Andrews, R. v [2015] EWCA Crim 883

[2015] EWCA Crim 883Case No 201405368/A5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 29th April 2015
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE TREACY
MR JUSTICE NICOL
RECORDER OF STAFFORD
(HIS HONOUR JUDGE TONKING)
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
DONALD JOSEPH ANDREWS
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 7831 8838(Official Shorthand Writers to the Court)
Mr R Banks appeared for ApplicantMr L Mably appeared for Crown
J U D G M E N T
[1]This matter has been referred to the Full Court by the Registrar. We grant leave to appeal. An extension of time of about two-and-half years is also required and we grant that, there being a serious issue on the merits on this appeal. It also appears that advice given by trial counsel was, in at least one respect erroneous, he having thought that risk posed by an offender was a relevant consideration in the making of a whole life order.[2]The appellant was sentenced at Woolwich Crown Court on 18th May 2012 having pleaded guilty previously at the PCMH stage of proceedings. He was sentenced for some 10 offences in all. They arise from the same set of circumstances, and all involve the same unfortunate victim. The sentence imposed was for six counts of rape together with one count of kidnapping and one count of causing grievous bodily harm with intent. Concurrent sentences of life imprisonment were imposed. There were also single counts of false imprisonment and assault occasioning actual bodily harm for which concurrent 5 year terms of imprisonment were imposed.[3]Since life sentences not fixed by law had been imposed, the provisions of section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 applied. Exercising his powers under section 82A(4) the judge ordered that the early release provisions should not apply. Thus, he set no minimum term which had to be served before the offender's release could be considered by the Parole Board. The effect of the judge's order was that a whole life order was imposed meaning that the appellant had no prospect of ever being released.[4]The judge also sentenced the appellant to no separate penalty for breach of a violent offender order. The appellant had been sent to the Crown Court for trial in relation to this matter but it appears no indictment was ever lodged by the Crown and no arraignment ever took place.[5]Accordingly the judge had no jurisdiction to deal with the matter at all. Although it is entirely academic, for the sake of regularity and clarity we quash the judge's order in relation to the violent offender order.[6]This appeal does not challenge the passing of life sentences. The focus of Mr Banks' arguments have been that the whole life order was manifestly excessive and wrong in principle. It is not contended that a Hospital Order was appropriate.[7]There is a subsidiary ground of appeal raising the issue that the maximum sentence for the section 47 matter was imposed notwithstanding the fact that a guilty plea had been entered. This ground, as Mr Banks recognises, is entirely academic, since the sentence for that offence was subsumed into those where life imprisonment was imposed. Moreover, the term imposed for the section 47 offence was ordered to run concurrently with an identical term for the offence of false imprisonment. The sentence for the section 47 matter could and perhaps should, as a matter of principle, have reflected the guilty plea but in circumstances where the point makes absolutely no practical difference, we do not propose to alter the sentence passed and instead concentrate on the core of this appeal, which relates to the whole life order.[8]The facts of the offences and the information about the appellant's criminal and mental history are such that the concession that life imprisonment was appropriate is entirely realistic.[9]The facts show that on an evening in September 2011 the victim, a female aged 29, went with a friend to a gay public house in Bromley. By the end of the evening she was quite drunk. The appellant had been present at the venue. He was on his own. He did not know the victim and there was no contact between them whilst they were in the pub. However, it is clear that at some point he targeted her and planned to commit very serious offences against her.[10]In the early hours of the morning the victim's friend who had earlier left the club returned to it with a view to collecting the victim. By then the pub was locked so the friend, seeing the appellant, asked him to go and get the victim. He made a pretence of speaking to the victim and returned with a message telling the friend that the victim would make her own way home. The appellant was manipulating the situation so that he could be alone with the victim at the end of the evening.[11]When the victim left the pub she was on her own, with no money, no phone and no knowledge of where she was or how she would get home. The appellant offered to take her back to his house so that she could phone a friend or call a taxi. CCTV shows them heading towards the appellant's address. At one point he appears to try to guide her down an alleyway but the victim veered away and they continued on to the appellant's address. By this stage the victim had no idea where she was. She was wholly reliant on the appellant to help her.[12]Once inside the house the appellant double locked the front door. He told the victim that she was not going home and he kept her a prisoner in the premises until the following evening notwithstanding her protests. When she attempted to leave he attacked her, grabbing her around the throat and punching her to the face. He struck repeated blows and she lost consciousness. The assaults continued inside the property over a number of hours and resulted in numerous bruises and injuries to the victim's body. This violence is reflected in the count of assault occasioning actual bodily harm.