Corran & Ors, R v [2005] EWCA Crim 192

Case No 200404939/A2-200406622/A6-200406386/A4-200406378/A3[2005] EWCA Crim 192
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 2nd February 2005
Strand
London, WC2
GUIDELINE COURT
B E F O R E:
THE VICE PRESIDENT
(LORD JUSTICE ROSE)
LADY JUSTICE SMITH
MR JUSTICE OWEN
R E G I N A
-v-
BEN CORRAN
JASON CUTLER
KEVIN PHILLIP HEARD
ANTHONY MICHAEL WILLIAMS
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR N MASON appeared on behalf of the APPELLANT CORRAN
MISS S JONES appeared on behalf of the APPLICANT CUTLER
MR G JOHNSON appeared on behalf of the APPLICANT HEARD
MR T CROWTHER appeared on behalf of the APPLICANT WILLIAMS
J U D G M E N T
Between
Corran & OrsDefendantRCrown
[1]THE VICE PRESIDENT: We have heard together four unrelated cases one appeal with leave of the Single Judge and three applications for leave to appeal referred to the Full Court by the Registrar. Each, at least in part, involves consideration of a sentence passed in relation to one or more of the new offences created by the Sexual Offences Act 2003, which came into force on 1st May 2004.[2]These cases give this Court the opportunity to give some further, preliminary, non-prescriptive guidance to sentencers in the Crown Court confronted by the problems to which the Act gives rise.[3]Before turning to the particular cases, we make some general observations. Historically the offence of rape has consisted of intentional penetration of a woman's vagina by a man's penis, without her consent, knowing that she did not consent or reckless as to consent. The 2003 Act has greatly expanded the circumstances in which sexual penetration can give rise to an offence punishable by life imprisonment. First, by section 1 the definition of rape is extended to include intentional penile penetration of the anus or mouth, so the victim may be male. Secondly, by section 2, assault by penetration extends to intentional penetration of the vagina or anus by a part of the body or anything else, so the victim may be male or the offender female. Thirdly, in relation to children under 13, by section 5, intentional penile penetration of the vagina, anus or mouth is rape and, by section 6, intentional sexual penetration of the vagina or anus is assault by penetration regardless, in each case, of consent.[4]It is apparent that rape can now be committed in a much wider variety of circumstances than before the Act. The age of the offender is immaterial. In all cases the maximum punishment available is life imprisonment. But the level of punishment appropriate will depend on the circumstances of the particular case.[5]This Court has given guidance on sentencing in relation to rape as defined in section 1 and assault by penetration as defined in section 2, in Attorney-General's Reference No 104 of 2004 (R v Garvey) [2004] EWCA Crim 2672, where it was concluded, in paragraph 28, that the aggravating and mitigating features identified in R v Millberry [2003] 2 Cr App R(S) 142, continue to be of assistance, though the starting point for non penile penetration should generally be lower than for penile penetration. The Court also indicated that, following Millberry, for young offenders the sentence for rape and assault by penetration should be significantly shorter than for an adult.[6]Against that background, we turn to the offence of rape of a child under 13, contrary to section 5 of the Act. We say, at once, that no precise guidance can be given. The appropriate sentence is likely to lie within a very wide bracket, depending on all the circumstances of the particular offence. There will be very few cases in which immediate custody is not called for, even in relation to a young offender because the purpose of the legislation is to protect children under 13 from themselves, as well as from others minded to prey upon them.[7]The offence is of such seriousness that custody is likely to be called for even when the new sentencing provisions of the Criminal Justice Act 2003 come into force later this year. There will be some offences, for example where there is no question of consent, and where significant aggravating features, as identified in Millberry are present, where a long determinate sentence, or a life sentence, will be called for, in accordance with existing authority on seriousness and dangerousness, as amplified by the Sentencing guideline Council's guideline on seriousness, by reference to sections 142(1) and 143(1) of the Criminal Justice Act 2003, when those provisions come into force.[8]Although absence of consent is not an ingredient of the offence, presence of consent is, in our judgment, material in relation to sentence, particularly in relation to young defendants. The age of the defendant, of itself and when compared with the age of the victim, is also an important factor. A very short period of custody is likely to suffice for a teenager where the other party consents. In exceptional cases, of which there is one before this Court, a non-custodial sentence may be appropriate for a young defendant. If the offender is much older than the victim a substantial term of imprisonment will usually be called for.[9]Other factors include the nature of the relationship between the two and their respective characters and maturity, the number of occasions when penetration occurred, the circumstances of the penetration, including whether contraception was used, the consequences for the victim, emotionally and physically, the degree of remorse shown by the defendant and the likelihood of repetition. A reasonable belief that the victim was 16 will also be a mitigating factor, particularly where the defendant is young. A plea of guilty will, of course, be pertinent, in accordance with the guideline issued by the Sentencing Guidelines Council.