England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM PLYMOUTH CROWN COURT
His Honour Judge Gilbert QC
T2011/7103

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/02/2012

The Lord Chief Justice of England and Wales:

1. This is an appeal against sentence by M.J. who, on 21^st October 2011, in the Crown Court at Plymouth, before His Honour Judge Gilbert QC, was sentenced to imprisonment for public protection (IPP) following his earlier guilty plea to a single count of rape of a child who was under 13 years of age. The child was his own 2 year old son. In accordance with section 82A of the Powers of Criminal Courts (Sentencing) Act 2000, the judge specified a period of 7 years less 59 days, as the minimum term. Appropriate orders were made in relation to notification and the inclusion of the appellant in the relevant list maintained by the Independent Safeguarding Authority under the Safeguarding Vulnerable Groups Act 2006. A Sexual Offences Prevention Order was also made.

The Facts

2. These are stark. This was, and we cannot and shall not mince our words, an appalling offence.
3. The appellant had been in a relationship with a woman called E for about 6 years. They had two children, a little boy, and a little girl. At the time of the offence the relationship had recently ended, but the couple were still living in the same premises. The victim of the rape was L, the elder of the two children, approaching 3 years of age at the time of the offence.
4. The appellant developed an unnatural interest in children and was sexually attracted by them, but the focus of his sexual attraction was his boy. On 20^th August 2011 the child's mother went out in the morning, leaving the children in the care of the appellant. At about 2.00pm the appellant telephoned her and said that L had suffered an accident when he had bounced on the bed and landed on a bedpost and that he had a consequent injury to his bottom, which had bled. A couple of hours later the appellant telephoned the mother again, asking her whether it would be appropriate to give him some Paracetamol.
5. The mother returned home at about 5.30pm. L was in considerable pain. She took him to the accident and emergency department at the local hospital where doctors tried to conduct an examination of his bottom. Due to the level of pain, he was admitted overnight. In the meantime the appellant made a number of telephone calls to E, expressing concern about what was happening to their child. Eventually she went home, and he stayed overnight on the ward with the boy.
6. By the next morning a consultant paediatrician was involved in the case. He became very concerned about the account given by E, as given to her by the appellant, and L's injuries. The boy was examined under general anaesethic. Substantial injuries to the anus were discovered. The consultant paediatrician believed that they had been caused by assault and penetrative anal abuse.
7. The appellant was arrested on suspicion of sexual assault. After caution he immediately said that he regretted what he had done, and said that he had not been himself recently. He made full and frank admissions in his police interview. The admissions are chilling. Some 5 months earlier he had noticed a developing sexual interest in children. Apparently the boy had been allowed to run around with no pants on while he was being potty trained. That exposed his bottom. The appellant could see the boy's bottom beneath his shirt and while he was playing with him in the front room. This led to wholly inappropriate sexual feelings. He had taken the baby into the bedroom to change her nappy. Thereafter when he lifted L onto the bed for the same purpose, he became sexually aroused and had an erection. He put the boy face down on the bed, lay on top of him and forced his erect penis into the anus. No lubrication was used. The boy screamed, but notwithstanding his screams of pain and distress, the appellant continued, pushing in and out on at least six occasions until he ejaculated inside the anus. When he withdrew the boy was crying and the appellant took him to the bathroom, and using a shower attachment, rinsed away the blood and semen. He then put the boy to bed with a bottle of milk. He said that he was concerned about him and checked him every 20 minutes, but he agreed that he had not told anyone at the hospital what had happened.
8. L was again examined under general anaesethic some 3 weeks later. The most serious injuries were healing, although some scarring remained. There was no sign of any infection, and functionally the anus had gradually returned to normal.
9. The appellant has no previous convictions. Effectively he was a man of good character. The pre-sentence report suggested that he appeared to feel guilt and remorse, and was not seeking to minimise the seriousness of what he had done. However he claimed to remember little of what had happened on the day, and could offer no motivation for the offence. He described it as a "one off". He reported the deterioration in his relationship with E in the months preceding the offence. He had been suffering from depression for about 10 months and had been prescribed anti-depressants. He was seeing a psychiatrist from time to time for anger management. According to the writer of the report, the appellant's support network had collapsed. The offence may have represented an attempt to soothe his feelings of distress and to achieve some intimacy at a time when he had become very isolated.
