Neutral Citation no. (2002) NICA 26
Ref:     
CARF3702

 
Judgment: approved by the Court for handing down
Delivered:
10.05.2002
(subject to editorial corrections)

 
 
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
 
_____ 
 
THE QUEEN
 
-v-
 
C
 
_____ 
 
CARSWELL LCJ 
 
            The applicant was convicted on 30 March 2001 at Belfast Crown Court, sitting at Antrim, after a trial before His Honour Judge Rodgers and a jury, on nine out of ten counts on an indictment charging him with sexual offences against his niece J.  Counts 1 to 8 were specimen charges of indecent assault, on all of which he was found guilty.  Counts 9 and 10 were specific charges of rape; the applicant was found guilty on count 9 and not guilty on count 10.  He was sentenced on 18 May 2001 to twelve years’ imprisonment on count 9 and eighteen months’ imprisonment, concurrent with the twelve-year term, on each of counts 1 to 8, and the judge ordered that Article 26 of the Criminal Justice (Northern Ireland) Order 1996 should be applied.  His application for leave to appeal against conviction was founded on the contention that the verdicts on counts 9 and 10 were inconsistent.  He also sought leave to appeal against the rape sentence.  The single judge refused leave on both applications.
            The applicant, now aged 44 years, is the uncle of the victim J, who is now aged 21 years.  In her evidence J described a course of conduct on the applicant’s part, which occurred during the period when she was aged between eight and fourteen years.  She said that he would take her back to his flat in Rathcoole while he got ready to go out, and while they were there he would play various games with her which were a cover for indecent assaults.  In her evidence she described these games, which went by the names of horse racing, Choo Choo and somersaults.  The latter two at least involved the applicant pressing his genital area against J’s and moving about.  The applicant also played hide and seek with J and her brother, but as she retailed it he always contrived to find her and not her brother, and when he did so he would take her into his bedroom and tickle her.
            She went on to describe two incidents of rape in greater detail.  She said that the first, charged in count 9, occurred in the applicant’s flat when she was about eight years old.  It followed on from a game of horse riding, in which the applicant had gone on all fours round the room with J on his back.  He then laid her on the settee, took her trousers and pants off, put her legs round him and inserted his penis inside her.  He then referred to “jumping the jumps”, which appears to have meant sexual movement, and ejaculated over her socks.  J was distressed and crying when the applicant took her home, but told her mother only that she was not feeling well.
            J said that the second rape incident, that charged in count 10, took place in her grandparents’ house, when she was aged about 11 years.  The applicant had found her in the course of a game of hide and seek, took her into the bedroom which he occupied in that house, laid her on the bed and removed her trousers and pants.  Her legs were dangling down the side of the bed.  He inserted his penis into her and asked her if she could feel a tickle or tingle.  After the incident he gave her money, which she used to buy her father a birthday present.
            J also said that the applicant gave her money regularly.  He gave money to her siblings as well, but larger amounts to her.  He gave her a sum of £40 one Easter when she was going on holiday to Butlins.  The applicant stated in evidence that he gave the children pocket money, because he could afford it more readily than their father, but claimed that he gave them each the same amount.   
            J did not report any of the applicant’s behaviour to her parents or anyone else, though she appreciated that it was wrong.  At first she may have entertained a feeling of guilt, and later she did not want to distress her grandmother by such a revelation.  It did not come out until May 1999, when she was aged 19.  She said that at a family party the applicant made an offensive remark, to which she took great exception.  He offered that evening to give her a sum of £200 spending money for a holiday in Gran Canaria, but in the event this sum was not paid.  She told her family about the applicant’s actions and some time later she decided to go to the police and report them.  She made a statement of complaint on 9 August 1999.
            Some supporting evidence was given by J’s brother and by a school friend of J, but it did not amount to corroboration of either rape incident.  The applicant gave evidence, in which he entirely denied that any of the games or rape incidents had taken place and stated that J had never been in his flat on her own and that someone else was always in his mother’s house when J was there.
            The trial judge, in an admirable charge which the applicant’s counsel did not question or criticise in any respect, directed the jury on the content of rape and indecent assault.  He told them that if they accepted the allegations as proved beyond reasonable doubt they would be likely to have little doubt that both indecency and rape were committed, so that it was really a factual matter whether they accepted the allegations.