[10]Pre Act authorities such as R v Bulmer 11 Cr App R(S) 586, R v Oakley 12 Cr App R(S) 215 and R v Brough [1007] 1 Cr App R(S) 55, which indicate a sentence of the order of 15 months for a defendant in his twenties, will continue to provide assistance, particularly bearing in mind that life imprisonment was the maximum sentence for the pre-Act offence of having sexual intercourse with a girl under 13.[11]Before the coming into force of the Sexual Offences Act 2003, sexual intercourse by a man with a girl under the age of 16 was punishable by 2 years' imprisonment, but a defendant under the age of 24 had a defence if, with reasonable cause, he believed the girl to be 16 or over and had not previously been charged with such an offence. Sexual activity other than intercourse with an under 16 year old of either sex is now a criminal offence and the penalty has been increased substantially.[12]Sections 9(1) and (2) makes it an offence punishable with up to 14 years' imprisonment to engage in penetrative sexual activity with a person under the age of 16, if the offender does not reasonably believe the other person is 16 or over, or under the age of 13. If the offender is under 18, the maximum sentence, by section 13, is 5 years on indictment. Section 10(2) contains similar provisions in relation to causing or inciting a child to engage in penetrative sexual activity.[13]These increases in the maximum penalty must be appropriately reflected in sentences imposed by the courts in relation to offenders of whatever age. The factors which we have identified in paragraphs 7,8 & as among those relevant to sentence, in relation to the rape of a child under 13, will also be relevant in relation to penetrative sexual activity, under section 9 and section 10 subject to the one obvious difference that, in section 9 and section 10 offences, where the other party is 13 or over, reasonable belief that he or she was 16 or over will afford to a defendant of any age a defence rather than, as in section 5 rape, merely mitigation. Sentencers should of course bear in mind that, as indicated by the penalties provided by Parliament, an offence contrary to section 5 will generally attract a heavier sentence than an offence, even where the victim is under 13, contrary to section 9 or section 10. The sentence for section 9 and section 10 offences is likely to be less where the victim is under 16 rather than under 13.[14]Section 7 provides a maximum of 14 years on indictment, for sexual assault on a child under 13. Section 8 provides the same penalty for inciting a child to engage in penetrative sexual activity. The age of the offender and consent by the victim are both immaterial to the definition of the offences in sections 7 and 8. The factors relevant to sentence will include the nature of the assault or penetrative activity, and the period of time it lasted, and all the other factors identified in paragraphs 7,8 & 9 relation to a section 5 offence, appropriately adjusted, in relation to section 7 offences, to apply to assault rather than penetration.[15]Pre-Act authorities will continue to be of assistance, subject to them being viewed through the prism of the increased sentence for sexual assault from 10 to 14 years. In relation to section 7 offences, the custody threshold will not always be passed. Generally speaking, despite the similar maximum penalties, section 7 offences will be less serious than offences contrary to sections 8, 9 or 10.[16]Sections 11 and 12, respectively, create offences for persons over 18, engaging in sexual activity in the presence of children either under 16 not reasonably believed to be 16 or over, or under 13, and for the purposes of sexual gratification derived from causing such a child to watch such activity. It is to be noted that the maximum penalty for these offences is 10 years on indictment. They will usually attract a lesser sentence than that appropriate for sexual activity with a child, in contravention of sections 5, 7, 8, 9 or 10. Factors relevant to sentence will include the age and character of the defendant; the age of the child; the nature and duration of the sexual activity engaged or, in the case of section 12, depicted in the image, the number of occasions when the activity is observed, the impact on the child, the degree of remorse shown by the defendant and the likelihood of repetition. A plea of guilty will call for the appropriate discount.[17]In the light of these observations, we turn to the cases before us which, as will appear, afford examples of some of the principles which we have sought to express.[18]Corran is an exceptional case. On 13th August 2004, at Mold Crown Court, he pleaded guilty to rape, contrary to section 5 of the Act, and was sentenced by His Honour Judge Rogers QC to 2 years' detention in a young offender institution. He was, in consequence, required to comply for 10 years with the provisions of section 2 of the Sex Offenders Act 1997. He was disqualified from working with children under section 28 of the Criminal Justice and Court Services Act 2000 indefinitely. He appeals against sentence by leave of the Single Judge.