10. The reporter noted the admissions to the police and that in the examination by the psychiatrist, the appellant had admitted to sexual fantasies about the little boy before the attack on him.
11. The writer suggested that the long term reduction of the risk presented by the appellant would depend upon his ability to build a life in which the risk factors governing his re-offending would be properly managed. His participation on a sex offender treatment programme would be crucial. The writer observed that the appellant "appeared" to be highly motivated to take part in a sex offender treatment programme. In the meantime the appellant was said to present a medium risk of re-offending, but he was capable of causing serious harm. If released into the community at the date of sentence, he would pose a high risk of harm to children.
12. The psychiatric report described the appellant's account of the offence as "impulsive", although he admitted to having sexual fantasies about L in the previous 4 months. The appellant said that after the assault he felt sick and extremely remorseful, and that he no longer harboured fantasies of sexual activity with children. The psychiatrist was unable to elicit any evidence of abnormal beliefs, perceptual abnormalities or thought disorder. No major mental illness or personality disorder could be established, although it was noted that the appellant had what were described as relationship problems and that he presented notable psychological maladjustment. He was however very keen on interventions that would minimise the risk that he would commit sexual offences in the future and he had consistently expressed regret and remorse. In the opinion of the psychiatrist the seriousness of the offence led to the conclusion that the risks in the immediate term continued to be present, and that remedial work in minimising long term risks would be essential.
13. Judge Gilbert, passing sentence, gave full credit to the appellant for his guilty plea which was entered at the preliminary hearing, and noted his previous good character. He bore in mind the contents of the pre-sentence report and the psychiatric reports. He recognised that the appellant was entitled to credit for the full admissions he had made in interview.
14. Having examined all the facts, he identified the aggravating features of this crime. They are self evident. The appellant had developed a sexual interest in children and had found his own son sexually attractive once he reached the age of about 2 years. The victim was extremely young, the appellant was his father, the breach of trust was dreadful. The sexual attack was sustained to ejaculation. The child was used for his sexual gratification. What happened represented the culmination of his perverted sexual fantasies.
15. The judge concluded that there was a significant risk of serious harm by the appellant. He reflected whether an extended sentence would be sufficient to achieve appropriate public protection, and concluded that it would not. He stated that the date of release "must depend, in the light of this dreadful conduct, on what happens while you are in prison receiving treatment, and indeed your conduct whilst you are in custody. It is, therefore, premature at this stage to fix a date for the conclusion of your sentence". The appellant would remain in custody until it was safe for him to be released.
16. In setting the minimum term, he started by indicating his view of the likely sentence if the case had proceeded as a trial. This was 21 years imprisonment. He deducted 1/3^rd credit for the guilty plea, reducing the sentence to 14 years. He halved that figure to set the 7 year minimum term.
17. The broad submission on behalf of the appellant is that although the judge was not wrong to conclude that the appellant was "dangerous", the imposition of an indeterminate term of imprisonment was wrong in principle. Further, the minimum term itself was excessive, the result of the judge taking a starting point which was much too high. These submissions were developed in a careful argument by Mr Dentith on behalf of the appellant. In relation to the minimum term he drew attention to some earlier sentencing decisions of this court, in particular R v JO [2008] EWCA Crim. 738 and R v AR [2009] EWCA Crim. 1476. He pursued the argument that, by reference to the sentences in those two cases, in which, so he contended, the facts were worse than those present here, the present sentence was excessive. He drew attention to the Sentencing Council Definitive Guideline in relation to sexual offences, pointing out that for a single case of rape of a child under 13 years, the guidance suggested a sentence within the range 13-17 years.
