Gayle Newland’s sentence was both entirely proper and wildly disproportionate

And so here we are again. The relentless churn through the predictable life-cycle of the tabloid-tickling criminal case. Unusual case through to polarising verdict, through to “controversial” sentence and culminating in a red-top digging out a different case sentenced by the same judge to make whatever point fits their agenda.

The unusual case du jour is that of Gayle Newland, an apparently troubled young woman who impersonated a male called “Kye” and embarked upon a campaign of sexual activity with the unwitting complainant, who believed she was having penetrative intercourse with a man rather than a woman wearing a prosthetic penis. When the complainant removed the blindfold she had been persuaded to wear and saw the reality, criminal charges of assault by penetration followed, and yesterday Ms Newland was sentenced to 8 years’ imprisonment.

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The Mirror, we learn today, is morally outraged by the discovery that HHJ Roger Dutton, who sentenced Gayle Newland yesterday, sentenced a paedophile to 4 years and 8 months’ porridge in 2010. The hack in question also sprays around vague details of historical sex offences dealt with by the same judge, inviting readers to draw the same conclusion: outrageous, arbitrary, transphobic sentencing exercise by another out-of-touch, paedo-hugging judge.

I’ll admit here to a very minor interest – I’ve appeared before HHJ Dutton at Chester Crown Court before. Soft on crime, he ain’t. Friends who practise in the north speak darkly of a “Chester uplift”; the judges at that court centre are not renowned for their leniency in sentencing. I will say with virtual certainty that Roger Dutton does not harbour affection for paedophiles. But nor does he exhibit a visceral loathing for non-cisgendered women, as is also crudely implied.

The problem that the judge faced is this: the Crown Prosecution Service chose, in its wisdom, to charge Gayle Newman with assault by penetration, contrary to section 2 of the Sexual Offences Act 2003. To get slightly technical, there was sexual penetration with an object, and although consent was given by the complaint at the time, the law (R v McNally [2013] EWCA Crim 1051, considering sections 74 and section 76 of that Act) says that consent is vitiated by the fact that the defendant intentionally deceived the complainant as to her gender and therefore the nature of that penetration. Legally, the offence is made out.

And once the offence is made out, and once a jury convict upon it, the court is required to follow the Sentencing Guidelines set down by the Sentencing Council. The guidelines for assault by penetration are quite clear. And it is plain, reading them alongside the sentencing remarks, how the figure of 8 years’ imprisonment has been arrived at. This is not an arbitrary number plucked out of the ether – it is the recommended starting point for an offence of this type.

And the other offences trotted out by The Mirror – the paedos getting off lightly – will have been sentenced again faithfully to the relevant guidelines. The Mirror tells us little more about the facts of those comparators, but, assuming the Attorney General did not successfully refer them as unduly lenient to the Court of Appeal, they will have been sound sentences in law.

The problem, and it is nothing to do with this judge, is that given what we have been told about this case, it doesn’t feel like a case where 8 years’ imprisonment is proportionate. Although on the correct construction of the current law, the deception practised by Newland negated the complainant’s consent, it is perhaps more accurately painted as an offence of deception. And indeed, up until 2003, there was an offence (section 3 of the Sexual Offences Act 1956, seeing as you ask) of procuring sexual intercourse by false representation. Prior to the inception of the 2003 Sexual Offences Act, the Law Commission in fact recommended that the offence, or one like it, remain on the statute books. But Parliament for whatever reason elected not to, instead settling on an at-once vague and complicated definition of “consent” designed to embrace certain forms of deception.

There is an argument, of course, that this type of offence shouldn’t even exist. Where, the slippery slopists ask, does it end? If deception as to gender is an offence, what about deception as to transgender, or marital status, or income, or favoured shape of pasta? The reality is that each and every day people navigate the minefield of sexual relations accepting the risk – nay the inevitability – of certain playmates lying about their pasts, presents or futures. In sexual relationships, people fuck each other up emotionally with all manner of untruths. Should it be a criminal offence to do so? Should it, post-facto, vitiate consent? Thereby attracting the same custodial sentences, and the same stigma, as what the public would perhaps understand as “ordinary” non-consensual sexual offences?

I’m not sure, but what I do know is that if such conduct must be criminalised, the current legal position is entirely unsatisfactory.

As Ian Dunt pointed out yesterday, the state of the law is currently that a failure to disclose your HIV status does not vitiate otherwise-freely-given consent, whereas since 2013, and the case of McNally, it was been plain that deception as to gender does. Impersonating “a person known personally to the complainant” is also recognised as voiding consent, but falsely telling someone you’ve a day to live and your dying wish is for one last shag seemingly would not.

Instinctively I don’t think Gayle Newland should have received 8 years’ imprisonment, particularly when one looks at the comparable case of Justine McNally and her suspended sentence on appeal (although the personal circumstances of Newland and McNally appear quite distinct). 8 years is 3 years more than the maximum for inflicting grievous bodily harm without intent. If Newland had punched the complainant, who as a consequence fell, banged her head and ended up paralysed for life, she would not have received as long. But this is not the fault of the judges who sentence these cases – they are bound by the laws created by Parliament, the charging decisions of the CPS, the verdicts of the jury and the Sentencing Guidelines.

