England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Monday, 19th December 2005

1. THE VICE PRESIDENT: We have heard these nine appeals together, although they are unrelated to each other. They provide further examples in addition to those considered in Lang & Ors [2005] EWCA Crim 2864 of the difficulties to which the sentencing provisions of the Criminal Justice Act 2003 give rise in relation to potentially dangerous offenders.
2. S is a child, Burt a young person and Parsons, Carr, Hargreaves and Denton are adults, all of whom were given an extended sentence for a specified violent offence. Taylor and Coyne are adults who were sentenced to imprisonment for public protection, for a serious violent offence, and H is an adult who was sentenced to imprisonment for public protection for a serious sexual offence. It is to be noted that sentence was passed in all these cases before the Court's judgment in Lang on 3rd November 2005 proffered guidance. What we say in this judgment should be regarded as merely supplementary to the guidance in Lang, which should continue to be sentencers' first port of call when seeking to apply these provisions.
3. We are grateful to Mr Khamisa who has responded on behalf of the Crown in all these cases and to counsel who have appeared for each of the defendants. Parsons had leave to appeal from the Single Judge. During the course of the hearing, we granted leave in the other cases, all of which were referred to the Full Court by the Registrar.
4. There is a matter which arises in relation to a number of these cases as to what is meant by "an extension period", for which an offender is subject to a licence imposed under sections 227 or 228 of the Criminal Justice Act 2003 and, in particular, when such a period begins.
5. This is an important question to which there ought to be a straightforward answer in the interests of the courts, defendants, the prison service and the Parole Board as well as the general public.
6. We have heard helpful submissions, particularly by Mr Russell on behalf of Burt, on this matter.
7. The Home Office must have a practice which it applies but we have not been told what it is. In consequence, the assistance which Mr Khamisa is able to give on this aspect, despite the enquiries which he and those instructing him have made, has been very limited.
8. What follows is our rehearsal of what seem to be the relevant statutory provisions and our provisional view, unassisted, as we have said, by argument on behalf of the Home Office or the Parole Board, as to what these provisions appear to mean.
9. The primary question is whether the extension period for which an offender is to be subject to a licence begins to run at the end of the custodial term, which is ordered under section 227 or 228, or when he is released from that term on licence. Another way of putting it is to ask whether the extension period is substituted for the licence period which would otherwise begin when the offender has served the appropriate part of his custodial term, or is it to be added to that period on licence, so that he is subject to licence for two periods, first, the normal period of licence under the custodial term and then secondly the extension term?
10. The Criminal Justice Act 1991, by section 44, enabled the court to order that an offender sentenced for a sexual offence should remain on licence until the end of his sentence: he would otherwise have been released unconditionally after he had served three-quarters of his sentence (see section 33(3)). The current problem did not arise under that legislation.
11. Section 58 of the Crime and Disorder Act 1998 introduced an extension of the concept in relation to sexual and violent offences. This was reproduced, with immaterial changes, in section 85 of the Powers of Criminal Courts (Sentencing) Act 2000 which provides in subsection (2):

"Subject to subsections (3) to (5) below, the court may pass an extended sentence, that is to say, a custodial sentence the term of which is equal to the aggregate of-

(a) the term of the custodial sentence that the court would have imposed if it had passed a custodial sentence otherwise than under this section ("the custodial term"); and

(b) a further period ("the extension period") for which the offender is to be subject to a licence and which is of such length as the court considers necessary for the purpose mentioned in subsection (1) above."

By subsection (8) "licence" meant "a licence under Part II of the Criminal Justice Act 1991 (early release of prisoners). Section 39 of the 1991 Act provided for the Secretary of State to revoke a licence with and without the recommendation of the Parole Board. Section 59 of the 1998 Act substituted a new provision as section 44 of the 1991 Act. The new section 44 applied to prisoners serving extended sentences under section 58 of the 1998 Act.

12. The new subsection 44(5) provided when the extension period was to be taken to begin. Where a prisoner was released on licence, the extension period was deemed to begin on the date on which he would have served three-quarters of his sentence - that is, the date on which he would have been entitled to unconditional release. This is the effect of section 44(5)(a), section 44(3) and section 37(1). Section 44(5)(b) made a like provision where a prisoner was not released on licence before the three-quarters date. Under these provisions the extension period was added to the potential licence period of the custodial term - namely the third quarter of the sentence. The offender had to serve three-quarters of his sentence, either wholly in custody, or in custody and then on licence, before the extension period began. Section 37(1) was subject to some complicated amendments by Schedule 8 of the 1998 Act, but they do not appear to be presently material.
13. Paragraph 141 of schedule 9 to the Powers of Criminal Courts (Sentencing) Act 2000 amended section 44 of the 1991 Act (as substituted by the 1998 Act) so that it referred to section 85 of the 2000 Act instead of section 58 of the 1998 Act. So the position remained unchanged for present purposes.
14. Earlier editions of Archbold, for example the 2004 edition, paragraph 5 - 226 commenting on extended sentences under section 85, gave no assistance as to when the extension period begins. Dr Thomas in his Sentencing Referencer 2005/ 6, at page 119 states:

"The extension period is a period of licence beginning when the offender's normal period of licence expires, or when he is released from custody if he would not otherwise be on licence."

This is the effect of section 44 of the Crime and Disorder Act 1991 as substituted.

15. Sections 227 and 228 of the 2003 Act are expressed in identical terms and give rise to the same question as section 85. The 2003 Act repealed Part II of the 1991 Act - "Early release of prisoners', and so section 44 has gone. Section 244 requires the Secretary of State to release a fixed term prisoner on licence when he has served "the requisite custodial period" - which is normally one-half of his sentence. Section 247 is headed "Release on licence of prisoner serving extended sentence under section 227 or 228." By section 247(2) release on licence must occur once one-half of the custodial term determined by the court has been served and the Parole Board has directed his release. Section 247(4) provides that he must be released on licence once he has served that custodial term. Section 249(1) provides that any fixed term prisoner released on licence shall, subject to revocation of his licence, remain on licence for the remainder of his sentence.
16. In his Sentencing Referencer 2005/6 Dr Thomas states, in relation to sections 227 and 228, at pages 182 and 184 respectively:

"The licence period (the extension period) begins to run on the date of release, and will expire at the end of the period specified by the court. If the extension period is less than half of the appropriate custodial term, the offender's licence will expire at an earlier date than it would expire under a normal sentence of the same length as the appropriate custodial term."

To illustrate that: custodial term 5 years, extension period 2 years, release by Parole Board after two-and-a-half years; licence ends and sentence over after four-and-a-half years. Yet, a sentence under section 227 or, section 228, is, as we understand the matter, supposed to be tougher. In his article in Archbold News 2005 Issue No 4 page 6 at point 8, Dr Thomas said:

"There is nothing in the 2003 Act which suggests that the licence period is to be added on to the normal licence period, as is the case of an extended sentence passed under the Powers of Criminal Courts (Sentencing) Act 2000."

Nor, it is to be noted, is there anything which suggests that it should not be added on. Archbold 2006 edition, of which of course the sentencing editor is Dr Thomas, states at paragraph 5 - 288:

"An offender sentenced to a new style extended sentence will be released once he has served half of the custodial term element of the sentence, provided that the parole Board has directed his release, which they shall not do unless they are satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. If they are not so satisfied, he may be required to serve the whole of the custodial element of the sentence." He goes on, and we emphasise:

"Whenever he is released, the extended licence specified by the court will begin and he will remain on licence for that period."

