C & Ors, R v [2008] EWCA Crim 2790

[2008] EWCA Crim 2790

Case No 2008/04502/A6 (1)

2008/04591/A1 (2)

2008/04551/A1 (3)

2008/04542/A7 (4)

2008/04444/A9 (5)

2008/04418/A7 (6)

2008/04492/A4 (7)

2008/04325/A7 (8)

2008/04338/A7 (9)

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT AT GUILDFORD

HIS HONOUR JUDGE ADDISON (1)

ON APPEAL FROM THE CROWN COURT AT CANTERBURY

HER HONOUR JUDGE W (2)

ON APPEAL FROM THE CROWN COURT AT BRADFORD

HIS HONOUR JUDGE MCCALLUM (3)

ON APPEAL FROM THE CROWN COURT AT TEESSIDE

HIS HONOUR JUDGE BOWERS(4)

ON APPEAL FROM THE CROWN COURT AT SOUTHAMPTON

HIS HONOUR JUDGE BURFORD QC (5)

ON APPEAL FROM THE CROWN COURT AT NEWCASTLE

HER HONOUR JUDGE BOLTON (6)

ON APPEAL FROM THE CROWN COURT AT ST ALBANS

HIS HONOUR JUDGE FINDLAY-BAKER QC (7)

ON APPEAL FROM THE CROWN COURT AT BLACKFRIARS

HIS HONOUR JUDGE MARRON QC (8)

ON APPEAL FROM THE CROWN COURT AT NEWCASTLE

HER HONOUR JUDGE BOLTON (9)

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 26/11/2008

Before

THE LORD CHIEF JUSTICE

MR JUSTICE OWEN

MR JUSTICE SWEENEY

Between

(On a Reference by the Attorney General)Appellant

RAppellant

C (1)Respondent

RRespondent

CO (2), P (3), D (4), W (5), Rickman (6), Andrews (7), Forbes (8) and Douglas (9)Respondent

(On a Reference by the Attorney General)

R-v-C (1) R- v -CO (2), P (3), D (4), W (5), Rickman (6), Andrews (7), Forbes (8) and Douglas (9)

Mr P. Wright QC and Mr O. Glasgow for Attorney General on the Reference

And for Respondent in the remaining cases

Mr A Turton for C (1)

Miss T Robinson for CO (2)

Mr N. Bashir for P (3)

Mr B. Russell for D (4)

Mr D. Reid for W (5)

Mr M Giuliani for Rickman (6)

Miss N Cafferkey for Andrews (7)

Mr T Smith for Forbes (8)

Mr C. Mitford for Douglas (9)

Hearing Hearing date : 14th October 2008

Judgment

The Lord Chief Justice:

[1]These nine otherwise unrelated cases were listed together to enable the court to consider and review the amendments made by the sections 13-18 of the Criminal Justice and Immigration Act 2008 (the 2008 Act) to Chapter 5 of Part 12 of the Criminal Justice Act 2003 (the 2003 Act).

[2]The relevant provisions of the 2003 Act and the 2008 Act amendments were brought into force on 4 April 2005 and 14 July 2008 respectively. These far reaching amendments were expressly declared, by paragraph 2 of Schedule 2 of the Criminal Justice and Immigration Act 2008 (Commencement No 2 and Transitional and Saving Provisions) Order 2008 (SI 2008 No. 1586) not to have effect in relation to any person sentenced under any of the provisions of sections 225-228 of the 2003 Act before 14 July 2008. The date when an offender is brought before the court and sentenced is largely accidental and depends on the needs and business, and the overall interests of victims and witnesses, as well as defendants, in each Crown Court. The effect of the transitional provisions is that an offender sentenced before 14 July 2008 (and any appeal by him to this court) is governed by sections 225-228 of the 2003 Act (provided the offences were committed after 4 April 2005) and that after 14 July 2008 the amended sentencing regime found in sections 13-18 of the 2008 Act applies.

[3]The first case, a Reference by Her Majesty’s Attorney General, illustrates some of the complications. C committed offences before and after 4 April 2005. For those committed before that date, the relevant sentencing provisions are contained in a number of statutes, of which the Powers of Criminal Courts (Sentencing) Act 2000 and the Sexual Offences Acts 1956 and 2003 are the most important. A sentence of imprisonment for public protection or an extended sentence under the 2003 Act could not be imposed. For offences committed after 4 April 2005, the Sexual Offences Act 2003 (brought into force on 1 May 2004) and the Criminal Justice Act 2003 (brought into force on 4 April 2005) effectively govern the relevant sentencing decision, although the Powers of Criminal Courts (Sentencing) Act from time to time, continues to be relevant. For these offences a sentence of imprisonment for public protection or an extended sentence would, if appropriate, be available in accordance with the regime created by the 2003 Act itself. However where the offender is sentenced after 14 July 2008 (for whatever reason including the demands on the court, the illness of witnesses, the length of any trial, a sentence delayed because the offender deliberately absented himself) the 2003 Act is to be applied as amended by the 2008 Act, rather than its original form. It is perhaps worth noting that the amendments brought about by the 2008 Act do not impinge on the long established principle, now enshrined in statute, that the court is required to have “regard” to “protection” of the public as one of the purposes of sentencing (section 142 of the 2003 Act).

[4]We highlight the continuing statutory provisions relevant to the determination of the seriousness of the offence (sections 143, 145 and 146 of the 2003 Act in particular) and the concept of “associated” offences as defined in section 305 (1) of the 2003 Act adopting 161(1) of the Powers of Criminal Courts (Sentencing) Act 2000. This provides:

“…an offence is associated with another if (a) the offender is convicted of it in proceedings in which he is convicted of the other offence, or (although convicted of it in earlier proceedings, is sentenced for it at the same time as he is sentenced for that offence) or (b) the offender admits the commission of it in the proceedings in which he is sentenced for the other offence and requests the court to take it into considering when sentencing him for that offence.”

We note in passing section 19 of the 2008 Act which amends section 82A of the 2000 Act with its new and far from uncomplicated framework for setting tariffs in discretionary life sentences, and imprisonment for public protection. (a) the offender is convicted of it in proceedings in which he is convicted of the other offence, or (although convicted of it in earlier proceedings, is sentenced for it at the same time as he is sentenced for that offence) or (b) the offender admits the commission of it in the proceedings in which he is sentenced for the other offence and requests the court to take it into considering when sentencing him for that offence.” Discretionary Life Imprisonment

[5]Section 225(1) and (2), as they bear on the discretionary sentence of life imprisonment, are unamended. The court must consider whether the seriousness of the offence, or the offence and one or more associated offences, justifies the sentence. If it does, however much judicial discretion (or more accurately, judgment) has been introduced into the assessment of dangerousness by the removal of the statutory assumption, or in relation to the imposition of imprisonment for public protection or an extended sentence, a sentence of imprisonment for life “must” be imposed if the conditions in section 225 (1) and

(2) are established. In the present group of cases, that requirement was not followed in P . The decision whether to pass such a sentence continues to be informed by the considerations identified in R v Kehoe

[2008] EWCA Crim 819

. Assessment of Dangerousness

[6]The first striking feature of the amendments is that under section 229 of the 2003 Act, the court’s assessment of dangerousness was subject to a prescriptive and unhelpful statutory assumption (S229(3)) in relation to the risks identified in S229(1),to be applied unless to do so would be unreasonable. It is worthy of immediate notice that the statutory assumption of dangerousness in section 229(3) has disappeared. No court will mourn its departure. Its judgment of dangerousness can now be made untrammelled by artificial constraints. That said, the sentencing option of imprisonment for public protection in the appropriate case remains an important sentencing alternative available to the court. Imprisonment for Public Protection

[7]In making its judgment, it is perhaps worth repeating and emphasising that the principles identified and explained in R v Johnson and others [2007] 1 CAR (S) 112 are unchanged. The sentence of imprisonment for public protection “is concerned with future risks and public protection. Although punitive in its effect, with far reaching consequences for the offender on whom it is imposed, strictly speaking, it does not represent punishment for past offending…when the information before the court is evaluated, for the purposes of this sentence, the decision is directed not to the past, but to the future, and the future protection of the public.”

