Cunliffe, R. v [2006] EWCA Crim 1706

Case No 2005/06664/A6

[2006] EWCA Crim 1706

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Friday 23 June 2006

Between

R E G I N ACrown

The Strand

London

WC2A 2LL

B e f o r e:

LORD JUSTICE KEENE

MR JUSTICE CRANE

and

SIR JOHN BLOFELD

__________________

- v -

Between

PETER JAMES CUNLIFFE

__________________

Computer Aided Transcription by

Smith Bernal, 190 Fleet Street, London EC4

Telephone 020-7421 4040

(Official Shorthand Writers to the Court)

__________________

MR T ASHMOLE appeared for APPLICANT

____________________

J U D G M E N T

[1]This case has been referred to the full court by the Registrar in order that the court consider, under the provisions of section 11 of the Criminal Appeal Act 1968, whether to restructure the sentences so as to render them lawful. We grant leave to appeal. We also consider submissions made by counsel on other matters relating to sentence.

[2]The appellant, Peter James Cunliffe, was 19 at the time of his pleas of guilty. He is now 20. On 30 August 2005, at Preston Crown Court, he pleaded guilty and was sentenced as follows: for trespass with intent to commit a sexual offence, imprisonment for public protection of 30 months (less 254 days); for sexual assault on a female, imprisonment for public protection of 30 months (less 254 days); for attempted abduction of a child, an extended sentence of six years (comprising four years' imprisonment with an extended period of licence of two years); for taking a child without lawful authority, an extended sentence of six years (comprising four years' imprisonment with an extended period of licence of two years); for sexual assault on a female by penetration, 42 months' imprisonment for public protection (less 254 days); and finally, for attempted rape, seven years' and six months' imprisonment for public protection (less 254 days). In addition, he was required to comply indefinitely with the provisions of section 2 of the Sex Offenders Act 1997 (notification to the police). He was also disqualified from working with children for life. On 8 April 2005 the appellant absconded from a bail hostel. Just after 2.30pm on 10 April he walked through the front door of a house occupied by a woman who was living there with her two children. He went into the living room and said to her, "I am going to shag you". He exposed his penis and started to masturbate himself. He did not leave when he was asked to do so, but she managed to push him out of the house. She was thoroughly disturbed by the incident.

[3]On the evening of 20 April a 21 year old woman disembarked from a bus. She was approached from behind by the appellant. Without further ado, he forcibly put his hands between her buttocks, rubbed his fingers between her legs and onto her private parts over her clothing. He talked to her in an unattractive manner and circled around her. He walked away when she did her best to get rid of him.

[4]At about 4.10pm the following day the appellant approached a 12 year old girl as she was walking along a woodland path whist on her way home from school. He tried to engage her in conversation a number of times. He told her that he was waiting for a friend. He asked for her name and other details. She refused to talk to him. He then grabbed her upper arm and her clothing. Fortunately, she reacted extremely quickly, jerked her shoulder forwards and ran off towards two dog handlers who were not far away.

[5]That incident did not deter the appellant. At about 9pm on the same day a 14 year old girl was walking along a street in Burnley. She had been out with friends and had decided to walk home. She noticed the appellant on the other side of the road walking the other way. She then noticed that he turned round and started to follow her. As she quickened her pace, so did he. She decided to take a short cut through school grounds because she knew the area well. Once in the grounds the appellant ran up from behind her, grabbed hold of her, pushed her to the ground and said, "We'll get this over and done with and then I'll leave you alone and it won't take a minute". He said to her that if she did not stop moving he would kill her. He said, "Do you want me to bang your head against that wall and knock you out?" By that stage she was lying on her back and he was kneeling down. He tried to pull her skirt down. He placed his hand over her mouth. She said that she could not breathe. He said that he did not care. He pulled hard at her knickers and succeeded in removing them. She bit his hand and tried to struggle free. He then punched her severely. He caused her nose to bleed profusely. He then pushed his finger into her eye and got on top of her. She screamed for help, kicked him and tried to free herself. He turned her over, pushed her head into the grass and said, "Don't worry, I'm not going to hurt you". He pulled his pants down, inserted one or more of his fingers into her anus and moved them about. He turned her onto her back, again put his hand over her mouth, grabbed her hair and said, "Do you want me to rip your hair out and slam you against that wall? I'll kill you if I have to". She had enough wits to attempt to use her mobile phone but was unable to get through. The appellant attempted to insert his penis into her vagina, but did not do so. She pleaded with him to stop. She said to him that she was only 7 years old. This at some stage must have got through to him because he got off her and said, "Oh, my God, I'm really sorry. I'm from London. I'm 17 and I don't live round here and I don't know where anything is. I'm really sorry. Hit me". He then went away. It was quite clear that she was wholly distraught. She looked for her underwear, but could not find it. She contacted her parents on the telephone. Fortunately a police car passed and she flagged it down. She described the appellant's penis as being erect throughout the incident after he had removed his own clothes.

