SB, R. v [2006] EWCA Crim 400

Case No 2005/05527/A6

[2006] EWCA Crim 400

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Monday, 6 February 2006

The Strand

London

WC2A 2LL

B e f o r e:

LORD JUSTICE PILL

MRS JUSTICE SWIFT DBE

HIS HONOUR JUDGE RADFORD

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

Between

R E G I N ACrown

- v -

Between

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Smith Bernal, 190 Fleet Street, London EC4

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MR R HOWAT appeared for APPELLANT

MR R UNDERWOOD appeared for CROWN

J U D G M E N T

Monday, 6 February 2006

[1]Before giving judgment we should remind you that it is an offence under the provisions of the Sexual Offences (Amendment) Act 1992 to publish the name and address, or any matter which might lead to the identification of the victim of an offence listed in section 2 of the Act. That restriction applies to the present case.

[2]On 23 August 2005, in Crown Court, the appellant, who is now 51 years old, pleaded guilty to two counts of rape contrary to section 1 of the Sexual Offences Act 2003 and to one count of attempted rape. On 26 September he was sentenced to life imprisonment pursuant to section 225 of the Criminal Justice Act 2003, with a minimum term of five years' imprisonment concurrent on counts 1 and 3 (rape), and a determinate sentence of five years' imprisonment concurrent on count 2 (attempted rape). An order was made pursuant to section 28 of the Criminal Justice and Court Services Act 2000 disqualifying him from working with children.

[3]The appellant appeals against sentence by leave of the single judge.

[4]The circumstances of the offences are these. The 14 year old complainant was a friend of the appellant's daughter. On 18 June 2005, she arranged to meet the appellant's daughter and to stay overnight at the appellant's house. She had stayed there on many previous occasions. Indeed the appellant and her father were good friends.

[5]On that day the appellant met the complainant and his daughter after he had finished work at the fun fair where he was employed. He bought them some alcohol. They drank the alcohol and watched television. The girls drank alcopops and the appellant drank absinthe and apple. The appellant's daughter went upstairs with the complainant and the two girls changed into their nightclothes. They then went back downstairs and continued drinking. At about midnight the complainant said that she felt tired and a bit tipsy. She went upstairs to bed. She slept on a quilt on the floor of her friend's room.

[6]At about 3am the appellant entered the room and woke the complainant. He told her that he had something to show her and took her into his bedroom. Once she was there he forced her to put her wrists into some dog leads, which he secured to the bed posts. He tied her ankles with a belt and forced open her legs. He poured a mug of absinthe and told her to drink it. Initially she was reluctant to do so, but she was frightened. Over the period of the next fifteen minutes she drank all of it. By this time she was crying and distressed. When she finished, the appellant pulled down her pyjama bottoms and her thong to her ankles. He then took off his own clothes and said, "You have a choice, either up the front or up the back". He turned her over and committed an act of anal rape. By this time the complainant was in pain. She was crying and begging him to stop. He removed his penis, pulled down her head and tried to force his penis into her mouth. She tried to pull away. That was the subject of count 2. He then forced her legs apart and began to lick her vagina. He committed an act of vaginal rape. She asked him if he had finished. He replied, "Another two minutes". She said that when he finished her vagina felt sore and wet. She thought that he had ejaculated. The appellant told her not to tell anyone and threatened that if she did so he would get her. The appellant then cut her free and she ran downstairs, where the appellant's daughter was asleep on the sofa. The complainant got onto the sofa with her friend and remained there for the rest of the night. The appellant made himself a cup of tea and went back upstairs.

[7]The following morning when the complainant woke up, she, the appellant and his daughter went into town. The complainant told her friend that her father had raped her, but the friend, understandably, would not accept it. The complainant was very distressed and went to her sister's home. Her sister told their father what had happened and the police were duly called.

[8]The complainant underwent a medical examination which confirmed in every respect the allegations that she had made. Injuries consistent with the acts which had been performed on her were found.

[9]The appellant had appeared before the court on only one previous occasion in 1987 when he was conditionally discharged for common assault.

[10]There was a letter from the appellant before the court which sentenced him, expressing remorse. We have seen that.

[11]The offences to which the appellant pleaded guilty were serious offences within the meaning of section 224 of the Criminal Justice Act 2003. Under the provisions of section 225 of the Act, if a person aged 18 or over is convicted of a serious offence, the court is required to impose either a sentence of imprisonment for life or a sentence of imprisonment for public protection if the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences. The judge concluded that there was such a risk. In reaching that conclusion he took into account the very serious breach of trust, the element of force used and the fact that the appellant had diminished the complainant's resistance by forcing her to drink alcohol and by tying her up before committing the offences upon her. He said that he gave the appellant full credit for his early guilty plea. However, he indicated that the fact that the appellant had been capable of perpetrating these acts in these circumstances on a friend of his daughter satisfied him that there was a significant risk of serious harm being caused by the appellant committing further serious offences. He went on to impose the two life sentences to which we have referred, together with a determinate sentence for the attempted rape.

[12]Counsel for the appellant submits that the life sentences were wrong in principle. He has drawn the court's attention to R v Lang and Others

[2005] EWCA Crim 2864

. At paragraph 7 of the judgment, the Vice President, Rose LJ, said:

"Significant risk must be shown in relation to two matters: first, the commission of further specified, but not necessarily serious, offences; and, secondly, the causing thereby of serious harm to members of the public."

At paragraph 17 of the judgment, the Vice-President set out the various factors to be borne in mind when considering whether such a significant risk existed.

