B e f o r e :
MR JUSTICE GREEN
THE RECORDER OF LEEDS
(His Honour Judge Collier QC)
(Sitting as a Judge of the Court of Appeal Criminal Division)
|R E G I N A|
|- v -|
Wordwave International Ltd trading as DTI
165 Fleet Street, London EC4A 2DY
Telephone No: 020 7404 1400; Fax No 020 7404 1424
(Official Shorthand Writers to the Court)
Mr C Dunn appeared on behalf of the Crown
Crown Copyright ©
LORD JUSTICE HICKINBOTTOM: I shall ask Mr Justice Green to give the judgment of the court.
MR JUSTICE GREEN:
B. The facts
C. The sentencing remarks
"The breach of trust involved in those circumstances is extremely grave."
The judge then proceeded to identify the sentence applicable to each of the counts which was before the court.
"Count 2, the most serious offence of which you are convicted, a count of buggery of young [MB], again committed in brazen circumstances when he was in his bed in his dormitory. He endured the resultant pain of what you did to him and had difficulty in walking for some time afterwards. The maximum sentence for that offence is life imprisonment. Now, it would be charged as rape of a child under 13, again with a maximum sentence of life imprisonment …. and if that offence had been drafted then it would be a category 2A offence with a starting point of thirteen years' imprisonment for that one offence alone."
"I also bear in mind in mitigation the fact that as you are registered blind you will find a prison sentence harder to cope with than a person entirely without disability."
"Despite the passage of time since these offences, I am satisfied that you are dangerous within the meaning of the Criminal Justice Act 2003. I reach that conclusion because I am satisfied that there is a significant risk of serious psychological harm being caused by the commission by you of further specified offences and I reach that conclusion from the combination of the number of offences that you have committed, the period of time over which they were committed, the indiscriminate nature of them, involving children of both sexes and committed in such a variety of ways, your attempt many years later to make unsolicited contact with [HS] and your utter lack of remorse and attempt to paint yourself as the victim in these proceedings, expressed with some vehemence and utter lack of truthfulness in the witness box. There will, therefore, be an extended sentence which must be adjusted to apply the principle of totality, the guideline in respect of which, of course, I follow. The extended sentence will be in total 22 years. That will be made up of a custodial term in aggregate of 19 years' imprisonment, plus an extended licence period of three years."
D. The grounds of the appeal
1. The imposition of an extended sentence on count 2 was unlawful because buggery is not a specified offence for the purpose of Schedule 15 to the Criminal Justice Act 2003.
2. In the absence of a report addressing dangerousness, the judge erred in making a finding that the appellant was a dangerous offender for the purpose of section 226A of the Criminal Justice Act 2003.
3. If the appellant was not a dangerous offender, he would fall to be sentenced as an offender of particular concern, pursuant to section 236A of the Criminal Justice Act 2003.
1. There was a 40 year period without subsequent offending, which was a clear demonstration that the appellant did not pose an ongoing, or indeed any future risk.
2. The significant physical impairment from which the appellant now suffers would have a clear impact upon the extent to which he was capable of posing a risk of the commission of future offending – much less a significant risk.
3. The appellant's ill-health, which would in all likelihood deteriorate during a significant period of custody was an additional factor which reduced the likelihood of the appellant posing a significant risk on release.
In short, Miss Fairley submits that in the absence of evidence indicating that the appellant posed a future risk, he did not and could not meet the criteria for a finding of dangerousness; and it followed that an extended sentence could not in law have been imposed upon him.
F. Section 236A and schedule 18ACJA 2003
"23. … The limit of its power is that the court must be satisfied that, taking the case as a whole, the appellant is not being dealt with more severely on appeal. That requires a detailed consideration of the impact of the sentence to be substituted which must involve considerations of entitlement to automatic release, parole eligibility and licence. If a custodial sentence is reduced, the addition of non-custodial orders (such as disqualification from driving or sexual offences prevention orders) may be added but, in every case, save where the substituted is 'ameliorative and remedial', that sentence must be tested for its severity (or potential punitive effect) compared to the original sentence."