Shiers, R. v [2006] EWCA Crim 181

Case No 2005/05513/A2

[2006] EWCA Crim 181

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Monday, 23 January 2006

The Strand

London

WC2A 2LL

B e f o r e:

LORD JUSTICE LATHAM

MR JUSTICE BURTON

THE RECORDER OF LONDON

(Sitting as a Judge of the Court of Appeal Criminal Division)

Between

R E G I N ACrown

- v -

Between

MARC HENRY SHIERS

Computer Aided Transcription by

Smith Bernal, 190 Fleet Street, London EC4

Telephone 020-7421 4040

(Official Shorthand Writers to the Court)

MR B N O'BRIEN appeared for APPELLANT

J U D G M E N T

Monday, 23 January 2006

[1]On 29 July 2005, the appellant Marc Henry Shiers, having earlier pleaded guilty to two counts of sexual activity with a child and one count of abducting a child, changed his plea to guilty on the remaining allegation of sexual activity with a child (count 3). He was sentenced by His Honour Judge Tabor to an extended sentence totalling eight years pursuant to section 85 of the Powers of Criminal Courts (Sentencing) Act 2000, made up of a custodial term of four years six months' imprisonment and an extension period (an extended period of licence) of three years six months. The component parts of the custodial term were achieved by three-and-a-half years' imprisonment on each count of sexual activity with a child (counts 1, 2 and 3) to run concurrently, and a term of one year's imprisonment for abducting a child (count 10) to run consecutively. The appellant was made the subject of an indefinite Sexual Offences Prevention Order under section 104 of the Sexual Offences Act 2003, which ordered him: 1. Not to reside in any household with a child or young person whom he reasonably believes to be under the age of 16 years. 2. Not to have any unsupervised contact with any young person whom he reasonably believes to be under the age of 16 years, in public or private, except within the line of sight and range of hearing of that child's parent or legal guardian (save for any inadvertent or unavoidable contract with a child whom he reasonably believes to be under 16 years). 3. Not to engage in any employment or other activity with a child or young person whom he reasonably believes to be under the age of 16, either on a professional or voluntary basis. 4. Paragraphs 1, 2 and 3 (which the court has rehearsed) are subject to paragraph 5. 5. Not to contact or meet his biological children save with the express permission of the social services in whose care the children reside. In addition, having been convicted of an offence listed in Schedule 3 to the Sexual Offences Act 2003, the appellant was required indefinitely to comply with the provisions of Part 2 of the Act (notification to the police).

[2]The appellant now appeals against sentence by leave of the single

judge who, in granting leave, said:

"I grant an extension of time and leave to appeal against sentence solely because it is arguable that the learned jude should have identified the offence to which the extended sentence is intended to relate and, consequently, the licence period on the expiry of which the extension period will begin to run. The applicant will be able on appeal to make such points as he wishes on the Sexual Offenses Prevention Order. So far as concerns the relevant point, the applicant's counsel confirmed to the learned judge that the applicant's children were in the care of Social Services and that he could not argue against the form of words suggested and ultimately adopted by the judge."

[3]The victim of all four counts was a girl of 13 years of age when she met the appellant in late 2004. The introduction was made through the 18 year old brother of the lady with whom the appellant was then living. Contact with that girl continued when the appellant's relationship with his then partner ended. The appellant showered this girl with gifts such as DVDs, jewellery and clothing. When she moved with her mother to Exeter from Gloucestershire, he set up a credit account for her into which he paid money so that she could telephone him and they could be in regular contact in that way.

[4]The contact continued in intensity until the appellant had sexual with her on a number of occasions (the subject of counts 1, 2 and 3). In his conversations with her and in his e-mails to her, the appellant spoke of his love for her. It was noted that he made a total of 4,351 calls before his arrest on 26 February 2005. Matters came to a head on the evening of Friday 25 February. The girl was supposed to be staying with a school friend in Exeter and had strict instructions from her mother that she was to return home the following morning. She did not. In consequence her mother contacted the police. The mother searched the girl's bedroom and discovered correspondence, as a result of which she learnt for the first time that her daughter was in a relationship with the appellant who was calling himself Marc Warwick. These letters spoke of his love for the girl and complained that she had lied to him.

[5]When called in, the police also searched the girl's bedroom. The documents they recovered confirmed that the girl was in a relationship with the appellant.

[6]During the early evening of 26 February police went to an address in Brinscombe in Gloucestershire. The appellant arrived at that address in a car driven an another man. The appellant allowed the police to search his flat. He appeared co-operative. He showed them round the flat, but the girl was not there. He was, nevertheless, arrested. As a result of yet further enquiries the police went to a public house in Brinscombe later that night and there found the girl. She was taken into protective custody.

