England and Wales Court of Appeal (Criminal Division) Decisions

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Cite as: [2002] EWCA Crim 138

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		Neutral Citation Number: [2002] EWCA Crim 138
		No: 200104749 W2

IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice
The Strand
London WC2

Wednesday, 23rd January 2002

B e f o r e :

LORD JUSTICE KAY
MR JUSTICE MACKAY
and
RECORDER OF CHESTER
(Sitting as a Judge of the Court of Appeal Criminal Division)
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	R E G I N A
	- v -
	A. C.

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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Tel No: 0207 404 1400 Fax No: 0207 404 1424
(Official Shorthand Writers to the Court)

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MR R FURLONG appeared on behalf of the Appellant
MR P HOFFORD appeared on behalf of the Crown
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HTML VERSION OF JUDGMENT
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LORD JUSTICE KAY: I will ask Mackay J to give the judgment of the Court.

MR JUSTICE MACKAY: On 27th July 2001 at Wood Green Crown Court this appellant, having been committed for sentence from the magistrates' court, indicated a guilty plea to a charge of indecent assault. He pleaded guilty and was sentenced to a term of two years' imprisonment in respect of it. The sentence that was passed was an extended sentence under section 85 of the Powers of the Criminal Court (Sentencing) Act 2000, comprising a custodial term of two years and an extended period of licence of five years. He appeals against that sentence by leave of the single judge.

The facts giving rise to this matter are these. The offence was committed on 24th June 2001 in the afternoon. The victim, a lady, was walking in a suburban road with her boyfriend when the appellant approached them from the other direction. For no reason and without warning, as he passed them the appellant lunged forward towards the lady, with both hands outstretched, and placed one hand on each of her breasts, squeezing and holding onto them. Her boyfriend, who was there, saw what was happening and pulled him away, and in separating the appellant from the victim, the victim was caused to fall to the ground, sustaining grazes to her knees.

When interviewed by police, who were immediately called, the appellant fully admitted the offence. He said he had planned to commit an indecent assault and had been walking around this suburban area looking for women and on that basis had selected the victim.

The appellant had previous convictions which included two for this type of offence. On 29th April 1991, for an indecent assault in the form of touching the breasts of a woman at a bus stop, he was given a conditional discharge for 12 months. On 20th August 1999, for indecently assaulting a cleaning lady whose services he had advertised for and who had come to his house, he was originally given three years' imprisonment, but that was varied on appeal to a three-year probation order. He was therefore on probation at the time of these offences.

In a very full pre-sentence report, the sentencer was told that this appellant was having great difficulties coping with life, even with the assistance of the probation service. He had been the subject of local verbal and physical abuse, and three days before he committed the offence which we have described above had given his probation officer a note in writing to the effect that he thought he would be better off in prison. The offence that brought him before the court was therefore planned, in the sense it was designed to lead to his arrest and incarceration.

His early family life had been extremely difficult and he had and has been beset for some time by mental health problems. His record of co-operation with the various agencies who have tried to help him over the years is patchy, though it seems clear that from time to time he has made genuine efforts to co-operate with them. His finances were chaotic at all times. The risk of reoffending was described in the report as "relatively high". His background predisposes him, when he offends, to offend in a sexual way. Though these assaults are not of the most serious kind, the complainant in the instant case could be forgiven for thinking otherwise, having been attacked in this way in broad daylight, in a quiet street, walking peacefully with her boyfriend.

The pre-sentence report acknowledged the inevitability of a custodial sentence in this case and proposed an extended licence period under section 85. No particular length of extension was put forward and no particular timed programme was referred to. In sentencing the appellant the learned judge described this as the most serious of the indecent assaults he had committed, given the element of premeditation, the suddenness, and the distress of the victim. For those reasons he said he could not foresee any possibility of passing anything other than an immediate custodial sentence. We agree. The length of two years is criticised before us today as manifestly excessive. We are unable to see any force in that criticism, and the custodial term itself is, in our opinion, not one which should be disturbed by this Court.

So far as the extension period is concerned, in principle it is accepted that such a period was appropriate in this case. In sentencing the judge gave no reasons for choosing the period which he chose. The maximum extension period available to him in sentencing terms, this being a sexual offence, would have been one of ten years. We have considered the assistance given by the decision of this court in the case of R v Nelson [2001] EWCA Crim 2264, a decision which had the advantage of the advice of the Sentencing Advisory Panel.

The court in that case described the sentencing process in cases such as this that should be followed. The first stage in that process is to decide on the custodial sentence which would be commensurate. That had been done by the learned judge in a way with which we see no fault at all. The second stage is to consider whether a longer than commensurate period in custody is needed to protect the public from serious harm from the offender. That was not thought appropriate in this case, and again we can agree with that as a decision. The third stage where a sexual offence is concerned is to consider whether the sentence, either commensurate or non-commensurate, is adequate to prevent the commission by the offender of further offences and secure his rehabilitation. If that is not so, an extended sentence is called for.

Again, in principle it is accepted today that such a sentence was called for. The principles that emerged of relevance to this case from that decision seem to us to be these. Firstly, the length of the extension period is not designed to reflect the seriousness of the offence but is designed to protect the public and secure the rehabilitation of the offender to prevent his reoffending. Secondly, a relatively short custodial term and a longer extension period may, in an appropriate case, be the right response to a low-level offence with a high risk of reoffending. Thirdly, while the offender may in the events which can happen have to serve the whole or part of the extension period, as a matter of logic, the strict proportionality between the length of the extension period and the seriousness of the offence is not a primary consideration; but, that said, the principle of proportionality has to be observed.

This Court is in this difficulty, that no express reason was given by the learned judge for selecting the period he chose. He had before him evidence of long standing and deep-seated mental health problems which had beset this appellant and for which he had received a variety of unsuccessful interventions in the past. The pre-sentence report recommended, among other things, the provision of a volunteer to befriend and establish a relationship with the appellant and help him with the problems of life. He also needed assistance to establish himself in work in a safe and not too stressful environment. Those particular aims seem to us to be both right and likely to require a little time. The judge had to do the best he could with the material he had.

However, there being no specific recommendation as to time from any of the material before him, the principle of proportionality had to be of considerable importance in this particular case. The extension period of five years which is part of the sentence seems to us in the circumstances to have been manifestly too long, looking at the totality of the sentence which it produced. In the circumstances, we would therefore quash that part of the sentence and in its place order that a period of two years' extension take its place.

To that extent, this appeal is successful in the circumstances. No order for the recovery of costs seems to us to be appropriate.

LORD JUSTICE KAY: Thank you very much.