Humphries, R. v

Neutral Citation Number: [2006] EWCA Crim 2425 IN THE COURT OF APPEAL CRIMINAL DIVISION No: 200602616/D2 Royal Courts of Justice Strand London, WC2 Monday, 9th October 2006 B E F O R E: LORD JUSTICE RIX MRS JUSTICE DOBBS DBE SIR CHARLES MANTELL - - - - - - - R E G I N A -v- RICHARD CHARLES HUMPHRIES - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR S DREW appeared on behalf of the APPELLANT MR I POLE appeared on behalf of the CROWN - - - - - - - J U D G M E N T MRS JUSTICE DOBBS: On 10th March 2006 at the Stoke-on-Trent Crown Court, this appellant pleaded guilty to three counts of indecent assault and one count of indecency with a child. He was sentenced to an extended sentence of four-and-a-half years, being made up of a total custodial term of two-and-a-half years and an extension period of 2 years. He was sentenced as follows: for count 1 on the indictment, 12 months' imprisonment; on count 2, two-and-a-half years' imprisonment concurrently; count 3, that is the indecency, 12 months imprisonment concurrently and count 6, another indecent assault, 12 months' imprisonment. He appeals by leave of the Single Judge who also granted the extension of time within which to appeal. The co-accused, Andrew Evans, pleaded guilty to two counts of indecent assault and received an extended sentence of three-and-a-half years comprising a custodial sentence of 18 months with a 2 year extension period. The facts are as follows. The appellant had become friendly with the family of the victim, Miss H, and would regularly attend family events such as parties and barbecues. At around the age of 12 she began to develop a serious crush on him and began showering him with kisses and greetings which escalated. Eventually the appellant responded and kissed her back. During the year when she was 12 (June 2000 to 2001), they regularly kissed intimately and he began to touch her breasts and thigh. That represents activity in relation to count 1. The sexual activity continued almost every time they saw each other and increased in seriousness. While she was 12 the appellant began to digitally penetrate her. That is the subject matter of count 2. During the course of this relationship, Miss H began to masturbate this appellant and this also became a regular occurrence and that represents count 3, and was activity which carried on over 3 years. The appellant allowed the sexual relationship to develop between them and continue until KH was 14. He allowed her to drink and smoke in his presence and to behave in a way that was wholly inappropriate for her age. KH had a school friend, S, to whom she had confided her relationship with the appellant. She introduced this school friend, who was aged 13, to the appellant. The two girls went round regularly to the appellant's house, where they would drink alcohol, smoke cigarettes. There they met the appellant's friend, a co-accused, Mr Evans. Again, like KH, S was allowed to behave in a way beyond her years. On one occasion, when S had her head on the appellant's shoulder on the sofa downstairs, they began kissing and he touched her on the vagina over her clothing. That is the subject matter of count 6. This matter came to light in September 2005, some 2 years after the relationship had ended when KH disclosed to her mother what had happened. As a result of that disclosure the appellant was interviewed. In his first interview he denied any inappropriate sexual contact although accepting that she had become a friend, and he denied allowing her to drink alcohol. In the second interview he agreed that on one night there was alcohol drunk by him and he had woken up in the morning to discover the girls in bed with him but could not recall sexual activity taking place. This appellant was born on 3rd October 1971. He was of previous good character. There was a pre-sentence report in front of the court, which indicated that he had expressed remorse. However the view was taken he sought to place blame on both girls by maintaining that they had made the advances towards him, which he had succumbed to eventually. He was assessed as posing a high risk of harm, especially towards children, although his risk of reoffending was assessed as low to medium. When sentencing, the judge noted that the law was sometimes required to protect children against themselves and this applied particularly in this case. Both the two men were mature men and were involved in grooming the two children. They took advantage of the children, fed them alcohol and cigarettes and the appellant in particular was, in the judge's view, in great breach of trust. He knew the family; he was trusted, yet he seduced the child and allowed her to be besotted with him. He gave full credit for the plea and noted the appellant's good character and the remorse expressed. The grounds of appeal as set out were, first of all, that the learned judge erred in passing a sentence of more than 2 years' imprisonment as the custodial term on count 2. This was relying on the convention that a defendant should not be sentenced to more than 2 years' imprisonment when he has been prosecuted for indecent assault where the complainant is 13 to 15 and consented but where there can be no prosecution for unlawful sexual intercourse. Secondly, that the sentence was manifestly excessive, bearing in mind the mitigation in front of the court. Counsel before us today has modified his approach in a sense, in relation to the convention -- if we can call it that -- and says that it is a matter that the court should bear in mind when dealing with cases of indecent assault under the old legislation. However, his real ground of appeal is that given all the mitigation in this case, the sentence is manifestly excessive. The maximum sentence for indecent assault is 10 years. In this case the prosecution had indicted counts of indecent assault which as was made quite clear by prosecuting counsel did not relate to any incidents of unlawful sexual intercourse. It is against that background that we consider the sentence passed. This was, as the judge found, a serious breach of trust by the appellant. Moreover, the judge found that he encouraged the relationship, fed the girls alcohol and cigarettes and in effect he had groomed the girls, being fully aware of their ages and also being fully aware that the relationship was inappropriate. There was, as we note, a substantial age difference between them. Against that, he pleaded guilty at the first opportunity. He was a man of good character, with a good work record. He had expressed remorse, although this SMITH BERNAL WORDWAVE has to be set against his insistence on blaming the girls for making the first approaches. There was some delay in the allegations being made. Although this was a course of conduct, it was a course of conduct over 3 years. The counts reflect the different sexual activity which increased in seriousness as the relationship developed. We also note, in relation to one of the counts that the girl herself had said "no" to sexual intercourse and no doubt this was the matter that affected the judge's mind when he made the comments about grooming. We take the view that there could have been no criticism if the judge had passed consecutive sentences had he wished. This is conceded by counsel. Our task is to look at the totality of the sentence in the circumstances of the case. Having done so, and even bearing in mind that the victim here was a fully willing and enthusiastic partner, we take the view, in particular in the light of the judge's findings that the sentence in all the circumstances was not manifestly excessive. It follows, therefore, that this appeal against sentence is dismissed. SMITH BERNAL WORDWAVE