[7]The appellant was interviewed later still that night at a stage when the interviewing officers did not know that the girl had been found. The appellant denied seeing her recently and said that the last contact that he had with her was at 9pm the previous evening. He accepted that they had had a relationship, but he asserted at that stage that it was not a sexual one. He told the police that he knew that the girl was moving away. They had agreed to stay together but not to see each other because he could not get down to Exeter easily. He added that when she was old enough, if she still wanted to leave home, she could move in with him. He claimed that he was worried about her because he did not know where she was. He gave details of friends of hers and relatives who lived in the area.

[8]The following day he was interviewed again. His lies now began to unravel. He explained that he and the driver of the car the previous evening had driven to Exeter with the girl and, having dropped her off, she had sent him a text message in which she sounded panicky and upset. He told the police that she had returned to the car and that she had told him that she had had an argument with her mother and that she had been locked out of home. He claimed that as she had nowhere else to go, he had decided that she would return with him. He claimed to the police that he had offered to speak to her mother, but she had refused. He said that the girl had refused to go home and so he told her that he would not take her to her grandmother's address unless she told her mother. He stated that she had refused that and become angry, so he had relented and agreed to take her to her grandmother's address, which was near his own home. He said that when they arrived there he had dropped her off, but he had then received another telephone call from her saying that her grandmother was not at home and that she had to go to a friend's house. He said that he decided to collect her and had done so. In consequence they had returned to his home and spent the night there, although he maintained that they had slept in separate rooms. He repeated his claim that he loved her and that they had met the previous October. He claimed that he thought she was 15 or 16. That was not borne out by information given to the police by the girl, who maintained that the appellant knew her true age and confirmed that they had had sexual intercourse on a number of occasions.

[9]When he came to sentence, Judge Tabor said that the only mitigating feature was the appellant's guilty plea. He was in reality a man who posed an enduring threat to young girls, particularly those who were vulnerable and susceptible to his charms. This was now the fourth occasion that he had had sexual intercourse with an underage girl. People who did what he did had to be punished severely. In the judge's view the appellant would continue to pose a threat to young people and that is why he proposed to make a Sexual Offences Prevention Order. He made it clear that he determined a need for an extended period of licence of the length that was in fact passed.

[10]The appellant is 33 years of age. His previous convictions alluded to by the sentencing judge include three previous convictions for sexual intercourse with a girl under 16. The first of those convictions was in June 1992 when the appellant was 20 and the girl was 15. In consequence he was conditionally discharged. The second conviction for a like offence was in December 1993. The girl was 14. On this occasion he was sent to prison for a term of nine months. The third occasion was in April 1999. The girl was 13 and the appellant was sent to prison for two years. In addition, there are convictions for other offences spanning fifteen court appearances totalling over 30 offences, principally for Road Traffic Act matters and offences of dishonesty.

[11]There was before the court below a pre-sentence report dated 20 June 2005 from Sheelagh O'Kelly who had knowledge of the appellant during various periods of probation supervision since 1998. She indicated that the appellant recognised the likelihood of a custodial sentence and it was her recommendation that the licence period be extended following the appellant's release in order to enable the effectiveness of such work that he completed during the prison sentence in reducing the high risk of his re-offending be evaluated. In consequence, she requested that the judge consider a period of three year licence supervision. She concluded in her report that, given the appellant's entrenched pattern of behaviour and attitudes, a high level of intervention was necessary to make significant and lasting changes to his behaviour. Whilst she noted that he accepted some responsibility for his behaviour, it was her opinion that he sought to justify it and rationalise it by asserting his strong feelings for the girl concerned.

[12]The grounds of appeal have been settled by the applicant. They are supported by an undated letter attached to the grounds which the appellant asked to be read in conjunction with the grounds, and a letter dated 13 December 2005, enclosing documents, all of which the court has considered, together with a further document headed "the appellant's submissions". The court's attention has also been drawn to R v Nelson

[2002] 1 Cr App R(S) 565

[2001] EWCA Crim 2264

, which gives guidance to sentencers contemplating passing extended sentences and to R v Pepper and Others

[2005] EWCA Crim 118

. The court has also had an opportunity to consider the judgment of His Honour Judge Rutherford in the Bristol District Registry of the Family Division in Gloucestershire County Council v Sharon Meadows and Others.