[19]The facts were these. He met the complainant, who was born in January 1992, in April 2004. She was 12, but she was in the company of girls all of whom were aged 15 or 16. The appellant, who was born in April 1984, was just 20. He stopped his car in a car park in the Boat House, near Connah's Quay. He spoke to the complainant and they exchanged telephone numbers. For the next three or four weeks they saw each other every day and, during that period, the complainant told the appellant that she was 16 years of age and, furthermore, that she was in year 11 at school which would suggest she was 16, and that she was shortly leaving school. The relationship continued.[20]In interview, later, the appellant said he would not have continued the relationship had he known her age. There is no reason to doubt that he meant that. She looked 16 to him; she smoked and she was not, as it transpired, a virgin.[21]On Friday 7th May 2004 the appellant and the complainant were alone together. She removed her clothing, and said it would be O.K. for the appellant to have sex with her. They had consensual sex. The appellant used a condom. The complainant later described the act as pleasurable. She told her mother what had happened. Her mother reported the matter to the police. On 10th May the complainant was interviewed and on 13th May the appellant was arrested. He immediately admitted having had sexual intercourse and said he would not have done so had he known her age. He felt disgusted and ashamed and felt he had been misled by the girl.[22]The learned judge, in passing sentence, pointed out that, in view of the change in the law, the appellant was now guilty of rape because the girl was under 13. He said, rightly, that the purpose of the legislation was to protect girls, but there were other factor, very much in the appellant's favour. The judge specifically referred to the guilty plea, at the very earliest opportunity, the good work record of the appellant, and the fact that he came from a respectable family. He then went on to pass the sentence to which, at the outset, we referred.[23]There was before the judge, as there is before us, a pre-sentence report indicating that the appellant was aware of the seriousness of the offence and felt misled and betrayed by the victim. But he accepted that, at her age, she had not been able to consent and there was a need for her to be protected by the law. The pre-sentence report recommended a community rehabilitation order. There were five references which spoke of the appellant as being reliable and hard working, responsible and trustworthy.[24]The submission which is made in the grounds of appeal, and supported by oral argument on behalf of the appellant by Mr Mason, is that the imposition of a custodial sentence was wrong in principle. Mr Mason stressed each of the mitigating circumstances which we have already summarised, both in relation to the apparent and asserted age of the girl, the use of a condom, the remorse, the plea of guilty at the first opportunity and the personal mitigation in relation to good character and work in relation to the appellant.[25]As it seems to us, there is, in this case, apart from the actual difference in age between the appellant and the victim, every feature of mitigation which could be imagined. In those circumstances, as we said at outset, the learned judge might very well have thought it appropriate to take the wholly exceptional course of imposing a non-custodial penalty, whether by way of a community punishment order, or otherwise.[26]The present situation is that the appellant has spent the best part of five-and-a-half months in custody. In those circumstances, what we propose to do, in allowing this appeal, is to quash the sentence of 2 years' detention imposed by the learned judge, to quash also the disqualification from working with children, under section 28 of the Criminal Justice and Court Services Act 2000, and to substitute a conditional discharge for a period of 6 months. That period, as it runs rom the date of sentencing in the Crown Court, has now all but expired. That means that the liability of the appellant to report, in accordance with the provisions of the Sex Offenders Act in relation to sex offenders has now effectively expired. In these respects his appeal is allowed.[27]We turn to the case of Jason Cutler. On 26th October 2004, at Southampton Crown Court, he pleaded guilty before His Honour Judge Burford QC to a number of offences in two indictments. In the first indictment, count 1 was sexual intercourse with a girl under 16, and count 2 was a similar offence, contrary to section 6(1) of the Sexual Offences Act 1956. In relation to those offences, he was sentenced to 12 months' imprisonment on each concurrently. Counts 3 and 4 were both offences of engaging in penetrative sexual activity with a child, contrary to section 9(1) and (2) of the Sexual Offences Act 2003. In relation to those offences, he was sentenced to a term of 4 years' imprisonment, on each count concurrently, those sentences to run concurrently to the sentences imposed on counts 1 and 2. He had also pleaded guilty, on rearraignment, to count 1 of a second indictment, which charged penetrative sexual activity with a child contrary to section 9 of the 2003 Act. In relation to that he was sentenced to 2 years' imprisonment concurrently with the other sentences.[28]So far as the 4 year sentence on counts 3 and 4 is concerned, that was an extended sentence pursuant to section 85 of the Powers of Criminal Courts (Sentencing) Act 2000, the custodial term of which was 2 years' imprisonment and the extended licence period 2 years'. The total sentence was therefore an extended sentece of 4 years. His application for leave to appeal against sentence has been referred to the Full Court by the Registrar.