We covered the case of Graham Ovenden when he had his sentence increased by the Court of Appeal on 9th October 2013. We had to wait a long time for the judgment, but, for reasons which are not clear, it was published on 7th February 2014. At the end of our piece last year, after commenting that it seemed to be much higher than we would expect, we said:
“So – why is it so much higher? We will have to see the judgment to see what information the Court of Appeal had that we did not. It is to be hoped that this judgment (as well as that relating to Neil Wilson) actually gives an explanation for the increase (something which, sadly, the Stuart Hall judgment did not).”
So was it worth the wait?
Facts of the offending
The allegations were all committed between 1972 and 1987. Mr Ovenden had a trial and was convicted on Counts 1-2, 7-8 and 10-12 :
- Taking a photo of SM (about 10 years old) whilst she was naked with sticky tape over her eyes
- Taking a photo of SM (age unknown) whilst she was naked lying on a beach
- CM – Acquitted
- Became Count 10
- Became Count 11
- Became Count 12
- JB (aged 6) was having a bath with Mr Ovenden’s daughter when he came into the bathroom naked with an erection and got into the bath and asked his daughter to wash his penis (which she did). Mr Ovenden came back and took photographs of them wrapped in a towel
- Mr Ovenden approached JB (then aged 10) from behind and cupped her breasts saying “come on, let’s have a feel” – this was the indecent assault
- Photograph of EE in state of undress
- Photograph of EE in state of undress
- Photograph of EE in state of undress
The maximum sentence for all of the offences was 2 years imprisonment. Mr Ovenden was sentenced by the trial Judge to 12 months imprisonment, suspended for two years. These were all concurrent.
These are all historic offences (we have a factsheet on how these offences are dealt with by the Courts).
What would he have got now?
Much more. Much more than the maximum. The starting point would be the Sexual Offences Sentencing Guidelines. Although it is not clear what happened with Count 7, this would the sort of offence that he would have got 3 to 5 years on.
The remaining offences were a lot less serious. The photographs would not be sexual activity and would be charged under the Protection of Children Act 1978. This would have probably resulted in a non-custodial sentence given the levels involved. Perhaps a sentence of 6 months or so on Count 1. The starting point for the Sexual Assault would be 6 months (although the actual sentence may well be lower).
If these offences were committed today, we would expect perhaps a total sentence of about 4-5 years.
Why was he charged with indecency with a child rather than indecent images?
Dunno. This is an interesting question. The maximum sentence for ‘making’ indecent images was (at the time) 3 years. There may be some procedural problem that is not immediately apparent (the consent of the DPP is needed, but that would hardly have been an obstacle), but absent such a problem, the only thing that springs to mind is that the photographs weren’t considered to be indecent. This does not sit easily with the sentence of 9 months later passed.
Court of Appeal judgment
The meat of the reasons given by the Court are at paras 63-70. The aggravating and mitigating (mainly aggravating in fairness) features were identified. In para 69, rather than analysing whether the sentence was unduly lenient, the Court considers what would be the appropriate sentence (18 months on Count 7, consecutive to 9 months for the photograph counts and 6 months concurrent for Count 8).
It is also stated (without reasons) that “there is no basis, and there was no basis, for suspending the sentence”.
Against that backdrop, the Court concluded that the sentence was unduly lenient and increased it as set out above.
There are several points in the judgment that are unsatisfactory :
What is notable by its absence (in common with the Hall and Wilson judgments) is any real reference to the guidelines or previous authorities. Particularly in a case where the sentence that was imposed is higher than the maximum sentence, it is unfortunate that this was not done.
(2) Test for a Suspended Sentence
At para 61 it was noted that “Her Majesty’s Attorney General has submitted that the sentence was unduly lenient. The judge failed to have regard to the terms of the statute in that exceptional circumstances were required before a sentence could be suspended”.
The need for ‘exceptional circumstances’ was the test under the law prior to the Criminal Justice Act 2003. Whilst those sentences were preserved, currently (under LASPO) a sentence of up to 2 years can be suspended without exceptional circumstances. If that is right, then it is unfortunate that this submission was not corrected by the Court.
So, what is the test for whether a sentence should be suspended? The answer is that there is not one. Nearly ten years after the implementation of the 2003 Act it is surprising that this should be so. There are Sentencing Guidelines on 2003 Act sentences, but nothing is said about when a sentence should be suspended. Given the numerous opportunities of the Court of Appeal to address this, it is presumably a considered decision not to give such advice. This is, in fairness, understandable (even if it is unhelpful for practitioners).
(3) Deference to the trial Judge
At para 62 the Court referred to “the submissions of Mr Quinlan who has essentially said that the judge was in the best position to have judged the applicant; that he had been right to take into account his age and the fact that these offences were committed such a long time ago; and the fact that the applicant no longer posed a risk to children.”
An advocate who appears in the Court of Appeal will very often find themselves on the end of the mantra ‘the trial Judge heard the case, they’re in the best place to know’ when an appeal is being dismissed. Sometimes this is fair enough (Judges get things wrong after all), but here no explanation has been given as to what it was about this case that meant the usual rule did not apply. This is all the more significant given that the sentence was passed after a trial where the Judge would have had plenty of opportunity to assess Mr Ovenden.
(4) Consecutive sentences
Judges frequently pass consecutive sentences. Issues can be raised where consecutive sentences take the total sentence over the maximum for any individual offending (as the Court of Appeal did here).
The cases of Ralphs  EWCA Crim 2555 and H  EWCA Crim 2753 are good on this. In the latter the Court said (para 127) “We are unpersuaded that it is appropriate for consecutive terms of imprisonment to be imposed as a way of compensating for what the court believes to be an inadequacy in its sentencing powers” (in fairness, before doing just that).
In Mr Ovenden’s case there were legitimate reasons for making some of the sentences consecutive. Nonetheless, has the Court in his case fallen into this trap?
This case shows some of the problems of sentencing historic offences. In reality, had Mr Ovenden been tried and convicted of those offences at the time then he would probably have been fined for all of them apart from Count 7 (and possibly Count 8 with a harsh judge). Even then, if this had been 1984 rather than 2014 if he had gone to prison, it would have been for less than two years in total. Given that the maximum sentences for some of these offences were so woefully inadequate, it is very easy to pass a sentence too high. It would have been helpful for the Court of Appeal to have given some more of their reasoning behind their decision.
(5) Double jeopardy
In this judgment, (as in Hall and Wilson) there is again no reference to double jeopardy which is a surprising admission. It may be that double jeopardy is going out of fashion, but if this is so, it should be stated clearly.
The behaviour of Mr Ovenden was disgraceful. On the verdict of the jury he was guilty of serious sexual offending. But that does not relieve us, as a society, of doing him justice. Justice here (as in all cases) means not just that he is punished for his offending, but he is punished justly – he gets no less certainly, but also no more, than the law states is the right sentence.
Here, the Court of Appeal have said that the experienced Judge (HHJ Cottle has been a Crown Court Judge since 1993) got it wrong on a massive scale. After double jeopardy this would suggest the least possible sentence the Judge could have passed was about 2 years 9 months – nearly three times longer than was originally given (and immediate rather than suspended).
Of course there are cases where something goes wrong and when the Court of Appeal needs to step in (if anything, many people think that they are too shy of interfering), but when this happens everyone involved (and everyone who may be involved in future cases) is entitled to know what went wrong and why. Here, we are left at a real loss as to the reasoning of the Court on several key issues. It may be that this was all addressed in the written submissions and the arguments, but if that is correct then it is all the more reason for publishing these.