England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM EXETER CROWN COURT
(HIS HONOUR JUDGE COTTLE)

		Royal Courts of Justice Strand, London, WC2A 2LL
		18th November 2003

Mr Justice Butterfield :

1. This appeal raises for consideration the circumstances when, if at all, it is permissible for a court to impose consecutive sentences of imprisonment, each passed as a longer than commensurate sentence, which in total exceed the statutory maximum sentence for the offences in respect of which they are passed.
2. On 20^th December 2002 Jonathon Bernard Backwell was sentenced to a total of 12 years' imprisonment at the Exeter Crown Court by His Honour Judge Cottle having pleaded guilty on the morning of his intended trial to 7 offences of indecent assault on a female. Further counts of indecent assault, burglary with intent to rape and attempted rape were left on the file on the usual terms. He now appeals against sentence by leave of the single Judge.
3. The appellant is 45 years of age. He has only one relevant previous conviction, but that was for offences of great gravity. In February 1991 at the Plymouth Crown Court the appellant was convicted of two counts of aggravated burglary, indecent assault on a female and assault occasioning actual bodily harm. He was sentenced to 7 years' imprisonment. On two separate occasions he had forced his way into houses, masked and brandishing a knife, where he had forced his female victims to strip and tied them up before burgling the premises looking for money.
4. The offences to which he pleaded guilty in December 2002 were committed over a period of 18 months in the town of Torquay. The appellant was a predatory sexual attacker who prowled the streets of the town looking for women who were walking home alone late at night. He identified his victims whilst driving round and round one of three favoured routes which took him in loops around the centre of Torquay. Having picked out a female to follow, he then parked his car and set about stalking her on foot as she left the main thoroughfares of the town towards her home.
5. Often the appellant selected women who were affected by drink so that they would be less alert to his approach, less able to resist, and less likely to be able to identify him. He hid in gateways, alleys and behind trees waiting for his moment to pounce, choosing to do so when his victims were in a dark location or at their journey's end near to their homes. He approached quickly from behind, trying to conceal his identity, and then carried out his attacks, groping their breasts and vaginas and forcing his hands into their clothing.
6. The 7 separate counts of indecent assault to which the appellant pleaded guilty were committed between August 2000 and September 2001. It is unnecessary to rehearse the full detail of each incident. However, the gravity of his offending escalated as time went by.
7. By February 2001 the appellant had already committed offences in August, October and November 2000. On the evening of 16^th February 2001 Helen Sapiecha was walking home when the appellant grabbed her from behind around the waist. He pushed her against a wall telling her to be quiet, and squeezing her breasts. She struggled and asked what he wanted. He told her that he wanted to come home with her because he wanted to fuck her. She tried to get away but he pushed his hand into her waistband towards her vagina. She was sure he was intent on raping her: she managed to break free, lashed out and screamed. The appellant ran off.
8. Two months later the appellant committed two offences on the same night. Marie Harris had reached her home and was about to let herself in when the appellant grabbed her from behind, covered her mouth with one hand and with the other took hold of her right breast. He was trying to push her into the house. Miss Harris struggled and screamed whereupon the appellant pushed her to the floor of the hall and ran off.