[6]The victim was described by officers as crying and bleeding from her nose. She was taken to hospital. She had a bruised and swollen nose which was bleeding from both nostrils and a bump on the left side of her forehead. She was given pain killers and head injury advice. Her mother attended the hospital. There is an impact statement from her mother which details both the victim's distress and her mother's distress. It is quite clear that this offence has had a substantial impact upon that unfortunate girl.

[7]The appellant was duly arrested. He was interviewed on a number of occasions. He made limited admissions throughout a series of interviews, but at the Crown Court he pleaded guilty to the offences.

[8]There was a long pre-sentence report which found that the appellant would have difficulty in exercising control over his behaviour within the community and should be regarded as presenting a high risk of physical harm to females of all ages, but particularly those in adolescent years. He was also seen by a psychiatrist who found significant evidence of abnormal personality. He has displayed a pervasive pattern of disregard for violation of the rights of others since the age of 15, as indicated by other matters for which he had previous findings of guilt and convictions. The psychiatrist found the appellant to have a superficial and plausible manner. His behaviour was manipulative and he blamed the victims of the offences for his actions. The psychiatrist was reluctant to label him as a man with a personality disorder, but his conclusion was that the appellant's abnormal personality traits, his proclivity to substance misuse and its disinhibiting effects, and the concentration of a high number of sexualized offences in a short period of time were all factors that are associated with a high risk of offending. The appellant was incapable of gaining benefit from treatment and any treatment would not alleviate or prevent deterioration of his condition. Those reports were before the trial judge and he took them into account.

[9]The four offences (other than the abduction and the attempted abduction) are all "specified" offences under Schedule 15 of the 2003 Act and are also serious specified offences under section 225 of that Act, as the judge so found. The judge acted as though the two offences of abduction were specified offences under Schedule 15 of that Act. He was wrong about that. Although there are abduction offences under that Schedule, there are none under the Child Abduction Act. The full offence was charged under the Child Abduction Act, and the attempt was charged under the Criminal Attempts Act, although it follows the same wording as that of the full Child Abduction Act offence. Consequently the judge was not entitled to pass extended sentences as those offences were not on the Schedule. The judge passed sentences of imprisonment for all offences. As the appellant was under the age of 21 that was an error; he should have passed sentences of detention in a young offender institution. As we have said, this court has power to put that right.

[10]Before passing sentence the judge considered and cited R v Lang and Others

[2005] EWCA Crim 2864

. He considered sentencing the appellant to a term of life imprisonment, but came to the conclusion that the proper sentence was imprisonment for public protection, bearing in mind that that also is an indeterminate sentence with little, if any, difference to the effect that it would have if he passed a sentence for life imprisonment.

[11]Mr Ashmole, who represents the appellant today, does not dispute that the trial judge was right to find that sentences for public protection were necessary. This court wholly agrees. It was inevitable that such sentences should be passed.

[12]Counsel makes one submission only. He submits that the started point of fifteen years that the judge selected for the attempted rape was too high. Although he has not taken us through the authorities, he submits that the case law indicates that sentences are usually lower than fifteen years. At paragraph 18 of his advice on appeal against sentence he accepts that an aggravating feature was that there were further serious sexual assaults in the indictment period. That is a factor on which this court places a considerable amount of importance. It is necessary to consider that starting point.