[29]The facts were these. The offences on the two indictments were specimen charges. The complainant, a girl to whom we shall refer as R, was born in August 1990 and was, in consequence, 13 years old at the time of all the offences. She had been living with her grandparents but, in February 2004, she moved out and stayed with a friend who was the applicant's stepdaughter. After a few months she moved back to live with her mother. A little later, the complainant's mother found a number of sexually explicit text messages sent by the applicant on the complainant's mobile telephone. These messages made it clear that the two had been involved in a sexual relationship. The mother, in consequence, went to the police.[30]The complainant admitted having had sexual intercourse with the applicant on one occasion, but refused to make a complaint as she said she loved him. The applicant was arrested and interviewed and he admitted having had oral sex and full sexual intercourse with her, but, he said, that was on one occasion, between mid-June and early July 2004. He said he was fully aware of her age and knew what had occurred had been unlawful. That incident was reflected in count 1 of the second indictment.[31]Subsequently, the complainant decided that she would make a complaint. So she was, in consequence, interviewed on video. She said that she had first had sexual intercourse with the applicant in mid-February 2004, and that formed the basis of count 1 of the first indictment. She said that, between then and July 2004, she had had sexual intercourse with the applicant between 10 and 15 times, possibly more. Counts 3 and 4, which relate, of course, to the sexual activity after 1st May, are specimen counts of that conduct.[32]The complainant said that, a few weeks before she moved back to live with her mother, the applicant had tried to have sex with her while she was getting changed. He had come into the bedroom and she had only been wearing a towel. He began to kiss and touch her and she had pushed him away, saying that she hated him. When he was interviewed a second time about these allegations, the applicant made no comment.[33]In passing sentence, the learned judge said that credit would be given for the guilty pleas and full admissions. But the judge pointed out that the applicant, compared with this 13 year old friend of his stepdaughter, was 35 years of age. By his own admission he had had fully penetrative sexual intercourse with her on between 10 and 15 occasions. Her history meant that she was a vulnerable victim. The mitigation to which the judge referred included the absence of any previous convictions, the fact that no force had been used and the fact that intercourse had been consensual. The judge also took into account that, shortly before the commission of the offences, the applicant's partner of 14 years had left him and his house was being repossessed.[34]The judge referred to Parliament having increased the maximum sentence for offences of this nature to 14 years' imprisonment. It was accepted that all five counts to which the applicant had pleaded guilty were of comparable gravity in themselves and involved the same sort of act on each occasion. But the judge said the court was obliged to take into account the increase by Parliament in the maximum sentence.[35]The judge concluded that, in order to provide protection and to preclude the applicant from committing further offences, an extended licence period was necessary and therefore, as we have said, he imposed, in relation to counts 3 and 4 the 4 year extended sentence, 2 years of which was custodial.[36]The pre-sentence report before the judge indicated that the applicant may not have realised the seriousness of his offending. Bt he posed, in the judgment of the author of that report, a high risk of re-offending and a high risk of causing harm, particularly emotional harm, to others, specifically young teenage girls. He had, in many respects, been acting in loco parentis towards the victim, so the breach of trust provided an exacerbating feature.[37]There is an addendum to that pre-sentence report, which dealt with matters after it had become apparent that the applicant had initially lied about having only committed one offence. That report also suggested that, despite his physical age of 35, he was mentally, perhaps, quite close to the complainant. The risk assessment however remained the same.[38]The grounds of appeal, supported in oral submissions before this Court by Miss Jones, contend that the sentences for the new offences charged under section 9 were excessive and/or wrong in law, having regard to the lesser sentences imposed for identical offending charged under the 1956 Act. She stressed that there had been no change in the applicant's behaviour throughout the course of his relationship with the complainant.[39]That is so but, as we have said, at an earlier stage in this judgment, the courts have to give effect to Parliament significantly increased the maximum sentence available in relation to particular forms of conduct.[40]Despite Miss Jones' able submissions, we are unpersuaded that there is in the sentence passed by the learned judge, anything to which exception can properly be taken. Accordingly leave to appeal against that sentence is refused.[41]We come to Heard. He is was born in September 1961. On 2nd June 2004, having pleaded guilty before the magistrates, he was committed to the Crown Court for sentence under the powers in section 3 of the Powers of Criminal Court (Sentencing) Act 2000, in relation to one offence of possessing indecent photographs of children and 15 offences of making indecent photographs of children.