Neutral Citation No. (2002) NICA 13

Judgment: approved by the Court for handing down
(subject to editorial corrections)
Ref:	  CARC3613  GIRC3386

Delivered:	01/03/2002

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND

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REFERENCE BY HER MAJESTY’S ATTORNEY GENERAL FOR NORTHERN IRELAND (NO 1 OF 2002) 

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CARSWELL LCJ

	On 19 December 2001 the offender was sentenced at Ballymena Crown Court by His Honour Judge Smyth QC on pleas of guilty to a number of  charges on two indictments.  On Bill number 89/01 he pleaded guilty to nine counts of rape of his daughter J.  On Bill number 90/01 he pleaded guilty to two counts of rape of his granddaughter S.  On each count the judge imposed a custody probation order, consisting of eight years’ custody and two years’ supervision by a probation officer.  The Attorney General referred the case to this court to review the sentencing, on the ground that it appeared to him to be unduly lenient.  We gave leave at the hearing to refer the case.
	In 1979 the offender commenced on a course of conduct involving the rape of J, who was then aged seven years, which continued on a constant and regular basis until she was sixteen.  He used threats and terror, persuasion and blackmail to achieve his objective and ensure that she did not tell anyone what he was doing to her.  When she was sixteen she informed the offender that she believed that she was pregnant.  His response was to tell her to have sexual intercourse with her boyfriend and allege that he was the father of the child.  
	The effect on J was severe and lasting.  As a consequence of her treatment she went through a period of very bad behaviour in her teens.  She now feels, as the victim impact report states, “hugely betrayed, robbed of her innocence and a ‘normal’ childhood”, and is trying to deal with ongoing feelings of hurt, anger, grief, loss, fear, guilt and shame.  The strain on her mental health and her marriage has been considerable, and she has on at least two occasions tried to kill herself.  She suffers from post-traumatic stress disorder, which manifests itself in periods of depression, frequent flashbacks and nightmares.  She lacks self esteem and confidence.  She finds real difficulty  trusting anyone, particularly with her own children.  She feels that she was robbed of the opportunity to have the career which she might otherwise have had were it not for her disturbed teenage period. 
	The offender’s sexual activity with his granddaughter commenced in or about the early part of 2000, when she was aged seven, and took place on the occasions when she visited her grandparents in Antrim.   It came to light after her mother found that S had vaginal bleeding and reported the matter to her doctor.  When the bleeding recurred further investigation was carried out and it became apparent that the child had been interfered with.  The medical conclusions were that she had been the victim of chronic sexual abuse.
	The offender is aged 55 years.  He is married, with five children.  His family have repudiated him since his arrest on these charges.  He claims that his feelings of attraction were only towards the two children concerned, not to other female children.  The probation officer who prepared the pre-sentence points out, however, that the offender engaged in a deliberate “grooming” process, with a degree of planning.  She expressed the conclusion in the report:
“At interview he demonstrated remorse concerning his abusive behaviour and has accepted a degree of responsibility for his behaviour.  Mr Wasson has yet to come to terms with either his own experience of sexual abuse or his abusive behaviour.  It is my assessment that until he undertakes a programme of work focusing upon his sexual offending there is a risk of re-offending.  In order to reduce this risk the following issues need to be addressed:-

•	The offender needs to develop a greater understanding of the damaging effects of sexual abuse upon victims.
•	Identify the distortion in thinking which influence his behaviour.
•	Learn control strategies to avoid similar behaviour in the future.
•	Address his own experience of sexual abuse.

These issues could be addressed through the imposition of a Custody Probation Order with the additional requirement that he complete the Alderwood Programme post release.  A period of Probation supervision would assist in monitoring the offender’s lifestyle in accordance with inter-agency risk management strategies.  Assistance would be provided regarding appropriate housing and employment.  He is aware of the consequences should he fail to adhere to the conditions of such an Order.”

	A psychiatric report on the offender was obtained by his solicitors from Dr Ian T Bownes, a consultant forensic psychiatrist.  He considered his history and present mental state in detail and concluded at page 9 of his report:
“It was clearly evident from the information he disclosed and from review of the witness statements that [the offender] had exploited the availability and vulnerability of his eldest daughter as a source of selfish sexual gratification that had evidently produced pleasurable thoughts and feelings of a nature such that he had been unable to resist repeating this pattern of behaviour with his granddaughter despite the potentially serious personal consequences.  [The offender] also displayed a range of inappropriate ideas regarding the aetiology of his offending and the impact on the injured parties that are likely to represent a substantial investment over the years in rationalising this behaviour in his own mind and avoiding fully confronting its deviant and damaging nature, and that could facilitate further similar offences.  Although the nature and context of the index offences was such that [the offender’s] behaviour is unlikely to be indicative of a more generalised pattern of predatory sexual behaviour such that [the offender] would present an inevitable ongoing risk to the safety of children in the general community, I could detect only limited evidence of any meaningful insight into the selfish, exploitative and damaging nature of his behaviour in the index offences, and the nature and duration of the pattern of offending evident was such that in my opinion that [the offender] currently presents a significant ongoing risk to the safety of young girls in the domestic setting.”

