Brown, R. v [2011] EWCA Crim 1223

[2011] EWCA Crim 1223Case No 201005665 A8
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 19 April 2011
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE PITCHFORD
MR JUSTICE COOKE
Venue RECORDER OF CARDIFF - HIS HONOUR JUDGE NICHOLAS COOKE QC
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
BENJAMIN ADAM BROWN
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 0207 404 1424(Official Shorthand Writers to the Court)
Mr S Field appeared for Appellant
J U D G M E N T

LORD JUSTICE PITCHFORD:

The Recorder of Cardiff will give the judgment of the court.

[2]THE RECORDER OF CARDIFF: This is a case in which, by operation of the Sexual Offences (Amendment) Act 1992, the anonymity of the two complainants in relation to the sexual offending concerned is protected. Accordingly, no reporting of this judgment shall identify those victims, whom we shall refer to as "J" and "D".[3]On 24 November 2008 at the Gloucester Crown Court, having earlier pleaded guilty, the applicant, Benjamin Adam Brown, was sentenced to three concurrent extended sentences in relation to three counts of sexual assault upon a child, J, contrary to section 9(1) of the Sexual Offences Act 2003, the custodial term being specified at six and a half years and the extension period at three years. Concurrent terms of four and a half years' imprisonment for another offence contrary to section 9(1) of the Sexual Offences Act 2003, two years' imprisonment for an offence of indecent assault contrary to section 15(1) of the Sexual Offences Act 1956, two years' imprisonment for nine offences of making indecent images contrary to section 1(1)(a) of the Protection of Children Act 1978, and six months' imprisonment for another two offences contrary to section 1(1)(a) of the Protection of Children Act 1978 were also passed. No separate penalty was imposed for a breach of bail. Seven days, which might have been allowed as credit off the sentences actually imposed pursuant to section 240 of the Criminal Justice Act 2003, was not allowed so as to reflect a failure to surrender.[4]A Sexual Offences Prevention Order, to which we will refer in rather more detail later, was also made pursuant to section 104 of the Sexual Offences Act 2003. The applicant now seeks to renew his application for leave to appeal against sentence following a refusal by the single judge. He also seeks an extension of time, delay having resulted from an initial negative advice in relation to appeal against sentence, and time taken in relation to the instruction of fresh representation. We should make it clear that we have looked at the merits of this case and have not determined it solely by reference to the rather long period of delay.[5]No criticism is made of the determinate sentences passed. The proposed challenge relates to the assessment of the applicant as dangerous, and the consequent imposition of extended sentences.[6]The relevant offending consisted of the long-term sexual abuse from the age of 13 of J, whom the applicant had been trusted to babysit. The applicant, putting it at its lowest, failed to prevent J from consuming alcohol. He also gave him money and gifts. He eventually encouraged him to film himself naked. The sexual activity included masturbation (on one occasion video recorded), oral sex and anal penetration. The applicant appears to have at least to some extent taken advantage of J's beginning to abuse drugs.[7]The indecent images included a movie of a friend of the principal victim J, D, urinating, and the still image of the buggery of an unknown boy aged about 10. That image was placed in accordance with the well-known scale at level 5.[8]The effect upon the applicant's victims, both J and D, was drawn to the attention of the sentencing judge. J was a vulnerable victim and understandably in the circumstances he had been particularly affected.[9]There was a detailed basis of plea qualifying the pleas count by count. The offending was recognised by the applicant as involving a significant breach of trust.[10]The applicant is aged 33 years and was of hitherto clean character. A pre-sentence report available to the sentencing

judge included:

"2.6. Mr Brown seemed to have a distorted perception of his relationship with the victim and he describes being "in love" with [J]. Indeed, his request to speak to the victim after the PSR interview indicates his lack of understanding of how his sexual abuse has affected the victim in the long term. He did not show an appreciation of how his grooming of the victim, who was a vulnerable young male looking for a positive role model he could depend on, was exploited for Mr Brown's sexual gains and gratification. 2.7. He seems to take the view that because the victim did not openly protest or struggle against his abuse, that this was an indication that the victim did not object to his sexual advances or inappropriate behaviour. This would seem to further support my assessment that Mr Brown has an unrealistic perception of the harm caused to [J]. The defendant explained that he wanted to be a father figure for the victim and that he cared for the child which would seem to further demonstrate his flawed and distorted thought processes in regard to appropriate behaviour around children."
[11]It was material of that kind, in our judgment, that provided the primary source for the assessment in relation to dangerousness which the sentencing judge was to make. It is often the case that it is such material, rather than the precise terms in which conclusions are expressed in pre-sentence reports, which can and does sensibly inform decisions taken in this context.[12]The conclusion section of the pre-sentence report is in the following terms:
"5.3. If the Court is minded to impose a custodial sentence of a fixed term, I would propose the imposition of an Extended Sentence for Public Protection to enable Mr Brown to undertake relevant programme interventions as part of a Licence Condition. Should Mr Brown not complete the required programme intervention within prison, a period of at least three years is required for him to be able to complete all the pre groups work, the core sessions and the post group work in order for him to fully benefit from the programme in the community."
[13]Two psychological reports have been prepared in relation to the applicant, the earlier of which was available to the sentencing judge. The earlier reports did not support an assessment of dangerousness in terms, but, worryingly, it included:
"Mr Brown said that he befriended the youngster initially as a means of helping him and tried to provide a stabilising influence. Mr Brown felt that he was functioning almost as a surrogate father to the boy, and [J] describes him as such. Mr Brown was accepted into the household and would frequently stay over at the invitation of [J's] mother. Mr Brown said that on at least one occasion he was aware that [J] had stolen money from him. Mr Brown described [J] as somebody who was already sexually knowing and who was bisexual. [J] for his part knew that Mr Brown was gay and, even before they became sexually involved, would pull a banana in and out of his mouth in front of him, suggestively. Sexual activity with [J] was, he said, consensual and mutual."
[14]Again, it is that sort of material which can provide assistance in underpinning a finding of dangerousness.[15]We do not consider that, having regard to all the material available to the sentencing judge, it was in any way incumbent upon him to accept the psychological assessment that the risk of offending was acceptably reduced by the fact that the offending concerned principally arose in relation to very particular circumstances. It is not without significance that the psychological report available to the sentencing judge did not extend into any particularisation in relation to assessing the significance of the possession of the images to which we have referred.[16]We consider that the sentencing judge correctly was influenced by considerations arising out of the material which we have set out herein. The more recent psychological report was prepared for a quite different purpose to that of sentencing. It was prepared in relation to a contemplated challenge to the necessity for this applicant to undergo various courses in closed conditions. It includes, at section 17 thereof, an evaluation of the potential significance of a relationship which the applicant has formed with another prisoner. It is unnecessary to go into detail in relation to that for the purposes of this judgment, but reading the detail thereof only serves to highlight the potential difficulties in managing risk in relation to this applicant in the medium term in the community.[17]We consider that the conclusion reached by the sentencing judge to the effect that an extended sentence for public protection was necessary here, rather than imprisonment for public protection and was adequate to manage risk was unimpeachable. He had fully in mind the significance of his also making a Sexual Offences Prevention Order, but he regarded the combination of the possibility of detailed supervision of the applicant's activities pursuant to an extended licence and the prohibition regime provided for by the Sexual Offences Prevention Order as being desirable in this instance.[18]We find the conclusion in relation to dangerousness and the disposal of this case in relation to the primary sentences passed unimpeachable. There is, however, a matter which concerns us in relation to the Sexual Offences Prevention Order which we shall deal with briefly. The final provision of the Sexual Offences Prevention Order which was made reads as follows:
"save where to do so is inadvertent or unavoidable, not to possess any images of a child under the age of 16 years unless the prior permission of that child's parents or guardian has been obtained"
. That restriction would, for example, serve to criminalise the continued possession of a daily newspaper which happened to have an inoffensive photograph of a child in it unless it was disposed of straight away upon realisation that such a photograph was in the newspaper. It is not adequate to rely upon the good sense of prosecutors in cases of this type so that very widely drafted prohibitions can be incorporated. We regard that prohibition as being far too widely drafted, and we are therefore minded to delete it. In order to do so, it will be necessary to grant an extension of time and leave to appeal so as to deal with that point alone. To that extent we propose to permit this application and allow this appeal.

LORD JUSTICE PITCHFORD: Mr Field, that order can take effect immediately if you consider that you are sufficiently clothed with authority to accept it. If, on the other hand, you want the appellant, as he now is, to express a view about it, then we would order that it would take effect within seven days unless any written submission is made within that period. What do you want us to do?

[20]MR FIELD: At the moment, leave things as they stand. My Lord, I will take instructions, but with that seven days in mind. So if I have understood it correctly, the applicant would have leave to make representations within seven days.

LORD JUSTICE PITCHFORD: The order will take effect within seven days unless in the meantime a written application is received from the appellant seeking to make further representations to the court.

[22]MR FIELD: I am satisfied with that, my Lord.