18. The judge took the view that the case fell outside this Guideline. We agree. The case involved a child of 2 years who was entitled to the natural love and affection, together with all the safety and security which every child should receive from a father. In the assessment of the minimum term, this was a case of quite exceptional depravity which justified a quite exceptionally long determinate term.
19. There is no doubt that this was a minimum term based on a very severe starting point. However, we cannot find that it was manifestly excessive.
20. We turn to the second ground of appeal. We were reminded, and we agree, that a sentence of IPP is the second most draconian sentence available to the court, and that the appropriate way to approach the sentence of a defendant who is "dangerous" for the purposes of section 225 of the Criminal Justice Act 2003, is to identify the total protective sentencing package, and then impose that sentence, together with any further protective orders. On this basis, it was contended that an extended sentence would be capable of achieving all the necessary public protection against the danger posed by this appellant. The decision of the Supreme Court in R v Smith (Nicholas) [2011] 1 WLR 1795, given on 20^th July 2011 shortly before this appellant was sentenced, was discussed and Mr Dentith raised the question whether this decision might have undermined the approach adopted by Judge Gilbert to the assessment of risk.
21. Mr J. Price QC appeared on behalf of the Crown to assist, and we heard full argument about the correct interpretation of the decision in Smith, in the light of the commentary by Dr David Thomas QC in the Criminal Law Review 2011 CLR 892 and the particular concerns expressed in the Criminal Law Week issued on 28^th July 2011 at paragraph 16. In essence the commentary suggests that the decision in Smith has undermined long established Court of Appeal practice that the assessment of dangerousness involves addressing the question "whether or not the offender would be dangerous when he would otherwise be released from a determinate sentence". That practice is exemplified in the passages in the Criminal Law Week by reference to R v Lang and others [2006] 2 Cr App R (S) 3; R v Ings [2007] 2 Cr App R(S) 4(2); R v Johnson and others [2007] 1 Cr App Rep (S) 112; Attorney General's Reference (No. 55) of 2008 [2009] 2 Cr App R (S) 22; and R v Terrell [2008] 2 Cr App Rep (S) 49, a decision to which Lord Phillips, then Lord Chief Justice, who was to deliver the judgment of the Supreme Court in R v Smith (Nicholas) was himself a party. This decision is said to have swept aside the "mass of case law" in this court over the years since the sentence of IPP was introduced when section 225 of the 2003 Act first came into force. If so, this occurred without reference to these well established principles.
22. We have, with the assistance of Mr Price and Mr Dentith, asked ourselves what was actually decided by Smith.
23. In view of his previous convictions Smith was made subject to a mandatory life sentence (with a 4 year minimum term) in January 2000. After completing the minimum term, he was released on licence. He was subsequently arrested for having committed serious robberies. He was recalled to prison for breach of the terms of his licence, and he remained there until in due course he pleaded guilty to the robbery charges and associated firearm offences. He was then sentenced to imprisonment for public protection (with a minimum term of 6 years).
24. In the Supreme Court, two grounds of appeal were advanced by Mr Tim Barnes QC on Smith's behalf. It is perhaps worth emphasising at the outset that both were unsuccessful and that the appeal against the order of imprisonment for public protection was dismissed. The primary submission was that the imposition of IPP was unlawful on the basis that as Smith had already been recalled to prison and would remain there under his life sentence until the Parole Board was satisfied that his confinement was no longer necessary for the protection of the public, the necessary pre-condition to the imposition of an IPP order in section 225(1)(b) of the 2003 Act – namely the significant risk of serious harm to the public – was absent. The secondary submission was that, even if lawful in the sense that the court had jurisdiction to make an IPP order, the sentence was inappropriate because it achieved nothing that was not already guaranteed by the life sentence. This secondary submission was rejected. The discretion to make such an order on a defendant already subject to an indeterminate sentence was upheld.
25. Focusing on the way in which the Supreme Court dealt with the primary submission, it will immediately be appreciated that the question was simple and stark, and a simple answer was provided. The principle established in Smith (Nicholas) is that following the coming into force of the amendments to section 225 of the Criminal Justice Act 2003 effected by the Criminal Justice and Immigration Act 2008, it is neither unlawful nor wrong in principle for an indeterminate sentence to be imposed on an offender who is already subject to and serving an earlier indeterminate sentence. That provides the context in which to examine the observations of Lord Phillips at paragraphs 14 and 15 of the judgment of the Supreme Court.