[8]Archbold News, Issue dated 6 June 2008, includes a feature by Dr David Thomas QC entitled “IPP Amended”. The author is in his characteristic, irrepressible form, and unsurprisingly so: long ago before the 2003 Act itself came into force, he anticipated that the amending provisions now found in the 2008 Act, or something very like them, would inevitably be required. Events have proved him right. We are grateful to him for his commentary, and begin by recording section 225 of the 2003 Act in its amended form, and as modified by the Criminal Justice Act 2003 (Sentencing) (Transitory Provisions) Order 2005 (SI 2005 No. 643) and the Criminal Justice and Immigration Act 2008 (Transitory Provisions) Order 2008 (SI 2008 No. 1587). “(1) This section applies where(a) a person aged 18 or over is convicted of a serious office committed after the commencement of this section, and

(b) 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. (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 or, in the case of a person aged at least 18 but under 21, a sentence of custody for life (3) In a case not falling within sub-section (2), the court may impose a sentence of imprisonment for public protection or, in the case of a person aged at least 18 but under 21, a sentence of detention in a young offender institution for public protection if the condition in sub-section (3A) or in sub-section (3B) is met. (3A)The condition is this sub-section is that, at the time when the offence was committed, the offender had been convicted in any part of the United Kingdom of an offence specified in Schedule 15A. (3B)The condition in this sub-section is that the notional minimum term is at least 2 years. (3C) The notional minimum term is that part of the sentence that the court would specify under section 82A(2) of the Sentencing Act (determination of tariff) if it imposed a sentence of imprisonment for public protection but was required to disregard the matter mentioned in section 82A(3)(b).” The Sentencing Act is the Powers of Criminal Courts (Sentencing) Act 2000. Section 82A (3) (b) addresses the now familiar allowance for time spent on remand. (a) a person aged 18 or over is convicted of a serious office committed after the commencement of this section, and (b) 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. (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,

[9]The first critical amendment to section 225 is found in sub-section (3). The obligation to impose a sentence of imprisonment for public protection when the statutory conditions are fulfilled is converted into a discretion to do so. In any event it may not be imposed unless one or other of two new and pre-conditions is also established. Therefore the first question which arises for decision is whether the court is “of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission of further specified offences likely to be committed by the offender”. This over-arching consideration is unchanged. Absent such risk, no question of imprisonment for public protection can arise. The existing jurisprudence on this issue is untouched by the amending provisions.

[10]Condition 3A (as we shall describe the relevant sub-section) is self-explanatory. The significant difference is that the list of offences specified in schedule 15A of the 2008 Act is much shorter than the original list of “specified offences” in schedule 15 and effectively is confined to very grave offences indeed. Where the offender’s previous convictions include one of the offences now specified in schedule 15A, the sentence of imprisonment for public protection becomes available irrespective of the seriousness of the latest offence, provided always that the court is satisfied that the public is at the significant risk specified in section 225(1) (b).

[11]Condition 3A stands distinct from sub-section 3B. Condition 3B requires that the notional minimum term should be at least 2 years’ imprisonment (or appropriate custodial order for a young offender). That condition does not form part of condition 3A. Accordingly if condition 3A is established, an order of imprisonment for public protection may be imposed if the over-arching consideration is established, whether or not such a notional minimum term would be appropriate. However, unless condition 3A is established, an order of imprisonment for public protection may not be imposed under condition 3B unless the offence justifies the specified notional minimum term, even if there is a significant risk of serious harm.

[12]In such cases, courts will no doubt ensure that longer than appropriate sentences are not imposed in order to avoid the restriction created by condition 3B. Section 153 (2) of the Criminal Justice Act 2003 remains in force, and any custodial sentence must “…be for the shortest term (not exceeding the permitted maximum) that in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it.” The same caution will be required where the defendant has been convicted of or admitted a number of offences. There was some discussion before us whether the notional minimum term might be established by the aggregation of a series of sentences of less than 4 years imprisonment, to reach a sentence in excess of that figure (then halved to achieve the notional minimum term) or whether the power to make the order on the basis of condition 3B requires a sentence of at least 4 years to be imposed on at least one offence. In effect, this question is whether the totality of the offending may be reflected in the notional term when a sentence of imprisonment for public protection is under consideration.

[13]The length of the minimum term is governed by section 82A(3) of the 2000 Acts which for present purposes is not affected by section 19 of the 2008 Act. Section 82A(3)(a) provides that the determination of the “tariff” should reflect “…(a) the seriousness of the offence, or the combination of the offence and one or more offences associated with it”, but disregarding the credit which would normally be due for time already spent in custody. We have already recited the way in which an associated offence is defined for these purposes (5 above). The definition therefore includes both “ordinary” specified offences, and non-specified offences. Consideration of these statutory provisions led the court to a number of cases, such as R v O’Brien

[2006] EWCA Crim 1741

and R v O’Halloran

[2006] EWCA Crim 3148

to conclude that the combined totality of the offending should be reflected in the assessment of the notional term for the purposes of condition 3B. The amending legislation in the 2008 Act was enacted in the context of existing jurisprudence. If any change of practice had been intended, some indication to that effect would have been included in the amending statute. There is none. Moreover, if the offender’s overall criminality requires a sentence in excess of the minimum laid down in condition 3B, and the court is satisfied of the necessary risk, it would be illogical for the protective powers inherent in imprisonment for public protection to be unavailable. Accordingly, condition 3B may be established notwithstanding the absence of an individual offence for which a 4 year term would be appropriate. We should perhaps add that section 225(3)C excludes any deduction for the purposes of time spent on remand from the calculation of the minimum term for the purposes of condition 3B.

[14]Returning to the exercise of the court’s discretion, or more accurately, its judgment, whether a sentence of imprisonment for public protection should be passed when the necessary criteria are established, the court is entitled to and should have in mind all the alternative and cumulative methods of providing the necessary public protection against the risk posed by the individual offender. For example, structured around a determinate sentence, or indeed an extended sentence under section 227 of the Act, which we shall shortly address, a sexual offences prevention order, with appropriate conditions attached could form part of what we may colloquially describe as the total protective sentencing package. Apart from the discretionary sentence of life imprisonment, imprisonment for public protection when the necessary conditions are fulfilled, is the most draconian sentence available to the court. If they are, we re-emphasise that the primary question is the nature and extent of the risk posed by the individual offender, and the most appropriate method of addressing that risk and providing public protection. If what we have described as the overall sentencing package provides appropriate protection, imprisonment for public protection should not be imposed.

[15]In another of the present group of cases, Andrews, the judge specifically addressed the question of imprisonment for public protection, and suggested that three criteria should be present before the now discretionary sentence is imposed. First, that no other form of available sentence would be appropriate, second, that the sentence should be proportionate to the gravity of the offending, and third, that the sentence was necessary to serve the public interest.

[16]We are grateful to Judge Findlay Baker QC for his analysis, and indeed for explaining in such detail why an extended sentence would be appropriate in the particular case of Andrews, a view with which we agree. However we have examined the three criteria which he addressed in his sentencing observations. On analysis, the first and third considerations, although different, address the same broad problem of the connection between the risk posed by the offender and the necessary protective element in the sentence. In the sense that, apart from the discretionary sentence of life imprisonment, imprisonment for public protection is the last resort, and that what we have described as the overall sentencing package may be sufficient to meet the risk posed by the offender, and provided it does so, the public interest is served accordingly, we agree with the judge.

[17]We are however more troubled by what he described as his reluctance “to impose an indefinite sentence for a crime which, though obviously of the gravest kind in its category, is not one in which harm was desired or intended”. That approach influenced him on the element of proportionality. Our reservations arise in part from the terms of section 143 of the 2003 Act which provide that, when considering the seriousness of any offence, the court must address the offender’s “culpability in committing the offence and any harm which the offender has caused, was intended to cause, or might foreseeably have caused”, and in part because, as we have emphasised, the issue remains the risk to the public, not simply what the offender desired or intended. Thus, for example, a reckless offender, or an offender with little or no insight into the consequences of his actions, may represent a significant risk to the public. In short, an order of imprisonment for public protection may be fully justified notwithstanding that, in the broadest sense, the offender did not intend or desire the outcome of his actions. Moreover, the proportionality issue is at least in part addressed by conditions 3A and 3B themselves, and by the removal of the previous statutory assumption relating to the assessment of dangerousness in section 229. If the harm consequent on any individual offence was not intended or desired by the offender, then, in the context of condition 3B, a determinate sentence of 4 years or more imprisonment is less likely to be appropriate. On the other hand, a relatively minor offence may well reignite concern about the element of public danger posed by a defendant who has already committed one of the very serious offences identified in condition 3A. These considerations are all relevant to the court’s decision. Extended Sentence

[18]As amended section 227, and as modified by the two statutory instruments containing transitory provisions to which we have earlier made reference now reads:

“(1) This section applies where (a) a person aged 18 or over is convicted of a specified offence committed after the commencement of this section, and (b) the court considers that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences, but (c) the court is not required by section 225(2) to impose a sentence of imprisonment for life or, in the case of a person aged at least 18 but under 21, a sentence of custody for life.” (2) The court may impose on the offender an extended sentence of imprisonment or, in the case of a person aged at least 18 but under 21, an extended sentence of detention in a young offender institution if the condition in sub-section (2A) or the condition in sub-section (2B) is met. (2A) The condition in this sub-section is that, at the time when the offence was committed, the offender had been convicted in any part of the United Kingdom of an offence specified in schedule 15A (2B) The condition in this sub-section is that, if the court were to impose an extended sentence of imprisonment, the term or in the case of an offender aged at least 18 but under 21, an extended sentence of detention in a young offender institution, it would specify as the appropriate custodial term would be at least 4 years. (2C) An extended sentence of imprisonment or, in the case of an offender aged at least 18 but under 21, an extended sentence of detention in a young offender institution is a sentence of imprisonment or detention in a young offender institution the term of which is equal to the aggregate of (d) The appropriate custodial term, and (e) A further period (“the extension period”) for which the offender is to be subject to a licence and is of such length as the court considers necessary for the purpose of protecting members of the public from serious harm occasioned by the commission by him of further specified offences….”

