England and Wales Court of Appeal (Criminal Division) Decisions

Royal Courts of Justice

The Strand

London WC2

Thursday 5th November 1998

B E F O R E :

THE VICE PRESIDENT

(LORD JUSTICE ROSE)

MR JUSTICE SCOTT BAKER

and

MR JUSTICE MAURICE KAY

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R E G I N A

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LAWRENCE CLIVE WILLOUGHBY

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Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Tel No: 0171 421 4040 Fax No: 0171 831 8838

(Official Shorthand Writers to the Court)

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MR A DONNE QC appeared on behalf of the Appellant

MR J WILLIAMS appeared on behalf of the Crown

MR D PERRY appeared as an AMICUS

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JUDGMENT

( As Approved by the Court )

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Crown Copyright

Thursday 5th November 1998

THE VICE PRESIDENT: On 11th September 1997, at Winchester Crown Court, the appellant was convicted of offences of false imprisonment, indecent assault and assault occasioning actual bodily harm. On 17th October, he was sentenced by His Honour Judge Martin Tucker QC to life imprisonment for the offence of false imprisonment, with six-and-a-half years's being specified as the period to be served under section 34 of the Criminal Justice Act 1991, 10 years concurrently for indecent assault and 3 years concurrently for assault occasioning actual bodily harm.

He appealed against conviction by leave of the Single Judge. That matter, save in one respect, was dealt with by a differently constituted division of this Court, presided over by the Lord Chief Justice, on 30th March 1998. Essentially, the grounds of appeal then advanced related to the identification evidence in the case. The Lord Chief Justice, giving the judgment of the Court, indicated that, if those grounds had stood alone, the appeal would have been dismissed. But, on the same occasion, the Court ordered that the matter be adjourned in order to enable further enquiries to be made on a forensic aspect of the case, affecting fibres.

Those enquiries have now been completed, and Mr Donne QC, appearing for the appellant before this Court today, indicated, at the outset, that no further ground of appeal in relation to conviction was capable of being advanced and, accordingly, it was accepted, on behalf of the appellant, that his appeal against conviction must be dismissed.

In relation to sentence, the Single Judge refused leave. But the Full Court, on 30th March 1998, gave leave to appeal against sentence and sought the assistance of an amicus in relation to questions arising from the sentence passed on the appellant.

This Court has, in consequence, today had the advantage of representations, on behalf of the Attorney-General, as an amicus, by Mr Perry, in addition to the submissions on behalf of the appellant from Mr Donne. To those, in a moment, we shall turn.

First, it is necessary to recite the facts of this matter which, so far as they are presently material, can be quite shortly rehearsed. In the early hours of 17th November 1996, an 18 year old female student, at Southampton University, was assaulted in the women's bathroom in her accommodation block, by a stranger, whom she described to the police. She said that she had spent the evening of the 16th with friends. She left about midnight and went to a friend's room. She left to go to her own room at about 2.15 am. She went to the lavatory. While she was in a cubical, she became aware that someone had entered the adjacent cubical. When she left the cubical and was washing her hands, she saw a man behind her. He came towards her. She backed away and screamed. He put his hand over her mouth and said: "Do as I say". She backed away, striking her head against the frame of the door of one of the cubicles. Her assailant pushed her into a cubical, so that she was facing the wall. She screamed again and he put his hand over her mouth and slapped her three or four times over the side of the head. He told her to keep quiet, closed the door and locked it.

He told her to take her jeans down. She said: "No, please". He took something from his pocket, which he said was a knife and put it against her neck. He said "suck". He told her to get down on her knees. His trousers were open. His penis was erect. Upon his instruction she performed oral sex upon him, and he instructed her to swallow the ejaculate. Thereafter, he said he was sorry it had happened, she was just unlucky.

She complained soon afterwards. There was identification parade evidence, as a result of which the appellant was charged with this offence.

So far as the victim is concerned, she still gets nervous, particularly at night.

There was, in addition to the identification evidence, other evidence which included evidence from a forensic scientist in relation to 19 orange fibres found on the appellant's coat, which appeared to have come from the complainant's orange Angora jumper. The expert evidence was that the chance of finding orange fibres of precisely the same type on this coat coming from somewhere else is remote.

It was, as we have indicated, to that aspect of the case that further enquiries, by virtue of more recently developed techniques as to fibre identification, were made. But, as we have indicated, they do not avail the appellant.

On behalf of the appellant, Mr Donne QC, advanced an admirable submission in relation to sentence. He accepted that much of the analysis of the relevant authorities and principles contained in the written submissions of Mr Perry is correct. The starting point is the most recent case of Attorney-General's Reference No 32 of 1996 (R v Whittaker) [1997] 1 Cr App R(S) 261. The judgment of the Court, on that occasion, was given by Lord Bingham CJ and, at page 264, he said this:

"It appears to this Court that the conditions [by which he was referring to the circumstances in which a discretionary life sentence can be imposed] may be put under two heads. The first is that the offender should have been convicted of a very serious offence. If he (or she) has not, then there can be no question of imposing a life sentence. But the second condition is that there should be good grounds for believing that the offender may remain a serious danger to the public for a period which cannot be reliably estimated at the date of sentence. By 'serious danger' the Court has in mind particularly serious offences of violence and serious offences of a sexual nature. The grounds which may found such a belief will often relate to the mental condition of the offender."

