Alam, R. v

LORD JUSTICE MOORE-BICK: In the autumn of 2005 the appellants were tried together in the Crown Court at Bolton before HHJ Morris and a jury on an indictment containing a large number of counts and on 19^th September 2005 they were convicted of the various offences as described below.

The first appellant in this appeal, Maksood Alam, is a regular user of Class A drugs. Although he is only 22 years of age he has a significant criminal record. The second appellant, Miss Watson, is aged 30 and is also a user of Class A drugs. At the time with which we are concerned she regularly worked as a prostitute in the Bolton area in order to fund her addiction and was often to be found in the company of Alam. Watson owned a Ford Escort motor car which she often used to drive Alam around.

The events giving rise to the offences with which these appeals are concerned occurred in August 2004. On 4 August 2004, Alam and Watson went to the home of a Miss Bates. They claimed that she owed Alam some money and demanded it from her. Alam produced a knife and Watson a hammer. Watson struck Miss Bates on the cheek with her hand and threatened further violence if the money was not paid. These events gave rise to a charge of blackmail (count 1 in the indictment).

In the early hours of the morning on 7th August 2004 a Mr Patel travelled to the red light district of Bolton where he agreed to conduct business with Watson. He took her to a dark side street where he was confronted by a man brandishing a spanner. The man stole about £30 to £40 from him before passing the spanner to Watson. She struck Mr Patel with it and then snatched his gold chain from his neck. These events gave rise to a charge of robbery (count 11 in the indictment).

The appellants’ next victim was a drug addict who also worked as a prostitute. She had known Watson for some time and through her also knew Alam. At about 1 am on 8 August 2004 she was in her flat when the appellants arrived. A baseball bat was lying on the floor. Watson picked it up and on Alam's instructions struck her with it. She then produced a knife and slashed at the victim causing a superficial cut to her arm. Alam demanded money from her and ordered her to find a client to obtain it. The victim was then seized and taken across the road to Watson's car. She was forced into the car and the three of them drove around looking for a man with whom the victim could do business.

They began by going to an address where the victim knew one of her regular clients lived, but he was not there so they took her to a car park. In the car park Alam threatened the victim with a baseball bat. He then forced her to perform oral sex on him in the back of the car, partly, it seems, to humiliate her in front of Watson. Watson, who witnessed the rape while sitting in the driving seat, was so distressed by what she had seen that she left the car in tears. Later Alam ordered the victim to find a client and both she and Watson conducted business with a man before Watson snatched the money she had taken. These events gave rise to charges of false imprisonment (count 7), controlling a prostitute for gain (count 8), blackmail (count 9)and rape (count 10).

On 25 August 2004, the appellants were arrested. When interviewed Alam admitted attending the second victim’s flat in order to recover a debt from her. He stated that Watson had picked up the baseball bat and had struck her with it. He said it was Watson's suggestion that they should make the victim work as a prostitute to obtain the money they had demanded. He claimed that the victim had got into the car voluntarily and had agreed to perform oral sex on him in lieu of payment.

When she was interviewed Watson admitted that she knew the first of their victims, Miss Bates, but denied blackmailing her. She also admitted that she was the prostitute who had been described by Mr Patel and said that the man who had assaulted him was Alam. She denied taking any part in the robbery. In relation to the attack on the second victim she said that Alam had made her hit her with the baseball bat had forced her to drive the victim around in the car looking for a client. She denied using a knife. She admitted that the victim had been forced into the car and had been forced to perform oral sex on Alam. She agreed that she and the victim had conducted business with a client, but denied taking any money from her.

On 5 December 2005 the appellants were sentenced as follows. In the case of Alam: in respect of the offence of false imprisonment (count 7) to an extended sentence of thirteen years' imprisonment comprising a custodial term of three years and an extension period of ten years; in relation to the offence of controlling a prostitute for gain (count 8) to an extended sentence of eleven years’ imprisonment comprising a custodial term of one years' imprisonment and an extension period of ten years to be served consecutively; in respect of the offence of blackmail (count 9) to an extended sentence of eleven years’ imprisonment comprising a custodial term of one year's imprisonment and an extension period of ten years, also to be served consecutively; in respect of the offence of rape (count 10) to an extended sentence of fifteen years’ imprisonment comprising a custodial term of five years' imprisonment and an extension period of ten years, also consecutive. The judge’s intention, therefore, appears to have been to impose an extended sentence of twenty years’ imprisonment comprising a custodial term of ten years with an extended period of licence of ten years.

The matter did not end there, however, because all these offences had been committed before the expiry of a previous sentence of imprisonment imposed on Alam in the Crown Court at Bolton on 23 July 2001. On that occasion he was sentenced to a total of four years, nine months' detention in a Young Offender Institution in respect of four offences of robbery and a breach of a detention and training order. He was released on licence on 7 May 2004, but the sentence did not expire until 6 December 2005.

In those circumstances the judge also had to consider whether he should order Alam to return to custody to serve all or part of the outstanding period of that sentence. In the event, the judge ordered that he should serve the whole of the remaining 491 days of that sentence before beginning the sentence for the offences for which he was then before the court.