[42]At the Nottingham Crown Court, on 23rd August 2004, before His Honour Judge Teare, the applicant pleaded guilty to all eight counts in the indictment. Counts 1 and 3 were offences of indecent assault on a female, contrary to section 14 of the Sexual Offences Act 1956. Counts 2 and 4 were two offences of indecency with a child, contrary to section 1 of the Indecency with Children Act 1960. Counts 5 and 7 were two offences of engaging in sexual activity with a child, contrary to section 9 of the 2003 Act, and counts 6 and 8 were two offences of causing or inciting a child to engage in sexual activity, contrary to section 10 of the 2003 Act. On 18th October he was sentenced by Judge Teare to 12 months' imprisonment concurrently on each of the offences for which he had been committed for sentence by the magistrates, to 3 years' imprisonment concurrently on counts 1 and 3 of indecent assault, to 1 year imprisonment concurrently on counts 2 and 4, of indecency with a child, and to 5 years' imprisonment concurrently on the offences contrary to sections 9 and 10 of the 2003 Act, in counts 5 to 8 inclusive.[43]The 5 year sentence imposed on counts 5 to 8 were ordered to run consecutively to the 12 month sentences imposed on the committal for sentence, making a total custodial term of 6 years' imprisonment. The judge, using his powers under section 85 of the Powers of Criminal Courts (Sentencing) Act 2000, ordered that the total sentence should be an extended one of 8 years, the custodial term of which was 6 years, with an extended period of licence of 2 years. The judge also made a Sexual Offences Prevention Order under sections 104 and 106 of the 2003 Act preventing the applicant from contacting the complainant indefinitely. Orders were made for forfeiture and destruction of the indecent images and the computers involved in the offences to which he had pleaded guilty before the justices. A three year community rehabilitation order, imposed in April 2004 at Nottingham Crown Court, for an offence of indecent assault on a female was revoked and no order was made on the breach. The applicant was required to comply indefinitely with the provisions of Part II of the Sexual Offences Act 2003, in relation to reporting.[44]The Registrar has referred his application for leave to appeal against sentence to this Court. We grant leave.[45]The facts in relation to the offences for which he was committed for sentence are that on 27th January 2004 the appellant's home address was searched and his computer seized. It contained more than 100 indecent images of children, which had been accessed between the end of September 2003 and the beginning of January 2004. Specimen charges were laid and the appellant pleaded guilty to one offence of possessing in excess of 100 indecent images of children and to 15 offences of making indecent images of children.[46]The images were at various levels. There were three or four at level 4, six or seven at level 3, two at level 2 and two at level 1. The applicant made full admissions in interview. This Court gave guidance as to the appropriate level of sentence in such cases in R v Oliver [2003] 2 Cr App R(S) 64 and R v Wilde [2002] 1 Cr App R(S) 156. No criticism is, or could, be made of the 12 months sentences imposed in relation to these offences in themselves. The burden of the appeal relates to the sentencing of the appellant to 5 years in relation to the section 9 and 10 offences and the order that that sentence should run consecutively to the 12 month sentence for the other offences to which he pleaded guilty before the magistrates.[47]So far as the facts giving rise to the offences on the indictment are concerned, the appellant had previously been remanded in custody in relation to an offence of indecent assault and unlawful sexual intercourse. In April 2004 he was released from custody and given a 3 year community rehabilitation order for those offences. Within a few days of his release, he re-established contact with the girl who was the complainant in relation to those offences. She was 14 at the time. The appellant was to claim, in interview, that contact was re-established at the initiation of the girl's parents. Her parents denied that that was the case.[48]The counts in the indictment all related to incidents of mutual masturbation between the appellant and the girl. Count 1 involved the appellant digitally penetrating the complainant's vagina. Count 2 involved her masturbating him. Counts 3 and 4 were a pair of offences as were counts 5 and 6 and counts 7 and 8. The offences took place from April 2004 onwards.[49]Counts 5, 6, 7 and 8 took place after 1st May 2004, and were in consequence charged under that Act. In interview, the complainant said that the offences took place in a car parked in a car park and in other public areas, often at about 8 o'clock in the morning, when the appellant was driving the complainant to school. He would drive to the top floor of a nearby car park, where there were no other cars about. The girl was to say "he changes once I make him happy and then he treats me like crap". She said, more than once, that she believed the appellant loved her and she did not want to disappoint him. He would ask for sexual favours and she might initially say "no" but would eventually agree for fear of disappointing him. On one occasion, having refused to perform oral sex on him, she asked:
"Have I disappointed you?"
