Siulangapo v Rex [2009] TOSC 21; AC 10 of 2009 (22 September 2009)

IN THE SUPREME COURT OF TONGA
Appellant Division

AC AM 10-2009

NALESONI SIULANGAPO
Appellant

V

REX
Respondent

BEFORE THE HON MR JUSTICE SHUSTER

Mr M Paasi for the Appellant
Ms......for the Respondent

Hearing date: 18th September 2009
Ruling delivered: 22nd September 2009

RULING ON AN APPEAL FROM THE MAGISTRATES COURT AT MU'A

1. This is an appeal against a ruling of the Magistrate at Mua in the above captioned case AM 19 of 2009.
2. On Tuesday the 21th July 2009 - between 21.00-22.00 hours the appellant was served with a summons to appear in the Magistrate's Court at MU'A at 10.00 am the following day Wednesday the 22nd July 2009 - charged with two offences alleging:- [1] Common Assault and [2] Indecent Assault .
3. These crimes were alleged to have been committed on Saturday the 4th April 2009, whilst the appellant - and the alleged victim attended a dance, at Lapaha.
4. The court record indicates the matter was listed for hearing on the 22nd July 2009 at 10.00 before Magistrate 'ETIKA at Mu'a Court. According to the Appellant the summons to appear in Court, was served at very short notice and this was the first ground of appeal.
5. The Court record also reveals on his first appearance before the Magistrates Court, the appellant was unrepresented. The Court record is silent on whether or not the Appellant was asked by the Magistrate if he wanted legal representation.
6. When asked by the Magistrate, "what is your plea, guilty or not guilty?" The record indicates the - Appellant entered pleas of guilty to both charges in files CR 558-09 and 559-09. This Court notes the Appellant pled guilty at the first available opportunity, to crimes alleging [1] an offence of common assault and [2] an offence of indecent assault, by or towards a female- and that is to his credit as it shows remorse.
7. As a result of his unequivocal guilty pleas, the appellant was duly convicted on both charges. The Magistrate heard the facts, he also heard the Appellants personal mitigation and he proceeded to sentence the accused, but, without the benefit of a PSR
8. The court record indicates [a] for his early guilty plea to the offence of common assault, the appellant was fined $100.00 PA and in default of payment, he was ordered to serve two months in prison. The $100.00 fine was ordered to be paid into court within two weeks.
9. On the second summons CR559-09 alleging a crime of indecent assault towards a woman, the record indicates the appellant also pleaded guilty at the first available opportunity and again no PSR was requested. This Court is also aware our Magistrates Courts do not normally seek PSR's before sentencing someone to a custodial sentence.
10. Upon hearing the facts of the case and upon hearing evidence from the complainant who was present in person in court, the appellant was sentenced to six months imprisonment by the learned Magistrate - that sentence of imprisonment was for the indecent assault charge. The fine in the meantime remained outstanding yet to be paid.
11. The Appellant appealed the sentence of the Magistrates Court - to the Supreme Court signing the appeal documents on the 31st July 2009.By my calculations he may have served 9 days imprisonment before release on bail.
12. THE CHARGE
    • INDECENT ASSAULT - Indecent Assault is an offence contrary to section 124 (1) of the Criminal Offences Act (Cap 18) of the Laws of Tonga 1988 Volume 1
    • NELESONI SIULANGAPO- on or around 4th April 2009 at LAPAHA you touched with your hands into LIAVAI LATU'S left breast - without her consent.
    • Section 124 — INDECENT ASSAULT
    • (1) Any person who shall commit an indecent assault on any female shall be liable on conviction thereof to imprisonment for any term not exceeding 5 years.

THERE ARE SIX GROUNDS OF APPEAL

1. The summons was served on the accused and the accused was tried within 24 hours from the time he receive the summons. The summons was served on him on the night of the 21/07/09 and the trial took place the following day 22/07/09 My submission is for the case to be resubmitted back to the lower court for a re-trial
1. The sentence was too harsh on him since this is his first time conviction
2. The complainant had asked the Court that she had forgive the accused and to have mercy on the accused and to give him a community work sentence.
3. If he is not going to a retrial in the lower court then
4. It is my submission to change his sentence from imprisonment to a fine sentence on a suspended sentence and or to be discharged.
5. Submitted to stay of proceedings.

