with her co-defendant, Souter. They eventually started to live together as man and wife at an address in Rougely.
6. Count 10 related to an indecent photograph taken of a fifteen and a half year old girl and the offender, each wearing matching sets of semi transparent underwear. The offender pleaded guilty on the basis that, by posing with the girl, she was encouraging Souter.
7. Counts 1, 3 and 4 arose from events on the evening of a day in August 1999, when the offender and her co-accused were baby-sitting for the five month old daughter of some friends, who had gone out for dinner. They were in charge of the baby for a period of between an hour and an hour-and-a-half. During that period, Souter raped the baby. Six polaroid photographs were taken and it was a consequence of the offender handing those photographs to a business associate of Souter's, who in turn handed them to the police, many months after these events had occurred, that the criminal proceedings against the offender and Souter were instituted. Two of the photographs depicted Souter's erect penis apparently penetrating the baby's vagina. Another showed the tip of his penis against the baby's mouth. Another showed the offender with her tongue extended towards the baby's vagina.
8. The offender and Souter were arrested on 8th January 2000, which was the day after the police had received the photographs. They were interviewed. Souter claimed that the photographs had been staged and he denied any penetration had occurred. He accepted that it was his idea to take the photographs because he thought it might spice up his sex life.
9. The offender, in interview, said she was frightened of Souter, who had forced her to participate. When the photographs were taken, he had said that he would now have a hold over her, if she said anything about the firearms which he had in his possession, and to which, as we earlier indicated, a second indictment against him related.
10. The offender had already contacted the police with a view to reporting Souter, for offences of indecent assault upon another 12 year old girl.
11. It was discovered, when the baby was examined, medically, that there were tears to her hymen, providing conclusive proof of penetration.
12. At trial, both the defendants denied penetration. The offender said that she had been forced by the co-accused to do what she did.
13. On behalf of the Attorney-General, Miss Bennett-Jenkins draws attention to a number of aggravating features in this case. First, the encouragement by the offender of the fifteen-and-a-half year old girl to pose for the indecent photographs to which we have referred. Secondly, participation in the taking of the indecent photographs of the baby, depicting that to which we have referred. Thirdly, aiding and abetting rape of the baby, and, fourthly, the extreme degree of depravity shown by the co-accused, Souter, in that which he did, and, therefore, by the offender in that which she did.
14. Attention is drawn, by way of mitigating features, on behalf of the Attorney-General, to the absence of any previous convictions, so far as the offender is concerned and the fact that it was her provision of the photographs, some months after the events of August 1999, which led to the prosecution. Without those photographs these offences would not have come to light. Also, the offender was clearly influenced in what she did by Souter, who was, himself, the instigator of the commission of the offences.
15. The submission is made, on behalf of the Attorney- General, that a sentence of 4 years failed to take account of the aggravating circumstances, the need for deterrence and public concern about offences of this kind. Reference is made to one authority, R v Billam 8 Cr App R(S) 448.
16. Miss Bennett-Jenkins submits that, in the light of Billam and the aggravating features present in this case, the sentence in the court below ought to have been of the order of 8 years on this offender. That submission, we do not accept. Miss Bennett-Jenkins' alternative submission is that the sentence should have been within the range of 5 to 8 years.
17. In our judgment, the sentence of 4 years which was imposed was clearly a lenient sentence. We would certainly have expected a sentence of 5 years and it may well be that a sentence of 6 years might have been appropriate in the court below. The unusual features of the offence coming to light because of the offender doing that which she did with the photographs, and the fact that she was clearly very much under the domination of the co-accused, who was rightly sentenced in the way we have described for his very grave conduct in this case, persuades us that a sentence greater than 6 years would not have been appropriate.
18. The questions which then arise are whether the sentence which was passed can properly be described as unduly lenient and, if so, whether, having regard to double jeopardy, that is to say the fact that the offender is being sentenced a second time, and this Court's general discretion in relation to whether or not to interfere with a sentence, we should interfere with this sentence?
19. In our judgment, this is not an appropriate case in which to interfere, notwithstanding the leniency of the sentence passed by the learned judge, even on the assumption that the sentence could properly be characterised as unduly lenient.
20. One small feature of the picture is that the offender has been doing extremely well in prison. We take this into account in addition to the other circumstances of this case, in reaching the conclusion which we have expressed.