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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 >> Salt, R. v [2018] EWCA Crim 960 (18 April 2018) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2018/960.html Cite as: [2018] EWCA Crim 960

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		18 April 2018

1. MR JUSTICE EDIS: Jonathan Richard Salt is 37 years old. On 12 July 2017, at Lincoln Crown Court, he pleaded guilty to the two offences contained on the first of two indictments he then faced, which we will call the banking indictment. On 25 October 2017, on the day of trial, he changed his plea to guilty to the two offences which were contained on the second indictment he faced, which we will call the children indictment. A third indictment was not pursued and therefore the case came before the court for sentencing on 16 November 2017.
2. In respect of the four offences to which guilty pleas had been entered, sentences of 3 years' imprisonment concurrently were imposed, making a total sentence of 3 years' imprisonment.
3. He now appeals against those sentences with leave of the single judge.
4. Each of these two indictments charged a pair of offences of failure to comply with notification requirements, contrary to section 91(1)(a) and (2) of the Sexual Offences Act 2003. He had been convicted on 22 October 2007 of possessing indecent photographs of children and was sentenced on 7 December 2007 to a 3-year community order.
5. A sexual offences prevention order for an indefinite period was imposed, which extends automatically the time during which he is subject to the notification requirements under the Sexual Offences Act 2003.
6. The requirements of both the notification system and of what became the sexual harm prevention order were explained to him in clear terms. Although he may not have accepted that at all stages of these proceedings, his history since the making of those orders demonstrates that by all the relevant times in this case he must have understood them only too well.
7. The notification requirements included a notification requirement that he should notify the relevant authorities of any address at which he stayed for more than 12 hours at a time and that he should notify the relevant authorities of all credit card or debit card and all bank account details held by him. That requirement in relation to banking details appears to be designed to enable the relevant authorities to understand the financial situation of an offender and what he is doing with his money. It may also have to do with other requirements which are designed to make it more difficult for offenders subject to this regime to assume false identities.
8. The offences on the banking indictment came to light as a result of a visit to the appellant's home on 10 May 2017, when it was discovered that he had breached the requirements which relate to his financial position. He had opened a NatWest savings account and an ISA account without notifying the relevant authorities. The prosecution alleged that the ISA account was opened in February 2016, and that was not challenged at the sentencing hearing before the judge, although it is clear from what we have been told by Ms Pitman, who appears for the appellant before us (as she did before the judge), that the solicitors who had been instructed by the appellant had made inquiries into the account. It therefore appears to us to be safe to deduce from the lack of challenge that the account was indeed opened in February 2016.
9. The indictment period in relation to the banking indictment alleged offending in respect of count 1 between 1 February 2016 and 10 May 2017. In fact, the offence must have been committed on two distinct days during that time. We do not know when the savings account was opened but the February date for the ISA is important because it meant that the appellant was in breach of the terms of two suspended sentence orders by committing a further offence during their operational periods.
10. The second offence on the banking indictment related to the use of an alias when dealing with BT, in that he had assumed a false name - his mother's maiden name - and had failed to declare that name to the relevant authorities.
11. That visit which revealed these failures to notify financial matters no doubt occurred because a few weeks earlier further much more serious breaches came to light. These appeared on the children indictment. That related to two visits which the appellant made to a house in Wakefield. He lived in Skegness. It transpired that he had formed a relationship with a young man who lived in Wakefield with his father and six siblings. The young man was 20 years old and had four brothers aged 17, 9, 6 and 2 and two sisters aged 14 and 4.
