England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL Monday 25th February 2002

25th February 2002

1. LORD JUSTICE KEENE: This is an appeal against sentence which arises under section 9 of the Criminal Appeal Act 1995 as the result of a reference to this court by the Criminal Cases Review Commission ("the CCRC"). The reference is dated 13th June 2001. The appellant was convicted by a majority of 11 to 1 of one count of rape in the Crown Court at Cardiff before His Honour Judge Stephens QC on 30th October 1998. Some three weeks later, because he had been convicted of a second serious offence, he was sentenced to automatic life imprisonment under section 2 of the Crime (Sentences) Act 1997, now re-enacted as section 109 of the Powers of Criminal Courts (Sentencing) Act 2000, which we shall call the Act of 2000. The specified period under section 28 of the Crime (Sentences) Act 1997 was two years and seven months. Having been convicted of an offence to which Part 1 of the Sex Offenders Act 1997 applied, the appellant was required to comply with the provisions of section 2 of that Act in terms of notifying to the police any changes in his address, or other circumstances, for an indefinite period.
2. A previous application for leave to appeal against sentence was refused by the single judge and was refused on renewal by the full court on 29th July 1999.
3. The offence of rape, of which he was convicted in 1998, took place in April of that year when the appellant was aged 34. The complainant, who was aged about 20, had been staying for a few days with him and his girlfriend. In the small hours of the morning on 13th April the complainant and the appellant were alone in the flat, his girlfriend and some friends having left. The appellant had injected himself with speed. The two of them talked.
4. Some hours later the appellant made advances towards the complainant, who started to leave, but she was grabbed by the appellant and pushed on to a sofabed. The appellant sat on top of her legs with his knees either side of her, pinning her arms onto the bed above her head. She told him to get off but he got more annoyed. He slapped her about three times across the face and told her to shut up or he would slap her harder. The appellant then grabbed the pillow and forced it over the complainant's face to stop her screaming. He told her to take her clothes off and replied "tough" when she said that she did not want to. He then took her clothes off and his own tracksuit bottoms. He knelt between her legs, told her to lift her legs and put them around his back, which, because she was so frightened, she did. The appellant then penetrated her. Afterwards he licked her vagina. Then, when his girlfriend returned, they had sex in front of the complainant and asked her to join in. She then left.
5. In interview and at trial the appellant admitted intercourse but asserted that it had been consensual.
6. In his sentencing remarks the judge commented that, had it not been a case where an automatic life sentence was applicable, the determinate sentence would have been one of six years' imprisonment.
7. The earlier serious offence took place in 1989 when the appellant was aged 25. On that occasion he pleaded guilty and was sentenced on 20th April 1990 to 30 months' imprisonment for an offence of causing grievous bodily harm with intent contrary to section 18 of the Offences Against the Person Act 1861. The offence in question had been committed on 29th October 1989 at a club in Cardiff. The injured party, a doorman, had been kicked and punched several times by the appellant which had caused a fracture to his facial bones, severe bruising and swelling to the head and body.
8. When the appellant appeared for sentence in 1998 in respect of the rape, it was argued on his behalf that there were exceptional circumstances which justified not imposing a life sentence. Reference was made to the fact that the injuries in the 1989 offence were comparatively minor, that this was reflected in the sentence of only 30 months, that many years had passed since the earlier offence, and that the later offence was of a different character from the earlier one. The trial judge, however, concluded that none of these matters amounted to "exceptional circumstances" within the meaning of what was then section 2 of the Crime (Sentences) Act 1997 so as to permit a sentence other than one of life imprisonment.
9. The judge did go on to say this, however, in his sentencing remarks, when dealing with the submissions of defence counsel:

"Finally, in relation to the offender he suggests that there is nothing in his personal circumstances which suggests that he is at further high risk of offending. He has committed this offence. I did say to Mr Jeary, and I think it appropriate I should repeat, this is not a case where I would have passed a longer than normal sentence under the powers I have where a sexual offence is committed, but in my judgment there is nothing exceptional about Mr S's personal circumstances or the risk of his further offending. Any question of risk will be considered as part of the process and procedure of a life sentence which I feel bound to pass under the terms of this Act."

10. By the time the renewed application for permission to appeal against sentence was heard by the full court, the decision in the case of Kelly [1999] 2 Cr App R(S) 178 was available to guide the court on the approach to be adopted towards the construction of section 2. In so far as the material for present purposes, that provision, as now re-enacted in section 109 of the Act of 2000, reads as follows:

"1. This section applies where --

(a) a person is convicted of a serious offence committed after 30th September 1997, and

(b) at the time when that offence was committed he was 18 or over and had been convicted in any part of the United Kingdom of another serious offence.

2. The court shall impose a life sentence, that is to say, where the offender is 21 or over when convicted of the offence mentioned in subsection (1)(a) above, a sentence of imprisonment for life

(b) where he is under 21 at that time, a sentence of custody for life under section 94 above,

unless the court is of the opinion that there are exceptional circumstances relating to either of the offences or to the offender which justify its not doing so."

11. Subsection (5) then defines "a serious offence". It is enough to observe that the definition includes both section 18 offences and rape.
12. In the case of Kelly the court said in a passage cited by the full court on this appellant's renewed application for leave:

"We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered."