So, Daily Mirror, let’s please have a little less of the judiciary-bashing, and perhaps, if this case troubles you so much, some support for a sensible campaign for Parliament to review the increasingly-complex and blurred legal concept of consent? We wouldn’t want anyone to think you were just making cheap headlines out of a very sad and difficult case.

Is it worse to rape little Asian girls than little white girls?

A quick apology – I’m coming to this story a little late. That is partially my fault, and partially the fault of Lord Ashcroft and his delicious third-hand allegations of porcine impropriety. It has been a distracting few days.

An unsullied pig

An unsullied pig

This ground was stomped upon a little by various commentators at the end of last week, but, like a custodial sentence of over 4 years, some stupidity is never spent. Accordingly I grant myself leave to dig around a little in the Daily Mail story sitting below the headline:

Judge rules it is right that child molester who abused ethnic minority girls got longer sentence because Asian sex crime victims suffer more than whites

The judge in question is Mr Justice Walker, giving the Court of Appeal’s judgment in an appeal against a sentence imposed by HHJ Cahill Q.C. at Leeds Crown Court, relating to sexual offences committed by the Appellant against two girls aged 13 and 9. In dismissing the application for leave to appeal, the Court of Appeal approved the sentencing principles applied by HHJ Cahill, and it is this facet of the judgment that has attracted the media’s attention, and, taking the media reporting on trust, the opprobrium of various charities and victims’ rights groups.

Now it is not my job to act as spin doctor for the Court of Appeal. Nor do I hold any particular affection for the recent legal fetish (endemic at the Crown Prosecution Service) for hierarchies of victimhood predicated on race, religion or other “protected characteristics”.  If correct, this is quite properly splash-worthy news.

But is this what the Court of Appeal said? Really?

The facts of the offence can be gleaned from the Court of Appeal judgment. The victims were Asian, as was the Appellant, and the key passage of the judgment reads as follows:

“8. The remaining point taken by Mr Shafi is that the judge had, he submitted, regarded the offending as aggravated because of the victims’ ethnic and religious origin. This point is, with great respect to Mr Shafi, a misconception. In her sentencing remarks the judge observed that J was finding it difficult at school because her friends knew what had happened, leading to problems and shame for her. In relation to G, the judge observed that she had had difficulty as a result of what the applicant had done to her. This had caused G to behave completely out of character: she had previously been a young girl doing well at school, and now was not doing as well as expected. For the family as a whole there had been enormous implications. The father had said that he and their mother were struggling and felt socially isolated because, within their particular community, it brought great shame on the whole family when things like this happened. He was also concerned about the future marriage prospects for his daughters. The applicant, coming from this community, knew only too well the effect upon the children and their family and this was an aggravating feature.

9. In this regard Her Honour Judge Cahill was, entirely properly, having regard to the particular harm caused to the victims by this offending. As it happened, that harm was aggravated by the impact on the victims and their family within this particular community.”

For what little it is worth, I fail to see how, being faithful to the careful wording of the judgment, it is possible to sincerely arrive at the Mail’s interpretation.

When passing sentence for a criminal offence, the court is required to conduct an assessment culpability and of harm. For sexual offences, the Sexual Offences Definitive Guideline applies, and offers assistance in this exercise, but as a general principle of sentencing, the impact of an offence upon a victim is relevant to the court’s assessment of harm.

The excitement appears to have been generated by the reference to the buzzwords “shame”, “marriage prospects” and “community”. Clearly, the contention runs, the court is embracing a dangerous relativism and finding that, by virtue of the racial background of the victims and their cultural attitudes towards offences of this type, an offence against them automatically warrants a stiffer sentence. But less attention has been paid to the rather important use of the word “particular”, and the rather crucial phrase “as it happened”.

The assessment of harm was not based on the Judge’s own assumptions as to the likely or theoretical impact upon a child from a certain racial background; it was based upon evidence provided by the victims and their parents in Victim Personal Statements. In this particular case, the impact upon the victims was that described by the parents in their evidential statements. There is no general statement of principle, either by HHJ Cahill Q.C. or by the Court of Appeal.

Crucially, and most damaging for the story that the Mail wishes it had, there was no direct comparator. There was no white victim of this defendant, assaulted in identical circtumstances, in respect of whom a lesser sentence was imposed. The hypothetical comparator (if there was one) would have been an Asian child victim in identical circumstances save that the impact upon her and her family had not been as severe.

Let’s say the victim had been a white child to atheist parents in a small, close-knit Cotswold village, and the parents had provided a Victim Personal Statement in which they expressed distress at the impact of the offence upon the family’s place within the community, and voiced their fear that, due to the norms and mores at play in that community, their daughter’s social functioning would be irredeemably harmed. If the judge, in passing sentence, commented that in this particular case this particular harm was an aggravating feature, adding that it further aggravated the position that the defendant knew at the time of committing the offences of this likely impact upon his particular victim, it would take some distortion to paint this as a judgment devaluing the worth of Asian children.

There has been a wealth of academic and jurisprudential endeavour splurged on the morality of the “eggshell skull” principle that lies at the heart of the criminal assessment of harm, and that is a legitimate debate. But that’s not the debate the Mail wanted to have.

The headline stated – and people were invited to believe – that a court had set a general principle that raping Asian girls was worse than raping white girls.

This is simply not true.