England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SNARESBROOK
HIS HONOUR JUDGE BING (1)
ON APPEAL FROM THE CROWN COURT AT LINCOLN
HIS HONOUR JUDGE HEATH (2)
ON APPEAL FROM THE CROWN COURT AT CANTERBURY
HIS HONOUR JUDGE O'MAHONEY (3)

		2007/04728/A6(2) 2007/05439/A6(3) Royal Courts of Justice Strand, London, WC2A 2LL
		26/11/2008

The Lord Chief Justice:

1. These cases were heard together. Factually they are unconnected, but they raise questions of interest about the provisions governing the sentence of imprisonment for public protection created by section 225 of the Criminal Justice Act 2003 (the 2003 Act). We treated each case as an appeal against sentence for which leave had been given. None involved a Reference by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988. Throughout this judgment unless the sense requires otherwise, we shall describe the sentence of imprisonment for public protection as "the sentence". The sentence was imposed on one of the appellants when the court lacked jurisdiction. However two of them were fortunate that they were not so sentenced, notwithstanding that the jurisdiction was available.
2. We are sympathetic with judges up and down the country who are required to pass sentence on defendants before the court for offences falling within the "dangerous" offenders provisions of the 2003 Act and committed both before and after 4 April 2005 when the Act came into force. Distinct statutory provisions apply. Thus, the sentence was created by the 2003 Act: it did not exist and therefore could not be imposed for offences committed before 4 April 2005. It can only arise for consideration where an offence or offences committed after that date fall within the circumstances prescribed in section 225 of the Act. Inevitably, in some cases the pre 4 April 2005 offences are more serious then the later ones, in others less so. If the later offences are more serious, and the statutory conditions are established (and we must now add, sentence was passed before 14 July 2008 when the amending provisions in the Criminal Justice and Immigration Act 2008 (the 2008 Act) came into force) the sentence is mandatory: since that date, it has become discretionary.
3. We were told in the course of argument, and it is plain that the courts below approached the sentencing decisions on the basis that where the conduct encompassed within the pre 4 April 2005 offences was of greater gravity than that of the post 4 April 2005 offences, the judge should not apply the provisions of the 2003 Act. Indeed we were told by counsel that this submission reflected common practice. The foundation for the practice appears to have been the well known judgment of this court in R v Lang and others [2005] EWCA Crim 2864, where Rose LJ addressed many of the complex issues relating to the sentence in the context of a number of cases which were brought together for the consideration of the court where specified violent or sexual offences were committed on or after 4 April 2005. During the course of his judgment Rose LJ noted that in relation to offences committed before 4 April 2005, the earlier provisions, including discretionary life sentences, automatic life sentences, longer than commensurate sentences and extended sentences continued to be available. He went on :

"A defendant being sentenced for offences committed both before and after April 4 is required to be sentenced by reference to the two different regimes. It will generally be preferable to pass sentence on the later offences by reference to the new regime, imposing no separate penalty for the earlier offences. But this may not be possible if the later offences are less serious than the earlier ones".

As we shall see, this observation provides a very flimsy basis for the practice described to us by counsel

4. In R v Johnson and others [2006] EWCA Crim 2486 judges and practitioners were reminded that Rose LJ himself emphasised that the observations in Lang should not be treated as a substitute for the provisions of the Act, and accordingly some areas of "potential misunderstanding arising from Lang" were explained and amplified. The problems which arise in the present appeal were not before the court in Johnson, where however it was emphasised:

"…even a cursory glance.. makes it plain that the sentence is concerned with future risk and public protection. Although punitive in effect, with far reaching consequences for the offender on whom it is imposed, strictly speaking, it does not represent punishment for past offending…when the information before the court is evaluated, for the purposes of this sentence, the decision is directed not to the past, but to the future, and the future protection of the public."

5. In Lang itself Rose LJ drew attention to section 143(2) of the 2003 Act. When the defendant has previous convictions, the court is required to treat each previous conviction as a feature aggravating the seriousness of the instant offence if it is reasonable to do so. He said:

"the provision requires the court to look beyond the instant offence (and any offences associated with it) in order to see whether there are aggravating factors which it should have in mind when addressing the seriousness of that instant offence".

