No: 200804892 B2 

Neutral Citation Number: [2009] EWCA Crim 265

IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Friday, 6th February 2009

B e f o r e:

LORD JUSTICE RIX 

MR JUSTICE BEAN 
 
HIS HONOUR JUDGE PAGET QC
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) 
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R E G I N A 

v 

G
 
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Mr A Davies appeared on behalf of the Appellant
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J U D G M E N T
1.	MR JUSTICE BEAN:  The appellant in this case fell to be sentenced in the Crown Court at Cardiff in respect of three counts of rape of a child under 13 and two counts of sexual assault of child under 13 when he appeared in the Crown Court at Cardiff before HHJ Thomas on 8th August 2008.
2.	The incidents all related to one complainant and had taken place in November 2007, when the appellant was himself still only 14 years old.  In view of his age, we shall refer to him only as G and the usual prohibition will apply on publishing his name and the name of the victim, who was only ten years old.
3.	He and the victim lived in the same street as each other.  Following disclosures made first to her grandmother and then her mother, the victim give a video interview to the police making a number of allegations against the appellant.  The complainant said that an initial incident had occurred when she had invited the appellant and his sister over to her house to help her complete a computer game.  When she and the appellant were alone together in her bedroom, he told her to expose her private parts to him or otherwise he would make other people not want to be her friend.  She complied with his demand and he in turn exposed himself to her.  This incident did not form the basis of one of the counts of the indictment but it was the beginning of the complainant's narrative.
4.	About two weeks after this incident, the appellant and complainant were alone together in a park as it was getting dark.  They were sitting on a bench.  The appellant demanded that she suck his penis.  He said it would be practice for when they were older.  She said she did not want to but he would not let her go.  She then put his penis in her mouth for a few seconds before telling him that she could not carry on as it was disgusting.  
5.	The next incident occurred about two weeks prior to the complainant's police interview.  She and appellant were taking part with other children in a game similar to hide and seek.  Whilst alone together, the appellant again forced her to perform oral sex on him.  On this occasion he was wearing a condom and ejaculated into it.  The appellant also forced her to masturbate him whilst he touched, and then also licked, her vagina.  This episode lasted between 15 and 45 minutes.  The appellant then inserted his penis between her buttocks from behind so that it was touching her genitalia and rocked backwards and forwards before ejaculating into a condom.  
6.	On a further occasion, the appellant dragged the victim into his house, stating that he wanted to show her his new parrot.  Once she was inside he would not let her leave.  He took her into the living room, where he lay on a sofa and made her perform oral sex on him.  He was not wearing a condom on this occasion and he ejaculated into her mouth.  
7.	The final incident had taken place, according to the complainant, about three weeks prior to the police interview in an alleyway into which the appellant had dragged her.  There he again made her suck his penis.  He performed oral sex on her and then made her masturbate him to ejaculation.  He was found guilty by the jury at his trial.
8.	In passing sentence, the learned judge, after referring to the facts, said he was not satisfied that the appellant fulfilled the criteria of a dangerous offender but said that the offences were clearly so serious that a sentence of custody exceeding the permitted maximum sentence for a Detention and Training Order was required.  We agree entirely with that and it has not been suggested otherwise.  He went on: 
"I have regard to the guidance of the Sentencing Guidelines Council.  I take into account that you are an immature young man, still only 15 years of age.  You have no previous convictions, warnings or reprimands and many people have come forward to speak highly of you as a well mannered and thoughtful young man.  
I have regard to what is said about you in the presentence report, to your general welfare, the fact that you suffer from attention deficit hyperactivity disorder and that you are correctly described in my judgment by your counsel as a naive, fragile and unsophisticated young man.  But I also have to have regard to the need to protect the public."
He proceeded to impose concurrent sentences of four years' detention in respect of each of the three counts of rape and two years in respect of each of the counts of sexual assault, making a total sentence of four years' detention.
9.	In a passage in the pre‑sentence report from the Merthyr Tydfil Youth Offending Team, we find the following: 
"During the interview with G, he presented himself as an immature young person who was clearly unable to comprehend the consequences of his actions at the time of the offence.  G describes his sexual contact with the victim as a 'game', whereby both he and the victim were experimenting.  G has continued to dispute the offence, and was initially confused with the detrimental impact and the outcome that this offence has had upon him."
10.	In granting leave, the full court (Stanley Burnton LJ presiding) observed that on one view of the facts this was children playing together and the defendant went too far.
11.	We bear in mind that the victim was only ten years old.  We are also conscious of the fact that the learned judge had had the advantage of observing the defendant and the victim throughout a contested trial.  But in his attractive submissions on the appellant's behalf, Mr Davies was content to accept in their entirety all the observations made by the learned judge about the defendant in his sentencing remarks.  Indeed, he prays them in aid.  We note in particular that the learned judge accepted Mr Davies' description of the appellant as a naive, fragile, unsophisticated and immature young man.  The most significant factor in his favour is of course that he was only 14 years old at the time of the offences and had no previous convictions, warnings or reprimands.  In those circumstances, while a period of detention under section 91 was inevitable, we accept Mr Davies' submissions that four years was too long.  We quash the sentences of four years on the counts of rape and substitute concurrent sentences of three years' detention.  The total sentence therefore becomes three years' detention and to that extent this appeal succeeds.