By Paul Taylor QC
DPP reference – unduly lenient sentence – campaign of sexual abuse
NICA: 31st May 2019
VL (now aged 91) had been sentenced to a total term of 10 years and six months comprising nine years and six months in custody and one year on probation in respect of multiple offences of indecent assault, buggery and attempted buggery committed on three children over a period of 10 years. The DPP sought leave to refer the sentences to the Court of Appeal on the grounds that they were each unduly lenient.
VL was a monk. The first victim (“V1”) was 10 or 11 when VL began a campaign of indecent assault and buggery on him. Medical evidence showed the enduring effects on the victim, including PTSD.
VL left the monastery and married. He then abused V2, aged 9 /10 for around 4 years.
V3 was the brother of V2. He was subject to one incident when he was approximately 13 years old. VL fondled at his genital area and the boy fended him off. VL sought to encourage the boy to engage in sexual activity but he refused.
At interview VL denied all of the offences. When arraigned he pleaded guilty to the counts of indecent assault but not guilty to those of buggery. He was later rearraigned and pleaded guilty to almost all of the buggery counts. The remainder were left on the books.
The pre-sentence report indicates that the offender accepted that he sexually abused V1 but denied the buggery offences claiming that there was no penetration. He denied the offence in relation to the brother of V2. In relation to V2 he said that the victim came to his house, and was keen for “the bit of sex for the money”. He believed the sexual behaviour they engaged in was by way of mutual agreement. The report indicated that the offender held justification and offence supporting beliefs in relation to children consenting to sexual behaviour and a lack of awareness or appreciation of the impact of his offences on the victims.
The trial judge examined the aggravating factors in this case:
• the offender was placed in a position of trust by the parents;
• in the case of two of the victims their father had gone out of his way to assist the offender to get settled in the community after he left the Abbey;
• a significant degree of planning went into the offender’s attempts to attack these boys;
• there were three victims who were all under 14 years of age;
• the offending stretched over a period of about 10 years;
• there was frequent ejaculation;
• the offender took steps to prevent V1 in particular from reporting the matter telling him that his parents knew what was happening and approved of it;
• on occasions money and alcohol was used to facilitate the attack;
• the presentence report indicated a stark lack of victim empathy; and
• the effect on the victims was horrendous.
The trial judge noted the established principle that the court is always entitled to show a limited degree of mercy to an offender of advanced years because of the impact that a sentence of imprisonment can have on such a person.
The trial judge further noted that the offender did eventually plead guilty to the offences and was entitled to credit for that.
The Court indicated that a starting point in excess of 20 years was appropriate in this case before looking at the mitigating factors. It accepted that the three-year reduction for age and the 25% discount for the plea were in the circumstances appropriate:
“Even if one took a very generous starting point of 20 years and made allowance for age, delay and discount for the plea the resulting sentence would still be one of 12 years. Accordingly we are satisfied that the sentence imposed was unduly lenient and we substitute for the commensurate sentence of 10 years 6 months a sentence of 12 years.”
The Court added that the provision of a custody probation order is designed to ensure that the public are protected and offending reduced because of the rehabilitative effect of the probation period. It said it was clear from the pre-sentence report that no rehabilitative programme directed to his offending was either required or likely to be put in place. The Court considered that there was no basis for a custody probation order in this case in light of the conclusion of the pre-sentence report that the offender’s age and withdrawal from community life had created external controls to manage his issues without the requirement for further intervention.
The Court concluded that the sentences were unduly lenient. It increased the buggery sentences to concurrent custodial sentences in each case of 12 years and substituted imprisonment for the commensurate term for the custody probation orders in the other cases.
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