6. The judgment in Lang did not further address the phrase "any offence associated with it", but the reference is significant. Section 161 of the 2000 Act provides that an offence is associated with another if

"(a) the offender is convicted of it in the proceedings in which he is convicted of the other offence, or (although convicted of it in earlier proceedings) is sentenced for it at the same time (italics supplied) as he is sentenced for that offence… "

7. The further statutory provision, not addressed in detail for the present purposes in Lang was section 229 of the 2003 Act in relation to the assessment of dangerousness. Ignoring altogether the statutory assumption in s 229 (3) (now thankfully abolished by the 2008 Act) the court was nevertheless required to take account of "all such information" about the nature and circumstances of the offence, any pattern of behaviour of which it formed part, and most important for present purposes, "any information about the offender which is before it". The importance and wide ambit of this provision was explained in Considine [2007] EWCA Crim 1166.
8. Two further considerations arise. It is now well established that the totality of the offending may be reflected in the assessment of the notional term when an indeterminate sentence is imposed on one or more counts of the indictment. (R v O'Brien [2006] EWCA Crim 1741, R v O'Halloran [2006] EWCA Crim 3148, and R v C [2007] EWCA Crim 680, in relation to extended sentences.) This reflects an elementary principle. Where more than one offence is before the court, the sentence as a totality should reflect the overall criminality, as demonstrated by all the offences, with such aggravating and mitigating features as there may be. It is a further principle that where an offender is sentenced to life imprisonment, but also falls to be sentenced for other offences for which life imprisonment is either not available or inappropriate, concurrent determinate sentences should be imposed. Since section 83A of the 2000 Act came into effect, the minimum term to be served by the offender has been determined by taking account of the offences for which determinate sentences have been passed (Lundberg, 16 CAR (S) 948).
9. These considerations bear on an element of public confidence in the administration of criminal justice. To impose no separate penalty for a relatively minor offence when the offender is sentenced for more serious offences is sometimes a convenient way of avoiding some of the extraordinary complexity of current sentencing provisions. However it can rarely be appropriate for a serious offence to be treated in this way. Generally speaking, every victim of a serious or specified offence should be vindicated, and an order for no separate penalty will tend to convey to the victim that the court did not properly address the impact of the crimes. The problem is plainly less acute where the indictment addresses offending against a single victim.
10. On analysis, all these considerations serve to demonstrate that the practice identified by counsel is unsound. Moreover, and crucially, it disregards the unequivocal language in section 225. If "serious offences" within the meaning of the dangerous offenders provisions in the 2003 Act are committed by a person aged 18 or over and, on the basis of all the information before it (which undoubtedly includes the evidence relating to any offences committed before 4 April 2005) the court is satisfied of the significant risk described in section 225(1)(b) but a sentence of imprisonment for life is not appropriate, in any sentencing decision made before 14 July 2008, the sentence of imprisonment for public protection "must" be imposed. This is a mandatory requirement, which cannot be avoided merely because the pre 4 April 2005 offending was even more grave than the serious offence or offences committed after that date. To the extent that the observations of Rose LJ in Lang have been thought to provide the basis for the practice advocated in these appeals, it has, in our judgment, been misread. What Rose LJ was saying was that, speaking generally, sentences should be imposed by reference to the new regime. The order "no separate penalty" would apply to the earlier offences. His reference to "this" in the last sentence was a reference to the imposition of no separate penalty, not a suggestion that the new regime should not be applied where the later offences were less serious than the earlier ones. Nothing he said suggested that the statutory provisions relating to the post 4 April 2005 offences should or could be disapplied.