[13]At one point the victim was struck in the face and knocked onto a bed whereupon the appellant removed her underwear. The victim resisted but was hit again until she became unconscious. She awoke to find herself being held down forcefully while being raped vaginally. Although she was bleeding from the mouth the appellant then proceeded to force her to suck his penis whilst he held her hair. He ignored her pleas to him to stop.[14]Over the next 12 hours or so she was repeatedly forced to perform oral sex and vaginal sex against her will. There were specimen rape counts relating to this activity. In addition, there was a count of rape reflecting an instance of painful anal penetration from behind which caused the victim to bleed.[15]By around 7.00 pm the appellant appeared to agree to release the victim but insisted that first she should have a bath so as to destroy evidence of his DNA. His instructions included the washing of hair and scrubbing under fingernails. The appellant then said he would walk the victim to a station.[16]They left the premises together. The appellant kept close to the victim. He appeared to have something in his pocket which the victim thought was a knife. By now it was dark. The pair kept to the back streets and only passed one person on the way. The victim was however too frightened to try to attract that person's attention. The appellant knew that the victim did not know where she was. He did not take her to the station but instead took her to a remote wooded area by a stream. This caused great concern to the victim and is reflected in the kidnapping count.[17]Once in the woods the victim was forced to perform oral sex upon the appellant. He said he was going to kill her. He told her he had raped and killed before and that his plan was to chop her into pieces. Suddenly he picked her up by the legs from behind and threw her over a railing into a stream below. The victim fell from a substantial height. The stream ran inside a concrete culvert whose sides were approximately 12 feet high. The water below was up to 18 inches in depth. The victim went under water. She believed that she was knocked unconscious. As the judge put it, she was left there for dead. She was exposed to a real risk of additional harm. After a period of time in the water the victim managed to find her way to a nearby house to seek help. The police were called.[18]The victim was taken to hospital. She was found to have a fractured pelvis, together with very extensive bruising over the whole of her head and body. The likelihood is that the majority of her injuries were caused inside the house but that the fractured pelvis was most probably caused by being thrown from the bridge into the stream.[19]The appellant tried to go on the run but was arrested not long afterwards in the Potters Bar area.[20]When interviewed he made no comment. However, he was positively identified in identification procedures both by the victim and by a pub security guard. The appellant's DNA was found in semen collected from the victim's mouthwash. There were a number of other stands of evidence implicating the appellant.[21]We have considered the victim's personal statement. Unsurprisingly what happened to her has been a life changing experience which will continue to have its effects over a long period. The trial judge understandably described what had happened to the victim as being "sheer hell". It is clear that the victim is a courageous person but nonetheless the very harmful ongoing effects upon her life are to be recognised as a significant aggravating feature.[22]The appellant is now 51 years of age. He has a long criminal record which contains a number of features of significance.[23]In 1984 he went to a squat with a man he had met during the course of a day's drinking. While there the victim was attacked by this appellant and others. This appellant stabbed the victim to the neck whilst a physical attack continued. In the course of this the victim seems to have died although he was then put into bath water and held under water to ensure his death. The appellant was acquitted of murder and convicted of manslaughter. He would have been 19 at the time of the crime. We have not lost sight of the fact of his age but the fact is that this offending is merely the part of a subsequent pattern of offending which has persisted during this appellant's life.[24]In 1985 he received 9 years for a further offence of manslaughter and one of aggravated burglary. These offences had been committed about 9 months after the previous offence of manslaughter. The victim was killed in the course of a domestic burglary, in the course of which she received stab wounds from the appellant. He was again acquitted of murder and convicted of manslaughter.[25]In 2001 he was sentenced to 18 months' imprisonment to run consecutive to a term for breach of licence conditions. This sentence was imposed for an offence of false imprisonment. He had met the victim in a gay pub. The pair had gone to a local park with a view to having sex. When the victim demurred at some of the appellant's demands matters turned violent and the victim was dragged to the appellant's car, forced inside and threatened with a metal bar. The car then drove off. Fortunately, after the car had travelled a relatively short distance the victim was able to escape.[26]In 2003 there are convictions recorded for indecent assault and assault occasioning actual bodily harm. A term of 6 years' imprisonment, with a 2 year extended period of licence was imposed. The victim met the appellant in a gay nightclub. When she left to go home she was intoxicated and the appellant left with her. He dragged her into an alleyway and subjected to a violent sexual assault in the course of which she suffered multiple injuries. She awoke from unconsciousness to find the appellant masturbating over her; this was followed by repeated kicking.[27]As it happens at the time of the present offences this appellant was subject to a community order including a supervision requirement which had been imposed some 3 months before for dissimilar offences. Normally this would be an aggravating factor of some significance but in the present case it rather pales by comparison.