Barron, R. v [2009] EWCA Crim 837

[2009] EWCA Crim 837Case No 200800659 A2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM OXFORD CROWN COURT
HHJ JULIAN WALL
T 20067221 and T20077004
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 29/04/2009
Before
LORD JUSTICE AIKENSMR JUSTICE TUGENDHATMR JUSTICE NICOL
Between
RRespondentANTHONY BARRONAppellant
Mr David Miller for AppellantMr Amjad Malik for ProsecutionHearing Hearing dates : 13 th March 2009
Judgment
[1]This is an application for leave to appeal on sentence out of time, which has been referred to this court by the Registrar for reasons we shall come to later in this judgment. In 2007 Anthony Barron (the Applicant) faced two indictments charging him with a very large number of sexual offences. On 11 May and 15 June 2007, at pleaded case management hearings, he had pleaded guilty to some 84 counts on the two indictments. These counts included many allegations of indecent assault on young girls, possessing indecent photographs of a child (containing both still and moving images), and sexual assault of a child under 13. Also amongst those 84 counts to which he pleaded guilty were two counts of attempted anal rape and a further count of attempted vaginal rape. In many cases, the Applicant had filmed his own sexual assaults.[2]The applicant contested two charges; one of attempted anal rape and another of completed vaginal rape. These were counts 26 and 27 on Indictment two. Both offences were committed on the same 12 year old girl, KJ, on the same day, 13 July 2003. Both were filmed by the applicant. There was a trial in respect of those offences before HHJ Hall and a jury at Oxford Crown Court between 28 – 30 August 2007. He was convicted on both counts.[3]Therefore, when Judge Hall came to sentence the applicant on 30 August 2007, he had to pass sentence in respect of 86 offences on the two Indictments. 44 further alleged offences were ordered to remain on the file on the usual terms. 36 of those were counts on Indictment one; 8 on the Indictment two.[4]The court record states that the total sentence passed was one of life imprisonment, with a minimum term of 9 years to be served, less 229 days spent on remand. We will have to analyse how that total was arrived at by the judge. First, we must give more details about the applicant and the offences for which he had to be sentenced.[5]The Applicant was born in November 1952 and was therefore 54 when he came to be sentenced. At that time he had no previous convictions. He had been married and had two sons and a daughter, but he had separated from his wife in about 1994. He was made redundant at about the same time. He divorced in 1998. He was, on the face of things, an upright member of the community in South Oxfordshire. He lived opposite his sons’ school in Wantage and he would go to the nursery where his youngest son attended. He became a governor of the school and also an unpaid parent volunteer there; he would assist in the classroom twice a week. He obviously got to know other parents and their young children.[6]On numerous occasions from February 1997 the applicant contrived to be alone with a number of young girls whose parents he had come to know. He sexually abused the girls. The abuse ranged from touching their bottoms to oral and penile penetration. On various occasions the Applicant masturbated himself whilst touching the victims’ private parts. He sometimes put his penis into the mouth of his victim. He sometimes encouraged them to expose their genitalia, and to masturbate him. He pleaded guilty, as we have said, to three counts of attempted rape and was found guilty of a further attempted anal rape and a completed rape of the same girl’s vagina. A significant proportion of these offences were video recorded by the Applicant for his sexual gratification. The Applicant sought to keep the abuse secret by giving the children sweets, toys, games and clothes.[7]This was an appalling catalogue of sexual offences. Apart from the gross mistreatment of many very young children, the Applicant had comprehensively abused the trust of their parents who had allowed him to look after their young daughters. When the judge passed sentence, he acknowledged that the Applicant had been through the stresses of divorce, loss of his job and the death of his mother, but none of that could explain his offending. The judge was unable to detect any genuine remorse by the Applicant for his behaviour which, in his view, remained utterly inexplicable. The judge described the applicant, rightly in our view, as a “predatory, plausible, paedophile”, who corrupted the children so that they became inured to his behaviour towards them.

