Knowles, R. v [2011] EWCA Crim 3102

[2011] EWCA Crim 3102Case No 201106514 A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 16 December 2011
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE PITCHFORD
MR JUSTICE ROYCE
MRS JUSTICE SHARP DBE
Between
R E G I N ACrownv
Between
WILLIAM ANTHONY KNOWLES
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr J Lally appeared for Applicant
J U D G M E N T
[1]MR JUSTICE ROYCE: William Knowles is aged 50. At the Crown Court at Manchester, before HHJ Atherton on 28 June 2011, he was sentenced to 14 months' imprisonment for breach of a Sexual Offences Prevention Order. 4 months extension of time is sought on grounds that new solicitors and counsel have been instructed. The applications have been referred to the full court by the registrar. We give leave.[2]When those who commit serious sexual offences are released into the community after serving their sentences, they are generally subject to Sexual Offences Prevention Orders designed to protect the public. Sometimes difficult sentencing decisions arise when a high-risk offender is released and breaches the Sexual Offences Prevention Order in what at first sight may appear to be a comparatively minor way.[3]This appellant has a history of very serious sexual offending. He committed his first sexual offence in 1977 when he was aged 15. He received a hospital order. The offence was committed against a 7-year-old female, the daughter of his mother's friend. He described grooming her over time, buying her sweets and gaining her trust before raping her. He also previously stated that he recalled that the victim cried, and said that it did not matter to him that she was crying.[4]After discharge from hospital, he re-offended within four weeks in 1980, when he was convicted of attempted rape and indecent assault on a female child. There had been a similar pattern of grooming. Thereafter, he had assaulted a male child. He received a 4-year term of imprisonment. That child was aged five, and lived two doors away from him. He had attempted anal penetration of the victim and ejaculated upon him. He then went to Northern Ireland. He committed various offences of burglary, for which he received terms of imprisonment. Then in 1995 at Hull Crown Court, he was convicted of assaulting a child. He was put on probation for 2 years. Later, he committed an offence of gross indecency on the 18-month-old baby of a lady who had become his partner. That lady awoke to find the door of the room in which her children were sleeping was locked from the inside. The appellant had gone in there, removed the baby's nappy, and semen confirmed to be that of the appellant was found on the baby's nappy and T-shirt.[5]A matter of months after his release from that sentence, he was convicted in 1998 of kidnapping a 7-year-old boy. That involved him grabbing the victim and carrying him to some secluded bushes, but the boy managed fortunately to run away. He received a sentence of 4 years' imprisonment. On release from that sentence, within a few days he was arrested for two further counts of kidnapping and attempted abduction in Liverpool. He received a sentence of 6 years. The victims were not known to him. They were two girls and one boy, aged between 7 and 10 years old. An application was made whilst he was in custody for a Sexual Offences Prevention Order that was put in force in 2004 and has since been amended in a number of respects. On release from custody from that sentence, there was media interest in him and that led to him having to move from hostel to hostel.[6]One of the amendments to the Sexual Offences Prevention Order introduced two further prohibitions. Firstly, he was prohibited from purchasing alcohol and he was prohibited from being intoxicated in any public place between 7 am and 7 pm, and consuming alcohol in any public place. Those further conditions were imposed because the court found that his use of alcohol would often be a precursor or trigger to his sexual offending. Following his release from that last custodial sentence, he was categorised as a critical public protection case and assigned to the top level of risk under a multi-agency public protection agreement. In consequence, his movements and actions were carefully monitored by officers from that unit.[7]In the early part of 2011, concerns began to arise over his behaviour. He was moved from Liverpool to Manchester because of the press publicity. After that move, he was placed in a controlled hostel. On the afternoon of 20 May 2011, officers from the MAPPA unit went to the hostel to monitor him. They found he was not there. They went to a bookmaker's close by where it was known that he would go from time to time. When they found him, it was apparent that he was intoxicated. He was staggering. He asked to use the lavatory. When the officers said that he could not use the one there, he went and relieved himself down a side street. He was arrested. He said he had drunk one pint of lager. Staff at the betting shop said that he had been there for about 40 minutes and said that he appeared to be intoxicated and smelled of alcohol.[8]The breach, at first sight, might appear to be comparatively minor. But the sentencing judge considered this matter with care and sensitivity. It was a difficult sentencing exercise. On the one hand, as is pointed out by Mr Lally on the appellant's behalf, the breach simply consisted of buying alcohol and being apparently intoxicated in a public place. Secondly, it did not involve, in fact, any approach to, or contact with, children. Thirdly, it appeared to have stemmed from the appellant's upset about having constantly to move addresses as a result of being pursued by the press. Fourthly, Mr Lally advances that the appellant had complied with the order for the previous 11 months.[9]It is, however, apparent from a more detailed analysis of the documentation with which we have been supplied that the appellant was not complying with the order or the spirit of the order since about March 2011. He was no longer engaging with his supervisors, he was not attending for breath tests, as had been arranged, and serious concerns were being expressed about him. The judge took those matters into account. What then was to be done? Mr Lally accepts that a custodial sentence was inevitable, but the judge gave insufficient weight to mitigating circumstances. The problem in this sort of case was addressed in R v Fenton [2007] 1 Cr App R (S) 97. In giving the judgment of the court, Leveson J, as he then was, said in relation to sex offenders orders at paragraph 20:
"If the breach does not involve any real or obvious risk to that section of the public whom it is intended should be protected by the order, a community penalty which further assists the offender to live within the terms of the order may well be appropriate although repeated breaches will necessarily involve a custodial sentence if only to demonstrate that the orders of the court are not to be ignored and cannot be broken with impunity. Any breach which does create a real or obvious risk to those whom the order is intended to protect must inevitably be treated more seriously and multiple or repeated breaches may well justify sentences that might otherwise have been considered far higher than any specific criminal offence or misconduct would have attracted. That, after all, is the statutory purpose behind the legislation in the first place."
In that case, a sentence of 2 1/2 years was upheld.[10]A more recent example can be found in R v Brown [2011] EWCA Crim 196, where again for a breach that on its face might have appeared comparatively minor, a sentence of 21 months' imprisonment was upheld.[11]In our judgment, the judge in this case approached his difficult task impeccably. A sentence of imprisonment was justified; that was indeed the recommendation in the pre-sentence report, which concluded that the appellant was currently unmanageable within the community. Accordingly, we conclude that the sentence of 14 months was neither wrong in principle nor manifestly excessive, and this appeal must be dismissed.