Goldfinch v R.

Deficient representation by trial counsel does not itself make a conviction unsafe. An appellant must identify errors or irregularities caused by the representation which rendered the trial unfair or the conviction unsafe. Counsel retains responsibility for forensic decisions and trial strategy; counsel is not simply the defendant’s mouthpiece.

When sentencing an adult for a historical sexual offence committed as a child, the court should make a measured reference to the guideline for the broadly equivalent modern offence. It must adjust for any lower historic maximum sentence and assess culpability as that of the young offender. Youth and immaturity bear on culpability, rather than operating only as personal mitigation.

The appellant was convicted at Canterbury Crown Court of indecent assault contrary to section 15 of the Sexual Offences Act 1956. The alleged offence occurred in 1996, when he was 16 and the complainant was four. He was sentenced to six years and six months’ imprisonment.

He sought leave to appeal against conviction, alleging that trial counsel had inadequately cross-examined the complainant, wrongly accepted that abuse may have occurred, and pursued an alternative-perpetrator case without his approval. He renewed an application for leave to appeal against sentence. The court had to decide whether the alleged advocacy failures made the conviction unsafe and whether proper weight had been given to the historic maximum sentence and to the appellant’s age and culpability when the offence was committed.

1. Disposition. The court dismissed the application for leave to appeal against conviction, including the application for an extension of time. It granted leave to appeal against sentence, allowed that appeal, quashed the sentence of six years and six months’ imprisonment, and substituted three years’ imprisonment. The ancillary orders remained unaffected.
2. Conviction. Applying R v Day [2003] EWCA Crim 1060, the court held that incompetent representation is not, without more, a ground of appeal. The appellant must show identifiable errors or irregularities caused by the representation which made the trial unfair or the conviction unsafe. The alleged failures did not meet that test. The differing childhood accounts were before the jury, and the adult complainant could not recall the earlier police interview. Questioning him about detail from 20 years earlier would not have advanced the defence.
3. Forensic strategy. Counsel was entitled to make the tactical decision to explore whether another person might have been responsible if the jury were sure that abuse had occurred. On the evidence, that was a legitimate response to the accounts of a very young child and to the absence of evidence supporting fabrication. Consistently with R v Farooqi [2013] EWCA Crim 1649, counsel was responsible for strategy and did not require the appellant’s prior approval for that course.
4. Sentence. The recorder had not given sufficient weight to two central matters. The historic offence carried a maximum of ten years’ imprisonment, whereas broadly equivalent modern offences carry life maximums. Further, culpability was that of a 16-year-old whose single offence was characterised as teenage sexual experimentation, not that of a predatory adult offender. Applying the approach in R v Forbes and others [2016] EWCA Crim 1388 and R v H [2011] EWCA Crim 2753, those features each required a substantial reduction from a notional current adult starting point. A sentence of three years’ imprisonment was proper.

• Court of Appeal (Criminal Division). The application for leave to appeal against conviction was dismissed. Leave to appeal against sentence was granted; the sentence was quashed and replaced with three years’ imprisonment.
• Crown Court at Canterbury. On 23 June 2017 the appellant was convicted of indecent assault contrary to section 15 of the Sexual Offences Act 1956. On 28 July 2017 Recorder Dias QC imposed six years and six months’ imprisonment.