At page 265 there is this passage:

"It is therefore plain that evidence of an offender's mental state is often highly relevant. But the crucial question is whether on all the facts it appears an offender is likely to represent a serious danger to the public for an indeterminate time."

It is common ground that a life sentence for an offence other than homicide should not be imposed unless there are exceptional circumstances (see the judgment of Lawton LJ, in R v Pither (1979) 1 Cr App R(S) 209 at 213).

The exceptional circumstances justifying such a sentence are present if three conditions, identified in

R v Hodgson (1968) 52 Cr App R 113, are satisfied. First, the offence or offences are in themselves serious enough to require a very long sentence. Secondly, it appears from the nature of the offences or from the offender's criminal history that he is a person of mental instability who, if at liberty, would probably re-offend and present a grave danger to the public. Thirdly, the offender will remain unstable and a potential danger for a long and/or uncertain period of time.

Mr Donne accepted that, so far as the appellant constituting a serious danger is concerned, that condition is satisfied. It is unnecessary to refer, in detail, to his antecedent history. It suffices to say that, as he himself has said, he obtains satisfaction from oral sex. There have been a considerable number of occasions in his past when such conduct has led to him appearing before the court.

He was born in 1953. His record includes six previous court appearances which, apart from offences of assault and dishonesty, include gross indecency with a child, kidnapping, indecent assault, attempted kidnapping and false imprisonment. He has been dealt with in a variety of ways, including periods of imprisonment.

The psychiatric evidence before the court indicated that, although the appellant showed no signs of mental illness or of any mental condition within the provisions of the Mental Health Act 1983, the appellant himself said he had no idea why he committed these kinds of offences. But he recognised that alcohol released the aggression within him and he experienced difficulty in achieving an erection for normal intercourse. The psychiatric evidence concluded with an expression of opinion that the appellant was to be regarded as a high risk because of his repetitive sexual offending.

But, submitted Mr Donne, the first condition of those identified in the authorities, namely that the offence is of such seriousness as to call for a sentence of life imprisonment, is not met in the present case. Life imprisonment was here passed for the offence of false imprisonment. Mr Donne accepted that the indecent assault was a very grave offence of its kind, but Parliament has prescribed for that offence a maximum penalty of 10 years' imprisonment.

In the present case, he submitted, false imprisonment was merely a feature of the indecent assault, but was not itself within the category of a very serious offence. He accepted that the degree of seriousness of an offence of false imprisonment necessarily depends on all the circumstances of the case, and is not merely dependent on the period of detention, which, in the present case, being of the order of some 20 minutes, was comparatively short.

Mr Donne accepted that if, instead of indecently assaulting the complainant, the appellant had raped her, the judge could have passed concurrent sentences of life imprisonment, both for rape and for false imprisonment. But, Mr Donne submitted, a judge ought not to have done so, having regard to the character of the false imprisonment; he should have, in relation to that offence, have imposed a concurrent determinate sentence.

Mr Donne drew attention to the material provisions of the Criminal Justice Act 1991. Section 1(2) provides as follows:

"Subject to subsection (3) below, the court shall not pass a custodial sentence on the offender unless it is of the opinion-

(a) that the offence, or the combination of the offence and one or more offences associated with it, was so serious that only such a sentence can be justified for the offence; or

(b) where the offence is a violent or sexual offence, that only such a sentence would be adequate to protect the public from serious harm from him."

Section 2 relates to the passing of a custodial sentence other than one fixed by law and provides in subsection (2) as follows:

"The custodial sentence shall be-

(a) for such term (not exceeding the permitted maximum) as in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it; or

(b) where the offence is a violent or sexual offence, for such longer term (not exceeding that maximum) as in the opinion of the court is necessary to protect the public from serious harm from the offender."

Mr Donne submitted that the main offence, in relation to the appellant's conduct, for the purposes of sections 1 and 2, was the indecent assault. Looking at false imprisonment as the associated offence, in terms of the statute, it did not justify the imposition of a sentence of more than 10 years, that being the maximum for the main offence, and it being, he submitted, wrong in principle to impose a longer sentence for the associated offence.

Mr Donne drew attention to the definition of violent offence, which is to be found in section 31 of the 1991 Act, namely:

"An offence which leads, or is intended or likely to lead, to a person's death or to physical injury to a person, and includes an offence which is required to be charged as arson."

In the light of that definition, submitted Mr Donne, false imprisonment cannot be regarded as a violent offence because, in itself, it is not intended or likely to lead to death or physical injury.

Mr Donne further submitted that the fact that false imprisonment was, on the circumstances, a serious offence in its own right, did not justify the imposition of the sentence passed. He submitted that if the appellant had been of good character, he would never have been charged with false imprisonment. The 10 year maximum for indecent assault would have been more than adequate to provide the judge with appropriate sentencing powers.

