Another day, another Attorney-General’s appeal. It seems, on occasion, that the only cases that the Courts deal with are sexual abuse ones. The day after Neil Wilson had his sentence appealed successfully, Graham Ovenden was in the Court of Appeal where the Attorney-General succeeded in persuading the Court (again presided over by the Lord Chief Justice).
Mr Ovenden was convicted earlier this year of six counts of Indecency with a child and one count of indecent assault. He was sentenced on 4th June 2013 to 12 months imprisonment, suspended for 2 years after the Judge concluded that Mr Ovenden was no longer a risk to children.
The Court of Appeal hit Mr Ovenden hard. The sentence was more than doubled, to 2 years, 3 months and made immediate. The consequence is that Mr Ovenden will now have to surrender to the police to start serving his sentence. He will be released in 13½ months.
We don’t have the original sentencing remarks and the judgment given by the Court of Appeal today (9th October 2013) was given orally. It will be typed up and published. When that is done, we will come back to it.
For that reason, it is hard to know what to make of the Court of Appeal’s judgment. We know, from the news reports that the offending involved “touching a girl’s breasts and getting into a bath with the same girl and asking her to feel him. The other convictions relate to photographs he took of two other girls.”
As stated, it’s difficult to know why the Court of Appeal found the sentence to be unduly lenient.
Looking at the current sentencing guidelines, the starting point for the sexual assault would be 26 weeks after a trial (on the basis that the victim was aged under 13). It seems that the most serious case that was identified was asking a girl to ‘feel’ him whilst in the bath.
The original sentencing Judge stated that this would, nowadays, be charged as ‘inciting a child under 13 to engage in sexual activity’ (contrary to s8 Sexual Offences Act 2003). The starting point for this offence would be 2 years.
It must be stressed that that is if the offence occurred today. At the time of the offending, the s8 offence did not exist.
Putting all this together, I am surprised that the sentence was found to be unduly lenient. Yes, if that offending was carried out now, it may attract a sentence, after a trial, of about 2 years. Given when the offences were committed, the original sentence of 12 months imprisonment seemed entirely reasonable.
Further, given the age of the offences, the good character of Mr Ovenden and the finding of the Judge (who, having heard all of the evidence at the trial, was in the position to know) that Mr Ovenden was no longer a risk, the decision to suspend that sentence was a perfectly proper one.
It is certainly true that Mr Ovenden had a trial and has shown, as the Lord Chief Justice said, “not a shred of remorse“, but that is his right – his sentence cannot be increased because of that.
Further, the law has always been that the sentence passed on an Attorney-General’s reference is reduced to reflect that someone is being re-sentenced. This has all the more application when a non-custodial sentence is revoked and replaced with a sentence of immediate imprisonment.
It is not a mathematical exercise, but it would appear that the Court of Appeal should have thought the right sentence was in the region of 2½-3 years. This is far higher that I would have expected.
So – why is it so much higher? We will have to see the judgment to see what information the Court of Appeal had that we did not.
It is to be hoped that this judgment (as well as that relating to Neil Wilson) actually gives an explanation for the increase (something which, sadly, the Stuart Hall judgment did not).