We need not recite the remaining provisions. (a) a person aged 18 or over is convicted of a specified offence committed after the commencement of this section, and (b) the court considers that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences, but (c) the court is not required by section 225(2) to impose a sentence of imprisonment for life or, in the case of a person aged at least 18 but under 21, a sentence of custody for life.” (d) The appropriate custodial term, and (e) A further period (“the extension period”) for which the offender is to be subject to a licence and is of such length as the court considers necessary for the purpose of protecting members of the public from serious harm occasioned by the commission by him of further specified offences….”

[19]In many ways the new conditions correspond to those which now apply to imprisonment for public protection. For example, consistently with the new regime the mandatory requirements relating to an extended sentence have been replaced by a discretionary provision involving the exercise of the court’s judgment on the basis of all the relevant information. Where they do, we shall not comment further on them. However, Dr Thomas points out that “the most important change” is perhaps “the least obvious at first sight”. The extended sentence is no longer limited to “specified offences” which are not also “serious”, that is offences punishable with a maximum of less than 10 years’ imprisonment. Where the offence is indeed a “serious specified offence”, the options of both imprisonment for public protection and an extended sentence are now available.

[20]Dr Thomas identified two particular features of potential importance. The first is the difficult problem of identifying the dividing line between imprisonment for public protection and an extended sentence for a violent or sexual offence. The short and deceptively simple answer is provided by our earlier reasoning. As we have emphasised, imprisonment for public protection is the last but one resort when dealing with a dangerous offender and, subject to the discretionary life sentence, is the most onerous of the protective provisions. In short, therefore, if an extended sentence, with if required the additional support of other orders, can achieve appropriate public protection against the risk posed by the individual offender, the extended sentence rather than imprisonment for public protection should be ordered. That is a fact specific decision. The second feature identified by Dr Thomas, effectively at the opposite end of the spectrum, is to recognise that there will be some offenders whose persistent repetitive offending might have been dealt with by way of an extended sentence who will fall outside the new provisions. That seems logical. Such an offender, whatever the nuisance he represents, would not present a significant risk of serious harm to the public. The individual who does not pose such risk should be dealt with by an appropriate determinate sentence or community order to which additional protective conditions may be attached.

[21]Before we address the individual cases, as briefly as we may, we acknowledge the assistance provided to us by Mr P Wright QC on behalf of the Crown in both his written submissions, prepared with Mr Glasgow, and the oral submissions, as and when specific issues arose.

[22]We draw attention to the normal requirement that the victims of sexual offences should not be identified. This consideration applies to C , CO , P , D , and W . P C

[23]PC is 42 years old. On 22nd May 2008 he was convicted at Guildford Crown Court of serious sexual assaults on 5 girls, one was his daughter. He absconded after the jury had retired. He was arrested in Spain and extradited to the United Kingdom. He was subsequently convicted of a Bail Act offence.

[24]On 18 July 2008 he was sentenced to a total determinate sentence of 7 years’ imprisonment by His Honour Judge Addison. He was ordered to sign onto the Sex Offenders Register indefinitely, but no sexual offences prevention order was made.

[25]The complainants were all known to the offender as family friends. Four of them were well known to each other. However the first girl, K who was 10 or 11 years old when she was assaulted, was not known to the other complainants. The offender left the family home when his daughter, J, born in September 1989, was a baby and had no contact with her until she wrote to him when she was 14 years old. In the meantime he married Samantha Hulme, and they lived in Wales with her son Lewis and their daughter Katrina. K was a friend of Lewis. Count 1 covered an incident of digital penetration during 1998 when she had a sleepover at the offender’s home. The incident occurred late at night when she was watching television on her own. She did not tell anyone about the assault at the time. At her next stayover, when the offender entered her bedroom and touched her, she indicated that he should not continue, and he left her alone. She never stayed at the home again. She only saw the offender on one or two further occasions. The incident was not reported to the police until 2003. By that time he offender had separated from Samantha Hulme and moved to an address in Surrey where he formed a relationship with Michelle Johnson. Between January 2005 and April 2007 they had 3 daughters. The offender was arrested in 2004 following the allegation made by K. He was interviewed and denied the offence. K was a reluctant witness. The offender was not charged. She was contacted by the police when the other offences came to light and she then agreed to be a witness.

[26]J got in touch with the offender in late 2004. In September 2005 when she turned 16 she moved in with her father and Michelle Johnson. She did not know of K and she was unaware of any allegation of sexual assault.

[27]The offences covered by counts 2-9 related to a cousin of the offender’s partner Michelle Johnson, CH. It was a particularly aggravating feature of the offender’s behaviour towards this girl that he knew that when she was 9 years old she had been raped by a stranger and that he, the offender, had taken her to counselling which it was hoped would enable her to come to terms with what had happened. She was sexually assaulted by the offender in 2004 when she was 13 years old. Count 2 related to an incident when she and her brother were left in the offender’s care while her parents were on holiday. One evening when the offender and CH were alone together he offered to massage her. While doing so he touched her breasts, and then apologised and said he had not meant to do it. Counts 3 and 4 related to an incident when the offender was driving CH back to her home in Surrey after a visit to his daughter in Wales. He pulled over to a service station. Despite her objections he began to kiss her, and pulled her trousers down. There was digital and oral penetration. She tried to stop him and push him away and eventually he did so. She was 14 or 15 years old at the time. Count 5 related to an incident in January 2005, when the offender’s wife was in hospital giving birth to their child. CH was staying with the offender’s daughter in her room. She slept on the bottom bunk bed. While the girls were asleep he came into their room and touched CH’s breasts. He was disturbed when J made a noise, but he later returned, and put his fingers into CH’s vagina. Count 6 occurred during another stayover at the offender’s home. She was doing her homework when the offender entered the room. He started to kiss and cuddle her. She told him to stop. He unzipped his trousers, told CH to put his penis in her mouth and suck it. He forced his penis into her mouth and held her head when she refused to do so. He ignored her pleas and ejaculated into her mouth. Subsequently he told CH not to tell anyone in case he got into trouble.

[28]Count 7 occurred when CH was asleep in J’s room and was woken in the early morning. He took her into his office and there began to kiss and cuddle her. He had sexual intercourse with her without her consent. He was however only charged with sexual activity with a child, contrary to section 9(1) and (2) of the Sexual Offences Act 2003. This incident occurred between September and December 2005.

[29]Count 8 was a similar incident, except that it culminated in sexual intercourse when she was pressed up against the side wall of the house. This incident occurred between September 2005 and June 2006.

[30]The final count involving CH occurred when she was lying on a sofa with a duvet covering her legs. Notwithstanding Michelle Johnson’s presence, the offender sat next to her and put his hands under the duvet and digitally penetrated her. CH ignored what was happening and pretended to be watching television.

[31]Counts 10 and 11 related to events in January 2006. L was J’s friend. During a sleepover when she was 14 years old he went into her room, and sexually assaulted her by touching her breast under her night clothes, biting it, and digitally penetrating her vagina. The offender stopped when he heard his baby crying in another room. L wrote a sealed letter to her mother describing what had happened.

[32]Counts 12 and 14 occurred in May 2006. The victim was S. On 2 nights during May 2006 he offender sexually assaulted S while she was in bed. On the first occasion he went into her bedroom and kissed her, putting his tongue into her mouth. On the second he touched and kissed her breasts while she was in bed.

[33]The victim in count 16 was J herself. Sometime between September and December 2005, a couple of weeks after J had moved in to live with him and his wife, she kissed him and Michelle Johnson goodnight and went to her bedroom. In the early hours the offender came to her room. He removed the duvet. J woke up to find the offender standing over her, and touching her breasts underneath her pyjama top. She turned over to try and get him to stop, but he continued for another 10 minutes, masturbating as he touched her. She pretended to be asleep until he left. She was frightened and did not tell anyone what had happened.

[34]No further recitation of these facts is needed. The judge recorded that the offender had shown no remorse whatever for his offences. When counsel mitigated the judge indicated that he would be influenced in his sentencing decision by what he described as the offender’s family circumstances which “enabled him to meet these various girls”. The judge did not know “what opportunity for doing so” would arise in the future. He did not think that a pre-sentence report would assist.

[35]A report has been provided for us. The offender simply does not acknowledge any sexual offending. In a carefully considered report the writer assessed him as “presenting a high risk of causing serious harm to children through sexual offending and a high risk of committing similar offences in the future”. She believed that he had behaved in “a calculated and predatory manner towards the victims”, creating and using the opportunities he created both in order to come into contact with and then to assault the children. Directing her attention to the statutory criteria she believed that he presented “a significant risk of causing further serious harm to children” by committing further specified sexual offences.

[36]The offender was convicted of serious sexual offences against immature girls who did not in fact consent to any sexual contact. He was in a position of trust with all of them, but with none more than his own daughter. It was in truth a pattern of abuse over an 8 year period, in which the offending was planned in the sense that the offender created an environment in which he had access to the victims. In the judgment of this court this was a predatory offender, grooming his victims, and then assaulting them. All were caused significant psychological damage, and in the case of CH, as already recorded, his behaviour was unusually callous and for that matter prolonged. The stark reality is that he has an obsessive sexual interest in underage girls, and there is nothing in the evidence or information before the court to suggest that he has yet even begun to reflect on the possibility of seeking to cure himself of his obsession, and none to suggest that his obsession is curing itself. In short, we entirely agree with the assessment of the writer of the report.