[50]The appellant was arrested on the 23rd May 2004 and admitted the offences in interview.[51]In passing sentence the learned judge referred to the significant fact that the appellant had been sentenced earlier that year to the 3 year community rehabilitation order to which we have referred, in relation to unlawful sexual intercourse with this girl. At the time that the judge passed sentence in that case, he had said that the appellant was not a paedophile, but that it was his attitude which needed adjusting. Judge Teare said that had the earlier judge known the true facts, he would have said that the appellant is a paedophile.[52]The images in relation to which the appellant had pleaded guilty before the magistrates contained, as we have said, level 4 images, which is a high degree of seriousness. The judge pointed out that, within 10 days of being released from prison, while subject to the community rehabilitation order, The appellant had gone back to the girl and contacted her. The judge did not accept that that was at the behest of the girl's parents. The judge said that the appellant had sought her out and indulged in a sexual relationship for his own gratification. He would not go any further than she would allow. He stopped when she told him. Bt he had pressured her into going further.[53]The judge gave credit for the plea of guilty at the earliest available opportunity. He took into account that the indecent images on the computer were relatively small in number. He also took into account that the appellant had spent a month in custody in relation to the earlier offences, and had in relation to the present offences, spent 5 months in custody.[54]The judge stressed that it was irrelevant that the girl had consented to what they did together. The appellant was 40 or more, and had the responsibility for saying "no". The girl was 14 and Parliament took the matter so seriously that it had increased the maximum available sentence for such behaviour.[55]The pre-sentence report confirmed the need for children to be protected from the appellant.[56]A pre-sentence report on the appellant said that he did not feel shock or repulsion at the indecent images he had been viewing. He regarded his relationship with the girl as consensual. He was aware that his behaviour was illegal but he could not understand why, claiming "children are ready for sex when they feel they are". He felt that he and the victim communicated on an equal level and he was unable to accept that he had been, as an adult, guilty of an abuse of power. It does not seem that he ruled out the possibility of future contact with the victim. His behaviour showed that he was sexually attracted to children and strongly motivated to offend against them. The risk of harm he represented to children was significant.[57]There was a report from a psychologist, referring to the stammer from which the appellant has suffered since his youth, thereby limiting his opportunities to develop skills in sexual relationships. The psychologist refers to the death of the appellant's father, the breakdown of his marriage and the consequent excessive amount of alcohol which he consumed and was consuming prior to the commission of these offences. He was also angry at being rejected by a woman he had met over the Internet. He had always, according to the psychologist, been passive in his previous sexual relationships but gained a sense of power from his relationship with this complainant. He had taken advantage of the complainant's emotional insecurity and need for physical affection and the lack of support from her parents. He attempted to blame the complainant. He minimised his responsibility and he minimised the harm caused to the complainant. The risk of him reoffending was high. Imprisonment would allow him to complete a sex offender treatment programme. He also needed to address his misuse of alcohol.[58]On behalf of the appellant Mr Johnson submits that the judge's starting point must have been too high because the imposition of an extended sentence of 8 years suggested that, following a trial, the judge would have had in mind a sentence of 12 years. That, submits Mr Johnson, would have been plainly excessive, having regard, in particular, to the maximum available sentence of 14 years. The submission is further made that the judge did not pay such attention as she should have done to the fact that the girl consented.[59]As to first of those submission, we are sympathetic. The second of those submissions, we reject. It does seem to us that the starting point of the learned judge, despite the gravity of the appellant's conduct, was too high.[60]In those circumstances, we propose to allow this appeal in the following way: to quash the sentence of 5 years' imprisonment imposed concurrently on counts 5, 6, 7 and 8, to substitute for that 5 year custodial term a sentence of 4 years. with an extended licence period of 2 years, that is to say the total sentence on counts 5, 6, 7 and 8 will be an extended term of 6 years, the custodial term of which will be 4 years. The sentences imposed by the judge on counts 1 to 4 will as he ordered, run concurrently. The 12 month term imposed in relation to the offences before the magistrates will be ordered to run concurrently to that sentence rather than consecutively. The total sentence is therefore 6 years with a custodial term of 4 To that extent, this appeal is allowed.