England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		13 March 2018

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1. MR JUSTICE GOOSE: In this appeal against sentence by the appellant, Alan Graham Dawkins, permission was given by leave of the single judge in respect of a sentence imposed on 27 September 2005. The appellant had previously pleaded guilty to two offences: count 2, committing an offence with intent to commit a sexual offence, contrary to section 62 of the Sexual Offences Act 2003; and count 4, breach of an antisocial behaviour order, contrary to section 1 of the Crime and Disorder Act 1998.
2. The provisions of the Sexual Offences (Amendment) Act 1992 apply to count 2, being a sexual offence, such that no matter relating the complainant shall during her lifetime be included in any publication if it is likely to lead members of the public to identify the complainant as a victim of the offence. This prohibition applies unless waived or lifted in accordance with section 3 of the 1992 Act.
3. The appellant was aged 22 when he was sentenced at Winchester Crown Court. He is now aged 35. On count 2, he was sentenced to imprisonment for public protection ("IPP") pursuant to section 225 of the Criminal Justice Act 2003 with a minimum term of custody of 10 months from a starting point of 30 months and after giving credit for 5 months served on remand. In respect of count 4, 9 months' imprisonment was imposed to run currently.
4. A notification requirement under section 80 of the Sexual Offences Act 2003 was also imposed and the appellant was ordered to be included in the relevant list of the Independent Safeguarding Authority.
5. The appellant was born on 4 February 1983. By the time he received the sentence under appeal he had acquired 17 convictions for 33 offences, 11 of which were in respect of offences against the person. His offending began at an early age. His first conviction was when he was 14. By the time he committed the offence in count 2, on 28 April 2005, the appellant had committed seven specified offences, six of which were assault occasioning actual bodily harm, and one offence of robbery. He had received custodial sentences, the longest being for 2 years for the robbery offence when he was aged 16. He had no previous convictions for sexual offences.
6. The two offences in counts 2 and 4 of the indictment arose out of the same circumstances. At around 10.00 am, the complainant was walking along a path alone between a high fencing and open land when she noticed the appellant walking behind her. She stopped and stood aside to allow him to pass her but the appellant stopped a few metres from the complainant and could be seen to be masturbating under his clothing. He asked the complainant if he could masturbate on her before pushing her with both hands against her shoulders against the fence. He then exposed his penis and masturbated to ejaculation onto his hand before placing it almost onto the complainant's cheek. The complainant was intimidated and frightened. The appellant then licked the semen off his hand before walking away.
7. He was later arrested after he was identified by the complainant. He denied the offences until he pleaded guilty on 6 September 2015 on the first day of his trial.
8. In a victim personal statement made 4 months later, the complainant described how she had been affected by the offence. It has substantially interfered with her coursework and had considerably affected her confidence whilst in public. She stated:

"As a result of what has happened to me my lifestyle has changed considerably. I am determined that I will not let this affect me long term but resent the impact that this man's actions have had on my life."

9. In a pre-sentence report dated 23 September 2005, the senior probation officer assessed the appellant's risk of harm to the public and likelihood of reoffending. At paragraph 4.1, she stated:

"While Mr Dawkins has no previous convictions for sexual offending I am concerned that during a burglary in July 2004 he is reported to have pulled at the dressing gown of a female after she entered her bedroom and found him leaving through an open window. I am unsure if these two incidents are connected and imply an increasing seriousness of sexual offending against adult females and further assessment would be required in order to ascertain this. Given his record of previous convictions and the current matters before the Court, it is my assessment that Mr Dawkins presents a high risk of serious harm to the public at this time."

10. In sentencing the appellant, His Honour Judge Brodrick stated:

"You have pleaded guilty on the day of your trial to committing an offence with intent to commit a sexual offence and breach of an anti social behaviour order. The prosecution have already described what you did. You clearly subjected that unfortunate young woman to a very unpleasant, frightening experience, which involved some violence but at a very low level. ...