THE FIRST GROUND OF APPEAL

The Requirements of Section 14 of the Magistrates Courts Act are-

The preparation issue and service of a summons on a person - the applicable law;-

Whenever upon any application to the clerk for a summons it appears that any person has committed or is reasonably suspected to have committed within the district of the Magistrate any offence triable by such Magistrate, the clerk shall make out a summons in Form I contained in the Schedule hereto. Such summons shall state concisely the offence with which the defendant is charged and the time and place at which it was committed and shall require the defendant to appear at a specified time before the Magistrate's Court to answer the charge in the summons and to be dealt with according to law:
Provided that if it appears at the hearing that the summons has not been served on the accused more than 24 hours before the time and date stated in the summons (if the accused was served within the district) or more than 14 days (if he was served outside the district) the case shall not proceed without the express consent of the accused, which consent shall be recorded in the record of the proceedings."

ANALYSIS

The court record indicates the Magistrate accepted his court the Magistrates Court should try these cases, under its summary jurisdiction powers, as the Magistrate considered his summary powers of punishment sufficient.

The court record also indicates when the appellant was asked for his plea - the appellant, promptly entered what appears to be entirely unequivocal guilty pleas — and a guilty plea at the first available opportunity, to both the charges of [I] common assault — and [2] indecent assault.

As a result of his timely guilty pleas, the appellant was formally convicted of both charges - and he then fell to be sentenced in the normal way, after the Magistrate had heard and considered the appellants personal mitigation.

This Court notes there is no record if the Magistrate asked the Appellant if he wished to be represented by a lawyer, or if he enquired from either the Appellant or from the police prosecutor - when the summons had been served upon the Appellant, neither did the Magistrate appear to ask the Appellant if he wishes to call any witnesses on his behalf - to attest as to his character and antecedents.

Further the Magistrate made no award of compensation to the victim of this crime on either summons - although there is a clear provision to make such an order contained in section 25 (2) Laws of Tonga - CAP 18 perhaps on the facts such an award should have been made to the complainant - based upon an accused's ability and willingness to pay and make compensation. I will discuss the issue of awards of compensation later.

POLICY

A decision to plead guilty at the first available opportunity is always to any appellant's credit, this is because a guilty plea shows an appellant's remorse, further — it is well known a guilty plea saves the court time, and the unnecessary expense of the court conducting a full trial of the matter.

More importantly for consideration by an Appellant Court, is this: - and - this is especially true in any case involving any allegations of indecency —

• A timely guilty plea will save a young girl child or a woman from the trauma of giving evidence in court - before strangers
• A timely guilty plea will save the victim the necessity of giving - evidence concerning intimate acts - which were allegedly committed against her body?
• Accordingly - the greatest credit must always be given to anyone who records a timely guilty plea at the first opportunity particularly - particularly in allegations involving indecency and he must be told so.

ACCUSED'S - PERSONAL CIRCUMSTANCES

The record indicates the lower court heard from the prosecutor - the complainant and the appellant concerning their own version of the facts of this case. From the record it would appear the appellant was drunk, at a dance and - he had apparently asked the complainant for a light. The complainant told him she had none. She told the court the appellant punched her to the back, and the complainant says she fell off. [I presume a chair] The complainant also told the Magistrates court.

"The appellant came just yesterday and apologised, but I am still sad and feel shame for what he had done to me."

This statement would seem to indicate the complainant did not accept the appellant's apology even though she might have done so later.

The fact that there was included in the indecent assault also a common assault to her the victim's body - is an aggravating feature to this crime and, the indecent assault was aggravated by the fact that the offence was committed - at a dance - and in full public view of all dance attendees.

The law is quite clear the law says - every assault is an independent act - per the case of - Fagan v Metropolitan Police Commissioner - and an assault includes an indecent assault.

In this Courts view, it is also an aggravating feature of an indecent assault case - if there is a disparity in age between the alleged victims and - the appellant [defendant] as there is indicated to be in this case — because the appellant is a married man, whereas according to the court record - the victim is a single - unmarried woman. What happened to the Tongan neighbour principle?

