NH, R v [2004] EWCA Crim 2674

Case No 04/4937/A0[2004] EWCA Crim 2674
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Monday 25 October 2004
Strand
London, WC2
B E F O R E:
THE VICE PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION
MR JUSTICE HENRIQUES
MRS JUSTICE DOBBS
Between
R E G I N ACrown-v-
Between
N.H.
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MISS AMELIA FOSUHENE appeared for APPELLANTMISS ANNABEL PILLING appeared for CROWN
J U D G M E N T
[1]MR JUSTICE HENRIQUES: The appellant is now aged 15. On 18th September 2003, when he was 14 years of age, he committed an act of indecent assault upon an 18-year-old female. On 5th July 2004, on the date upon which his case was listed for trial, he pleaded guilty at the Inner London Crown Court and was sentenced by Judge Grobel to a twelve-month detention and training order.[2]The appellant played no part and was not involved in earlier criminality. The victim was an 18-year-old female with learning difficulties who was out with friends on Streatham Green. Her group met a group of boys, one of whom snatched her bag containing a mobile telephone. They passed the phone between them, refusing to return it until she performed oral sex upon each member of the group. The girl indicated her unwillingness to do so, saying she would not perform it even on her own boyfriend.[3]Thereafter, four males required the complainant to put their penises into her mouth. They moved her head backwards and forwards until each ejaculated. The girl's breasts were touched, and one of the males (not the appellant) undid her trousers and touched her vagina. Afterwards the complainant was allowed to leave, but her telephone was not returned.[4]The complainant reported the theft to the police. Two of the four youths were arrested. Thereafter the complainant told a female officer that she had been forced to perform oral sex.[5]The appellant came to the police station to make enquiries as to what was happening to one of those already arrested. He was arrested and interviewed. He said that he asked the complainant to perform oral sex and she consented, saying "Okay".[6]The agreed basis of plea upon which the appellant was sentenced was thus: 1. that he was not involved in the taking of the complainant to the mews; 2. that he was not present when the complainant was initially forced to perform oral sex on the first boy; 3. that he was not present when the complainant's mobile phone and bag was stolen, nor was he aware of this happening; 4. that he was informed by a friend that there was a girl in the mews performing oral sex on boys and that she would perform oral sex upon him; 5. that he approached the complainant and she performed oral sex on him. He did not threaten her, nor was he aware of any threats having been made to the complainant by his friends prior to her performing oral sex on him; 6. that he accepts that he was reckless as to whether the complainant consented or not; 7. that he was one of the last boys to have oral sex performed on him by the complainant; and 8. that he had not met the complainant before 18th September 2003 and did not know she had learning difficulties.[7]The essence of this appeal as advanced by Miss Fosuhene concentrates on the fact that at the date of the commission of the offence the appellant was aged 14 years.[8]Section 100(2) of the Powers of Criminal Courts (Sentencing) Act 2000 states:
"A court shall not make a detention and training order--- (a) in the case of an offender under the age of 15 at the time of the conviction, unless it is of the opinion that he is a persistent offender."
There is no question in the present case of the appellant being a persistent offender.[9]At the date of conviction the appellant was 15 years of age. Article 7 of the European Convention on Human Rights states that no heavier penalty shall be imposed than the one that was applicable at the time the criminal offence was committed.[10]This court has sought to reconcile Article 7 with section 100(2) in the case of Ghafoor [2002] EWCA Crim 1857. It was decided that, where the defendant crosses a relevant age threshold between the date of the offence and the date of conviction, the starting point should be the sentence that the defendant would be likely to have received if he had been sentenced at the date of the offence. For this purpose the starting point is not the maximum sentence that could have been imposed but the sentence that the defendant would have been likely to receive.[11]Whilst other factors may have to be considered, there would have to be good reason for departing from the starting point. There may be a long interval between the date of offence and conviction, by which time the circumstances may have changed significantly. The offender may have been revealed to be a dangerous criminal, or the tariff may have been increased. Such factors may be taken into account and may, in an appropriate case, lead to the imposition of a sentence somewhat higher than that which would have been passed at the date of the offence. It will rarely be necessary for a court even to consider passing a sentence that is more severe than the maximum that it would have had jurisdiction to pass at the date of the commission of the offence.[12]In the present case, in sentencing,

