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Sex offender loses appeal against conviction

An appeal against conviction by sex offender Milton Richardson has been rejected, and the Crown continues to challenge the reduction of his original sentence from 18 months to one year.

While it appeared to be in doubt whether Richardson, a former youth group leader, would return to jail if the Court of Appeal upheld his original sentence, Deputy Director of Public Prosecutions Cindy Clarke did not rule out pursuing extra time in custody.

Ms Clarke told the court her main interest was the principle that the sentencing guidelines used by the court during Richardson's appeal last year had been manifestly too low.

During his first court appearance before Magistrate Khamisi Tokunbo, Richardson faced allegations that on two occasions, firstly between January 5 and 12, 2013, he kissed a boy on the neck, and secondly, on January 19, 2013, he kissed the ear, neck and mouth — attempting to push his tongue into the boy's mouth and forcing his victim to clench his teeth shut.

In that initial trial, his victim took the stand and disputed suggestions that any aspects of his story were fabricated.

Richardson, who was 47 at the time of the offences, was jailed on March 3 last year after being convicted of four counts of touching a boy under the age of 13 for sexual purposes. He was sentenced in May and served nine months in total, securing his release on December 12 — two days after an appeal before Chief Justice Ian Kawaley had his time cut to four sentences of six months each.

The first three sentences were concurrent, while the fourth was consecutive, totalling one year in jail. A third was discounted for good behaviour.

Mr Justice Kawaley's judgment, available online via the Government website, resorted in part to the sentencing guidelines for sexual offences tried in Magistrates' Court.

Part of the justification for drawing up those guidelines was the “highly emotive criticism of sentencing judges” brought about by internet scrutiny, he noted.

Although Ms Clarke faulted the complex mathematical methodology used by Mr Justice Kawaley in tallying a new sentence for Richardson upon appeal, she stressed that she was not seeking for the court to comment broadly on the guidelines themselves.

Appearing before Justices Sir Maurice Kay, Sir Scott Baker and Geoffrey Bell QC, the Deputy DPP nonetheless argued that two consecutive sentences of nine months each were more appropriate in Richardson's case.

Lord Justice Baker said that in the hypothetical event that the court concluded that the original sentence had been correct, Richardson would be entitled to a discount “in respect of what's called double jeopardy”.

Ms Clarke said that would theoretically leave Richardson with an additional two months of “real time”. The legal wrangle followed the dismissal of a move by defence lawyer Michael Scott to appeal the conviction on the basis of evidence that he argued showed that the young witness might have been intimidated into giving testimony against Richardson.

Mr Scott also argued that his client's original defence lawyer had not pursued the “play acting” line in Richardson's original defence: that he had been playfully wrestling with the child and “roaring like a lion”. The original court heard that Richardson uttered moaning noises while kissing the boy.

Justice Bell QC responded: “You say this boy might have been mischievous — we have not heard the boy, but the magistrate very clearly recorded his impressions”.

In court, the victim had been an “excellent and striking witness”, Mr Tokunbo wrote, both for his age and under the circumstances. The sentencing magistrate rejected all suggestions that the child had lied or fabricated evidence.

Lord Justice Baker said: “It is not just a matter of the magistrate having accepted the boy's evidence, he took a very dim view of the appellant's evidence, and the appellant as a witness.”

Mr Scott rested his case on proportionality in the use of the guidelines, noting that Richardson's offences fell at the lower end of the scale.

“If the guidelines are to be assailed on a strictly maths basis, that is an administrative exercise, that my client ought not to be prejudiced by — it ought not to form the foundation for interfering with the assessment by the learned Chief Justice.”

If the guidelines were too lenient, Mr Scott said, they could be “gotten right on another day”. Lord Justice Baker said the court would reserve its decision on the Crown's case to a future date.

Legal wrangle: Milton Richardson was released in December after appealing to have his sentence reduced

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Published March 11, 2015 at 9:00 am (Updated March 11, 2015 at 1:18 am)

Sex offender loses appeal against conviction

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