England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		17th July 2008

1. LORD JUSTICE LATHAM: These three sentence cases have been listed together as they give the court an opportunity to consider the sentencing problems which can arise when an existing indeterminate sentence prisoner falls to be sentenced for further offences.
2. Dealing with the matters in the order in which they are listed, the applicant Hills was a prisoner who fell to be sentenced for an offence committed while he was still within the minimum term of his indeterminate sentence. His application for leave to appeal against sentence has been referred to this court by the Registrar and we give leave to appeal. Davies was a prisoner who fell to be sentenced for further offences committed prior to the imposition of the indeterminate sentence which he was serving at the time of his sentence with which we are concerned. His application has likewise been referred to the court by the Registrar and we give leave. The applicant Pomfret was a prisoner who had served the minimum term of an indeterminate sentence but was still in custody at the time that he committed the offence with which we are concerned. Again, his application has been referred to this court and we give leave and we give extensions of time wherever those are necessary.
3. The problems relating to the sentencing of those who are serving indeterminate sentences have been considered by this court in the past, in particular in the case of R v O'Brien [2006] EWCA Crim 1741 criminal 1741, where the court considered the way in which sentences should be constructed when indeterminate sentences, extended sentences and determinate sentences may have to be mixed. This court considered that again in the case of R v C [2007] EWCA Crim 680 and has recently considered the matter again in the case of R v Ashes [2007] EWCA Crim 1848.
4. Essentially, there is little difficulty in dealing with cases such as the case of Pomfret where the offender is to be sentenced after the completion of any minimum term where there has been an indeterminate sentence of imprisonment for public protection or life imprisonment. Where the minimum term has not yet been fully served, then the appropriate guidance is the guidance in O'Brien and we will turn to see how that can be applied when we come to deal with the appeal in the case of Davies. The issue which has not so far been resolved is the situation where the offender falls to be sentenced while still serving the minimum term but where an indeterminate sentence, if imposed concurrently, could not add in any way to the length of the period before which the offender will be considered for release on parole and in circumstances where it is clear that the interests of justice require in effect a consecutive sentence, if that can be imposed. That is the issue raised in the case of Hills, to which we turn first of all.
5. The offence with which we are concerned was an offence of assault occasioning actual bodily harm and three counts of assault by beating which resulted in a sentence of three years' imprisonment which was imposed by HHJ Spittle on 26th October 2007 at the Crown Court at Teesside. He was at the time serving a sentence which had been imposed on 27th October 2006, which was an indeterminate sentence with a minimum term of four years. It would appear that it was incorrectly indicated that that was an imprisonment for public protection whereas in fact the appellant was then not yet 21 and accordingly it should have been detention in a Young Offender Institution for public protection.
6. He in June 2007 had been moved to a single occupancy cell in a segregation unit in Holme House Prison for bullying prisoners. He discussed with another prisoner what the consequence would be if he assaulted a prison officer. He was hoping to be moved from the segregation unit. On the evening in question, he was being served his evening meal in the cell. The prison officer came to collect the meal tray and, when he opened the door, the appellant threw hot water into his face. He attacked the officer with an aluminium flask which he had wrapped in a sock, using it like a cosh. The incident was only brought under control when other officers eventually managed to overpower him after quite a substantial struggle.
7. The judge concluded that this was a case in respect of which a concurrent sentence was inappropriate due to the serious nature of the offending and the aggravating features. The aggravating features were not simply those which related to the facts of the offence but also the fact that the appellant had in July 2007 been sentenced to a concurrent sentence of 12 months' imprisonment for attempting to escape from lawful custody. In those circumstances, the judge determined that the appropriate order was that the three years which he described as imprisonment should be served consecutively to the minimum term which the appellant was then serving, which in effect meant that the three years imprisonment would begin to be served on 7th February 2010.
8. On behalf of the appellant two submissions are made: first, it was wrong in principle for the judge to impose a sentence which was deferred so as to commence at the end of the minimum term. It is submitted that that simply is not a lawful proper sentence and there is no warrant or justification for it in the statutory provisions. Second, if on the other hand it is in fact justified, then three years' imprisonment was too long a sentence in all the circumstances.
9. As far as the issue of principle is concerned, it would be extremely unfortunate if, in circumstances such as the present, the court were not able to impose a sentence which extended the period before which an offender was to be considered for parole. It would effectively mean that, subject always to consideration by the Parole Board, the offender would not have any punishment for what could be a serious offence committed during the course of imprisonment; and it may be that the offence is not so serious that the length of imprisonment available to the court is such as to enable a concurrent sentence to extend beyond the end of the minimum period for a sufficient length of time to meet the justice of the case. That is the situation in the present case and that was clearly the reason why the judge took the course that he did.
10. In our view, there is no reason in principle why the court should not impose a sentence structured in the way that this sentence was. Section 154 of the Powers of Criminal Courts (Sentencing) Act 2000 declares that:

"A sentence imposed, or other order made, by the Crown Court ... shall take effect at the beginning of the day on which it was imposed, unless the court otherwise directs".

That seems to us to give to the court the power to direct that a sentence should or could commence at a different date. The sentencing regime which has been created in particular by the Criminal Justice Act 2003 provides for clear dates upon which minimum terms will come to a end which enable a court to identify with precision the date upon which otherwise an offender could be considered for release on parole. That being the case, there is in our judgment no practical reason why an order should not be made which requires the offender to commence to serve an additional period after the minimum period before he can be considered for parole. The old authorities to the contrary effect are no longer relevant now that minimum terms are clearly identified.

11. Accordingly, we consider that the judge was entitled to make the order that he did. As far as the length of the sentence was concerned, this was a deliberate serious act of violence planned clearly by the appellant in circumstances which fully justified a significant sentence of imprisonment. We can see nothing wrong with the sentence, accordingly, of three years. The sentence should, however, not have been one of imprisonment, it should have been one of detention in a Young Offender Institution because of the appellant's age, although that is of purely academic interest now because he is 21; but, save to the extent that we have indicated, this appeal is dismissed.
12. We then turn to the case of Davies. He was sentenced on 13th March 2008 in the Crown Court at Cardiff for five offences of buggery, one count of rape, one count of indecent assault on a male person and three counts of indecency with a child. On 3rd April 2008 he was sentenced to life imprisonment with a recommended minimum term of nine years on counts 1 to 5 and 7 and six years' imprisonment concurrent on the other counts. We should say immediately that there is a problem with the sentences in relation to counts 9, 10 and 11. Because of the dates upon which those offences were committed, the maximum sentence available to the court was one of two years' imprisonment and, accordingly, the appeal will in any event be allowed so as to reduce the sentence imposed in respect of those counts to one of 18 months' imprisonment to be served concurrently but that makes no difference to the ultimate outcome.
13. The facts can be shortly stated because it is unnecessary to go into detail. The appellant lived near the complainant and his mother. He befriended the complainant's mother. He had befriended the complainant in the scout troop in which the complainant was a member; and he ultimately moved in to live with the complainant and his mother. The abuse began almost immediately and continued over a substantial period of time, somewhere in the region of six years. The allegations, which were accepted by the appellant, were that he regularly buggered the boy and committed other sexual acts both on and with him. The complainant ultimately made his complaints after the appellant had been convicted of other sexual offences, to which we will return. He was interviewed in relation to the offences with which we are concerned and he largely made full admissions.
14. He had previous convictions for sexual offences which went back some years. In 1998 he was sentenced to a total of seven years' imprisonment for rape and indecent assault and then in 2007 he was sentenced to imprisonment for public protection with a minimum term of 54 months for three counts of rape and one count of attempted rape and that was the sentence that he was serving at the time that he was interviewed in relation to these offences and ultimately sentenced. The pre-sentence report, not surprisingly, indicated that he was a very real danger to young people with a high risk of re-offending.
15. It was in those circumstances that the judge had to determine the appropriate sentence. He concluded that, bearing in mind the appellant's plea, the appropriate determinate sentence would have been one of ten years' imprisonment. He concluded that, because of the seriousness of these offences, the sentence was one which should be served consecutively to the sentence that he was already serving. There were four years remaining of the minimum term. He accordingly concluded, applying O'Brien, that the appropriate minimum term which he ordered to be served was one of nine years, being the balance of the current minimum term plus the appropriate minimum term for the offences in question, namely five years' imprisonment.
16. On behalf of the appellant, Mr Rees does not submit that the judge was not entitled to approach the matter in that way. He simply submits that the resulting sentence was manifestly excessive in total. He submits that, properly calculated, the judge must have had in mind notionally a total sentence of 27 years' imprisonment before giving any credit for the pleas of guilty and so forth.
17. There is no doubt that this sentence can be shown in that way to be a very severe sentence. But at the end of the day, we have to determine whether the judge's approach has produced a sentence which is manifestly excessive. The essence of the judge's conclusion, namely that this appellant should serve the equivalent of a determinate sentence of ten years' for these offences, bearing in mind the background, seems to us to take proper account of the fact that he was intending to make the sentence consecutive. Looked at in that way, whilst it is a severe sentence, we do not consider that it is manifestly excessive. The end result of nine years as the period before which this appellant could be considered for release seems to us to meet the justice of the case. This appeal is dismissed, save for the matters we have referred to in relation to counts 9, 10 and 11.
18. We turn then lastly to the appeal of Pomfret. He pleaded guilty on 8th November 2007 in the Crown Court at Birmingham to wounding with intent. He was found not guilty of an offence of common assault after the prosecution offered no evidence. He was sentenced on 29th February 2008 to imprisonment for public protection with a minimum term of six years.
19. The circumstances which gave rise to the count to which he pleaded guilty were that, on 4th March 2007, he was in the segregation unit at Long Lartin Prison. We shall return to the circumstances in which he came to be there shortly. He was considered to pose a risk to prison officers and so special measures were taken to protect them. On the day in question, the usual procedure was adopted which was intended to ensure that he was not in a position to attack any of the officers when they went in to his cell. But, as the prison officers went in, he said that he wished to post a complaint. He had a complaint form in his hand hiding a sharpened piece of perspex. As the prison officer went to take the complaint form, the appellant stabbed at his face, with the perspex entering the cheek bone just below the eye. The appellant had to be restrained. It was found that he had put grease on his wrists and forearm, which was clearly intended to make that more difficult. Fortunately for the prison officer in question, although the wound was a deep one it did not affect the eyeball or the socket.
20. The appellant's position at that time was that he was serving a sentence of custody for life with a minimum term of four and-a-half years' detention for offences of false imprisonment and causing grievous bodily harm with intent. Those offences had been themselves committed against a prison officer whilst the defendant was in prison. He had been entitled to be considered for parole from September 2002.
21. The judge had reports before him which indicated that the applicant at that stage, at any rate, was expressing remorse for having caused the serious injury to the prison officer. The appellant was anxious that it be known that he felt a very great sense of frustration. In June 2005, the Parole Board felt that he had made good progress and had recommended a progressive move. However, that had not happened. He felt indeed that he was not being given the opportunities that he should have been given to enable him to progress. The report concluded that he undoubtedly did pass the dangerousness test. That is not surprising on the facts but it ended "I concede that there is room for optimism that Mr Pomfret could progress through the custodial system and could achieve a level of stability whereby he could be reconsidered for parole". There was also before the judge a psychiatric report which concluded that, given the right care and appropriate custodial environment, offering therapeutic opportunity and monitoring, the appellant could progress satisfactorily through the custodial system and re-enter the community with a reasonable chance of successful rehabilitation.
22. The judge, however, concluded that this was such a serious piece of violence that he should not feel constrained by the Sentencing Guideline Council's guidelines in relation to offences such as this, particularly bearing in mind that it was an assault on a prison officer in circumstances where the appellant had already shown himself to have been capable of serious violence to prison officers in the past. It was in those circumstances that he concluded that the appropriate determinate sentence was one of 12 years' imprisonment and accordingly ordered that the minimum term was to be one of six years' imprisonment.
23. On behalf of the appellant, it has been submitted that, whilst imprisonment for public protection could not be said to be wrong in principle, the minimum term is excessive, particularly bearing in mind his plea and the matters to which we have referred relating to the expectation of those who had provided the reports that there was a real possibility that this appellant could progress in future in a way which would justify his release into the community.
24. We have considered with care those submissions. In our judgment, the Recorder was fully justified in coming to the conclusion that this assault was so serious that only a very substantial sentence of imprisonment was appropriate. Whilst the notional sentence which he ultimately determined to be appropriate was clearly severe, we do not consider that it would be considered manifestly excessive and we accordingly dismiss the appeal.