England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BRISTOL CROWN COURT
JUDGE SIMON DARWALL SMITH
S20050686

		Royal Courts of Justice Strand, London, WC2A 2LL
		23rd June 2006

Mr Justice Keith:

Introduction

1. The appellant was born on 16 November 1987. On 20 October 2005 at Bath and Wansdyke Youth Court, he was convicted of two offences of sexual assault on a woman contrary to section 3 of the Sexual Offences Act 2003. These were specified and serious offences within the meaning of sections 224(1) and 224(2) of the Criminal Justice Act 2003 ("the 2003 Act"). He had pleaded not guilty. The offences had been committed on 9 July 2005, making him 17 years old at the time. He returned to the Youth Court for sentence on 3 November 2005 after a pre-sentence report on him had been prepared. On that occasion, he was committed to the Crown Court for sentence under section 3C of the Powers of Criminal Courts (Sentencing) Act 2000 ("the 2000 Act") on the basis that it appeared to the court that the criteria for the imposition of sentences of detention for public protection or extended sentences of detention under the 2003 Act would be met. He was still only 17 at the time of his committal.
2. The appellant appeared at Bristol Crown Court on 18 November 2005. By then he was 18 years old. His 18^th birthday had been two days earlier. The judge, Judge Simon Darwall Smith, thought that the appellant's age at the time of his offences meant that he had to be sentenced under the regime applicable to those aged under 18, namely sections 226 and 228 of the 2003 Act, rather than under the regime applicable to those aged 18 or over, namely sections 225 and 227 of the 2003 Act. He concluded that the appellant was a dangerous offender – or to use the language of sections 226(2)(b) and 228(1)(b)(ii) – that there was a significant risk to members of the public of serious harm occasioned by the commission by the appellant of further specified offences. But he also concluded that the case was not one for which sentences of detention for public protection needed to be passed. Instead, he passed extended sentences of detention for each offence. The custodial term in each case was 2 years' detention, and the extension period – during which the appellant would remain on licence – was 5 years in each case. Those terms were to be served concurrently.
3. In addition, the appellant had to be sentenced for the breach of a supervision order for 12 months which had been imposed on 23 June 2005 for an offence of exposure. The breach of the supervision order had not been put to the appellant when he had appeared at the Youth Court. Since it was only put to him when he appeared at the Crown Court, the judge treated him as aged 18 or over for the purpose of sentencing him for the breach of that order. That is not apparent from the judge's sentencing remarks. It is what the record sheet prepared by the official shorthand writers reports the judge as having said in chambers. In the event, the judge revoked the suspension order, and passed a sentence of detention for 12 months. The appellant was ordered to serve that term consecutively to the custodial terms passed for the two offences of sexual assault. The effect was that the appellant was sentenced to 3 years' detention, of which he would serve half in detention and half in the community, and that he would remain on licence for a further 5 years. He now appeals against sentence, the Registrar having referred his appeal to the Full Court. At the commencement of the hearing, we granted the appellant leave to appeal.

The facts

4. Both the assaults took place on the same evening – 9 July 2005 – just over two weeks after the imposition of the supervision order. At about 10.30 pm that evening, a 17 year old girl was sitting on a bench waiting to meet her boyfriend. The appellant rode past her on his motorcycle and stopped. They knew each other because according to the appellant they used to "hang out" in the same crowd. There was an awkward silence between them at first, but they began to talk to each other after a while. The appellant then sat down beside her. She told him that she was waiting for her boyfriend, but the appellant got close to her and put his hand on her leg. She pushed it away with her handbag. He then put his arm around her shoulder, and began to move his other hand, which was in his pocket, in such a way as made her think that he might be masturbating. These events constituted the first offence of sexual assault.
5. At this point, the girl stood up and walked off in the direction of a nearby public house towards a no-through road which had bollards preventing anything other than pedestrian access. The appellant then got back onto his motorcycle, and drove around the block in order to meet the girl at the other end of the no-through road. He got off his motorcycle, grabbed the girl's arm and pinned her against a wall. She struggled and tried to get away, but as she did so he moved his other hand down to the bottom of the full-length skirt she was wearing. As he began to slide his hand up her skirt, she hit him with her handbag. At that moment, some people came out of the public house, and that was when the incident came to an end. These events constituted the second offence of sexual assault.
6. The girl was later to say that she had been shocked when the appellant had put his hand on her leg while they were on the bench. And when the appellant had met her at the end of the no-through road, she had felt scared as she did not know what was going to happen. She said that throughout she had kept telling the appellant that she had a boyfriend, to which he had replied: "Shut up and come on." She was very distressed, and she had become unwilling to go out alone. Her social life had been severely curtailed. For his part, the appellant admitted meeting the girl on the evening in question, but he denied that any sexual assaults had occurred.