17. With section 85 and section 227 and 228 the court has to consider the period necessary for the specified purpose, which is, under section 85, preventing further offences and securing rehabilitation and, under sections 227 and 228, protecting the public from serious harm by further specified offences. In neither case does the section say "the further period". So nothing is to be derived from that omission.
18. Our tentative conclusion is that an extension period under section 227 or 228 begins to run at the end of the custodial period determined by the court. That is so whether or not part of the custodial period is "served" on licence. We say this, first, because that seems to be the natural reading of the sections. The extension period follows the custodial period: it does not follow the custodial period as reduced by release on licence. Secondly, it avoids the absurdity that, where the custodial period is substantial, the passing of a short extension period will reduce the period on licence. Thirdly, there is no reason to suppose that Parliament intended to change the concept of the previous legislation, namely, that the extended period added to any initial licence period: rather the contrary. The reason that there is now no equivalent to section 44 appears to be that the complication caused by the last quarter of the sentence being licence-free has now gone.
19. We turn to these appeals. S was born on 27th February 1994. He is therefore only 11 years of age. On 29th July 2005, at Keighley Magistrates' Court, he pleaded guilty and was committed to the Crown Court for sentence, ostensibly under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000, for an offence of arson reckless as to life and, ostensibly under section 6 of the same Act, for offences of battery, arson, burglary and theft. We say "ostensibly" in relation to the committal under section 3 because that section at present only applies to adults. The justices presumably intended to use their powers of committal under the new section 3C of the 2000 Act inserted, as from 4th April 2005, by schedule 3, paragraph 23 of the Criminal Justice Act 2003, that is the power to commit dangerous young offenders. We say "ostensibly" in relation to the committal under section 6 because arson is a specified violent offence under schedule 15 of the Criminal Justice Act 2003 being No 35. So the justices, having committed for arson reckless as to life, which is a serious offence under section 224(2) and in relation to which they had concluded that the applicant was a dangerous offender requiring at least an extended sentence under section 228, would be obliged to commit for the offence of arson under section 3C.
20. On 4th October 2005, at Bradford Crown Court, before the Recorder of Bradford His Honour Judge Gullick, the appellant was sentenced in relation to arson being reckless whether life would be endangered to an extended sentence. This was said to be under section 91, but it should have been an extended sentence of detention pursuant to section 228 of the Criminal Justice Act 2003, comprising a custodial term of two-and-a-half years and an extended period of licence of two-and-a-half years. No separate penalty was imposed for any of the other offences. The total sentence was therefore an extended one of 5 years, the custodial term of which was two-and-a-half years.
21. The facts were these. On the afternoon of 28th April 2005, the appellant stole a box containing 18 eggs, some tubular fluorescent lighting and a chair from a Voluntary Action Centre. Challenged by a member of staff, he ran off. The goods were found discarded in a nearby garage. Some had been damaged. That gave rise to the charge of theft.
22. Between 7.15 and 7.30 in the evening of 3rd May, that is less than a week later, the appellant found some discarded till receipts near a working men's club. He pushed them into an extractor fan and set fire to the paper which damaged the fan. The fire was spotted after it had spread to the toilet area of the club. In consequence, the manager was able to have the club evacuated. The fire was put out with an extinguisher. The fire brigade arrived later. As it was a bingo night, there were some 60 people in the club, a good proportion of whom were elderly. That gave rise to the charge of arson reckless as to life.
23. Shortly afterwards, the appellant set fire to papers in a wheelie bin which was near the club. The consequence was that the bin melted. That was the offence of simple arson.
24. The appellant was arrested on 17th May. In interview, he admitted starting the two fires but said he did not know there were people in the club. His said his motive for all the offences was boredom. He was not charged at that stage but released on police bail and, 5 days later, on 22nd May, he was involved in the burglary of a funeral directors. The alarm was activated. As the key holder came to the premises, he saw the appellant, whose fingerprints were subsequently found on furnishings inside the premises. The appellant was arrested on 6th July and, in interview, said he and another lad had thrown stones through the window and he had climbed in to try to find something to steal. That gave rise to the offence of burglary.
25. On 12th July 2005 he became involved in an altercation with a member of staff at the children's home where he lived. He began to swear, spit and kick out. His key worker sought to calm him down but he lashed out at her, spat at her and bit her on the lower right arm. In consequence, both her lower arms were bruised. He was arrested later the same day, and admitted these matters which gave rise to the charge of battery. He apologised for his behaviour and expressed remorse.
26. The learned judge, in passing sentence, referred to the appellant's extreme youth but the appearance, over the last 12 months, of a deterioration in his behaviour at an alarming rate. His mother had sought help from the social services and he had been excluded from school for disruptive and unacceptable behaviour. Since June 2005 he had been resident in a children's home but each day had made his way to his mother's home, returning to the children's home at night, not infrequently having drunk alcohol or taken prohibited drugs, or both. His behaviour at the home was often violent. He had considerable academic ability and there were plenty of people prepared to help him, but he would have to learn to trust them and accept the help he was being offered. He had been sent to the Crown Court, the judge said, for five separate offences, the most serious of which was arson reckless as to life. The Youth Court had considered he was a dangerous offender. The judge referred to the evacuation of the Bingo players and to an indication in the reports on the appellant that he had had a fascination with fire from a very young age. Since the offences in question, he had twice set fire to his mother's letter box and had also killed by fire a friend's pet. The psychiatrist, in a report dated 19th September 2005, had concluded that there were signs of severe conduct disorder and numerous negative prognostic factors were identified. The psychiatrist's view was that there was a high risk of re-offending and it appeared that the appellant had exhausted the community options available. The judge commented that the appellant's behaviour, in relation in particular to setting fires, presented a high and therefore significant risk to the public of causing serious harm. There was some suggestion that he did not fully appreciate the seriousness of what he had done and did not fully understand the consequences of his actions. That aggravated the position. It was hoped that with time and care, attention, education and training that situation could be reversed. The judge concluded that the provisions of section 229 of the 2003 Act had been satisfied but it was not necessary to impose an indeterminate sentence. He then went on to pass the extended sentence to which at the outset we have referred.
27. One of the appellant's previous convictions is for damaging property, in relation to which he was sentenced to a 12 month supervision order on 10th June 2005, that is to say, on a date before the present offence of battery was committed but after the other offences.
28. A pre-sentence report dated 28th July recommended further supervision if he was not found to be a dangerous offender. There was a high risk of him re-offending. He had little insight into his behaviour and did not realise the risk that he posed. The social services report of 9th August 2005 described him as being "beyond his mother's control and having severe emotional and behavioural difficulties."
29. Mr Wood advanced grounds of appeal on the appellant's behalf which start with a concession that the judge was entitled to reach the conclusion that the appellant is dangerous. But, he submitted, the custodial element of two-and-a-half years was too long, bearing in mind the plea of guilty to all aspects of these activities at the very first opportunity, the comprehensive admissions made during the course of interview and the expression of remorse at least in relation to the last of these offences and the age of the appellant. Mr Wood submitted that the judge's starting point in relation to custody must have been too high, or alternatively this final conclusion inadequately took account of the mitigating features.