[37]Notwithstanding that the sentencing judge presided over the trial, he has provided no explanation in his sentencing observations which identify any particular feature or features of this case which became apparent to him at trial, which might not otherwise have been apparent from the papers. He simply said that for the reasons he had given, and “having regard to the change in the law”, he did not consider that there was a risk of serious harm from the commission of further specified offences. When he concluded his sentencing remarks, he was invited to consider a sexual offences prevention order. He said that he had considered that possibility, but decided that one should not be made. Perhaps the most surprising feature of the judge’s reasoning is that the appellant will lack for opportunity to meet young girls. Quite apart from the fact that predatory offenders of this kind are frequently able to make the opportunities they seek for such contact, this particular offender is the father of 3 young daughters, who will grow up and who will have friends of their own age.

[38]There is no mitigation, save and except that, although the offender has previous convictions, none is for an offence of a sexual nature.

[39]In our judgment this sentence was unduly lenient, and significantly so. This is a serious sexual offender, who has shown not the slightest intention to curb his exploitative behaviour. The conditions for making an order of imprisonment for public protection are established. No other method of achieving the necessary level of protection is available. Accordingly such an order should be and will now be made. In assessing the notional minimum term, we have concluded that the overall criminality in this case required a total determinate sentence of at least 12 years’ imprisonment. Accordingly, on counts 7-12, 12-14 and 16, which involve offences committed after 4 April 2005, there will be concurrent sentences of imprisonment for public protection with a minimum term at 6 years’ imprisonment.

[40]Counts 1-5 inclusive were committed before 4 April 2006 and count 6 alleged an offence committed between 1 January 2005 and 6 September 2005. As the date when this offence was committed was not established in the course of the trial, it should be treated as if it too was committed before 4 April 2005.

[41]The appropriate approach to sentencing for offences falling within the dangerous offenders provisions of the 2003 Act, some committed before and some after 4 April 2005 is addressed in R v Stannard and others. As the court observes, to impose no separate penalty for a relatively minor offence when the offender is sentenced for more serious offences is sometimes a convenient was of avoiding some of the extraordinary complexity of current sentencing provisions. But the court goes on to say that it can rarely be appropriate for a serious offence to be treated in the same way. Speaking generally every victim of a serious or specified offence should be vindicated, and an order for no separate penalty will tend to convey to the victim that the court did not fully address the impact of the crime on him or her.

[42]Counts 1 - 6 addressed offences of a very serious nature, which were committed over a considerable period. Furthermore the victim in relation to count 1 did not feature in any of the remaining counts. In our judgment there must be determinate sentences in relation to those counts, notwithstanding the concurrent sentences of imprisonment for public protection. Sentences of 3 years’ imprisonment were imposed on count 1, 1 year on count 2, 3 years’ on count 3 and 4, 2 years’ on count 5, and 4 years’ on count 6, all to be served concurrently. We shall not vary the terms of the sentences, but we direct that the sentences imposed on counts 2 – 6 inclusive, although to be served concurrently with each other, should be served consecutively to the sentence imposed on count 1. This results in a total sentence of 7 years imprisonment in relation to these counts.

[43]A consecutive term of 6 months imprisonment was imposed for the offender’s failure to surrender to bail on the last day of the trial. That sentence will stand, and will be served consecutively to the total of 7 years imprisonment to be served on counts 1 – 6. The total term of 7½ years’ imprisonment will be served concurrently with the sentences of imprisonment for public protection imposed.

[44]We shall also make a sexual offences prevention order for an indefinite period. Under its terms the offender will be prohibited from the following: 1. Having any contact, directly or indirectly, with JC , CH, LB, SF, AR and K J. 2. Speaking or communicating, directly or indirectly, about matters of a personal nature with or befriending any female who is, or reasonably appears to be, under the age of 18 or attempting to do any of these things whether by himself or with anyone else. 3. Allowing any female under the age of 18 into or to remain in his home or any other premises or private vehicle under his control. 4. Being in the home of any female under the age of 18 if that person is there, unless in the presence of that person’s parent or legal guardian who is aware of this order. 5. Working, whether paid or not, in any job or taking part in any recreational activity, which by its nature involves substantial regular or any form of unsupervised contact with any female under the age of 18, unless with the prior written consent of the West Surrey Area Chief Inspector of the Surrey Police, or the appropriate equivalent officer for that, or any other police area, where the offender may from time to time reside. 6. Engaging in unsupervised contact with EC , NC and EC other than as authorised by Surrey Social Services or an equivalent authority in the event of the children residing elsewhere. PCO

[45]PCO is 51 years old, a man of previous good character with positive references to support him. However on 28 April 2008 in the Crown Court at Canterbury before Her Honour Judge W he pleaded guilty to rape (count 1), distributing indecent photographs of children (counts 2-11) making indecent photographs of a child (counts 12-14) and having indecent photographs of a child (counts 13-16). He was sentenced to 8 years’ imprisonment for rape, and 2 years’ imprisonment consecutively to count 1 for the distribution offences. Concurrent sentences of 1 year’s imprisonment were imposed on the remaining counts. In total therefore he was sentenced to 10 years’ imprisonment. A sexual offences prevention order was made and he was disqualified from working with children. The time spent on remand was ordered to count towards the sentence.

[46]The facts of this application for leave to appeal against sentence can be briefly summarised. In May 2007 a man was arrested for distributing indecent images of children. It was subsequently established that he had corresponded with, among others, the applicant, whose home was consequently searched. He and his wife were present. He was asked if he had any indecent images of children and he replied that he had, on his computer. He said that he had been stupid but had no sexual interest in children, and promised to co-operate fully. Shortly afterwards he handed the officers two CDs and a pen drive storage. His computer equipment was seized. He was arrested.

[47]Before his computer and equipment were examined, he was interviewed. He admitted that initially he had been sent indecent images of children which were contained in blocks of adult material, and then he had been sent more and more indecent images of children. He had been stupid and had exchanged images with other users.

[48]When his computer was examined 10459 indecent images of children were found, 5063 at level 1, 1033 at level 2, 2434 and level 3, 1855 at level 4 and 74 at level 5. Importantly for present purposes, there was also a level 4 film clip which was a descriptive step by step guide on how sexually to abuse a child from birth without being caught. On the pen drive 345 indecent images were found, 181 at level 1, 28 at level 2, 56 at level 3, and 71 at level 4. On the CDs 1150 indecent images were found, of which 424 at level 1, 262 at level 2, 210 at level 3, 247 at level 4 and 7 at level 5.

[49]The most significant finds however were 16 images of a young baby. The baby was the applicant’s step-granddaughter, aged about 18 months at the time. In the photographs she appeared to be asleep and in a number of them the applicant’s erect penis was close to her face. In another photograph her hand was around the erect penis, and in one photograph the erect penis was penetrating her mouth. These images had all been taken by the applicant.

[50]On 29 April 2008, the applicant was arrested on suspicion of the rape of a child. He responded, “what rape? I don’t believe it. Rape?” When the images of his step-granddaughter and his penis were shown to him, he declined to comment.

[51]Count 1 related to the act of oral rape depicted in the photographs. Counts 2-11 related to the applicant’s distribution of indecent images, counts 12-14 to the images of his step-granddaughter, count 15 to the possession of the guide to the sexual abuse of a child, and counts 16 and 17 to the images found on the pen drive and the CDs respectively.

[52]A basis of plea was prepared in which it was asserted that the photographs of the applicant and his step-granddaughter were made following pressure from a male who he came to know through an internet chatroom. It was agreed that there was a single incident of penile penetration of the baby’s mouth which was, as the times recorded on the photographs showed, short-lived. No physical harm was done to the child.

[53]The psychiatric report suggested that the applicant was not suffering from any mental disorder. He appeared to be genuinely repulsed and disgusted by his actions and did not present a significant risk of committing further serious specified offences.

[54]The pre-sentence report recorded expressions of remorse but suggested that the applicant was still in denial about the sexual motivation for his offending. Until he came to terms with the fact that his feelings and thoughts were distorted, the risk of re-offending was high.

[55]In her sentencing remarks the judge was prepared to pass sentence on the basis of the plea tendered by the applicant, but recorded that there was no doubt that the applicant had throughout sought to minimise his own conduct. He was indeed still in denial about the horrible nature of the offences he had committed. His behaviour was not only disgusting, but totally unacceptable, and the child’s parents would have been left with a deep sense of revulsion at his gross breach of trust. In addition he had shared child pornography with other paedophiles. Although he denied any sexual motivation for these offences, he was deluding himself. Although the rape was a single incident, the pornography offences represented a continuous course of conduct. The judge concluded that the applicant was dangerous, but that a long determinate sentence would be sufficient to deal with the risk he represented.

[56]The submission on CO’s behalf was that the sentence on count 1 was manifestly excessive. It failed to reflect his early guilty plea and positive good character, the limited nature of the penetration which was short-lived, the basis of plea, and, the improbability of any psychological harm to the child because of her age. This was an isolated offence when he applicant had himself been subject to blackmailing pressure.