9. Minutes later he attacked a sixteen-year-old girl on her way home. She had noticed that she had some injury to her knee and bent forwards to examine it. Suddenly the appellant put his hand up her skirt from behind and grabbed her between her legs. She ran off but the appellant followed her, confronted her again and tried to cuddle her. There was a further struggle when the appellant grabbed her so that she fell to the ground where he roughly grabbed her left breast.
10. After those incidents there was a gap in the appellant's offending. The police had made a very public appeal for evidence leading to the identification of the attacker and for some months the appellant did not consider it safe to resume his activities. However, he struck again on the night of 14^th September 2001. Faye Banks was at the front door of her flat when the appellant attacked her from behind, covering her mouth. He then pulled her into a nearby service lane and pushed her to the floor. He then tore at her tights, scrabbling at her clothes, and she felt his hands on her legs and thighs. As good luck would have it there was a young man passing by who was so concerned by what he saw going on that he ran to get his friends. They saw Miss Banks in great distress with her skirt up round her waist and her tights badly ripped. Their arrival frightened off the appellant who ran away.
11. The attack on Miss Banks precipitated a considerable increase in police activity in an attempt to arrest the perpetrator. They increased their visible presence in the streets to provide better protection for females walking alone at night. They issued warnings through the local press and distributed leaflets through nightclubs advising women not to walk home alone. Inevitably this made it much harder for the appellant to operate without being caught. CCTV footage however shows that in January and February 2002 the appellant was out and about in Torquay apparently looking for and on occasions shadowing females walking home. Eventually the police deployed undercover female officers late at night in an attempt to lure the attacker into revealing his identity. On 24^th March 2002 the appellant followed one of the officers back to her flat as she feigned drunkenness. The appellant entered the flat and was arrested by other police officers who were waiting there. However, he pleaded not guilty to the charge of burglary with intent to rape and that count was left on the file.
12. The impact of the appellant's conduct on each of his victims has been utterly devastating. Victims describe having been unable to go out alone since the offence, being unable to socialise in the way they had done previously and feeling that their independent lives had become restricted and anxiety-ridden. One victim has been referred to specialist counselling having developed an eating disorder linked directly to the effect of the assault upon her. Another is unable to sleep alone in a room with windows. Two of the victims have been unable to continue their studies. All of them were terrified by the attacks upon them by a stranger at night in the street, all were convinced the appellant intended to rape them and all feared for their lives.
13. In the light of the appellant's repeated and determined sexual assaults, the length of time over which they were committed, the degree of preparation and premeditation involved in each of them, and the circumstances of his previous conviction it is quite plain that the appellant represented a serious danger to women. The experienced Probation Officer who reported upon him concluded that he remained highly likely to re-offend and represented the potential to cause very significant harm to women.
14. In passing sentence the learned Judge made clear that had he been able so to do he would have passed a sentence of life imprisonment so that the appellant's release would not have been automatic after he had served two-thirds of his sentence. He described the offences thus:

"You engaged in a campaign of about eighteen months. You targeted women who were walking home alone at night in Torquay. You violently and sexually attacked them, and it is quite clear that you derived considerable pleasure and excitement from the terror which they experienced and from the humiliation to which you subjected them…"

15. The maximum penalty available on each of the counts of indecent assault was 10 years' imprisonment. The judge concluded that it was appropriate to exercise his powers pursuant to Section 80(2)(b) of the Powers of Criminal Courts Sentencing Act 2000 and imposed longer than commensurate sentences in respect of all the counts.
16. So far as material Section 80 provides:

1. This section applies where a court passes a custodial sentence other than one fixed by law.

2. 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 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

17. The judge took the view that a commensurate sentence on each of the counts would be in the region of 4 years' imprisonment. He increased that sentence to one of 6 years' imprisonment on each count and ordered that the sentences should run concurrently in respect of the first 6 incidents but consecutively in respect of the final incident, which was in the Judge's view, and in ours, as near to an attempted rape as it would be possible to imagine. The total sentence was therefore one of 12 years' imprisonment.
18. The first point taken on behalf of the appellant raises what is said to be a point of principle. It is submitted that it is not open to a Court whatever the circumstances to impose consecutive sentences of imprisonment for a series of offences of the same or similar character resulting in a total in excess of the statutory maximum. We reject that submission. There is no legal principle that however extreme the circumstances consecutive sentences for a series of offences cannot be passed which exceed the statutory maximum for a single offence and no authority was cited in support of it.
19. Next, it is said that it is not open to a court to impose consecutive sentences of imprisonment for a series of offences of the same or similar character resulting in a total in excess of the statutory maximum where such sentences are imposed as longer than commensurate sentences. In support of that proposition Mr Vaitilingam relies on R v Everleigh [2002] Cr App R (S) 32, where this court considered a number of authorities touching on the question of whether it was appropriate to pass a longer than normal sentence consecutively to another sentence imposed on the same occasion. The court held it was not appropriate to do so because a longer than normal sentence is in itself intended to protect the public from serious harm without the need for any additional penalty in relation to conduct punishable at the same time. That is not the issue arising in this appeal. In Everleigh the court did not expressly consider the question of whether a sentencer can properly impose one longer than commensurate sentence to run consecutively to another.
20. The question was however considered in R v Baker (Unreported 15^th December 1998 98/0959/Z3). In that case this court had to consider an appeal against a sentence of 12 years' imprisonment imposed following pleas of guilty to 6 counts of indecent assault. The sentencing judge imposed 2 years' imprisonment on each Count and ordered them all to run consecutively, making a total of 12 years imprisonment. The court determined that the judge was purporting to exercise his powers under Section 2(2)(b) of the Criminal Justice Act 1991 (the identical provisions to those contained in Section 80(2)(b) of the 2000 Act) and concluded that if the powers under that section had been properly invoked the total sentence was justified even on guilty pleas. The court was however troubled as to whether the reference to the sentence "not exceeding the permitted maximum" in the section rendered the 12 year sentence unlawful.
21. The court concluded that the section did not affect the principle that sentences for separate offences may in appropriate circumstances be consecutive or the principle that consecutive sentences may in total, and subject to the duty of ensuring that the totality of the consecutive sentences is not excessive, exceed the statutory maximum. Giving the judgment of the court Pill LJ said:

The section …is not concerned with and does not have the effect of eliminating or limiting the power of the Court to order sentences to run consecutively….The expression "maximum permitted sentence" applies to the sentence for an individual offence. Provided that does not exceed 10 years upon an exercise of the power (to impose a longer than commensurate sentence) there is no obstacle to aggregating other individual sentences which do not exceed that maximum. Moreover there is no obstacle to exercising the power (to impose a longer than commensurate sentence) in an individual sentence imposed consecutively to another sentence on which that power has been exercised.

22. Applying those principles, the court quashed the consecutive sentences of 2 years imprisonment on each count and substituted terms of 6 years imprisonment on all counts, all imposed as longer than commensurate sentences. The sentences on Counts 1 to 3 were ordered to run concurrently with each other; the sentences on Counts 4 to 6 were also ordered to run concurrently with each other but consecutively to the sentences imposed on Counts 1 to 3. The 12-year total thus remained.
23. We respectfully agree with the reasoning and conclusions there expressed. The court in Everleigh was not referred to and did not consider Baker, but there is nothing inconsistent in the two decisions. The sentence imposed by the court must, consistent with statutory provisions and guidance from this court, fit the facts of the offences and where appropriate protect the public from the risk posed by the offender. The sentencer must assess the length of imprisonment necessary to protect the public from serious harm from the offender. The sentencer is entitled in grave cases to achieve that object if necessary by the imposition of consecutive longer than commensurate sentences which in total exceed the statutory maximum for an individual offence.
24. There being in our judgment no point of principle arising on the sentences imposed in this matter we turn to consider the second broad ground of the appeal. It is submitted that even if it was appropriate for the Judge to impose a longer than commensurate sentence the total sentence here was excessive in all the circumstances of the case. In particular the Judge failed to give the appellant any credit for his pleas of guilty when credit was appropriate in the light of the history of the case. Further he failed to take any account of the fact that the appellant's previous offending was much more serious and that he had not offended for a period of 6 years between his release from that sentence of imprisonment and the first offence of the present series.
25. In our judgment the sentence imposed did reflect those factors. We are further satisfied that when applying the provisions of Section 80(2)(b) the judge had in mind the principle that he had to balance the need to protect the public on the one hand with the need to look at the totality of the sentence and see that it was not out of all proportion to the nature of the offending. In the circumstances of this particular and very serious case we do not consider that a sentence of 12 years' imprisonment was out of all proportion to the nature of the offending. The repeated attacks by the appellant on vulnerable women late at night, planned and premeditated as they all were, with the consequent devastating effects on his victims, fully justified the sentence imposed which was neither wrong in principle nor manifestly excessive in length. In those circumstances the appeal is dismissed.