R. v Clarke (Ralph), R. v Cooper (Peter), Court of Appeal (Criminal Division) [2017] EWCA Crim 393. Should a Defendant’s old age be a factor when sentencing?

As part of our regular review of criminal law, Rhodri Jones, pupil barrister at Invictus Chambers, considers the extent to which extreme old age should be taken into account by the courts when sentencing.

Until fairly recently, the idea of someone in their nineties being committed for trial for things that allegedly happened many years before would have seemed highly unlikely. However, as society changes, and life expectancy increases, the courts have adapted and we have seen men well past retirement age appearing in the criminal courts. Indeed, in 2016 Ralph Clarke became the first centenarian to be tried in the Crown Court; in December 2016, another record was set as he was found guilty of 21 counts relating to 2 women in the 1970s and 80s. In the course of the trial he had admitted 9 counts against his grandson, their brother.

Regarding sentencing, the trial judge had stated that he would “ponder with care” what sentence to pass, but there was no doubt that it would be a prison sentence, commenting “The reality is that he’s so old it’s unlikely he’ll be released back into the community”. These comments were made in the knowledge that the sentence passed today would be a lot longer than it would have been had the trial been in the 1980s. The Judge said that the public would be ‘horrified’ if Mr Clarke was not sent to prison (although there may well be those who would be equally horrified at the idea of locking up a 101 year old), and it seemed that the question would be one of length. Equally, one of the reasons that sentences for sexual offences are so long is that they include an element of public protection. In Clarke’s case, this was clearly not a relevant factor.

In each case, the appellant was relatively fit for a man of his age. Ralph Clarke was 101 while Peter Cooper was 96; neither of them had any major health issues, and such problems as each suffered from were consistent with their old age. Each case raised the issue of the appropriate allowance to be made for extreme old age in the sentencing process. Clarke, who was convicted of a large number of sexual offences committed against three of his close relatives, was sentenced to an aggregate term of 13 years’ imprisonment with further periods of licence aggregating to two years. Cooper, who had pleaded guilty to five counts of indecent assault and one of indecency with a child, was given an extended sentence comprising a custodial term of three years and an additional year on licence.

The appellants submitted that, where the court was dealing with an offender of very advanced years, the sentence should be tailored by giving greater consideration to the age of the offender so that the court could pass a sentence that could reasonably be expected to be one where the offender would be able to serve the requisite custodial period.

The facts

Ralph Clarke was convicted of a number of sexual offences committed against three of his close relations between 1974 and about 1981, when he would have been aged between 59 and about 65. He had no other convictions recorded against him. The victims were J and Z, two sisters who would have been 8-9 and 4-5 years of age at the time the abuse was being committed. The third victim was M, Clarke’s grandson who was 12-14 during the period he was abused, starting in 1975. These matters did not come to light until 2015, principally because they did not think anyone would believe them.

It is clear that at the time of offending the applicant had threatened each of the children so that they would not report matters. When one of the girls complained to her mother in 1979, she and her sister were denounced as liars. The applicant began to abuse the children after their parents had split up in 1974, following which they and their mother moved in to live with him and his wife. He was a big man who was given to violence, and the family had to abide by his rules and do what he said. He threatened all three children and physically assaulted the boy; all the children were afraid of him. The abuse took place in the applicant’s house, his work shed, and in the cab of a lorry which he took on trips as an HGV driver.

After about 18 months, the children moved to their own home with their mother, but the offending continued there as well as at Clarke’s home, where he was careful to ensure that none of the children saw what was happening to their siblings. This was systematic and continual sexual abuse over a period of about 6 years. It was very regular, penetrative, and involved a gross abuse of trust. It was accompanied both by bribes and by threats not to report the abuse. As the victim personal statements showed, all three children were badly affected in their later lives by what had happened. The two girls were assessed by the trial judge as having suffered severe psychological harm, and it is clear that the boy was traumatised as well. One of the girls had taken an overdose when she was only 13 and the other one had required counselling during her life. The impact upon their inter-family relationships had been significant.

The appellant was convicted on 16 December 2016 of the offences in counts 1 to 21. Those counts involved the two girls. Counts 1 to 14 involved J, counts 15 to 21 involved Z. During the course of the trial, and after J and Z had given evidence, the applicant changed his plea to guilty on counts 23-31 which involved the boy M. The applicant said that J and Z were liars, and claimed that M had consented to sexual activity with him. He showed no remorse whatsoever and had no idea of the impact of his conduct upon the children.

Between 1985 and 1992 Peter Cooper was in his mid to late sixties and the complainant (“C”) aged between 6 and 12. C was a regular visitor to Cooper’s home at this time, as he was a close relation by marriage and in a position of very considerable trust towards her. Cooper abused that trust over several years by sexually assaulting her on a regular basis. The assaults included touching her vagina, stimulating her clitoris and inserting his fingers into her vagina. It became a feature of her bath time and bedtime routines that the applicant tried to arouse her before putting his fingers inside her. On other occasions, while other members of the family were in the same room, Cooper obscured the abuse by using a cushion. He behaved indecently with her, when naked in his bed, by inciting her to touch his penis, in the presence of her sister.

However, in December 2014, C confronted him and he admitted abusing her. Subsequently he sent letters to the complainant, her sister and their mother in which he apologised for his “inexcusable” behaviour, claiming he’d been feeling guilty for a long time. The assaults were reported to the police and Cooper was arrested on 8 June 2015. He indicated that he intended to plead guilty at the magistrates’ court, proposing a basis of plea at the Crown Court, by which he accepted sexual touching but denied penetration. By the time of the sentencing hearing, he admitted that the abuse occurred on a regular basis over a number of years and included a degree of penetration.