Judge Grobel stated:

"The seriousness of the offence is the good reason why I depart from the starting point as recommended by the court in Ghafoor. There is nothing that I can find in your history, your personal circumstances as set out in the pre-sentence report ..., that causes me to take a different course. ... you have a couple of cautions. Taking these matters into account, the sentence for you is one of twelve months' detention and training order."
[13]The question, accordingly, for our determination is whether the seriousness of the offence may itself be a good reason for departing from the starting point as identified in Ghafoor.[14]In accord with Ghafoor, we must begin by considering what sentence the appellant would have been likely to receive had he been sentenced at the date of the offence aged 14. We conclude, having regard to his age and to the fact that he had not previously been convicted, and having read the pre-sentence report, that a supervision order with 90 days' specified activities would certainly have been the sentence and is thus the starting point as identified in Ghafoor. Whilst there was a ten-month delay between offence and conviction, there is no identifiable change in circumstance; the appellant committed no offence on bail; the tariff has not increased.[15]There is nothing in Dyson LJ's judgment in Ghafoor to indicate that seriousness of the offence provides any basis for departing from the starting point. Indeed, we agree with Mr Blatch, counsel who drafted the grounds of appeal and advice on merits of appeal, when he submitted that the statutory regime and the implication of that regime is against a finding that the seriousness of the offence is itself a good reason for departing from the starting point.[16]In R v LM [2003] 2 Cr App R (S) 26, it was held by this court to be wrong to impose a detention and training order on a boy aged 15 for an offence committed at the age of 14 for which he could not have qualified for a custodial sentence if convicted at that age as he was not a persistent offender and the offence was not one to which section 91 applied.[17]That reasoning is consistent with that in Jones [2003] Crim LR 639, relating to an older age group, where it was held that a sentence of detention in a young offender institution on an offender who had been 17 at the time of the offence and who would have been sentenced to a detention and training order had he been dealt with before attaining the age of 18 should be restricted to one of the terms specified in section 101 of the 2000 Act.[18]We note in passing that the decision in R v AH 167 JP 30 appears to have been decided per incuriam, no reference having been made to the case of Ghafoor.[19]Whilst we allow this appeal, having applied the test in Ghafoor, and following Ghafoor, we do not allow this appeal on the basis of retroactivity. We do not find that Article 7 has been engaged. The law has not changed between offence and conviction. We find no compelling basis to depart from the Ghafoor starting point. The seriousness of the offence can never justify such a departure.[20]We would only add that this situation will not arise on these facts henceforth. This appellant's conduct will be an offence pursuant to section 1(1) of the Sexual Offences Act 2003 and thus the appellant would fall to be detained pursuant to section 91 of the 2000 Powers of Criminal Courts (Sentencing) Act.[21]Accordingly, we quash the sentence of twelve months' detention and training order and substitute a term of twelve months' supervision.[22]THE VICE PRESIDENT: (To the appellant.) I must explain this to you. You are going to be released today, but you must not go before a gentleman comes to see you in the cells; all right?[23]THE APPELLANT: (The appellant nodded.)[24]THE VICE PRESIDENT: As my Lord has said, the sentence is that there will be a twelve-month supervision order and there will be 90 days of specified activities, that is to say you will be told what to do by the youth offending officer in relation to several different kinds of things to be done; you understand?[25]THE APPELLANT: Yes.[26]THE VICE PRESIDENT: You will take part twice a week in attending supervision sessions. You will be told where and when to go.[27]You will take part in reparation work within the community at weekends. You will be told where and when to do that.[28]You will attend an education programme, and you will be told where and when to do that.[29]Further, you will be required to do certain activities, such as football, and you will be told where and when to do that.[30]And, of particular significance for you to note, you will be monitored electronically for three months so that you comply with a curfew between 7 pm to 7 am. Do you understand?[31]THE APPELLANT: Yes.[32]THE VICE PRESIDENT: And the youth offending officer will deal with that.[33]So you will be free to go later in the day, but wait until the gentleman comes to see you.