Sim v R. [2003] EWCA Crim 3230

Case No A0/2003/03376Neutral Citation No. [2003] EWCA Crim. 3230
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM HIS HONOUR JUDGE PITMAN
AT SNARESBROOK CROWN COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13 th November, 2003
Before
LORD JUSTICE PILLMR. JUSTICE ROYCETHE RECORDER OF CHESTER
Between
WILLIAM CHARLES SIMAppellantTHE QUEENRespondent
Mr. Kris Gledhill for AppellantMr. Paul Raudnitz for RespondentHearing Hearing dates : 16 th October, 2003
JUDGMENT

Lord Justice Pill :

[1]On 24 January 2000 in the Crown Court at Snaresbrook before His Honour Judge Pitman and a jury, William Charles Sim was convicted on two counts of indecent assault (Counts 2 and 4) and one count of committing gross indecency with a child (Count 5). He was acquitted on other counts. On 17 February 2000 the judge imposed an extended sentence under Section 58 of the Crime and Disorder Act 1998. It was to be made up of a custodial term of 30 months imprisonment on each count concurrent and an extension period of 5 years. Powers conferred by Section 58 are now contained in Section 85 of the Powers of Criminal Courts (Sentencing) Act 2000. Sim was also made subject for life to the notification requirements in Section 2 of the Sex Offenders Act 1997.[2]Sim seeks an extension of time, 3 years, 2 months and 23 days, within which to apply for leave to appeal against sentence. The Registrar has referred the application to the full court. An application for leave to appeal against conviction was refused by the single judge and by the full court.[3]The complainant was aged 7 when the offences were committed and the applicant was her mother’s boyfriend. Each of the three Counts alleged a specific incident and the three occurred over a period of 6 weeks when the mother was at work and the applicant babysitting.[4]In Count 2 it was alleged that the applicant told the complainant to go to her mother’s bedroom and take her clothes off. While she was lying on the bed, he touched and licked her vagina. In Count 4, the applicant entered the complainant’s bedroom, took her to her mother’s bed and touched her vagina. In Count 5, he told her to touch his penis, saying he would give her money, and she did so.[5]A pre-sentence report was prepared. The Probation Officer noted that, when discussing the details of the offences, the applicant categorically denied committing them. He thought the allegations had been made by the mother of the victim because he had ended their relationship. The Probation Officer noted that the applicant’s level of denial "precluded any expression of remorse or regret or victim awareness". She expressed the opinion that "Mr.Sim’s level of denial and lack of victim empathy leads me to conclude that he is at high risk of re-offending in a similar manner".[6]The Probation Officer also expressed the view that a custodial sentence would not address the "distorted thinking and behaviour which has motivated Mr.Sim’s offending". She believed that "it would be productive for the Sex Offenders Project to carry out a full risk assessment prior to sentencing this defendant". The Probation Officer concluded: "I would respectfully ask for a further 3 week adjournment to enable this assessment to be carried out which will assess Mr.Sim’s risk to children and identify any potential scope for treatment to reduce Mr.Sim’s risk of further offending".[7]Reference was also made to the applicant’s convictions for theft and violence. He was in breach of a community service order for 80 hours imposed on 29 October 1998. There were no previous convictions for sexual offences.[8]When the applicant came up for sentence, counsel then appearing stated that the applicant had maintained his innocence and was appealing against conviction. She noted that "it is always difficult for a probation officer to make constructive recommendations where that is the case". Counsel said that she had discussed the question of a further assessment with her client and added that "it would be of no great assistance to Your Honour to have a further adjournment of sentence in this case because it is unlikely that his attitude will change within the next three weeks knowing, as he does, that there is to be on his behalf an appeal against his conviction".[9]Addressing counsel,

the judge stated:

"Before you go on to say it, and dealing first with the question of whether there should be an adjournment and whether your further submissions should be adjourned, in a way I think I have come to the same conclusion for I think very similar reasons and that is this, that the author of the pre-sentence report, Mary Pilgrim, with her experience took the view that in a state of such complete level of denial, the risk of re-offending remained high and it seemed to me that if one was to spend three weeks with him going to a sex offenders’ project to ask the question, what is his risk of re-offending, it is so likely that they will come to precisely the same conclusion, that it would really not be worth the wait, but, also it seems to me that it would only have a bearing, I think, on the extended period licence which would arise in this case. It would be relevant to that, but I had in mind a period, I think, of five years, subject to any submissions you make, with an extended period of licence which would seem to me to cover what appears to be the present situation. Miss Champion: Yes, Your Honour Judge Pitman: I think it is very unlikely that they will come up with any alternative view in three weeks’ time. Miss Champion: I think that must be right, Your Honour Judge Pitman: All right. Then I think, unless something else crops up in your mitigation, I do not propose to adjourn for that purpose"
[10]When sentencing the applicant

the judge stated:

"An immediate custodial sentence is inevitable and, bearing in mind all the circumstances, the sentence of the court for these offences, for each concurrently, will be one of two and a half years. I propose to also make an order for an extended licence period which I will particularise in a moment, but it will be for a period of a further five years after your release"

The judge went on to explain the effect of that sentence.

