Neutral Citation Number: [2018] EWCA Crim 862
Case No. 2017/04030/A4
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Friday 13th April 2018

B e f o r e:
LORD  JUSTICE  HICKINBOTTOM

MR  JUSTICE  GREEN

and

THE  RECORDER  OF  LEEDS
(His Honour Judge Collier QC)
(Sitting as a Judge of the Court of Appeal Criminal Division)

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R E G I N A
 
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STUART  THORNTON
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Miss C Fairley appeared on behalf of the Appellant

Mr C Dunn appeared on behalf of the Crown
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J U D G M E N T (Approved)
LORD JUSTICE HICKINBOTTOM:  I shall ask Mr Justice Green to give the judgment of the court.

MR JUSTICE GREEN:
A. Introduction
1.  The appellant appeals, with the leave of the single judge, against sentence imposed upon him following a trial in the Crown Court at Bradford.

2.  On 7th July 2017 the appellant was sentenced to a 22 year extended sentence, comprising a custodial term of 19 years and an extended licence period of three years. 

3.  In order to address this appeal it is necessary to explain how this total sentence came to be calculated.  There were eleven counts on the indictment relating to sexual abuse of children at a residential home in the 1970s.  Counts 1, 3, 4 , 6, 7 and 9 charged indecent assault on a male, contrary to section 15(1) of the Sexual Offences Act 1956; count 2 charged an offence of buggery, contrary to section 12(1) of the Sexual Offences Act 1956; counts 5 and 8 charged gross indecency with a child, contrary to section 1(1) of the Indecency with Children Act 1960; and counts 10 and 11 charged indecent assault, contrary to section 14(1) of the Sexual Offences Act 1956.  On count 2 (buggery), the appellant was sentenced to an extended sentence of sixteen years, comprising a custodial term of thirteen years and an extended licence period of three years. On counts 1, 3, 4, 6 and 7, he was sentenced on each to terms of four years' imprisonment all concurrent. On count 9, he was sentenced to six years' imprisonment also concurrent. On counts 5 and 8, he was sentenced on each to concurrent terms of two years' imprisonment; and on counts 10 and 11, he was sentenced on each to concurrent terms of one year's imprisonment.  Since all the sentences, save that in relation to count 2, were stated to run concurrently with each other, the total sentence for all these counts was six years' imprisonment.  However, these concurrent sentences were ordered to run consecutively to the sentence on count 2.  Combining the concurrent sentences with the sentence on count 2 led to the total of 22 years, comprising the 19 year custodial term and the 3 year extension period. 

4.  The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences.  Where a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of the offence.  This prohibition applies unless waived or lifted in accordance with section 3 of the Act.  In order to preserve anonymity, we will refer to the victims by their initials.

B. The facts
5.  We turn to the facts.  The facts may be summarised as follows.  The offences occurred whilst the appellant was working as a carer at Burnside House, a children's home in Skipton, between 1971 and 1978.

6.  The complainant "MB" was sexually abused by the appellant over the course of two years from the age of 5.  The appellant would go into MB's dormitory at night and abuse him by putting his fingers into his anus (count 1).  This progressed to penetration of MB's anus with the appellant's penis (count 2).  This was on a frequent, at least weekly, basis when the appellant was on duty.  The appellant would put MB on his front in his bed and put his arm across the back of MB's head in order to prevent MB's crying from being heard.  His face would be squashed into the pillow.  The appellant would then force MB's legs apart and penetrate his anus with his penis.  

7.  The complainant "TS" was indecently assaulted by the appellant on at least one occasion when TS was 12 years of age.  On this occasion the appellant rubbed TS's penis with a flannel whilst he was in the bath. 

8.  The complainant "CP" was sexually abused between 1972 and 1975, which represented the totality of his residence at Burnside House.  CP was then aged between 8 and 11 years old.  The abuse involved the appellant masturbating CP when he was in the bath (count 4) and at other locations (count 5).  On a trip to Blackpool the appellant shared a room with CP.  He woke up during the night to find the appellant sucking his penis (count 6).  On the same trip the appellant masturbated CP (count 7) and inserted his penis into CP's mouth (count 8).  On one occasion whilst at Burnside House, the appellant inserted his finger into CP's anus (count 9).

