Marshall, R. v [2011] EWCA Crim 638

[2011] EWCA Crim 638Case No 2011/00082/A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday 1 March 2011
Between
R E G I N ACrown
The Strand
London
WC2A 2LL
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)
MR JUSTICE HENRIQUES
and
MR JUSTICE DAVIS
__________________
- v -
Between
PAUL LESLIE MARSHALL__________________Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)165 Fleet Street, London EC4Telephone No: 020 7404 1400; Fax No: 020 7404 1424(Official Shorthand Writers to the Court)__________________Mr J Maloney appeared for ApplicantMiss J Rowley appeared for Crown____________________J U D G M E N T

THE LORD CHIEF JUSTICE:

[1]The applicant is Paul Marshall. He is 44 years old. He has significant previous convictions. He was first convicted in 1984, but his first conviction for a sexual offence occurred in 1993 when, following conviction for indecent assault, he was sentenced to two years' imprisonment. In those days that was a substantial sentence and it suggests that the indecent assault involved a number of aggravating features. It is relevant to notice that at that time he was also convicted of failing to surrender to bail. The context will become apparent in a moment. In 1997 he was convicted of rape of a 15 year old girl. That triggered the requirement that he should register indefinitely as a sex offender. On 3 December 2010, after he pleaded guilty before the magistrates, he was committed for sentence to the Crown Court following conviction for failing without reasonable excuse to comply with the notification requirements which were imposed on him on his conviction for rape.[2]A few days later, on 17 December 2010, in the Crown Court at Gloucester, before His Honour Judge Tabor QC, he was sentenced to twelve months' imprisonment. An appropriate order under section 240 of the Criminal Justice Act 2003 in relation to time spent in custody on remand was made.[3]His application for leave to appeal against sentence has been referred to the full court by the Registrar.[4]When an offender is required to register as a sex offender he (or she) is required to inform the police of any change of address or of any occasion when he intends to stay away from home for seven days by attending a local police station within three days of the change.[5]Following his conviction for rape, the applicant was released from prison in 2001. At that stage it was considered that he represented a high risk of harm. He was regularly visited at his home address by officers responsible for public protection.[6]In November 2009 the applicant was convicted at Gloucester Crown Court for failing to comply with the notification requirements. He was then sentenced to nine months' imprisonment. So when he came before Judge Tabor at the Crown Court on 17 December 2010, it was the second occasion on which the applicant had been before the court for non-compliance with the requirements.[7]In August 2010 the applicant's last known address, which was the Northend Bolts public house, was damaged by fire. Accordingly, the applicant moved out of that address and found accommodation with a friend. At that stage it appears that he telephoned the police to inform them of what had happened. Given the emergency caused by the fire, it was not unreasonable that he should have used the telephone for this purpose. But he was warned that if the problem were to continue and his address changed, he must visit the local police station to comply with the notification requirements.[8]There was no further communication. The applicant made no contact with the officers responsible for public protection; he did not visit the police station, or notify his new address.[9]He was arrested on 6 November 2010. When he was interviewed he accepted that he had failed strictly to comply with the notification requirements. He asserted that he had telephoned the police on two occasions to advise his change of address. The police records about such matters are kept meticulously. A record was made of the fact that he had made one telephone call. We have narrated the effect of that telephone call in the course of this judgment. There was, however, no record of a second telephone call.[10]The pre-sentence report with which the sentencing judge was provided included a number of disturbing features. It records that the applicant disputed some of the background to the offence but fully accepted that he had not attended the police station to complete the up-to-date notification. His failure to do so was explained on the basis that he was working for long hours and was too tired to attend the police station when he arrived home at the end of the working day. The author of the report expressed concern that "Mr Marshall does not appear to be prioritising his compliance with the conditions which have been placed upon him". Having narrated the facts of the previous convictions, the author continued:
"3.8 Probation records indicate that historically Mr Marshall can be challenging in supervision. However, he was described as generally co-operative but wanting things on his terms. [He] is not willing to discuss his offending in any depth and therefore I would consider that he had very little insight into his behaviour and has no motivation to address this. [He] expresses hostility particularly if he considers that he is being told what to do, if he receives unannounced visits from people in authority or if he perceives another person to be challenging him."

The author concluded:

"5.2. [The applicant] refused to participate on the Sex Offender Treatment Programme or undertake work in relation to alcohol misuse or anger management during his custodial sentence or [following his] release on licence ...."
[11]This was a serious case. In his sentencing remarks the judge observed that in 1997 the applicant had committed one of the most serious offences in the criminal calendar. It was this conviction that had triggered the applicant's registration as a sex offender. He was regarded as a serious risk and would continue to be so regarded for as long as he did not do what he was meant to do. The burden of going into a police station to notify his change of address was not too onerous. The applicant had failed to do so. He knew what the consequences would be because he had done it before.[12]The broad submission made by Mr Maloney on the applicant's behalf is that the resulting twelve months' imprisonment was manifestly excessive, and that the judge had failed to make a sufficient allowance for the guilty plea tendered by the applicant at the earliest possible opportunity.[13]The Registrar of Criminal Appeals referred the case to this court in order, if possible, for the court to give guidance about the sentencing approach to cases of failure to comply with the statutory requirements to notify under the Sexual Offences Act 2003. We do not think we can do so. This offence, like every other, varies in its seriousness. It may vary from the virtually inadvertent failure to comply with the notification requirement, which occurs very many years after the original conviction and the date when the requirement was imposed, with no possible harmful consequences, to cases of deliberate action designed to enable the offender to escape from the notification requirements with malign intent. The level of culpability for this offence and its consequences will vary and must be reflected in the individual sentencing decision. However, it is worth emphasising that the notification requirements were created to advance the interests of public safety from those who have committed sexual offences. The analysis of the seriousness of the individual offences therefore should include attention to the nature and extent of those offences, and the risk posed to the public by the individual offender on the basis not only of the offences of which he has been convicted, but any relevant material about his understanding of and attitude to notification requirements.[14]These matters were considered by this court in R v Grosvenor [2010] EWCA Crim 560 in which a number of cases of lesser seriousness than the present were considered. Those cases were R v Clark [2003] 1 Cr App R(S) 2, R v B [2005] 2 Cr App R(S) 65 and R v Bowman [2006] 2 Cr App R(S) 40. Having examined those cases, the court in Grosvenor underlined that there was no evidence that the appellant was a sexual predator; that his whereabouts were unknown for some weeks; but that this was the third occasion when he had failed to comply and that there was "an indifference" on his part to court orders. It was concluded that it could not be argued that there was a ceiling of three months' imprisonment or so for offences of this nature "not least when the offender has a settled intention to ignore the provisions". The appeal against sentence was dismissed in language which might have led the careful reader to see that the Court of Appeal did not regard the sentence as necessarily the appropriate sentence for the criminality involved in that case.[15]We return to the present case. The applicant had been convicted of two serious sexual offences. He had not displayed any insight into the effect of his criminality or its seriousness. He had already been convicted and sentenced for failing to comply with the notification requirements. He had repeated the offence in the face of that prison sentence and also in the face of a clear warning about what he was obliged to do in connection with the notification requirements. On the material before us the applicant is indifferent to the need to comply with orders of the court when he does not agree with them or wish to comply with them. Allowance had to be given to him for his early guilty plea before the magistrates.[16]The judge reflected on all these considerations. In our judgment the sentence that he imposed on the applicant was amply justified. Accordingly the application for leave to appeal against sentence will be refused. ___________________________________