Mitchell, R v

Neutral Citation Number: [2009] EWCA Crim 2332 IN THE COURT OF APPEAL CRIMINAL DIVISION No: 200901279 A1 Royal Courts of Justice Strand London, WC2A 2LL Thursday, 8 October 2009 B e f o r e: LORD JUSTICE MAURICE KAY MR JUSTICE SWEENEY MRS JUSTICE SLADE - - - - - - - - - - - - - R E G I N A v PHILIP MITCHELL - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 0207 404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - Mr M McKone appeared on behalf of the Appellant Miss S Mallett appeared on behalf of the Crown - - - - - - - - - - - - - J U D G M E N T LORD JUSTICE MAURICE KAY: Slade J is going to give our judgment. MRS JUSTICE SLADE: On 6 February 2009 at the Crown Court at Leeds, the appellant was convicted and was sentenced as follows: on count 1, causing a person with a mental disorder to engage in sexual activity by deception, 12 months' imprisonment concurrent; count 2, assault by penetration, eight years' imprisonment. The total sentence therefore was eight years' imprisonment, with 13 days spent on remand counting towards the sentence. The appellant appeals against sentence by leave of the single judge, who granted the necessary extension of time. We remind those present that nothing must be done to publish the name or address or do anything otherwise to identify the victim. The facts may be summarised as follows. The victim was born on 24 March 1987. She suffered from learning difficulties which meant that she had the mental age of a 14 year-old. For many years her stepfather had been a friend of the appellant, and the appellant had known the victim since she was four. The victim's family moved away from Leeds, but they kept in regular touch with the appellant and his family. The victim stated that she had sent photographs of her breasts and vagina to the appellant following text message requests by him. The wording of the texts caused her to believe that she was sending the photographs for the benefit of the appellant's stepson in the hope that she could have a relationship with him. On 27 June 2008 the victim and her family travelled from their home to Leeds to visit the appellant and his wife. The arrangements were that they would spend the night there and that the victim would sleep in an upstairs bedroom where there were two single beds. She retired for the night. At about 5.30am she was heard to be crying. Her mother and the appellant's wife entered her room and found she was crying and shaking. The women comforted her. She told them that the appellant had entered the room and put his hand down her clothing and inserted his finger in her vagina. She had screamed out and he had left the room. Her mother confronted the appellant about this, but he denied it. The victim was then told to get dressed, and she and the rest of her family left the house and contacted the police. The appellant maintained that he had done nothing wrong. He was arrested later that day, but denied the offence in interview. In sentencing, the learned judge observed that the victim had regarded the appellant as her favourite uncle, although they were not related. She suffered from a mental disorder, as well as a number of other physical health problems, and her stepfather was one of the appellant's best friends. The appellant had mounted a campaign to groom her with the intention of taking advantage of her disabilities and having a sexual relationship with her. He told her his stepson was interested in her and persuaded her to take intimate photographs of herself and send them to him, thinking she was sending them to the stepson. He also sent her messages saying he wanted to have sex with her because his stepson would not be interested in a relationship with her if she was still a virgin. On the night in question the appellant was clearly drunk. He had entered her room in the early hours of the morning and inserted his fingers into her vagina. She was clearly distressed by this and did not want him to do that. She cried out and he desisted. The jury had rejected the appellant's account of events. The appellant did not have a record of sexual offences, and there was nothing in the judge's view to indicate an indeterminate sentence was necessary. The learned sentencing judge considered that the aggravating features were the victim's vulnerability and that the offence was an abuse of trust which the victim and her family placed in the appellant. He had engaged in a campaign over a period of time. It was accepted that the physical contact was brief and was not persisted in once the victim cried out. The appellant was drunk and he had no convictions for sexual offences. The sentence would clearly have an impact on his wife and family. Account was taken of the sentencing guidelines. It is contended on behalf of the appellant by Mr McKone, who has very clearly and persuasively advanced his client's grounds of appeal, that the sentence of eight years' imprisonment was manifestly excessive in all the circumstances. He says that whilst the case has many aggravating features, it did not fit within the abuse of trust case, which, in accordance with the Sentencing Guidelines Council Guidelines, would have justified a starting point of eight years' imprisonment. The penetration involved a single finger and occurred over a short period of time. The appellant desisted when the victim complained. The appellant has no previous convictions for sexual offences and no convictions as an adult other than driving convictions. This was a difficult sentencing decision. The learned judge had observed the appellant during the trial. He was clearly entitled to regard as an aggravating feature the fact that the victim was vulnerable. His view that the offence involved an abuse of trust was one which was justified on the facts of this case, although it was not a classic case of abuse of trust by a carer, a teacher or a parent. This appellant was very close to the family of the victim. She was invited with her family into the appellant's home and no doubt treated him as someone who she could trust as she would members of her family. The appellant had engaged in a sinister campaign over a period of time, involving grooming, and that had a clear sexual purpose. Asking someone of the mental vulnerability of this victim to send photographs of intimate parts of her body and engaging in the exchange of texts and suggestions that occurred in this case was sinister. It was clearly a factor which the judge could take into account. The penetration which occurred in this case was, as Mr McKone has quite rightly pointed out, of a single finger and was desisted in once the victim protested. However, the appellant was guilty of a gross abuse of the trust which the victim no doubt placed in him. In all the circumstances, having regard to all the matters that Mr McKone has advanced on behalf of this appellant's case, including the lack of any previous convictions for sexual offences, this sentence was not manifestly excessive, and it was within the appropriate bracket and level of the guidelines of the Sentencing Guidelines Council. Accordingly, we dismiss this appeal. SMITH BERNAL WORDWAVE