Neutral Citation Number: [2007] EWCA Crim 2622
Case No: 200604639 A9
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT NORWICH
Mr Justice Roderick Evans
T20050238
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 07/11/2007
Before :

LORD JUSTICE LEVESON
MR JUSTICE STANLEY BURNTON
and
MR JUSTICE PITCHFORD
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Between :

	H	Appellant	
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	THE QUEEN	Respondent	

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Tim Owen Q.C. and Alison Gerry (instructed by Howard League for Penal Reform) for the Appellant
John Farmer (instructed by CPS) for the  Respondent    

Hearing date : 4th October 2007
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Judgment

Lord Justice Leveson: 
1.	On 23 September 2005, in the Crown Court at Norwich, H (who was then 17½ years of age) appeared before Roderick Evans J for sentence following his earlier plea of guilty to an offence of sexual assault contrary to section 3 of the Sexual Offences Act 2003 (“the 2003 Act”).  He was sentenced to an extended sentence of five years which was made up of a custodial term of 30 months detention pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 (“the 2000 Act”) and an extended period of licence of 30 months pursuant to section 85 of the Act.  Because he was sentenced to a term of 30 months or more, section 22(1) of the 2003 Act mandates that he remain on the sex offenders’ register (and therefore be subject to the specified notification requirements) indefinitely.
2.	The custodial term of the sentence imposed on H has been served but the full court extended time for appeal (by nearly 11 months) on the basis that H seeks to challenge the sentence and reduce it below 30 months so that the indefinite reporting obligation is reduced to one of five years (the ten year period for sentences below that threshold being halved because H was under 18 years of age at the time:  see section 82(2) of the 2003 Act).  Having regard to the decision in Regina v. Longworth [2006] 1 UKHL 1, [2006] 1 WLR 313, no independent appeal lies in respect of the notification period.  His application for leave to appeal was adjourned so that the Crown could attend the application.
3.	Mr Tim Owen QC (who appears with Ms Gerry for H) advances three propositions in support of this application and the appeal.  First, it is submitted that the custodial term of 30 months is itself manifestly excessive.  Secondly, the calculation of the term of the sentence for the purposes of the notification provisions of the 2003 Act is restricted to the actual custodial term rather than the aggregate of the custodial term and the extension period.  Third, it is argued that the imposition of a lifelong notification period on all those under 18 sentenced to a custodial term of 30 months or more, without differentiation based on gravity of offence, reflection of youth and capacity for change is disproportionate and offends Article 8 of the European Convention on Human Rights.
4.	The background facts are important but can be described quite briefly.  At the time, H was one month short of 17 years of age and had attended the same school as the complainant, G, who was just over two months younger than him.  They lived in neighbouring villages but it is not suggested that they had ever been involved in any relationship.  
5.	G had achieved a measure of independence and lived in a static caravan at the back of her parents’ home.  In or about mid-January 2005, H visited the caravan on an occasion when her boyfriend was also present.  He left with the boyfriend but returned later, alone, and asked her if she would have sex with him. She refused and he went away. 
6.	On 29 January 2005, he returned.  G had been visited by her boyfriend that evening and, after he left, she went to bed, naked. Shortly after midnight she felt someone get into bed with her. She assumed it was her boyfriend but got no response when she said her boyfriend’s name. She then turned on the light and immediately realised that the person in bed with her was H. He was also naked and sexually aroused, said “please” and told her he wanted sex. He then held her wrist and pushed her onto her back. He straddled her thighs, holding her wrist. She screamed “No, I don’t want this. Let me go”.  He repeated the word “please” several times.
7.	The two then struggled for what G described as about ten minutes.  She was then able to kick him off and threatened to scream loud enough to wake her parents. He then picked up his clothes and left.  After he had done so, G realised that he had ejaculated over her back; this appears to have happened as he got up and touched her back and certainly demonstrated the extent of his sexual arousal. 
8.	G had, of course, recognised the applicant.  When he was interviewed following his arrest on 17th February 2005, however, he denied the offence. Even when DNA testing of the ejaculate on the bedding was found to match his, he continued to deny the matter although he ultimately pleaded guilty to an offence of sexual assault: this plea was notified on about 14th June 2005 and entered on 18th July.  A second count of trespass with intent to commit a sexual offence was then ordered to remain on file on the usual terms although it was made clear by Mr Farmer for the Crown in opening the matter before Roderick Evans J that the basis upon which the plea to the count of sexual assault was that:
“it accepted that it included the facts of [the offence of trespass with intent to commit a sexual offence] which are true and it is merely a matter of form that a not guilty plea has been entered to [that] count so that the actual facts of [that count] are to be regarded as an aggravating feature of [the sexual assault].”