[57]It was further contended that the judge was wrong to conclude that the applicant was dangerous, but even if the conclusion were correct, the protective element of the sentence could have been well achieved by a shorter custodial period with an extended licence. Finally it was contended that examined as a totality the sentence was excessive.

[58]Notwithstanding the conclusion that the applicant was dangerous (one with which this court would not for one moment interfere) the decision that imprisonment or public protection or an extended sentence should not be imposed fell properly within the ambit of the judge’s discretion. She carefully addressed the issue of public protection by reference to the lengthy custodial sentence to be served by the applicant, together with the various orders designed to add to the public safety. In short, she carefully reflected on the most appropriate way in which to achieve public protection from the risk posed by this particular offender.

[59]Our conclusion is that this was a severe sentence for a very serious offence. It is correct that this rape was different from baby rape cases which involve penetration of the baby’s vagina or anus. True it may be that the baby herself was not aware of, or may not have appreciated what was happening to her. This, however, was a dreadful violation of a baby, committed by a man in a position of trust, who had become obsessed with child pornography, which he was making and distributing. This application is refused RP

[60]RP is 74 years old, and he has no previous convictions. That short statement disguises the fact that for a period of 40 years or so he was committing serious sexual offences without ever being caught.

[61]On 14 May 2008 at Bradford Crown Court he pleaded guilty to counts 12 and 13 in an 18 count indictment. On the day of the trial, 16 June 2008, on re-arraignment, he pleaded guilty to counts 1-11 and 14-18. The allegations were serious sexual offences. The victims were all members of his family, and included his two daughters, two granddaughters, and a great granddaughter.

[62]He was sentenced to a total of 20 years’ imprisonment, and a sexual offences prevention order was made. The precise details of the sentences do not matter for present purposes. This is an application for leave to appeal against sentence.

[63]The first victim was the applicant’s daughter by his first marriage. After his divorce from her mother, the child would visit the applicant and his second wife and family during school holidays. When she was 11 years old in 1967 or 1968 he lifted her nightgown and inserted his finger in her vagina. After he removed his finger, she pushed him away and left the room. The second victim was the applicant’s elder daughter from his second marriage. She was born in December 1962. When she was about 5 years old she called him into her room for a cuddle. During the cuddle he rubbed her vagina with his hand on at least two occasions. Thereafter, from the age of about 10 to 15 years, when she was alone in the house, he would rape her, usually by forcing her to bend over the banisters on the landing so that he could penetrate her. This conduct occurred regularly, sometimes when she was menstruating.

[64]The third victim was the daughter of the second victim, and she was aged 14 in 2000/2001 when the applicant began to fondle her breasts and vagina under her clothing when she visited him. This sexual abuse continued until she was 17 years old.

[65]The fourth victim was the daughter of one of the applicant’s other daughters. In 2004, when she was 13 years old, he started buying her alcoholic drinks. He would take her for drives in his car and stop in lay-bys. There he would insert his finger into her vagina and place her hands on his penis and ask her to make it hard. On one occasion he forced her head down onto his penis so that she would lick it. On other occasions similar offences occurred at home. Then, on three occasions, when she was aged 14 and 15, he had sexual intercourse with her at his home and paid her for it. She estimated that he had paid her £300 in total.

[66]The final victim was the applicant’s great granddaughter who, aged between 8 and 9 years, would stay at his home on a Saturday night. While her grandmother was taking a shower she would get into his bed. He would feel her chest and the area of her breasts.

[67]The offences came to light when the father of the fourth victim became aware that his daughter had disclosed details of the abuse to her friends. The police were informed. The applicant was arrested. He denied the offences.

[68]The psychiatric report indicated that there was a low risk of future re-offending because the applicant had been denied access to most of his family members. That conclusion addressed not inclination, but opportunity. The pre-sentence report also concluded that there was a low risk of re-offending, but acknowledged a high risk of harm to young females within the family if he were allowed renewed contact with them. A lengthy period of intervention would be needed to address his cognitive defects and entrenched deviancy. He hugely minimised his offending and displayed no insight into the impact of his activities on his victims.

[69]A medical report was before the judge which indicated a variety of different conditions consistent with his age.

[70]The judge did not mince his words. He regarded the applicant as a “disgrace to the human race”, and pointed out that the catalogue of crime which the court had heard could not begin “to describe the terrible conditions these children had to endure during their early life”. The breaches of trust were simply “unimaginable to the ordinary healthy mind”.

[71]The judge intended his sentence not only to reflect society’s horror at these events, but also “to make sure that you do not ever leave prison alive”. He went on “I have considered life imprisonment or a determinate sentence, I do not want there to be a life imprisonment situation where somebody might think that you should be released”. Later, in an exchange with counsel, he said that he would make a sexual offences prevention order “just in case some unbelievable thing happens and someone releases him”.

[72]On the applicant’s behalf it is suggested that the sentence was well in excess of the starting point indicated in the appropriate guidelines issued by the Sentencing Guidelines Council. As the starting point for a first time offender after a trial was 15 years, the sentence was wrong in principle.

[73]The problem with this submission is that there are occasions, and this is one, where it is difficult for any guideline to encompass depravity on this scale. It demonstrates, as a classic example, the need, however carefully structured guidelines may be, for judges to apply them with sensible flexibility. The scale of this offender’s sexual offending, the violation of the children in his family, all of whom are entitled to look to him for love and protection, went on for generation after generation. There was no realistic basis for treating him as a man of previous good character when he had been offending for 40 years or more, and in any event, repeated conduct on the scale which took place here well exceeded what may be described as the normal level of criminality addressed by the guidelines. Justice would not have been done if the judge had regarded himself as bound by a guideline which did not encompass the true extent of the applicant’s criminality.

[74]There is however a single criticism of the judge. If, as he clearly intended, the offender was to be incarcerated for an indefinite period, then a sentence of life imprisonment or imprisonment for public protection should have been ordered, and an assessment of the appropriate determinate term used to calculate the minimum term. The judge did not find any specific reason to hold back from making such an order. He was concerned to ensure that the applicant should not be released. An order to that effect rather than a determinate sentence should have been made, and the notional minimum term fixed in accordance with the judge’s assessment of the determinate term.

[75]As a matter of law we cannot interfere with this sentence in order now to impose a sentence of life imprisonment or imprisonment for public protection.

[76]This application is dismissed. SD

[77]SD is 43 years old. He has no previous conviction. On 27 June 2008 in the Crown Court at Teesside he pleaded guilty to causing or inciting a child to engage in sexual activity (count 1) rape of a child under 13 years of age (count 2) and sexual assault of the same child (count 3). The victim in each of these crimes was his daughter.

[78]On 25 July 2008 he was sentenced by His Honour Judge Bowers to imprisonment for public protection and a minimum term of 4 years and 6 months, less 92 days served on remand, was ordered. He was disqualified from working with children and a sexual offences prevention order for an indefinite period was made. This is an application for leave to appeal against sentence.

[79]The applicant’s 12 year old daughter was apparently rather naive, and certainly not very knowing about sexual matters. The first offence was covered by count 3. The applicant told his daughter that they had to get closer, and he told her to remove her top. She did so, he lifted up his clothes. He hugged her, but made no direct attempt to remove her bra. However just over two weeks later, when they were in the living room of their house, the complainant was wearing a nighty and dressing gown. The applicant made her remove her dressing gown. He removed his shorts and ordered her to sit on his lap. When she did so he penetrated her. The final incident occurred when the child went to her father and told him she wanted to go to Tesco with a friend and asked him for some money. He replied “only if you wank me”. He then forced her hand down his trousers and moved her hand up and down his penis. The activity was interrupted when the daughter’s friend arrived.

[80]When the applicant became aware of these allegations he took an overdose, and in interview he made partial admissions.

[81]The pre-sentence report recorded the applicant’s belief that the abuse of his daughter started because he wanted to bond emotionally with her, and his motivation was to achieve an improvement in his relationship with her. He denied that there was any sexual motivation or gratification, and he said that he never intended to cause any harm. The view of the writer of the report was that he presented a risk of harm.

[82]The judge recorded that the applicant had targeted his own daughter for sexual abuse. He regarded these offences as very serious, and concluded that there was a significant risk of serious harm. He was concerned not only about the sexual abuse itself, but the applicant’s distorted and warped thinking, and in particular his denial of any sexual motivation or gratification. He concluded that a sentence of imprisonment for public protection was appropriate.

[83]It is said on his behalf that there were no grounds for concluding that the applicant posed a significant risk of serious harm, and that the ancillary orders, with a determinate sentence, would have been adequate to address his offending. There is however no basis for interfering with the judge’s conclusion that an order for imprisonment for public protection was appropriate. In short, the minimum term reflected this applicant’s criminality, and accordingly this application is refused PW

[84]PW is 38 years old. He has a previous conviction for a sexual offence which is relevant because it was committed at a time when some of the offences which now arise for consideration were occurring, and he was sentenced after the last of them was committed.

[85]On 13 June 2008 he pleaded guilty to count 5, indecent assault on a male person contrary to section 15(1) of the Sexual Offences Act 1956, count 6 and 7, indecency with a child contrary to section 1(1) of the Indecency with Children Act 1960, count 8, 9 and 10, sexual activity with a child contrary to section 9 (1) of the Sexual Offences Act 2003, count 14, travelling with the intention of meeting a child following sexual grooming contrary to section 15(1) of the Sexual Offences Act 2003 and count 16, possession of indecent photographs of a child contrary to section 160 of the Criminal Justice Act 1988.

