England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		14 February 2005

MR JUSTICE SILBER:

1. On 6 April 2004 in the Crown Court at Chichester, B was convicted of one count of indecency with a child. On 17 December 2004 at the same court, His Honour Judge Sessions sentenced the appellant to an extended sentence of two years, which was to comprise a Detention and Training Order (“DTO”) for six months and an extension period (i.e. an extended period of licence) of 18 months pursuant to section 85 of the Powers of Criminal Courts (Sentencing) Act 2000 (“the 2000 Act”). He now appeals against this sentence with leave of the Single Judge.
2. The two issues, which are raised on this appeal, are first whether a DTO or any custodial sentence should have been imposed on the appellant and second whether an extended period of licence could be added to a DTO. There is no authority on the second issue, which raises important issues.
3. At the end of the hearing, we allowed the appeal against the imposition of the extension period but we dismissed the appeal insofar as it imposed a DTO of six months. We now give our reasons for that decision.
4. The background to this offence is that GB and CB adopted the appellant, but in September 2002, GB separated from CB. He had had an intimate relationship with BT and they had had a child, L, who was born in 1999. BT also had a child from a previous relationship, CS, who was born on 5 April 1996 and who is the victim of the charge that was brought against the appellant. Because of his relationship with BT, GB got to know CS very well and he would often blow raspberries on her stomach, which the family described as “belly blows”.
5. The matters, which give rise to the conviction, arose on Sunday, 13 September 2003 when the appellant visited BT’s house. The appellant’s adoptive father, GB, was there as were CS and L. The evidence was that during that Sunday afternoon, the appellant, CS and L were together in CS’s bedroom. The prosecution case is that the appellant suggested first, that both he and CS should take off their clothes, which they then both did. The case for the prosecution was that the appellant kissed CS in the area of her vagina.
6. The appellant’s case was that he and CS had been play fighting and that he had given CS a playful “belly blow”. The appellant did not accept that he had taken off his clothes or that there had been any impropriety. As we have explained, the appellant was convicted and he sought leave to appeal against conviction, but his application has now been rejected both by the Single Judge and by this division of the Full Court.
7. The appellant was born on 27 May 1987 and he was therefore 16 years of age at the time the offence was committed and he is now 17 years of age. He had no previous convictions. He was at the time of the offences a scholar at his public school studying for his A levels. The first submission made by Mr. John Lofthouse was that a custodial sentence was inappropriate for the offence, which he committed as it comprised a quick kiss with no touching, grabbing or penetration of any sort. He contended that it was not a serious offence.
8. We are unable to agree with Mr. Lofthouse because the offence has to be seen in the light of what had happened immediately before and after it occurred and in particular, that the appellant had told CS “let us take our clothes off”, which they both did. CS also noted that the appellant’s penis was erect. It seems therefore clear that he committed this offence in order to arouse himself. Additionally, this offence was committed against a seven-year-old girl in her own home after the appellant had been entrusted with her well being.
9. In our view, there can be no criticism of a six month DTO for an offence of this gravity to which the appellant had pleaded not guilty, even though first, the appellant was only 16 years old at the time of the offence, second he had committed no previous offences and that third, he had achieved a great deal at his school. In reaching that conclusion, we have not overlooked the fact that because of his behaviour with CS and before he had been sentenced, the appellant had already suffered by losing his place at college as well as losing his own good character.
10. Mr. Lofthouse drew our attention to cases such as R v. Fuller (1992) 13 Cr App R (S) 680 and R v. CB [2001] 1 Cr App R (S) 177 in which non-custodial sentences had been imposed for offences of indecency. Unlike the appellants in those cases, the appellant before the court today cannot claim credit for a guilty plea. It is also significant that the writer of the pre-sentence report pointed out first that the appellant still remains adamant that he is innocent and second that this makes it extremely difficult for them to undertake any constructive work with the appellant in relation to his offending behaviour. Thus, the writer of the report considered that “given his denial of this matter, I must assess that [the appellant] is at significant risk of re-offending and he poses a significant risk of harm to the public”. Those comments and the disturbing features of this offence to which we have already referred justify the imposition of the six-month DTO on the appellant.
11. The next submission of Mr. Lofthouse is that the judge was not entitled to impose an extended sentence with a DTO in the light of the statutory provisions in the Criminal Justice Act 1991 (“the 1991 Act”) and in the 2000 Act. There is no direct authority on whether there is power to make such an order. In R v. Nelson [2002] 1 Cr. App (S) 134, Rose LJ, the Vice President of the Court of Appeal Criminal Division while delivering the judgment of this court gave general guidance on extended sentences when he said that: -

“It is possible that a youth court, which has power to pass a detention and training order for up to 24 months, may have power to pass an extended sentence on a sexual offender of, say, 24 months with a custodial term of 6 months and an extended period of 18 months. But the legislation is obscure, in that an offender sentenced to a detention and training order is released subject to section 103 of the 2000 Act and not on licence under section 44(3) of the Criminal Justice Act 1991. So this point may merit scrutiny on some future occasion” [8].

