Wiles, R. v [2004] EWCA Crim 836

Case No 200306194/A8[2004] EWCA Crim 836
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 4th March 2004
Strand
London, WC2
B E F O R E:
THE VICE PRESIDENT
(LORD JUSTICE ROSE)
MR JUSTICE NEWMAN
MR JUSTICE MITTING
Between
R E G I N ACrown-v-
Between
ALAN RALPH WILES
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 A NICHOLSON appeared for APPELLANT
J U D G M E N T
[1]MR JUSTICE MITTING: The appellant is 36. He has previous convictions for offences of dishonesty but nothing for sex offences.[2]On 18th February 2003 he pleaded guilty on a defined basis on the morning of the trial to an indecent assault on a 14-year-old girl. On 11th April he pleaded guilty to 10 counts of possession of indecent pseudo photographs of children. He was sentence to an extended sentenced under section 85 of the Powers of Criminal Courts (Sentencing) Act 2000 for the indecent assault, with a custodial element of 6 months and an extension period of 18 months. He was sentenced to 2 months' imprisonment concurrent for possession of the indecent pseudo photographs. An order was made under section 28 of the Criminal Justice and Court Services Act 2000 disqualifying him from working with children. He was required to register on the Sex Offenders Register for 7 years. He appeals with leave of the Single Judge against the extension period of the extended sentence and the order under section 28 only.[3]The facts are these. The appellant struck up a relationship with a 14-year-old girl via the Internet and arranged to meet her. On the third meeting at his house he took her up to his bedroom, undressed her, stroked her breasts and touched her vagina. She sucked his penis until he ejaculated. As Judge Badley observed in her sentencing remarks, the offence did not involve a breach of trust, but the appellant was a much older man and did take advantage of a 14-year-old girl's willingness to take part in sexual activity wholly inappropriate for her age. The 10 pseudo photographs were all in the first category identified in R v Oliver [2003] 2 Cr App R(S) 15.[4]The author of the pre-sentence report assessed the appellant as being at medium risk of reoffending and thought that his attitude to the offence gave cause for concern. He had no insight into the effect of his conduct on the girl and believed it was acceptable. He refused to undertake a Community Sex Offenders Programme. She requested that, in the event that a custodial sentence was imposed, consideration be given to the extension of the licence period under section 85.[5]The judge stated that an extended period of licence and was necessary to prevent the commission of further offences or to secure the appellant's rehabilitation, noting, correctly, that if she were to impose a custodial term as she did of 6 months only, there would be no period of licence on his release.[6]There are two grounds of appeal. Miss Nicholson submitted, first, the order under section 28 was unlawful, and, secondly, that the extension period of 18 months was manifestly excessive, at least in the events which have occurred since the appellant's release from prison and the way in which the order has been applied by the probation service.[7]We turn to her first submission. Section 28 of the Criminal

Justice and Court Services Act 2000 provides:

"(1) This section applies where either of the conditions set out below is satisfied in the case of an individual. (2) The first condition is that--- (a) the individual is convicted of an offence against a child committed when he was aged 18 or over, and (b) a qualifying sentence is imposed by a senior court in respect of the conviction. ... (4) Subject to subsection (5), the court must order the individual to be disqualified from working with children. (5) An order shall not be made under this section if the court is satisfied, having regard to all the circumstances, that it is unlikely that the individual will commit any offence against a child."
Section 30 defines "qualifying sentence" as: "(a) a sentence of imprisonment for a term of 12 months or more,..." and various sentences of detention, a hospital order and guardianship order.[8]Section 26(1) is as follows:
"A person commits an offence against a child if he commits any offence in paragraph 1 of Schedule 4 to the 2000 Act or commits against a child any offence mentioned in paragraph 2 or if he falls within paragraph 3."
One such offence is an offence of indecent assault under section 14 of the Sexual Offences Act 1956 committed against a child - paragraph 1, Schedule 4.[9]The Crown Court is a "senior court" - section 31.[10]If, therefore, the extended sentence imposed by the judge was a qualifying sentence, she had to make the order under section 28 unless satisfied that it was unlikely that the appellant would commit any further offence against a child. Miss Nicholson submitted that the extended sentence was not a qualifying sentence because its custodial term was less than 12 months. She relied on R v Graham S [2001] 1 Cr App R(S) 335, in which this Court construed section 58 of the Crime and Disorder Act 1998, the statutory predecessor to section 85 of the Powers of Criminal Court (Sentencing) Act 2000.[11]Section 76 of the Powers of Criminal Court (Sentencing) Act 2000 defines "custodial sentence" as meaning: "(a) a sentence of imprisonment...; (b) a sentence of detention..." and various other categories of detention excluding committal for contempt or any kindred offence.[12]"Sentence of imprisonment" is not defined except by section 163(1) so as to exclude committal in default of payment of a sum of money, or want of distress, or failure to do or abstain from doing an act.[13]Section 85 provides:
"(1) This section applies where a court--- (a) proposes to impose a custodial sentence for a sexual or violent offence committed on or after 30th September 1998; and (b) considers that the period (if any) for which the offender would, apart from this section, be subject to a licence would not be adequate for the purpose of preventing the commission by him of further offences and securing his rehabilitation (2)... the court may pass on the offender an extended sentence, that is to say, a custodial sentence the term of which is equal to the aggregate of--- (a) the term of the custodial sentence that the court would have imposed if it had passed a custodial sentence otherwise than under this section ('the custodial term'); and (b) a further period ('the extension period') for which the offender is to be subject to a licence and which is of such length as the court considers necessary for the purposes mentioned in subsection (1) above."
[14]By reason of the definition of 'custodial sentence' under section 76, section 85(1) must therefore read:
"This section applies where a court proposes to impose a sentence of imprisonment or detention."
Section 85(2) must read:
"... the court may pass on the offender an extended sentence, that is to say a term of imprisonment of detention which is equal to aggregate of--- (a) the term of imprisonment or detention that the court would have imposed... (b) a further period ... for which the offender is to be subject to a licence."
Thus read, it is clear that the term of imprisonment or detention includes the extension period and is not confined to the custodial term. That reading is mandated by the definition of custodial sentence in section 76.[15]It is also consistent with the nature of a modern determinate sentence of imprisonment or detention. It is not, as the phrase might in ordinary language suggest, an order for a period of incarceration of defined length: it is an order for a period of restriction on freedom of the offender, which begins with a period of incarceration and then may include a period of release on licence and will end with a period during which the offender is liable to be ordered to serve the unexpired term if he reoffends during the currency of the term. All that an extended sentence does is adjust the length of the second (licence) period. Therefore, for the purposes of section 28, the whole length of the extended sentence is to be taken into account in determining the length of the qualifying sentence. The qualifying sentence here was 2 years. The judge had to make an order under section 28 unless satisfied that the appellant was unlikely to commit any further offences against the child. She had no grounds for so concluding, and therefore her order is both lawful and required.[16]We acknowledge that this interpretation of the statute is inconsistent with that of another division of this Court in Graham S. That case concerned the requirement for a sex offender to register under section 1 of the Sexual Offenders Act 1997. The length of the registration obligation is determined by the length of the term of imprisonment to which the offender is sentenced. The court had to construe the statutory predecessor to section 85, section 58(2) of the Crime and Disorder Act 1998, which was in identical terms. The Court observed:
"It is to be noted that although the word 'custodial' is used in relation to subparagraph (b) ..., this does not necessarily imply a period of imprisonment. It merely denotes a period during which an offender is liable to be imprisoned if he is discovered to be in breach of the licence. That must be compared with section 1 of the Sex Offenders Act 1997, which sets outs in tabular form the applicable period for which any person convicted of a sexual case is required to register and to notify the appropriate authorities. In relation to the sentence of imprisonment which is passed, the appropriate wording of the table is: 'A person who, in the respect of the offence, is or has been sentenced to imprisonment for a term of more than six months, but less than 30 months.' We note the difference between the phrase 'custodial sentence' and the phrase a 'term of imprisonment'. It seems to us that on the plain construction of the latter the term of imprisonment denotes actual and immediate imprisonment and does not include a sentence of extended licence during which he is liable to be imprisoned, but not necessarily be so."
The attention of the Court does not appear to have been drawn to section 117 of the 1998 Act which provided:
"Custodial sentence has the same meaning as in Part 1 of the Criminal Justice Act 1991."
Section 31 of the 1991 Act provided:
"'Custodial sentence' means--- (a) in relation to an offender of over the age of 21 years a sentence of imprisonment; (b) in relation to an offender under that age, a sentence of detention."
Thus, contrary to the Court's view, 'custodial sentence' did mean a term of imprisonment. The decision that it did not was made per incuriam.[17]As to Miss Nicholson's second submission, the conditions for the imposition of an extended sentence were plainly fulfilled for the reasons given by the judge and set out in the pre-sentence report. The appellant's criticism is in reality that one of the conditions imposed on his licence during the extension period - that he does not reside with anyone under 18 - has in fact imposed upon him an unreasonable restriction.[18]As determined by the probation service, the conditions of his extended licence include a condition that he does not reside with his children. This may well not have been in the judge's mind when she imposed the extended sentence because she said that she had in mind the effect of any sentence upon his family. But it does not mean that the imposition of an extended sentence of the length imposed by the judge was wrong in principle or manifestly excessive merely because it had been interpreted by the probation service as requiring the imposition of the condition to which we have referred.[19]The appellant's remedy is to make representations to the probation service for that condition to be relaxed or modified. As we have observed, the judge was plainly justified in imposing an extension period of the length that she did by reason of the factors set out in the pre-sentence report. It is not for this Court to quash a sentence properly imposed for the protection of children at large, and not in particular the appellant's own son, because of the way in which the extension period has in fact worked out. This case does, however, show that the imposition of an extension period can have significant consequences for those made the subject of such an order. We draw attention to the need of those representing the offender, to pay close heed to the length of an extension period imposed in cases of this kind.[20]However, for the reasons given, neither the section 28 order nor the extension period were wrong in principle or manifestly excessive. We observe that, as a consequence of our interpretation of the statutes, the requirement that the appellant register for 7 years as noted by the judge should in fact be a requirement that he register for 10 years. That is not an element of his sentence which we are increasing, it is a condition which flows inevitably from the nature and length of sentence imposed upon him. For those reasons, this appeal is dismissed.