The sentencing exercise by the judge

[8]Judge Hall was faced with a very formidable sentencing exercise. First, there was the sheer number of offences that had to be considered. He had to consider each, whilst ensuring (as he recognised) that the totality of the sentence remained proportionate. Secondly, the offences had taken place over a period of 9 years between 1997 and October 2006. During that period the sentencing regime had undergone considerable changes. First, on 11 January 2000, the maximum term for making an indecent photograph of a child contrary to section 1 of the Protection of Children Act 1978 had been increased from 3 to 10 years. Then, on 1May 2004, the Sexual Offences Act 2003 came into force, replacing the Sexual Offences Act 1956, changing both the name and nature of various offences and also changing maximum sentences for various offences. Lastly, and most importantly, on 4 April 2005 the relevant provisions of Part 12 Chapter 5 of the Criminal Justice Act 2003 (“CJA 2003”), relating to “dangerous offenders” came into force. The judge had to take all those into account in the sentencing exercise that he had to conduct, as well as the facts of each offence.[9]The first task the judge undertook was to consider whether, for the purposes of sections 225 – 229 of the CJA 2003, the applicant was “dangerous”. The judge did not spell out the fact that this exercise was, of course, only relevant to those “serious” or “specified” offences that had taken place after those provisions came into force, that is, after 4 April 2005. There are a large number of such offences in both the first and the second Indictment and they have been gathered together in a schedule for us by counsel for the prosecution, Mr Malik, for which we are most grateful. However, we do not need to identify each of them for the purposes of this judgment.

The judge concluded that the applicant was “dangerous within the meaning of the statute”:

[10]see page 4E of his sentencing remarks. He then went on to ask:
“why, in those circumstances, should it not be a life sentence under section 225? I can find no reason. This is as serious a series of offences as I think I have ever come across”
. Those remarks can only apply to “serious offences” (within section 224(2) of the CJA 2003) committed after 4 April 2005. They can also only apply to offences in respect of which the Applicant would, apart from section 225 of the CJA 2003, be liable to life imprisonment. The judge must also have concluded that, in respect of such offences or one or more offences associated with it (meaning those committed after 4 April 2005), that it, or they, were such as to justify the imposition of a life sentence. In short, an offence (with or without others associated with it) was such as would justify the imposition of a discretionary life sentence: see R v Lang [2005] 1 WLR 2509 at para 8, which refers to R v Chapman [2000] 1 Cr App R (S) 377. As we analyse further below, we have concluded that the judge must have had in mind, in fact, the two charges of attempted rape on KB, then aged 4 years 8 or 9 months, in February 2006, which formed Counts 60A and 73 of Indictment one.[11]The judge did not specifically articulate all those points. But we are confident that he had them in mind and there is no appeal from the finding of dangerousness by the judge.[12]The judge then turned to those pre – 2003 Act offences which carried a maximum sentence of life imprisonment. These were Count 31 on Indictment one: attempted rape, committed on FW when aged 4 years 6 months on 22 April 2004, and Counts 26 and 27 on Indictment two: attempted rape and rape committed on KJ, aged 12, on 13 July 2003. (The latter offences were those for which the applicant was tried and found guilty). At page 4F of his sentencing remarks the judge refers to “four offences of attempted rape and the offence of rape of which the jury convicted you” but we think he must have intended to refer to the three offences we have identified.[13]The judge stated, at page 4F, that the sentence on those offences would be one of life imprisonment, because he had no idea when the applicant would be safe.

The judge then said, at page 4H:

[14]“what I have to do is to put myself in a position of having to pass individual sentences for each matter so that I can arrive at a tariff, what is called the tariff sentence. There is no perfect way of doing this because there are so many offences and if I were to give you a year on each of them, which would be well below a normal sentence, the result would be a sentence of 80 odd years, therefore it cannot be done and, therefore, I have had to compromise in various ways in the sentences I intend to pass”.[15]The judge then recited various factors he would take into account in fixing the sentences. These were:(1) the fact that many offences were filmed.(2) The victims were small girls.(3) The fact that the applicant took moving (as opposed to still) images of many offences.[16]The judge passed sentences of two years in respect of each of the offences of taking or making still images of children, whatever the dates on which they occurred. Those offences are covered by counts 4,6,10,12, 43 and 87 of Indictment one and counts 1,3,5,11,12,13,17 and 19 of Indictment two. He passed sentences of four years in respect of the offences of taking or making moving images of children: that is in respect of counts 18,23,27,29, 33, 36, 38, 45, 50, 61, 64, 66, 70, 74, 80 and 82 of Indictment one and counts 7, 23,28,30,32, 34, 37 and 39 of Indictment two. He stated that those sentences were to be served concurrently and he said that he had given the applicant a 20% discount for his guilty plea.