SENTENCE

When it came time to sentence the appellant the Magistrate had clearly heard all the facts of the case - and the record indicates he told the appellant in no uncertain terms - that the Appellant had no right to touch the victim, without her consent, especially to the sensitive parts of the victims body. This court agrees.

The Magistrate also said "That his court wished to protect women from being abused or forced by those people in any situation and he said women are to be respected with dignity."

With respect, this is a Courts and is a Magistrates primary duty- a duty imposed upon him under both domestic and international law - and we have to remember the Office of Magistrate - has existed in most of the Commonwealth since the year 1372.

The Supreme Court fully agrees with the Magistrates comments and his sentiments on protecting women,

• "On protecting women it has been said - indeed these are fundamental principles and conditions accorded women and girls - under both UN International Law, and our own Tongan domestic laws — these laws require all courts to protect women and young girls - from sexual assault — and dare I say - it possible sexual predators /traffickers.

During his sentencing procedure - the Magistrate remarked:-

• "Accused I had take into account the submission made by the prosecutor and also your submission. The behaviour you did to the complainant took place in a public area where people were present, it was not only impolite it was rude, but it's a tyrant behaviour thus causing sadness to the complainant whereas her happiness was brought to an end on that night. Her freedom was also lost on what you have done.
• The Court wish to tell all the accused like you that indecent assault in the sensitive parts of the body of the women is not acceptable by the society in Tonga especially if it was done at a public place, their morality will be lost when indecent assault and common assault took place. This is a single woman who is yet to be married. The sentence that I will impose is to stop and scare and alert those who wants to commit these offences, to stop and to never come your way again. {Those words to me, mean the Magistrate wanted to impose a deterrent sentence in this case, and that he is perfectly entitled to do upon spelling it out in words the accused / and other persons will readily understand}
• The Magistrate went on to say: - I also take into account that you had a wife but you had not thought of the presence of your wife at the dancing and continue to commit this offence to the complainant at the dancing. I also take into account your plantation, and I think that your wife can survive on that along with your parents to bear your sentence.
• On your summons No. 588-09 which is common assault- you will be fined $100.00 and to pay it within 2 weeks, if not you will be imprisoned for 2 months.
• On your summons No. 589-09 which is indecent assault I will sentence you to 6 months imprisonment.

COMMENT-

Looking carefully at the record, I have to conclude the Magistrate did not appear to say - or to record, if he had considered a suspended sentence as he is required to do, applying the principles in the case of Reginald Raynsford [1988] 10 Cr App R p 416 and 417.

The Magistrate did say in very plain understandable words, that he was going to impose a deterrent sentence in this case- the Magistrate went on and he imposed an immediate custodial sentence of 6 months. The appellant appeals the Magistrates custodial sentence of six months imprisonment to this court.

With two appeals within a short space of time on offences both of a sexual connotation - from the same local Mu'a Magistrates Court - I think it is fit to lay out some common sentencing guidelines on appeal cases for those appearing on charges of - a sexual nature - or connotation. However such guidelines will still leave it free for a Magistrate to impose a deterrent sentence as an when he sees fit because the judiciary is independent.

GENERAL GUIDELINES ON SENTENCING AND THE USE OF CUSTODY--- SPELLING IT OUT

In passing sentence a Magistrate/Judge must state simply, and in ordinary language why he has reached his decision on sentence [or his opinion] and explain his reasoning in ordinary language to the offender and the court. R v Baverstock (1993) 14 Cr, App R (s) 471

In my respectful view this has been done by the Magistrate in this case [in part] but according to the record - the Magistrate had not considered a suspended sentence and or indicated he has rejected a suspended sentence and the Magistrate did not seek to obtain a Pre Sentence Report prior to sentence.

SEXUAL AND VIOLENT OFFENCES.

Sexual and violent offences require particular care in their handling and in their sentencing. A sexual offence is defined as any offence with a sexual connotation, and the court must disregards gender authority is R v Robinson [1993] 14 Cr App. R {s] 559.

Whether an offence is a violent or sexual offence is a question of fact in each case. Case law says it depends on the facts of each incident, rather than on the category of the offence. This definition is quite narrow in scope.

WHAT ARE THE AGGRAVATING FEATURES OF A CRIME?

