Carr, R v [2009] EWCA Crim 224

[2009] EWCA Crim 224Case No 200805776/A4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Monday, 2nd February 2009
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE RIX
MR JUSTICE BEAN
HIS HONOUR JUDGE PAGET QC
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
ROGER JOHN CARR
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr C Harding appeared for Applicant (who was not present)
J U D G M E N T
[1]MR JUSTICE BEAN: This is an appeal by leave of the single judge against a sentence of 4 years' imprisonment for breach of a sexual offences prevention order. The appellant had pleaded guilty to that breach. The sentence was concurrent, as will appear from the history which we shall shortly give, to the sentence he was already serving.[2]The appellant had got into the habit of following young teenage girls around in public places. One of these girls was a 14 year old, to whom we shall simply refer as "the victim". The appellant had been a friend of her family.[3]She complained to the headteacher at her school, as did other girls. The police were contacted. On 16th January 2007 a sexual offences prevention order was made at the Central Hertfordshire Magistrates' Court. One of the conditions of the order was that the appellant was not to approach, follow or communicate by any means whatsoever with any female under the age of 16 years.[4]On 4th October 2007 the appellant breached the order. Two girls, respectively aged 12 and 13, were building a snow man in a car park at the back of the appellant's house. He went outside, lent them a shovel to dig snow and gave them sticks to use as arms for the snowman. He took them hot drinks and gave them bars of chocolate. At this point the mother of one of the girls called them both inside. The police were contacted. The matter was taken to court.[5]The breach was dealt with on the same occasion as a number of offences of taking indecent photographs of children. The court imposed concurrent extended sentences of two-and-a-half years comprising a custodial term of 6 months and an extended licence period of 2 years. Since it appears that extended sentences under the Criminal Justice Act 2003 are not available for an offence of breach of a sexual offences prevention order, the basis for imposing a sentence of this type on that occasion must have been the offences of taking indecent photographs. At all events the appellant served the custodial term under that sentence and was released at the appropriate date on licence on the 20th November 2007. He was placed at a probation hostel.[6]We now come to the offence which is the subject of the appeal. On 17th December 2007 the victim received a Christmas card from the appellant. She said in her statement to the police that she was really scared as it was addressed to her and not to her parents. The card said:
"From Roger have a happy New Year. I have moved again. I am in Essex at the moment, about 11 miles from Southend, with love from Roger xx."
The victim was upset. She tore up the card and had the good sense to telephone her mother to tell her about it.[7]Four days later the appellant was arrested. From his room at the probation hostel Christmas cards were recovered of a similar design to that received by the victim. Handwriting analysis indicated that the card had indeed been sent by him.[8]He was returned to custody pursuant to the terms of his extended licence for the previous offence and we understand that in February 2008 the Parole Board refused to order his release.[9]When the matter came before His Honour Judge John Plumstead in the Crown Court at St Albans on 13th October, the learned judge in passing sentence said this:
"I must give you some credit for a plea of guilty, although bearing in mind that your handwriting was on this card, if you contested it I have no doubt other forensic evidence might have been available. Notwithstanding that I must give you some credit for your plea of guilty. I give you frankly as much as I think I can, and I give you credit for it, but nonetheless I am sure that my duty in this sort of case is to protect the public. It is extraordinary that breaches of a sexual offences prevention order are not specified or serious specified offences under the legislation, so I am left to do my best in protecting the public within the framework of a determinate sentence. For a second breach targeted at one of the people whose fear caused them to report you to the police and caused the SOPO to be made, the least sentence I am prepared to pass on you is one of four years' imprisonment. I cannot make it consecutive to your current recall and that is one of the factors I have taken into account in passing a sentence as long as I have."
The reference to the prohibition on consecutive sentences is to section 265 of the 2003 Act.[10]Mr Harding, in his able submissions on the appellant's behalf, has referred us to a number of authorities, including R v Fenton [2007] 1 Cr App R(S) 97, where the judgment of this court delivered by Leveson J (as he then was) contains a useful review of the authorities. One of the cases referred to in that judgment, specifically referred to by Mr Harding, is the case of R v Wilcox [2003] 1 Cr App R(S) 43, where on facts no less serious than the present offence, a sentence of 2 years' imprisonment was reduced to 12 months. Indeed, there were several breaches in the case of Wilcox. The other cases referred to in Fenton generally indicate sentences of well below 4 years' imprisonment. The only exception is Moore where there were several breaches of orders, in each case much more serious than the present one.[11]The sentence imposed by the learned judge was only 20 per cent below the statutory maximum. We appreciate that the judge was concerned, and rightly concerned, this was a second breach and that it was, in the judge's words, "targeted" at the original victim. Nevertheless, by comparison with, for example, stalking the victim, or going to her home, the sending of a Christmas card was less serious. We consider that the proper sentence in this case was of 12 months' imprisonment. We allow the appeal, set aside the sentence of 4 years and substitute a sentence of 12 months concurrent with the custodial term which the appellant is currently serving.

LORD JUSTICE RIX: The appeal is allowed and a sentence of 1 year is substituted for 4 years. Thank you for your assistance Mr Harding. The appellant has 7 days to return to us if he thinks he has been dealt with severely.