No. 2010/03824/A9
Neutral Citation Number: [2010] EWCA Crim 2538
IN  THE  COURT  OF  APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London WC2

Tuesday 19 October 2010

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)

MR  JUSTICE  IRWIN

and

MR  JUSTICE  HOLROYDE

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ATTORNEY GENERAL'S REFERENCE No. 51 of 2010
UNDER  SECTION  36  OF
THE  CRIMINAL  JUSTICE  ACT  1988

R E G I N A

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GORDON  LAXTON
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Mr S Denison QC appeared on behalf of the Attorney General
Mr R Onslow appeared on behalf of the Offender
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J U D G M E N T
Tuesday  19  October  2010

THE LORD CHIEF JUSTICE:
1.  This is an application by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988 for leave to refer to this court a sentence which he considers to be unduly lenient.  We grant leave.

2.  The offender is Gordon Laxton.  He is now aged 52.  He is subject to significant disabilities.  He has no previous convictions.  The offences were committed some years ago.

3.  On 20 April 2010, in the Crown Court at Southampton, he pleaded guilty to six counts of indecent assault contrary to section 14(1) of the Sexual Offences Act 1956.  Four of those counts related to offences committed between 1980 and 1985 against his cousin, then a girl aged from 7 to 11 years.  The indictment asserted that she was a girl under the age of 13 which was then of relevance to the maximum sentence.  The other two counts related to offences committed between 1988 and 1994 against his niece, when she too was aged from 7 to 12 years old.  On 18 June 2010 His Honour Judge Hooton imposed a Community Order with a supervision requirement for three years.  A Sexual Offences Prevention Order was imposed to run indefinitely, the precise details of which have no bearing on the Reference.  The offender was also made subject to the requirements of the Sex Offenders Register.

4.  As a result of brain damage sustained at birth, the offender was markedly impaired in his mental development.  That said, he had been in full-time employment for some thirty years.  He has also suffered from poor eyesight, which has deteriorated in recent years.  He is now registered blind and has been unemployed for the last seven years.

5.  Between 1980 and 1985 he acted as a babysitter for his much younger cousins most weekends in their home.  One of them was "S".  Over the period when she was aged between 7 and 11 she was sexually assaulted by the offender on numerous occasions.  The precise details do not require ventilation in open court.  They included assaulting her by rubbing her vagina with his hand, first outside her clothes and then in direct contact by pulling aside her knickers.  Gradually this process, which in someone with a higher intelligence quotient and insight would be described as grooming, progressed so that by the time she was 10 the offender regularly removed her knickers and digitally penetrated her.  On two occasions he removed her nightie and her knickers, held her on top of him and moved her up and down so that his naked penis came into contact with her vagina.  The assaults came to an end when S's older sister became old enough to act as a babysitter, and so the offender was no longer needed in that capacity.

6.  Between 1988 and 1994, when he was aged between 30 and 36, the offender's nieces, L and her sister, regularly went to stay at his home where he lived with his mother, the grandmother of the two girls.  On many occasions when L was aged between 7 and 12 she was assaulted by the offender in much the same way as S had been.  The assaults stopped when her sister saw something of what was going on and told her mother about it.

7.  There followed a family meeting and a discussion about what had happened.  The family meted out its own punishment.  Since 1994 very close attention has been given to ensure that the offender had no contact with young girls.

8.   The brain injury which the offender suffered at birth occurred when the umbilical cord became stuck around his neck.  There was significant retardation of his mental development.  He attended special schools until he was 16.  He then obtained modest employment with Ordnance Survey as a messenger, where he worked for very many years until his eyesight deteriorated.  Apart from when he was away at school, he has always lived with his mother at her home in Southampton.

9.  The counts to which the offender pleaded guilty were sample counts.  Count 1 (a sample count) related to S, when the offender rubbed her vagina.  Count 2 (another sample count) related to digital penetration of S's vagina.  The third count (count 7) related to a specific occasion when S was 8 years old and the offender laid her on top of him and rubbed his penis with her vagina.  The fourth count (count 8) related to a specific occasion when a similar allegation was made when she was 9 years old.  It is important to our approach to this case to emphasise the long period over which the sexual activity occurred and the numerous occasions when the girl was subjected to it.

10.  S is now a mature woman.  In her victim impact statement she says that she will carry the scars of what happened to her for the rest of her life.  She describes a childhood of fear, upset and vulnerability.  She only felt safe with her mother.  She wanted to be with her mother, but the family arrangements did not permit that.  Because nobody knew about the indecency, nobody was in a position to do anything about it.  S felt unable to complain.  When she was 11 years old she made an attempt on her own life.  Now, as an adult, she is a single mother out of choice because she does not trust any man to have any opportunity to ruin the lives of her children the way her own life was, as she sees it, ruined by the offender.  It is plain that what she suffered at the hands of the offender has affected her life in a most damaging way.  She says:

		"I will never be the person that I should have been.  ....  It [the abuse] has affected every aspect of my life.  I will never be free from the memories, nightmares and horrendous legacy of this abuse."

11.  The situation with L is much the same.  Count 10 (a sample count) related to the offender touching her vagina on many occasions.  Count 12 (a sample count) related to two occasions when he lay her on top of him and rubbed his penis against her vagina.  