[13]Counsel for the appellant submits that there was no evidence before the judge that there was indeed a significant risk of re-offending by the appellant, so that the first criterion set out in section 225(1)(b) is not met. He pointed in particular to the fact that the pre-sentence report suggested that the risk of re-offending was low to medium. There was no psychiatric evidence to suggest that the appellant was likely to re-offend. Defence counsel had applied on a number of occasions for psychiatric evidence to be obtained, but the applications had been refused. Thirdly, the appellant had no history of previous sexual offending. Fourthly, the appellant had pleaded guilty at the earliest opportunity and had shown genuine remorse and victim empathy. Finally, the offence was not premeditated and therefore, counsel submitted, there was no evidence of risk of re-offending.

[14]For the respondent today Mr Underwood has submitted that it was open to the court, particularly having regard to the circumstances of the offence, to find that there was a significant risk of re-offending.

[15]It is not suggested on behalf of the appellant that if he were to re-offend it would not give rise to a significant risk of serious harm to members of the public. Plainly this type of offence gives rise to a risk of serious harm. Thus the second criterion set out in section 225(1)(b) is satisfied.

[16]Section 225, insofar as it is relevant, provides:

"(2) If -- (a) the offence is one in respect of which the offender would apart from this section be liable to imprisonment for life, and (b) the court considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life the Court must impose a sentence of imprisonment for life. (3) In a case not falling within subsection (2) the Court must impose a sentence of imprisonment for public protection."

[17]All three of the offences to which the appellant pleaded guilty carry a sentence of imprisonment for life. Counsel for the appellant submits that the offences were not so serious as to justify a life sentence. In view of the appellant's previous history there were no associated offences to be taken into account. The instant offences fell to be considered alone.

[18]Finally, counsel submits that the minimum period to be served of five years set by the judge was excessive, having regard to the appellant's guilty plea and to the protection afforded to the public by the imposition of the life sentence. He points out that the sentence passed equates to a sentence after trial of fifteen years which, he says, is plainly excessive. He suggests that, if a life sentence were appropriate, the minimum term should have been three-and-a-half years. As it is, he submits that a determinate sentence would have been the appropriate sentence. This could have taken account of any perceived need to protect the public. Relying on the guideline case of R v Millberry and Others

[2002] EWCA Crim 2891

, he submits that the starting point should have been ten years and that this should have been reduced to reflect the guilty plea and for the mitigation personal to the appellant, to give a determinate sentence of six to six-and-a-half years.

[19]Having considered all the circumstances in this case, we conclude that there was ample evidence on which the judge could have decided that there was a significant risk of serious harm to members of the public occasioned by the commission by the appellant of further specified offences. We note that, when assessing the risk of re-offending as low to medium, the author of the pre-sentence report observed that if the appellant were to become intoxicated and to be in a situation where he was alone with a young girl, there was a risk that this type of behaviour might be repeated. The author said that this risk might be reduced if the appellant undertook work to address his offending behaviour. However, she noted that he seemed to be in denial over some of the details of the offence. The offences were very unpleasant indeed. They demonstrated a desire to control the complainant, as well as to abuse her. They also represented a gross breach of trust. We share the view that there must be a significant risk that, if placed in similar circumstances in the future, the appellant might re-offend. Although he has shown remorse, he does not appear to have faced up fully to the reality of what he has done. We consider that the judge was entitled to form his own view about the presence or absence of risk, without having expert evidence on the point. As the court made clear in Lang, the judge was not bound to accept the assessment contained in the pre-sentence report. He was entitled to make his own assessment based on all the circumstances of the case.

[20]Having decided that there was a significant risk within the meaning of section 25(1)(b), the judge should then have proceeded to consider whether the seriousness of the offences was such as to justify the imposition of a sentence of imprisonment for life. Instead he proceeded immediately to impose a life sentence. The level of seriousness required for the imposition of a life sentence is dealt with in Lang in paragraph 8, where the Vice President said:

"It is not clear whether Parliament, when referring in sections 225(2)(b) and 226(2)(c) to the seriousness of an offence or offences being 'such as to justify' imprisonment or detention for life, thereby making such a sentence mandatory, was intending to adopt this Court's criteria for the imposition of a discretionary life sentence (see R v Chapman [2000] 2 Cr App R(S) 77) or was seeking to introduce a new, more restrictive criterion for seriousness relating it solely to the offence rather than, also, to the dangerousness of the offender On the basis that Parliament is presumed to know the law, we incline to the former view. This construction is supported by section 143(1) which requires the court, when considering the seriousness of any offence, to consider the offender's culpability and 'any harm which the offence caused, was intended to cause or might foreseeably have caused'. This language clearly requires consideration of the culpability of the defendant as well as the seriousness of the offence and therefore involves consideration of dangerousness."

[21]Serious though these offences are -- and we in no way seek to minimise them -- they would not hitherto have been such as to justify a discretionary life sentence. Nor, in our view, do they now. We therefore quash the life sentences and substitute for them sentences of imprisonment for public protection. In view of the mitigation, in particular the early plea of guilty, we agree that a notional determinate sentence of ten years was too high. In our judgment seven years would have sufficed. The specified term to be served will be three-and-a-half on each of counts 1 and 3 concurrent, less the time spent in custody, which we understand to have been 98 days.

[22]So far as the attempted rape is concerned, we do not fully understand the basis on which the determinate sentence was passed, but we make no alteration to that sentence. In any event it will have no effect, having regard to the sentences on counts 1 and 3.

[23]To that extent the appellant's appeal is allowed. _____________________