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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Chaney, R. v [2009] EWCA Crim 52 (14 January 2009) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2009/52.html Cite as: [2009] EWCA Crim 52

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		14th January 2009

1. SIR GEOFFREY GRIGSON: This application has been referred to the full court by the Registrar. There is an application for leave to appeal against sentence passed on the applicant for rape and coupled with it an application for an extension of time in which to pursue that appeal.
2. Mr Roberts, who appears for the applicant today, makes further application for leave to appeal against conviction in respect of three of the counts on which the applicant was convicted and for the appropriate extension of time. Those applications are granted and we treat this hearing as the appeal.
3. The appellant, David Chaney, is 59 years old. He began offending as long ago as 1961 but his convictions were for minor offences for example simple possession of Class B drugs. On 7th August 2007 in the Crown Court at Cardiff he was convicted after trial on eleven counts of the indictment, each count arising in relationship with a young woman, DS.
4. On 8th August he was sentenced as follows: on counts 1 to 5, each a charge of indecent assault on DS, 5 years' imprisonment on each, each to be served concurrently. Count 6 charged the appellant with rape of DS, the sentence was imprisonment for public protection, with a specified period of 5 years. The judge said that had he been imposing a determinate sentence, the sentence would have been one of 10 years. Count 7 charged him with procuring DS to become a prostitute. He was sentenced to 20 months' imprisonment for that offence. Count 8, living on prostitution, 5 years' imprisonment. Counts 9 and 10 charged him with supplying DS with cannabis and the sentence was 2 years on each. Count 11, supplying DS with Ecstasy, the sentence of 3 years. All the determinate sentences were to be served concurrently. It is absolutely plain that in passing the determinate sentences the judge, bearing in mind that he was imposing a sentence of imprisonment for public protection had regard to the principle of totality but did not distinguish individually between those offences.
5. It is conceded by Mr Roberts that a determinate sentence was to be passed the minimum period fixed in respect of count 6 was wholly appropriate. The appeal is based on technical grounds. In those circumstances it is unnecessary to detail the facts. Suffice it to say that the applicant groomed and then sexually abused, in the most extreme and appalling way, a young and very vulnerable woman. He did not have the advantage of a guilty plea. He had a fair trial. The judge described him as a wholly contemptible human being and a thoroughly dangerous and unscrupulous man. With that judgment we agree.
6. There has been some suggestion that the judge passed imprisonment for public protection on counts 1 and 5 and 7 and 8. There is no real evidence to suggest that he did. Those were determinate sentences.
7. The problems in this case arise from the drafting of the indictment and from the lack of precision in identifying the date or dates on which the appropriate offences occurred. Count 6 alleged that the applicant had raped DS on a day between 4th April 2003 and 3rd April 2005. Section 225 of the Criminal Justice Act 2003 created the sentence of imprisonment for public protection and it came into effect on 4th April 2005 and only applied to offences committed after that date. It follows that such a sentence was not available to the court. The illegality of that sentence is the only ground of appeal against sentence. That illegality was only recognised after the 28 days had elapsed from the date of sentence, so that the Crown Court had no power to rectify the error.
8. Once the Crown had been alerted to the problem caused by the dates, Miss Ferrier, who represented the prosecution, realised that the problems did not end there. Counts 6, 7 and 8 are pleaded as occurring between 4th April 2003 and 3rd April 2005. The Sexual Offences Act 2003 came into force on 1st May 2004. If the offences were committed before that date, they were contrary only to the previous statutory regime. The evidence does not assist in identifying whether the offences were committed before or after 1st May.
9. The problems thus caused were recognised in R v A (Prosecution Appeal) [2006] 1 Cr App R 28. Where there is no evidence which would enable the jury to decide under which statutory regime a particular offence fell, then the defendant must be acquitted. Parliament sought to remedy this defect in section 55 of the Violent Crime Reduction Act 2006, but for that section to have been relied upon each offence should have been charged in the alternative under the new regime and the old. That was not done.
10. It is plain from the authorities and in the particular from F v The Queen [2008] EWCA Crim 994, that when the above procedures are not followed and the evidence is inconclusive as to when the offences were committed, any conviction must be held to be unsafe. It follows that the convictions on counts 6, 7 and 8 must be quashed.
11. One is left with the question of the overall sentence. The five counts of indecent assault could have been subject of consecutive sentences, the last two counts being particularly serious and involving a dog. The offences of supplying drugs equally could have been made consecutive. They were distinct offences and had the aggravating feature that the purpose of the drugs was to further undermine such Resistance as the young woman might have displayed against the machinations of the appellant.
12. We are constrained by section 11(3) of the Act not to pass any sentence more than that which could have been imposed on the indictment which the appellant faced. We are satisfied that had the judge been imposing determinate sentences, he would have recognised the seriousness of the offending by making some of the sentences which have in fact been made concurrent consecutive. In our judgment the appropriate course to take is to leave the sentences for the indecent assaults on counts 1 to 5 as they are but in relation to the drugs offences, counts 9, 10 and 11, while the sentences imposed remain concurrent with each other, they should be consecutive to the 5 years imposed for the indecent assaults. The result is that the appellant will serve a determinate sentence of 8 years in all. To that extent the appeal is allowed. The other orders made by the judge remain.
13. LORD JUSTICE HUGHES: Leave to appeal against conviction on counts 6, 7 and 8, appeal allowed and convictions quashed. As to sentence as my Lord has said.
14. MR ROBERTS: Would your Lordships consider extending an order for legal aid for appeal against conviction?
15. LORD JUSTICE HUGHES: Yes.