[61]We turn, finally, to the case of Williams. He is 52 years of age. On 6th September 2004, at Cardiff Crown Court, before the Recorder of Cardiff, his honour judge Griffith-Williams QC, he pleaded guilty to nine offences, contrary to the Sexual Offences Act 2003 and to two offences of abducting a child. The offences were as follows: in counts 16, 22 and 28, sexual assault on a child under 13, contrary to section 7(1) of the 2003 Act; counts 17 and 23, sexual activity with a child, contrary to section 9 of the 2003 Act; counts 18, 24 and 30, engaging in sexual activity in the presence of a child, contrary to section 11 of the 2003 Act; counts 90 and 25, abducting a child, contrary to section 2(1)(a) of the Child Abduction Act 1984, and count 27, assault on a child under 13 by penetration, contrary to section 6 of the 2003 Act. He was sentenced on 25th October to 6 years' imprisonment concurrently on count 16, 22 and 28; 6 years' imprisonment concurrently on counts 17 and 23; 3 years concurrently on counts 18, 24 and 30; 3 years concurrently on counts 19 and 25 and on count 27, he was sentenced to life imprisonment, with a notional determinate sentence of 9 years, and a specified minimum term of 4 years and 3 months. The total sentence was therefore life imprisonment, with a specified term to be served of 4 years and 3 months. An order was made under section 28 of the Criminal Justice (Court Services) Act 2000, disqualifying the applicant, for life, from working with children. He was also required to comply with notification provisions in relation to the sex offdners register indefinitely. There were other counts of abducting a child, rape, assault of a child under 13, sexual assault of a child under 13, sexual activity with a child and engaging in sexual activity in the presence of a child which were, following pleas of not guilty, ordered to lie on the file on the usual terms. The Registrar has referred his application for leave to appeal against sentence directly to the Full Court and we grant leave to appeal in relation to the notional determinate sentence of 9 years passed in relation to count 27.[62]The victim was a boy of 11. On 12th July 2004, he was introduced to the appellant by an 11 year old friend of his. The appellant gave the boy beer, cigarettes and money on a number of occasions. After school, between about 3.30 and 4 o'clock in the afternoon, on various dates identified in the indictment, the appellant pulled the boy into his flat and kept him there until about 7 or 8 o'clock in the evening. During that period of 3 hours or so, he sexually abused him.[63]In relation to counts 16, 17 and 18, the events occurred on 14th July 2004. The appellant took the boy into his flat and masturbated him. That gave rise to count16. The boy's trousers and boxer shorts were pulled down and the appellant performed oral sex upon him, claiming that he wanted the boy to get a thrill. That formed the basis of count17. Count 18 arose from the boy witnessing the appellant masturbating to ejaculation.[64]As to counts 19, 22, 23 and 24, on 15th July the appellant pulled the boy into his flat. The boy said he did not want to go there. He was scared. He had to be home at a certain time.The appellant "just would not let him go home". That formed the basis of abduction in count 19. Count 22 related to the appellant's sexual duction on the complainant at this time, count 23, to the appellant performing a further act of oral sex on the boy, and count 24 related to the appellant masturbating in the boy's presence.[65]Counts 25, 27, 28 and 30 were representative of the appellant's offending on 16th July. At about 7.00 in the morning, the boy was in a park near the appellant's flat. The appellant seized him from behind and pulled him into the flat, locking the door. He started doing things to the boy which he said he did not like. The appellant took the boy to his place of work in Cardiff. The boy displayed reluctance to go but was compelled to do so and, at the appellant's place of work, he was made to play on the computer and told he was not going home until the appellant went home. The boy was there for about 3 hours and that formed the basis of the abduction count, count 25.[66]Count 27 related to an incident in the appellant's flat when he applied cream to his little finger and inserted it into the complainant's anus. About 10.00 am on 16th July the appellant had arrived at work with the boy. He felt the boy's private parts when he was near the computer. Those incidents of sexual touching at the appellant's place of work gave rise to count 28. In the appellant's flat that day the appellant masturbated in front of the boy and that gave rise to count 30.[67]The appellant was seen later on 16th July. He denied doing anything wrong. The boy told the police "he forced me on to the bus" and the appellant was arrested, at that stage on suspicion of abduction. The boy described the various acts of the appellant towards him. The appellant said he did not know the boy's parents and the appellant was further arrested for acts of indecent assault and gross indecency with a child, to which he replied "fair enough." He made no further comment in interview. A medical examination of the boy found swelling and discolouration of the penis, together with scratch-like marks consistent with having been made by teeth. There was a deep bruise on the boy's anus, suggestive of direct blunt trauma.[68]The learned judge referred, in passing sentence, to the appellant's previous convictions as indicating he was a predatory paedophile who targets and grooms young boys. He has appeared before the court on 19 previous occasions for 50 offences. Those between 1962 and 1986 were largely for dishonesty, for which he was dealt with in a variety of ways, including approved school and borstal.