13. Applying that approach, the full court on 29th July 1999 could find no exceptional circumstances in the present case.
14. However, since then, the proper approach to be adopted to the imposition of automatic life sentences has been reconsidered in the case of Offen and others [2001] 2 Cr App R(S) 44. By that time the court had to take account not only of decisions since Kelly, and in particular the case of Buckland [2000] 2 Cr App R(S) 217, but also of the impact of the Human Rights Act 1998 and the principle of proportionality. That latter aspect was something which the court in Kelly had expressly declined to address since the Human Rights Act was not then in force. So in Offen this court, presided over by the Lord Chief Justice, Lord Woolf, gave fresh consideration to the construction of the statutory provisions in the light of the new circumstances.
15. It concluded that if in a individual case the facts showed that the statutory assumption that the public needed to be protected against the offender in the future was misplaced, then the position was exceptional. The norm is that those who commit two serious offences are a danger, or risk, to the public, but if in fact the offender on the evidence does not create an unacceptable risk to the public he is an exception to the norm. Offenders who do not constitute a significant risk to the public should not, said the court, receive an automatic life sentence: see paragraphs 78 and 96.
16. That approach has subsequently been followed in other cases. We take the view that it is appropriate that we should do the same. It means that one begins by assuming that someone in the appellant's position does present a significant risk to the public, but that assumption can be rebutted by the evidence about his particular case.
17. That approach is accepted by Mr Shanahan, who appears on behalf of the appellant today. He contends that the appellant is not to be seen as a danger to the public. He stresses that there is evidence that the appellant is now drug free, something which is demonstrated by the results of regular testing for drugs while he has been in prison. Emphasis is placed on a recent psychiatric report which concludes that the appellant is not an unacceptable risk to the public. Mr Shanahan also draws attention to the fact that the two serious offences were of a different kind and were eight and a half years apart. He does not suggest that that in itself automatically indicates that there are exceptional circumstances, but he does submit that those considerations are relevant. Finally, mention is made of the fact that the appellant is now engaged to be married.
18. The consultant psychiatrist, Dr Huckle, has in fact produced two psychiatric reports, the later being dated this month.
19. We have to say that there are a number of aspects about the appellant's conduct which causes some concern. He has a large number of previous convictions, especially for being in possession of drugs, and for offences of dishonesty largely committed, it seems, to fund his drug habit. The pre-sentence report at first instance referred to this and to his denial and minimalisation of the rape. As a result the writer formed the view that there was a very high risk of him reoffending.
20. In the more recent psychiatric report, the one dated 4th February 2002, Dr Huckle notes that the appellant does not have sexual deviant fantasies and that there is no evidence that he poses a predatory sexual risk to women. There is no evidence of mental illness or personality disorder. Dr Huckle's opinion is that the appellant does not present an unacceptable risk to the public.
21. It is clear from the terms of the judgment in Offen that this court's task is to assess whether there is a significant risk to the public from the offender. With someone who has committed two serious offences and perhaps, as here, other offences which do not fall into that category, there will always be some risk of reoffending. But we note, in particular, that the court in Offen identified the issue as being one of dangerousness to the public: see paragraph 98. The mere fact that there is a risk that an offender might subsequently commit an offence of, say, shoplifting, an offence which has featured in this appellant's record, would not justify an automatic life sentence. It is, therefore, helpful to consider whether there is a significant risk in the present case of a danger to the public by way of either violent or sexual offences being committed by this man in future. It is in that context that such considerations as the passage of time between the two offences and the similarity or dissimilarity between those offences is most likely to be relevant.
22. In the context of violent offences it is to be noted that before the offence in 1989 under section 18 the appellant did have a conviction for assault occasioning actual bodily harm in 1988 for which he was fined the sum of £150. That, however, is the only instance of personal violence in his record other than the section 18 offence. There was some violence used in the course of the more recent rape, but it was of a moderate degree and was not such as could be described as gratuitous. That is to say, it was not violence which went materially beyond what was associated with overcoming the victim's lack of consent to intercourse. Other than that there has been no violence in his record since the offence in 1989. The evidence does not suggest to us that there is a significant risk from this man to the public of violent offences in future.
23. We turn to consider the risk of further sexual offences. The rape of 1998 is the only sexual offence committed by this man, now aged 37. The psychiatric reports on him suggest that he is not an unacceptable risk in this respect to the public. This court also attaches weight to the sentencing remarks of the trial judge, where he indicated that he would not have passed a longer than normal sentence in this case, had an automatic life sentence not been required. He was there clearly referring to what is now section 80(2)(b) of the Act of 2000 which enables a court to impose such longer term of imprisonment as in its opinion:

"... is necessary to protect the public from serious harm from the offender."

24. It follows that the trial judge did not consider that more than a normal sentence for the rape, which he put at six years' imprisonment, was needed to protect the public from serious harm from the appellant. That seems to us to be relevant to the task which we have to perform.
25. In all the circumstances, we are satisfied that the evidence shows that there is not a significant risk from this man against which the public needs to be protected. That means that his case is an exception to the norm and that the statutory assumption is rebutted. It follows that we allow this appeal and we quash the automatic life sentence.
26. In our judgment the trial judge's assessment of an appropriate determinate sentence for the rape was entirely right, given the absence of any plea of guilty and the additional sexual indignities inflicted on the victim, but, as we have indicated, without any gratuitous violence being inflicted. We shall therefore substitute for the life sentence a term of six years' imprisonment. The requirement as to notification to the police under the Sex Offenders Act 1997 will remain at an indefinite period.