9.  The complainant "HS" was assaulted by the appellant between 1971 and 1977, when she was aged between 13 and 16.  On at least one occasion the appellant touched her breasts over her clothing (count 10), and on at least one occasion he rubbed his groin against her (count 11).  

10.  Victim Personal Statements were before the court from CP, HS and MB.  These indicated that the complainants suffered significant psychological harm of an enduring nature as a result of this abuse.  

C. The sentencing remarks
11.  In passing sentence, the judge recorded that the appellant was 65 years of age and had no previous convictions.  The offences had been committed when the appellant was in his early twenties.  A substantial prison sentence was inevitable.  The judge confirmed the interim Sexual Harm Prevention Order and directed that it should last until further order.  This restrained the appellant from regulated activity with children.  He would be subject to the notification requirements of the Sexual Offences Act for the remainder of his life.  

12.  In his sentencing remarks the judge recorded that between 1971 and 1976 the appellant was employed as a carer at Burnside children's home.  The judge did not have sufficient information before him to enable him to conclude with certainty that the appellant deliberately sought that employment in order to facilitate the commission of these offences against children.  However, the judge did find that the appellant took advantage of his employment in order to commit serious sexual offences on a regular basis against children who were in his care and defenceless against him.  The judge stated:

"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.  

13.  As already explained, the judge imposed the principal sentence in relation to count 2, and ordered all of the other sentences to run concurrently with each other but consecutively to that for count 2.  In relation to count 2, the judge stated as follows:

"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."

14.  In terms of mitigation, the judge gave the appellant as much credit as he felt he reasonably could in view of the lack of previous convictions and evidence put before the court of prior good character.  The judge also recorded that the appellant now suffered from a physical disability.  He said:

"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."

15.  The judge then considered the question of dangerousness.  He said as follows:

"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
16.  In her carefully crafted and helpful grounds of appeal advanced on behalf of the appellant, Miss Chloe Fairley has identified three narrow issues for consideration.  These may be summarised as follows:

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.  

E. Dangerousness
17.  It is relevant for us to consider the question of dangerousness first.  As already set out, the judge made a determination that, despite the passage of time, the appellant was a dangerous offender.  He referred to a number of factors as justifying this conclusion.  These were: the significant risk of serious psychological harm to the complainants; the number of offences committed; the period of time over which the offences were committed; the indiscriminate nature of the offences; the attempt to contact one of the complainants in the years following the offending; and the total lack of remorse.

18.  Miss Fairley contends that the judge erred in his assessment of dangerousness.  In essence, she argues that the judge failed to make a proper prospective analysis; the factors that he identified related to conduct which occurred approximately 40 years ago; in the intervening period there was no evidence that the appellant had committed further offences; and there was some evidence of positive good character.  Moreover, in that lengthy intervening period, the appellant had developed serious medical conditions which are highly significant in terms of assessing the risk posed by the appellant by the commission of further specified offences.  

19.  In R v Lang [2005] EWCA Crim 2864, the Court of Appeal addressed the meaning of "dangerousness" for the purpose of section 226A of the 2003 Act.  The concept of "significant risk", which is a key component of dangerousness, meant more than a possibility; the risk had to be "noteworthy, of a considerable amount of importance".  In that case the court also highlighted the importance of the court obtaining a pre-sentence report and a psychiatric report, if relevant.  It is, however, acknowledged that such reports are not binding upon the court: see, for example, R v Pluck [2007] 1 Cr App R(S) 43.