He drew attention to the case of R v Ragusa (1993) 14 Cr App R(S) 118. That was a case in which this Court upheld a sentence of 12 years' imprisonment, imposed for false imprisonment, indecent assault and robbery. The victim was a young woman who was tied up in her home and subjected to a variety of indecent assaults including oral sex and she was threatened with a knife. In the course of argument, one member of the Court had posed the question as to whether, if the maximum of 10 years was an appropriate sentence in relation to the indecent assault, it might have been appropriate to add 2 years for the aggravating feature of the false imprisonment.

In the light of this, Mr Donne submitted that, bearing in mind that the circumstances of that false imprisonment, including, tying up in the victim's home, being worse than those of the false imprisonment in the present case, the addition there of a mere 2 years did not suggest that the imposition of a life sentence could possibly be justified in the present case.

The difficulty with that submission is that it was also suggested, in the course of argument, that some judges might well, in the circumstances of that case, have contemplated passing a life sentence. As Macpherson J said, at page 119 of the judgment:

"The position is that we must look to see whether there was sufficient criminality to pass a sentence of this length, and we must consider whether the overall sentence was appropriate for this appellant and these offences."

Mr Donne also, very properly, drew the Court's attention to an unreported decision of this Court in R v Ellis (Court of Appeal (Criminal Division) transcript of 19th June 1998) which, he frankly accepted, did not assist his argument. That was a case in which, as appears from the judgment of the Court given by Kennedy LJ, involved the appellant kidnapping, for a period of some 20 minutes or so, in a graveyard, with very minor violence, a young woman whom he then, as it appears, subjected to a very serious indecent assault. The Court upheld the imposition of a life sentence imposed for the offence of kidnapping and, in the course of giving judgment, Kennedy LJ said that the offences to which the appellant had pleaded guilty were serious enough to justify a significant sentence.

Mr Donne submitted that it may be that, in that case, there were not canvassed before the Court the sort of arguments which he has canvassed in this case, on the basis that kidnapping or false imprisonment, for a short period of time for the purposes of sexual activity, is not, in itself, of sufficient seriousness to justify a life sentence.

On behalf of the Attorney General, Mr Perry drew attention to R v O'Dwyer (1988) 86 Cr App R 313, in support of his submission that, in order properly to assess the seriousness of an offence, for the purposes of determining whether it qualifies for a sentence of life imprisonment, it is necessary to look not only at what happened but at what might have happened and what was likely to happen. The fact that a kidnapping lasted only some 15 or 20 minutes, is not a reason for concluding that the kidnapping was not of sufficient seriousness to justify a life sentence.

Mr Perry submitted that, had the appellant been convicted of rape rather than indecent assault, it would have been appropriate to impose concurrent life terms in relation to both offences.

So far as the implicit, if not express criticism by Mr Donne of the prosecution for charging false imprisonment against this appellant is concerned, Mr Perry submitted that it is appropriate for the prosecution to have regard to the ability of the court to pass a sentence appropriate to a defendant's overall criminality. He drew attention, for example, to the recent authority of R v Canavan and Ors [1998] 1 Cr App R(S) 243, indicating that it is not appropriate for a sentence to be passed in relation to an offence which is not specifically admitted or proved against a defendant. Therefore, it is appropriate and necessary where sample counts have to be charged, to lay counts which are sufficient, to afford the sentencing judge power to deal with the defendant's overall criminality.

In our judgment, it is not possible to compartmentalise the activity of the appellant in this case, in the way which Mr Donne sought to suggest. Certainly it can be said that false imprisonment was a feature of the indecent assault. It can, as it seems to us, equally be said that indecent assault was a feature of the false imprisonment.

In order to assess the seriousness of the false imprisonment, it is necessary, in our judgment, and was appropriate for the learned judge, to look at the purpose for which the complainant was imprisoned. The fact that the imprisonment lasted only some 20 minutes or so is one feature. But the fundamental reason for the appellant's conduct was that he falsely imprisoned the complainant for the specific purpose of forcing nonconsensual sexual activity upon her. That, as it seems to us, renders the false imprisonment, in the present case, a very serious offence. That is certainly the view which was taken in certain of the authorities to which we have referred, including O'Dwyer and Ellis. It is, as it seems to us, a conclusion which accords not only with authority but with common sense.

That being so, most forcefully though Mr Donne has advanced his submissions to this Court, we are unable to accept that it was inappropriate for the judge to regard this as a very serious offence, and to pass a sentence of life imprisonment for the offence of false imprisonment.

That being so, the appeal against sentence is dismissed.

MR DONNE: The Full Court was kind enough to grant legal aid to trial solicitors who instructed me to investigate the outstanding matter further, and it was not possible until this morning to see the appellant, who has been in Durham Prison. I asked they should come to London and be present in London to obtain final instructions to abandon the appeal. It might have been difficult if they had not.

THE VICE PRESIDENT: We have seen the letters written by the appellant.

MR DONNE: I ask, in the circumstances, that legal aid should be directed to be extended to their attendance today, otherwise I would have thought it would have been difficult without them.

THE VICE PRESIDENT: Yes, indeed.