John (Aka John Karl) Spencer (Aka Pike), R v

THE VICE PRESIDENT: On 21st September 2004 at Cambridge Crown Court, this applicant pleaded guilty, first, to count 2 in the indictment, of failing without reasonable excuse to notify the use of a new name, contrary to section 91(1) of the Sexual Offences Act 2003, and secondly, to count 4 on the indictment, of perverting the course of justice. He was sentenced in relation to those two counts to respectively 18 and 9 months' imprisonment consecutively, that is to say the total sentence was one of 2 years and 3 months. The sentence was imposed by His Honour Judge Howarth.

His application for leave to appeal against sentence has been referred directly to the Full Court by the Registrar, and we grant leave.

The facts were that, on the evening of 16th May 2004, the appellant was arrested in Worthing for being drunk and disorderly. He gave the name of 'Gibson' and a false date of birth. He was kept in the cells overnight and spoken to the following morning. He still maintained that his name was Gibson. As there was no trace of a Gibson on the police computer, he was offered a caution, after he was fingerprinted, photographed and his DNA taken. Subsequently, however, enquiries showed that the name was false and his true name was 'Pike'. As Pike, he was subject to the Sex Offenders Act, which included the need to inform the police, within 3 days, of any change of name in the prescribed manner, by attending at a designated police station and completing the correct form. That not having been done, count 2 was established.

Two months later, on 7th July, the appellant was seen, very drunk, in Cambridge. He had two bottles of brandy by his side, which had been stolen earlier that day. He was arrested and taken to the police station and this time gave the name 'John Spencer' and a false date of birth. By the following morning the police knew what his name correct was, though he was still maintaining that he was called Spencer and he declined to be interviewed. That gave rise to the charge of perverting the course of justice, in count 4.

The learned judge, in passing sentence, referred to the appellant's extremely long record for offences of drunkenness and indecency, to which, in a moment, we shall return and the judge rightly said that the purpose of the Sex Offenders Register was a simple and clear one. But the appellant seemed to be in the habit of using an alias to get himself out of trouble. That was precisely what the Act was intended to prevent. The judge pointed out that, even in the period since March 2000, he had appeared on eight occasions for failing to notify a change of name or address, and it was apparent therefore that the message was not getting through to him that he must not so fail. The judge concluded, rightly, that consecutive sentences were called for.

On the appellant's record, he having been born in March 1959, there are more than 200 offences, principally for being drunk and disorderly, minor dishonesty and violence, and indecent assault. The longest sentence he has previously served was for indecent assault, when in 1998 he was sentenced to three-and-a-half years, reduced on appeal to this Court to two-and-a-half years' imprisonment. In 2002 he was sentenced to 18 months for failing to notify his name and address to the police.

On behalf of the appellant Mr O'Donnell submits that the learned judge failed to have appropriate regard to the pleas of guilty entered in relation to both these offences. Mr O'Donnell suggests that nobody had been hurt or had lost anything by virtue of the appellant's conduct. On both occasions the false name was given in drink and not for any sinister purpose. The offences were unsophisticated. They did not embrace anything so elaborate as the creation of a new identity. Mr O'Donnell accepted that a custodial sentence was inevitable but he submitted that the total sentence imposed by the learned judge was too great.

As it seems to us, the learned judge, as we have indicated, was correct to impose consecutive sentences for these two quite separate offences. He was also, in our judgment, having regard to the appellant's record, particularly in relation to this type of offending, correct to pass the sentence of 18 months which he passed in relation to count 2. But, as it seems to us, a further 9 months in relation to count 4 was excessive.

Having regard to the principle of totality, that 9 months sentence we quash, and we substitute for it a sentence of 3 months' imprisonment to run consecutively to the 18 months on count 2. The total sentence, therefore, becomes 21 months' imprisonment in place of the 27 months imposed by the learned judge. To that extent the appeal is allowed.