Nasuna, R v [2009] EWCA Crim 880

[2009] EWCA Crim 880Case No 200806336/A4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 3rd April 2009
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE DYSON
MR JUSTICE IRWIN
MR JUSTICE SWEENEY
Between
R E G I N ACrownv
Between
SIMON JPETER NASUNA
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)
Miss N Grahame appeared for Applicant
J U D G M E N T
[1]MR JUSTICE IRWIN: On 5th March 2002 in the Crown Court at Manchester Crown Square, this applicant pleaded guilty to five counts of indecent assault on a male person. On 11th June 2002 he changed his plea to guilty of two further counts each alleging attempted rape. He was sentenced by His Honour Judge Ensor as follows: on count 1, a count of attempted rape, to an extended sentence of 10 years pursuant to section 85 of the Powers of Criminal Courts (Sentencing) Act 2000, comprising a custodial term of 6 years' imprisonment and an extension period, that is to say an extended period of licence of 4 years. On count 2 he was sentenced to 6 years' imprisonment on attempted rape concurrently and on counts 3 and 7 of indecent assault on a male person, to sentences of 2 years' imprisonment concurrent on each count and concurrent to the other sentences passed.[2]He applies for an extension of time of 6 years and four-and-a-half months within which to apply for leave to appeal against sentence in respect of the extension period of 4 years only and for leave to appeal against sentence, this matter having been referred to the Full Court by the single judge who also granted a representation order for counsel. The application for an extension of time in which to apply recites the following considerations: the applicant was represented by a different firm of solicitors and different counsel at the original proceedings. It appears that leave to appeal was not advised by those representatives. Solicitors currently instructed were only more recently instructed in this case. In her very helpful and economical submissions to us today Miss Grahame has given us some further detail of that. The applicant in fact sought further advice from solicitors, centred on housing concerns related to the restrictions associated with the extended sentence. The firm he consulted for housing purposes passed him to their prison's law department and as a result of that route, not as a result of any deliberate delay on his part, the applicant came to get the advice which has underpinned this application.[3]The facts of the offending can be summarised as follows. The offences took place between 1st January 2001 and 8th December 2001. The applicant had become sexually attracted to boy P, the 9-year-old son of his mother's neighbours. Over a period of 3 or 4 months he had befriended the boy before engaging in sexual acts with him.[4]In his video interview the boy said that the applicant had taken him to such places as swimming baths and to the cinema and to bowling. The offences always occurred in the applicant's house where they played on computer games of various kinds.[5]This was sustained and considerable abuse, with genital contact, oral sex and mutual masturbation, and happened on a weekly basis.[6]Through boy P the applicant met boy D, also aged 9 and similarly after befriending him indecently assaulted him. That boy described some similar episodes to those which took place with boy P.[7]The grounds of appeal correctly concede that the sentences of immediate custody were proper and appropriate. The complaint is directed against the length of the extended period of licence at 4 years. It is suggested that this is too long, that insufficient reasons existed for it, that no sufficient reasons were given for it and that the risk of such a period being passed was not raised with counsel so that he could address the issue.[8]There was a report before the judge from Dr Blake, a psychiatrist, dated 2nd March 2002. It is said gives no evidence to justify such an extension period but in fact remarks positively on the applicant's close family, his behaviour on bail, his apparent honesty, genuine remorse and good insight. Dr Blake concluded that there was no psychiatrist illness and, as it is put in, advice "voiced no concerns regarding the applicant's future conduct beyond those implicit in the commission of the offences." We cannot quite agree with that characterisation of this report. Dr Blake lays some emphasis on the applicant's contrition, his good behaviour since arrest and his apparent honesty in discussion and also upon his remorse. However, he also remarks on the unusual fact that so many of the applicant's friends appear to be young boys and that he could not explain why he had acted as he had in relation to more than one young boy. That has to be set beside his account of his own sexual interests as being exclusively heterosexual and adult, with the exception of the charges, as the applicant put it. This did provide a real basis for concern about a continuing risk of offending. A rational reading of that report, in our view, is that the applicant was regretful and anxious to please but was not able to be frank about his own impulses, leaving the springs of his offending unacknowledged. That concern was reflected in the interview given by the applicant after his arrest.[9]However, it should be noted that this applicant was of previous good character. It is very likely that there was a pre-sentence report before the judge, but no copy has survived in the papers presented to this court and we are unable to assess what material there was which may have underpinned the judge's own assessment of the case. The judge naturally took a serious view of his offending and his remarks as to the reason for an extended sentence were short but to the point. He said:
"...I am satisfied that the normal period of licence would not be sufficient to prevent the commission of further offences or secure your rehabilitation. I consider that you represent a danger to young boys, and the reasons why I am imposing the extended sentence."
It is fair to say that the learned judge did not set out any reasoning for the length of the extension.[10]Counsel for the applicant has sought to rely to some degree of the report of how well this applicant has done whilst in prison on his parole assessment report, the prison report and the parole notification, all dating from 2005. Of course, all of these long postdate the judge's sentencing decision and could not possibly affect the propriety of his decision.[11]The applicant does rely upon the case of R v Nelson [2001] EWCA Crim 2264, which deals with the approach required in such a case. From paragraph 19 of that report, we quote:
"In all cases the court should consider whether a particular extension period can be justified on the evidence available. A long extension period should usually be based on a clear implication from the offender's criminal record or on what is said in a pre-sentence report or a psychiatric report. The objective, where possible, should be to fix the length of the extension period by reference to what can realistically be achieved within it."
[12]In our judgment, there clearly was enough in the psychiatric report to justify the judge's concern and an extended period. There may well have been more in any pre-sentence report. The matter might have been more fully explained by the judge but the nature of his general concern was clear. This court in Nelson was not attempting to put a straitjacket on how such an extended period may properly be passed, the emphasis was on positive evidence to underpin the concern.[13]However, taking all matters together in this case, we consider that there is force in this application that extended period was too long. It is not an academic matter for this applicant as counsel has, again, helpfully explained, particularly given the illness of his mother and the fact that he is unable to visit her due to the restrictions concurrently operating. We consider that a proper period for extension would have been one of 2 years. So we will in due course substitute such a period for that past by the learned judge.[14]We should emphasise that, this applicant having done everything proper, we are prepared to extend time for this application to take place. But it is only in the most exceptional circumstances that a delay as long as 6 years and four-and-a-half months will be followed by the grant of leave to appeal against sentence and anyone reading this report should understand that. In this branch of litigation, as in others, there is a real need for finality.[15]However, we grant leave to appeal. We grant the appeal to the extent of quashing the 4 years extended period on the first count of attempted rape, substituting an extension period of 2 years and the appeal succeeds to that extent. We would like to say, Miss Grahame, how grateful we are to you for your careful submissions both in writing and today.