The appellant's background

7. The appellant plainly had a propensity for exposing himself. For two offences of exposure committed in July 2004 when he was 16, referral orders for 6 months had been made. He had been reprimanded for a further offence of exposure also committed in July 2004. And the offence of exposure for which the supervision order had been made had been committed in May 2005 when he was 17. There is no reference in the papers to the circumstances of the offence for which he was reprimanded, but the facts relating to the other offences of exposure show a similar pattern of behaviour. He would drive past women on his motorcycle masturbating while looking at them.
8. A psychiatric report was prepared for his appearance at the Youth Court on the two charges of sexual assault. It did not disclose any evidence of mental illness. The appellant was said to be ordinarily mature for his age, but it was difficult to get access into his inner world. The solitary pursuits which he enjoyed like fishing meant that his opportunities for normal sexual outlets may have been restricted. He was reluctant to talk about his sexual thoughts, though he had spoken in the past about his previous offences and how he had become aroused by the shock on the part of his victims. The escalation of his behaviour to more predatory offending was a cause for real concern. The author of the report advocated leniency, taking the view that the appellant was still young enough for there to be some possibility of change if he could only overcome his shame and embarrassment about discussing the inner workings of his sexual world with strangers. Custody was only likely to bring him into contact with older and more damaged men, and limit the opportunities for therapeutic intervention.
9. The appellant's discomfort about talking about his offences was graphically illustrated in the pre-sentence report on him. He was maintaining his innocence even though it was explained to him that if he co-operated in attempts to analyse his sexual behaviour it could have some bearing on the type of sentence he eventually got. Indeed, it was this report which made it more difficult for the court to impose a non-custodial sentence on the appellant. It recorded that he had come close to breaking the referral orders. He had failed to keep several appointments and had been unwilling to engage in any therapeutic intervention. The supervision order had not been given a chance to work, because he had been in custody since his arrest for the assaults. The likelihood of further offending was assessed as high. His reticence about discussing his offending behaviour, and his lack of empathy for his victims, made him unsuitable for programmes aimed at addressing his sexual offending.

The age of the appellant for the purpose of sentence

10. The question whether the judge was entitled to treat the appellant for the purpose of sentence as under the age of 18, and therefore liable to the regime applicable to those aged under 18 rather than to the regime applicable to those aged 18, was raised by the Registrar when the appellant's notice of appeal was filed. The difference between the two regimes was critical in this case, in view of the judge's opinion that there was a significant risk to members of the public of serious harm occasioned by the appellant of further specified offences. If the appellant had been treated as aged 18, so that section 225 of the 2003 Act applied to him, the judge would have had to impose at the very least a sentence of detention for public protection pursuant to section 225(3) of the 2003 Act (as modified by section 96 of the 2000 Act to reflect the fact that the appellant was less than 21). The option of an extended sentence of detention under section 227 of the 2003 Act would not have been available because the offences of sexual assault were serious offences for the purpose of Chapter 5 of Part 12 of the 2003 Act. On the other hand, as the appellant was treated as being under 18, the judge had the option of imposing a sentence of detention for public protection under section 226(3) of the 2003 Act, or an extended sentence of detention under section 228 of the 2003 Act, depending on his view as to whether an extended sentence of detention would be adequate for the purpose of protecting the public from serious harm from him.
11. The Registrar's concern that the appellant may have been sentenced under the wrong sentencing regime was based on passages in Archbold, "Criminal Pleading, Evidence and Practice", 2006, and Blackstone "Criminal Practice", 2006. According to Archbold, para. 5-33:

"In the case of an offender who has passed from one relevant age group to another between committal and his appearance before the Crown Court, the Crown Court should ensure that he is sentenced as a member of the appropriate age group. An offender committed under the PCC(S)(A) 2000, ss. 3,4 or 6, must be sentenced on the basis of his age when he appears before the Crown Court (see R v Robinson, unreported, November 20, 1962, decided on the CJA 1948, s.29(3))."

(The reference to the Criminal Justice Act 1948 was wrong. It should have referred to the Magistrates' Courts Act 1952). A similar conclusion was expressed in Blackstone at para. D21.19:

"In disposing of the committal the Crown Court is not limited to the sentence that the magistrates' court could have imposed but may deal with the offender as if he had just been convicted on indictment. One consequence of this is that if he has attained an age of relevance to sentencing powers during the period between the magistrates' court and Crown Court proceedings then he is to be sentenced on the basis of his age when he appears in the Crown Court (Robinson (1962) CSP L12-3AO1)."

If this view is correct, the age of a defendant committed to the Crown Court for sentence is treated for the purpose of sentence differently from the age of a defendant convicted after trial on indictment. The latter has to be sentenced on the basis of his age at the date of his conviction, either by the verdict of the jury or by a plea of guilty: see Danga (1992) 94 Cr.App.R. 252 and Robinson (1993) 96 Cr.App.R. 418.

12. The authority cited in these passages in Archbold and Blackstone – the earlier case of Robinson – was not reported. But a brief summary of the case appears in early editions of Current Sentencing Practice. The appellant was committed to the Quarter Sessions for sentence under section 29(1) of the Magistrates' Courts Act 1952. He was then 20. By the time he appeared at the Quarter Sessions, he had reached the age of 21. He was sentenced to undergo a period of Borstal training, which was a sentence reserved for those who were under 21 at the date of their conviction. The Court of Appeal quashed the sentence, saying that "the relevant date for considering whether there is power to send to Borstal training in such circumstances is the date when sessions deal with it". The court's reasoning is not known, but the powers of Quarter Sessions on a committal under section 29(1) were set out in section 29(3), which provided that Quarter Sessions "shall have the power to deal with the offender in any manner in which he could be dealt with by a court… before which he had just been convicted of the offence on indictment".
13. In our judgment, the sentencing regime under which the appellant was to be sentenced was to be determined by what was contemplated by the provisions which created the new sentencing regime. If that is the correct focus, it is not difficult to identify what sections 225-228 of the 2003 Act contemplated as being the age of the offender for the purpose of sentence. Sections 225 and 227 apply where "a person aged 18 or over is convicted" of a serious (section 225(1)) or specified (section 227(1)) offence. Sections 226 and 228 apply where "a person aged under 18 is convicted" of a serious (section 226(1)) or specified (section 228(1)) offence. If the relevant age for the purpose of sentence was the offender's age at the date of sentence, sections 226(1) and 228(1) would have been drafted as follows:

"This section applies where… a person aged under 18 is to be sentenced for…"

If the relevant age for the purpose of sentence was the offender's age at the date of the offence, sections 226(1) and 228(1) would have been drafted as follows:

"This section applies where… a person is convicted of a serious [or specified] offence committed when he was aged under 18…"

Sections 225(1) and 227(1) would have been similarly drafted. As a matter of statutory construction, we conclude that the age of the offender for the purpose of determining which of the statutory regimes under Chapter 5 of Part 12 of the 2003 Act applies to him is the offender's age at the date of conviction, and that Judge Darwall Smith was right to sentence the appellant by reference to sections 226 and 228 of the 2003 Act.

14. This conclusion makes practical sense. It would be very unjust for an offender who was some way off his 18^th birthday on the date of conviction, but who only appeared at the Crown Court when he was 18 years old because of delays for which he may not have been responsible, to be sentenced under the regime applicable to those aged 18 or over. We accept that it could also be unjust for an offender who was some way off his 18^th birthday when he committed the offence, but was convicted when he was 18 years old because his trial was delayed, for example, on account of the unavailability of witnesses, to be sentenced under the regime applicable to those aged 18 or over. But at least the injustice created by the first of those examples would be avoided if the offender's age for the purpose of sentence was his age at the date of conviction. Moreover, these problems could not have been overcome by adopting the course approved in Ghafoor [2003] 1 Cr.App.R.(S) 84, i.e. by passing a shorter custodial sentence to reflect the age of the offender at the time of the offence as opposed to the time of conviction. The different statutory regimes under Chapter 5 of Part 12 of the 2003 Act provided for sentences of different kinds, not sentences of different lengths.
15. That is not inconsistent with the sentencing powers which the Crown Court had in the case of the appellant. As we have seen, he was committed to the Crown Court for sentence pursuant to section 3C of the 2000 Act (as inserted by para. 23 of Schedule 3 to the 2003 Act), which provides, so far as is material:

"(1) This section applies where on the summary trial of a specified offence a person aged under 18 is convicted of the offence.

(2) If, in relation to the offence, it appears to the court that the criteria for the imposition of a sentence under section 226(3) or 228(2) of the Criminal Justice Act 2003 would be met, the court must commit the offender in custody or on bail to the Crown Court for sentence in accordance with section 5A(1) below."

Section 5A(1) of the 2000 Act (which was inserted by para. 27 of Schedule 3 to the 2003 Act) deals with the powers of the Crown Court on such a committal, and its provenance, via a series of intervening Acts in the meantime, was section 29(3) of the Magistrates' Courts Act 1952. It provides, so far as is material:

"Where an offender is committed by a magistrates' court for sentence under section… 3C… above, the Crown Court shall inquire into the circumstances of the case and may deal with the offender in any way in which it could deal with him if he had just been convicted of the offence on indictment before the court."

This is the provision which the editors of Archbold and Blackstone had in mind.

16. In our view, the manifest purpose of that provision was to ensure that the sentencing powers of the Crown Court were not limited to those of the Magistrates' Court. It is unnecessary for us to speculate what the word "just" adds to the exercise. It is sufficient for us to state that, having regard to sections 225-228 of the 2003 Act, it did not require the appellant to be sentenced under the regime applicable to those aged 18 or over solely because he would have been 18 years old on conviction if he had "just" been convicted on indictment. And in the interests of completeness we should add that we do not go along with the suggestion made by Mr Kerry Barker for the Crown – who did not appear in the Crown Court and for whose succinct skeleton argument we are most grateful – that the use of the word "may" in section 5A(1) of the 2000 Act shows that it was intended to confer a discretion on the Crown Court to sentence an offender aged 18 or over on the basis of whichever of the two regimes it chooses. The word "may" in section 5A(1) does not confer a discretion. Section 5A(1) merely confers an enabling power on the court. That is borne out by the language of its predecessor – section 29(3) of the Magistrates' Courts Act 1952 – which spoke of Quarter Sessions having the "power" to deal with the offender as if he had been convicted on indictment. The fact remains that the sentencing regime under which the appellant was to be sentenced was that contemplated by sections 225-228 of the 2003 Act.

The appellant's dangerousness

17. The application of the new sentencing regime in Chapter 5 is triggered by the sentencing court concluding that there is a significant risk of two things happening – that the offender will commit further specified offences, and that members of the public will be caused serious harm as a result. In Lang [2005] EWCA Crim 2864, the Court of Appeal identified at [17] the factors which a sentencer should bear in mind when assessing whether there is a significant risk of these two things happening.
18. We cannot say that the judge was wrong to conclude that there was a significant risk that the appellant would commit further offences of sexual assault. We acknowledge, of course, that young offenders can change. But the psychiatrist who saw the appellant spoke of the possibility of change only in the context of the appellant being prepared to put aside his inhibitions and to discuss his sexual thoughts with the professionals. The appellant's failure to co-operate with those responsible for supervising him under the referral orders, the very short period of time which elapsed between the making of the supervision order and the commission of the sexual assaults, and his unwillingness to engage in any discussion about his problems or to address his offending behaviour made the possibility of change less likely. In these circumstances, the judge was entitled to come to the view that, unless the appellant was prepared to face up to what he had done and to recognise that he had a problem, there would continue to be a significant risk of the appellant attacking women in the future in the way he had done in the past.
19. The more difficult question for the judge was whether there was a significant risk that women would be caused serious harm as a result of what the appellant might do. Serious harm is defined in section 224(3) of the Act as meaning "death or serious personal injury, whether physical or psychological". We remind ourselves that simply because there is a significant risk of the appellant subjecting women to sexual assaults, it does not necessarily follow that there is a significant risk of such harm as he causes them being serious. We note what was said on this topic in Lang at [17(iv)]:

"Repetitive violence or sexual offending at a relatively low level without serious harm does not of itself give rise to a significant risk of serious harm in the future. There may, in such cases, be some risk of future victims being more adversely affected than past victims but this, of itself, does not give rise to significant risk of serious harm."