[13]The grounds of appeal are directed to two areas of the sentence. First, complaint is made in respect of the Sexual Offences Prevention Order. It is said that it is factually incorrect in its wording, particularly prohibition 5 because none of the children is in care of any local authority Social Services Department. This court accepts representations from counsel this morning that that is the correct position.

[14]The appellant contends more generally that the prohibition offends

Article 8(1) of the Convention

on Human Rights and section 6(1) of the Human Rights Act 1998. He contends that, apart from the wording being wrong, none of the offences was committed against his own children. He contends that the prohibition in paragraph 5 of the order which governs the activities prohibited in the preceding paragraphs 1, 2 and 3 should read simply "save in the exception of his biological children".

[15]Secondly, the appellant asserts that the offences of sexual activity with a child were consensual and that the relationship was a long-established one. He submits to this court that the offence of abduction came very close to the threshold of reasonable excuse, as the victim herself encouraged the commission of the offence. He points out that he pleaded guilty at the earliest opportunity and that the overall sentence was manifestly excessive in all the circumstances and, as he argues, more akin to a sentence following a conviction for rape.

[16]In the light of all these factors the appellant in his written submissions invited the court to allow the appeal by making the sentence of twelve months' imprisonment for abduction to run concurrently with those imposed for the offences of sexual activity with a child and by reducing the extension to the term of two-and-a-half years.

[17]Insofar as the court accepts that the wording of the Sexual Offences Prevention Order, notwithstanding being the subject of discussion between the judge and counsel acting for the appellant on 29 July, was wrong and that there are no biological children the subject of Social Services direction, the court allows the appeal in this regard to the extent of deleting the prohibition in paragraph 5 as it stands and substituting "The previous paragraphs shall not apply to any biological child unless a court so orders".

[18]We turn to the more substantial grounds of appeal. The court is indebted to the succinct submissions from counsel to us this morning, but the court is not persuaded that the abduction can be dismissed lightly. This girl was missing from home for a considerable period of time, even if measured in hours. Even if the appellant was not responsible for that initially, and even if the difficulties that arose between the girl and her mother were not of the appellant's making, the appellant nevertheless had a responsibility to look after her and to ensure that she returned home by reason of his age in relation to hers. The steps he took had the practical effect of imposing on this family a long and very worrying period when her family did not know that she was safe. The judge, in our judgment, was entitled to reflect that in the sentence he passed below. Furthermore, this court agrees with the sentencing judge that the appellant posed an enduring threat to young girls. The fact that this was the fourth conviction for sexual intercourse with an underage girl cannot be overlooked. In view of the increasing severity of the sentences passed for similar activity, the appellant knew exactly the risk he ran if he continued a relationship which involved repeated sexual activity with a girl as young as this.

[19]The court is persuaded by the assessment of the author of the pre-sentence report, who knew the appellant of old, that these offences continued a long-term pattern of behaviour which had focused on young and often vulnerable girls with whom the appellant had formed relationships often in the role of rescuer when the victims had been experiencing difficulties of some sort within the family home. She assessed him as able to present himself as plausible, knowledgeable and reliable which can attract susceptible young girls in his target age group and other vulnerable individuals. His lifestyle, she pointed out, has involved a significant level of contact with those younger than himself and he recognises this as raising the risk of him re-offending. The author pointed out that the appellant sees himself as very likely to re-offend in the future and this is the reason for his wanting to complete a Sexual Offender Treatment Programme. As to that she indicated, and this court accepts, that given that this is his fourth conviction for engaging in sexual activity, including penetration, with girls of the age of 13, 14 and 15 years, and there being no indication that the appellant has made any sustained effort in the past to change this behaviour, she was justified in drawing to the attention of the sentencing judge the necessity for a high level of intervention for the appellant to make any significant and lasting change to his behaviour in the future and that there was, accordingly, good reason for her request that the appellant be made not only subject to an extended licence supervision, but one sufficiently long that would enable work to be carried out over a longer period of time in order to evaluate the effectiveness of the work that he completes during his prison sentence in reducing his risk and enabling long-term follow up on any identified issues thrown up during the period of intervention.

[20]The sentences passed below in terms of their overall length cannot, for all those reasons in the judgment of this court, be described as manifestly excessive. The judge was entitled to fix three-and-a-half years as the extended period of licence. Insofar as it is accepted that he fell into error in not specifying to which sentence the extended period of licence was attached, this court addresses that by quashing the sentences imposed below and substituting for all four counts, 1, 2, 3 and 10, custodial terms of four years six months' imprisonment to run concurrently. The extended period of licence will remain three years six months and attached to the concurrent sentences on all four counts. To that limited extent this appeal succeeds. _____________________________