England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		18th January 2008

1. SIR CHRISTOPHER HOLLAND: Stephen Edward Winchester is aged 27. On 6th August 2007 at Oxford Crown Court, he pleaded guilty on rearraignment to an offence of assault by penetration, the particulars alleging that he on 6th July 2006 had intentionally penetrated with his fingers the anus of another person, namely Janet, without her consent and in circumstances in which he did not reasonably believe that she was consenting and that the penetration was sexual.
2. On 28th September 2007 at the same court, the appellant was sentenced to imprisonment for public protection. The minimum term was specified at two years and three months.
3. He appeals sentence with the leave of the single judge.
4. The facts certainly reveal a serious offence of its kind. In the early hours of 6th July 2006, after an evening socialising and drinking as members of a group, the victim, a lady in her forties, permitted the appellant to spend the night at her maisonette, he claiming, possibly falsely, that he had no other accommodation. What then occurred appeared clearly from the victim's statement:

"I took a spare quilt from my bedroom and made up the sofa bed in the front room. As Stephen was larger than me I decided he should sleep in the bigger bed in my room and I was to sleep on the sofa bed.

I then left Stephen [to] go [to] my room and I lay on the sofa bed. This time I had taken my jeans off and was lying on the bed in my T-shirt and knickers.

A while later I am unsure of how long, I heard a knock at my door to the front room. It was Stephen and he walked into the room, he said to me about a blind he had knocked down in the bathroom. I told him not to worry and to go back to bed. He did and I went back to sleep. About 20 minutes later I again heard a knocking and Stephen again came in. This time I think he asked for a drink but I cannot remember. I said no and he returned to bed.

About 20 minutes later I again heard a knocking. Stephen again came in he was dressed in just a pair of tight boxer shorts. I told him to leave, but he walked over to the bed where I was lying. He said to me, 'I've got something to show you in the other room'. He said this quite calmly. I replied 'Just go back to bed, I want to go to sleep, I don't want to see anything'. He then said forcefully, 'Just come in here, look I've got a knife'. I'm unsure how I got up but he may have grabbed my hair and pulled me to my feet. He then placed his left arm around my neck so my chin touched his elbow. He had the knife in his right hand and had it pointed at my throat. The tip of the blade was touching my skin. He began to drag me backwards towards the bedroom. I tried to speak but his arm was so tight I could not speak. I continued to struggle and I think he may have said 'calm down'. I managed to back Stephen against the wall of the front room and was trying to grab his arm that was around my neck. I managed to lift up my right hand and grab the blade of the knife. It then snapped in my hand. The knife was about 8 inches wrong and had a black handle. I recognised it was one of my knives from the kitchen.

I then used the snapped blade to stab Stephen's right leg and try to get him off me. All this time Stephen still had hold of me with his left arm and was trying to take the knife from me. I then threw the knife to the far end of the room to prevent him from getting it. I then managed to release myself from his grip and ran into the hallway and toward the second bedroom which then leads out to the garden patio doors. I tried to find the keys to get out but could not find them. Stephen followed me and again took hold of me with his left arm around my throat. I think he dragged me backwards but it was towards my bedroom.

He then said to me 'lean over' he was trying to push me face down onto the bed. He managed to force me onto the bed, I had my chest on the bed, my knees were bent as I was trying to push myself back up to a standing position. Stephen was behind me at this time with either of his legs either side of mine. I think he had his hand on my head and was forcing me down. I thought he was going to rape me and I was saying 'Please don't do this.' He then pushed my knickers to one side which revealed my bottom. He began to push several fingers into my anus. It was very painful so it must have been more than one. This continued for a few moments but I cannot remember if he said anything. A few moments later I managed to break free from his grasp and stood up. I got up and banged on the wall to try and get some attention. Stephen again tried to grab me around the neck and pull me away. I cannot remember exactly but somehow I managed to grab a wine bottle from the bedroom and hit Stephen over the head with it. This was whilst he had hold of my throat. I managed to get away from his grasp and get out into the hall. I tried to run for the front door and he again grabbed me. I again managed to pick up the wine bottle and hit him over the head. Suddenly he released me and said 'Oh God what have I done, what have I done'. It was as if he had been knocked back into sanity."

5. The circumstances thus outlined had resulted in some injury to Janet, and in particular some serious bruising, well depicted in the photographs that were before the court. She was further found to have scratches and bruising to her hip, bruising to the top of her neck and a large bruise on her left breast bone. There was bruising also on the upper arm and a superficial cut a couple of centimetres long on the palm of her left hand, stretching from her wrist to her fingers. There was also another large bruise 6 inches by 3 inches on the inside of her left leg, just above her ankle.
6. The appellant himself was injured in this episode. He attended hospital where he received 13 stitches to his face and head. He then went seemingly to stay with friends in Glasgow. But on 15th July 2006 he then went to a police station in order, as he put it, to clear things up.
7. When interviewed the appellant then claimed he had been invited to stay, and sought to suggest at that stage that what had happened in so far as it was sexual was consensual.
8. Turning to the further material that was before the sentencing judge, there was a basis of plea which adds nothing further to the present consideration. There was a pre-sentence report which in terms recommended that the criteria for imprisonment for public protection might be satisfied:

"Given the nature of the current offence clearly this is a serious specified offence which falls under the provisions of schedule 15 of the Criminal Justice Act 2003. Consideration must also be given, therefore, to whether Mr Winchester falls within the 'dangerousness' criteria. Though this is his first offence, his preparedness to use a weapon in the offence to gain sexual compliance indicates to me strongly that he does meet the criteria."

