Imprisonment - Length of sentence

R v Davies: Court of Appeal, Criminal Division (Lord Justice Elias, Mr Justice Eady, Mr Justice Macduff): 20 September 2011

Two school girls, JD, who was 14-years-old and LM, who was 13-years-old, were in the town centre. The defendant was also there in a state of significant intoxication. He made comments such as 'that's a nice bum, can I touch it?' JD and LM ran off and were followed by the defendant. The defendant subsequently grabbed JD's buttocks and reached over her shoulder to fondle her breasts.

The defendant tried to grab LM, but only managed to grab her shoulder. Half-an-hour later, the defendant sexually assaulted SH by touching her buttocks and thigh. He was arrested and a search of his home revealed children's' books, a box of sanitary towels and computer searches relating to menstruation. The defendant lived alone and made no comment in interview. He later pleaded guilty to two counts of sexual assault and one count of assault by beating.

The pre-sentence report stated that the defendant was obsessed with menstruation and that he had described having a 'female self'. The defendant had been diagnosed with gender dysphoria and schizophrenia. In addition, he had suffered a nervous breakdown, drank on a daily basis and the risk of him committing further sexual offences was assessed as medium. The pre-sentence report recommended a community order. A psychiatric report confirmed that the defendant had been diagnosed with gender dysphoria and described his preoccupation with menstruation as a fetish. The report stated however that the defendant was not mentally ill.

He was subsequently sentenced to 30 months' imprisonment for each of the counts of sexual assault to be served concurrently and to four months' imprisonment for the assault by battery to be served concurrently with the sentences for sexual assault. The total sentence was therefore 30 months' imprisonment. The defendant appealed against the sentence.

The issue to be determined was whether it had been just for the judge to make such a significant departure from the relevant sentencing guidelines in imposing a custodial sentence of 30 months and accordingly whether the sentence imposed was manifestly excessive.The appeal would be allowed.

The relevant sentencing guidelines were guidelines only and it was open to the court to depart from them. In the instant case, the judge had departed from the guidelines and had stated his reasoning for doing so. However, the starting point of four years' imprisonment was a very long way away from a community order. The court acknowledged the aggravating features of the case which were as follows: (i) the drunkenness of the defendant; (ii) the public place in which the offences took place; and (iii) the lewd comments made by the defendant. The judge had noted that the psychiatric report had described the defendant as a complex man who drank heavily and who was a risk to women and girls and, for those reasons, the case fell outside the guidelines.

The reasons for the decision of the judge were understandable, but where the offences were relatively modest, it could not be right to elevate the sentence to such an extent. There were provisions applicable to those offenders who were assessed as dangerous, but those did not apply in the instant case. It was difficult to understand the assurance made by the judge that he had borne in mind the overall boundaries of the relevant sentencing guidelines and also how a sentence of four months' imprisonment, albeit concurrent, could be imposed for what was no more than the grabbing of a shoulder.

It was not appropriate to sentence for a more serious offence and there was a real sense that the defendant had indeed been sentenced for a more serious offence. Imprisonment for the protection of the public was not appropriate when the relevant offence did not merit it.

The court ordered, inter alia, that the sentence of 30 months' imprisonment would be quashed and a community order with a three year supervision requirement be imposed.

Andrew Davies (assigned by the Registrar of Criminal Appeals) for the defendant.