Lewis, Re DP Ref Number 1 of 2018

Factual and Procedural Background

The Defendant, aged 91, was sentenced on 9 February 2018 at Antrim Crown Court by Judge Marrinan to a total term of 10 years and 6 months, consisting of 9 years and 6 months in custody and 1 year on probation, for multiple offences of indecent assault, buggery, and attempted buggery committed against three children over a period from 1973 to 1983. The trial judge had amended an earlier sentence imposed on 18 January 2018 by decreasing the probation period by one year and increasing the custodial period correspondingly. The Director of Public Prosecutions sought leave to refer the sentences to the Court of Appeal under section 36 of the Criminal Justice Act 1988, contending the sentences were unduly lenient.

The offences involved three victims: the first victim (V1) was abused repeatedly from approximately age 10 or 11 between 1973 and 1978 at the Abbey where the Defendant was a monk; the second victim (V2), a boy aged 9 or 10, was abused over approximately four years after the Defendant left the Abbey and moved to a village where he operated a printing press; and the third victim (V3), a brother of V2, was subject to one incident at about age 13. The abuse included indecent assault, buggery, attempted buggery, and oral sex. Medical evidence showed significant enduring trauma and post-traumatic stress disorder in the victims.

The Defendant initially denied the offences but later pleaded guilty to most counts. The presentence report described the Defendant as having a low likelihood of reoffending, largely due to his advanced age and withdrawal from community life, and noted a lack of victim empathy and justification beliefs about the offences.

Legal Issues Presented

1. Whether the sentences imposed on the Defendant for multiple sexual offences against children were unduly lenient.
2. The appropriateness of reductions in sentence for the Defendant's advanced age and delay in prosecution.
3. The suitability and application of a custody probation order under Article 24 of the Criminal Justice (Northern Ireland) Order 1996 given the Defendant's age and risk of reoffending.

Arguments of the Parties

Appellant's Arguments

• The Director of Public Prosecutions argued the sentences were unduly lenient given the gravity, duration, and number of offences and victims.
• It was submitted that the starting point for sentencing should exceed 20 years before mitigating factors.
• The Director contended that the reductions for age and delay were insufficient to justify the overall sentence length.

Defendant's Arguments

• The Defendant's counsel emphasized the Defendant's advanced age and low risk of reoffending as mitigating factors.
• It was argued that a degree of mercy was appropriate due to the impact of imprisonment on a nonagenarian.
• The delay in prosecution and the Defendant’s eventual guilty plea justified reductions in sentence.
• The Defendant’s withdrawal from community life and external controls reduced the need for a probation order.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Clarke [2017] EWCA Crim 393	Principle allowing limited mercy in sentencing offenders of advanced age due to the impact of imprisonment.	The court applied this principle to justify a three-year reduction in sentence for the Defendant's advanced age, noting the Defendant was the only prisoner aged 90 or over and that prison service policies provided for older prisoners' welfare.

Court's Reasoning and Analysis

The court carefully reviewed the aggravating factors, including the Defendant’s position of trust, the planning and persistence of the offences over a decade, the young ages of the victims, multiple victims, frequent ejaculation, use of money and alcohol to facilitate abuse, victim intimidation, and the severe psychological impact on the victims. The court agreed with the trial judge that the starting point for a campaign of buggery and serious sexual offences was around 15 years, but concluded that given the multiple victims and offences, the appropriate starting point exceeded 20 years.

The court accepted the trial judge's allowance of a one-year reduction for delay in prosecution, noting the delay related to a period when the Defendant was not charged and had limited prejudice. The court also accepted the three-year reduction for age, considering the Defendant’s unique status as a prisoner aged over 90 and the prison service’s provisions for older inmates.

The 25% discount for the guilty plea was deemed generous given the Defendant’s initial denials and late admissions. The court concluded that even with these mitigating factors, the effective sentence should have been approximately 12 years rather than 10 years and 6 months.

Regarding the custody probation order under Article 24 of the 1996 Order, the court found no basis for such an order given the Defendant’s advanced age, withdrawal from community life, and the assessment that external controls were sufficient to manage risk without further intervention or rehabilitation.

Holding and Implications

The court granted leave to the Director of Public Prosecutions to refer the sentences and held that the sentences imposed were unduly lenient. The court substituted the original sentence of 10 years and 6 months with a concurrent custodial sentence of 12 years for the buggery offences. The custody probation orders were replaced with sentences of imprisonment for the commensurate terms.

The direct effect of this decision is an increased custodial sentence for the Defendant. The court did not establish new precedent but applied established principles regarding sentencing offenders of advanced age and the assessment of mitigating factors in cases of serious sexual offences against children.