The impact of Cooper’s offending upon C was severe. Her childhood was shattered, and in her adult life had suffered from stress and anxiety, a loss of confidence and self-harming. She could not trust other people, particularly men (including her own father) while her relationship with her sister had been destroyed. She found the applicant’s failure to acknowledge his abuse when interviewed by police and his decision to wait until the magistrates’ court to do so publicly particularly difficult. Despite this, C informed the officer in the case that she did not wish to see the applicant receive an immediate custodial sentence.

A medical report concluded that Cooper was alert and had no cognitive impairment. He had suffered from colon and skin cancer in the past and had hearing loss for which he wore hearing aids. He spent the first two weeks in custody in a specialist unit at HMP Exeter where he settled in well. He was in a single room and received a high level of support from prison officers, nursing staff and orderlies, albeit that his physical condition did not justify that level of care.

Sentence

In passing sentence on Ralph Clarke, the judge clearly had in mind annex B of the Sentencing Council’s definitive guideline for sexual offences, dealing with historic offending. He also had regard to R v Forbes. He analysed the various offences by reference to the guidelines, and recognised that he was limited by sentencing policy applied at the time of the offences.

Dealing with the issue of the passage of time, he said that Clarke had done nothing over the previous 40 years to atone for his crimes. He referred to the threats made, and the denial of the 1979 complaint which ensured that the victims remained silent; that had enabled the applicant to live his life without being punished for his offences. Only minimal discount would be given for a very late guilty plea to the offences against M. The judge correctly referred to the impact upon the victims, the significant degree of planning, the grooming behaviour involved and the gross abuse of trust. He recognised the appellant’s age, and that for him the effect of a custodial sentence would be enormous. In reality, a lengthy sentence would not make any real difference as to whether he would be released. Notwithstanding that the appellant had lived for nearly 40 years in the community without being punished, the judge said that he was certainly of the view that his sentence should be discounted because of his age and infirmity. Had the appellant been a younger man, the judge would have imposed a significantly longer sentence than the aggregate term of 13 years’ imprisonment with further periods of licence aggregating to two years handed down.

Peter Cooper pleaded guilty at the Taunton Crown Court on 20 February 2017 to five offences of indecent assault contrary to section 14 (1) of the SOA 1956 (counts 2,3,5,8 and 9) and one offence of indecency with a child contrary to section 1 of the Indecency with Children Act 1960 (count 7) HHJ Evans sentenced him to 4 years under section 236A of the CJA 2003 comprising a custodial term of 3 years and an extended licence of 1 year on count 2, concurrent terms of 24 months on the four other counts of indecent assault and 9 months concurrent on count.

The Appeal

Section 143 Criminal Justice Act 2003 establishes that the primary goals of sentencing are the harm caused or intended to be caused and the offender’s culpability in committing the offence. In both cases, culpability and harm were high, and both offenders had avoided justice and been able to enjoy life into old age. Since rehabilitation and dangerousness were unlikely to be significant questions in such cases, the court’s focus was to identify the appropriate sentence for the offending, subject to balance for mitigation, including guilty pleas and extreme old age, which was clearly a material mitigating consideration. While an offender’s diminished life expectancy, his age, health and the prospect of dying in prison were factors legitimately to be taken into account in passing sentence, they had to be balanced against the gravity of the offending (including the harm done to the victims), and the public interest in setting appropriate punishment for very serious crimes.

In the case of Ralph Clarke, an analysis of the offending led to findings of high harm and high culpability in application of the guidelines, with no mitigation in the passage of time since the offending given that Clarke had denied the offences when complaint was made. Nor was there any mitigation for a guilty plea in the case of J and Z, and virtually none in the light of very late pleas regarding M. Realistically it was only Clarke’s old age and the decline in his faculties which could be relied on in mitigation. The sentencing judge made it clear that he took account of those matters and that he had made a significant reduction for them. Having regard to the circumstances of the offending and what was known about Clarke’s age and condition, the sentence was not manifestly excessive. The judge had failed properly to apply the provisions of s.236A in relation to a number of the counts; the court made the necessary technical corrections which had no impact upon the sentence, but to that extent his appeal was allowed.

The judge’s approach to sentencing Peter Cooper was correct. There had been a systematic campaign of abuse over many years with devastating consequences for the victim. The number of offences and aggravating factors (including the presence of others and on one occasion another child), the age of the complainant when the abuse started, and a degree of penetration in each assault, even a conservative approach to the guideline would have produced a figure in the region of eight years. The personal mitigation of age did not justify a downward adjustment below four and a half years and with credit for the guilty pleas, there was no significant change; that is, three years. A custodial term of three years for offences of such seriousness was not excessive, even for a man of 96. The judge should have made an order under s.236A in respect of all five counts, but his sentencing remarks suggested an order under s.236A was made on one count only. Accordingly, the court made the necessary amendment to the concurrent sentences imposed on the remaining four counts but the sentence remained the same and in this regard the appeal was denied.

Conclusion

Both cases demonstrate that while the personal mitigation of extreme old age will result in some downward adjustment in sentence, it will not allow elderly offenders to avoid lengthy custodial sentences when other aggravating factors and the circumstances of the offending are considered.

 

Rhodri Jones