The judge then considered other offences “to calculate the tariff”:

[17]page 6C. The judge went through the indecent assault charges in Indictment one and also the charge of indecency with a child (count 7). That was a serious offence against FW, aged 3 ½ at the time, where the applicant ejaculated onto her vagina. At page 6E of the transcript, the judge states that the sentence for that offence will be one of seven years. However, at the end of that paragraph , which is dealing with Indictment one offences, the judge says, at page 6E:
“All those sentences to be concurrent. That is five years imprisonment”
. That is the overall figure for that group of offences that the judge seems to have used.[18]In the same paragraph the judge passed a sentence of life imprisonment in respect of count 31 on Indictment one. That was an offence of attempted rape committed in 1999 on FW aged 4 ½ at the time, committed in 1999, ie. before the commencement of the CJA 2003 provisions.[19]The judge then considered offences against the twins MB and KB, who were aged 4 years when the offences took place in 2006. In respect of the indecent assault charges (counts 44, 46, 51, 57A, 62, 65, 67, 71A and 78 on Indictment one) the judge imposed sentences of between four and six years. In respect of counts 63 and 76, (causing or inciting a child under 13 to engage in sexual activity) he imposed sentences of 6 and 5 years respectively. In respect of the two charges of attempted rape on KB (counts 60A and 73 of Indictment one) the judge imposed life imprisonment. The judge summarised the position on sentence with regard to that group of offences, apart from the attempted rape sentences, as follows (page 7A):
“All those sentences will be concurrent, so, leaving aside the life sentences for a moment, that is six years, which will be consecutive to the tariff fixed for the first series of offences”
. We will have to come back to the question of what the judge meant by “the tariff” in his sentencing remarks.[20]The judge then moved onto Indictment two. He passed sentences of between two and five years on the indecent assault offences (counts 2,4,6,7,14, 15, 16, 18, 20, 21, 22, 29, 31, 33, and 35). He stated (at page 7D) that those sentences would be “concurrent, but consecutive to the sentences to the tariff that I am in the process of calculating”.

The judge then considered the two offences for which the applicant had been tried:

[21]viz. attempted rape and rape on KJ aged 12, which were counts 26 and 27 of Indictment two. These were both pre CJA 2003 offences. The judge had already (page 4F) imposed a sentence of life imprisonment in respect of them. He said (at page 7E) that “…had I to fix a separate tariff for those matters they would have been 12 years imprisonment. I will come back to that in a moment”. He then sentenced the applicant to “3 years consecutive” on count 38, an offence of sexual assault on a child under 13 which was committed in September 2006. The judge described that case as a “particular wickedness” because it was committed on the daughter of a woman with whom the applicant had formed a relationship.

The judge then summarised the position as he saw it at page 7F:

[22]“That makes, in my calculation, this: 4 years concurrent with each other, in effect, for the moving images. Five years for the first batch of offences. Six years for the second batch of offences. Three years consecutive for count 38 [of Indictment two]….Twelve years concurrent for the offences of attempted rape and rape. It makes 18 years. That is the tariff sentence for these series of offences. For the offences for which I have passed sentences of life imprisonment for attempted rape, the tariff would have been 7 years, which I make concurrent. The net effect of this and these are mathematical calculations which I find unedifying but necessary. Had I passed, therefore, a determinate sentence it would have been one of 18 years. I halve it, 9 years. I give you credit for 229 days spent on remand. I therefore direct that the first time that you can apply for parole during this life sentence is after 9 years less 229 days you have served”.[23]The effect of this passage seems to us to be that, broadly, the judge concluded that if he had been passing determinate sentences on the applicant, the total would have been 18 years. He used this total as the basis for assessing a notional determinate sentence for in order to calculate the minimum term to be served before the applicant could apply for parole, then giving credit for the 229 days served on remand. But the judge does not stipulate that this is a minimum term in respect for a particular offence or offences that he identifies; nor does he identify whether it is an offence or offences that is (or are) before or after 4 April 2005.

