England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		24 August 2018

MR JUSTICE WARBY:

1. This is an appeal against sentence with leave of the single Judge in a case involving sexual offences relating to children, perpetrated by an adult offender with a previous record of offending of that kind.
2. The appellant is James Phillips, now aged 28.

Proceedings below

3. On 5 March 2018 in the Crown Court at Leeds, he pleaded guilty to three offences of attempted sexual activity relating to a child, and one of failure to comply with notification requirements contrary to section 91 of the Sexual Offences Act 2003. The case was adjourned for a Pre-Sentence Report (PSR).
4. On 3 April 2018, he was sentenced by Mr Recorder Greaney QC. For the three attempts he was given concurrent extended determinate sentences. A concurrent determinate term was imposed in respect of the notification offence. The total was a term of 14 years, comprising a custodial term of six years and an extension period, pursuant to section 226A of the Criminal Justice Act 2003 of eight years, the maximum permitted by the statute.
5. The overall effect of that sentence is that the appellant must serve at least four years in custody. If released after two-thirds of the custodial term he will be on licence for a further 10 years.
6. The appellant was also subject to an indefinite notification requirement under the 2003 Act, and liable to inclusion on the Barring List.

The issue

7. There is no quarrel on this appeal with the custodial portion of the sentence, or the sentencing Judge's conclusion that the appellant is dangerous, or his decision as a result to impose an extended determinate sentence. The reasons for that will become clear.
8. The grounds of appeal raise, as the single Judge rightly identified, what is in effect a single issue, namely whether the extended licence period of eight years was manifestly excessive as simply too long.

Antecedents

9. As will be obvious from what we have said already, the appellant had previous convictions which included sexual offences. In 2014, he was convicted of inciting a female under 16 to engage in penetrative sexual activity. The sentence was one of two years' custody. In 2017, he was convicted of breach of the Sexual Harm Prevention Order that was imposed on the earlier occasion (an indefinite order). The sentence for that breach was one of 15 months' imprisonment. At the time of the offending that is now under consideration he was on licence.
10. The Sexual Harm Prevention Order imposed in 2014 prohibited the appellant from using the internet to contact any child under the age of 18. He was also subject to registration provisions which required him to notify the police of any relevant changes in his situation.

The facts

11. Without notifying the police, the appellant set up a Facebook profile in the name of "Anthony Moss". In that false identity, he made contact with a Facebook user going by the name of "Becky Ward", and professing to be a schoolgirl aged 14.
12. On 28 January 2018, "Becky" sent the appellant a friend request. He accepted it, but messaged Becky to ask why she had added him. She claimed it had been random and that he could delete her profile. Instead, the two began to send messages one to the other.
13. A number of messages were sent over the course of the following five days, the appellant's messages quickly becoming sexual in their context. He sent pictures of his erect penis, one post-ejaculation. He continued with similar messages even after Becky had confirmed that she attended school. He asked her to send him pictures of herself in bed. He wrote about wanting to take her virginity. In further discussions he arranged to meet Becky if she was "still up for it", telling her that he would be wearing a red Adidas jacket.
14. There was no such person as Becky Ward. This too was a false identity. It was created by a 28-year-old volunteer member of a group by the name "Predator Exposure". The name of the group indicates its purposes.
15. Thus, it was on 2 February 2018, when the appellant went to meet "Becky" at a prearranged rendezvous, a Sainsbury's shop in Dewsbury, he was met not by her but by members of Predator Exposure who told him that the police had been contacted.
16. The appellant tried to run away, but was apprehended by officers who attended shortly afterwards. They recovered a red Adidas top from his home. Upon arrest he was wearing the same top as he had been wearing in "Anthony Moss's" profile picture.
17. Interviewed on 3 February 2018, he made no comment; but he pleaded guilty just over a month later at the Pre-Trial Preparation Hearing.

