Rogers, R v [2017] EWCA Crim 850

Case No 2017/0510/A3[2017] EWCA 850 (Crim)
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday 7 June 2017
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE HICKINBOTTOM
MR JUSTICE HOLROYDE
Venue THE RECORDER OF BIRMINGHAM
HIS HONOUR JUDGE INMAN QC
(Sitting as a Judge of the CACD)
R E G I N A
WILLIAM ALFRED ROGERS
Computer-Aided Transcript of the Stenograph Notes of
WordWave International Limited trading as DTI
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(Official Shorthand Writers to the Court)
Miss S Duckworth appeared on behalf of the Appellant
The Crown did not appear and was not represented
J U D G M E N T
Between
RogersDefendantRCrown
[1]MR JUSTICE HOLROYDE: There is in this case a young witness who is entitled to the lifelong protection of section 45A of the Youth Justice and Criminal Evidence Act 1999. Her name must accordingly be anonymised in any report of these proceedings.[2]This is an appeal by leave of the single judge against sentences totalling three years' imprisonment for two offences of breach of a Sexual Offences Prevention Order, contrary to section 113(1)(a) of the Sexual Offences Act 2003. The appellant, William Rogers, who was born on 25th September 1951 and so is now 65 years old, has appeared before the courts on many occasions. He has previously been convicted of 98 offences. Thirty-eight of those offences have been sexual offences, directed against both adults and children. In 2009 he was convicted of 15 offences of making indecent photographs of children. He was made subject to a community order with a number of requirements and was also made subject to a Sexual Offences Prevention Order ("SOPO") of indefinite duration. He failed to comply with the terms of the community order, committed two offences of breach of the SOPO and committed further offences involving indecent photographs of children. As a result of those various matters he was sentenced to a substantial term of imprisonment.[3]Following his release from that sentence, the SOPO of course remained in force. It was amended in July 2014 in order to clarify its terms. In its amended form it prohibited the appellant from:
"1. Having any unsupervised contact of any kind with a child under 16 years other than: (i) such as is inadvertent and not reasonably avoidable in the course of lawful daily life; (ii) with the consent of the child's parents or guardian who has knowledge of his conviction. 2. Using any device capable of accessing the internet unless: (i) it has the capability to retain and display the history of internet use and (ii) he makes the device available on request for inspection by a Police Officer. 3. Deleting such history. 4. Possessing any device capable of storing digital images unless he makes it available on request for inspection by a Police Officer."
[4]In April 2016 a police officer involved in monitoring the SOPO visited the appellant's home. When asked to show the officer any devices capable of accessing the internet the appellant produced two mobile phones and a computer tower. Examination of those devices did not reveal any cause for concern. The appellant however did not disclose that he was also in possession of a laptop computer. That failure was a breach of the SOPO.[5]This offence first came to light because a man who had been engaged by the appellant to repair the laptop reported to the police that he had found on it a video clip of a woman urinating, which had been recorded by the appellant using a camera covertly installed in his bathroom.[6]In early July 2016 the appellant was arrested for that first breach of the SOPO and he pleaded guilty to that offence at an early stage.[7]Then in August 2016, whilst on bail for the first offence, the appellant committed the second breach of the SOPO. He was at that time in a relationship with a woman to whom we shall refer as Miss B. She was aware of some of his previous convictions but not aware that he was subject to the restrictions in the SOPO. Miss B had at the time a 10-year-old daughter, to whom we shall refer as S. S did not live with her mother and was under the care of a guardian.[8]The offence was committed when the appellant drove Miss B to visit her former partner at a prison. Also in the car were S and Miss B's 19-year-old brother. Neither the brother nor S's guardian knew anything about the appellant's criminal record. The appellant had said nothing to any of them about the restrictions to which he was subject.[9]Upon their arrival at the prison, Miss B went inside to make her visit. The appellant remained in the car with Miss B's brother and with S. A time came however when the brother left the car for a few minutes in order to make a phone call. He did not move far away, but his back was to the car whilst he was using his phone and the appellant was thus left unsupervised in the company of S. There was no allegation that the appellant did anything towards S but he was plainly in breach of the SOPO. To this second offence he belatedly pleaded guilty on the day set for his trial.[10]A pre-sentence report assessed the appellant as continuing to pose a high risk of harm to women and children. The author of the report regarded these offences as "indicative of ongoing deviant sexual issues and the willingness to breach measures designed to manage his risk of further offending."[11]The appellant came before His Honour Judge Newell sitting in the Crown Court at Preston on 3rd January 2017. In his careful sentencing remarks the learned judge rejected a submission that the court could and should impose a sentence aimed at rehabilitation. He said:
"In the 48 years that have elapsed between your first and last sexual conviction (1968 to 2016), every part of the criminal justice system (and every sentence available to them) has made endeavours to try and, either deter you, or rehabilitate you, all without success."