12. On two occasions in April 2017 the appellant visited the family home and stayed there for over 12 hours. He was required to notify the authorities of his temporary occupation of that address and given the presence of children there it was plainly of considerable importance that he should do so. He did not.
13. The offences came to light when the father of this family looked up the appellant on the internet out of curiosity and discovered the conviction. He called the police and the appellant was arrested on 26 April 2017. He said in interview that he had been to that address but had not stayed overnight. This was proved to be false by use of ANPR cameras showing the journeys he made in his car from Skegness to Wakefield and the times when he made them. There was also mobile phone data to the same effect.
14. On 1 May, the appellant decided to send a message on Snapchat to the father of the family calling his son and his family "grassers" and referred to a man called Scott who he said fought with guns who would come for them if he was sent to prison. He agreed in interview that he had sent that message and that it was threatening, although he said it was not intimidating. That had resulted in the third indictment which we have already mentioned. The prosecution took a decision not to proceed with that and to submit to an order that it should lie on the file in the usual terms but on the basis that it was part and parcel of the offending. It was therefore a seriously aggravating feature of the children indictment and demonstrates the appellant's attitude to his responsibilities under the notification requirements.
15. As we have said, the sentence totalled 3 years' imprisonment. No order was made in relation to either of the two suspended sentences. The first of those had been imposed for an offence of perverting the course of justice and the second for an offence of failure to comply with the notification requirements, contrary to the same section under which he was indicted in respect of both indictments for which he was then sentenced. Further orders were imposed on which nothing now turns.
16. It is important, in our judgment, to recite in brief terms the appellant's criminal history following his conviction in 2007. He breached the sexual harm prevention order in 2008 and received a sentence of 6 months' imprisonment. He breached the notification requirements in 2010 on three occasions and received a community order. He breached that community order on two separate occasions in 2011. In 2012, he breached the sexual harm prevention order again on two occasions and received a sentence of 20 months' imprisonment. On 1 October 2015, he received a 4-month suspended sentence for perverting the course of justice suspended for 18 months and on 8 January he received the second of the suspended sentences to which we have already referred, namely a term of 2 months suspended for 12 months.
17. The judge observed that the first of the offences on the banking indictment was committed during the operational period of the second of those suspended sentence orders but does not appear to have appreciated that it was also in breach of the first of them.
18. The pre-sentence report illustrates an unhappy attitude by which the appellant continues to manipulate the authorities, demonstrates no remorse, minimises his guilt, complains about the orders to which he is subject and continues to reoffend. It also contains some details of the earlier breaches of the order, some of which related to financial and other similar matters, but two did involve some contact with children. The report suggested if an alternative to custody was required that a 3-year community order should be imposed with a sexual offenders' treatment programme and a rehabilitative activities requirement. That recommendation for the sex offenders' treatment programme was based on an assessment that he poses a risk of sexual offending which requires addressing.
19. The judge, when he came to pass sentence, recited these facts with the exception of the suspended sentences and said that he took the view that the appellant thought that court orders did not apply to him; that he had been dealt with in a number of ways, none of which made any difference; that an immediate custodial sentence was required and the recommendation in the pre-sentence report could not properly be followed. He said that he would take totality into account because otherwise the result would be disproportionate to the overall criminality. He then said that he would give maximum credit for the two offences to which he had pleaded guilty at, as he put it, the first available opportunity, namely the banking indictment. He then moved to say that after a trial the total sentence would have been three and a half years' imprisonment reduced to three years for his plea on each count. The judge observed that by far the most serious offences were those on the children indictment.