On the other hand, sexual assaults which are relatively minor from the physical point of view may lead to severe psychological injury. Indeed, in Bowler (1994) 15 Cr.App.R.(S) 78, which was referred to in Lang, the point was made that that applies to adult women just as much to young girls. Some women might be able to shrug off unwelcome sexual attention, but others might not. The court took the view that the purpose of a provision which required the court to assess what longer custodial term was necessary to protect the public from serious harm from the offender included "the protection of those women, less robust than average, who may be vulnerable to the kind of conduct that [the offender in that case was] likely to perpetrate and who might, in those circumstances, suffer serious psychological harm". We recognise the force of these remarks, but we doubt whether it would be right to say that an offender represents a significant risk that women would be caused serious harm if only a relatively small proportion of women would be susceptible to severe psychological injury as a result of what the offender might do.

20. Although the risk of the appellant's conduct escalating beyond the relatively low level of the sexual assaults of which he was convicted cannot be discounted, we do not think that it can be said that the risk of such an escalation is significant. So the question is whether there is a significant risk that more than a relatively small proportion of females of the relevant age would suffer severe psychological injury if the appellant behaved towards them as he behaved towards the victim of his sexual assaults. We do not think that there is a significant risk of that. We think that this view is entirely in line with the three cases considered in Lang of relatively low level sexual assaults: Winters at [48-57], Carasco at [58-69] and Wright at [79-88]. In each of those cases, sentences of imprisonment for public protection were quashed, and determinate sentences of imprisonment were imposed in their place. We have therefore concluded that extended sentences of detention were not appropriate in this case.

The sentence for the breach of the supervision order

21. Before considering what the proper sentence for the sexual assaults should be, we should deal with the sentence which the judge imposed for the appellant's breach of the supervision order. The offence of exposure for which the appellant had to be sentenced was a specified offence, though not a serious one. The nature of the sentence which the judge passed is unclear. If it was an extended sentence, it would have been an extended sentence of detention under section 227(2) (as modified by section 96 of the 2000 Act), since the judge was apparently treating the appellant as aged 18 for the purpose of sentencing him for the breach. But if the judge was not intending to pass an extended sentence for the breach, it could not have had the effect of postponing the commencement of the extension period for a year. We therefore think that the judge must have been intending to pass an extended sentence. In any event, it was not appropriate to require the sentence, whatever its nature, to be served consecutively to the extended sentence of detention for the sexual assaults. If it was an extended sentence, the fact that it was consecutive fell foul of what was said in Lang at [20], namely that it would not normally be appropriate to impose consecutive extended sentences. If it was not an extended sentence, the fact that it was consecutive fell foul of what was said in S [2005] EWCA Crim 3616 at [88], namely that it is not a desirable practice to impose a determinate sentence consecutively to an extended sentence.
22. But the real problem with the extended sentence of detention for the breach of the supervision order was that it was not a sentence which the judge could impose at all. Para. 23(2) of Schedule 8 to the 2003 Act provides for what is to happen when an offender appears before the Crown Court while a community order is in force having been committed to the Crown Court for sentence. The Crown Court may revoke the order, and deal with the offender for the offence for which the order was made "in any way in which he could have been dealt with for that offence by the court which made the order if the order had not been made". Since the Youth Court had not had the power to pass an extended sentence on the appellant for the breach, the Crown Court did not have the power either. In the circumstances, the judge's revocation of the supervision order was within his power, but the sentence of 12 months' detention consecutive to the extended sentence of 2 years' detention for the sexual assaults was not.