The application to this court

[24]The application for leave to appeal out of time related to two matters. The first is the sentence for the offence of sexual assault on AEL (aged 3 ½ at the time) in September 2006. As we have already noted, the judge imposed a sentence of three years, to be consecutive to other determinate sentences imposed in respect of Indictment two offences in respect of the sexual assault (count 38 of Indictment two). The complaint was that the judge had misunderstood the relationship and its timing, so that he should not have made the sentence on count 38 a consecutive one. The second complaint is in relation to the sentence of 4 years in respect of the offences of making or possessing indecent moving images of children. The applicant said that those sentences were too severe.[25]At the hearing before us on 13 March 2009, Mr Miller did not actively pursue this application. Moreover, he confirmed that the applicant did not challenge the overall sentence of life imprisonment with a minimum term of 9 years before he can be considered for parole. Therefore the only reason for the matter coming before the court was the concern of the Registrar about the lawfulness of the sentences that the judge had passed for certain of the offences committed after 4 April 2005 when the provisions of the CJA 2003 were in force. This concern relates to counts 43 to 82 on Indictment one and counts 38 and 39 on Indictment two.[26]The Registrar makes the point that all of those offences are “serious offences” within the meaning of section 224(2) in Part 12 Chapter 5 of the CJA 2003. Therefore, once the judge had concluded that the applicant fulfilled the “dangerousness” criteria within that Part, then under the regime that applied when he passed sentence, the judge was obliged to pass a sentence of imprisonment for public protection by virtue of section 225 of the CJA 2003. Thus, to the extent that the judge did not do so, the sentences were unlawful.[27]The question is: can this court do anything about it and, if it can, should it do so? This very problem was considered by the court in R v Reynolds and others [2008] 1 WLR 1075, [2007] EWCA Crim 538. In that case Latham LJ stated that the Court of Appeal does not have jurisdiction to impose a mandatory indeterminate sentence in place of a determinate sentence wrongly imposed by the sentencing judge because he failed to follow the mandatory provisions of Part 12 Chapter 5 of the CJA 2003. That is because it would almost invariably mean that the appellant (applicant in this case) was being dealt with more severely than he had been by the sentencing judge. Therefore it would offend section 11(3) of the Crimianl Appeal Act 1968. However, it was noted at the same time that it does not follow that the Court of Appeal is obliged to interfere with the judge’s finding of dangerousness. The court should, all other things being equal, “exercise its discretion” not to interfere with the sentence imposed. See paragraphs 18 – 25 of the judgment of Latham LJ.[28]Mr Malik, for the Crown, submitted that Reynolds was distinguishable from the present case. He says that the imposition of indeterminate sentences for post 4 April 2005 offences would not make the overall sentence more severe because the judge had imposed life sentences in respect of some post 4 April 2005 sentences; and the applicant does not challenge those sentences nor the minimum term of 9 years. Despite that submission, we have decided that we must follow the same course as the court in Reynolds. Therefore, in respect of all offences that are post 4 April 2005 offences and are “serious” offences within section 224(2) of the CJA 2003 we make no order.

