Hogg, R. v [2007] EWCA Crim 1357

Case No 200700854/A2[2007] EWCA Crim 1357
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 2nd May 2007
Strand
London, WC2
B E F O R E:
SIR IGOR JUDGE
(PRESIDENT OF THE QUEEN'S BENCH DIVISION)
MR JUSTICE GOLDRING
MRS JUSTICE SWIFT DBE
Between
R E G I N ACrown-v-
Between
BRIAN MAURICE HOGG
Computer Aided Transcript of the Stenograph Notes ofA Merrill Communications CompanySmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR H SOUTHEY appeared for APPLICANT
J U D G M E N T
[1]MRS JUSTICE SWIFT: The applicant in this case seeks an extension of time in which to appeal and leave to appeal against a sentence which was imposed on 19th November 2002. The applications have been referred direct to the Full Court by the Registrar of Criminal Appeals.[2]The applicant, who is now 64 years old, has 14 previous convictions for sexual offences. Between 1959 and May 1968, he was convicted of eight offences of indecent assault, with a further 17 offences taken into consideration. In April 1987 he was given a life sentence, subsequently varied on appeal to 10 years' imprisonment, for five offences of buggery with a boy under 16 and 5 years' imprisonment concurrent for an offence of attempted rape. Twenty-five further offences were taken into consideration on that occasion.[3]On 12th December 2001, in the Crown Court at Maidstone, the applicant pleaded guilty to five offences of indecent assault on a male under 14 and three offences of indecency with a child. On 18th November 2002 he was convicted of two offences of rape and a further offence of indecency with a child.[4]On 19th November 2002 he was sentenced as follows: for the two offences of rape, he was given a sentence of life imprisonment on both concurrent. He qualified by virtue of his previous conviction for attempted rape for an automatic life sentence. The view of the very experienced and highly regarded judge who heard the case was that, in any event, this would have been a case for a discretionary life sentence. For five offences of indecent assault, he received sentences of 5 years' imprisonment on each concurrent to each other and concurrent to the life sentence. For the three offences of indecency with a child, he again received sentences of 5 years' imprisonment on each concurrent and concurrent to the life sentence. For the offence of indecency with a child for which he was convicted, he received a sentence of 7 years' imprisonment concurrent. The total sentence was therefore a period of life imprisonment .[5]The applicant's co-accused was a man named Jeremy Thorpe Wing, who also had convictions for sexual offences in respect of children. He lived at a house near Orpington in Kent. The house had a large garden and was equipped with computers, go-carts, kites, waterguns and other toys and the young boys who visited were given sweets and money and allowed to play with the various toys and equipment which we have mentioned. In fact the purpose of these attractions was to assist in grooming the boys for purpose of sexual abuse by Wing. Inside the house was fitted with a system of hidden video cameras to film the sexual activity that took place there.[6]The allegations against this applicant concerned two boys. The first of these was a boy called J, who was 7 years old when the applicant first met him in August 1999. He was the son of a friend of Wing who regularly carried out handywork for him in the outbuildings of his house.[7]From about the beginning of 2000, J would regularly spend time in Wing's house whilst his father was working outside. He was subjected to sexual assaults by Wing, many of which were recorded on video. Wing indecently assaulted him by touching his penis and anus and penetrated his anus digitally and with various objects, including vibrators. In addition, he had anally raped him. He encouraged J to perform sexual acts on him.[8]All these matters came to light on 9th August 2001 when police officers executed a search warrant at Wing's home. The cameras and video films were found. While the police were there, J and his father arrived. The officers immediately recognised J as the boy depicted in one of the video films and he was examined and interviewed.[9]The applicant lives in Cambridgeshire and was a frequent visitor to the house. He too indecently assaulted J by touching his penis and anus on many occasions. Those were the subject of two of the counts of indecent assault. He digitally penetrated J's anus on more than one occasion. This was the subject of two of the counts of indecency with a child. He admitted these offences. He was also convicted of one offence of raping J and one of inserting a vibrator into his anus. The latter formed the basis of the third count of gross indecency.[10]The second boy concerned in these offences, L, was first taken to Wing's house in the summer of 2000, when he was 7 years old. He was a particularly vulnerable boy, described by his mother as very trusting. He had been statemented for special needs. He and his family lived in Cambridgeshire near to this applicant and were known to him. He introduced them to Wing and L visited Wing's house on about eight occasions, sometimes with adult members of his family, sometimes alone or with his siblings. Wing and the applicant took him swimming on two occasions. Video films seized from Wing's house showed Wing indecently assaulting L and digitally penetrating him. This applicant was also seen to indecently assault him. In addition he admitted indecent assaults on L in the car during the drive back to Cambridgeshire and at L's own home. Those were the subject of the three further counts of indecent assault. He was convicted of one offence of the anal rape of L.[11]Wing pleaded guilty to 12 offences of indecency with a child, two offences of rape and one of taking an indecent photograph of a child and he too was sentenced to life imprisonment.[12]In sentencing the applicant the judge observed that he was an evil and wicked man, who was committed, resourceful and an unrepentant paedophile. He had a depraved, deviant sexual interest in young boys who had no understanding of what he did to them or what he made them do. Together with Wing he had destroyed the innocence of these two boys.[13]Although the applicant's involvement was less than that of Wing, he had contested the rapes and thought only of himself and not the children. That, said the judge, underlined the gravity of the conduct. He was a danger to young boys. He qualified for a life sentence because of his conviction for attempted rape in 1997, but in any event he satisfied the criteria for a life sentence for the instant offences.