[28]It is clear that there are a number of features in the previous convictions which bear a degree of similarity to the present matter and which reveal a pattern of violent and sexual offences. Plainly this record is highly relevant and aggravates the present case.[29]The appellant's mental state was explored in a series of reports. There was a pre-sentence report which noted that despite high levels of psychiatric intervention the appellant had continued to offend in a pattern which had moved towards an escalating level of sexual violence. The appellant was assessed as presenting a very high risk of harm to the public, with females being particularly at risk. The appellant expressed no regret and showed a high degree of denial regarding his behaviour. We have seen a post sentence report which echoes those matters. It maintains denials of rape or physical assault on the present victim and admits little more than false imprisonment motivated by a desire to return to custody.[30]There were reports from two consultant psychiatrists who were essentially in agreement. The appellant does not suffer from a mental illness, although he does have a severe personality disorder and probably a psychopathic personality. Although he has been through many treatments they have had very limited impact upon the risk he presents, which are at a very high level. There are no further treatment programmes which can conceivably reduce his risk of serious offending and a hospital order or transfer was not appropriate.[31]In the light of the criminal record, the assessment of danger and the observations of the psychiatrists, the judge rightly concluded that it would not be possible to determine any point at which it would be safe to release this offender into society, and, having regard to the nature of the offences, he rightly passed terms of life imprisonment. However, in directing that the early release provisions should not apply and thus in imposing a whole life order, the judge appears to have based his conclusion on the fact that he could not foresee a time when it would be safe to release the appellant. In so doing he was clearly focussing on the element of risk. We accept Mr Banks submissions that in this respect the judge's analysis was flawed and that a whole life order should not have been made.[32]It is clear, both from section 82A(4), from established authority and the relevant Criminal Practice Direction, that while the actual sentence of life imprisonment will be governed by consideration of risks to the public, the question of the appropriate tariff is to be judged not by risk but by considerations of punishment and deterrence, taking into account the seriousness of the offence.[33]Reference to the current Criminal Practice Direction (Sentencing) L [2013] 1 WLR 3164, shows that this is the case and that the approach to the provisions of section 82A is governed solely by the seriousness of the offence.[34]Reference to decisions of this court such as R v Jones [2006] 2 Cr App R(S) 19 and R v Oakes & Ors [2013] 2 Cr App R 22 confirm the position. A whole life order should only be imposed where the seriousness of the offending is so exceptionally high that just punishment requires the offender to be kept in prison for the rest of his or her life. This a penalty of last resort, reserved for crimes of the utmost seriousness and is intended to apply only in the case of exceptionally serious offences.[35]We have had the benefit of extensive analysis of those cases in which whole life orders have been made and sustained. There are a little over 50 such cases. As was observed at paragraph 101 of Oakes, among the cases where whole life orders have been imposed, none can be found in the context of sexual crime where one or more of the victims had not been murdered. This analysis includes the case of R v John Taylor [2006] EWHC 2944 (QB) which on proper analysis falls within this category. Although the door is not conclusively shut to the imposition of a whole life order in serious cases, not involving a homicide, the practice of this court to date has been against the imposition of such a sentence in a non-homicide case.[36]The recent decision of this court in Attorney-General Reference No 123 of 2014 (R v Spence) [2015] EWCA Crim 111 is a striking example of this approach. We do however bear in mind the observations of Lord Thomas CJ in R v Reynolds [2014] EWCA Crim 2205, at paragraph 6, where he cautioned against seeking to compare the facts of one case with another in determining whether a whole life order is required. What is required in each case is that the judge should determine the matter by reference to a detailed consideration of all the relevant circumstances together with an application of principles to be found in Jones and Oakes. Since it appears to us that the judge below did not ask himself the correct question, we have applied the tests indicated by Jones and Oakes, having regard also to the overall practice of this court.[37]Whilst in no way seeking to diminish the appalling ordeal suffered by the victim in this case and the very harmful consequences of the offending upon her, we have come to the clear conclusion that on a correct application of principle a whole life order should not have been imposed. In so doing, we note the position of the Crown, which was to accept that it is arguable that such an order should not have been imposed in this case.[38]As was observed by Lord Phillips CJ at paragraph 10 of Jones:
"Often, perhaps unusually, where such an order is called for the case will not be on the borderline. The facts of the case, considered as whole, will leave the judge in no doubt that the offender must be kept in prison for the rest of her life. Indeed if the judge is in doubt this may well be an indication that a finite minimum term ... is the appropriate disposal."
