England and Wales Court of Appeal (Criminal Division) Decisions

IN THE CORT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		26th January 2018

Friday 26^th January 2018

LORD JUSTICE SIMON:

1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to the count 2 offence. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as a victim of that offence.
2. On 3^rd February 2016, in the Crown Court at Sheffield, the appellant pleaded guilty to four counts of burglary on indictment T20167012.
3. On 30^th March 2016, he was sentenced to a term of four years and eight months' imprisonment, to run concurrently on each count. A concurrent term of twelve months' imprisonment was imposed for a single offence of receiving stolen goods, which had been committed to the Crown Court under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000.
4. On 23^rd March 2017, in the same Court appellant pleaded guilty to two counts on indictment T20167613: sexual assault, contrary to section 3 of the Sexual Offences Act 2003 (count 2); and assault occasioning actual bodily, contrary to section 47 of the Offences against the Person Act 1861 (count 4). On that day he was sentenced on count 2 to an extended sentence, under section 226A of the Criminal Justice Act 2003, of six years, comprising a custodial term of five years and an extended period of licence of one year; and on count 4, to a concurrent term of two years' imprisonment. No evidence was offered on count 1 (assault by penetration, contrary to section 2 of the 2003 Act) and count 3 (unlawful wounding, contrary to section 20 of the 1861 Act). The overall sentence on both indictments was a standard determinate sentence of four years and eight months' imprisonment and a consecutive extended sentence of six years, comprising a custodial term of five years and an extension period of one year.
5. The appellant appeals against sentence by leave of the single judge.
6. The facts of indictment T20167613 were these. The appellant and the victim, "CW", had been friends or associates for some time and were in the habit of taking drugs together. On 23^rd December 2015, the two men were together at the appellant's home. They had taken heroin and cocaine during the day, and during the evening they drank alcohol together. During the course of that evening and into the early hours of 24^th December the appellant's behaviour became increasingly erratic. He began to argue with CW about the fact that he had previously had sexual relations with other men.
7. At about 3am the appellant took hold of a broom and started to swing it about as he moved around the room. He said that what had happened between CW and other men was non-consensual and wrong. He then proceeded brutally to assault him with the broom handle. He hit him repeatedly about the head until CW lost consciousness. When he regained consciousness, CW found himself face down on the floor, with the full weight of the appellant on top of him. His tracksuit bottoms and underpants had been pulled down at the rear, exposing his bottom. He felt a hard, stabbing pain around his anus and coccyx. Initially, he thought that the appellant was anally raping him. However, he then realised that he was in fact using the broken broom handle.
8. CW managed to get to his feet, but he was then stabbed in the ear with the broken broom handle. He tried to get to the door, but the appellant blocked his way and started to hit him again about the head and the body. He then grabbed his victim's lips, one with each hand, and started to pull them apart. CW managed to bite the appellant's fingers before making his escape through a first floor window. He reached the ground floor by climbing down a drainpipe. He went to the home of an ex-girlfriend from where he phoned the police.
9. He was medically examined. He was found to have suffered numerous abrasions to the shoulder, arm, wrist, thumb and nipple. The judge commented on the degree of abrasion. There was also bruising to the eye, including a haemorrhage to the white of the eye, and various injuries to the face, including his lips.
10. The appellant was arrested the following day. He declined to comment in interview.
11. He was aged 39 at the date of sentence. He had 28 previous convictions for 42 offences spanning 1999 to 2016, 23 of which were offences of dishonesty. Those of particular relevance were charges of sexual assault and assault occasioning actual bodily harm in 2006, and robbery and possession of an offensive weapon in 2014, for which he was sentenced to two years and nine months' imprisonment. He was on licence from that sentence at the time of these offences.
12. There was no pre-sentence report.
13. There was, however, a Victim Impact Statement in which the victim described himself as feeling "totally emasculated" and unable to forget what had happened to him. Just when he thought he had got over it, it came back to haunt him.
14. In passing sentence, the judge set out the appellant's antecedent history, including the offences of burglary. In respect of the present offences the appellant's consumption of drink and drugs may have had an impact on his behaviour. For whatever reason, he had become abusive towards CW whom, because of his sexuality and sexual past, the appellant regarded as an appropriate target. This made it a particularly troublesome case. The victim's previous relationships were none of the appellant's concern and the comments he had made about his sexual past were unnecessarily abusive and aggressive. It was, as the judge described it, "disturbing".
15. The assault with the broom handle directed at the victim's head would have been a serious assault in itself. A sentence for that offence alone would probably have gone outside the guidelines. The assault directed at the complainant's anus was clearly sexually motivated. If the stick did penetrate, it was not to any great extent. However, having inflicted that undignified attack, the appellant did not stop there, but started to stab the complainant's ear. It was a sustained and terrifying incident. He prevented his victim from leaving and forced him to escape from the attack through a window. It was fortunate for the appellant that the injuries sustained were not graver. The abrasions to the elbow were particularly gruesome. There were other serious abrasions to his torso and face.
16. The judge noted that the appellant had wasted a considerable amount of time before coming to court and entering his guilty pleas on the day of trial. Although it had been submitted on his behalf that he should be given more credit than would be the norm, as this was his first opportunity to plead, it had also been conceded that he had never offered these pleas previously. As a result, there was no reason that he should be given more credit than that applicable at trial.
17. The judge then turned to the guidelines. He observed that the section 47 assault was a category 1 offence, because the victim was vulnerable and it was a sustained attack. It was higher culpability, category A, because of the use of a weapon and because the assault was motivated by, or demonstrated hostility to the victim by virtue of his gender identity or presumed gender identity. On that basis the sentence would have been at least three years' imprisonment. However, because of the level of the attack, the period it lasted, the fact that he was under the influence of drink at the time, his record (to a degree), and other matters, the assault offence alone would have meant going outside the guidelines. The more appropriate way to deal with that offence was to roll over all that criminality in the context of the sexual assault, and thus a concurrent term of imprisonment would be imposed.
18. The sexual assault was a worrying offence. The psychological impact was significant, although not as severe as in some cases. Violence was used. It was clearly category 1 harm. In terms of culpability, again it was motivated by, or demonstrated hostility towards, the victim's sexual orientation and therefore fell within category A. There were other factors which aggravated matters in that the appellant had previous convictions; the offence was committed late at night; a weapon was used; and the offending had had a significant impact on the victim.
19. The appellant's indication of remorse was taken into account as a mitigating factor, but it was, the judge considered, a little late in the day.
20. The difficulty was in reflecting totality in relation to both the sentence the appellant was already serving and the present offences. Bearing everything in mind, the offending fell at the top of category 1A and the starting point would have been seven years' custody. Credit for the guilty plea would reduce the sentence by eight or eight and a half months. It then had to be factored in as to what would have happened had the appellant been sentenced for all matters in one go. This was a difficult issue to resolve. The present offences were far more serious than the burglaries, but it was not possible to impose the sentence the appellant deserved on the present offences because of the way in which he had already been sentenced. A consecutive sentence of five years' imprisonment would be imposed to reflect totality, although it should be considerably more for the present offences alone.
21. The judge also took the view that the appellant's conduct was such that he posed a danger. There was a risk that under the influence of drink and drugs he would again behave in this way. As a result, an extended sentence would be imposed.
22. A number of points are taken by Mr Moss in his written Grounds of Appeal, which were developed economically in the course of oral argument. In summary, they are as follows:

1. By ordering the sentence to be served consecutively to the earlier terms of four years and eight months' imprisonment, the judge had offended against the principle of totality. The sentence should have been ordered to run concurrently. The judge had failed to take into account the fact that the present offences pre-dated the burglary offences.

2. The judge erred in finding the appellant to be dangerous. He failed to give any indication that he was considering doing so and failed to invite counsel to address him on the point. He also failed to address the criteria set out in the statutory scheme and provided insufficient reasons for his finding. Once he had decided that dangerousness was an issue, he should have adjourned the case for the preparation of a pre-sentence report. There was nothing in the appellant's antecedent history that indicated he was dangerous, and the facts of the offences provided no proper basis for the judge's conclusions.

3. The judge failed to give sufficient credit for the guilty pleas in circumstances where the Crown had maintained, until the day before the trial, that they proposed to proceed on counts 1 and 3 and not on any alternative basis. The appellant had, therefore, pleaded guilty at the first opportunity once the lesser alternative counts were added to the indictment.

4. The judge erred when considering the Sentencing Council Guidelines for Sexual Offences. The sentence imposed for the sexual assault was manifestly excessive because the judge wrongly concluded that the offence fell outside the guideline. Thus he adopted too high a starting point. In short, Mr Moss submitted that, if this offending fell within category 1A of the guidelines, the starting point was four years' custody and there was no warrant for going above that sentence.

23. We shall address these points in a slightly different order. We start with the judge's overall approach. He was right, in our view, to focus the sentence on count 2, since it was the most serious offence, and then to take into account the additional criminality of the offence charged under count 4 when arriving at the sentence for the sexual assault. The sexual assault was plainly a category 1A offence. So far as harm was concerned, it was category 1 harm, because there was violence and at least some degree of psychological harm. It was category A culpability because the offence was motivated by hostility to the victim based on his sexual orientation, or presumed sexual orientation. On that basis the starting point was four years' custody, with a range of three to seven years. We should add that although section 146 of the Criminal Justice Act 2003 requires a court expressly to treat sexual hostility as an aggravating factor, and so to state, this aggravating feature is now contained in the guidelines which applied in this case. The judge applied the guideline and there was no double counting, as Mr Moss correctly accepted in the course of argument. However, as the judge said, there were a number of aggravating factors which together with the serious offending involved in the assault occasioning actual bodily harm justified a starting point of seven years' imprisonment: the victim was unconscious; there was the use of a weapon; the offences were committed while on licence; and the appellant was in drink. Taking all these matters into consideration, we consider that there could be no objection to a starting point of seven years. We take this to have been the judge's approach.
24. The judge then gave ten per cent credit for the guilty plea. In our view, he cannot be criticised for that. It was open to the appellant to offer guilty pleas to lesser offences, but he did not do so. Indeed, at the pre-trial preparation hearing it had been made quite clear that there would be no guilty plea to any offence which involved a sexual element. On the basis of ten per cent credit, the term of seven years was reduced by eight months or so. The judge then further reduced the sentence to five years to take into account totality. In our view, that was a perfectly appropriate approach.
25. Finally, the judge should, we accept, have called for a pre-sentence report, and should certainly have warned defence counsel that he was thinking of invoking the dangerousness provisions of the Criminal Justice Act 2003, so that he could be addressed on his provisional view. It might have led the judge to the view, even if he found that the appellant was dangerous, that the risk might be addressed by a determinate sentence: see, for example, R v Burinskas [2014] EWCA Crim 334 at [14].
26. Although a pre-sentence report was not available, a pre-appeal report has been prepared for this hearing. The conclusions of that report are not favourable to the appellant. It states:

"The court is aware that [the appellant] has an extensive offending history demonstrating his pro-criminal attitudes. The index offences are an escalation in seriousness and assessments of risk demonstrate that he currently poses a high risk of serious harm and of a high risk of re-offending within a community setting. The risk that [the appellant] poses within the community will not be reduced until extensive offending behavioural work has been completed. He will need to demonstrate that he has addressed and acknowledged how his illicit substance use and use of violence and anger contribute to his offending behaviours."

27. This was a brutal and bizarre sexual assault, and it was accompanied by a further assault occasioning actual bodily harm. The judge was, in our view, entitled to consider that an extended sentence was required for the protection of the public from the risk of future such assaults.
28. For these reasons the appeal is dismissed.