England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		No: 200604505/A4 Royal Courts of Justice Strand London, WC2
		15th January 2007

1. MR JUSTICE TOULSON: On 11th July 2006 at Norwich Crown Court, the appellant was convicted of two counts of sexual assault on a child under 13, contrary to section 7 of the Sexual Offences Act 2003. On 11th August 2006 the trial judge, Her Honour Judge Plumpstead, passed a sentence of imprisonment for public protection and set a minimum term of 12 months' imprisonment less four days which the appellant had spent in custody. That minimum period represented half of what the judge considered would have been the appropriate determinate sentence had she not thought it appropriate to pass a sentence of imprisonment for public protection. She considered the appropriate term of sentence would have been 12 months' imprisonment consecutive on each count.
2. He appeals against that sentence by leave of the Single Judge.
3. His counsel, Mr James, submits that, firstly, that 2 years would have been manifestly excessive as a determinate sentence, and secondly, that it was wrong to pass a sentence of imprisonment for public protection.
4. The two offences occurred when the victim was aged 10. She lived with her mother and her younger brother. The appellant formed a relationship with the victim's mother and moved in to live with the family in August 2005. The victim complained to her mother that he used to walk round the house naked and on occasions used the lavatory in the bathroom when the victim was in the bath. The victim's mother took these matters up with him but he dismissed them.
5. The facts of the offences were that on two occasions he put his hands inside her clothing and squeezed her buttocks. The victim reported this conduct to her mother on 21st November 2005. She called the police. From that moment on there was no further contact between the appellant and family.
6. The appellant is now aged 44. He has a bad criminal record, mainly for offences of dishonesty. He has twice appeared before the court for offences of violence to the person. The first occasion in 1980 and the other in 1991 but on both occasions he received non-custodial sentences. Between 2003 and 2005, he appeared before the courts on a number of occasions for offences of harassment towards an ex-partner, for which he received a variety of sentences including a sentence of 18 months' imprisonment. He also has convictions for offences of criminal damage.
7. So he was a persistent offender but had no previous convictions for any form of sexual offence and his record of offences of violence to the person was at the lower end of the scale.
8. In her sentencing remarks the judge accepted that in terms of their physical contact, the offences were at the lower end of the scale. She identified four aggravating features: first, that there were two offences; secondly, that they involved breach of trust; third, that he had failed to take the hint dropped by the victim's mother about the need to respect her physical integrity; and fourth, that the appellant failed to admit his wrongdoing, and therefore the child had to face the ordeal of giving evidence.
9. The breach of trust was undoubtedly an aggravating feature. It is difficult, we think, to regard the fact that there were two offences of an isolated rather than specimen nature, and in physical terms at the lower end of the scale, as amounting to a significant aggravating feature. It was also in our view, with respect to the judge, wrong to regard his refusal to plead guilty as an aggravating feature.
10. Having regard to the comparatively minor physical nature of the indecent assaults and the appellant's lack of previous convictions for any sexual offences, we consider that a determinate sentence of amounting to a total of 2 years' imprisonment would have been too high. We have been referred by Mr James to draft recommendations of the Sentencing Guidelines Council. We consider that the appropriate determinate sentence would have been one of 12 months' imprisonment on each count concurrent.
11. Turning to the question whether it was appropriate to impose a sentence of imprisonment for public protection, the judge set out her reasoning process in some detail. She noted the following matters about the facts: (a) there was a serious breach of trust; (b) it happened on more than one occasion; (c) there was a denial of guilt which forced the victim into the ordeal of giving the evidence; (d) the appellant maintained that there was a conspiracy between the child and the mother (e) the appellant had a long criminal record, (f) he had repeatedly harassed ex-partners; and (g) the probation officer who prepared the pre-sentence report using two separate diagnostic tools had concluded that there was a high risk of reconviction and potentially high risk of harm to others. Because the judge clearly placed significant reliance on the pre-sentence report, it is appropriate to see just what that report said and the basis on which it said it.
12. The pre-sentence report recorded that the appellant agreed that he had twice pinched the victim's bottom but that he denied there was any sexual motivation.
13. The statistical tools used by the probation officer, which indicated a 60 per cent probability of reconviction for some offence in 2 years and a medium risk of re-offending of a violent or sexual nature, resulted from there being fed in to the analysis the following factors: (i) he had a lengthy list of previous convictions; (ii) he did not have secure accommodation; (iii) he did not have regular employment; (iv) he had a history of poor relationships and showed a lack of understanding of emotional feelings of others or of his own behaviour and its effect on others; (v) he had poor alcohol control; (vi) he had a poor emotional state and acknowledged a history of depression with suicidal feelings at the times.
14. From those factors the probation officer concluded that he presented a high risk of re-offending and potentially high risk of harm to others but the report did not expand on the nature of the foreseen re-offending or its seriousness.
15. In order to pass a sentence of imprisonment for public protection, the judge had to be satisfied that there was a significant risk of him causing serious harm by the commission of further offences. The judge accepted, as already noted, that in purely physical terms, the offences were at the lower end of the scale. Indeed she referred to them as being "the least physical interferences that can constitute a sexual offence". The judge continued:

"But I have to consider the question of whether there is a significant risk of serious psychological harm, and this, with a high risk of re-offending of this nature, and I agree that the assessment by the Probation Service is soundly based..."

She concluded:

"Now, it is my opinion that sexual touching of children under the age of 13, and particularly in this case a child of ten, has the potential for serious psychological harm. I think I can take that as accepted by the Court of Appeal in the decision in Bowlers, despite the dicta in Iser.