            The jury found the applicant guilty of the earlier rape, that charged on count 9, but not guilty of the later one, that charged on count 10.  The case made on his behalf was that these were inconsistent verdicts and that the rape conviction was accordingly not safe.  There was no difference of any consequence between the type of evidence given in respect of the earlier incident and that given in respect of the later incident.  There was no medical or forensic evidence in either case and no recent complaint, nor was there any corroboration.  There was accordingly no discernible ground on which the jury could have accepted the complainant’s testimony on one allegation while rejecting it on the other.  If they did not regard it as reliable enough to sustain a conviction on the later rape, they had no reason to regard it as sufficiently reliable on the earlier.  They must therefore have misunderstood the case or become confused in some fashion. 
             The principles governing the issue of inconsistency between verdicts have been settled by a number of fairly recent decisions and may be summarised in the following propositions:
1.      There is no general rule that the mere fact that a jury has returned inconsistent verdicts on two counts in an indictment means that the Court of Appeal is obliged ex necessitate to quash the conviction: R v Drury (1971) 56 Cr App R 104.  There are cases in which it can properly stand, and it all depends on the facts of each case.
2.      The appellant must discharge the burden of satisfying the Court of Appeal that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts of the case could have arrived at the conclusion which they reached: R v Stone (1954, unreported), per Devlin J, approved in R v Durante (1972) 56 Cr App R 708 at 714; R v McKechnie (1991) 94 Cr App R 51.
3.      Unless there exists the essential prerequisite of a logical inconsistency between the verdicts, the question whether they can sensibly be explained does not generally arise: R v Bell [1997] EWCA Crim 1200, para 18.
4.      A guilty verdict cannot be regarded as unsafe merely because the jury returned not guilty verdicts in relation to some of a complainant’s allegations, although her credibility is in issue and her evidence is uncorroborated.  Such a conclusion would be contrary to the proposition that juries should generally be directed to give separate consideration to each count: ibid, paras 19-20.  
5.      A person’s credibility is not a seamless robe, any more than his or her reliability:  Re G [1998] Crim LR 483.  There is no reason why the jury should not believe a complainant on one count while disbelieving her evidence on another.  There may be all sorts of reasons why the jury may be convinced by a witness on one count but not on another: R v Aldred and Butcher [1995] Crim LR 160.
In the present case it appears to be possible that the jury found the complainant’s account of the earlier rape charged on count 9 convincing, but felt a degree of doubt about her consent to the later one charged on count 10, particularly in view of her receipt of money.  That would afford a straightforward and understandable explanation for the verdict of not guilty on count 10, which does not involve believing her account of one rape while disbelieving that which she gave in respect of the other.  The applicant had not made a case of consent, because his defence was a complete denial that any of the incidents had occurred, but the judge had properly directed the jury that they must be satisfied that J did not consent to intercourse taking place.  There was in our opinion no inconsistency between the verdicts, certainly none of such a nature as to make the verdict on count 9 unsafe.  We accordingly refuse the application for leave to appeal against conviction. 
 The application for leave to appeal against sentence was founded upon the submission that the term of twelve years for rape was manifestly excessive and that the judge paid too much attention to the aggravating factors.  
The applicant is now aged 44 years.  He has a minor criminal record, but none of sexual offences.  He is single and before his arrest lived with his father.  He was in steady employment, but has considerable debts because of his open-handed generosity to others.  He denies any interest in sexual matters and in particular denies any sexual interest in children.  The probation officer who prepared the pre-sentence report described his behaviour as follows:
“The victim’s description of the abuse would suggest that the defendant’s behaviour fits a well established pattern that is apparent among men who sexually abuse children.  He took advantage of his position of trust as a member of her extended family.  He encouraged her to engage in games which had sexual connotations and he rewarded her financially for her co-operation.  The abuse took place at his flat in Rathcoole, at his father’s home … and while he was on holiday with her family in Spain.  The behaviour outlined and its frequency is suggestive of some one obsessed with sexual thoughts.
 