[86]On 24 July 2008 he was sentenced by His Honour Judge Burford QC to 32 months’ imprisonment concurrent on counts 5, 6 and 7, 32 months’ imprisonment on counts 8, 9 and 10 concurrent inter se, but consecutive to the sentences on counts 5, 6 and 7, 16 months’ imprisonment consecutive on count 14, and 8 months’ imprisonment consecutive on counts 16. The total sentence was therefore 88 months’ imprisonment (7 years 4 months) and an indefinite sexual offences prevention order was made. Further orders relating to forfeiture and destruction of computer equipment and photographs were made. This is an appeal against sentence.

[87]The facts of this case can be summarised very briefly. The appellant targeted underage teenage boys over the internet. Knowing that they were underage he befriended and arranged to meet them, so as to engage in sexual activity. No force was ever used, and by the time sexual activity actually occurred, the boys accepted what happened without demur.

[88]The complainant in counts 5, 6 and 7 was JH, who was born in May 1988 and met the appellant in November 2003. He said, as was the case, that he was 15 years old, and the appellant said that he was only 24. A friendship developed. On about 5 occasions between January and April 2004 the appellant took the complainant to his shared house in Southampton. They cuddled in his bedroom and engaged in sexual activity. The counts were specimen counts reflecting oral sex by the two men on each other, and anal sex.

[89]Counts 8, 9 and 10 were similar. The complainant JF was born in October 1988. He created a profile on a social networking website, inviting gay men in the area to chat to him. The appellant frequently chatted with him and JF agreed to meet him. During the conversations he had made it clear that he was 15 years old and still at school. The counts reflected an occasion in June 2004 when mutual oral sex and anal sex occurred.

[90]The victim in count 14 was a boy, AN, born in December 1989 who met the appellant over the internet in April 2004. Their conversations took a sexual turn. AN made clear that he was under age, and the appellant indicated that he was not concerned about the lawfulness or otherwise of sex with under age boys. In April 2005 the appellant masturbated on his webcam while online with AN. They arranged to meet, but in fact AN had no intention of doing so and did not attend. It was however clear from the internet chat log that the appellant made every effort to meet up with him and that he had travelled to the arranged meeting place.

[91]Count 16 reflected a large number of indecent images of children, the majority of which were boys in a similar age range to the complainants in the other counts. These were recovered from the appellant’s desk top computer. There were 278 images of level 1, 85 at level 2, 2 at level 3 and 76 at level 4.

[92]The appellant was convicted in 2005 and sentenced to 18 months’ imprisonment and disqualified from working with children on conviction of offences of meeting a child following sexual grooming and sexual activity with that child. These convictions arose from activities similar to those already described.

[93]The pre-sentence report indicated that following this sentence, the appellant completed the sex offender treatment programme, and had made some positive progress. However the police offender management unit highlighted ongoing concerns about his behaviour. His views continued to be distorted, and he minimised his own responsibility. The risk of re-offending was medium. Reflecting the assessment of dangerousness, and the proper approach to it, the writer of the report indicated that there was nothing to suggest that the presumption of dangerousness was unreasonable.

[94]The remaining material before the judge included character references. In his sentencing remarks the judge accepted that the offences did not involve the use of force, but were aggravated by the clear disparity between the appellant and the various complainants. He lied about his own age, and persisted when he knew the actual ages of the complainants. He was highly skilled at grooming young boys in order create opportunities for sexual activity with them.

[95]The judge acknowledged the guilty plea, and gave full credit for it. He also acknowledged that since the offender had finished his previous sentence, no further offences had been committed. He accepted that although the appellant had developed a greater awareness of the impact of his offending, his views continued to be distorted and he tended to minimise the seriousness of the offences.

[96]The judge analysed the relevant statutory provisions as then newly in force. He identified count 14 as a serious specified offence, and count 16 as a specified offence. After considering the appropriate guideline from the Sentencing Guidelines Council he concluded that neither offence justified a determinate sentence of 4 years’ imprisonment. Accordingly a determinate sentence would be appropriate, and consecutive sentences would reflect the criminality perpetrated against each boy.

[97]The single ground of appeal was that the overall sentence, after a guilty plea, was manifestly excessive.

[98]Given the history we are disinclined to take issue with the judge’s conclusion that sentences of imprisonment for public protection or an extended sentence were inappropriate, although, we pause to observe that the decision should have reflected the offender’s overall criminality rather than focus exclusively, or virtually so on the post 4 April 2005 offences. In any event, even if we disagreed, we could not now impose such a sentence. (R v Reynolds and others).

[99]After careful reflection, we are persuaded that, examined as a totality and in the light of the sentence already served by the applicant, the sentence was manifestly excessive and should be reduced to 5 years’ imprisonment. That would reflect an overall sentence, taking account of the sentence already served, of 6½ years. The sentences on counts 5, 6 and 7 will be 24 months’ imprisonment, on counts 8, 9 and 10, 24 months’ imprisonment, on count 14 12 months’ imprisonment, all to run in the way ordered by Judge Burford, and the sentence 8 months count on 16 will be ordered to run concurrently rather than consecutively. To that extent this appeal is successful. The sexual offences prevention order will continue in force. Gareth Rickman

[100]Gareth Rickman is 27 years old. He already has an unenviable criminal record, having made 39 previous court appearances for 121 offences, in the period between 1994 and December 2007. The offences are many and varied, but they include offences of robbery, assault occasioning actual bodily harm, affray, assault on a constable, grievous bodily harm and racially aggravated harassment.

[101]On 23 June 2008 in the Crown Court at Newcastle before Her Honour Judge Bolton, at the last moment, he pleaded guilty to count 1, dangerous driving, counts 3, 5, 6 and 9, assault occasioning actual bodily harm, counts 7 and 10, criminal damage, and count 8 false imprisonment. On 22 July he was sentenced to imprisonment for public protection on count 8, with a minimum term fixed at 30 months. Concurrent sentences of imprisonment were imposed on the remaining counts, count 1, 12 months’ imprisonment, count 3, 12 months’, counts 5 and 6 18 months’ imprisonment were imposed on the remaining counts, count 1, 12 months’ imprisonment, count 3, 12 months’ imprisonment, counts 5 and 6 18 months’ imprisonment, count 9, 2 years’ imprisonment, counts 7 and 10 2 months’ imprisonment. Appropriate disqualification orders were made. This is an application for leave to appeal against sentence.

[102]This case involved serious domestic violence. In May 2006 the applicant and the complainant began a relationship. He soon moved into her home. Within a few months he had demonstrated that he was possessive, manipulative and violent. The complainant made numerous complaints to the police. When he promised that he would change, the complaints were withdrawn. Once a complaint was withdrawn, his violent conduct resumed.

[103]Count 1 occurred in April 2007 when the couple were driving home and his partner sought to discuss with him the way in which he had been treating her. He lost his temper. He deliberately reversed his car into some fencing, causing a significant amount of damage.

[104]In mid May 2007, in consequence of an unrelated police investigation, the appellant moved out of the complainant’s home, and she went to visit him. When she arrived he accused her of being a “grass” and assaulted her. She said that she wanted to go home. He struck her, abused her verbally and poured a drink over her. She managed to get away. She sought medical care.

[105]A month or so later they visited his mother. An argument began, and he assaulted her. She wanted to go home but he would not let her go, and the violence continued until his mother intervened. As a result of that assault, she sustained a broken nose.

[106]Another assault occurred shortly afterwards. On this occasion, after receiving dental treatment, she returned home. An electrician was working there. She borrowed a telephone from him to call the appellant. In the result he accused her of having an affair with the electrician. He head butted her, and when she tried to run away, he dragged her back by her hair.

[107]Unsurprisingly, the relationship was rapidly deteriorating, and on an occasion towards the end of July he threw paint around her home and damaged the soft furnishings. Count 7 related to a specific incident when he punched a hole in the door. Then, finally, on 31 July 2007, the applicant accused his partner of having an affair with his solicitor. He cut up her clothes and attacked her. He punched her, and cut out lumps of her hair, with a knife. He stabbed her leg and abdomen. She managed to get to the bathroom to try and clean herself up, but while she was in the bath the applicant entered, and used the knife to make marks on her skin. She was detained for between 12 and 18 hours. On the next day he decided to sell her car and he made her go with him to a number of garages for the purpose. Eventually she managed to escape from the car and ran to some nearby shops. A shopkeeper saw the state she was in and immediately called the police.

[108]The pre-sentence report recorded that the applicant attributed his outbursts of violence to his use of alcohol and crack cocaine. Although he felt that on occasion he had been provoked by the complainant, in all other respects he accepted full responsibility for his actions and expressed his regret for his behaviour and its impact on her. It appeared that in the past a former partner had been assaulted by the applicant, and it was recorded that a number of serious specified offences were included in his previous convictions. Unsurprisingly it was recorded that the applicant posed a high risk of re-offending with a high risk of serious harm.

