This appeal against sentence reiterated two important issues; firstly, that a judge can only sentence on findings of fact that are consistent with the verdict of the jury and secondly, that it is not permissible to sentence on the basis of a “multiple incident” in respect of a count drafted as a specimen.
The allegations in this case dated back to the 70s and involved four male victims aged between seven and 14. The appellant was a school master, lay preacher and assisted at a scout camp and he used each of those positions to abuse the boys in his care.
The allegations involved him touching the boys’ penis and on occasions getting them to touch him. He denied the allegations in interview and was convicted at trial of nine counts of indecent assault and three counts of indecency with a child and sentenced to a total of 16-years’ imprisonment.
In his ABE, one of the victims (BN) said that while the appellant masturbated him, his finger would also rub his anus and “maybe a quarter of an inch up my bum.” That victim had died before the trial and there was not a count reflecting anal penetration and importantly, the Crown did not assert that there had been any penetration.
Despite that, in sentencing, the judge referred to that passage as multiple-occasion count of indecent assault and reflected that behaviour with a sentence of six years.
Grounds of Appeal
There were three grounds of appeal against sentence: firstly, the sentence in respect of BN had been on a basis that was more serious than that advanced by the Crown; secondly, that the overall sentence did not properly reflect the gravity of the offending (it was not the most serious of its type); and, thirdly, that the judge had paid too little attention to the principle of totality.
The Court noted that the offending was serious, it had been persisted in for years, and had a devastating impact on one victim and BN, and a serious impact on each of the other victims. Notwithstanding that, the court said that a sad feature of offending of this nature was that the courts encounter more serious cases of indecent assault and that “proportionality must be maintained across the range of offending of this kind.” That led them to the conclusion that the overall sentence “was out of scale.”
The reason for that was because the judge had imposed sentences in respect of the offences against BN on the basis of digital penetration. Considering that position the court stated that: “A judge sentencing after a trial is entitled to make findings of fact provided (i) they are not inconsistent with the jury’s verdicts, (ii) the evidence allows her to be sure of the facts, and (iii) a fair procedure is followed. The judge is not bound by the way the prosecution chooses to present its case.”
However, in this case, the Crown had never suggested that the judge was entitled to sentence on the basis of digital penetration and both sides agreed that the evidence did not justify such a finding. The Court said that had the judge intended to sentence on that basis she should have indicated that intention and invited submissions upon it.
That though wasn’t the only problem with the sentence because she sentenced on the basis that two of the counts were multiple-incident counts when they were particularised as specimen counts. That mistake had been first made by the Crown in a note drafted to assist the court at sentence in which the two counts were described as multiple-incident counts.
The particulars of the relevant counts contained the words “on a date other than that…”, the effect of which is to defeat the rule against duplicity rather than to reflect multiple incidents on different dates. Assessing the authorities, the Court confirmed that the only proper inference from a guilty verdict on a count drawn in that way, is that the jury were sure that the defendant offended on one additional occasion, and it would be wrong to sentence on any other footing:
R v A (2015) EWCA Crim 177, (2015) 2 Cr. App. R (S) 12 and R v CC (2018) EWCA Crim 2704, were considered by the Court. In the latter, an indictment included count 1 which was charged a single offence, identifying a single occasion; count 2 was in the same terms but with the additional words “on a date other than as specified in count 1; and a similar pattern was repeated in counts 5 and 6. The prosecution opened the case to the jury on the basis that these counts were “designed to reflect the repeated nature of the allegations of rape”. However, on appeal, that was held to be wrong and that rather than repeated allegations, each count charged a single event. The effect of that was that with “no little regret the verdicts of the jury could not be taken to represent a wider pattern of sexual assault.”
In Turner the prosecution sought to rely upon the particulars of the two counts which included explanatory wording in brackets indicating the nature and number of assaults, but the Court said that simply introduced an element of ambiguity.
Providing assistance for future cases, the Court stated that an indictment must leave no room for misinterpretation of a guilty verdict and that the proper way to frame a multi-incident count is to specify a minimum number of occasions. If that is done, the judge will have a solid basis for sentencing. What the judge cannot do, as was made clear in R v A, is to make up the deficiency by finding facts that the jury may or may not have found established.
Concluding that the sentence on the counts dealt with by the judge as multiple-incident counts in the present case were wrong in principle, the Court quashed the sentence of six years and replaced them with a sentence of four years making the total sentence one of 12 years’ imprisonment.