Raymond Stannard

11. Raymond Stannard is now 72 years old, a man of previous good character. On 17^th April 2007 in the Crown Court at Snaresbrook before His Honour Judge Bing he pleaded guilty to one count of rape (count 1) and two counts of indecent assault contrary to the Sexual Offences Act 1956 (counts 2 and 4). He also pleaded guilty to two counts of sexual assault contrary to the Sexual Offences Act 2003 (counts 6 and 7). The first three offences were committed before 4 April 2005, and the fourth and fifth offences were committed afterwards.
12. Stannard was first sentenced on 8^th June 2007, but on 18^th June the sentence was varied. In the result he was sentenced on count 1 to an extended sentence under section 85 of the Powers of Criminal Courts (Sentencing) Act 2000 of 10 years, comprising 6 years custody and 4 years extended licence. On count 2 a similar extended sentence of 7 years, comprising 3 years custody and 4 years extended licence, to run concurrently with the sentence on count 1, was imposed. On count 4 an identical sentence to that imposed on count 2 was imposed, but ordered to run consecutively. On counts 6 and 7 no separate penalty was order. Thus the total sentence was an extended sentence of 13 years, comprising a total custodial term of 9 years and a total extension period of 4 years.
13. The facts can be briefly summarised. In November 2006 Stannard was arrested after an 11 year old boy alleged that he had exposed himself. When interviewed the boy, GA alleged that in April 2003 he had been lured by the promise of an ice lolly to the applicant's flat. At the flat the child's trousers and underpants were pulled down, and his penis was sucked and licked. The applicant then raped him. It became apparent from GA's interview that there might be other offences and other victims. As a result of those investigations it was revealed that in 2004 the applicant had approached another 8 year old, SC and handled his penis. It was also alleged that he had assaulted JC, then aged 7 or 8 years at the time, on two separate occasions, on one holding his penis, and on the second sucking it. These last offences occurred between January and November 2006.
14. As we have recorded, the applicant has no previous convictions. The victims of his offences were children who lived near his home. When questioned, his responses indicated that he did not understand or accept that he was in a position to control these children, nor to comprehend why his behaviour was dangerous. According to the writer of the pre-sentence report the impact and nature of these offences could not be underestimated, and he stated expressly that in his judgment the applicant clearly satisfied the dangerousness test for the purposes of imprisonment for public protection. We have no doubt that that assessment was right.
15. The judge was invited by counsel, and he approached the sentencing decision on the basis that the seriousness of the earlier offences outweighed that of the later offences, and that in those circumstances imprisonment for public protection would be inappropriate. He accepted the submission. He then focussed on the totality of the sentence, reflecting that the offences had taken place over a three year period, and that each victim was a very young boy. The case was disturbing and troublesome and the sentences would reflect grave public disapproval of the offences. Account would be taken of the early guilty pleas, the judge acknowledging that the defendant was an elderly man who had not previously been convicted. The criticism which can fairly be made of the sentence imposed on this appellant was that the judge applied the old rather than the new sentencing regime. If he had, he would have made an order of imprisonment for public protection, and then fixed the appropriate minimum term to be served on the basis that the custodial element of the sentences, which were expressly intended to reflect the overall criminality, should be assessed at 9 years, and thereafter halved. The extension period would have been irrelevant. As it is, we cannot interfere with the sentence actually imposed, in order to increase it or to alter it (R v Reynolds and others [2007] EWCA Crim 538). Notwithstanding the appellant's age the actual sentence was not manifestly excessive. The error in principle was to his advantage.
16. In summary, because the earlier offences were regarded as more serious than post 4 April 2005 offences, the court did not properly address the question whether the appellant represented a significant risk of serious harm to members of the public occasioned by the commission by him of further offences. This was wrong. The assessment should have been made to reflect the appellant's total offending as it reflected on the future risk he represented. If, following the assessment of dangerousness in accordance with section 229 of the Act, it appeared that he was indeed dangerous, then imprisonment for public protection was mandatory for the post 4 April offences, and the subsequent minimum term should have reflected the totality of the offender's criminality. In this particular case, an appropriate determinate sentence should have been imposed in respect of the pre 4 April 2005 offences to indicate the court's view of the appropriate sentence, but those sentences would inevitably be subsumed in the determination of the appropriate minimum term when the entire criminality would fall to be considered.
17. We note that no order disqualifying the appellant from working with children was made under section 28 of the Criminal Justice and Court Services Act although the qualification conditions applied, and the court did not explain why such an order was not made.