In considering the seriousness of any offence the Magistrate may take into account any previous convictions of the offender or, any failure to respond to previous sentences, and must in considering the seriousness of any offence committed while the offender was on bail, treat the fact that it was committed in such circumstances as an aggravating factor. In this case the appellant is a first time offender and he has pleaded guilty at the first available opportunity - and that is clearly to his credit.

PREVALENCE

The prevalence of offences of a particular class and public concern about them, i.e. robbery theft - and drug or alcohol related offences, are relevant to the seriousness of any offence before the court. It would appear the magistrate is concerned with the number of indecent assault cases coming before him. He is entitled to be so concerned and apply a deterrent sentence to such cases according to law. R v Cunningham [1993] Cr LR 149; R v Cox [1993] 96 Cr App R 464

THE VIEWS OF THE VICTIM

It is an elementary principle, that the damaging and the distressing effect of a crime, on the victim represent an important factor in the sentencing decision. Those consequences may include the anguish and the emotional suffering of the victim, or in the case of a death, on the surviving close family members. R v Nunn [1996] Crim LR 210. In R v Doe [1994] 16 Cr. App R [S] and AG's reference No 2 of 1995 [1995] Cr. LR 835

The Court has approved the right of a court to receive evidence of the psychological effects of the offence on the victim. On the other hand the opinions of the victim or the surviving members of his family about the appropriate level of sentence do NOT provide any sound basis for an assessment. R v Nunn [1996] Crim LR 210.

In this particular case we heard from defence counsel that the victim may have forgiven the appellant {that assertion is contrary to the court record] and she wished a Community Service Order. The law says it is for the Crown to prosecute criminal cases based upon the sufficiency of the evidence and the public interest - to either prosecute or not - and the decision to prosecute - is clearly within the Crowns prerogative whereas the imposition of sentences are purely within the courts domain. There is no such thing as plea or sentence bargaining.

LENGTH OF SENTENCE.

If the court considers that a custodial; sentence is justified it must go on to consider how long that sentence should be except in the case of an offence the sentence of which is fixed by law.

The general rules are:-

• That a custodial term passed upon a convicted offender:- the term must be commensurate with the seriousness of the offence, or as the case may be, of the offence - or of all of the offences associated with it.
• It may be in the case a sentence for a violent or a sexual offence - for such longer term not exceeding the maximum as in the opinion of the court, is necessary to protect the public from serious harm from the offender / or the offenders.
• In assessing the length of the sentence the Judge / Magistrate is entitled to take into account the prevalence of the offence and the need for a deterrent sentence. See - R v Cunningham [1992] 14 Cr. App. R [S] 44 & R v Cox ante

THE USE OF SUSPENDED SENTENCES IN TONGA

In considering a sentence of imprisonment the court must have regard to the case of: - Reginald RAYNSFORD [1988] 10 Cr App R p 416 and 417.

The head note reads as follows. "It is a well established principle of sentencing that a sentencer; when considering a sentence of imprisonment: should ask himself these three questions, AND IN THIS ORDER

1. First, was he obliged to pass a custodial sentence, or, was there a non-custodial alternative which would be appropriate, in all the circumstances.
2. Secondly, the sentencer should decide the length of the appropriate custodial sentence, and
3. Thirdly, he should ask himself could he properly suspend the sentence EITHER - in whole or in part.

A suspended sentence is not an evasion of imprisonment; on the contrary it will be a perpetual reminder to the offender not to re offend. If the offender re-offends during the operational period of the suspended sentence then he will be doubly imprisoned.

In the case of a specified class of offenders such as first time and young offenders, a suspended sentence will perhaps be more effective than an immediate custodial sentence.

A Magistrate will also have a duty - to have regard to the well known cases of:-

4. R v Kefford and R v Bibbi 1980 71 Cr App R 360 which state a sentencer should look at and take into account - the number of inmates in the general prison population in deciding - on a sentence of immediate imprisonment.

The prisons in Tonga are fairly full - if the Magistrate can see no good reason to send an accused person directly to prison, then he might want to consider imposing a suspended sentence over an accused; to act as a deterrent so he does not offend in the future. But if he does so, then he must say so - and he must give his reason - in open court.