Count 2 [is a] serious specified offence because it carries a maximum of 10 years' imprisonment. You have many other specified offences on your record and it seems to me that there is no escape at all from the almost mandatory provisions which Parliament has set out requiring me to pass a sentence of imprisonment for public protection."

11. Judge Brodrick then imposed a sentence of imprisonment for public protection with a custodial minimum term of 10 months on count 2 and 9 months concurrently on count 4. A sentence of imprisonment for public protection was correctly not imposed on count 4.
12. On behalf of the appellant, it is argued that the sentence of imprisonment for public protection was manifestly excessive. The sentence being imposed on 27 September 2005 was 5 months after the commencement of Chapter 5 of the Criminal Justice Act 2003 and was before the Court of Appeal decision in R v Lang [2005] EWCA Crim 2864, a decision of the Court of Appeal in which observations were made upon the provisions in relation to the protection of the public from dangerous offenders, contained in sections 224 to 229 of the Criminal Justice Act 2003. It is argued by the appellant that had this decision been in the mind of the sentencer, the appellant would not have received a sentence of imprisonment for public protection.
13. The commencement of sentences of imprisonment for public protection contained within sections 224 to 229 of the Criminal Justice Act 2003 was brought into effect on 4 April 2005. In 2008, the Criminal Justice and Immigration Act 2008 modified the sentence of imprisonment for public protection and the sentence was abolished for all offenders convicted after 3 December 2012 by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. This appeal therefore is concerned with the original sentence of IPP and not its modified form.
14. The provisions are as follows:

"224. Meaning of 'specified offence' etc.

(1)An offence is a 'specified offence' for the purposes of this Chapter if it is a specified violent offence or a specified sexual offence.

(2)An offence is a 'serious offence' for the purposes of this Chapter if and only if—

(a)it is a specified offence, and

(b)it is, apart from section 224A, punishable in the case of a person aged 18 or over by—

(i)imprisonment for life, or

(ii)imprisonment for a determinate period of ten years or more.

(3)In this Chapter—

'serious harm' means death or serious personal injury, whether physical or psychological;

'specified violent offence' means an offence specified in Part 1 of Schedule 15;

'specified sexual offence' means an offence specified in Part 2 of that Schedule.

...

225. Life sentence for serious offences

(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.

(2)If—

(a)the offence is one in respect of which the offender would apart from this section be liable to imprisonment for life, and

(b)the court considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life.

The court must impose a sentence of imprisonment for life.

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

...

(5)An offence the sentence for which is imposed under this section is not to be regarded as an offence the sentence for which is fixed by law.

...

229. The assessment of dangerousness

(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.

(3)If at the time when that offence was committed the offender was aged 18 or over and had been convicted in any part of the United Kingdom of one or more relevant offences, the court must assume that there is such a risk as is mentioned in subsection (1) (b) unless, after taking into account—

(a)all such information as is available to about the nature and circumstances of each of the offences,

(b)where appropriate, any information which is before it about any pattern of behaviour of which an of the offences forms part, and

(c)any information about the offender which is before it,

The court considers that it would be unreasonable to conclude that there is such a risk.

(4) In this Chapter "relevant offence" means—

(a)a specified offence".

15. In the case of the R v Lang [2005] EWCA Crim 2864, Rose LJ summarised the effect of the dangerous offender provisions of the Criminal Justice Act 2003 and made observations by way of some guidance to sentencers. At paragraphs 15 to 17 of the judgment it was stated (per Rose LJ):

"15. The provisions for assessment of dangerousness in section 229 distinguish between offenders aged 18 or over with a previous conviction for a specified offence and those under 18 or with no such previous conviction. In both cases, information is identified which the court must or may take into account in assessing dangerousness but there is a rebuttable assumption of dangerousness in relation to adults with a previous specified offence conviction. In our judgment, when sections 229 and 224 are read together, unless the information about offences, pattern of behaviour and the offender (to which regard must be paid under section 229(3)) show a significant risk of serious harm (defined by section 224 as death or serious injury) from further offences, it will usually be unreasonable to conclude that the assumption applies.