Dr Bownes considered that the offender has sufficient intellectual ability and personal resources to engage in a meaningful manner with specialist instruction and supervision, should he be motivated to do so.
	There appears to have been a considerable amount of discussion of the possible disposition of the case between counsel and, apparently, with the judge in chambers and that all were in agreement that the sentences were appropriate.  We feel that we must remind judges and counsel of the importance of adhering to the guidelines concerning discussions in chambers which we enunciated in Attorney General’s Reference (No 3 of 2000) (Rogan) [2001] NI 366 at 377.  We propose to make our own assessment of the case, though we bear in mind that Crown counsel emphasised to the judge the extent to which the complainants had been spared distress by not having to give evidence.
	The judge determined that an appropriate sentence for the offences “on an overall basis” would be ten years.  He imposed a custody probation order, consisting of eight years’ custody, to be followed by two years’ “supervisory treatment”.  He then went on to say:
“You will also be released on licence and will be subject to recall by the Secretary of State if you re-offend or in certain circumstances.”

It is apparent from the last sentence that he was purporting to invoke Article 26 of the Criminal Justice (Northern Ireland) Order 1996, having already imposed a custody probation order under Article 24.
	Mr McCloskey QC on behalf of the Attorney General submitted that the custodial element of the sentence was unduly lenient.  It was a particularly bad case, in that the offender had recommenced his sexual abuse with a second generation of his family.  He accepted that the Attorney General would not have regarded a straight custodial sentence of ten years as unduly lenient, but the custody probation order made was in his submission more lenient than such a sentence.  We agree that a straightforward sentence of ten years would have been justified, bearing in mind such mitigating factors of the case as exist, and we should not have set it aside as unduly lenient.  We do not feel able to accept the proposition that a custody probation order consisting of eight years’ custody and two years’ probation supervision is to be regarded in principle as more lenient than ten years’ imprisonment, though we accept that in reality most offenders and members of the public would so regard it.  Parliament has made it mandatory for sentencers to consider, when they have formed the opinion that a custodial sentence of twelve months or more would be justified for the offence, whether it would be appropriate to make a custody probation order.  Under Article 24(2) it is apparent that a period of supervision by a probation officer is substituted for part of the term of custody which would otherwise have been ordered by the court.  The custody probation order is to be considered and, where the court thinks it appropriate, put into effect as an alternative to a straight custodial term.  It is a valuable mode of disposition when used with proper discretion, and we do not consider that it can correctly be said in principle that it is to be regarded as more lenient than straight custody.  
Since the judge has made the custody probation order on the terms which we have set out we are not prepared to set it aside, even though we see considerable force in the Attorney General’s submission that the case called for a custodial period of the full ten years.  We are aware that under section 36(1) of the Criminal Justice Act 1988 we have jurisdiction to deal with the sentence as we see fit, once the Attorney General has referred it to the court.  We should, however, be very slow to increase a sentence on a reference unless we were ourselves satisfied that it was unduly lenient, in the sense defined by Lord Lane CJ in Attorney General’s Reference (No 4 of 1989) (1989) 11 Cr App R (S) 517 at 521.
It is evident from the judge’s sentencing remarks that he intended both to make a custody probation order under Article 24 of the 1996 Order and to order that Article 26 should apply to the offender.  As we pointed out in R v McGowan [2000] NIJB 305 at 310, Articles 24 and 26 are mutually exclusive and a court should apply one or the other.  We are ourselves satisfied that, given a choice between a disposition under Article 24 and applying Article 26, the more appropriate approach in the present case would have been to order that Article 26 should apply.  It is apparent from the passage which we quoted from Dr Bownes’ report that the public needs to be protected from serious harm from the offender, viz the risk that he may interfere with other young children.  It would have been desirable for this reason that an order under Article 26 should have been made, as the judge himself recognised.  Indeed, we consider that sentencers should always examine with care cases of sexual offences to determine the extent of the risk to the public of re-offending and whether an order under Article 26 is required.
	Nevertheless, for the reasons that we have given we do not think that we should quash the sentences and substitute for the custody probation order a straight term of imprisonment coupled with an order under Article 26.  We consider that it would have been more satisfactory if the judge had done that, but we are unable to hold that the sentences which he passed can be classed as unduly lenient within the meaning of section 36 of the Criminal Justice Act 1988.  We accordingly decline to make an order on the reference.

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND

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REFERENCE BY HER MAJESTY’S ATTORNEY GENERAL FOR NORTHERN IRELAND (NO 1 OF 2002) 

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J U D G M E N T    O F
CARSWELL LCJ

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