[11]The basis of the application to extend time is that, subsequent to the imposition of the sentence, the Court of Appeal has given guidance on extended sentences which was not available to the sentencing judge and that the part of the sentence providing for an extended period of licence of 5 years should be reconsidered in the light of the guidance. It was too long and was not justified by evidence before the sentencing judge, it is submitted.[12]The guidance relied on was given in the case of Nelson [2002] 1 Cr. App.R. (S.) 565., Rose LJ, Vice-President, presiding. It was stated that the judgment was intended to give guidance in the use of additional sentencing powers made available in relation to violent and sexual offences. Under the heading "The length of an extended sentence", Rose LJ stated:
"19. As to the length of an extended sentence, the court must decide what period will be adequate to secure the offender’s rehabilitation and to prevent re-offending. This will often be difficult. But, in some cases, involving less serious sexual offences where the custodial term is relatively short, the court may be able to take advice on the availability and length of treatment programmes and tailor the extension period accordingly. In all cases the court should consider whether a particular extension period can be justified on the evidence available. A long extension period should usually be based on a clear implication from the offender’s criminal record or on what is said in a pre-sentence report or a psychiatric report. The objective, where possible, should be to fix the length of the extension period by reference to what can realistically be achieved within it. 20. When the offender is clearly dangerous the custodial term will usually be longer than commensurate and a long period of extended licence will often be called for. As we have said, however, the length of an extension period is subject to a statutory maximum of five years in relation to a violent offence and 10 years in relation to a sexual offence and the combined total of the custodial term and the extension period is limited to the maximum for the offence."
[13]Having referred to the apparent anomaly that the longer the custodial term passed, the shorter the extension period available to the court, Rose LJ added:21. "…….since the length of an extension period is not designed to reflect the seriousness of the offence but is a measure designed to provide greater protection for the public from the commission of further offences. A short custodial term followed by a significantly longer extension period may be an appropriate response in a case where the offence was relatively minor but where the likelihood of re-offending justifies an extended period of supervision ……..22. It is clear from Gould [2000] 2 Cr.App.R.(S.) 173 that a court imposing an extended sentence should bear in mind that the offender may ultimately serve the whole of part of the extension period in custody. But, as the legislature’s intention in introducing extended sentences is clearly to place an offender at risk of recall for some considerable time, it would be illogical to require strict proportionality between the duration of the extension period and the seriousness of the offence. Proportionality with the seriousness of the offence is, of course, of central importance to a custodial term. But it should not be a primary factor in determining the length of an extension period. It does, however, in our judgment, have some relevance and the implications of the overall sentence should be borne in mind ".[14]The appellant in that case was sentenced, on a guilty plea, to 5 years imprisonment for a sexual offence with an extended period of licence of 5 years. The appeal was only against the 5 year period of extended licence and that was reduced to 2 years. The court is mindful of the considerable additional sanction which the period of extended licence provides.[15]For the applicant, Mr.Gledhill submits that time in which to make the application should be extended to allow the court to apply the approach in Nelson to the 5 year period of extended licence imposed in this case. The court in Nelson had moved from giving guidance on levels of sentencing to explaining the law and that had retrospective effect. Guidance was given as to the meaning of the words of the appropriate section (now Section 85 of the 2000 Act) and the court was not merely setting a tariff.[16]In relation to the retrospective effect of decisions of this court in sentencing matters, reliance is placed on Offen [2001] 2 Cr.App.R.(S.) 44, the Lord Chief Justice presiding, where the court considered the meaning of the expression "exceptional circumstances" in section 2 of the Crime (Sentences) Act 1997, now section 109 of the Powers of Criminal Courts (Sentencing) Act 2000. The context was different from the present; that of the approach a court should adopt to automatic life sentence provisions. The court departed from the construction previously applied in the case of Kelly [1999] 2 Cr.App.R.(S.) 176. In Kelly (No.2) [2002] 1 Cr.App.R.(S.) 360, upon a reference by the Criminal Cases Review Commission, the court, Buxton LJ presiding, adopted the statutory construction preferred in Offen to that which had been expressed when Kelly first came before the Court. Faced with inconsistent decisions, the court followed Offen and allowed the appeal notwithstanding that the earlier appeal had been unsuccessful.[17]In Offen, the court conducted an analysis of Section 2 of the 1997 Act in the context of the White Paper in which the policy of Parliament in establishing the automatic life sentence emerged and in the context of the Human Rights Act 1998. The Lord Chief

Justice stated, at paragraph 78:

"We would suggest that quite apart from the impact of the Human Rights Act, the rationale of the section should be highly relevant in deciding whether or not exceptional circumstances exist. The question of whether circumstances are appropriately regarded as exceptional must surely be influenced by the context in which the question is being asked. The policy and intention of Parliament was to protect the public against a person who had committed two serious offences. It therefore can be assumed the section was not intended to apply to someone in relation to whom it was established there would be no need for protection in the future. In other words, if the facts showed the statutory assumption was misplaced, then this in the statutory context was not the normal situation and in consequence, for the purposes of the section, the position was exceptional."
[18]The Lord Chief

Justice added at paragraph 96:

" Section 2 establishes a norm. The norm is that those who commit two serious offences are a danger or risk to the public. If in fact, taking into account all the circumstances relating to a particular offender, he does not create an unacceptable risk to the public, he is an exception to this norm. If the offences are of a different kind, or if there is a long period which elapses between the offences during which the offender has not committed other offences, that may be a very relevant indicator as to the degree of risk to the public that he constitutes. Construing section 2 in accordance with the duty imposed upon us by section 3 of the 1998 Act, and taking into account the rationale of the section as identified by Lord Bingham gives content to exceptional circumstances. In our judgment, section 2 will not contravene Convention rights if courts apply the section so that it does not result in offenders being sentenced to life imprisonment when they do not constitute a significant risk to the public. Whether there is significant risk will depend on the evidence which is before the court. If the offender is a significant risk, the court can impose a life sentence under section 2 without contravening the Convention. Either there will be no exceptional circumstances, or despite the exceptional circumstances the facts will justify imposing a life sentence."
The Lord Chief Justice concluded at paragraph 98 by stating that "Section 2 will still mean that a judge is obliged to pass a life sentence in accordance with its terms unless, in all the circumstances, the offender poses no significant risk to the public".[19]Having considered the reasoning in Offen, Buxton LJ stated in Kelly (No.2) at paragraph 21:
"On this view the "exceptional circumstance" of the offender being someone in relation to whom it is shown there would be no need for protection in future is not merely something that in the words of section 2(2) justifies the court in not imposing a life sentence, which would seem to leave it open to the court nonetheless to impose a life sentence if so minded; but rather is seen by this Court in Offen as a fact that prevents the section from applying at all: so that in those circumstances the court has no vires to impose a mandatory sentence."
[20]Expressing the conclusion of the court, Buxton LJ (at paragraph 42) again put it as a question of powers:
"Granted that we come to these conclusions [on the facts], in the light of the guidance given in Offen we no longer have vires to impose a life sentence"
[21]Mr. Gledhill submits that, as in Offen¸the Court of Appeal in Nelson moved from giving guidance on levels of sentencing to explaining the law. As in Offen, the principle established should be applied retrospectively. The decision in Nelson demonstrates that the law was misapplied in the present case and the sentence should be reconsidered on the basis of the law as laid down in Nelson. Mr. Gledhill refers to the case of Cornelius [2002] 2 Cr.App.R.(S.) 297 where, on a guilty plea, an extension period of 2 years was substituted in this court for the period of 5 years imposed by the judge. No extension of time was required in that case, however. In accordance with the usual practice, the court sought to apply Nelson which had been decided between the imposition of the sentence by the trial judge and the hearing of the appeal.[22]For the respondent, Mr.Raudnitz submits that the Offen/Kelly principle does not apply because it does not cover situations in which this court gives guidance on appropriate tariffs or on matters of sentencing practice as distinct from providing an authoritative construction of a statute. In Graham [1999] 2 Cr.App.R.(S.) 312, a sentence of twelve years imprisonment imposed in 1994 for a drugs offence was referred to the court in 1999 by the Criminal Cases Review Commission. Reference was made to decisions of the court after the sentence was passed, applying, it was submitted, a tariff. Giving the judgment of the court, Rose LJ, Vice-President stated, at page 315:
"In our judgment, this appeal is doomed to fail for a number of reasons. We hope that what we say may be of assistance to the Commission when considering other complaints about sentence. First, the Commission was established, primarily, so that cases where there had been a possible miscarriage of justice could be referred to this court. A defendant sentenced lawfully, in accordance with the prevailing tariff, and when all factors relevant to sentence were known to the sentencing judge, can, in our view, hardly be described as the victim of such a miscarriage. Secondly, an alteration in the statutory maxima or minima penalty between sentence and reference cannot, in our view, give rise to legitimate grievance. For example, Parliament has, in recent times, reduced from 10 to seven years the maximum sentence for theft. Someone sentenced to eight years, when the maximum was 10, cannot now be herd to complain. Similarly, the Crime (Sentences) Act 1997, has introduced three mandatory sentences for certain categories of offence. In the future, if these provisions were to be repealed, it would not, in our judgment, be appropriate for the Commission then to refer to this court a properly imposed mandatory sentence, solely because it had become above the current tariff. Thirdly, independently of changes in statutory maxima and minima, the level of sentencing, both generally and in relation to particular offences, can and does rise and fall over a period of years, in response to changes in the climate of public opinion, particularly as expressed in Parliament. During the present decade the philosophy of limiting the use of imprisonment, which was behind several of the provisions of the Criminal Justice Act 1991, was replaced five years later by the assertion that "prison works"