12. This judgment followed a request by the Court of Appeal for advice on extended sentences from the Sentencing Advisory Panel. In its advice dated October 2001, the Panel had stated that: -

“A youth court, however, has power to pass a detention and training order for up to 24 months, and so a youth court might pass an extended sentence on a sexual offender of, say, 24 months where the custodial term was six months and the extended period was 18 months. Care would have to be taken that the total period imposed complied with one of the seven permissible terms for which a detention and training order could be made under section 101(1) of the 2000 Act” (paragraph 8).

13. Judge Sessions took the view that the statutory provisions did not preclude him from imposing a DTO with an extended term on the appellant. In his submissions, Mr. Lofthouse contended that the Judge erred and that an extended sentence could not be imposed together with a DTO. Mr. Joseph Anoom, counsel for the prosecution agrees. We accept that a court cannot impose a DTO together with an extended sentence for the reasons, which we will now explain after setting out the statutory provisions, which enable an “extended sentence” to be imposed.
14. The qualifying conditions for imposing an extended sentence are set out in section 85(1) of the 2000 Act, which provides that such a sentence may be imposed: -

“.. where a court-

(a) proposes to impose a custodial sentence for a sexual or violent offence committed on or after 30 September 1998; and
(b) considers that the period (if any) for which the offender would, apart from this section, be subject to a licence would not be adequate for the purpose of preventing the commission by him of further offences and securing his rehabilitation”.

15. Thus, before an extended sentence can be imposed, the following conditions have to be satisfied, namely: -

(a) the court must be proposing to impose a sentence for a sexual or violent offence,
(b) the proposed sentence must be a “custodial sentence” and
(c) “the period (if any) for which the offender would, apart from this section, be subject to a licence would not be adequate for the purpose of preventing the commission by him of further offences and securing his rehabilitation” (s85 (2)).

16. We are satisfied that requirements (a) and (b) are satisfied because the judge intended to impose for the offence of indecency with a child (a sexual offence) a DTO, which is a “custodial sentence” as stated in s76 (1) of the 2000 Act. The more difficult task for this court was to ascertain if requirement (c) can be satisfied where the proposed sentence is a DTO.
17. Mr. Lofthouse contends that the legislation on DTOs forms a complete and discrete code for those subject to such an order with sanctions for offending during the term set out in the 2000 Act. He submits that the DTO regime is so different from that which applies to those sentenced to imprisonment that it could not have been the intention of the legislature that the extended sentence regime should apply to the DTO scheme. We did not understand Mr. Anoom to disagree with this analysis. Mr. Anoom told us that he has been unable to find any material in Hansard, which throws any light on whether it was specifically stated whether the extended sentence regime should apply to the DTO scheme. So we must look at the statutory provisions themselves for guidance on this issue.
18. There are seven features of the statutory provisions, which lead us to the conclusion that it is not permissible to pass an extended sentence at the same time. First, it is very significant that while section 85(2) of the 2000 Act shows that the extended sentence regime is based on the inadequacy of the “licence” period in the sentence imposed, an integral part of the DTO regime is the requirement for “supervision” for the second half of the period of the DTO after the offender is released from detention (section 103 of the 2000 Act). In other words a DTO does not have any form of “licence” period.
19. This is an important distinction as both extended sentences in their present form and DTOs were first introduced in sections 58 and 73 respectively of the Crime and Disorder Act 1998 and yet they both use different terminology to describe the consequences for the offender after he is released from detention, namely that those released from imprisonment under extended sentences are subject to a “licence” while those subject to DTOs are subject to a “period of supervision” after release from custody. Similar terminology has also been used when the relevant statutory provisions were incorporated in the 2000 Act. It can therefore be assumed that the regimes for prisoners and those subject to DTOs were meant to be different especially as the relevant statutory provisions were both contained in Part IV of that Act. As a matter of statutory interpretation, when different terminology is used in the same statute, it is to be assumed that they do not have the same meaning. Cantley J explained that:-