30. Before dealing with our conclusions there is one other technical matter which we should mention. In the light of the mandatory terms of section 228 (2), once a determination of dangerousness has been made under section 228(1)(b), it was not open to the judge to impose no separate penalty in relation to the specified offence of arson: there was an obligation to impose an extended sentence for that offence. This, in the ordinary way, would be imposed concurrently (see Lang & Ors paragraph 20) and it could have been imposed concurrently in this case. The fact that the learned judge did not comply with that mandatory obligation makes no difference to the outcome of this appeal. The offences other than arson, it is be noted, were not specified offences, so the judge in relation to burglary, battery and theft was entitled to impose no separate penalty.
31. In our judgment, having regard to all the features highlighted by Mr Wood, the custodial term of two-and-a-half years was too long. We allow this appeal to the extent that we quash that sentence and substitute for it a period of 18 months' detention.
32. Burt was born on 13th June 1989. On 19th August 2005, he admitted a number of offences before magistrates and was committed for sentence, ostensibly pursuant to sections 3 and 6 of the Powers of Criminal Courts (Sentencing) Act 2000. The observations we have already made in paragraph 19 in relation to the case of S apply equally here, that is to say the committal of a potentially dangerous young offender should be under the new section 3C.
33. On 16th September 2005, at Swindon Crown Court, the appellant was sentenced by His Honour Judge Longbotham in the following way: for assault occasioning bodily harm, an offence committed on 7th August, an extended sentence of 4 years pursuant to section 228 comprising a custodial term of 2 years and an extended licence period of 2 years. For aggravated vehicle taking and dangerous driving, he was disqualified in respect of each for 2 years and he was also ordered, in relation to dangerous driving, to be disqualified until an extended re-test had been passed. No separate penalty was imposed for other offences, namely driving otherwise than in accordance with the licence, using a vehicle without insurance, two breaches of an antisocial behaviour order and possession of an offensive weapon. The judge ordered that 39 days spent on remand should count towards the sentence.
34. The circumstances were these. In March 2004 the appellant was made the subject of an antisocial behaviour order part of which prevented him from going to the Bemerton Heath area of Salisbury. He went there. In the early hours of 22nd June 2005 a Vauxhall Nova motorcar, belonging to a Mr Bradford, was taken from outside his home, and just after 1 o'clock in the morning, police officers saw the appellant driving it. They followed. He was displaying no lights. He failed to stop when they indicated he should do so. He drove at about 40 miles per hour, narrowly missing parked vehicles. He took corners without indication or slowing down and went through "no entry" signs. He drove against the flow of traffic on a one-way road. The police sounded their siren. As the appellant was travelling between 40 and 50 miles per hour he crashed into the wall of premises at 52 Queen Alexandra Road, completely demolishing it and the debris from it damaged a window in the property. Part of a neighbour's wall was also damaged and part of that wall landed on another motorcar.
35. The appellant was arrested after a struggle. In interview, he admitted these offences and that he knew he was in an area where, by virtue of the ASBO, he should not have been. He was remanded into the care of the local authority.
36. On 7th August 2005, while still in such care, he was in Pinewood Way, another street within what was to him a prohibited area. He was with a group of other youths. He was confronted by a man called Stephen Gray, who accused the appellant of being responsible for slashing tyres in the street. The appellant went into a nearby house and came out with a knife. It was a bread knife about 12 inches long. He waived it about. A witness called David Osbourne tried to calm the appellant, but he broke free. There was a confrontation between the appellant and Gray and, in the course of it, Gray received a cut to his arm, though the precise manner in which he sustained that cut is a matter of some dispute. According to Gray the appellant had said "I am going to knife you." Gray himself did not see a knife and at one stage said to the appellant "bring it on." The appellant was restrained until the police arrived and arrested him. In interview he made no comment.
37. In passing sentence for the offence of assault occasioning actual bodily harm, the judge correctly identified this as a specified offence and concluded that the appellant presented a significant risk to members of the public of serious harm by the commission of further specified offences. The judge pointed out that the appellant should not have been in the area where repeatedly he was. He also had to take into account the fact that the offence had occurred 2 months after he had been arrested for other offences. He had produced the bread knife. This, the judge described as a very serious incident, involving the use of a knife in a public place. The judge referred to the appellant's serious record which included offences of robbery, (which is of course a serious offence of violence) and affray, (which is a specified offence) as well as offences of criminal damage, being drunk and disorderly, theft, possessing an offensive weapon (which, somewhat surprisingly, is not a specified offence), assault on the police, breach of a supervision order, having a bladed article, breach of a curfew order, battery, common assault, handling stolen goods, breach of an antisocial behaviour order and being carried in a vehicle taken without consent.
38. The pre-sentence report, dated 18th August 2005, which was before the learned judge, concluded that the appellant posed a high risk of re-offending. The judge's conclusion, in the light of the appellant's conduct and the terms of that report, was that, together, they indicated a significant risk to the public of serious harm by the commission of further specified offences. The judge also went on to refer to the other offences for which he was passing sentence, including dangerous driving and aggravated vehicle taking, to the circumstances of which we have already referred.
39. Mr Ruffell, on behalf of the appellant, made, first, the bold submission that the appellant should have been sentenced to an 18 month Detention and Training Order. Mr Ruffell had prepared, helpfully, a chronology of the many offences in the appellant's record and he drew attention to the absence of offences between November 2004, when he was released from a 12 month DTO, and June 2005, when the aggravated vehicle and dangerous driving offences presently under consideration took place. He contrasted that period of tranquillity in the appellant's criminal activity with the remarkable frequency, earlier in 2004 and during 2003, of criminal conduct.
40. Mr Ruffell further submitted that the judge ought not to have concluded that this appellant presents a significant risk of serious harm to the public from the commission of further specified offences. Mr Ruffell pointed out, rightly, that there is no offence in the appellant's past which has resulted in death or serious injuries. He made helpful submissions, which we have largely accepted earlier in this judgment, in relation to the point from which an extended period of licence runs.
41. The learned judge, in passing sentence, clearly contemplated that the effect of the extension period which he imposed would, as he put it "start to bite as soon as you are released." He then went on to say that the extension to the licence period which he was ordering would actually only involve another 12 months. In fact, it seems, for the reasons which we have given earlier, that he was in error in that respect.
42. As it seems to us, the learned judge was fully entitled to conclude that this appellant, in the light of all the matters to which we have referred, was a dangerous offender. However, in the light of the judge's remarks when passing sentence, it is apparent that he thought that the maximum period of licence should be 2 years. For the reasons which we have given, the maximum period of licence on the sentence which he passed would be 1 year as part of the custodial term followed by 2 years of the extension period.
43. In our judgment, this appeal should be allowed to this extent, reflecting what it appears the judge intended to do. The extended sentence of 4 years will be quashed and there will be substituted for it an extended sentence of 3 years, the custodial term of which will be 2 years and the extension period 1 year.
44. Parsons appeared before the Coventry Magistrates on 27th June 2005 where he had, on 10th June, pleaded guilty to offences. He was committed on 27th June to the Crown Court for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 for assault occasioning bodily harm and under section 6 of the same Act, for common assault. On 19th August, at Coventry Crown Court, he was sentenced by Mr Recorder Nicholls to an extended sentence of 3 years, pursuant to section 227, for assault occasioning actual bodily harm, made up of a custodial term of 12 months and an extension period of 2 years. He was concurrently sentenced to 3 months for a second offence of common assault. The total sentence was therefore an extended one of 3 years, the custodial term of which was 12 months.
45. The facts were these. The complainant was the appellant's wife. They had been together for 9 years and had two children aged 6 and 3. The complainant also had an 11 year old son from a previous relationship. There was a history of domestic violence. The police had been called on many occasions to the house either by the complainant or by one or other of her children.
46. His first conviction for assaulting her was on 3rd September 2001, when he was sentenced to a 12-month community rehabilitation order for assault occasioning actual bodily harm, after he had slapped her several times on the head. The second conviction was on 9th March 2003 when he was fined £200 for common assault after slapping her face. The complainant then took out a non-molestation order and the two separated. But, in March 2004, they resumed cohabiting.
47. The appellant was spending a lot of money on gambling. Effectively that included all or most of the household money so there was nothing left for family needs. On 6th June 2005, in an argument arising from these matters, the appellant threw coffee over the complainant and pulled her hair while she was in bed. That gave rise to the offence of common assault. On 9th June, while the two were sitting on a sofa, talking, the complainant said that she wanted a divorce. The appellant thereupon seized her arm and slapped her cheek. Unwisely she said: "Why don't you slap the other one?" He did, several times. The offence was committed in the presence of the children, who retreated upstairs. At that stage the appellant punched the complainant in the face, causing a black eye. The eldest child called the police and the appellant was arrested. That gave rise to the offence of assault occasioning actual bodily harm.
48. When he was interviewed, he admitted throwing coffee and pulling the complainant's hair and he also admitted punching her on 9th June but claimed that she had scratched him first.
49. On 10th June, a district judge concluded that the appellant did not present a significant risk of serious harm and he called for a pre-sentence report. It was after that report had been obtained that lay magistrates committed the appellant to the Crown Court for sentence on 27th June. That conduct by the district judge it is said, in the grounds of appeal advanced on behalf of the appellant by Mr Baker, gave rise to a legitimate expectation that the appellant would not, in due course, receive an extended sentence.
50. The difficulty with that submission is that the district judge was not required by the statutory provisions then and now in force to carry out an assessment as to whether or not the appellant was dangerous. If he reached the conclusion that his sentencing powers were inadequate, he should have committed the appellant to the Crown Court for sentence. That will continue to be the position until section 3A of the Powers of Criminal Courts (Sentencing) Act is brought into force: the terms of that provision are contained in paragraph 23 of schedule 3 of the 2003 Act. Pending implementation of that legislation, as we say, the district judge was not called upon to assess the dangerousness or otherwise of this adult offender. That being so, as it seems to us, there cannot have been any legitimate expectation as to whether an extended sentence might or might not be imposed, because that which the district judge did on 10th June was inappropriate. This was so not only because the statutory provisions to which we have referred but also because he did not have a pre-sentence report before him as he should have done before reaching a conclusion as to dangerousness, as this Court has since made clear in Lang, paragraph 17 (iii) and (iv).
51. The judge, in passing sentence, referred to a letter written by the appellant and the pre-sentence report to which he had regard. He referred to the plea of guilty at the first available opportunity and the fact that a job was available, as was accommodation offered by a friend. But, the judge said, the appellant had developed what he described as an appalling pattern of violence towards his partner. He had a warning shot in 2001 when he was cautioned for an incident and then there was the assault in June 2001. The judge went on to refer to further violence in March 2003 by the appellant against the complainant and he correctly identified the previous commission of a specified offence. He concluded that very unpleasant injury had been caused to the complainant and it seemed the appellant's violence was getting worse on each occasion; a pattern was emerging when the appellant was in drink or under stress from his partner that he would use violence towards her. The probation officer had said that he posed a significant risk of re-offending similarly unless those matters were addressed. The Recorder took the view that the district judge was not correct in his conclusions and he went on to pass the sentence which we at the outset identified.
52. It to be noted that although, as we have said, the appellant has a previous conviction for a specified offence of assault occasioning actual bodily harm and also a previous conviction for battery, he has never previously been sentenced to custody. The pre-sentence report upon him dated 24th June 2005 recommended a community order and said that there was a low risk of him reoffending but a medium risk of harm to his wife and children. Unless his gambling, alcohol and temper control were addressed, he posed a significant risk of re-offending in a similar manner against his wife.
53. The submission which was made by Mr Baker over and above that with regard to legitimate expectation with which we have already dealt, is that this appellant is not correctly to be categorised as dangerous by reference to the statutory test. Mr Baker submitted that, in the light of paragraph 17 (iv) of Lang, which was not of course before the learned Recorder when he passed sentence, the Recorder should not have concluded as he did. Mr Baker conceded that the injury suffered was a very nasty black eye but he stressed there was, so far as the offences for which the Recorder was passing sentence concerned, no question of the appellant either using a knife or kicking.
54. Mr Khamisa, for the Crown, conceded, in the light of the pre-sentence report which was before the Recorder, that Parsons could not properly be characterised as a dangerous offender. Although there is, as is common ground, a significant risk of him committing further offences, there is not, as it seemed to Mr Khamisa and seems to us, a significant risk of him causing serious harm which is of course defined in the Act as death or serious injury. In those circumstances, we allow this appeal by quashing the 3 year extended sentence. So far as an appropriate custodial term for this conduct is concerned, it seems to us that the period of 12 months identified by the learned Recorder was appropriate.
55. What we do therefore is to substitute a sentence of 12 months' imprisonment and the appeal is allowed to that extent. The sentence of 3 months which the Recorder ordered to run concurrently in relation of the offence of common assault will continue to run concurrently. The total sentence therefore is one of 12 months' imprisonment with credit being given for 70 days in custody on remand.
56. Carr pleaded guilty before the Wigan Magistrates' Court on 3rd August 2005 and was committed to the Crown Court for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 for assault occasioning actual bodily harm and under section 6 of the same Act for common assault.
57. On 12th September 2005, at Bolton Crown Court, he was sentenced by His Honour Judge Bloom QC to an extended sentence of 5 years pursuant to section 227, comprising a custodial term of 18 months and an extended licence period of three-and-a-half years, for the offence of assault occasioning actual bodily harm. A sentence of 2 months concurrently was imposed for common assault.
58. The facts were these. The complainant was the appellant's former partner and the mother of his 2 year old son. The appellant frequently visited her where she lived in order to see his son. He turned up there on 29th July 2005, without prior warning, asking for money to buy drink to numb the pain caused by toothache. When she refused, an argument followed. He pushed her to the floor and then hit her above the left eye causing swelling and a cut lip. That gave rise to the offence of common assault. He left soon afterwards but returned a little later. There was a further argument and he assaulted her again. That led to the police being called, to whom, when they arrived, she did not make a complaint though they noted her injures.
59. The complainant then left home with her child to visit a friend. The appellant followed. He pushed her to the ground, causing the child to fall over. She got to her feet. The appellant punched and kicked her from behind causing her to fall to the ground. Whilst on the ground, he punched her and kicked again and forced her up against a wall. The attack was witnessed by a man who intervened and, at that point, the appellant left. Those matters gave rise to the offence of assault occasioning actual bodily harm.
60. He was subsequently arrested. In interview he admitted assaulting the complainant, but denied punching or kicking her and said her injuries were caused because she fell over after he had pushed her.
61. The judge, in passing sentence, referred to the plea of guilty before the magistrates. He referred to the stormy and violent relationship between the appellant and the complainant and to the fact that the appellant had beaten her up several times. If members of the public had not intervened the assault, said the judge, might have been even worse. The judge commented that the appellant had previously been cautioned for assaulting the complainant and had two previous convictions for the specified offence of assault occasioning actual bodily harm. It is to be noted in relation to those that, in relation to the first, in June 1997 a community penalty was imposed, together with an order for compensation and costs and, in relation to the second, in November 1998 he had been conditionally discharged for 18 months. He had not previously been sentenced to custody for an offence of any kind.
62. The judge referred to the statutory presumption, having regard to the presence of a specified offence in the appellant's record and concluded that there was no basis, not to conclude that the appellant was dangerous. Therefore, there being a significant risk of serious harm to the public, an extended sentence had to be passed.
63. The pre-sentence report before the judge, dated 8th September 2005, recommended a community order with a requirement for supervision and completion of an integrated domestic abuse programme. The report referred to the appellant's deep shame at his behaviour, his fear at losing his partner and child and to the previous offences of violence going back to 1997. The author of that report's view, as expressed in paragraph 4.1, was that the appellant, particularly under the influence of alcohol, resorted to violence as a coping strategy when he could not deal with a situation. The appellant was capable and willing of undertaking offence-focussed work, to ensure that he did not commit a similar offence again. In paragraph 4.3, the author concluded that the appellant presented a risk of medium level physical harm to his partner and low risk of harm to the general public.
64. Miss Jones, on behalf of the appellant, accepted that, in the light of what this Court said in Lang, the complainant is a member of the public in relation to whom a risk of serious harm will be pertinent. She submitted that an extended sentence was, nonetheless, inappropriate in the light of the appellant's genuine remorse, as displayed by the appellant both to the author of the pre-sentence report and by a letter to this Court. Miss Jones pointed out that no serious injuries have in fact been caused by the appellant previously or on this occasion and that he entered a plea of guilty at the earliest opportunity.
65. Mr Khamisa, for the Crown, accepted that, in all the circumstances of this case, there was insufficient material for the judge reasonably to conclude that there was a risk of serious harm.
66. In our judgment, that concession was rightly made. We allow this appeal to the extent that we quash the extended sentence passed upon the appellant. We see no reason, however, why the 18 month term of custody which was imposed is inappropriate and, accordingly, the sentence becomes one of 18 months' imprisonment. Credit will be given for 44 days in custody on remand.
67. Hargreaves pleaded guilty at Bolton Crown Court on 18th July 2005 to offences of burglary and assault with intent to resist arrest. On 9th September he pleaded guilty to another offence of burglary. He was sentenced by His Honour Judge Warnock on 9th September to 4 years and 3 years consecutively, making 7 years in relation to the burglary offences and to an extended sentence of 2 years under section 227, consisting of a custodial term of 1 year and an extension period of 1 year. That sentence was expressed to be concurrent with the 7 years imposed in relation to the offences of burglary. On the face of it, therefore, the total sentence was one of 7 years with an extended period of licence of 1 year.
68. The circumstances were these. On 18th April 2005, at 2 o'clock in the morning, police officers were alerted by a passing motorist to the fact that a petrol station about half a mile away had been broken into. When they went there they found a large hole in the back of the building. There was a pile of rubble and numerous cartons and packets of cigarettes scattered on the floor. The rubble had come from a hole made in the wall in line with the metal cigarette cabinet in the kiosk within. Thereby the back of the cabinet had been exposed. Into the back of the cabinet had been made a further hole and approximately £6,000 worth of cigarettes had been taken.
69. The appellant was traced because he had cut himself on the jagged edges of the metal cabinet and left his blood there. That gave rise to the count of burglary in relation to which the sentence of 3 years was passed.
70. Counts 2 and 3 occurred in this way. A week or two later, on 4th May, at about 5.50 in the morning, a post office alarm went off and when two police officers arrived they heard loud banging noises coming from inside the premises. At the back of the building they saw a large hole in the brickwork. The officers were joined by a colleague. As one of the officers stepped through the hole to gain access to the building, the appellant came from an adjacent room brandishing a sledge hammer which he swung round. The officer stepped back and took out his CS gas spray. As he did so, the appellant swung the sledge hammer at him, causing him both to fall backwards and to discharge the gas spray. The appellant raised the sledgehammer. The officer rolled clear. The appellant ran out through the hole in the wall, followed by a second man, who escaped.
71. The appellant was chased, still waving the sledgehammer. He reached some gates, at which he turned, brandished the sledgehammer again and then leapt up onto the gates. One of the officers struck the appellant's leg with his baton, whereupon the appellant dropped the sledgehammer, scrambled over the gate and disappeared. A helicopter was summoned. The appellant was found crouching not far away, beside a garden shed. He was arrested.
72. Meanwhile, another officer had found, parked about 70 yards from the post office, an unlocked motorcar the engine of which was warm. In a garage next to the car there was a safe on a steel trolley. The safe had been removed by the appellant and others from the post office. It contained some £20,000 in cash. Attempts had been made to open it with bolt cutters. There was cutting equipment in the garage and a further set of bolt cutters in the car. Some £3,000 worth of cigarettes had been stolen from the post office. In interview, the appellant was non committal.
73. The judge referred, in sentencing, to the appellant's pleas of guilty at the earliest opportunity, meriting a full discount. But, said the judge, these were serious offences in relation to the burglary matters. Furthermore, police officers needed as much protection as the courts could give, particularly in circumstances of the kind which we have described. The judge referred to the appellant's substantial record, mainly for acquisitive crime, and went on say that the sentences had to reflect the need to protect post offices petrol stations and police officers. With those observations we agree.
74. The appellant was born in November 1976. He has five previous convictions for burglary, three for assaulting a constable, two for obstructing the police and one for attempted robbery. His longest previous sentence was one of 5 years' detention in a young offender institution. That sentence was imposed in 1996 for attempted robbery and possessing a firearm when committing an offence: he was apparently the driver of the getaway vehicle in relation to a robbery in which a number of others were involved.
75. A pre-sentence report, dated 5th September, optimistically recommended a community order. The author referred to the appellant's limited insight and understanding of the consequences of his actions and this had not instilled much confidence in his ability to avoid further offending. There appeared, says the report, to be a medium risk of him causing injury or harm. But it is not said in that report that there was a significant risk of serious harm.
76. The grounds of appeal refer to the maximum sentence for commercial burglary being 10 years' imprisonment.
77. Miss Simpson, on behalf of the appellant, advanced helpful submissions in relation to the point at which an extended period of licence starts to operate. The main thrust of her submission was that a sentence of 7 years, following guilty pleas, was too long in relation to then commercial burglaries. With that submission we agree. In our judgment, serious though these commercial burglaries were, having regard to the maximum sentence and the early pleas, rather than 7 years as imposed by the learned judge, the appropriate total sentence is one of 5 years' imprisonment. That will be achieved by quashing the consecutive 4 and 3 year sentences and imposing a sentence of 5 years concurrently on both the counts of burglary.
78. So far as the extended sentence is concerned, it is apparent that, by imposing a 2 year extended sentence concurrently with the 7 year sentence, the extended licence period was of limited, if any, practical effect. In our judgment, the extended sentence in relation to assault with intent to resist arrest was inappropriate and we quash it. We are however sympathetic to the judge's wish to demonstrate that those who wield sledge hammers in the direction of pursuing police officers can expect to have a sentence imposed upon them which is additional to whatever other sentence their miscreant behaviour attracts. In the circumstances of this case, in relation to the offence of assault with intent to resist arrest, we impose a sentence of 6 months' imprisonment which will run consecutively to the 5 years in relation to the offences of burglary. The total sentence is therefore one of five-and-a-half years' imprisonment and the appeal is allowed to that extent. Credit will be given for 127 days in custody on remand.
79. Denton pleaded guilty at Derby Crown Court on 1st August 2005 to an offence of harassment. On 17th August, before the South Derbyshire Magistrates he pleaded guilty to assault occasioning actual bodily harm and was committed to the Crown Court for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000. On 22nd August he was sentenced by His Honour Judge Hamilton at Derby Crown Court to an extended sentence of 4 years and 10 months, pursuant to section 227, for assault occasioning actual bodily harm, the custodial term of that sentence being expressed as 3 years and 4 months and the extension period as 1 year and 6 months. There was also imposed, consecutively, a 2 month sentence of imprisonment for breach of a conditional discharge imposed by justices on 7th April for common assault. No separate penalty was imposed for a third offence of harassment. The total sentence was therefore said to be an extended sentence of 5 years, comprising a total custodial term of 3 years and 6 months, and an extension period of 1 year and 6 months. A restraining order was also made under section 5 of the Protection from Harassment Act 1997.
80. The circumstances were that the appellant had three children by a woman called Miss Fletcher, though they did not live together. By June 2004 their association had ended. In September 2004 there was contact between the two in order for the appellant to see the children. On 20th September, at about 10 o' clock in the evening, Miss Fletcher was about to go to bed when the appellant sent her a text message saying that he would be at her house in 30 minutes. He followed that with a telephone call. It was apparent to Miss Fletcher that he had been drinking. She sought to ignore him and went to bed as planned.
81. However, at about midnight, she was awakened by a bang on the front door. It was the appellant. She asked what he wanted. He said he wanted to see her. She made it plain that she did not want to see him, but he ignored her requests to go away. The eldest child was awakened. In consequence Miss Fletcher relented and admitted the appellant. He stayed overnight. The following morning, after the children had gone to school, an argument developed during the course of which he threatened to kill her if she called the police. He was arrested later that day and admitted the argument and that gave rise to the charge of harassment.
82. In February 2005 the appellant started a relationship with a woman called Miss Inger. On 15th August they went out for a drink before returning to her home. There they were watching television when, in the early hours, suddenly and without any provocation, the appellant twice slapped her face. She fled into the street. He followed. Neighbours were awakened by the commotion and saw the appellant repeatedly hitting Miss Inger's head against the pavement after grabbing hold of her hair, and dragging her back towards the door of the house. There he did the same on the front step and he also kicked her in the ribs. She was shouting for help and managed to break free and run off. He followed with a knife in his hand and, when he caught up, he grabbed hold of her hair and held the knife against her throat. Miss Inger may have lost consciousness, because thereafter, she only recalled being at a friend's house and the police were called from there. She was taken to hospital where she was treated for two black eyes and cuts to her lips, a badly bruised nose and left cheek, bruising to the theft side of her ribs and wrist and a lump to the back of her head. Some of her hair had been pulled out. When he was arrested later that day in interview the appellant admitted the offence, though he said it had followed an argument.
83. The breach of conditional discharge, in relation to which, it will be recalled he was sentenced (to 2 months consecutively) related to common assault on a woman whom he had caught taking drugs and whom he had pulled by the arm.
84. In passing sentence, the judge said that, when sober, the appellant was pleasant enough, but, when drunk, he was violent and aggressive. Nothing seemed to deter him from using his fists and feet when he had been drinking. He provided a significant risk to members of the public of serious harm and an extended sentence was called for. The harassment was a serious matter. The judge referred to the appellant having been granted bail in March but, within a matter of days, committing a common assault on the woman taking drugs. The breach of the conditional discharge then imposed had occurred by commission of the most serious of the offences, that of assault occasioning actual bodily harm. It was serious not only because of what happened to the complainant but because of the effect on her neighbours. On three separate occasions, he had seized the complainant and attacked her. He had done so while he was drunk. He was fortunate not to have caused really serious injuries or even death when he held the knife to her throat. Had he not pleaded guilty, the maximum sentence of 5 years would have been imposed. He was entitled to a full discount for that plea and in consequence the sentence would be reduced to 40 months, to which the 2 months for breach of conditional discharge would run consecutively. The total sentence would therefore be an extended sentence of 5 years, with a custodial term of three-and-a-half years.
85. The appellant was born in July 1974. He has four previous convictions for assault on the police, three for common assault, one for unlawful wounding, for which he was sentenced to 30 months on 27th March 2000, one for affray, one for battery and one for threatening behaviour. A pre-sentence report had been prepared on the day before the offence of assault occasioning actual bodily harm had been committed. The report assessed him as presenting a medium risk of harm and a high risk of re- conviction.
86. The submission which was made on Denton's behalf by Mr Newsham was that the imposition of an extended sentence was wrong in principle. He accepted that there were, in the appellant's record, offences which included specified offences. But, Mr Newsham submitted, there was no significant risk of serious harm. There was no reason to believe, in the light of what was said by the Court in paragraph 17 (iv) of Lang that the pattern of the appellant's behaviour would give rise to risk of serious harm. Mr Newsham accepted that the present offence of assault occasioning actual bodily harm included the carrying of a knife, held near the throat, and also included inducing an apparent, albeit brief, loss of consciousness by the complainant because she was being held by the appellant tightly round the neck. Mr Newsham was critical of the 2 months imposed consecutively for breach of the conditional discharge.
87. For the Crown, Mr Khamisa drew attention to the unprovoked nature of the last attack by the appellant and submitted that all the circumstance of this case point to a significant risk of serious harm in the future.
88. So far as the 2 month sentence for the breach of conditional discharge is concerned, we accept Mr Newsham's submission that the nature of the offence for which this sentence was imposed was not of a gravity requiring, in itself, a custodial term and certainly not a term consecutively to the other sentences imposed. Furthermore, as was pointed out in paragraph 12 of the judgment in Lang, and paragraph 23 referring to the case of Nelson, it is not a desirable practice to impose a determinate sentence consecutively to an extended sentence or vice versa. Accordingly we quash that 2 month sentence.
89. So far as the imposition of an extended sentence is concerned, in our judgment, there were a combination of features in this case which fully justified the judge in reaching the conclusion which he did. The appellant's record of violence, the consequences when he has been drinking as identified in paragraph 3.7 in particular of the pre-sentence report, the fact that the assault occasioning actual bodily harm was unprovoked, the fact that it involved the carrying of a knife held close to the victim's throat and the fact that the victim was caused, albeit briefly, to lose consciousness, in our judgment, fully sustained the judge's conclusion with regard to dangerousness, in the light of the presumptions in section 229(3) of the 2003 Act.
90. However, so far as the sentence of 3 years and 4 months for the custodial part of the offence of assault occasioning actual bodily harm is concerned, we regard that as excessive. We quash that period. We substitute for it a sentence of two-and-a-half years. The effect of what we have said is that the appeal is allowed to the extent that the extended sentence for assault occasioning actual bodily harm of 4 years and 10 months will be made up of a custodial term of two-and-a-half years and a licence period of 2 years and 4 months. So far as the breach of conditional discharge is concerned, the sentence of 2 months' imprisonment imposed consecutively is quashed and we impose no separate penalty in relation to that breach.
91. Taylor pleaded guilty on 28th July 2005 at Southampton Crown Court and, on 19th September 2005, he was sentenced by His Honour Judge Boggis QC to imprisonment for public protection for arson being reckless as to whether life was endangered. A period of 3 years less 144 days spent on remand was specified as the term to be served under section 82A of the Powers of Criminal Courts (Sentencing) Act 2000. No separate penalty was imposed for an offence of possessing cannabis.
92. The circumstances were that, on 27th May 2005, the appellant and his girlfriend had an argument in a public house in the course of which she told him their relationship was at an end and he accused her of having an affair, which she denied. He said he was going to burn their flat down. He ran off. His girlfriend was going to go to the police but decided instead to go home. When she got there the fire brigade were already, outside the block of six flats where she lived. The appellant had started a fire on a sofa in their flat and had then contacted the emergency services about midnight saying "I've just set light to the place I'm living in. I've just set light to it, I don't want other people to get hurt." He was asked if anyone else was in the building and said: "I don't know I don't give a fuck". In fact he alerted his neighbours and, by the time the fire brigade arrived, all the flats had been emptied. He was arrested and found to have half an ounce of cannabis in his pocket. In interview he said the fire had started accidentally while he was rolling a cigarette.
93. Forensic examination revealed the fire had been started with a naked flame. Damage had been caused which would cost some £10,000 to repair. His girlfriend lost all her belongings in the flat.
94. In passing sentence, the judge referred to the extensive damage and loss of personal effects. He also referred to the fact that the appellant had alerted the fire brigade and people in the other flats. The judge went on to refer to what the appellant had said when speaking to the operator during the emergency call. He said the appellant displayed no concern for others. Although he did not know it, the block was so constructed that the risk of a fire spreading to other flats was reduced below what otherwise it might have been. This was a serious offence.
95. There was a psychiatric report which indicated, the judge said, that the appellant was not a person who obtained pleasure from setting fires but he did have a long history of depression, apparently related to the large amounts of cannabis which he had been taking which had had a serious affect on his mental health. The judge referred to the appellant's serious record, in that, in 1983, he had been convicted of arson in what the judge described as a wholly different set of circumstances, when his father found him smoking in a shed. In 1990 he had been sentenced for a robbery but not learned his lesson from that, because, in 1992, he had been sentenced to 5 years for robbery and having an imitation firearm and he also received a concurrent sentence for assault with intent to resist arrest. The judge, rightly, said that arson was a serious offence and account had to be taken of the risk which he presented to the public, which the judge assessed as serious.
96. It is apparent from the judge's sentencing remarks, in particular at page 4A of the transcript, that the judge's assessment of seriousness was based on the way in which the appellant had behaved on the night giving rise to the instant offence of arson being reckless as to life. We say that because, in relation to the earlier offence of arson committed when the appellant was only 15 years of age, the judge referred to the wholly different circumstances of that offence compared with the present.
97. In giving credit for the appellant's guilty plea, the judge said that the appropriate determinate sentence would have been 6 years, half of which, that is to say 3 years, would be served, from which the period of 144 days spent on remand would be deducted.
98. On behalf of the appellant, Mr Leonard drew attention to the letter written to this Court by the appellant expressing a desire to change and, in particular, to become free of his apparent addiction to cannabis. Mr Leonard in that respect relied on the reports of five consecutive tests on the appellant while he has been serving this sentence, in each of which he has been found to test negatively for drugs. Mr Leonard queried, first, the propriety of an indeterminate sentence, having regard to the basis for that sentence identified in his sentencing remarks by the judge. Furthermore, Mr Leonard submitted that the starting point of 6 years, following a plea of guilty, was, on any view, too high for this offence of arson, serious though it is.
99. Mr Leonard also raised a number of ancillary matters, in particular, the question of whether or not the author of a pre-sentence report assessing dangerousness is susceptible to cross-examination about his conclusions. That, in the present case, is wholly academic, first, because counsel in the court below, who was not Mr Leonard, did not seek to cross-examine the author of that report and, secondly, because that was for the very good reason that the report did not identify a significant risk of serious harm: it would have been very surprising if counsel had, in those circumstances, sought to cross-examine the author.
100. The matter having been raised, however, we merely say this. Whether or not the author of a pre-sentence report ought to be cross-examined is essentially and pre-eminently a matter for the sentencing judge, whatever the terms of that report may be. The assessment of risk contained in such a report is, of course, an important factor when the judge is assessing risk but it is not determinative. The judge has to look at all the circumstances of the case and make his assessment in the light of the material before him. It is only likely to be in very rare cases that it will be incumbent on a judge to permit the author of a pre-sentence report to be cross-examined in relation to assessment of seriousness. It is, of course, open to counsel to make submissions about the contents of a report in relation to a defendants' history of criminal offending and all other material matters.
101. A second matter in relation to reports arises because, as we have indicated, there is a psychiatric report in the present case, the essential conclusions of which we have identified. It is, however, noteworthy that that report does not address the risk of serious harm presented by this appellant. As we said in Lang, the cases in which a psychiatric report will be necessary when assessing risk are comparatively few. But in those cases where such a report is thought to be necessary, it will generally be essential for the psychiatrist to make an assessment with regard to seriousness for the guidance of the sentencing judge.
102. So far as the merits of this appeal are concerned, in our judgment, the assessment of dangerousness was not reasonable in all the circumstances of this case. The arson offence the circumstances of which, as the judge recognised, was very different from the present offence, was very old, by reason both of the passage of years and the development into a mature man of the then 15 year old offender. The circumstances of the offences of robbery which had occurred up to 15 years ago were not, in our judgment, of a kind to support an inference of dangerousness. Indeed, it is apparent that the judge himself did not think that either the offence of arson or the offences of robbery supported the conclusion which he reached.
103. The question, therefore, is whether the circumstances of the instant offence of arson reckless as to life substantiated his conclusion of a significant risk of serious harm in the future. In our judgment, they did not. We say this because, although an offence of arson of this kind is a serious offence, the features of this particular offence, not least the deliberate steps taken by the appellant to alert the emergency services and to have removed from possible danger those who were living in the flats, suggests that an inference of a wish of death or serious harm in the future could not properly be made. Accordingly, we quash the sentence of imprisonment for public protection.
104. So far as the appropriate custodial term for this offence is concerned, Mr Leonard does not seek to suggest that the sentence could sensibly have been significantly less than 3 years, though he ventured to suggest that perhaps it might not be more than 3 years. Looking at all the circumstances of this offence, however, and taking into account that the judge was not dealing with an offender of previous good character, we take the view that the appropriate custodial term in this case is one of 4 years' imprisonment. The appeal is allowed to that extent. The period of 144 days which the appellant spent in custody on remand will count towards that sentence.
105. Coyne is now 21, having been born in November 1984. On 5th October 2005 at Maidstone Crown Court, before His Honour Judge Lawson QC, he pleaded guilty on rearraignment to three offences of attempted robbery and was sentenced to detention for public protection on each count concurrently with a period to be served of two-and-a-half years less 121 days spent in custody on remand.
106. The three offences arose from a single incident on 12th April 2005, when the appellant sought to rob three schoolboys aged 16 or 17 of their mobile telephones, in Gravesend town centre during their lunch break. He took exception to them laughing about an incident which they had seen and claimed that their laughter insulted him. He was aggressive and intimidating and said "you're lucky my cousin goes to your school or you'd be dead." He left at that stage. A little later, when the boys were returning to school and passing through a dark underpass, the appellant approached and made further threats including one that his cousin could kill them, that they were not finished yet and that he wanted to smash their heads in. He said he had a screwdriver. As he threatened them, he moved his hand in his pocket to give the impression that he had a weapon. The boys were conciliatory. They were also frightened. The appellant asked the boys for a telephone to make a call to his boss. He demanded that of each of them and searched each of them. None, perhaps somewhat surprisingly, had a mobile telephone. He let each of them go. They went back to school and reported the matter. The police were summoned.
107. The appellant was arrested on 5th June. He declined in interview to comment.