. Equally, the rarity or frequency of an offence at a particular time, or the gravity of some feature of it, may temporarily affect sentencing levels. Fourthly, there are other factors which can, from time to time, affect sentencing levels, for example, prison overcrowding. Last year, in Ollerenshaw [1999] 1 Cr.App.R.(S.) 65, and Howells [1999] 1 Cr.Ap.R.(S.) 335, this court urged sentencers, when imposing comparatively short periods of imprisonment, to consider even shorter terms. But this affords no basis for complaint now by those who unsuccessfully appealed against sentence years ago. Fifthly because of these various factors, sentence decisions of this court, whether by way of guidelines or otherwise, are not intended to and do not have retrospective effect. They reflect no more than the current tariff which, as we have sought to explain, can and does change over the years." The court went on to hold that the sentence imposed was not an excessive sentence.[23]Reliance is also placed by Mr. Raudnitz on the case of Royal [2003] EWCA Crim.1152, Laws LJ presiding. The defendant had been sentenced to life imprisonment for offences of rape. The judge fixed 10 years as the relevant period within the meaning of Section 34 of the Criminal Justice Act 1991, stating that the notional determinant sentence in the case was one of 16 years. When the sentence was imposed, the practice was to impose a period of between one half and two thirds of the notional determinate sentence (O’Connor [1994] 15 Cr.App. R.(S.) 473 at 476).[24]The practice changed and in Szezerba [2002] EWCA Crim.440, Rose LJ, Vice-President, stated, at paragraph 35: "that, as we have said, unless there are exceptional circumstances, half the notional determinant should be taken (less, of course, time spent in custody) as the period specified to be served. If a judge specifies a higher proportion than one half, he should always state his reasons for so doing ".[25]The applicant for leave to appeal in Royal required an extension of time of about 5½ years. The submission was that subsequent decisions of the court had laid down a principle and not merely altered a practice or a tariff.[26]Having referred to cases relied on, Laws LJ stated:
"This learning, however, does not constitute an alteration of the law. It constitutes a refinement of the court’s approach to the practice of sentencing in what is now a section 28 (what used to be a section 34) case. These decisions cannot begin to divorce the case from the approach outlined by the Vice-President in Graham."
The court went onto state that, on the facts of the case, the relevant period could not be said to be excessive in the light "of the horrific nature of these crimes".[27]We have come to the conclusion that the present case does not fall into the same category as Kelly, where Offen was applied:(a) in Offen, the court was construing statutory language, namely the meaning of "exceptional circumstances" in section 2 of the 1997 Act.(b) in doing so, the court in Offen expressly considered the rationale of the section, the policy and intention of Parliament and the impact of the Human Rights Act. (paragraph 78).(c) the construction decided upon affected the powers of the court. It meant that on certain findings of fact the court had no power to take a particular course (Kelly (No.2), paragraphs 22 and 42). The statute must be applied in a particular way (Offen, paragraph 96).[28]The court in Nelson did not decide what the expressions "extended sentence" and "extension period" in the statute meant, nor was it necessary to do so. There was no alteration to the law or imposition of a restriction on the powers of the court. Advice was given, by way of sentencing guidelines, as to the approach the court should adopt, and the factors to be taken into account, when determining the length of the extension period. In our judgment this guidance comes within the realm of current sentencing policy and practice, as contemplated in Graham, and in Royal, where the guideline was more specific than in the present case..It does not define or declare the law in a way which would require it to be applied retrospectively in this court. It may be added that the guidelines do not deal specifically with the defendant who continues adamantly to deny the offences, as does the present applicant. That is not of course to criticise the judgment in Nelson but it illustrates that the court had in mind sentencing practice in the type of case being considered and was not establishing a legal norm or principle.[29]For the reasons given, the application for an extension of time of over 3 years is refused. The merits or otherwise of the extension period of 5 years imposed in this case does not therefore arise. We do accept that, in the current sentencing climate, a period of as long as 5 years would be unlikely to be imposed in the circumstances of this case. That it is manifestly excessive is, however, far from clear, in our judgment. The judge was rightly concerned that there was a high risk of the applicant re-offending in a similar manner, a factor considered in Nelson to be relevant in this context. What the probation officer called the "level of denial" was also a significant factor in our view though not one expressly considered in Nelson.[30]The application for an extension of time is refused.