[109]In her careful sentencing remarks the judge summarised the injuries inflicted by the applicant on the complainant. She concluded that he had developed an all enveloping power over her and that she was absolutely terrified of him. This was sustained domination of a young woman. She regarded the offences on 31st July as particularly serious, noting, rightly, that the way in which he prodded her with a knife while she was in a bath amounted to slow torture. The applicant’s record for violence was noted, and the court agreed with the assessment in the pre-sentence report that he presented a significant risk of serious harm to the public. In those circumstances, a sentence of imprisonment for public protection was required. In assessing the determinate term, the judge took account of the appropriate level of sentence for each individual offence, and although there was every justification for passing consecutive sentences, she decided that the determinate term should reflect the overall criminality.

[110]Her sentencing decision, and the process by which she reached her conclusion are criticised. It was suggested that imprisonment for public protection was inappropriate on the basis that it should be reserved for the most serious offences. None of the offences of which the applicant was convicted could properly be described as really serious offences. It was also suggested in written grounds that the judge erred in allowing her concern about when it would be safe to release the applicant to influence her sentencing decision.

[111]In our view the judge was entirely justified, and for the reasons she explained, to make an order for imprisonment for public protection. There was ample material to justify her conclusion. She carefully examined the facts of the applicant’s repeated offending, both in the context of his previous record and throughout his relationship with his partner, and the ordeal to which he had subjected her as a culmination of repeated acts of personal violence. An overall sentence of 5 years’ imprisonment as a determinate sentence in this case, with the notional minimum term calculated accordingly was within the appropriate range of sentence to reflect his criminality. This application is refused. Scott Andrews

[112]Scott Andrews is 35 years old. His previous convictions include two previous convictions for driving with excess alcohol, two for failing to provide a specimen, and two for driving while disqualified. On 10th January 2008, for yet another offence of failing to provide an appropriate specimen, he was sentenced to a community order with a requirement of supervision, and disqualified from driving for three years. Less than two months later he was driving again.

[113]On 16 June 2008 in the Crown Court at St Albans, before His Honour Judge Findlay-Baker QC, he pleaded guilty to driving while disqualified (count 2) and on re-arraignment, to causing death by dangerous driving (count1). On 25th July he was sentenced to an extended sentence of 14 years’ imprisonment, comprising a custodial term of 10 years’ imprisonment and an extension period of 4 years for causing death by dangerous driving. No separate penalty was imposed for driving while disqualified or for driving with excess alcohol, an offence committed under section 51 of the Crime and Disorder Act 1998. He was disqualified from driving for 14 years. An order for an extended re-test was made. The vehicle was forfeited, and time spent on remand was ordered to count towards his sentence. This is an application for leave to appeal against sentence.

[114]The facts of this case are virtually self-explanatory. The applicant, disqualified from driving, and less than two months into the community order imposed for failing to provide a specimen, was driving with excess alcohol. At about 3.20 on 5th March 2008, a young woman collected her 5 year old son from school and was walking him home. The route took her towards a hump back bridge in Watford. There the road narrowed to one lane, and access in each direction was controlled by traffic lights to ensure that only one vehicle was travelling over the bridge. Nearby, another young mother, and her young child were also walking. As she was walking over the bridge a car approached it from the north side, and as the lights were green in its favour, the driver proceeded to cross the bridge. The applicant was driving a van in the opposite direction. He went straight through the red lights facing him at some speed and there collided with the car which was lawfully on the bridge. His van then mounted the pavement and hit the young woman who was carried for some distance on its bonnet before she was thrown into the air. She landed some 18 metres from the point of impact. The applicant simply drove on and away, despite the efforts of another pedestrian to prevent him doing so. The emergency services were summoned. The young woman was pronounced dead shortly after arrival in hospital.

[115]The applicant was arrested at home some half an hour later. He admitted that he had been involved in an accident, but denied that he had struck anyone. A check revealed that he was disqualified. A breath test was conducted at the police station at 5.59pm some 2½ hours after the accident. On analysis the level of alcohol in his breath was found to be 108mg, by contrast with the legal limit of 35.

[116]When subsequently interviewed, the applicant admitted driving the van, but continued to deny that he was involved in a collision or mounting the pavement. He denied driving through a red light. He admitted that he was disqualified from driving. He explained that he was an alcoholic and that he drank half a bottle of wine every morning to steady his nerves. A psychiatric report confirmed that the applicant had a very severe alcohol dependency problem, requiring treatment. It recorded that the applicant had expressed remorse for his actions.

[117]The court was provided with, and we have ourselves read, some profoundly moving victim impact statements, not only from the mother of the deceased, and grandmother of the surviving boy, but also from the young woman, who like the child of the deceased and her own child, is lucky to be alive.

[118]The judge accurately summarised the facts. The applicant had driven too fast. He ignored a red light. He had taken the life of a young woman. At the time he was disqualified from driving. He was about 3 times over the drink/drive limit. These were extremely serious features of the case. His extensive criminal record with previous convictions for drink/driving offences and driving while disqualified added to the aggravating features. The judge noted that in his interview the applicant had admitted purchasing the van after he had been disqualified in January. Court orders which had been passed to protect the public from him and his driving and the possibility of harm occasioned by drink driving had been wilfully ignored.

[119]The judge was prepared to allow the credit for the guilty plea, but it came at a late stage, notwithstanding the overwhelming evidence and credit for the plea would therefore be limited to some extent. The judge concluded that the plea was unaccompanied by any real remorse. The judge accepted that the appellant was weak-willed rather than vicious, and that he had struggled with severe and chronic alcoholism over the years, but, despite the incident in which a young woman had been killed, he could find no evidence to suggest any change of behaviour and indeed for the time being the applicant’s condition was entrenched. He presented a significant risk of serious harm to the public. The judge acknowledged that the recent amending legislation meant that a sentence of imprisonment or public protection did not necessarily have to be imposed following a finding of dangerousness, and in the circumstances, an extended sentence would be an appropriate disposal as this would provide an appropriate level of control for a significant period of time. In reaching this conclusion the judge was also influenced by the fact that the offence was not one in which harm was desired or intended.

[120]In essence the submission was that the sentence was manifestly excessive and although the offence was undoubtedly grave, it was not one of the worst of its kind, and in the total sentence, insufficient credit was given for the guilty plea. Reference was made to the well known case of R v Cooksley [2004] 1 CAR (S) 1 and, in relation to this particular piece of driving, the more relevant recent decision in R v Richardson [2007] 2 CAR (S) 36.

[121]Our conclusion on the application can be expressed very simply. The judge correctly identified the serious aggravating features of this case, and in our judgment his sentence fairly reflected both the elements of punishment which this offence demanded, and the risk to the public created by an offender with an alcohol problem whose record showed that he was impervious to the orders of the court and impervious to the danger he represents. As the judge explained, his sentence was intended to “provide proper retribution and a measure of public protection for the very grave act or irresponsibility which had appalling but unintended consequences”. We agree with the assessment, and no basis for interfering with this assessment, or the reasoning which underlies it, has been shown. This application is refused. Giles Forbes

[122]Giles Forbes is 32 years old. He has previous convictions over the years, having made 4 court appearances between 1978 and 1999. Three of those appearances involved offences of child pornography, one possessing indecent photographs with intent to distribute, and two importing indecent material.

[123]On 18 April 2007 in the Crown Court at Blackfriars before His Honour Judge Hillen he changed his plea to guilty to 3 counts of distributing and indecent photograph of a child (counts 1-3) and one count of possessing indecent photographs of a child (count 10).

[124]We can conveniently summarise the facts before addressing the processes which followed the guilty plea. On 14 March 2006 police officers went to the appellant’s home. Outside they saw and arrested him. They were armed with a search warrant to search his home. During the course of the search a large quantity of DVDs, videos and video spools was recovered. Ninety of them contained indecent images of children, 77 at level 1, 5 at level 2, 4 at level 4, and 5 at level 5. Another video with indecent images at level 2 was found, which on further investigation, had been sold by the appellant on video by auction on eBay on 3 occasions during late 2005. These transactions were the subject of counts 1-3. The basis of plea relating to counts 1-3 agreed that the video contained indecent photographs of a child, but it was said to be an image contained in a full length feature film widely available on open sale on eBay. He bought the DVD versions of the film on eBay through his own account and then sold the same version on 3 occasions. This basis of plea was accepted by the Crown.

[125]In relation to count 10 the appellant said that some of the DVDs and videos may have been left by an acquaintance at his premises, and he was never aware of the exact nature of some of the images, and if he had been, he would have destroyed them. He intended to distribute the coming of age films in his possession, but not on a commercial basis. He had not intended to distribute videos and video spools, nor contacted anyone with a view to distribution or sale. He had no form of contact with others for this purpose, and no meetings had been arranged to effect an exchange. This basis of plea was not accepted by the Crown.

[126]At the Newton hearing Judge Hillen concluded that all the material recovered belonged to Forbes, and that he knew its exact nature. He also concluded that the videos and video spools were old and dated and had been copied over many years, and that the material at the higher level was not for sale or commercial trading. It was intended for distribution to like minded individuals and had indeed been copied repeatedly over many years, and the appellant had been engaged with others in the production of such images. There had been considerable trading of the level 1 and 2 images without substantial gain, and an intention to continue to trade in the level 1 and 2 images found at the appellant’s address. The purpose of the appellant’s postbox in Amsterdam was to facilitate the importation of this type of material into this country. The appellant had also been involved in the distribution (not sale) of level 3-5 images to like minded individuals in a paedophile ring, which amounted to conspiracy to distribute or show the images. This however had not involved him in commercial trading or gain. Accordingly the appellant fell to be sentenced on the basis that he was engaged with others in both the production and distribution of level 4 and 5 images and his culpability was aggravated by his criminal convictions. The judge concluded that a 15% discount for the guilty plea would be appropriate.