[69]In 1975 he was sentenced to 12 months for four offences of indecent assault on a 5 year old boy. On 11th November 1986, he was sentenced to 5 years for three offences of indecent assault on a male and one offence of indecent assault on a female and two offences of buggery. The victims in those cases being aged between 7 and 10 years.[70]On 12th October 1990 he was sentenced to 5 years for indecent assault on a male, indecent assault on a female and gross indecency with a child, the victims in each case being age,d, respectively, 8, 12, and 4. On 16th February 1995, for indecent assault on a male under 14, he was sentenced to 3 years' imprisonment, and his licence was extended to the full term, under section 44 of the Criminal Justice Act 1991. His last previous appearance was in July 2000, when he was given a conditional discharge for failing to notify a change of name or address while being a registered sex offender.[71]The judge, having referred to the appellant's previous convictions, spoke of his abuse of the victim in the present case, over a three day period, as having added to the problems of the boy and to his distress.[72]Counsel had submitted to the judge that the offending was not of the highest order of abuse, apart from the anal digital penetration. But the judge referred to the damage to the boy's penis resulting from the masturbation, and the aggravating feature of the abduction of the boy on two occasions.[73]The history of offending and inability to control his offending meant that the appellant was likely to commit similar offences in the future. The judge said that a longer than commensurate sentence would not be sufficient to protect young people, even if combined with the maximum period of 10 years, in relation to an extended period of licence. The judge took the pleas of guilty into account.[74]A pre-sentence report before the judge referred to the grooming behaviour of a vulnerable child by the appellant. It spoke of him presenting a high risk of reoffending and a high risk of causing harm to children and their families. He was also at a high risk of harming himself. He had apparently been sexually abused himself when a child. The report recommended that the maximum period of extended licence should be imposed by the court to manage the ongoing risk posed by the appellant.[75]A psychiatrist's report referred to the appellant's extremely unhappy childhood and difficulty in forming appropriate relationships with adults. It spoke of his difficulty in resisting the urge to act upon his fantasies, his inability to resist being severely compromised by his alcohol abuse and he had developed symptoms of Alcohol Dependency Syndrome. He did not, however, suffer from any major mental illness, but was depressed at the prospect of a further prison sentence. He presented a significant risk of re-offending for the foreseeable future.[76]In a characteristically able submissions, Mr Crowther, on behalf of the appellant, submits, first, that a life sentence was not justified in this case. He bases that submission on a contention that the offence of digital penetration of the anus ought not properly to be characterised as very serious, which is a necessary prerequisite for a life sentence, in the light of the relevant authorities (see for example R v Whittaker [1997] 1 Cr App R(S) 261 and R v Chapman [2001] Cr App R 77). Mr Crowther accepts that, so far as the necessary precondition of an offender continuing to remain a serious danger for a period which cannot be reliably estimated is concerned, that that condition is, in the case of this appellant, met.[77]We are unable to accept that the offence giving rise to count 27, in the context of repeated abduction and sexual abuse in which it occurred, cannot properly be regarded as very serious. In our judgment, it was and is, and, as it seems to us, the circumstances justifying the imposition of a life sentence were established.[78]Mr Crowther's further submission is that a 9 year notional determinate sentence, taking into account the guilty plea in relation to count 27, and therefore suggesting that, on a trial, a sentence of 12 years would have been an appropriate determinate sentence, must demonstrate too high a starting point.[79]Mr Crowther referred, in particular, to a decision of this Court in R v Wheaton [2004] EWCA Crim 2270, where in paragraph 26 of the judgment of the Court, given by Treacy J, the argument of counsel in that case was accepted. The argument was to this effect that:
"...in the fixing of a notional determinate term, the element of the sentence reflecting the need to protect the public from danger posed by the defendant should not be taken into account where a discretionary life sentence is being passed."
It is, as it seem to us, apparent that a sentencing judge must avoid overlap when a life sentence is imposed in relation to the danger posed by an offender, when alighting upon the relevant notional determinate sentence. Continuing risk to the public and danger from the offender is properly to be regarded as being taken care of by the life sentence.[80]We, accordingly, accede to Mr Crowther's second submission. This appeal will be allowed to this extent only: the notional determinate sentence of 9 years will be quashed, and there will be substituted for it a notional determinate sentence of 6 years. The specified term to be served will therefore be 3 years, less a period of 3 months which the appellant had spent in custody, so the specified period to be served is one of 2 years and 9 months' imprisonment. The life sentence, for reasons which are already explained, remains.

Cited in 4 later judgments