RULING

I have considered this case - I wish to point out that it must be made know - that though an Appellant has a right to appeal a Magistrate's Conviction and Sentence, it is also trite law that an Appeal Court can also increase a Magistrate's sentence, if the Court considers it just and equitable to do so and if the Court considers the sentence imposed by a Magistrate was - lenient. I wish to make that point very clear at the outset.

In this case the applicant ought to have been served with a summons by the police more than 24 hours, before he was due to appear in court. There was no indication on the Court record the Magistrate applied his mind to this aspect of the case and perhaps in future the Magistrates will do so, and clarify same with the respective police prosecutors.

Bearing in mind, all what I said above I do not wish to send the matter back to the lower court for rehearing before another Magistrate, just because the Appellant was served with a summons less than 12 hours before his hearing - I intend to deal with the matter today in the way described by his counsel.

I fully accept the accused pleaded guilty at the first available opportunity, and that he is a first time offender. Applying proper principles of sentencing gleaned from other jurisdictions- which have Sentencing Guideline Councils [representing their communities] - it is clear to me a sentence of six months imprisonment was unduly lenient.

The correct sentence for a drunken man who assaulted - and then goes on and indecently assaulted a young woman in Tonga at a dance -in the manner he did; would be a sentence of between nine months and twelve months imprisonment. In this particular case six months is in my view - unduly lenient.

Further, by imposing a term of immediate imprisonment - the Magistrate - could make no award of compensation to the victim of this crime, although there is a clear provision to make such an order contained in section 25 (2) of the Laws of Tonga - CAP 18 - perhaps on the facts and with the benefit of hindsight such an award should have been made to the complainant by the Magistrate instead of fining him — said sum to be based upon the Appellants ability — and also upon his willingness to pay and make compensation for his crime.

The Magistrate- in no uncertain terms indicated his views on behaviour to the Appellant in this case - on the unacceptability of his behaviour on the night in question and he said he wanted to impose a deterrent sentence. I agree with him. I take into account what the Magistrate said and I fully endorse same.

I also take into account the age of the Appellant in this case. I am obliged to apply the principles set out in the case of Reginald Raynsford and look at the fact- inmates at the prison's in Tonga - time - involves hours of hard labour. I have also considered the fact the appellant has served a few days in custody, before his release on bail pending appeal

I have decided to resentence the appellant as follows

On the Common Assault Charge - the fine of $100.00 remains. BUT - in addition it is only right and proper the complainant receives compensation for her injuries. This court will consider an award commensurate with the limit of the Magistrate - and I award the victim 200.00 compensation on the Common Assault.

On the Indecent Assault Charge - the accused is re- sentenced to nine months imprisonment suspended for three years from today's date. The sentence is varied upwards because I consider it was an aggravating feature that the victim was assaulted - then indecently assaulted applying the principles in the case of Fagan v Metropolitan Police Commissioner - The Appellant is ordered to pay $300 Compensation to the victim —for the Indecent assault charge —

Costs of today will be fixed at $30.00 PA
How can the costs and the compensation -be paid.

To this extent the appeal is allowed. For the sake of clarity from now on the Magistrates will no doubt take into account the seriousness of offences involving Indecency. They are entitled to impose deterrent sentences this type of crime is in fact prevalent. Collection of Fine and Compensation will be by the magistrates Court.

Shuster J

GUIDELINE CASES.
OFFENCE - Magistrates' Courts Guidelines: Guideline for any Indecent Assault Case – IS: Custody
General Guidance

If the victim is a young girl, the case ought to go to the Supreme Court, if the indecency is serious, e.g. touching the child with the defendant's penis. Any suggestion of attempted penetration or use of force also indicates that the matter should be sent to the Supreme Court. Digital interference with the vagina will also indicate the case should go to the Supreme Court for trial and sentence.

Where the victim is an adolescent girl who may have 'consented', consideration should still be given to sending the matter to the Supreme Court for sentence where there are features such as digital penetration interference or oral sex: R v Pickup (1992) 14 Cr App .R. (S.) 271.

An impulsive touching, unaccompanied by mild threats may well merit sentencing in the Magistrates' Court.

