English, R v [2009] EWCA Crim 982

Case No 200805910/A7[2009] EWCA Crim 982
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 2nd 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
ROBERT MALCOLM ENGLISH
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 I James appeared for Appellant
J U D G M E N T

LORD JUSTICE DYSON:

[1]On 12th September 2008 at Ipswich Crown Court the appellant pleaded guilty to kidnapping (count 1), false imprisonment (count 2), sexual assault (count 3), assault by penetration (count 4) and two offences of rape (counts 5 and 6). On 3rd October he was sentenced to concurrent terms of life imprisonment on counts 1, 2, 4, 5 and 6 and no separate penalty was imposed in respect of count 3. Accordingly the total sentence was one of life imprisonment with a minimum term of 7 years and 6 months less 81 days already served. He appeals against sentence by leave of the single judge.[2]The facts are these. On the afternoon of 14th June 2008 the victim, who was a 21-year-old woman, returned to her car in Tesco's car park on London Road in Brandon. As she did so the appellant, who was standing by his own vehicle, called out to her. He said that he had had bad luck and asked for help putting a heavy bag into the back of his car. The victim did so and then the appellant produced a knife. He told her to shut up and forced her into the back of the car. There he tied her up with a rope. He tied her hands and feet and put the rope around her neck twice. She was left helpless. The appellant said to her:
"If you dare move or scream, I'll stab you."
When she struggled he slammed her head down and said:
"Get down or I'll slash you here and now."
He then partly covered her with a sleeping bag and covered her head with a T-shirt. He then drove off and drove for about 20 minutes to an isolated spot where he had a caravan. He then untied the victim's feet and walked her into the caravan. Inside the caravan he said to her that he wanted to make love to her and:
"If you don't do that and if you're not good to me, then this is what will happen" and he drew back a curtain and showed the victim a depression in the ground. He said: "
That's your grave if you don't do what I want." The appellant then proceeded to sexually assault and to rape her. Throughout her ordeal she pleaded with him to let her go home. He licked and kissed her breasts and touched various parts of her body. He performed oral sex on her and penetrated her mouth with his penis. He also raped her vaginally from the rear and from the front. Throughout the ordeal the victim believed that she was going to be killed.[3]After the appellant had raped her, she asked to be allowed to go home. He allowed her to dress, covered her head and guided her to his car. He then drove her back to Brandon where he dropped her off. When he removed the covering from her head, he said:
"If you turn round I'll come back and kill you."
He then drove off. She ran through the town to the address of her boyfriend's parents and raised the alarm.[4]Using information given by the victim about the time spent in the car and various other matters, the police put up a helicopter and located the caravan. The appellant was arrested.[5]There are two victim personal statements from the victim. She described feeling vulnerable and having flashbacks. She said that she suffered from panic attacks. She had been prescribed medication by her general practitioner to help her to cope. She was afraid to be alone and had to sleep with the light on. The appellant had been responsible for her loss of self-confidence. She had been left feeling dirty and ashamed. Her partner and family had also been affected. She was convinced that she would be subjected to violent behaviour again. In short, she said that the appellant had ruined her life. There were also medical consequences flowing from the assaults to which she had been subjected.[6]The appellant is now 59 years of age and is a man of previous good character. There was a pre-sentence report before the court which we have now read. The author of the report said that the appellant sought to minimise and deny his actions but he appeared to be remorseful. He had difficulty in providing an explanation for his behaviour. The writer of the report assessed the likelihood of reconviction as being low to medium and the risk of future sexual offending as low. The writer said that until the appellant was able to understand what contributed to the offences, he would be considered a high risk of serious harm to the public.[7]In passing sentence the judge said that he was giving the appellant full credit for his pleas of guilty and also his previous good character was taken into account. The judge described this as a well thought out plan to kidnap a young woman to satisfy the appellant's lust and depravity. He had humiliated and raped the victim in total isolation, and a particularly chilling aspect was the threat about the grave outside the caravan. The impact on the victim, as detailed in her personal statements, was also taken into account. The judge said that the court had to consider whether the appellant posed a significant risk of serious harm and concluded unhesitatingly that he did. The judge continued (page 10A):
"I then, having found you to be dangerous, have to determine the appropriate sentence for you. Effectively, I have two choices. It is either an indeterminate sentence for public protection, or it is a life term. A life term is imposed if the court considers that these offences taken together are so serious to justify such a sentence, over and above a term of imprisonment for public protection. The very clear nature of these offences, all the aspects that I have referred to in the sentencing remarks, my desire also that if you are ever to be released from custody, it should be on a life licence persuade me, despite the helpful submissions I have had, that the balance of the argument is in favour of the life term, rather than a term of imprisonment for public protection. I have considered alternative views of that, and that is my judgment, having regard to the points not, of course, because of the bare facts of this case, because when one makes an assessment as to dangerousness, one looks at prospective behaviour in the future. The absence of any sort of explanation for conduct of this sort, together with the factors in the pre-sentence report to which I have eluded, make me think that this is not only a case of dangerousness, but a case of real gravity and seriousness, and a life term must be passed for it."