12.  In her victim impact statement L (now an adult) describes how she lived a long and lonely silence because she found it very difficult, and continues to find it difficult, to share with others the extent of the emotional trauma that she endured.  In her statement she describes how as a child she would be tearful, upset and withdrawn.  She would lie in her bed at night crying, trying to suppress her tears so that nobody would hear her.  She did not feel that she could turn to anyone for help because she was being molested by someone who was regarded as a trusted member of her family.  She has suffered panic attacks and migraines which have continued throughout her life.  Although she recognises that she is fortunate that with her loving partner she has three children, the abuse she suffered still continues to haunt her.

13.  Full investigations have been made as to the extent of the offender's mental problems.  A forensic psychologist was asked by those acting for the offender to assess his intelligence and his suggestibility.  The result of verbal and non-verbal intelligence tests produced a score which would have put the offender in the bottom one per cent of the population.  The conclusion expressed by the psychologist is that the offender 

		"is an extremely limited individual who probably has a mental age of approximately 8 years.  He would be unable to function as an adolescent, never mind as an adult."

We approach that conclusion with serious reservation because an 8 year old would not be able to be in gainful employment, even of a modest kind, for thirty years. 

14.  A forensic psychiatrist, also instructed on behalf of the offender, addressed the issue of whether he was fit to plead and stand trial.  The finding was that the offender understood the allegations made against him.  The psychiatrist concluded that a diagnosis of mild mental retardation, a condition of arrested or incomplete development of the mind characterised by impairment of skills manifested during the offender's developmental period was associated with a standardised IQ test score in the range of 50-69.  On the full-scale intelligence quotient score the assessment was 64.  Plainly, that is very low indeed.  The deficits identified by the psychiatrist were not in his judgment "so severe as automatically to render him under a disability".  He commented that the suggestion that the functioning of the offender should be compared to that of an 8 year old was unhelpful because that oversimplified the matter.

15.  The Crown instructed a forensic psychiatrist to examine the question of the offender's fitness to plead and stand trial.  His finding was that the offender fulfilled the criteria for a diagnosis of mild mental retardation.  He observed that the offender "had acquired some academic skills, he had been fairly self-sufficient and had been able to live reasonably independently with support from his family, in particular his mother".  He pointed out that the offender had managed to engage in employment for most of his adult life.

16.  The offender had always been viewed as a respectable member of the family.  He was trusted to babysit, to travel by public transport to the homes of those for whom he babysat, to take them to dance classes and so on.  Even now to some extent he acts as a carer for L's sister, who is also blind.  He does her shopping, makes her medical appointments and arranges her holidays.  Although the offender is able to do such practical things, he is plainly under serious disability.

17.  In addition to the detailed, carefully prepared and structured pre-sentence report on the offender, we have a supplementary report prepared after the hearing in Southampton.

18.  It is plain from his sentencing remarks that the judge was concerned with what he rightly described as the "untold misery" inflicted on the two young girls.  The effect was "dreadful".  If the offender had not suffered from disabilities he would have been sent to prison for a very long time.  The judge considered the material relating to the offender's disability and concluded that a non-custodial sentence would be appropriate; hence the community order.

19.  The sentence is criticised on behalf of the Attorney General as unduly lenient.  Our attention has been rightly focused on the problems faced by the offender.  We have not been invited to disregard them.  It is accepted on behalf of the Attorney General that they have a significant impact on the sentencing decision.  Our attention is also drawn, and rightly so, to the serious aggravating features in this case.  The submission is that, although the judge was right to pay close attention to the offender's difficulties and disabilities, in that process he failed sufficiently to attend to the seriousness of the offences, their extent, the time over which the two young victims endured them, and the impact of the offences on their lives.

20.  We have reflected on these submissions and on the issues raised in the context of the fact that, because of the age of the offences, the sentencing options available to the judge were significantly less than they would now be.  Some of the offences, if committed now, would call for a sentence of imprisonment for life.  Society has become more acutely aware of the dreadful impact of this kind of molestation of young children than ever society was. 

21.  At the same time we cannot ignore the sentencing realities.  There are limitations on the sentences which can be imposed.  Although they no longer exist, they bind us as they bound the trial judge.

22.  These were dreadful offences.  Two young girls were assaulted by a member of the family who was their babysitter.  They were separately subjected to serious sexual molestation.

23.  It is clear that whatever the extent of the offender's difficulties -- and we do not minimise them -- he knew that what he was doing was wrong.  He is not so retarded as to have failed to realise that what he was doing was unacceptable.  The consequences for each girl have been, and will be, lifelong.  We can only hope that our view that this sentence was unduly lenient will give them some sense of vindication and perhaps that may -- and it is no more than a hope -- help them to come to terms with what happened to them when they were so young.

24.  We have considered the offender's position.  We have noted that there has been no further offending since 1994 when the family appeared to have resolved the problems to the limited extent that they understood them.  However, because the victims were so young they could not have consented to the family solution.

25.  These are sad events.  The offender now is a pathetic, vulnerable man destined for a solitary old age.  That is a significant feature of the sentencing decision.  But in the end the suffering of the victims was profound and acute.  The sentence was unduly lenient.  We shall quash it.  Despite all the offender's difficulties, we consider that a prison sentence was inevitable and should have been imposed.  Although we have reflected on the fact that this case comes before us the offender not having been sentenced to custody, and although we have considered the further reports prepared on him since the decision reached by Judge Hooton, we do not think that a sentence of less than three years' imprisonment is appropriate.  Accordingly, the sentence will be three years' imprisonment on each count, to run concurrently.

26.  We direct that the offender shall attend and surrender at the Southampton Central Police Station, Civic Centre by 4pm today.