The appropriate sentence

23. We have no doubt that a custodial sentence was called for in this case. As Mr Fergus Currie for the appellant acknowledged, the pre-sentence report on the appellant scuppered his chance at that time of being dealt with by a community sentence. But the question then arises as to what was the appropriate sentencing regime for him. Was he to be sentenced on the basis of his age at the date of the conviction or at the date of sentence? If the latter, the only custodial sentence which the court could have passed on him was detention in a young offender institution: see section 96 of the 2000 Act. If the former, the court had two sentencing options. It could have imposed a detention and training order under section 100(1) of the 2000 Act. And if the court thought that a detention and training order was not suitable, it could have imposed a longer period of detention under section 91(3) of the 2000 Act. It is true that such a sentence can only be passed following conviction on indictment, but by section 5A(1) of the 2000 Act, an offender's committal to the Crown Court for sentence under section 3C can be dealt with as if he had been convicted on indictment.
24. As with the regimes for sentencing dangerous offenders, the sentencing regime under which the appellant was to be sentenced on the footing that he was not a dangerous offender had to be determined by what was contemplated by the provisions which created those regimes. Again, it is not difficult to identify what sections 91, 96 and 100 of the 2000 Act contemplated as being the age of the defendant for the purpose of sentence. Section 91(3) applies when "a person aged under 18 is convicted" of offences of various kinds, including an offence of sexual assault contrary to section 3 of the Sexual Offences Act 2003. Section 96 applies where "a person aged at least 18 but under 21 is convicted" of an offence punishable with imprisonment in the case of a person aged 21 or over. Section 100(1) applies where "a child or young person (that is to say, any person aged under 18) is convicted" of such an offence. By parity of reasoning with [13] above, those provisions would have been drafted differently if the age of the offender for the purposes of sentence was to be treated as something other than his age on the date of conviction. It follows that the only custodial sentences which the judge could have passed on the appellant once his conclusion about the appellant's dangerousness is put to one side were a detention and training order or detention for a period longer than 2 years under section 91. In our view, detention for a period longer than 2 years was not required in this case, and the appropriate sentence would have been a detention and training order.
25. It is plain that the judge had the power to make a detention and training order even though the appellant was 18 at the time. Where proceedings are commenced against someone under the age of 18 and he attains the age of 18 before the conclusion of those proceedings, section 29(1) of the Children and Young Persons Act 1963 empowers the court dealing with him to make any order which it could have made if he had not attained that age. That was the basis on which the Divisional Court in Aldis v Director of Public Prosecutions [2002] 2 Cr. App. R. (S) 88 held that the fact that an offender had attained the age of 18 did not prevent a detention and training order being made.
26. But there is a problem with imposing a detention and training order of suitable length on the appellant now. The time which an offender spends in custody before being sentenced to a detention and training order does not count towards his sentence. That is usually catered for – at any rate for sentences of up to 12 months – by reducing the length of the detention and training order by twice the length of the time spent in custody. So if an offender has spent, say, a month in custody on remand, the length of the detention and training order which the court passes will be reduced by two months. However, that will not be possible in this case because the appellant has spent eleven months or so in custody, and we are hesitant about imposing a detention and training order even for a short period in these circumstances, since the appellant has already served the equivalent of a custodial sentence of about 22 months.
27. In these circumstances, the only appropriate way of dealing with the appellant is by imposing a non-custodial sentence on him. We acknowledge that a community sentence was not regarded as appropriate when the pre-sentence report on him was prepared, but things may have changed considerably since then in view of his time in detention. In any event, his time in detention may have made it difficult for him to adjust when he is released, and we think that it would be beneficial for him if suitable opportunities existed for him to do what he has been unable to do up to now – namely to discuss his sexual thoughts and engage in ways of reducing his offending behaviour. In all the circumstances of the case, we think that the most appropriate way of dealing with the appellant is by the making of a supervision order. Such a sentence is only available where "a child or young person (that is to say, any person aged under 18) is convicted" of an offence: see section 63(1) of the 2000 Act. As we have already held, that language enables the court to pass such a sentence even though the appellant had reached the age of 18 when he appeared at the Crown Court.

Conclusion

28. For these reasons, this appeal is allowed, the sentences passed by the judge are quashed, and we substitute for them a supervision order for 2 years for each of the offences of sexual assault and for the offence of exposure. The appellant's means are such that it would not be appropriate to make a recovery of defence costs order in this case.