Russell Andrew

18. Andrew is 41 years old. His convictions revealed what had previously been concealed, that he had for many years been committing criminal offences without being caught.
19. On 1 June 2007 in the Crown Court at Lincoln before His Honour Judge Heath he pleaded guilty to a very large number of counts of sexual offences. On 9^th August he was sentenced to a total sentence of 17 years' imprisonment. The sentences were compiled as follows:

Indecent assault on a male (count 1), 3 years' imprisonment concurrent to count 4: Indecency with a child (count 2) 12 months' imprisonment: buggery (counts 4 and 5) 6 years' imprisonment on each count concurrent: rape (count 7 and 8), 6 years' imprisonment current on each count, but consecutive to the sentence on count 4: indecent assault on a female (count 9) 2 years' imprisonment concurrent: taking indecent photographs of a child (count 15), 12 months' imprisonment, consecutive to counts 4 and 7: taking indecent photograph of a child (count 16), 12 months' imprisonment consecutive to counts 4,7 and 15: making indecent photographs of a child (count 17-34), 3 years' imprisonment on each concurrent, but consecutive to counts 4,7 15 and 16: distributing indecent photographs of a child (counts 35 and 36) 3 years' imprisonment on both to run concurrently: possessing indecent photograph of a child (count 37), 3 years' imprisonment concurrent.

Of these offences, counts 32,33,34 and 37 were committed after 4 April 2005.