[13]We look first at both the aggravating and the mitigating factors. One of the aggravating factors was that the offence of attempted rape is that it occurred at 9pm on an April evening when it would have been dark and it took place in a deserted place. Secondly, the appellant used violence over and above the violence necessary to commit the sexual offence: he punched her, he poked her in the eye and he put his hand over her mouth, almost suffocating her. He also inserted his finger or fingers into her anus. He did not desist of his own accord, but waited until she had told him that she was only 7. It is clear from the fact that he had committed an earlier offence against a 12 year old that day and had been rebuffed, that this was a planned offence in the sense that, having failed with one victim, he actively sought another victim. The impact upon the victim has been severe. The other matters in the indictment are further aggravating features. It is the pattern of behaviour which is specifically referred to in section 229 (2)(b) when the court is required to consider the question of dangerousness.

[14]The mitigating factors are the appellant's pleas of guilty to all offences. It is said in the written submissions that he used no weapon (although that is not exactly a mitigating feature). He has no previous convictions for sexual offences, although he has twelve previous convictions for other types of offences. It is also accurate that he did not go on to commit the full offence.

[15]The authorities make it clear that a substantial term of imprisonment is always necessary for all offences of rape, and attempted rape particularly where the victim is young, as was the case here: see R v Billam. The authorities normally deal with aggravating features relating to the circumstances of the offence. In this case we have the additional factor of the pattern of offences throughout the indictment period. Despite the fact that the appellant told his last victim that he was 17, he was in fact 18 years and 11 months at the time of these offences.

[16]It necessary for this court to look at the totality of his offending period. In cases such as these it is desirable that all the sentences should run concurrently, as was set out by the Vice President in Lang where at paragraph 20 he said:

"When offenders are to be sentenced for several offences only some of which are specified, the court which imposes an indeterminate sentence under sections 225 or 226, or an extended sentence under section 227 .... should generally impose a shorter concurrent sentence for the other offences.... It will not normally be appropriate to impose a consecutive extended sentence...."

Consequently we look at what the starting point should have been. We consider that for the offence of attempted rape the sentence should have been at least eight years. The aggravating factors directly connected with this offence would make us alter that figure to a figure of twelve years. We then look at the other offences in the indictment period and the totality of the circumstances. We conclude that that is an exercise the trial judge did not do. We have come to the conclusion that that twelve year figure should be raised to a figure of eighteen years. We then consider the mitigating factors. Largely (except for the plea of guilty) there were none that would entitle us to reduce that figure. From the eighteen, we must reduce that figure by one-third because of the appellant's timely pleas of guilty. The Sentencing Council Guidelines make it clear that only in exceptional circumstances can the court take any other course. There are no exceptional circumstances here. Consequently the eighteen year figure is reduced to twelve. We must then set out the minimum term to be served in accordance with section 82A of the Powers of Criminal Courts (Sentencing) Act 2000. That reduces that figure to six years.

[17]It cannot be stressed too highly that, although the figure is six years, the sentence is an indeterminate sentence. This young man is clearly a danger to the public. We anticipate that he will be in prison for a very long time.

[18]We have gone through the same exercise for the other offences. For the trespass with intent to commit a sexual offence and the sexual assault on a female, we consider that the starting point should be six years. We reduce that in each case by two years for pleas of guilty. The minimum specified period should be two years, rather than 30 months. For the sexual assault on a female by penetration, the minimum period should be nine years. Reducing that by three years for the pleas of guilty, the minimum sentence should be three years. For the two abduction offences, the extended sentences must be quashed because there was no power to make them. In their place we impose a sentence of detention in a young offender institution for three years. From all the sentences of detention for public protection the period of 254 days must be deducted because that time has already been served by him in custody.

[19]It is important to make it clear that the sentence imposed by this court, as it was in the Crown Court, is not a sentence of a term of years. The appellant will remain in prison until the body supervising his release, advised by experienced professionals, is satisfied that it is safe to release him in accordance with the provisions of the statute. He will be kept in custody for public protection until it is safe to release him, if that point is ever reached. The ancillary sentences remain for life or until they are reviewed in accordance with the statutory directions. This appeal is allowed to the extent indicated in the course of this judgment. ___________________________