Any discussion in relation to the impact of sexual offending on children was limited given the defendant’s level of denial.  In any case given his own limited social skills I am not sure that he would fully understand the psychological impact on a child of such experiences.”
 
He expressed his conclusion in the following terms:
 
“His behaviour as outlined by the victim is typical of men who abuse children and until he addresses its triggers and origins there will be a continued risk of re-offending.  The abuse took place within the context of a family relationship and any future contact with children needs to be monitored.  The process of registration will ensure that Social Services are alerted when he is released from prison and hopefully during his sentence he will begin to acknowledge his behaviour and be agreeable to engaging in work to help manage and reduce the risk of re-offending.  His current attitude however would be an obstacle to this work.”
 
A psychological assessment was carried out by Mr Colin McClelland, but did not add much of relevance.  He found that the applicant was a man at a reasonable level of intelligence who, in normal circumstances, should experience no difficulty differentiating right and wrong, and noted no abnormality of personality.
            Dr Alice Swann prepared a victim impact report on J, who is in a long-term relationship and was then expecting her first child.  She described the presence of some of the classical symptoms in victims of child abuse, a degree of loss of confidence and powerlessness, with a tendency to depression.  J’s relationship with males had been affected for a time, but she has been able to overcome it and formed a good relationship with her partner, which Dr Swann found encouraging.  She expressed her conclusion as follows:
“It is my opinion that the long-term prognosis for J is fairly good.  There are many positive factors.  Hopefully, with her continued relationship and the birth of the baby, this will assist her recovery.  However, I do predict that, from time to time, she will need to deal with issues, particularly if the family rift continues.  In her own quiet way, J has dealt with her abuse and investigation and court case in a most impressive manner and I would commend 
her for it.”
 
            The learned judge when passing sentence summarised these matters fully and fairly.  He enumerated as mitigating factors the absence of violence over and above the commission of the offences, the applicant’s limited criminal record and his good work record.  He went on to say, however:
“Having said all that has been said in mitigation, this remains a vile offence.  You satisfied your sexual urges by forcing yourself on a very young child.  This brought the innocence of childhood to an abrupt and premature end.  Such innocence cannot be recovered.  Out of family loyalty your victim kept the dark secret to herself for more than 10 years.  In 1999 she courageously reported it and then had to endure the trauma of giving evidence in Court.”
 
Having determined the appropriate sentences he considered and ruled out a custody probation order, and instead ordered that Article 26 of the 1996 Order should apply.
            It was right that the judge should take account of the factors to which we have referred, but it is necessary to remind sentencers, as we pointed out in R v B (2002, unreported), that such matters should properly be regarded not so much as mitigating factors as the absence of aggravating factors.  Hutton LCJ set out the proper approach in Attorney General’s Reference (No 1 of 1989) [1989] NI 245 at 251, when referring to similar factors:
“We consider that it is more accurate to describe these factors as being factors which the offender can rely on as being non-aggravating factors rather than as mitigating factors.  For example, as Lord Lane stated in R v Billam at 51:
 
‘Previous good character is of only minor relevance.’
 
The threat of sexual abuse to children in modern society has become so grave and the duty resting on the courts to deter those who may be tempted to harm little children sexually has become so important that severe sentences must be passed on those who commit rape against little children even if before the offence they had had good records and good reputations.”
 
On the other side of the account are the aggravating factors of the age of the complainant at the time of the offence, the applicant’s position of trust as a member of her family and the grooming process upon which he embarked by playing inappropriate games with her.
            We have said on many occasions that comparisons with sentences imposed in other cases are of limited assistance, and the applicant’s counsel quite correctly did not seek to parade a series of previous decisions before us.  He did refer, justifiably, to the conjoined appeals of R v McDonald and others [1989] NI 37, relied on also by the judge in sentencing, in which the court took the opportunity to examine the levels of sentencing in a number of cases involving sexual offences.  One of this group of cases, that of Trevor Thomas Taggart, concerned gross and repeated sexual offences against his step-daughter when she was aged between eight and ten years, including three rapes and two acts of buggery.  He made an early and complete admission of all the offences.  The court set aside the life sentence imposed by the trial judge and substituted sentences of fourteen years on those counts.  It then considered the case of Alexander Farquhar, who pleaded guilty to one count of rape and several of indecent assault and indecent conduct against his wife’s niece, aged between eight and nine years at the time of commission of the offences.  The court set aside the sentences totalling twenty years imposed by the judge and substituted a sentence of ten years on the rape charge, making the sentences on the other counts concurrent.
            It is clear that the sentence on the rape charge in this case is in line with those in the Taggart and Farquhar appeals, which give some guidance for sentencing for offences of this type, but every case has to be looked at individually and against the background of its own facts.  In our judgment the sentence could properly be described as stiff, but when one takes into account all the factors we could not say that it was manifestly excessive, nor was it wrong in principle in any respect.
            The applicant’s counsel also submitted that the necessary condition in Article 26(1)(b)(i) of the Criminal Justice (Northern Ireland) Order 1996 was not satisfied, that there should be a need to protect the public from serious harm from the offender, and that the judge was not justified in applying Article 26.  We are unable to accept this submission.  It is apparent from the passages of the pre-sentence report which we have quoted that there is a risk that the applicant will offend again against young children, which clearly would constitute serious harm to the public.  As we reminded sentencers in R v McGowan [2000] NIJB 305 at 310, Article 26 is designed specifically for the supervision of persons convicted of sexual offences and should ordinarily be put into operation in such cases when the conditions set out in Article 26(1) are satisfied.  In our opinion the judge was correct to do so in this case.  
            We therefore refuse the application for leave to appeal against sentence.

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
 
_____ 

 
THE QUEEN
 
-v-
 
C
 
_____ 

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