[127]The case was adjourned for sentence. The pre-sentence report, apart from noting the contentions by the appellant which were rejected in the course of the Newton hearing, noted his agreement that his behaviour was irresponsible, and observed that he sought to minimise his offending. However he admitted to a pre-occupation with pornography and it was suggested that Forbes was likely to commit further offences which would place children at risk of serious physical or sexual abuse. In short, the risk of harm to children was high and the risk of harm to members of the public was “medium”, with a high likelihood of re-offending.

[128]On 22nd July 2008, before His Honour Judge Marron QC, the appellant was sentenced to an extended sentence of 7 years pursuant to section 227 of the 2003 Act made up of a custodial term of 5 years’ imprisonment and an extension period of 2 years’ imprisonment. Appropriate orders were made disqualifying him from working with children, together with notification orders and a sexual offences prevention order, to remain in force until further order.

[129]Judge Marron proceeded on the findings made by Judge Hillen. There was evidence of involvement with others amounting to a conspiracy to distribute. The appellant was engaged with others in the production of images at level 4 and 5, and had previous convictions. He carefully addressed the question whether a determinate sentence of 4 years or more was appropriate. He decided that a determinate sentence in this case would have been 6 years’ imprisonment, and allowing for the guilty plea, a sentence of 5 years would be appropriate. The judge appreciated that the amendments to the dangerous offenders provisions provided him with a discretion whether to impose imprisonment for public protection or an extended sentence. The judge addressed the issue of dangerousness in the context of the judgment in R v Terrell

[2007] EWCA Crim 3079

, and having done so, he concluded that there was a significant risk of serious harm but that an extended sentence, rather than imprisonment for public protection would be appropriate. It would have been helpful for the judge to have given some explanation for his conclusion on the issue of dangerousness, beyond saying that he disagreed with the defence about the impact of Terrell. That said, however, the finding itself was fully justified.

[130]The submission on appeal is that the judge was wrong to pass the extended sentence, because, first, the conclusion that the appellant represented the danger which was a pre-requisite to such an order was unreasonable, and in any event, the notional determinate term should not have been 4 years or longer. It was also suggested that the sexual offences prevention order was wrongly made.

[131]The essential finding relating to the appellant’s culpability is that he was involved in both the production and the distribution of level 4 and 5 images. For this type of conduct the Sentencing Guidelines Council’s guidelines provide for a sentence range in the order of 4-9 years’ imprisonment. This culpability had to be examined in the light of the appellant’s previous convictions and the other associated offences, and the demonstrable background that his network was widening and the images becoming increasingly grave.

[132]This appeal illustrates some of the problems which face a sentencing judge when addressing the dangerousness provisions, and the alternatives between imprisonment for public protection, an extended sentence, and a determinate sentence of imprisonment, together with all the ancillary orders which provide for the protection of the public. The judge made a careful assessment of how best to address the safety of the public against the risk posed by this particular offender. However, in our judgment, his conclusion produced an outcome which in the result was too long. At the end of the hearing we announced that the sentence would be reduced from 7 years to 6 years, that is 4 years’ custody and an extension period of 2 years. To that extent this appeal was allowed. Craig Douglas

[133]Craig Douglas is 23. One significant previous conviction is recorded. We shall return to it in due course.

[134]On 4 December 2007 in the Crown Court at Newcastle upon Tyne he pleaded guilty to arson, being reckless as to whether life would be endangered. On 14 July 2008 he was sentenced by Her Honour Judge Bolton to an extended sentence of 5 years, pursuant to section 227 of the Criminal Justice Act 2003, made up a custodial term of 3 years’ imprisonment and an extension period of 2 years. Time already spent in custody was ordered to count towards sentence. This is an application for leave to appeal against sentence.

[135]The facts of this case are unusual and troublesome. The complainants were the applicant’s mother and sister. The family has long been estranged. In February 2001 the applicant pleaded guilty to rape and intercourse with a girl aged under 13 years, who was his sister, then aged 10 years, when he himself was 16 years old. He was made subject to a 2 year supervision order. This conviction, by itself, provides a chilling indication of the nature and state of family relationships.

[136]On 19 November 2007, in the early hours, the applicant’s mother was woken when a smoke alarm went off. She got out of bed and found a flickering light coming from a letterbox at her front door. She observed that a piece of cardboard had been set alight and pushed through the letterbox. She grabbed hold of an unlit part of it and took it to the kitchen sink and put out the smouldering cardboard. In the meantime the applicant’s sister checked and found that a net curtain covering the window in the door had been singed. She looked outside and saw the appellant leaving the vicinity. The applicant had not spoken to his mother or sister for some considerable time.

[137]The police were called. They established that a liquid had been poured over the front door and the paint peeled off, and shortly afterwards they went to the appellant’s home address. He immediately admitted he had gone to his mother’s home earlier, and when arrested, he said that he had poured paint stripper over the door and put a lighted piece of cardboard through the letterbox. He intended only to set the alarm off, and indeed he showed the officers where he had discarded the paint stripper can. When interviewed he asserted that he intended to strip the paint from the door and wanted to scare his mother by setting off the alarm.

[138]The pre-sentence report recorded the applicant’s assertion that he did not intend to cause physical harm, but did want to scare his mother. There had been long-standing ongoing difficulties. He could not really explain his behaviour. He acknowledged how reckless he had been and accepted full responsibility without minimising his own criminal culpability, and demonstrated remorse.

[139]Addressing the applicant’s earlier history, it was recorded that he had been witness to domestic violence and himself placed on the child protection register. As a result of his conviction in 2001 he had been taken into the care of social services. He last worked in October 2007, but was anxious to gain employment. He had misused alcohol, but not drugs.

[140]The applicant was assessed as posing a high risk of serious harm to a known adult, his family members, and more broadly a medium risk of harm to the public. Neither risk was deemed to be imminent. But the risk of re-offending, and the potential for self harm in a custodial setting, were both recognised. The writer of the report concluded that as there was no broad risk of serious harm to the public at large a determinate sentence, possibly suspended, would be appropriate.

[141]A psychiatric report was provided. The psychiatric opinion was that although the applicant remained vague about his own motivation for the offence, it was likely to have followed as a result of anger following his lack of contact with his mother, the consumption of alcohol and a depressive disorder. His symptoms met the criteria for a mild depressive episode. He had not received treatment, and anti-depressants and a referral for psychological intervention were recommended. His alcohol consumption was likely to exacerbate his depressive symptomatology. Psychological intervention would reduce the risk of re-offending. Any risk he posed would be directed towards his mother and sister, not the general public. A psychological report indicated that the applicant suffered from a range of complex and long-standing difficulties, including emotional and behavioural self regulation and an ability to manage himself independently. There was no evidence of significant mental health difficulties, but there was a possibility of relapsed and continued vulnerability. A non-custodial sentence would, it was suggested, require considerable multi-agency resources. Victim impact statements from the applicant’s mother and sister were before the judge.

[142]The judge approached this difficult sentencing decision with care. She immediately recognised that on the face of it, this would not be described as the most serious offence of arson, but the applicant had put his mother and sister at risk, intending to frighten them. She recognised the complexity of the background, and concluded that the applicant had a “burning anger and resentment” against them. He needed proper psychiatric and psychological treatment, and until he received it, he would pose a significant risk of serious harm to them.

[143]She then addressed the intractable problem of how best, in the interests of everyone involved, this treatment could be provided. She concluded that a custodial sentence was appropriate, but doubted whether what she described as a “commensurate” sentence would allow for the necessary treatment. Accordingly she decided that an extension period beyond the commensurate sentence would be required. The applicant’s release on licence would be subject to strict conditions, which would enable any treatment received in custody to be followed through, and for those responsible for the safety of the applicant’s mother and sister to ensure that the risk to them was minimised. She recorded her view that it would be very remiss if the necessary psychological and psychiatric care was not provided for the applicant.

[144]The grounds of appeal are that the judge was wrong in law to conclude that the applicant was dangerous, and that whether that was so or not, the custodial term was manifestly excessive.

[145]In our judgment the evidence that the applicant represented the danger required as a pre-requisite to both imprisonment for public protection and an extended sentence was clear. To the extent that he was, the most likely potential targets were his mother and his sister. Their individual interests were not to be ignored.

[146]It seems clear, although the judge did not express herself directly, that she considered and rejected imprisonment for public protection on discretionary grounds. The extension period was ordered so as to cater for the need for appropriate treatment for this very troubled young man. In short, the overall sentencing package was designed to minimise the risk which he represented. As an exercise in judicial judgment, balancing the punitive elements of sentencing with those of rehabilitation and public protection, the sentence is not open to criticism. Accordingly this application is refused.

Cited in 30 later judgments

and 21 more of the most senior