R -v- MOONEY (1992) 14 Cr. App .R.(S.) 207

The appellant was convicted of indecent assault. He had accosted a schoolgirl, aged 15. He was travelling on the upper deck of a bus and handled her breasts and pubic area through her clothing. He was sentenced to 18 months imprisonment. Tudor Evans J. - "We have come to the conclusion that this was a very unpleasant offence. The facts are rather more serious that any of those in the cases to which Counsel has referred us. It was a very embarrassing experience for this girl to be assaulted in this way. It may be other, more robust, girls of 15 would have roundly rebuked the appellant and gone to sit somewhere else on the bus, in which case nothing would have happened, but the fact is that she was not so robust and it was an unpleasant offence. In our view, nevertheless, 18 months was excessive. We have come to the conclusion that, bearing in mind that the appellant was not entitled to any reduction for a plea of guilty; an appropriate sentence is one of 9 months imprisonment. We shall substitute that sentence for the offence passed which we quash. To that extent the appeal is allowed."

R -v- Francis William EDWARDS (1992) 14 Cr. App. R.(S.) 79

The appellant pleaded guilty to 2 offences of indecent assault. The appellant accosted two young women as they walked home from a club in the early hours of the morning and seized each one by the breasts in turn. He was arrested by a police officer who arrived at the scene. He was sentenced to 9 months imprisonment on each count concurrent. It was held by the Appeal Court that the sentence was well within the range of appropriate sentences, but the court would reduce it to 6 months on compassionate grounds in view of the personal circumstances of the appellant.

State v Moses KOMBA, 28-02-2004

The accused pleaded guilty to Indecent ASSAULT OF A GIRL AGED 5 YEARS. The maximum sentence is two years. There was rupture of the child's hymen by his finger. In view of the guilty plea the accused was sentenced to Eighteen Months Imprisonment.

R -v- David Edward CLAYTON (1993) 15 Cr. App. R.(S.) 69

Here the victim of the offence was the 14 year old daughter of the appellant's girlfriend. The appellant, aged 38, was living with his girlfriend and daughter. The daughter alleges that on a number of occasions the defendant had pulled down her pants and smacked her bottom saying she had been naughty. This happened when no-one else was present and it also happened in her bedroom at night. The appellant told the girl not to tell anyone or her mother would become ill and die because she was unable to live without him. Eventually the girl complained to her mother and asked to have a lock put on her door. The police were informed and in interview the appellant denied the offence saying he only smacked the girl to discipline her. On appeal it was held the aggravating features were the position of trust so far as the girl was concerned and that he had made a threat, and that the offence was committed more than once. However, it was held that the offence was at the lower end of the scale of such offences and a sentence of 9 months imprisonment was substituted for the original sentence of 18 months imprisonment.

R -v- TOWNSEND (1994) 16 Cr. App. R.(S.) 553

The appellant was convicted of indecent assault on a female. He was seen by a police officer on a London underground station to follow a young woman onto a train; he stood behind her rubbing his groin against her bottom and followed her when she moved away. He was arrested by a police officer shortly afterwards. He had 18 previous convictions for various offences, mostly for dishonesty but none for sexual offences. He was sentenced to 6 months imprisonment for indecent assault. The Court of Appeal took the view that custody was correct but the appropriate sentence on the indecent assault charge was one of 3 months.

R -v- Gurinder SINGH-MARWA (1994) 16 Cr. App. R.(S.) 537

The appellant pleaded guilty to indecent assault. The complainant, a woman aged 18, applied for a job at the appellant's business. The appellant interviewed her, took her into a locked room, and offered her money to perform sexual acts with him. When she refused he pulled her shirt up and fondled her breasts. He was sentenced to 21 months imprisonment. The Court of Appeal held that the sentencer was right to conclude the offence was so serious that only a custodial sentence could be justified. The victim was anxious to obtain employment and therefore vulnerable. The offence did not, however, warrant a sentence of 21 months; a sentence of 15 months would be substituted.

Attorney-General's Reference No. 25 of 1997 (Williams) 1998 Cr. App. R. 310

It was held on an Appeal by the Crown due to the leniency of the sentence. The offender was convicted of two counts of indecent assault. He ran a pet shop business. A schoolgirl aged 15 spent her time on a work placement project. On various occasions the defendant squeezed her bottom, stroked her thighs and felt her breasts. On one occasion, he squeezed her vagina. He gave her £5 but persisted in his actions despite her protests. He was fined. The Crown appealed the lenient sentence. The sentence for fines, totalling £500, was varied to a term of 8 months imprisonment.