108. The judge, in passing the sentence, referred to the fact that, despite his youth, the appellant had a number of convictions for aggressive and violent behaviour, for assaults and for criminal damage. More importantly he had six convictions including three of street robbery, committed with others, who had used violence. Those offences related to teenagers. In a letter to the court he said he wanted to change his way of life but it was not unreasonable to conclude that the public was at significant risk of serious harm in the future and therefore the sentence would be one of imprisonment for public protection. The judge said that, from a starting point of 4 years, there would be a discount of one-quarter for a plea, reducing the term to 3 years, a further 15 per cent discount because of the more severe current licensing conditions, and therefore the period he would serve would be two-and-a-half years. (It to be noted that the judge did not, in his process of reasoning, halve the period which in order to reach the minimum term to be served he identified). The period of 121 days spent in custody on remand would be deducted.
109. Mr Purdasy, on behalf of the appellant, stressed that the offender was only 20 years of age at the time of the offence and at the time of sentencing. He points out that, contrary to what was subsequently said by this Court in Lang, the judge ought to have obtained a pre-sentence report before reaching a conclusion about dangerousness. Mr Purdasy submitted that the report which has been provided to this Court, although identifying the appellant as being a very high risk of re-offending and presenting a high risk of immediate harm to the public, his record demonstrating a propensity towards gratuitous violence, does not identify a risk of serious harm to the public from further specified offences in the future. It is also to be observed that paragraph 27 of the report concluded that there was no significant risk of serious harm demonstrated by to the 2001 offences, there was no actual violence in the current offences and therefore, the author of the report suggested, no risk of serious harm was demonstrated. Mr Purdasy submitted that, in all these circumstances, the learned judge ought not to have concluded that there was a risk of serious harm from this young man's activities in future.
110. In our judgment, that submission is well-founded and, accordingly, we quash the sentence of detention for public protection. As to the appropriate custodial term in lieu, as it seems to us, that should properly be a term of 3 years' detention. It is common ground between Mr Purdasy and Mr Khamisa for the Crown that such a sentence would not give rise to treating the appellant more harshly, in the light of the sentences which were passed upon him in the court below. To that extent, accordingly, this appeal is allowed. Towards that 3 year term the period of 121 days spent in custody will count.
111. H, on 22nd July 2005, pleaded guilty at Merthyr Tydfil Crown Court to a variety of offences. On 25th August he was sentenced by His Honour Judge Curran to imprisonment for public protection, with a minimum term specified to be served of 6 years and 112 days was ordered to count towards that sentence.
112. The indictment related to offences some of which were laid under the Sexual Offences Act 1956 and some under the Sexual Offences Act 2003. That gave rise to difficulties to which in a moment we shall come. The sentences passed were of 12 years' imprisonment in relation to offences of rape charged under the 1956 Act and sentences of imprisonment for public protection on each of a number of counts of rape, laid under the 2003 Act, the minimum term of 6 years being specified.
113. There were also four offences of indecent assault laid contrary to the 1956 Act, and the sentence in relation to those was 5 years' imprisonment concurrently. The same sentence was imposed in relation to offences of assault by penetration, under the Sexual Offences Act 2003, committed before the coming into force of the relevant sentencing provisions of the Criminal Justice Act on 4th April 2005. In relation to such offences committed subsequently to that date the sentence was imprisonment for public protection with a minimum term to be served of 6 years. (Count 33, inappropriately, alleged assault by penetration during a period spanning 4th April 2005).
114. There were two offences of battery for which a concurrent sentences of 6 months were imposed. (These counts; inappropriately, referred to a period spanning 4th April 2005, when battery became a specified offence). There were four offences (counts 37 to 40 of the indictment) of taking indecent photographs of a child, for which sentences of 5 years' imprisonment were imposed concurrently. (Counts 39 and 40, inappropriately, referred to a period spanning 4th April 2005) There was also a count in the indictment, count 41, which related, unlike all the other counts, not to the appellant's daughter but to a 15 year old friend of the appellant's daughter. A sentence of 4 years' imprisonment was imposed concurrently in relation to that for indecent assault under the 1956 Act.
115. During the course of today's hearing Mr Crowther, on behalf of the appellant, wearing sack-cloth and ashes because he did not identify the point in the court below, seeks leave to appeal against conviction on counts 13 and 21 of the indictment. Count 13 charged rape contrary to the Sexual Offences Act 1956 but the particulars identified a period in 2005 after the Sexual Offences Act 1956 had been repealed and the Sexual Offences Act 2003 brought into force simultaneously, on 1st May 2004. Count 21 similarly alleged rape contrary to the Sexual Offences Act 1956 and there the particulars relate to the latter part of 2004, after the statutory amendments made as from 1st May 2004. His application, in those circumstances, for leave to appeal against conviction out of time is not resisted by Mr Khamisa on behalf of the Crown. We grant that application, allow the appeal and quash the convictions on counts 13 and 21.
116. All that needs to be said about the facts of these offences is that they represented a course of conduct by the appellant over a period in excess of 2 years, towards his daughter, starting a few weeks after she attained the age of 14. He raped her vaginally and anally. He subjected her to oral sex. He performed oral sex upon her and he took indecent photographs of her. He also physically assaulted her on two occasions giving rise to the allegations of battery.
117. The indecent assault on the other 15 year old girl took place when he digitally penetrated her while masturbating as he watched a pornographic video.
118. The learned judge in his sentencing remarks referred to the pleas of guilty on first arraignment, providing significant mitigation but these offences fell, he said, into the worst category of their type. The appellant had subjected his own daughter to a repeated campaign of rape and other abuse, which involved abuse of trust, an element of force and emotional blackmail, not to mention every kind of indignity. He concluded that life imprisonment was not required, bearing in mind the offences were confined to the appellant's daughter within the family home. He concluded, however, unsurprisingly, that there was a significant risk of serious harm in the future by the commission of public specified offences and he imposed the sentence of imprisonment for public protection which is not challenged.
119. Mr Crowther drew attention to the fact that counts 37 and 38, being serious offences carrying a maximum sentence of 10 years' imprisonment, required the mandatory imposition of a sentence of imprisonment for public protection once a conclusion of dangerousness has been reached (see paragraph 30 above): but this does not affect the outcome of this appeal, and no useful purpose would now be served by imposing further concurrent sentences of imprisonment for further protection. He submitted that 18 years was too high a starting point and in consequence the judge both in relation to the substantive terms for the 1956 Act offences and in calculating the period of 6 years specified to be served by reference to a notionally determinate term of 12 years for the 2003 Act offences, reached too high a sentence.
120. We agree. It is important, as Mr Crowther, in his submissions written and orally pointed out, that, in identifying a notional determinate sentence, a judge, having imposed an indeterminate sentence, must, in the figure which he chooses, avoid overlap or double counting, in relation to risk, because that is catered for, as a number of decisions of this Court have made clear, by the imposition of the indeterminate sentence.
121. In our judgment, the sentence, both notional and actual, of 12 years was excessive. The appropriate term is one of 10 years' imprisonment, that is to say the sentence will be one of 10 years' imprisonment, in relation to the offences of rape charged under the 1956 Act. The notional determinate sentence in relation to those subsequent offences correctly charged under the 2003 Act will be 10 years, producing a term to be served of 5 years' imprisonment, less the period of 112 days served on remand in custody.
122. At this hour, we do not further explore in detail other problems which arise from the indictment in this case, when counts were charged which span either 1st May 2004 in the regime changed with regard to sexual offences, or 4th April 2005, when the dangerousness provisions of the Criminal Justice Act 2003 came into force. The latter problem was sufficiently dealt with in Lang and the former may be avoidable by careful framing of the indictment with regard to dates.
123. There must be no report of this case which identifies the complainants in relation to sexual offences.