20.  Miss Fairley argues that no such reports directed to the appellant's dangerousness were available to the court when it came to sentencing.  The judge invited submissions on the issue of dangerousness only at the sentencing hearing.  However, he gave no warning to counsel that he was considering a finding of dangerousness and no direction had been made for the obtaining of either a pre-sentence report or a psychiatric report.  Miss Fairley argues that in the particular circumstances of the case, both a pre-sentence and a psychiatric report should have been considered essential.  This flowed from the clear and undisputed facts of the case.  The appellant was now 65 years old.  The available medical evidence indicated that he had suffered from type 1 diabetes since 1956.  He had become registered blind and had used a guide dog from 2003 – some 25 years or more after the offending in question.  Evidence to this effect had been obtained from his general practitioner and was set out in a letter dated 14th June 2017.  The appellant had also suffered from a non-ST segment myocardial infarction in 2012 and had an angioplasty.  

21.  Given that the assessment of dangerousness compelled him to consider future risk and opportunity, the judge, it is submitted, failed to address himself to relevant facts; and insofar as he did address facts, he did so inadequately.  Miss Fairley emphasised three overarching matters:

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.

22.  In response, Mr Dunn, who appears for the Crown, argues that the judge correctly found that the appellant was dangerous.  The appellant had been vocal at all times during the proceedings that the complainants were liars and should be investigated.  Accordingly, it was unlikely that any pre-sentence of psychiatric report would in any way be positive to the appellant when it came to the assessment of dangerousness.

23.  In addition, the Crown contend that the considerations identified by the judge sufficed to entitle him to conclude that the appellant was dangerous.  These were: the number of offences committed; the period of time over which they were committed; their indiscriminate nature; the attempts to contact one of the complainants; and the appellant's lack of remorse.  These factors are said to demonstrate "the serious harm in the instant case".  

24.  It is also contended that during his evidence in the course of the trial, the appellant accepted that he had visited schools with his guide dogs, which the Crown interpreted as the appellant using his dogs as a prop to allow him into an area where he would have access to children.  It is said that this demonstrated both opportunity and continuing inclination.

25.  Finally, it is argued that it was significant that the appellant had made no complaint about the imposition of the Sexual Harm Prevention Order, which required the judge to assess future risk and to impose such an order where the court was satisfied that the offender presented a risk of sexual harm to the public and that an order was necessary to prevent such a risk.

26.  We turn to our conclusions.  We start by commending the judge for his careful and detailed sentencing remarks.  Nonetheless, we see considerable force in the submissions made by Miss Fairley.  First, the judge's analysis focuses predominantly upon the characteristics of the offending some 40 years ago.  We accept, of course, that the nature of the offending in issue can in and of itself be a powerful indicator as to the risk presented by an individual of the commission of future offences.  But that risk will by its nature diminish as time progresses and during which period the offender does not commit further offences.  In this case the period between offending and sentence was approximately 40 years, and there is no evidence of repeat offending.  There is some evidence of positive good character in the interim.  With respect to the judge, this consideration does not feature adequately in his sentencing remarks.

27.  Second, while a pre-sentence or psychiatric report will not be needed in every case, there may be circumstances where one is required.  One consideration which a court will need to take into account is where past offending is not – or at least might not be – a strong indicator as to the present risk of future offending.  The passage of time elapsing between the offending and the assessment and the conduct of the offender during that period might well be a relevant consideration.  It seems to us that in the present case reports should have been obtained.  We do not consider that the speculative conclusion advanced by the Crown, that any such reports would necessarily be adverse to the appellant, is necessarily correct.  But even if this point was even arguably correct, it did not on the facts of this case obviate the need for a more detailed present assessment of the appellant's position.

28.  Third, there is no dispute that the appellant is now blind.  There is also no dispute that he was 65 years of age at the date of sentence.  There is no dispute that he was, on any view, liable to be sentenced to a lengthy period of custody.  The present risk of the commission of future specified offences, therefore, needed to take into account the position of a blind man who, on release, would be in his late seventies or eighties and who suffered from congenital ill-health.  On release the appellant would also be subject to supervision and the continuing effects of a Sexual Harm Prevention Order.  There is, with respect to the judge, no detailed consideration of these matters in his sentencing remarks.

F. Section 236A and schedule 18ACJA 2003
29.  We, therefore, conclude that the finding of dangerousness was not a proper finding open to the judge – at least not without consideration of additional reports and a more detailed analysis.