"14. Section 225(1)(b) is in the present tense. The sentencing judge is permitted to impose a sentence of IPP if "there is a significant risk" that members of the public will suffer serious harm as a result of the commission by the defendant of further offences. The construction for which Mr Barnes contends requires the sentencing judge to factor in, when considering the question of risk, the fact that the defendant is and will remain detained in prison for a significant period, regardless of the type of sentence imposed. Plainly the defendant will pose no risk to the public so long as he remains in custody. Mr Barnes submits that the judge must consider whether he will pose a significant risk when he has served his sentence.

15. If this is the correct construction of section 225(1)(b) it places an unrealistic burden on the sentencing judge. Imagine, as in this case, that the defendant's conduct calls for a determinate sentence of 12 years. It is asking a lot of a judge to expect him to form a view as to whether the defendant will pose a significant risk to the public when he has served 6 years. We do not consider that section 225(1)(b) requires such an exercise. Rather it is implicit that the question posed by section 225(1)(b) must be answered on the premise that the defendant is at large. It is at the moment that he imposes the sentence that the judge must decide whether, on that premise, the defendant poses a significant risk of causing serious harm to members of the public".

26. We do not share the concerns expressed in the Criminal Law Week about the impact of these observations. As a matter of principle and practice Smith underlines that the decision whether IPP should be ordered is made, and can only be made, at the date of the sentencing hearing. That is the date when the sentencing court is required to form its opinion whether, in the language of section 225(1)(b), there is a significant risk to members of the public (who, we observe in passing, include police custody officers, prison officers, and fellow prisoners, who do not appear to have featured in the submission of Mr Barnes) of serious harm occasioned by the offender committing any further specified offences.
27. On the issue of public safety, the decision made at the sentencing hearing is required to address the future. This involves an assessment of the risk to the public posed by the commission of further offences by the offender, that is, offences which the offender would or might commit subsequent to the current sentencing hearing. Lord Phillips' observations underline that the judge must decide whether the defendant "poses" the risk envisaged by the statute, not on the basis that he is already in custody at the date of sentence (which was the foundation for the argument on behalf of Nicholas Smith rejected by this court) but on the basis that he is not. Subject to that amplification, the observations are entirely consistent with the decision of the House of Lords in R (on the application of James) v Secretary of State for Justice; R (on the application of Lee) v Secretary of State for Justice; R (on the application of Wells) v Secretary of State for Justice; [2010] 1 AC 553which was not cited in Smith) which endorsed the principles established in this court. These are conveniently summarised in Johnson. The question whether a discretionary indeterminate sentence is appropriate in an individual case is "predictive". In Johnson the court observed:

"… we should emphasise that even a cursory glance … makes it plain that the sentence is concerned with future risk and public protection. Although punitive in its effect, with far- reaching consequences for the offender on whom it is imposed, strictly speaking, it does not represent punishment for past offending. As any such assessment of future risk must be based on the information available to the court when sentence is passed, the potential for distraction from the real issue is obvious. Nevertheless, 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."

28. If the sentencing judge were to confine the assessment of the question whether the defendant would pose a risk to the public to the date when the minimum term would expire, he would undoubtedly be asking himself a very difficult, if not impossible question. Indeed under the present arrangements this question is not for the sentencing court at all. It is resolved at or before the expiry of the minimum term, or indeed when necessary after that date, by the Parole Board, taking account of events and progress, or otherwise, made during the period while the offender has been in custody, and making the best possible assessment of risk to the public at that date. By reference to the statutory provisions, if answering the question in the way suggested by Mr Barnes, the judge would, for the reasons explained by Lord Phillips, be asking the wrong question. The question is confined to the assessment of future risk at the date when sentence is passed. This is consistent with well established principles.
29. We can find nothing in the observations of Lord Phillips which suggests or implies that when making the assessment of future risk at the date when sentence is passed the judge should not or may not take account of every piece of relevant evidence or material which may bear on the predictive decision. Apart from disregarding the fact that the defendant happens for whatever reason to be in custody at the date of sentence, nothing in them excludes from consideration, for example, questions about the likely impact on a young offender of the process of maturation (as in Lang and others) or the possible impact of alternative sentencing options which would sufficiently address the risk posed by the offender so as to make an indeterminate sentence unnecessary or inappropriate (as in Terrell and Attorney General's Reference (No 55). In short, the decision in Smith (Nicholas) is focused on the date when the judge is required to make the assessment of future risk and not on the processes which inform and by which he reaches his decision. In argument, quite apart from any other consideration, the well known decision in Lang, which was the source of the relevant line of authorities in this court, was cited. If it had been intended that the practice and principles developed in the Court of Appeal Criminal Division after and following Lang should be set aside, or re-evaluated, the issue, and consequences, would have been addressed head on.
30. Turning, at last, to the way in which Judge Gilbert addressed these questions in his sentencing remarks, his reasoning was impeccable. He made his decision on the basis of all the information available to him at the date of sentencing, including the expressed intentions of the appellant to participate in interventions which would minimise the risk of future offending of this kind. He addressed the issue whether an extended sentence would be sufficient to achieve the appropriate level of public protection from the risk posed by the offender. He recognised that on the evidence available to him the question when it would be safe to release the appellant would depend on what happened while he was in custody receiving treatment, and indeed on his behaviour in custody. The judge made the necessary predictive assessment. Nothing in Smith (Nicholas) undermines his approach to the issue. In our judgment it was entirely appropriate.
31. One small feature of the sentence arises in the context of the Sexual Offences Prevention Order. In the light of the indeterminate sentence, and the circumstances which will bear on the appellant if and when he comes to be released, that order was inappropriate, and it will be quashed; otherwise this appeal is dismissed.