16. ... We have already referred to the fact that significant risk of two matters must be shown before life imprisonment or imprisonment for public protection becomes obligatory, that is the commission of a further specified offence and the causing of serious harm thereby.

17. ... (v) In relation to the rebuttable assumption to which section 229(3) gives rise, the court is accorded a discretion if, in the light of information about the current offence, the offender and his previous offences, it would be unreasonable to conclude that there is a significant risk. The exercise of such a discretion is, historically, at the very heart of judicial sentencing and the language of the statute indicates that judges are expected, albeit starting from the assumption, to exercise their ability to reach a reasonable conclusion in the light of the information before them."

16. It is argued by the appellant that if the sentencing judge had passed sentence after the decision of R v Lang had been made, he would not have imposed a sentence of IPP. It is also argued by the appellant that the sentencing judge was wrong to conclude that the appellant's previous convictions, although for specified offences, were "serious offences". The judge should have looked more carefully at the circumstances of the previous convictions for violence and robbery before reaching a conclusion of dangerousness. It is submitted that the judge appeared to believe that he was almost compelled to impose a sentence of IPP, thereby not demonstrating the exercise of a discretion to disapply the presumption of dangerousness within section 229(3) of the 2003 Act. The appellant also contends that the conviction was for a non-contact, non-penetrative offence.
17. In considering whether the sentence was manifestly excessive so as to require this court to allow the appeal, we must bear in mind that at the date of sentencing His Honour Judge Brodrick did not have the observations of the Court of Appeal in R v Lang on the dangerous offender provisions in Chapter 5 of the 2003 Act. It is not for this court to try and assess what the sentence might have been had R v Lang pre-dated this appellant's sentence. We must carefully consider whether Judge Brodrick applied sections 225 and 229 correctly. Plainly count 2 was a specified and serious offence for which the maximum sentence was 10 years' imprisonment; the appellant was aged over 18 and the court was entitled to assess whether it was of the opinion that there was a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences - section 225(1)(b).
18. If the court was of that opinion, then the judge was required to impose a sentence of imprisonment for public protection (section 225(3)). The presumption within section 229(3) applied unless the court considered it would be unreasonable to conclude that there was such a risk, taking into account the information described in section 229(3)(a) to (c).
19. Although the sentencing comments of Judge Brodrick were brief, it is clear to us that he had applied the provisions of sections 224 to 229 of the 2003 Act. There was sufficient information for the judge to conclude that the presumption would not be disapplied in this appellant's case. His previous conviction for seven specified offences, coupled with the pre-sentence report's assessment of the appellant's risk of serious harm to the public, were sufficient for the judge to conclude that it was not unreasonable to apply the assumption. There was ample evidence of an assessment of significant risk of further specified offences. Further, the circumstances of this particular offence, count 2, coupled with the pre-sentence report at paragraph 4.1 provided sufficient information for the judge to conclude that there was a significant risk to members of the public of serious harm occasioned by the commission by the appellant of further specified offences.
20. We were satisfied that the judge applied the provisions of Chapter 5 of the 2003 Act correctly. Further, we do not consider that submissions based on observations made by this court in R v Lang after a sentence has already been imposed can be used to criticise that sentence as being manifestly excessive where the judge correctly applied the statutory provision.
21. Accordingly, we are not persuaded that the sentencing judge failed to apply the provisions of the 2003 Act properly. The judge was entitled to reach the conclusion that he did and having done so was required by section 225(3) to impose a sentence of imprisonment for public protection.
22. In the circumstances, we are not persuaded that the sentence imposed on the appellant was manifestly excessive and accordingly we dismiss the appeal.

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