20. The total sentence was 17 years' imprisonment. A Sexual Offences Prevention Order and an order disqualifying the defendant from working with children were made, and a forfeiture of obscene publications was ordered.
21. The main victims of the appellant's crimes were his nephew, born in February 1983, and his niece born in June 1987. The offences came to light in September 2005, when a search warrant was executed under the Protection of Children Act at the appellant's home. A large amount of material was seized from his bedroom. The material included his computer, floppy discs, CDs with printed images of naked young females. When interviewed after arrest the appellant immediately admitted that he was interested in child pornography, claiming that he had become curious in 2004 and acquired child pornography over the internet and had then saved it. He accepted that the police would find that he had accessed many images on different sites and that he had saved material on discs. He was asked whether little boys or little girls "turned him on". He replied "mostly little girls, but not exclusively". In June 2006 his sister told her daughter, who was now nearly 20, that the appellant was the subject of a police investigation into child pornography. Although the young woman said initially that the appellant had not touched her, the extent of the abuse to which she had been subjected was eventually revealed.
22. The appellant babysat for the girl when she was a young child. He would treat the children to sweets and fizzy drinks. He would put her to bed first. He would then rape her, either vaginally or anally. Afterwards she would be tucked into bed. Counts 7 and 8 were sample counts to reflect this course of conduct over a 4 year period between June 1991 and June 1995 when she was aged between 4 and 7. She was also abused when she stayed at her grandmother's home. Count 9 was a sample count to reflect indecent assault between June 1995 and June 1997, when the appellant licked her vagina and breasts. She recalled that she had been shown child pornography when she was about 8 years old, and that she had resisted his requests to take photographs of her either naked or in her underwear, and when she was 15 she recalled another occasion when he was so engrossed in the child pornography on his computer that he was unaware that she was watching him.
23. Thereafter the appellant's nephew contacted the police and revealed that he too had been sexually abused when the appellant was babysitting. The sexual activity began when the appellant would handle the boy inside his pyjama trousers, and then take his penis into his mouth. Thereafter the abuse proceeded to buggery. Counts 1 and 2 were sample counts to reflect indecent assault over a 3 year period between February 1987 and February 1990 when the boy was aged between 4 and 6 years, and counts 4 and 5 were sample counts to reflect offences of buggery over a 3 year period from February 1991 to February 1994 when the child was aged between 8 and 10 years. The boy also disclosed that he had refused requests by the appellant to be allowed to take photographs of him naked.
24. When interviewed about these offences the appellant declined to comment. His computer was examined. The examination revealed that he had downloaded many images and in a folder that contained 20,000 pictures there were 526 sub-directories. The appellant had attempted to join a news group catering for paedophiles and had sent an email with attachments of indecent images to that group. The first time he sent an email he was unsuccessful, but on the second occasion he succeeded. This activity was reflected in counts 35 and 36. Count 17-34 and count 37 reflected the finding that in total 152,998 indecent images of children were found in the appellant's computers and discs. Of these 132,224 were at level 4, 12,326 at level 2, 3,051 at level 3, 5186 at level 4, and 211 at level 5. The police also found a zip drive containing a number of photographs of the appellant while on holiday with his friends. However the photographs included 50 photographs of a young girl, many of them taken while she was asleep, and her nightclothes in disarray, so that the disturbance of the clothes revealed her vagina. Inquires led to a family with which the appellant was friendly. These photographs were photographs of their daughter, who was born in January 1996. Counts 15 and 16 represented 20 photographs of her on holiday in Norfolk and 14 on holiday in Suffolk.
25. The chatroom logs on the appellant's computer were analysed. He plainly had had conversations of a wholly inappropriate sexual nature with people who purported to be underage males and females during the course of which he described intercourse with very young children, including the daughter of his friends.
26. In March 2007 the appellant was re-interviewed. He admitted downloading the images in his computer for his own pleasure. He also accepted that he had taken photographs of his friends' daughter without his friends or their daughter knowing anything about it.
27. The pre-sentence report acknowledged that a custodial sentence was inevitable. It was said, on the face of it surprisingly, that there was only a medium risk of re-offending. Given the activity we have described, and the appellant's admission to the writer of the report that he had a sexual attraction to pre-pubescent children, the risk seems to us to have been very high. A psychiatric report confirmed that the appellant had a lifelong interest in underage children, and that this was deeply entrenched. However, equally surprising, the psychiatrist too suggested that the appellant appeared to be merely at medium risk of committing a further sexual offence, while at the same time noting that he would probably have continued to offend if he had not been caught.
28. Judge Heath regarded these offences as a "shocking" series of appalling offences against children, committed by a man who was not suffering from any mental illness. He had not gone out looking for children and attacking them, but had taken advantage of the opportunity to abuse his nephew and niece when babysitting for them. In other words, in addition to all the other aggravating features, these offences constituted a very serious breach of trust.
29. The judge noted that the earlier offences were the most serious offences, but the photographs taken of the daughter of the appellant's friends themselves also constituted a breach of trust. Moreover, although he relied increasingly on the internet for his sexual gratification, these later offences themselves were far from trivial.
30. The judge concluded that a sentence of life imprisonment would be inappropriate. The judge was invited to address the issue of imprisonment for public protection. He decided that a very long determinate sentence was merited. He believed that the best that could be said for him was that the appellant had pleaded guilty at the earliest opportunity and he was entitled to appropriate credit.
31. In our judgement, although it is undoubtedly true that the offences of rape and forced buggery of two small children represented the worst in this unpleasant catalogue of crime, the appellant's sexual obsession with small children was amply demonstrated by the photographs taken of his friends' child, and the vast quantity, and in some instances particularly nasty material of sexual abuse of children which he kept in his possession. In summary, it is abundantly clear that this appellant has an overwhelming and uncontrollable sexual obsession with small children. While the most serious offences were committed before 4 April 2005, the offences committed after that date were far from trivial in themselves, and they demonstrated his continuing obsession. Judge Heath, an experienced judge, sought to reflect the need for protection from the appellant by imposing a very heavy total sentence (reflecting the requirement that one of the purposes of sentencing is public protection (section 142(1)) and a stringent sexual offences prevention order, the terms of which do not need to be recited. Nevertheless in relation to future risk, very few judges would not have concluded that imprisonment for public protection was required.
32. The submission is that the sentence was manifestly excessive because, among other considerations, insufficient account was taken of the appellant's guilty pleas, and that the judge adopted too high a starting point and failed sufficiently to reflect that the serious offending had come first in time, and had gradually become less serious. This argument has superficial attraction, until the vast scale, and context, of the more recent offending is properly understood, and the overall criminality revealed by the offences is given its required weight. The sentence imposed by Judge Heath was undoubtedly severe, but after careful reflection we have concluded that it would be inappropriate to interfere with it. As already indicated, this appellant may count himself fortunate that an indeterminate sentence was not imposed.