Decision

20. The judge's approach to the different offending demonstrated by the two different indictments is not entirely clear, with respect to him, from the sentencing remarks. It is clear that he regarded the offences on the children indictment as far more serious than those on the banking indictment. We agree with him about that. It is therefore unclear how the judge arrived at the same sentence in respect of both sets of offending.
21. That becomes even less clear when it appears from the judge's sentencing remarks that in respect of the less serious offences on the banking indictment he was intending to afford full credit, suggesting that after a trial sentences of four and a half years may have been appropriate for them.
22. A further complication of the offences on the banking indictment arises when the suspended sentences fall to be considered. It appears from Ms Pitman's recollection of the proceedings with which she has helpfully supplied us that after sentence was passed she questioned how the suspended sentence which the judge had considered had been dealt with. The judge had said nothing about it. The judge said that he had taken that into account in arriving at the overall sentence. We will return shortly to whether technically that was a proper approach.
23. Whether it was technically appropriate or not, it does imply that the operative sentence based on a starting point of three and a half years with a 15 per cent discount for the children offences was affected by the existence of the suspended sentence which the judge mentioned. But the breach of that suspended sentence only arose because of the first offence included on the first count of the banking indictment, namely the opening of the ISA.
24. It seems to us that that offence was very much at the lowest end of culpability when considering offences of failing to notify under the relevant statutory regime. That is because although technically the wording of the requirements is wide enough to catch the opening of an ISA, an ISA is simply not a very useful financial instrument in achieving any of the culpable purposes which this requirement is designed to curtail. Therefore, it appears to us that when considering the relevance of those suspended sentences, the facts of the offence which constituted a breach of their operational terms required careful evaluation. It is clear from what we have already said that the judge did not conduct any exercise of that kind at all.
25. We therefore consider that the submission attractively made by Ms Pitman on behalf of the appellant that the starting point in this sentencing exercise was too high has substantial force because we consider that it was inappropriately influenced by the sentences on the banking count and by the suspended sentences. Those were in reality of relatively limited significance for the reasons which we have attempted to explain. The real question here was what was the appropriate sentence for the serious offences which appeared on the children indictment.
26. We should deal, before turning to that question, with the technicalities in relation to the suspended sentences to which we have already referred. The judge did not deal with them at all except in the informal way which we have described. This was an error. Paragraph 8(2) of Schedule 12 to the Criminal Justice Act 2003 is prescriptive and requires the court to deal with the offender in these circumstances where a further offence is committed during the operational period of a suspended sentence order. There are five possible ways in which the offender may be dealt with, but the court must impose the suspended sentence either in full or after substitution of a lesser term unless the court is of the opinion that it would be unjust to do so in all the circumstances, in which case the court must state its reasons.
27. In the present case, it would have been, in our judgment, a proper course to take to find that it would be unjust to impose the suspended sentences because of the nature of the breach, which was only the opening of the ISA. If that is right, then their impact on the determination of the sentence on the children indictment should have been very limited. It is also true that a substantial period of time had elapsed since the imposition of these suspended sentences but it is also fair to observe that during that time the appellant had continued to commit criminal offences.
28. We consider that the appropriate course for us to take is to impose those two suspended sentences but to order them to run concurrently with the sentence on the two indictments which are principally the matters before this court. That we shall do. This does not involve dealing with the appellant more severely than he was dealt with below, indeed it gives effect to what the judge intended and said to Ms Pitman in answer to her question.
29. So the real question on this appeal is whether a starting point of three and a half years for the offences on the children indictment, aggravated as they were by all of the previous offending, including the offences on the banking indictment, was justified.
30. In our judgment, it was not. The maximum sentence for the relevant offence is 5 years. This was a very serious course of conduct by a man who has demonstrated a very bad record of non-compliance with the law, who is assessed as being a sufficient risk of sexual harm to require a sexual offences treatment programme. He is an habitual liar and minimises his guilt to such an extent that his true level of risk is hard to determine. He is precisely the kind of offender for whom the notification regime was designed and whose compliance with it is a matter of considerable importance to public safety. All of these are reasons which justify the imposition of a substantial term of imprisonment in a case where actually no harm has been caused.
31. Nevertheless, we consider that although a substantial term of imprisonment is required, the starting point of three and a half years was too long. We consider that giving appropriate reduced credit for the late pleas, sentences on the children indictment of 2½ years' imprisonment concurrently on each of those two counts would have sufficed and we therefore quash the sentences of 3 years which the judge imposed and substitute sentences of 2½ years.
32. We order, as we have said, that the suspended sentences will be imposed but will be imposed concurrently with that sentence, and in respect of the offences on the banking indictment we consider that appropriate sentences on giving credit for plea in respect of those also would have been 9 months' imprisonment concurrently on each other and concurrently with the sentence of 2½ years which we have imposed on the children indictment.
33. To that extent, this appeal is allowed.

Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof.