Imprisonment - Length of sentence

R v X: Court of Appeal, Criminal Division (Lord Justice Pitchford, Mr Justice Wilkie, Mr Justice Holroyde): 6 September 2011

The complainant, S, was the defendant's granddaughter. The defendant suffered from cancer and underwent surgical, chemical and radiotherapy treatment. He also suffered amputation of one of his legs. Subsequently, when S was 13 years old, she fell out with her mother and went to live with the defendant who told her that her mother did not like her. He also gave her cannabis and alcohol.

Subsequent to S going to live with the defendant, he started to abuse her. He undertook a persistent course of conduct, using coercion and drugs, which involved the regular touching of S's breasts (count 1). The defendant also undertook a persistent course of conduct, using drugs and alcohol, which involved him putting his fingers into S's vagina (count 2).

Count 3 consisted of a single act by the defendant, wherein he licked S's vagina with his tongue. On one occasion, the defendant also attempted unsuccessfully to put his penis into S's vagina (count 4). In addition, on one occasion S was made by the defendant to lie down naked whereupon he got a dog to try to mount her (count 5). All of the offences were committed over a period of four months when S was 13 years old. The abuse ended when S attempted to kill herself, whereupon she was taken to hospital and subsequently into care.

The defendant was later convicted of two counts of sexual assault (counts 1 and 3), one count of assault by penetration (count 2), one count of attempted rape (count 4) and one count of causing or inciting a child to engage in sexual activity (count 5). He was sentenced to twelve months' imprisonment for count 1, eight years' imprisonment for count 2, two years' imprisonment for count 3 and ten years' imprisonment for count 4, all to run concurrently.

He was further sentenced to four years' imprisonment in respect of count 5, to run consecutively. The total sentence imposed was accordingly fourteen years' imprisonment.

He contended that the sentence was manifestly excessive on the grounds, inter alia: (i) that the judge had failed to give adequate consideration to the health and age of the defendant; (ii) that the judge had failed to have adequate regard to the defendant's lack of previous convictions; (iii) that insufficient regard was had to the short period of time over which the offences had occurred; (iv) that insufficient regard was had to the personal mitigation of the defendant; and (v) that the judge had failed to have sufficient regard to the principle of totality and, in particular, that the sentence imposed for count 5 should not have been consecutive to counts 1-4. The appeal would be dismissed.

The total sentence of 14 years' imprisonment was not manifestly excessive. The judge had taken fully into account the age and medical condition of the defendant. So serious was the nature of the offences that the absence of previous convictions was irrelevant.

There was nothing in the submission that the period of time over which the offences had occurred was short, as the period of abuse came to an end only due to the fact that S took matters into her own hands and attempted to kill herself. The judge had repeatedly had regard to the matters of personal mitigation.

In relation to the submission that the judge had failed to have regard to the principle of totality, it was to be observed that no representations had been made in relation to the individual sentences passed. The concurrent sentences in respect of counts 1-4 were passed in accordance with the relevant sentencing guidelines and no criticism had been made of them. The judge had decided to treat count 5 as a count apart from mainstream offending.

He had gone out of his way in his sentencing remarks to refer to the offence as one of singular and grotesque depravity. Whilst that was not the only way in which he could have dealt with the matter, there was nothing wrong in him passing a consecutive sentence.

David McLachlan (assigned by the Registrar of Criminal Appeals) for the defendant.