“Prima facie one would expect that when two different words, although practically synonymous in ordinary use, are employed in different parts of the same regulation dealing with the same kind of topic, they are intended to have some different meaning”(Gibson v. Skibs A/S Marina and Orkla Grobe A/B and Smith Coggins Ltd [1966] 2 All ER476, 478)

20. Second, we have been unable to find any statutory provision in the 2000 Act or elsewhere, which states expressly or impliedly that an extended sentence can be added on to a DTO. No such statutory provision is referred to in the Sentencing Advisory Panel’s report or in Nelson to which we referred in paragraphs 11 and 12 above.
21. It is appropriate at this juncture to explain that we have not overlooked the use of the words “if any” in the requirement in section 85(2) of the 2000 Act that in order to qualify for an extended sentence “ a court..(b) considers that the period (if any) for which the offender would….be subject a licence would not be adequate for the purpose of preventing the commission by him of further offences”. At first blush, it might be thought that those words “if any” must have been intended to cover forms of detention for which there was no licence period and that these could only be DTOs. Mr. Lofthouse helpfully explained that this was not the case because under section 33 of the 1991 Act, a prisoner who is sentenced to a term of less than 12 months imprisonment is released unconditionally (i.e. not under licence) when he has served one half of his sentence. Such a prisoner could therefore be subject to an extended sentence because of the use of the words “if any” applied to a pre-existing licence period.
22. Third, it is noteworthy that requirement (c) as set out in paragraph 15 above indicates that an extended sentence is meant to supplement a “licence” period but a DTO, unlike most other custodial sentences, does not have a “licence” period but only a “period of supervision”. This supervision starts in the case of an offender, like the appellant, subjected to a six-month DTO when he is automatically released from detention after three months (s102 (1) of the 2000 Act) and the supervision ends when the term of the order ends (s 103(1) of the 2000 Act). This indicates that the DTO regime does not envisage an extended sentence being added on to it.
23. A fourth feature of significance is that it is stated in section 85(5) of the 2000 Act that the term of an extended sentence “shall not exceed the maximum term permitted for that offence”. This provision does not sit comfortably with the requirements first, that the duration of a DTO shall only be for one of a number of specified periods of which the longest period is 24 months (s101 (1) of the 2000Act), but second, that if a DTO would for any reason exceed 24 months, it will only take effect for 24 months(s 101(5) of the 2000 Act). These provisions suggest that extended sentences do not fit into the DTO regime and were not intended to do so.
24. There is a fifth statutory provision which indicates that a DTO cannot have an extended term added to it in section 39 (2) of the 1991 Act, which provides for the recall of offenders released on licence to “prison”. By section 43(3) of the 1991 Act, “prison” includes custody under sentences of custody in a Young Offender Institution and under section 91 of the 2000 Act but it does not include detention under a DTO. Thus it is difficult to see to what institution a person sentenced to a DTO with an extended sentence, such as the appellant, could be recalled.
25. Sixthly, a further feature of the legislation which indicates that the parliamentary intention was that it is not possible to add a DTO to an extended sentence is that there are provisions in section 105 of the 2000 Act, which explain what happens if a person subject to a DTO commits another offence during the currency of the DTO while there are different provisions in the 1991 Act, which deal with what happens to a prisoner subject to an extended term, who commits a further offence on licence. Thus if the appellant was still subject to an extended sentence added on to his DTO, there would be difficulties in determining what would happen to him if he committed an offence in the fifth month of his sentence because he would still be subject to supervision under his DTO and also subject to the licence provisions of the extended sentence.
26. Finally and seventhly, it is noteworthy that there are statutory provisions in section 106 of the 2000 Act which explain what happens when an offender receives both a DTO and a sentence of detention in a Young Offender Institution. There are no similar provisions explaining what happens if a DTO is passed together with an extended sentence, which is surprising if it had been intended that both could be passed. There are after all difficulties in understanding what would happen if the offender committed an offence after his release from detention but during the period of supervision as either the provisions relating to supervision under the DTO or those relating to licences could apply. It is a reasonable inference from this omission that in the light of the provisions of section 106 of the 2000 Act to which we have just referred, it was not the intention of Parliament that extended sentences could be imposed on DTOs.
27. We therefore conclude that the judge did not have the power to impose an extended sentence with the DTO. We have had the advantage of much fuller argument than Judge Sessions did and indeed if he had had the advantage of hearing Mr. Lofthouse’s detailed submissions before us, he might well have seen the matters differently. In consequence we quash the extended sentences but we uphold the DTO for 6 months. To that extent, the appeal is allowed.