30.  We must, therefore, consider what alternative sentence should have been imposed upon the appellant.  This brings us to the second and third of Miss Fairley's grounds.  In these circumstances the provisions of section 236A and Schedule 18A to the Criminal Justice Act 2003 are engaged.  These provisions concern "offenders of particular concern".  Pursuant to section 236A, where the court imposes a sentence of imprisonment for an offence which is set out in Schedule 18A, then the term of the sentence must (there is a duty; the provision is not optional) be equal to the aggregate of (a) the appropriate custodial term; and (b) a further period of one year for which the offender is to be subject to a licence.  

31.  In R v Fruen [2016] EWCA Crim 561, the Court of Appeal considered the circumstances in which section 236A could be passed and held that, in principle, consecutive sentences could entail consecutive terms of licence.  It also held that if sentences were ordered to run concurrently, then only one licence period of twelve months could be added: see paragraphs [19] to [24].  The court held that the total sentence under section 236A was indivisible, just as it was in relation to an extended sentence, and that it was not therefore possible to break up the custodial term and the licence period and, for instance, make one concurrent and the other consecutive.

32.  Miss Fairley conceded that in the appellant's case, counts 2, 8 and 9 amounted to offences falling within the scope of Schedule 18A by virtue of the "abolished offences provision".  This is because they would be offences contrary to sections 5 or 6 of the Sexual Offences Act 2003.  She accepted that if the judge had not found the appellant to be dangerous, he would have been required, pursuant to section 236A, to have found him to be an offender of particular concern and to pass upon him a sentence of imprisonment for those offences equal to the aggregate of the appropriate custodial term and a further period of one year, for which the appellant would be subject to licence.

33.  In relation to these offences, this Court must therefore impose a sentence under section 236A.  In restructuring the sentence, we must bear in mind, as was emphasised in Fruen (ibid), that we cannot make any new sentence longer than it is at present: see section 11(3) of the Criminal Appeal Act 1968.

34.  The judgment in Fruen has very recently been confirmed by the Court of Appeal in R v Thompson [2018] EWCA Crim 639 at [16] to [23].  In that case the court gave guidance as to how a restructuring of a sentence to meet the requirements of section 236A should be reconciled with section 11(3).  At [23] the court made clear that a rounded assessment "taking the case as a whole" was required.  The court stated as follows:

"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."

35.  In the present circumstances, Miss Fairley submits that, given that sentence in respect of count 2 was ordered to run consecutively to all other counts, which were in turn ordered to run concurrently with each other, without interfering with the custodial terms, the further period for which the appellant would be subject to licence would be two years.  This would not infringe section 11(3) of the Criminal Appeal Act 1968.   She observes that, in accordance with section 244A the sentence structure would incorporate the provision that the appellant would not be released until the Parole Board had considered the matter and was satisfied that it was not necessary for the protection of the public that the appellant be detained in custody.  The appellant would be able to apply for parole halfway through the custodial term, as opposed to the two-thirds point, which would apply in the case of an extended sentence.  Miss Fairley submits that the practical effect upon the sentence imposed would be relatively limited.

36.  In our view, Miss Fairley is correct.  The judge imposed two sets of sentences to run consecutively to each other.  Count 2 is a Schedule 18A offence, so that we are required to impose a custodial term and a twelve month licence period for that offence.  Counts 8 and 9 are also Schedule 18A offences.  Again, we must impose custodial terms and a twelve month licence period on each, but these are concurrent with each other, so that there is, ultimately, only one licence period of twelve months to be added to the sentence.  Since count 2 is consecutive to the other counts, this means, in the light of Fruen, that there can be two sets of consecutive twelve month licence periods.

37.  We are clear that this restructuring does not offend against the principle in section 11(3) of the Criminal Appeal Act 1968 in the light of Thompson (ibid).

38.  We therefore allow the appeal.  We quash the extended sentence imposed upon the appellant.  In its place we impose an extended sentence of 21 years, comprising a sentence of 19 years' imprisonment and a two year licence period.  The appellant will be eligible, in principle, for parole halfway through the custodial period of 19 years.

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