[39]A principled analysis shows that the circumstances of this case do not clearly and beyond doubt fulfil the very high test of exceptionality which must be satisfied before this type of order is imposed. As was observed in Oakes, such an order will be a very rare event unless the defendant is convicted of at least one murder. We therefore quash that part of the judge's decision which had the effect of making a whole life order.[40]In those circumstances, it is incumbent upon us to substitute an order under section 82A imposing a minimum term to be served before this offender can be considered for release.[41]It is necessary for us to focus on the seriousness of the overall offending. That of course will not merely be confined to the offences themselves; it will take account of this offender's very significant past record for sexual and violent crime, the very harmful effects upon the victim and relevant features of aggravation and mitigation. As to mitigation there is in our judgment none of substance apart from the guilty plea. Mr Banks sought to rely on the appellant's unfortunate start in life, his personality disorder and his alcohol abuse, as reducing culpability. We do not accept that there is any force in those submissions when set alongside significant planning, purposive actions and forensic awareness, demonstrated in the commission of these crimes.[42]The guilty plea does not contain any element of remorse, as is exemplified by the appellant's significant denials of responsibility to the probation officers. In analysing credit for the guilty plea, we note that it was tendered at the PCMH. This was not the first appearance before the Crown Court. There had been a preliminary hearing at which the appellant was produced on 30th September 2011. The appellant did not indicate any guilty plea at that stage. Indeed, the case was set down for trial, a date was fixed and a 5 day estimate for that trial was given. The Sentencing Guidelines Council's guideline on guilty pleas shows that if a plea is tendered after a trial date has been set, the recommended level of discount for that guilty plea is 25%.[43]In addition we consider that the strength of the overall evidence against this appellant was extremely strong. Whilst we accept that on some individual counts, for example, in relation to one of anal rape, there was room for argument as to whether the full offence had been completed, an overall examination of the various strands of evidence available to the Crown shows an overwhelming case in relation to the essentials of the Crown's case. Looking both at the timing of the guilty pleas and the strength of the evidence, we consider that 20% is the appropriate and just level of credit to be granted in this case.[44]The relevant guideline at the time of sentence and thus for present purposes is the Sentencing Guidelines Council's guideline on rape. That indicates that for repeated rape of the same victim over a period of time, the starting point of 15 years is appropriate, with a range between 13 and 19 years. Those figures of course apply to an offender of previous good character, which this offender was not, and who contested the case, which this offender did not. The guideline identifies relevant aggravating factors of ejaculation and abduction or detention, both of which are present here. In addition to those features which are identified as part of the specific rape guideline, there are other general aggravating features identified at pages 9 and 10 of the overall guidance in relation to the offences under the Sexual Offences Act 2003.[45]We identify as aggravating features, previous convictions having resonance with the current offences, significant planning, the attempt to conceal or dispose of evidence and the use of violence beyond that inherent in the offences. In addition, the offender was aware of the victim's vulnerability from the time she left the club in the circumstances we have described. Moreover, we have already referred to the serious and ongoing effects of what happened upon the victim. We also bear in mind that the offences of kidnapping and causing grievous bodily harm with intent were committed in a separate phase of this offending and in terrifying circumstances including a further sexual attack which must have led the victim to fear for her life after the threats which were made. It was in the course of this latter episode that the victim sustained the most serious physical injuries at the hands of an attacker who intended to cause such harm.[46]Even for an offender of previous good character, we are satisfied that the offences which took place at the appellant's home would have attracted a notional determinate term at the very top of the available sentencing range. Such a sentence, however, would not take account of the further serious offences which occurred after the pair left the appellant's house, nor would it factor in the criminal record.[47]Moreover, given the multiplicity of the aggravating features which are not, in our judgment, balanced by any significant mitigation, apart from the guilty plea, a court would be justified in going beyond the range identified in the guideline before taking account of the factors identified in the previous sentence of this judgment.[48]Looking at the matter in the round and considering the case of R v DJ [2015] EWCA Crim 563, we consider that a notional determinate term of 30 years is appropriate. For the purposes of setting the minimum term under section 82A we have to reduce that figure to reflect the guilty pleas and then divide by two. That gives a figure of 12 years against which credit is due for time on remand amounting to some 237 days.[49]Accordingly we allow the appeal by maintaining orders of life imprisonment on each of the relevant counts, but by quashing the whole life orders. In their place we substitute a minimum term of 12 years less 237 days. We emphasise that this new sentence in no way diminishes the gravity of these offences or any way reflects upon the extreme danger that this offender poses to the public. Nor does the new sentence suggest that there is any real prospect of that position being changed by any further treatment.[50]In the circumstances, we see little or no prospect of this offender's release. The order now made merely provides the earliest date at which this offender could be considered for release. However, he cannot and will not be released until the relevant authorities are satisfied that it would be safe to do so. On the evidence before us, it is extremely unlikely that he will be safe for release then or at any later time. To the extent indicated, this appeal is allowed.

LORD JUSTICE TREACY: Mr Mably, I suspect that there may be parties interested in this hearing present in court. I know not for certain. I would be grateful, notwithstanding the court's explanation of the effect of the order, if you would ensure that before they leave court that they fully understand the consequences and the realities of the order which has been made today.

[52]MR MABLY: Most certainly my Lord, yes.

Cited in 1 later judgment