Griffiths, R v

16 The judge concluded that a combination of consecutive sentences was needed to arrive at an appropriate overall total. He said that he had also to reflect the fact that count 2 was a multiple incident count. He then passed an overall sentence of eight years' imprisonment. He said that the sentence would have been longer if the available maximum penalties had been greater. 17 It is argued on the appellant's behalf by Ms Jones QC, concisely and moderately, that the total sentence of eight years' imprisonment was manifestly excessive in that the judge passed the maximum available sentence and did not allow for mitigating factors or take proper account of the principle of totality when passing consecutive sentences. 18 We begin with the Council's guidance. It is headed "Approach to Sentencing of Historic Sexual Offences". It was produced after the decision in R v Hand others, above, where this court had considered the same topic. Paragraph 1 of the guidance provides that an offender must be sentenced in accordance with the sentencing regime applicable at the date of sentence. Paragraph 2 underlines that the sentence is limited to the maximum sentence available at the date of the commission of the offence. Paragraph 3 provides that the court should have regard to any applicable sentencing guidelines for equivalent offences under the Sexual Offences Act 2003. Paragraph 4 says the seriousness of the offence, by reference to culpability and harm, is the main consideration. The court should not seek to establish the likely sentence had the offender been convicted shortly after the date of the offence. (Such an inquiry would have been particularly artificial and inappropriate here, where mitigating factors such as age and ill-health have only arisen long after the offending.) 19 Paragraph 8 of the guidance provides that an absence of further offending over a long period of time, especially when combined with evidence of good character, may be treated as a mitigating factor. However, the more serious the offence, the less the weight that should normally be attributed to good character. Where good character/exemplary conduct had been used to facilitate the offence, this mitigation should not normally be allowed and such conduct may constitute an aggravating factor. 20 In R v Clifford, above, this court considered the guidance. Treacy LJ said at paragraph 30: "The Guideline is not seeking to impose an unthinking and mechanistic search for equivalent offences under the 2003 Act. What is required is that sentencing should reflect modern attitudes […] in the course of which the court may take account of the modern guidelines. The way in which the matter is dealt with in R v H at paragraph 47(a) pithily sums up the position: 'Sentence will be imposed at the date of sentencing hearing, on the basis of the legislative provisions then current, and by measured reference to any definitive guidelines relevant to the situation revealed by the established facts.'" The court in R v Clifford said that the guidance reflected that approach. 21Treacy LJ continued: "31. In the circumstances of this case, the maximum sentence available on any individual count was markedly less than the maximum available for a number of offences under the 2003 Act […] There was therefore an inherent limitation on the count by count sentencing process which operated in favour of the appellant and operated as a counterbalance to higher figures in the guidelines.

32. In our view, the judge was entitled in the course of his sentencing remarks to observe that some of the offending would now be charged as offences as serious as rape or assault by penetration.

33. The judge was entitled to draw attention in this way to the gravity of this offending by modern standards, which are to be reflected if old offences such as these are sentenced in the present day […]

35. It must be recognised in any event that the judge was sentencing in relation to a multiplicity of incidents involving four different victims. Even with the limitations on the maximum sentence per count, the judge was entitled to structure his sentence by imposing consecutive sentences which would reflect the overall criminality involved according to modern standards and attitudes. Moreover, the use of consecutive sentences was consistent with the Sentencing Council's guideline on totality (see page 7)." 22 In this case, in no instance did the judge pass a sentence which was in excess of the statutory maximum of two years' imprisonment. As Treacy LJ explained in Clifford, this was itself a significant counterbalance to the higher figures in present day guidelines. We can see no reason why a sentence of eight years' imprisonment should not have been imposed here, where applying modern standards and attitudes, a sentence well in excess of that would have been justified after taking account of such mitigation as there was. There is, unfortunately, little by way of mitigation when set against the gravity of the offences, although we are especially mindful of the appellant's age and frailty and the difficulties he will have in serving his sentence. Like the judge, we accept that the predicament of the appellant's wife is very sad indeed. 23 By section 143 of the Criminal Justice Act 2003, in considering the seriousness of any offence, the court must consider the offender's culpability in committing it and the harm which was caused. Here, the appellant used a guise of respectability in order to commit these offences. Although this sentence was imposed upon him at an advanced age, the effects of his offending were still being experienced by his two victims many years later. 24 We acknowledge that in ordinary circumstances the principle is that the maximum penalty for any offence should be reserved for the most serious offending of its kind — see, for example, R v Carroll (1995) 16 Cr.App.R.(S)

488. Equally, there is a principle exemplified by, for example, R v Thompson (1980) 2 Cr.App.R.(S) 244, that it is unusual to impose a maximum sentence where there are genuine mitigating features. We have already indicated our view as to the comparative weight of the mitigation in this case when set against the offending, but in our judgment, the principles in the guidance are the governing ones in a case of this kind. They may have the consequence in circumstances such as these that the maximum sentence is merited whether or not a particular offence can be said to be in the most serious category of its kind and whether or not there are mitigating features. 25 In this case, in our judgment two years' imprisonment for each individual offence cannot be faulted when measured reference is made to the current sentencing guidelines which are relevant to the facts which were established. 26 We turn next to the question of totality. One of the counts was a multiple incident count which could have been charged as five separate offences. For very good reason that did not happen. But the overall position is that the appellant had in fact committed no fewer than eight offences of indecent assault. We are satisfied that having due regard to modern standards and attitudes, the total sentence of eight years' imprisonment cannot be said to be other than just and proportionate when regard is had to the overall criminality as referred to in Clifford and in accordance with the totality guideline. 27 Finally, we return to the question of extradition and qualifying curfew days. Section 243(2) of the Criminal Justice Act 2003 required the judge to announce in open court the number of days for which the appellant had been detained awaiting extradition. Section 240A(8) of the Criminal Justice Act 2003 required the judge to specify in open court the number of days spent on a qualifying curfew. Neither of these things happened in the court below, but we regularise the position now by stating that the appellant was entitled to credit for 430 days' detention in Australia awaiting extradition and that 135 days were spent on a qualifying curfew in this country, resulting in a credit of 68 days. The days he spent on remand in custody here will automatically count. We are told there were 110 such days. As the judge said, that amounts to 608 days in all. Subject to those clarifications, for the reasons we have given, this appeal must be dismissed. _____________ CERTIFICATE Opus 2 International Limited hereby certifies that the above is an accurate and complete record of the Judgment or part thereof. Transcribed by Opus 2 International Limited Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 [email protected] This transcript has been approved by the Judge.