The judge went on to say this:

"Where discretionary life sentences or automatic life sentences are passed on defendants, as I have done here, I am required in normal circumstances under section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 to specify a minimum period before which each of you cannot be considered for parole. In my judgment, in this case such is the history of child abuse in each of your cases over such a long period as I have been told about, such is the danger, which in my judgment you present to young boys, that I regard it as inconceivable for any future Secretary of State will ever regard it as safe to release you back into the community. In these special circumstances I make no recommendation as to any minimum period after which you would be considered for parole."
[14]The grounds of appeal are that the life sentence imposed in this case was wrong in principle because a minimum term should have been imposed. Over 4 years had elapsed between the passing of the sentence and the filing of the notice of appeal. It is said that the applicant did not appeal initially as he was wrongly advised that a minimum term had been set in his case. In fact, of course, no minimum term had been set for the reasons given by the judge. In those circumstances, it is argued that it would be wrong not to permit this appeal to proceed despite the delay.[15]Section 82A(4) of the Powers of Criminal Courts (Sentencing) Act 2000 permits a judge to impose a life sentence without setting a minimum term. It applies whether the life sentence is automatic or discretionary. The subsection provides that:
"If the offender was aged 21 or over when he committed the offence and the court is of the opinion that because of the seriousness of the offence or the combination of the offence and one or more offences associated with it no order made under subsection (2) above, the court shall order that the early release provisions shall not apply to offender."
[16]For the applicant, Mr Southey submits that the factor which determines whether or not a minimum term should be set is the seriousness of the offence or offences, not the risk posed by the offender. Issues of risk are addressed by the Parole Board when it comes to consider whether or not to release the offender at the expiration of the minimum term.

(S) 463, in which Stuart-Smith LJ said this:

"There is thus a clear division of function. The judges are to decide the period which the prisoner should serve by way of punishment or deterrence. The Board must decide whether he still presents a danger to the public. If he does not, he must be released. That means that, save in cases of most exceptional gravity where the judge thinks the prisoner should remain a prisoner for the rest of his normal life, he should specify a period. It is clear that the exceptional cases which do not attract a mandatory life sentence will be rare indeed."
Mr Southey submits that, serious though the applicant’s offences were, they did not fall within that rare and exceptional category of case whose seriousness that justifies a whole life sentence.[17]We accept Mr Southey's submissions. The imposition of a life sentence is designed to protect the public from the offender, whereas the period specified under section 82A is meant to reflect the degree of punishment, retribution and deterrence appropriate for the offence. In determining whether or not to impose a minimum term, the court is required by the terms of section 82A(4) to consider the seriousness of the offence or combination of offences. Only in a rare and exceptional case will it be appropriate not to impose a minimum term. Although the offences committed by this applicant were very grave, involving as they did the corruption and abuse of very young boys, we agree that they did not come within that rare and exceptional category. It seems to us, from the judge's remarks, that in deciding not to impose a minimum term he had in mind primarily the need to protect other young boys from the applicant in the future. We can well understand his concern in this regard. Nevertheless, that was not the appropriate criterion to be applied, and we are satisfied that a minimum term should have been specified on the facts of this particular case. That does not, of course, mean that the applicant will necessarily be released at the expiration of the minimum term. He will be kept in custody unless and until he is no longer considered to present a continuing risk.[18]The applicant should not, in our view, be penalised because he was not immediately alerted to the true legal position as to his sentence. Accordingly, and despite the long time that has elapsed, we shall grant him the extension of time sought and give him leave to appeal against sentence. From henceforth, we shall refer to him as the appellant. How long then should the specified minimum term be?[19]Mr Southey has realistically recognised that the minimum term must be a substantial one. He contends, by reference to the leading case of R v Millberry & Ors [2003] 2 Cr App R(S) 31, that the appropriate starting point would be one of 15 years for the notional determinate sentence, and given the aggravating factors in this case, he recognises that a notional determinate period of 16 years may be more appropriate, producing a specified minimum period of 8 years.[20]Two boys were involved in these offences and both were abused over a substantial period. The offences were committed in co-operation with the co-accused, Wing. The applicant would travel to his home in the hope of having sexual activity with one of the boys. The applicant himself introduced one of the boys to his co-accused. He ingratiated himself with the boy's family and played an active part in grooming him. His victims were young and in one case particularly vulnerable. The applicant had a shocking record for sexual offences and had previously been sentenced to 10 years' imprisonment for offences of buggery. In relation to the offence of rape the mitigation of a guilty plea is not available to him.[21]In all the circumstances, we consider that the appropriate notional determinate sentence is one of 20 years. The minimum term will be fixed at half that period. That is 10 years. The applicant will receive credit for the 465 days spent in custody on remand. To that extent the appeal will be allowed.