R -v- TANYILDZ (1998) 1 Cr. App. R.(S.) 362

The appellant was convicted of indecent assault on a woman. The appellant was seen boarding and leaving a number of underground trains. The appellant pushed his clothed erect penis against a woman passenger on 3 occasions, despite her efforts to distance him from her. Six months imprisonment reduced to 3 months on appeal.

R -v- YAZBEK 1998 Cr. App. R.(S.)

3 months imprisonment upheld for indecent assault by a man as a passenger on an underground train similar to the case of TANYILDZ.

R-v- AMIN 1998 CLR P.63

The appellant pleaded guilty to 2 counts of indecent assault and one of common assault — he was aged 25, and a man of previous good character. He approached two women walking in the street in the early hours of the morning. He grabbed one by the face and put his hand on her waist; he grabbed the second woman by the face and squeezed her breasts. He ran off and committed an offence on a third woman 20 minutes later. 18 months imprisonment was reduced to 6 months.

R v S [2000] All ER (D) 1698

Six months' imprisonment was reduced to one month for two charges of indecently assaulting a stepchild, coupled with a sentence of three years' extended licence. He had one previous conviction, a substantial time earlier for indecent assault of a young employee. The Pre Sentence Report had referred to other matters but it was not acceptable to sentence the defendant on a basis other than one on which he was convicted or for which admitted his guilt. The author of a pre-sentence report should ascertain on which charges and factual basis the defendant would be sentenced.

R v A ([2000] All ER (D) 2106) (10 November 2000)

The defendant pleads not guilty to indecently assaulting his stepdaughters, when they were aged between 10 and 14. His sentence of five years' imprisonment was reduced on appeal to four years.

R v M ([2000] All ER (D) 1833)

The defendant was convicted when he was 76 of offences of indecent assault and buggery between 17 and 24 years previously on boys aged between eight and fifteen years. He appealed against a sentence of five years' imprisonment. His appeal was allowed. In such cases involving particularly elderly defendants who were sentenced many years after those offences had occurred, the court might impose shorter sentences than normal. Taking into account that the offences had not involved a very serious breach of trust, and the age and state of health of the defendant, a sentence of three-and-a-half years would be substituted

R v B ((2000] All ER (D) 2315; 15 December)

The defendant was charged, when he was 54-years old with indecent assault on his sister when they were both teenagers. He had no previous convictions, and he pleaded guilty, he was sentenced to nine months' imprisonment. Imposition of immediate custodial sentence was upheld, but the sentence was reduced to six months on appeal.

R v H (BLD 1912002990; 20th December 2000)

A sentence of six-month detention upon a 13-year-old defendant who was convicted of indecent assault on a female was upheld on appeal because it was apparent that the defendant had exploited the fact that he was considerably stronger than his victim.

R v WESLEY ([2001] All ER (D) 42)(15 January)

The defendant was 56, a friend of the family of the victim, 18, who had learning difficulties. While giving her a lift home he stopped the car, kissed her twice and rubbed her shoulder. He pleaded guilty to indecent assault. He was of good character and suffered from ill health. Twelve months was appropriate.

Attorney General's Reference (No 27 of 2001)

An eighteen-month sentence of imprisonment was an unduly lenient sentence for indecent assault by a forty-three-year-old man, on six girls aged nine and ten, all friends of his daughter. The accused made full and frank admissions and was of previous good character and pleaded Guilty. The Court of Appeal said three years would have been more appropriate.

R v OWEN [2001] All ER (D) 96 (Aug)

A defendant of previous good character; pleaded guilty to indecently assaulting three girls aged 13 or 14 who stayed over night with his daughter after parties at which he supplied them with alcohol. He touched the inside of one girl's leg and touched the breasts of the other two. He was sentenced to four months consecutive for each. He appealed, contending that the consecutive sentences offended the principle of totality. The appeal was dismissed. The offences were sordid and there was some deliberation as the defendant had engineered the parties and there had been excessive drinking. He had also acted in breach of trust of these young vulnerable girls

Shuster J
Judge of the Supreme Court