9. Further, there was before the sentencing judge the information as to the previous character of the appellant, which was to the effect that he had never been in trouble before and that he was hitherto a law-abiding, well-behaved member of the community.
10. We turn then to the approach of the judge and it was in these terms. He reviewed the offence, drawing attention to the features that already appear in this judgment, and then went on:

"This offence of assault by penetration is a specified offence and in my opinion, having regard to the facts and to the view of the reporting probation officer, there is a significant risk to the public of serious injury caused by your committing further specified offences. Despite your good character, the circumstances of this assault were such that the court simply cannot take the risk of assuming that you present no danger in the future.

It follows that I am required by law to impose a sentence of imprisonment for public protection. Now you are a young man of twenty-seven with no previous convictions whatever and, indeed, you put before the court a number of golden character references. It has to be said, however, that the guidelines laid down by the Court of Appeal say this: 'The defendant's good character, although it should not be ignored, does not justify a substantial reduction of what would otherwise be the appropriate sentence.'

You gain some credit for your plea of guilty, but it only came on the day set aside for your trial, although it was, I am told, notified three days earlier. But almost up to the day of trial your victim had to face the unwelcome prospect of giving evidence."

11. Thereafter, the judge indicated that were the sentence for a determinate period of imprisonment it would be a period of 4½ years. He halved that period in order to arrive at the minimum term. Since the appellant had hitherto been on bail, there was no question in this case of any deduction for time spent on remand in custody.
12. The appeal before us has been attractively presented by Miss Paget. It turns on one essential submission and it is as follows. The circumstances before the sentencing judge did not serve to justify a sentence of imprisonment for public protection. The period of 4½ years is not challenged. It is the indefinite provision arrived at by imposing imprisonment for public protection that is under challenge.
13. That submission inevitably raises consideration of the relevant provisions of the Criminal Justice Act 2003, which necessarily start for present purposes with section 225(1):

"This section applies where -

(a) a person aged 18 or over is convicted of a serious offence committed after the commencement of this section, and

(b) the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences."

14. We need not refer to subsection (2), which sets out the circumstances in which it is appropriate to impose a sentence of imprisonment for life. Subsection (3) then comes into play:

"In a case not falling within subsection (2), the court must impose a sentence of imprisonment for public protection."

15. The focus thus far is on those words "a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences". As to what in these circumstances is serious harm appears in section 224(3), where it is defined as:

"... death or serious personal injury, whether physical or psychological; ..."

16. Turning to the balance of the consideration, that is the risk to members of the public, the statute addresses this problem in section 229. Section 229(1):

"This section applies where -

(a) a person has been convicted of a specified offence, and

(b) it falls to a court to assess under any of sections 225 to 228 whether there is a significant risk to members of the public of serious harm occasioned by the commission by him of further such offences.

(2) If at the time when that offence was committed the offender had not been convicted in any part of the United Kingdom of any relevant offence or was aged under 18, the court in making the assessment referred to in subsection (1)(b) —

(a) must take into account all such information as is available to it about the nature and circumstances of the offence,

(b) may take into account any information which is before it about any pattern of behaviour of which the offence forms part, and

(c) may take into account any information about the offender which is before it."

17. Miss Paget would submit that, granted that the judge did take into account all such information as was available to him about the nature and circumstances of a plainly serious offence, he failed to address appropriately the pattern of earlier behaviour of this young man and the information that had been put before him about the character that he had hitherto evinced.
18. There is also a hint in the sentencing remarks, which may have been simply a result of dealing with the matter without guidance from a prepared address, that the approach to the matter was, as it were, on the basis that imprisonment for public protection had to be imposed unless there was evidence gainsaying that form of sentence.
19. Whether that is right or not, we for our part are satisfied that there is weight in the submission made by Miss Paget. We are satisfied that there was insufficient attention given to the past history of this young man, in terms of his good character and in terms of the positive evidence that was available as to his ordinary form of conduct. There had to be, in our judgment, some fact to suggest that serving the minimum term would in itself be potentially insufficient to deter future like offending so as to obviate significant risk to the public. No doubt were there evidence that he had a potential for further future similar conduct, then there would indeed be potential for serious psychological harm, such as identified by section 224.
20. The issue here became: was there evidence sufficient to identify a significant risk to the public in the future? As to that, there were simply the facts of the offence itself. There was nothing else to indicate that there was likely to be any repetition at all. In those circumstances, we are satisfied that the judge fell in error in identifying this as a case in which he had to impose imprisonment for public protection, as required by section 225(3).
21. In our judgment, the offence called for a term of imprisonment, properly identified by the judge as 4½ years. The order of this court is that we quash the sentence for imprisonment for public protection and we substitute in its place a sentence of 4½ years' imprisonment.
22. To that extent, this appeal succeeds.
23. MISS PAGET: My Lord, thank you.
24. LORD JUSTICE HUGHES: Thank you both very much.
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