Law report: Tariff for indecent assault disapproved

16 December 1998 Regina v W Court of Appeal, Criminal Division (Lord Justice Rose, Vice-President, Mr Justice Rougier and Mr Justice Johnson) 10 December 1998

R v Demel [1997] 2 Cr App R (S) 5 should no longer be regarded as a reliable guide to the level of tariff currently appropriate in cases of indecent assault.

The Court of Appeal dismissed the appellant's appeal against a sentence of two years' imprisonment imposed for indecent assault on a female.

The appellant, who was aged 58, indecently assaulted a 13-year-old schoolfriend of his 14-year-old daughter who had come to spend the night at his home. The appellant had supplied both girls with a considerable amount of alcohol and had assaulted the victim after she had gone to bed. She had leapt from the bed, collected her belongings, run to the bathroom, dressed and climbed out of the window. She had then run home, arriving just after midnight, and her parents had called the police.

Helen McCormack (Registrar of Criminal Appeals) for the appellant.

Lord Justice Rose VP said that counsel had relied on the case of R v Demel [1997] 2 Cr App R (S) 5. In that case the court had reduced from two years to 18 months a sentence passed upon a priest for a single offence of indecent assault on a 10-year-old girl. Counsel stressed that the breach of trust in that case could hardly have been greater.

The court had drawn counsel's attention to a subsequent unreported decision of the Court of Appeal, namely R v Lennon (7 April 1998), in the light of which she accepted that certain of the observations in R v Demel could no longer be relied upon as far as the tariff for such offences of indecent assault was concerned. She relied, none the less, upon the facts of R v Demel as being more serious than those in the present case.

The tariff referred to in R v Demel was between 13 and 18 months' imprisonment on a plea of guilty where there had been a breach of trust. In delivering the reserved judgment of the court in R v Lennon Henry LJ had analysed each of the authorities on which the court had relied in R v Demel as establishing the tariff there referred to.

R v Vinson (1981) 3 Cr App R (S) 315 was decided when the maximum penalty for indecent assault on a woman was two years. R v Smith (1986) 8 Cr App R (S) 325 was decided in October 1986, after section 3(3) of the Sexual Offences Act 1985 had, with effect from 1 September 1985, increased that maximum to 10 years, but the offences had been committed in 1984. In 1984, even in respect of girls under 13, the maximum sentence was still only five years.

In R v Gibbons (1987) 9 Cr App R (S) 391 the court had relied on R v Vinson and R v Smith as being "equally applicable today", a conclusion which, with respect, their lordships found mystifying, Parliament having increased the maximum sentence since those cases were decided.

In R v Moghal (1992) 14 Cr App R (S) 126 the court relied on R v Vinson, apparently oblivious to the intervening statutory change. In R v Aston (1993) 14 Cr App R (S) 779, where R v Vinson and R v Moghal were considered, the offences were indecency with a child, not indecent assault.

In R v Lennon Henry LJ had said of those authorities that they "cannot, when read in the light of the statutory framework in force at the material time, be said to provide a tariff sentence bracket at the level referred to in them". To that extent their lordships respectfully disagreed with R v Demel. The conclusion in R v Lennon and the analysis in which it was based were correct. R v Demel should not, in the view of the court, be regarded as a reliable guide to the level of tariff currently appropriate in cases of indecent assault.

Furthermore, as the circumstances of indecent assault varied infinitely, the range of possible sentences was a good deal wider than R v Demel suggested.

In the light of the above and in all the circumstances of the present case, the sentence could not be regarded as excessive.

Kate O'Hanlon

Barrister