Terence Clarkson

33. Clarkson is now aged 62. He had made four previous court appearances, but they were not of the seriousness with which this application, referred to the court by the Registrar, is concerned.
34. On 15^th August 2007 in the Crown Court at Canterbury, before His Honour Judge O'Mahoney and a jury, the appellant was convicted of 5 counts of indecent assault contrary to section 14 (1) of the Sexual Offences Act 1956 (counts 1-5), 1 count of indecency with a child, contrary to section 1 (1) of the Indecency with Children Act 1960 (count 6) and 1 count of sexual assault of a child under 13, contrary to section 7 (1) of the Sexual Offences Act 2003 (count 8). Counts 1-6 all occurred well before the Criminal Justice Act 2003 came into force: the dates alleged in count 8 of the indictment were 1^st January 2005 – 10^th April 2005, in other words, this count related to an offence alleged to span the period before and a very short period after the 2003 Act came into force.
35. On 12^th September 2007 on count 8 he was sentenced to imprisonment for public protection and, on the basis of a determinate term of 5 years' imprisonment, the minimum term to be served before his release could be considered was set at 2½ years' imprisonment, less time spent on remand. No separate penalty was imposed in relation to counts 1-6.
36. A number of distinct orders relating to those convicted of sexual offences were made, but they had no application to the issues which arise in this appeal.
37. In counts 1-5 the complainant, SM was a little girl aged appropriately 7 years at the time of the offences. On a number of different occasions between March 1996 and January 1998 the appellant touched her vagina over her clothing. He was in a position of trust because the child's father had asked him to help look after her following the breakdown of his own relationship. Count 6 related to an incident during this time when he took her into the bathroom, exposed himself to her, and asked her to kiss his penis. However she would not do so.
38. Count 8 concerned a girl aged 12 at the time, a friend of the appellant's daughter who had been staying overnight with her at her father's home. The appellant encountered her on the staircase. He put his hand inside her trousers, commenting "so you have got a bit of fluff then". The incident ended when the appellant's daughter came out into the hallway.
39. The pre-sentence report referred to a developed pattern of behaviour, which the appellant continued to deny. The writer concluded that notwithstanding the absence of previous convictions, there was a serious risk of further harm occurring.
40. The judge found that there were serious offences, and in particular, that an offence of interfering with a child at an important stage in her sexual development was capable of causing and was likely to cause serious psychological harm. The basis of the appeal was that the judge was wrong to regard count 8 as the most serious offence on the indictment. It was further contended that there was no evidential basis to support the finding that the appellant was "dangerous". It was also submitted that, in accordance with the common practice, the appellant should have been sentenced on the regime that would have been appropriate for the more serious earlier offences, that is those committed before 4 April 2005. We have dealt with this submission earlier in the judgment. A more difficult problem has been identified.
41. Inquiries were made by the Registrar on behalf of the court, and it is accepted by the Crown that it was not possible to date the offence in count 8 with sufficient accuracy to justify the conclusion that it must have occurred after the 2003 Act had come into force. Accordingly the problem in this case is that if we cannot be satisfied that the provisions in the 2003 Act applied to this case, there should have been no order of imprisonment for public protection. Accordingly, the court lacking jurisdiction to make such an order, it must be quashed. The minimum term is therefore no longer appropriate.
42. Determinate sentences must be imposed. An overall sentence of 5 years' imprisonment was said to be excessive, both inherently, and because of the more stringent arrangements in relation to release on licence will apply to the appellant who is now to be sentenced under the pre 2003 Act regime. Such an argument was rejected in R v Smith [2007] EWCA Crim 941, on the basis among other considerations that if the appellant had been sentenced under the 2003 Act regime imprisonment for public protection would have required "very serious consideration". That undoubtedly applies in the present case, and but for the jurisdiction issue, and in the context of the sentencing regime in force at the date of sentence, we might well not have interfered with the order made by the judge. The question that remains is whether the sentence was too long in a case which proceeded as a trial. We have considered the Sentencing Guidelines Council guidance. Having done so, notwithstanding the absence of a guilty plea, but acknowledging the appellant's serious breaches of trust, we have concluded that the appellant's criminality should be reflected by a sentence of 3 years' imprisonment. The sentences will be 2 years' imprisonment on counts 1-5, and 12 months' imprisonment on count 6, to run concurrently, and 12 months' imprisonment on count 8, to run consecutively.