Observations

[29]That deals, formally speaking, with all the issues that were raised on this application, which must therefore be dismissed. However, we feel obliged to make some further comments about the sentencing exercise in this case. We do so with some hesitation because we are conscious of the very difficult task that faced the judge, as we have already noted. But, with the greatest of respect, we venture to suggest that the authorities indicate that the approach should have been more structured than it appears to have been.[30]In R v Lang [2006] 1 WLR 2509 at paragraph 3, Rose LJ said that when a defendant is to be sentenced for offences that occurred both before and after 4 April 2005, it will generally be preferable to pass sentence on the later offences by reference to the “new regime” and to impose no separate penalty for the earlier offences. But he recognised that this may not be possible in cases where the earlier offences are more serious than the later ones. Therefore, we suggest, the first task of the judge must be to identify the most serious cases to be sentenced and to identify which regime applies.[31]In this case there were two post 4 April 2005 attempted rapes; those on the 4 year old KB which were committed in 2006 (Counts 60A and 73 on Indictment one, to which the applicant pleaded guilty). As Mr Malik for the Crown reminded us, the only reason why these were charges of attempted rape rather than rape was because it was physically impossible for the applicant to commit the full offence on so small a child. The judge clearly regarded these offences as very serious because, having concluded that the applicant was “dangerous”, he imposed life sentences in respect of each offence. The judge assessed the “tariff” for those offences to be 7 years: see page 7H of the sentencing remarks. We take the word “tariff” to mean, in that context, the “minimum term” to be served pursuant to section 225 of the CJA 2003 and section 82A of the Powers of the Criminal Courts (Sentencing) Act 2000. We interpret the sentencing remarks as indicating that the judge decided that the correct determinate sentence for each offence would have been 18 years, less 20% for guilty pleas, giving 14 years. To reach the minimum term that figure would be halved, giving a minimum term of 7 years. That reasoning would, we think, be in accordance with the Sentencing Guidelines in the context of this case.[32]With regard to the pre – 4 April 2005 offences, the judge imposed three discretionary life sentences. For the attempted rape and rape of which the applicant was convicted (counts 26 and 27 of Indictment two) the judge said that if he had had to fix a “separate tariff” for those matters, it would have been 12 years imprisonment: page 7E. As we read that sentence of the sentencing remarks, the judge used the words “separate tariff” to mean that if he had been dealing with those offences on their own and had imposed a discretionary life sentence for them, the notional determinate sentence (for the purposes of calculating the minimum term to be served) would have been 12 years. Therefore, notionally, the minimum term for those offences, taken on their own, would have been 6 years. If “separate tariff” had meant “minimum term” in that sentence of the judge’s remarks, that would be wholly inconsistent with the final minimum term that the judge imposed “overall” (ie. 9 years). It would also have implied a notional determinate sentence of 24 years for those offences, which would have been too high.[33]The judge did not identify either a notional determinate sentence nor a minimum term in respect of the attempted rape on FW, count 31 on Indictment one.[34]It would appear, therefore, that the judge did regard the two post 4 April 2005 attempted rapes on KB (Counts 60A and 73 of Indictment one) as the most serious offences. Yet, ultimately, the judge imposed “overall” a life sentence with a minimum term of 9 years (less 229 days). It is, with respect to the judge, not easy to follow the route to this conclusion, although that overall sentence is not now challenged.[35]We have concluded that the judge’s reasoning must have been as follows: first, under the provisions of section 82A(3)(a) of the Powers of the Criminal Courts (Sentencing) Act 2000, when setting the minimum term for two post April 2005 attempted rapes for which he had imposed life sentences, he could take into account the seriousness of each of the offences themselves and “one or more offences associated with it”. He also must have had in mind section 161 of the 2000 Act, which provides that “an offence is associated with another if the offender is convicted of it in the proceedings in which he is convicted of the other offence”.[36]Secondly, the judge properly considered the totality of the applicant’s offending when setting the minimum term of 9 years. This is a legitimate exercise: see R v Frederick Edwards [2007] 1 Cr App R (S) 106, particularly at paragraphs 23 and 24. However, we note in passing that, in accordance with the guidance in that case and R v O’Brien [2007] 1 WLR 833 at paragraphs 67 and 68, it would have been more appropriate for the judge to have identified specifically the offences to which the total minimum term of 9 years was intended to apply, rather than leaving it generally as he appeared to do.[37]The judge calculated the notional determinate sentence of 18 years by indicating determinate sentences for offences that were both pre – 4 April 2005 and post – 4 April 2005. In respect of the latter group, he indicated determinate sentences both for offences which were “serious” offences and a “specified” offence (count 87 of Indictment one). This method of calculating a notional determinate sentence for an offence to which section 225 of the CJA 2003 applies has been used before, at least in respect of serious offences and specified offences that were committed after 4 April 2005: see R v Lee Meade [2007] 1 Cr App R (S) 123, paragraphs 23, 30 – 32.[38]However, as Teare J emphasised in that case, (paragraph 33), the judge must stipulate, in respect of each offence to which a minimum term applies, what that minimum term is and how it has been calculated. Furthermore, there should be a separate disposal for each offence: paragraph 29. Summary[39]As we have already said, there is now no effective application before the court from the applicant. The court will not make any alteration to those post – 4 April 2005 offences in respect of which the judge should have imposed a mandatory indeterminate sentence. We will take it that the minimum term of 9 years applies to Counts 60A and 73 of Indictment one. We will also take it that the other minimum term imposed, which, by implication, we take to be 6 years on counts 26 and 27 of Indictment one and also count 31 of Indictment one are to run concurrently with the 9 year terms. All other sentences, which are determinate sentences, are to be concurrent with the life sentences with the minimum terms that we have identified.[40]This application is dismissed.

Cited in 1 later judgment