Having read the pre-Sentence Report, I am perfectly satisfied that at the present time you present to children, into households where you may gain entry by persuading yourself into the good books of their mother, there is a serious risk that you will again indecently assault, sexually assault, a child in the circumstances."

The judge went on to say that she was strengthened in her view by looking at the guidelines given by this Court in the case of R v Lang [2005] EWCA Crim 2864. We have difficulty with the judge's reasoning. First, the pre-sentence report had not suggested that there was a high risk of reoffending of this nature. It had merely suggested that there was a high risk of some form of reconviction, based on his past record, which did not include sexual offences.

16. The judge, who has great experience in the knowledge of child abuse cases from her work as a family judge, drew on that experience in saying that she was well aware that sexual touching of a child of 10 has the potential for causing serious psychological harm.
17. The test, however, was whether there was, firstly, evidence to conclude that there was a significant risk of him committing further offences of the kind which might give rise to psychological damage and secondly, that there was a significant risk of him causing serious harm by so doing.
18. We do not consider that there was sufficient evidential basis for reaching either of those conclusions. Furthermore, we do not see that the conclusion which she reached was strengthened by the guidelines laid down by this Court in Lang. Rather, the reverse. In that case the Court presided over by Rose LJ, considered 13 cases of violence and sexual offences, in 12 of which the court had imposed either life imprisonment or a sentence of imprisonment for public protection or an extended sentence. He said in paragraph 17:

"In our judgment, the following factors should be borne in mind when a sentencer is assessing significant risk:

(i) The risk identified must be significant. This is a higher threshold than mere possibility of occurrence and in our view can be taken to mean (as in the Oxford Dictionary) 'noteworthy, of considerable amount or importance.'

(ii) In assessing the risk of further offences being committed, the sentencer should take into account the nature and circumstances of the current offence; the offender's history of offending including not just the kind of offence but its circumstances and the sentence passed, details of which the prosecution must have available, and, whether the offending demonstrates any pattern; social and economic factors in relation to the offender including accommodation, employability, education, associates, relationships and drug or alcohol abuse; and the offender's thinking, attitude towards offending and supervision and emotional state. Information in relation to these matters will most readily, though not exclusively, come from antecedents and pre-sentence probation and medical reports. The Guide for sentence for public protection issued in June 2005 for the National Probation Service affords valuable guidance for probation officers. The guidance in relation to assessment of dangerousness in paragraph 5 is compatible with the terms of this judgment. The sentencer will be guided, but not bound by, the assessment of risk in such reports. A sentencer who contemplates differing from the assessment in such a report should give both counsel the opportunity of addressing the point.

(iii) If the foreseen specified offence is serious, there will clearly be some cases, though not by any means all, in which there may be a significant risk of serious harm. For example, robbery is a serious offence. But it can be committed in a wide variety of ways many of which do not give rise to a significant risk of serious harm. Sentencers must therefore guard against assuming there is a significant risk of serious harm merely because the foreseen specified offence is serious. A pre-sentence report should usually be obtained before any sentence is passed which is based on significant risk of serious harm. In a small number of cases, where the circumstances of the current offence or the history of the offender suggest mental abnormality on his part, a medical report may be necessary before risk can properly be assessed.

(iv) If the foreseen specified offence is not serious, there will be comparatively few cases in which a risk of serious harm will properly be regarded as significant. The huge variety of offences in Schedule 15, includes many which, in themselves, are not suggestive of serious harm. Repetitive violent 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.

(vii) In relation to a particularly young offender, an indeterminate sentence may be inappropriate even where a serious offence has been committed and there is a significant risk of serious harm from further offences (see for example, R v D [2005] EWCA Crim 2282).

(viii) It cannot have been Parliament's intention, in a statute dealing with the liberty of the subject, to require the imposition of indeterminate sentences for the commission of relatively minor offences. On the contrary, Parliament's repeatedly expressed intention is to protect the public from serious harm."

19. As to the first issue, whether there was a significant risk of repeated offending of the kind in question, we have already noted that although the probation officer thought there was a significant risk of some further offending, there is no suggestion that there was significant risk of this particular type of offending. The relationship with the family had terminated. As already noted, the appellant admitted the physical acts but said they had been innocuous. He now knows that this is firmly not society's view and he is rightly being punished for his behaviour. But since his past history does not suggest a pattern of behaviour of this kind, since the offences were of their kind at the least grave end of the scale, and since the relationship has come to an end, while there may be a possibility of him committing a similar offence. We are not satisfied that it passed the higher threshold required for it to be regarded as a significant risk.

As to whether there was a significant risk of serious harm, again we accept there was a possibility that a child might suffer serious psychological damage from a repetition of such behaviour, but we remind ourselves of the guidance of this Court, that repetitive sexual offending with a relatively low or without serious harm does not of itself give a significant risk of serious harm in the future. We are not satisfied that there was the material on which the judge could, with respect, have justifiably concluded that there was a significant risk of future serious harm.

More generally, we remind ourselves that Parliament cannot have intended a sentence of imprisonment for public protection for offences of a relevant minor nature which would at most result in only a short term of imprisonment. If we are right in the view that the appropriate determinate sentence in this case would be one of 12 months' imprisonment, it would follow that the minimum period which should have been specified as part of a sentence of imprisonment for public protection would have been 6 months.

The regime of imprisonment for public protection is not geared to passing such a sentence with a specified period of such short duration.

For those reasons this appeal is allowed and for the sentence passed by the judge, we will substitute a sentence of 12 months' imprisonment concurrent on each count.