The judge went on to note that the second offence had been committed whilst the appellant was on bail for the first. As to that second offence, he observed that although the appellant was only alone with S for a very short period of time, the appellant "knew full well that that was not permitted and yet you made no disclosure to anybody, in respect of your previous convictions, the sort of disclosure that any reasonable and sensible parent, or guardian, or supervisor, would have expected."[12]The judge accepted the assessment of the author of the pre-sentence report to which we have already referred. He concluded:
"In those circumstances, I cannot (and do not) consider any rehabilitation, I consider deterrence is limited, that your sexual offending is ingrained and will persist and the only sensible conclusion is to try and protect the public (and particularly children) from you, for such period of time as is available to me."
Giving credit for the guilty pleas and having regard to the times at which they were entered, the learned judge sentenced the appellant to 30 months' imprisonment for the first breach and to a consecutive term of six months' imprisonment for the second breach. Thus the total sentence was one of three years' imprisonment.[13]The maximum penalty for the offence of breaching a SOPO is five years' imprisonment. There is, as yet, no definitive sentencing guideline applicable for such breaches. In her well-focused submissions on behalf of the appellant, for which we are grateful, Miss Duckworth submits that the sentence of 30 months for the first offence, implying a sentence after trial of 45 months, was simply far too high. She makes no specific complaint in relation to the consecutive term of six months' imprisonment for the second offence, but argues that the total of three years was much too high.[14]We have reflected upon those submissions. In our judgment the first offence was a serious breach of the SOPO. True it is that when the laptop computer was examined there were no unlawful images of children and the only material found on it which gave rise to concern was the recording of the woman urinating. There had nonetheless been a quite deliberate withholding of that laptop when the appellant had lawfully been required by the police officer to make all relevant devices available for inspection. In the lower court some reliance was placed on the fact that the woman who had been covertly filmed had not wished to make any complaint. Miss Duckworth sensibly has not pursued that point in her oral submissions and we for our part are unable to see how it could have assisted the appellant. The woman's reticence is entirely understandable. It does not alter the fact that the appellant had been called upon to produce all relevant devices but had withheld one of them from inspection. The appellant fell to be sentenced for the breach of the SOPO, not for the covert filming. But the fact that he was willing to go to the lengths of installing a covert camera in his bathroom, and of withholding from inspection the laptop on which he had stored a recording taken by that camera, shows why the SOPO was important and shows why his breach of it was serious.[15]As to the second offence, although it was of short duration and was committed in circumstances brought about by Miss B's brother leaving the car for a short time, it was nonetheless an offence which easily could and should have been avoided. The prohibitions imposed by the SOPO were intended amongst other things to ensure that no adult would unwittingly leave a child unsupervised with the appellant. The appellant must have foreseen when driving to the prison that circumstances would or might well arise in which both Miss B and her brother might part company from him and S. It was precisely the sort of situation in which the appellant should either have disclosed the restrictions to which he was subject or have taken immediate action to ensure that he was not left alone with S. He took no such steps.[16]At this stage the court's focus must be on the totality of the sentencing rather than on its precise structure. We see some force in Miss Duckworth's argument that the sentence for the first offence was a stiff one and it was perhaps at the upper end of the range properly open to the learned judge. On the other hand, it seems to us that no similar criticism can be made of the sentence for the second offence, which might have been rather longer than it was without giving rise to any ground of appeal.[17]Overall, the learned judge had to sentence a man with a long history of offending, including for sexual offences, who had previously breached his SOPO and had not been deterred from further breaches by the prison sentence which he received in 2010. In all the circumstances of the case, notwithstanding Miss Duckworth's submissions, we are unable to say that a total of three years' imprisonment for these two further breaches was manifestly excessive. This appeal accordingly fails and is dismissed.