England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		14 January 2009

LORD JUSTICE KEENE: I will ask Mr Justice Plender to give the judgment of the court.

MR JUSTICE PLENDER:

1. On 31 October 2007, at the Crown court at St Albans, the appellant pleaded guilty to one count of voyeurism and three counts of taking indecent photographs of children. He was sentenced by His Honour Judge Plumstead to imprisonment for public protection, the period of two years being specified under section 82A of the Powers of Criminal Courts (Sentencing) Act 2000. He now appeals against that sentence by leave of the single judge. Although the single judge expressly said that he did not grant leave on the question of whether the application of section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 was appropriate, counsel indicated today that he wished to raise that issue within his submissions and we permitted him so to do.
2. On behalf of the appellant Mr Cross submits that the judge erred in concluding that the appellant posed a risk of serious harm, namely death or serious personal injury, whether physical or psychological. In his sentencing remarks the judge said:

".... I am sure you will re-offend if you have the chance, and believe that in doing so you will cause serious harm to other adolescent girls...."

In reaching that conclusion the judge considered, among other matters, the appellant's record, including his previous convictions for arson, burglary and theft, all of which were offences committed in connection with his sexual interest in adolescent girls and specifically in their underwear. He considered the effects of the appellant's conduct upon the girls in whom he showed a sexual interest. Although counsel emphasised that the appellant had not been involved in any physical assault on females, nevertheless the judge concluded that he posed a serious risk of harm, physical or psychological (and we emphasise "psychological").

3. Counsel relies heavily upon the report of a forensic psychologist, Dr Bryan Tully, whose report was commissioned by the defence. It was submitted that Dr Tully's report pointed to a conclusion contrary to that of the learned judge. Dr Tully addresses the issue of risk as follows:

"7.4 So, I come on to risk. Dr de Taranto [a consultant forensic psychiatrist] must be right that a long-standing condition, tied in with a non-curable developmental disorder is in some ways intractable. Whilst the Portman Clinic attempted and failed to extinguish [the appellant's] 'perversion', modern methods of sex offender management are designed to reduce offending behaviour and to make other psychological tendencies more manageable and lived with by the individual. In my view [the appellant] has never had any treatment or help which has taken into account the full nature of his disability and disorder. In a real sense he has not been given the chance which much more assaultive offenders are routinely given. There is little prospect of his getting that chance with imprisonment, for reasons I have given above. If any imprisonment were to be followed by a proper arrangement where the modern Multi Agency Risk Assessment schemes are designed to manage risk and support a satisfying non-offending life, then in my opinion there would be a fair prospect of success."

It is apparent from that passage that Dr Tully is far from saying that the appellant does not present a risk. On the contrary, he proposes a method by which the risk might be reduced and managed following the appellant's release from any period of imprisonment.

4. Having regard to the facts of the present case, and also to the appellant's previous convictions, including those for arson, burglary and theft, we conclude that the judge was amply justified in reaching the conclusion that there was a significant risk of serious personal injury (including psychological injury) if the appellant remained at large. We therefore do not disturb the judge's decision that it was appropriate to pass an indeterminate sentence of imprisonment for public protection.
5. The next submission made on behalf of the appellant is that the judge erred in setting a minimum term of two years because it failed to take account of the full extent of the 330 days that the appellant had, in fact, spent in custody. On that point the submission made on the appellant's behalf is sound. Section 240 of the Criminal Justice Act 2003 provides:

"Where a court sentences an offender to a term of imprisonment, it must direct that the number of days for which the offender was remanded in custody in connection with the offence is to count as time served by him as part of the sentence."

This court stated in R v Gordon [2007] Cr App R(S) 60, [2007] EWCA Crim 165, that no offender should serve a day longer than the period specified by the sentencing court. These principles must apply equally to the determination of the minimum term of imprisonment for public protection as they do to a standard term of imprisonment. Accordingly, the sentence of two years' imprisonment for public of protection under section 225 of the Criminal Justice Act 2003 must be modified to read "two years, less 330 days".

6. There is a further modification that we must make to the sentence. The learned judge imposed no separate penalty for the offence of voyeurism. Having concluded that the appellant is a dangerous offender, he should have imposed an extended sentence for that offence. We consider that a sentence of twelve months' imprisonment would be appropriate with an extension period of two and a half years (less 330 days). This sentence should be concurrent with the sentence for the three offences of taking indecent photographs of children. To the extent set out in this judgment, the present appeal is allowed.