Bowling, R. v [2008] EWCA Crim 1148

Case No 200801249/A8[2008] EWCA Crim 1148
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 30th April 2008
Strand
London, WC2A 2LL
B e f o r e:
SIR IGOR JUDGE
(PRESIDENT OF THE QUEEN'S BENCH DIVISION)
MR JUSTICE AIKENS
MRS JUSTICE SWIFT DBE
Between
R E G I N ACrownv
Between
STEPHEN DAVID BOWLING
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr N Dry appeared for ApplicantMr S Batiste appeared for Crown
J U D G M E N T
[1]MR JUSTICE AIKENS: This is an application for an extension of time of 33 days in which to appeal and for leave to appeal on one aspect of the sentence imposed on Stephen Bowling by His Honour Judge Spencer QC at Leeds Crown Court on 4th January 2008.[2]The applicant, who is now 30, had pleaded guilty on the first day of trial, on 10th December 2007, to two counts of engaging in sexual activity in the presence of a child, contrary to section 11(1) of the Sexual Offences Act 2003. Judge Spencer imposed a prison sentence of 22 months in respect of each count, to run concurrently. He also made a sexual offences prevention order under section 104 of the Sexual Offences Act 2003. Neither of those matters are the subject of the present application. However, the judge also disqualified the applicant from driving for 4 years, pursuant to his powers under section 147 of the Powers of Criminal Courts (Sentencing) Act 2000. It is that order which is the subject of the present application to extend time and for leave to appeal against the order. We grant the extension of time of 33 days and we give leave to appeal and will therefore proceed to consider the appeal.[3]The events giving rise to the offences took place on 18th and 19th April 2007 in Leeds. The appellant (as he now is) was driving his car. On each occasion he drove close to the kerb and attracted the attention of girls who were between the ages of 9 and 14. The girls saw that the applicant's penis was exposed and that he was masturbating. He was traced because, on the second occasion, one of the girls took down the registration number of the appellant's car and that led to him being identified. The appellant had been cautioned for two very similar offences in January 2005.[4]Because the offences for which the appellant was to be sentenced constituted "specified" and "serious" offences, within the meaning of section 224 and schedule 15 of the Criminal Justice Act 2003, Judge Spencer had to consider whether or not the appellant was dangerous within the meaning of sections 225 and 229 of that Act. He concluded that although there must be a significant risk that the appellant would commit this type of offence again, there was no risk that such a repetition would result in serious physical or psychological harm to potential victims. The judge also noted that there was no evidence that the appellant had paedophilic tendencies, or that he had tried to induce the girls to get into his car. Nor had he attempted to get out of his car once he had attracted the girls' attention. Accordingly, in those circumstances, the judge imposed a determinate sentences of 22 months that we have mentioned.[5]The judge then turned to the question of the appellant's car. He said this:
"So far as the car is concerned, the position is that the car quite plainly was used in order to commit or to facilitate committing these offences. It was used to kerb crawl. It was used to get away and it was used as a means of you being able to disrobe yourself sufficiently to display your parts to the girls in question. Obviously you could not very well walk down the street with no trousers on and the car was an essential piece of the equipment. In those circumstances, it seems to me that I should disqualify you from holding or obtaining a driving licence and I will do that for a period of 4 years."
[6]Mr Dry, who appears for the appellant accepts, quite properly in our view, that the judge had jurisdiction under section 147 of the Powers of the Criminal Courts (Sentencing) Act 2000 to make the order disqualifying the applicant from driving for 4 years. The relevant parts of that section are:
"1) This section applies where a person- (a) is convicted before the Crown Court of an offence punishable on indictment with imprisonment for a term of two years or more; or... (3) If, in a case to which this section applies by virtue of subsection (1) above, the Crown Court is satisfied that a motor vehicle was used (by the person convicted or by anyone else) for the purpose of committing, or facilitating the commission of, the offence in question, the court may order the person convicted to be disqualified, for such period as the court thinks fit, for holding or obtaining a driving licence."
It is quite clear in this case that the appellant's car was used for the purpose of facilitating the commission of these offences, in the manner succinctly described by the judge.[7]Therefore only one question arises on this appeal. The general rule is that if a defendant is given custodial sentence, then if the court imposes a period of disqualification from driving under section 147, it will do so for a period equal to or slightly in excess of the period of custody. The policy behind this general rule is that the court should not impose a period of disqualification that will inhibit the offender from rehabilitating himself. This is particularly so in cases where the offender is dependent on the ability to drive for his livelihood. The question that arises in this case, is whether the nature of the offence is such that it is in the public interest that those general principles should not apply. If those general principles do apply, then it is arguable that the period of disqualification was excessive. If they do not, then that might not be so.[8]It is our view that even with offences of the type with which we are concerned, the period of disqualification to be imposed must depend very much upon the facts of the individual case being considered. In this case, we note that the judge concluded that the applicant did not fulfil the "dangerousness" criteria under the Criminal Justice Act 2003. We note that the appellant had pursued his trade as a self-employed roofer before the events leading to the present sentence. It appears that this will be his profession after he is released from custody. Also we note that the judge imposed specific orders under section 104 of the Sexual Offences Act. In particular, the appellant cannot work with children and he cannot go within 100 metres of school premises. Therefore, although we can see that there may be cases concerning offences of this type where the period of disqualification should be significantly longer than the period in which the offender is in custody, we do not think that that is appropriate in this case. What should the period of disqualification be in this case? We take into account the guilty plea of the appellant, the fact that there are no particular aggravating features to this case, the conclusion of the judge on "dangerousness", the fact that he will need the car for work after he is released from custody and the other orders that were made by the judge to prevent this appellant from being near children.[9]In all those circumstances, we have decided that the order of disqualification for 4 years was excessive. We have concluded that the correct period of disqualification in this case is 24 months. Therefore we quash the order of the judge and substitute one for disqualification from holding a licence for a period of 24 months.