PSR

18. The Pre-Sentence Report reported full and frank admissions by the appellant, who did not seek to mitigate his behaviour. The author was however concerned by his lack of emotional reaction, which was considered indicative of deficits in understanding and of learning disabilities. The author of the report expressed concern that the appellant had committed these offences only months after his release from a sentence for similar offending.
19. He was assessed as posing a high risk of serious harm to children, specifically adolescent females between 13 and 15. The nature of the risk was identified as both short and long term emotional, psychological, and sexual harm. At the time of the report, the appellant had not completed any offending behaviour group work, which was considered imperative to the management of his risk and the development of his own understanding of his offending behaviour.

Sentencing remarks

20. It is unnecessary to recite the details of the Recorder's reasoning for imposing a custodial sentence of six years. Suffice it to say this was arrived at by reference to the seriousness of the attempts and the breach that were under consideration, and of the aggravating features. Those included, of course, the appellant's previous record, and the fact that the offences were committed on licence, and in breach of the Sexual Harm Prevention Order. Credit of 25 per cent was afforded for the guilty plea.
21. The Recorder was unequivocal in his finding as to dangerousness. Having referred to the probation officer's report he said this:

"You are ... a dangerous sexual predator. You have, it is quite plain, a complete inability to control your sexual impulse to have sex with young teenage girls and you are a terrible danger to such children. To say that you present a significant risk of serious harm to those children, occasioned by the commission by you of further specified offences, does not begin to describe how dangerous you are."

22. However, the Recorder did not state expressly why he imposed the maximum extension period, rather than any other period.

Grounds

23. In support of his contention that the period of eight years was manifestly excessive and wrong in principle, Mr Aspinall, who appeared below and has appeared today, makes four main points.

(1) First, he says that no or no significant account was taken of the fact that these offences were attempts, which could not have been completed.

(2) Secondly, he points out that this appellant is still a relatively young man who he has not, through no fault of his own, had any previous opportunity to complete the relevant offending behaviour programmes while in custody. It has been explained in court today that the appellant was ineligible for those programmes, when serving his previous sentences.

(3) Thirdly, the point is made that there was reason to infer from the pre-sentence report that the appellant would make progress in addressing his thinking and actions in the future.

(4) Finally, it is submitted that this was a "crushing sentence" for a man of this age and that that was a factor that should have weighed more heavily in his favour with the Recorder.

Discussion

24. We see merit in these last three points. An extended licence period is different in kind from a determinate sentence. It is not tied to the seriousness of the offending; its purpose is protective. Like all sentences, it should not be longer than necessary for the relevant purpose. It should be just and proportionate, and not such as to crush the defendant.
25. The Sentencing Council's 2008 Guide on Dangerous Offenders makes clear that the judge should "fix the length of the extension period by reference to what realistically can be achieved within it to secure the offender's rehabilitation and prevent re-offending". Applying this principle in the case of R v KA [2013] EWCA Crim. 1264, this court reduced an eight-year extension to one of four years, bearing in mind that the probation report in that case had said that three years would be required to carry out the necessary work with that offender.
26. In our view the reasoning of the sentencer in the present case paid insufficient attention to this principle.
27. The probation officer had tried to work out a timescale for the work required, but prison moves and other factors had prevented this. He did make clear, however, that the sentences imposed on this appellant to date did not allow for the kinds of intervention that had been shown to bring about improvements. The present sentence is long enough to allow such intervention. The Pre-Sentence Report makes clear that the appellant has begun to acknowledge that his behaviour is problematic, and that there is reason to believe he could make progress.
28. It is also necessary to recognise that the appellant will not be released from custody until that is deemed to be a safe course of action, or until he serves six years, whichever is the later. He may not be released until he is 34 years of age, therefore. If he is released earlier than that, it will be because he has satisfied the Parole Board that he has complied with and responded to the programmes made available to him whilst in custody. After release, an offender such as this will be monitored for a considerable period. All of this is clear from the Pre-Sentence Report.
29. In our judgment, on the available material, an extended licence period of four years is, when coupled with the custodial portion of the extended sentence and the programmes that will be provided to this appellant, an appropriate and sufficient measure to ensure that the public receives the necessary protection.

Disposal

30. We therefore quash the extended license of eight years and substitute a period of four years. The total extended determinate sentence that results is one of 10 years, with a custodial portion of six years and an extended licence period of four years. To that extent, this appeal is allowed.

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