9.	There is no suggestion that this factual analysis was not entirely accurate although the meaning of the concession (which Mr Owen was not in a position to challenge) was the subject of some argument before us.   In the event, Mr Owen accepted that it had to mean, at least, that H had entered the caravan unknown to G and without her permission and had done so without giving proper consideration to whether she would consent to a sexual approach.  He submitted that it could not be sustained that he intended to rape G.  We agree that the assault intended at the time of entry into the caravan was not necessarily rape but it is abundantly clear that H climbed onto G intending to have sexual intercourse with her, aware that she had refused him and not caring whether she consented or not.  He did not, of course, fall to be sentenced for attempted rape but that state of affairs was clearly due to G’s successful (and physical) self defence rather than any change of heart on the part of H.
10.	Turning to his personal circumstances, H had once been cautioned for common assault in circumstances that it is right to ignore. He also had a very positive history of activity at school and otherwise (including a bronze Duke of Edinburgh award).   There were, however, a bundle of reports which clearly caused the judge concern about H’s sexual attitudes.  A pre-sentence report stated that he understood that his actions were wrong by virtue of being arrested and regretted the emotional distress he had caused but concluded that the seriousness of the offence indicated that the risk of re-offending and the potential harm to the public was high.  It also referred to “a lack of understanding and misinterpretation of issues around sex and relationships”.  An addendum also notes that there were two separate points when he considered leaving undetected and going home but, on both occasions, he chose not to do so. 
11.	A psychiatric report from an expert in learning disabilities (rather than a forensic psychiatrist) spoke of a history of neuro-developmental delay, and a diagnosis of motor dyspraxia at three years of age followed by a head injury in September 2004 with some reported personality change including lack of insight, a degree of impulsiveness/disinhibition and lack of ability to control behaviour.  The psychiatrist considered frontal lobe damage but neurological investigation concluded that the head injury was unlikely to have been enough to cause permanent cerebral damage. A psychologist concluded that the risk of re-offending was high having observed:
“[H] holds a range of risky attitudes around sexual behaviour and, in particular, women.  It is likely that his poor verbal skills have facilitated the development of inappropriate and inaccurate attitudes, and allowed him to develop a range of cognitive distortions which are central to the development of his offending behaviour.”
12.	All the professionals suggested a non custodial sentence on the basis of their concern about the effect of custody and his need for help.  In the event, in passing the sentence to which we have referred, Roderick Evans J said that he bore in mind the plea of guilty at a very early opportunity, his good character, personal difficulties and age but observed:
“Entering as a trespasser, not breaking in … because the door was unlocked because of the security she felt in her parents’ garden … and committing [this offence] in the home, indeed the bed, of a female is an extremely serious matter and it very much aggravates your offending.”
13.	Mr Owen points to the Definitive Guideline issued by the Sentencing Guidelines Council in April 2007 (that is to say, long after the imposition of this sentence) and submits that the sentencing range for sexual assault involving contact between the naked genitalia of the offender and another part of the victim’s body is 26 weeks – 2 years prior to discount for guilty plea.  He also argues that there are none of the generic aggravating factors and a number of mitigating features.  On the other hand, the guideline makes it clear that the nature of the sexual activity will be the primary factor in assessing seriousness and, in all cases, the fact that the offender has ejaculated increases seriousness.  Further, it simply cannot be gainsaid that the fact that there was an element of premeditation, if not planning, such that H embarked on a course of conduct which led him to enter the caravan uninvited, strip and put himself in a position to have sexual intercourse with G seriously aggravates what he did.  It is not irrelevant that trespass with intent (where the intention is to commit rape or assault by penetration) provides a starting point of 4 years and a bracket of 3-7 years in custody.
14.	Mr Owen also refers to Attorney General’s Reference No 128 of 2004 (Peter Holness) [2004] EWCA Crim 2066, [2005] 2 Cr App R (S) 17 in which the court declined to increase a sentence of 15 months detention passed on a 20 year old who had been with a friend and the friend’s girl friend in a public house where they had drunk to excess and taken ecstasy (later proved by tests after the incident).  They all visited the house of another friend and while the offender’s friend went to buy cigarettes, went into the bedroom where his girlfriend was sleeping, performed oral sex on her and lay on top of her naked.  She shouted and he left the house; when arrested, he made an immediate admission.  The Attorney had relied on the aggravating feature that the victim was vulnerable, drunk and on her own and that the highly invasive attack occurred when she was asleep in a bedroom where she ought to have been safe.  The court concluded that the correct sentence after a guilty plea was “two years or a little more”; the sentence was lenient but not unduly so.
15.	Mr Owen argues that H is younger, has greater mitigation and did not subject his victim to the indignity of oral sex.  On the other hand, although he had taken some alcohol, H’s offence was much more than a response to opportunity and the trespass element makes it very much more serious.  Further, although entitled to maximum credit for a guilty plea, he did not volunteer admissions immediately on arrest.  In our judgment, Roderick Evans J was entitled to conclude that a term of 30 months detention under section 91 of the 2000 Act was warranted; the submission that it was manifestly excessive or, indeed, excessive is rejected.  He was similarly entitled (if not bound, having regard to the evidence to which we have referred) to impose an extended licence period of 30 months if only so that steps could be taken in the community to assist H to address his very real problems.   To be fair, the extension period is not challenged.
16.	On the face of it, this conclusion means that it is unnecessary to address Mr Owen’s second submission to the effect that the calculation of the notification period should be based on the custodial term rather than a combination of the custodial term and the extended licence because the custodial term itself requires indefinite notification even in the case of a young person under the age of 18 years: see section 82(1) of the 2003 Act.  In that regard, he relies on the reasoning of this court in Regina v. Graham S [2001] 1 Cr App Rep (S) 335, arguing that the subsequent decision in Regina v Wiles [2004] 2 Cr App Rep (S) 467 which concluded that Graham S was decided per incuriam was itself wrong and based on a flawed analysis of the precise language of the section.  Based on that analysis, and bearing in mind that at the time that the notification provisions were introduced, the concept of an extended term had not been devised, we see considerable force in this submission but do not feel that it is necessary to decide the matter, even if it were appropriate for us to do so.  
17.	Mr Owen submits that if the sentence was on the cusp of a regime that required notification for life rather than for the more limited period of 5 years, it fell to the judge to consider whether, in the circumstances, he should not mitigate the effect of his sentence by reducing the 30 month term, if only by a short period.  In that regard, it must be borne in mind that the notification provisions are not part of the sentence imposed by the court but arise independently by operation of section 80 of the 2003 Act:  see Regina v. Longworth, supra [2006] 1 UKHL 1, [2006] 1 WLR 313.  
18.	Parliament determined that if the offence is sufficiently grave, even for those under 18 (for whom the length of the term is likely to be affected because of youth in any event), indefinite notification is appropriate.  On the face of it, H falls into the appropriate category and, furthermore, the appellant was prevented from committing a more serious offence not because he thought better of it, but because G successfully resisted him.  That is not to say that he is being sentenced to a longer term because of what he intended rather than what he actually did:  he is not.  But neither can it be said that it is appropriate to reduce that proper term simply because he is on the cusp of a statutory regime which, because of its inherent gravity, requires notification for a longer period than if he had been below it.
19.	The alternative argument that Mr Owen advances on this topic is that the statutory length of notification, in a case such as this, is disproportionate and in breach of Article 8.  This time, he seeks to challenge in this court the reasoning of the decision of the Court of Appeal Civil Division in Forbes v. Secretary of State for the Home Department [2006] 1 WLR 3075 which itself adopted the reasoning of Kerr J in Re Kevin Gallagher [2003] NIQB 26.  He does not suggest that the court was necessarily wrong to conclude in that case that the measure did not violate Article 8 (accepting that the provision was engaged) but only that it is necessary to consider the individual case before reaching a conclusion on whether the measure is proportionate and so whether it is a violation of Article 8.
20.	At the time that Roderick Evans J came to pass sentence, H was six months short of his 18th birthday.  The reports were up to date and painted a picture of real concern.  There was a high risk of re-offending and H’s presentation of a degree of impulsiveness/disinhibition and lack of ability to control behaviour appeared to be unexplained (it being unlikely to have been caused by his head injury).  Neither was any evidence put before us to justify the argument that whatever might have been feared two years ago, the position had moved on and the conclusion reached as to risk had been overtaken by maturity and other events.  Suffice to say, on the face of these facts and this case, even if it was open to us to approach the issue as Mr Owen submits, we do not consider that indefinite reporting was, in any event, disproportionate.  
21.	In our judgment, the issues of principle that Mr Owen seeks to have resolved simply do not arise on the facts of this case.  Although we understand H’s father’s real concern that his son should not be subject to the requirements of lifelong notification because of his conduct as a 16 year old, the purposes of notification is to allow the police to be aware of the whereabouts of those who, by reason of their prior conduct, are considered at high risk of sexual offending; unfortunately, his son falls into that group.  This application is refused.