– v –

Archibald MCGARVIE

9th July 1998

1. MR JUSTICE ROUGIER: On 9th December 1997 at Sheffield Crown Court this appellant pleaded guilty to five counts of indecent assault on a female. On 16th January 1998, after reports had been prepared and put before the learned judge, he was sentenced to a total of 42 months’ imprisonment concurrent on each of the counts.

2. He is now 64 years old. The offences were made all the worse from the fact that the victims were two young girls who were his step nieces, but on the other side of the coin these were extremely old offences, all but the last having taken place during the 1960s.

3. The appellant, who appeals against that sentence by leave of the learned single judge, is a Jehovah’s witness as are all the family. The offences started when the elder complainant was six. The appellant would place her on his knee, put his hand inside her underwear, tickle the outside of her vagina, even while other adults were in the room, although he managed to conceal what he was doing by enjoining his victim to silence. Later when the first victim was about seven and a half he used to guide her hand onto his penis and on one occasion while that was semi-erect and unclothed. This course of conduct went on for seven years until she was 13. The second complainant was also six years of age when the appellant started to assault her indecently in precisely the same fashion as he had done to her sister.

4. In 1973 matters came to a head. The complainant’s parents suspected that something was wrong and the story came out from the girls, whereupon there was a family row which also involved formal complaints being made to the church elders. There were several meetings. The appellant denied any impropriety but he did later send a note which led the reader to suppose that he was admitting indecency. At that time no complaint was made to the police, but not surprisingly the rest of the family ostracised the appellant from their circle.

5. However in 1995, now fully adult, the first complainant, who had obviously suffered psychological damage through these experiences, sought psycho-sexual counselling and decided to report the matter fully to the church elders, they having been told only a part of the story before. After a lengthy formal meeting, which the appellant attended, he apologised but nevertheless the complainant decided to report the matter to the police out of fear that he still might be abusing others.

6. He was arrested and interviewed. He said that he had no recollection of the offences but the allegations must be true because the girls would not tell lies. The learned sentencing judge gave him credit for his plea describing it as “brave” in the circumstances.

7. The grounds of appeal are, in general, that the sentence was manifestly excessive. In particular we are urged to say that the learned judge failed to take sufficient account of the age of the offences. That, to a certain degree, is true, but there is a limit to which any person guilty of indecent assault can shelter behind the fact that it has taken his victim some time to recover from the trauma and the embarrassment and bring the matter out into the open; that is all part and parcel of the original offence. However it is a matter to which we must pay some attention, all the more so because the appellant might well have had reason to believe that the affair had been closed back in 1973.

8. It is further alleged that there had been no digital penetration and the pleas, the basis on which they were entered, made these offences at the lower end of indecent assault. We are not entirely able to agree with that because the most serious aspect of the matter lies in the age of the two complainants and the family relationship with the appellant. However, bearing in mind that the maximum sentence at the time was one of five years, it is submitted that the sentence failed to reflect fully the guilty pleas, described as we have already said as “brave”.

9. The appellant is relatively elderly and, perhaps most important of all, we have been provided with medical reports which show that he is indeed gravely ill. This therefore seems to us to be one of those cases where it would not be unjust to apply the balm of mercy to what would otherwise be an appropriate sentence.

10. The learned single judge, in our respectful judgment, put the matter succinctly when he said in giving leave:

“A very unattractive fellow but the combination of the pleas, the staleness of the complaints, the lack of penetration and the applicant’s age and health persuaded me these sentences warranted review by the full court.”

11. We think so too. As indicated to counsel, we think that in the particular circumstances of this case justice would be adequately done by quashing the sentence of three and a half years on each of these counts and substituting sentences of two years all to run concurrently. To that extent this appeal is allowed.