Having referred to the appellant's good character, the judge then went on to fix a determinate sentence of 15 years and a minimum term of seven-and-a-half years, as we have already described.[8]There are two grounds of appeal. The first is that a sentence of life imprisonment was manifestly excessive and wrong in principle. The second is that a determinate element corresponding with a term after a trial of twenty-two-and-a-half years' imprisonment was manifestly excessive.[9]As regards the life imprisonment, Mr James submits that even if, as the judge held, the appellant satisfied the criteria of dangerousness, that of itself did not justify life imprisonment. Dangerousness could be adequately met by passing a term of imprisonment for public protection. Reliance is placed on what this court said in the case of R v Kehoe [2008] EWCA Crim 819, at paragraph 17:
"When, as here, an offender meets the criteria of dangerousness, there is no longer any need to protect the public by passing a sentence of life imprisonment for the public are now properly protected by the imposition of the sentence of imprisonment for public protection. In such cases, therefore, the cases decided before the Criminal Justice Act 2003 no longer offer guidance on when a life sentence should be imposed. We think that now, when the court finds that the defendant satisfies the criteria for dangerousness, a life sentence should be reserved for those cases where the culpability of the offender is particularly high or the offence itself particularly grave."
Accordingly life imprisonment should be reserved for those cases where the seriousness of the offence or offences is such as to justify a sentence of life imprisonment. That is the statutory test (see section 225(2)(b) of the Criminal Justice Act 2003).[10]In our judgment, in deciding to impose a sentence of life imprisonment, the judge seems to have decided that imprisonment for public protection was insufficient, both because of the seriousness of the offending and because, in his view, a life sentence provided a greater degree of protection against dangerousness. We consider that the first was in principle a good reason for imposing a life sentence, but the second was not. The question for us is quite simply whether these offences were so serious as to justify the imposition of a sentence of life imprisonment. Grave though they undoubtedly were, in our view, this was not a case for the imposition of a sentence of life imprisonment.[11]We acknowledge that this was a truly horrific experience for a 21-year-old victim, who will be almost certainly haunted by the memory of what happened to her for the rest of her life. But, as we say, grave though these offences were, we do not think that they justified the imposition of life sentences. In reaching this conclusion, we have taken into account the fact that the appellant was 58 years of age at the time of the offending and was a man of previous good character. But of greater importance is the fact that, terrifying though the ordeal must undoubtedly have been for the victim, the appellant did not in fact use the knife on her, nor did he strike her. The gravamen of the offending here was the threats and, of course, the serious sexual offences.[12]As for the second ground of appeal, it is submitted that a starting point of twenty-two-and-a-half years after a trial was too high. It is said that the judge did not sufficiently take into account the appellant's age at the time of his offending, the fact that he was a man of previous good character and the fact that the pre-sentence report stated that there was a low risk of his committing sexual offences in the future. More importantly, it is submitted that twenty-two-and-a-half years was far too high having regard to the range of offences of 6 to 11 years custody for contested cases involving abduction and rape suggested by the Sentencing Guidelines Council. In our judgment, there is some force in this submission. But this was a very bad case indeed. There were serious aggravating features, not the least of which was the threats to kill the victim; the pointing out to her of the depression in the ground which she described as her grave, if she did not comply with his demands; and the medical consequences for her of the sexual assault. But, as we have said, the appellant did not in fact use the knife, nor did he use violence on the victim over and above the sexual acts themselves.[13]In all the circumstances, in our judgment, the correct concurrent determinate sentences to have passed in this case, after a trial and before the discount for the pleas of guilty, would have been 16 years' imprisonment. To that there would have to be applied the one-third reduction. That leads us to 10 years and 8 months for the concurrent determinate terms. Passing sentences of imprisonment for public protection, we are required to fix the minimum term which the appellant must serve before he can be considered for possible release at half the determinate terms that we have just mentioned. Accordingly, we fix the minimum term at 5 years and 4 months. We emphasise that the significance of the 5 years and 4 months is that it is the earliest date at which the appellant can possibly be considered for release. That is the exercise that we are required by Parliament to perform and we have explained how we reach that figure. To that extent, therefore, this appeal is allowed.[14]MR JAMES: I am most obliged to my Lord. I wonder if I could, for the avoidance of doubt, confirm whether it is the case that my Lord would intend that the 81 days served--

LORD JUSTICE DYSON: I should have said that. The 81 days already served continues to count.