Watson received the following sentences: in respect of the first offence of blackmail (count 1) an extended sentence of two years, nine months’ imprisonment comprising a custodial term of nine months and an extension period of two years; in respect of the offence of robbery (count 11) an extended sentence of four years, six months’ imprisonment comprising a custodial term of two years, six months' imprisonment and an extension period of two years, to be served consecutively; in respect of the offence of false imprisonment (count 7) an extended sentence of four years’ imprisonment comprising a custodial term of two years and an extension period of two years, also to be served consecutively; in respect of the offence of controlling a prostitute for gain (count 8) an extended sentence of two years, nine months’ imprisonment comprising a custodial term of nine months' imprisonment and an extension period of two years, also to be served consecutively. The judge’s intention in her case, therefore, appears to have been to impose an extended sentence of eight years’ imprisonment comprising a custodial term of six years with an extended period of licence of two years.

When passing sentence the judge had the benefit of psychiatric and other reports on both appellants. These indicated that neither suffered from any mental illness, but that Alam has an anti-social personality disorder. He has little respect for other people's property and no empathy for the feelings of others generally. The judge reached the conclusion that Alam represented a significant risk to the public of serious injury as a result of the commission of further offences. Both appellants now appeal against sentence by leave of the single judge.

Their grounds of appeal are as follows: in Alam's case that a sentence of three years' imprisonment in respect of the offence of false imprisonment was unduly severe; that the sentences imposed on counts 7, 8, 9 and 10 should not have made consecutive; that a sentence of ten years’ custody together with an order to serve the outstanding 491 days of his previous sentence was manifestly excessive; and that an extended licence period of ten years was wrong in principle and manifestly excessive.

Watson's grounds of appeal are that the sentence was manifestly excessive having regard to the fact that it was her first custodial sentence and that she acted under the influence of Alam.

These were clearly serious offences which called for a substantial custodial sentence in each case, particularly, of course, in the case of Alam. He is only 22 years of age, but he already has a bad record of offending. He has been convicted on 20 separate occasions of a total of 65 offences, mainly offences of burglary and theft. In 1998 and again in 2001 he was convicted of offences of robbery for which he was sentenced to detention in a Young Offender Institution. These offences were committed within three months of his release. It is right to say, however, that he has no previous convictions for sexual offences.

False imprisonment is an offence that varies widely in nature. In this case the victim was abducted by force and threats against her will. She was kept in a car while it was driven to various places in and around Bolton with a view to making her engage in prostitution. She was subjected to threats of violence and must have been very frightened. Leaving aside, for this purpose, the offence of rape for which the judge imposed a separate sentence, we do not consider that a sentence of three years' imprisonment can be described as manifestly excessive for an offence of this kind following a trial, particularly having regard to the appellant's record of previous offending.

There is more force, however, in the submission that the judge should not have ordered that the sentences imposed in respect of the offences covered by counts 7 to 10 of the indictment, all of which were committed against the same person as part of a single course of criminal activity, should be served consecutively. The circumstances in which the rape was committed undoubtedly amounted to a serious aggravating feature of that offence which would have justified a more severe sentence than that passed by the judge, had he decided to treat them as part and parcel of the same course of offending. However, in our view (subject to what we shall say in a moment) it was not wrong in principle to mark those offences by imposing separate sentences in respect of each of them and ordering them to be served consecutively.

The offences of blackmail and controlling a prostitute were, however, integral parts of the same course of activity and although it was right to impose separate sentences in respect of them, those sentences should, in our view, have been made concurrent with those imposed on counts 7 and 10. The effect of doing that would be to reduce the custodial part of the sentence from ten to eight years.

There is no appeal against the judge’s decision to pass an extended sentence, but it is submitted that an extension period of ten years, which is the maximum available in respect of sexual offences, was too long in this case. It must also be borne in mind that the maximum period of extension in respect of a violent offence is five years.

In our view there is force in that submission. Although Alam did commit an offence of rape, the real hallmark of these offences is violence unrelated to sexual activity. In our view an extended licence period of five years would, in principle, be appropriate.

However, there are two further matters to be taken into account in relation to the extended sentences passed in this case. First, these offences were all committed in August 2004. Section 85 of the Powers of Criminal Courts (Sentencing) Act 2000 under which these sentences were passed provided that where the offence in question is a violent offence the court may not pass an extended sentence, the custodial term of which is less than four years. That limitation does not apply in the case of sexual offences, but the offence of controlling a prostitute is not a sexual offence for these purposes.

None of the sentences imposed on Alam involved a custodial term of four or more years except that imposed in respect of the rape. It follows that an extended sentence was only available to the judge in relation to that offence.

The second matter to take into consideration is this: in the case of Pepper [2005] EWCA Crim 1181 this court repeated what it had previously said in Nelson [2001] EWCA Crim 2264, [2002] 1 Cr App R (S) 134, namely, that it is not generally desirable as a matter of good practice to impose an extended sentence consecutively to other sentences.

In these circumstances we propose to take the following course: first, we shall quash the extended sentences passed under counts 7, 8 and 9 and substitute for them sentences of three years' imprisonment, one years' imprisonment and one years' imprisonment respectively; second, we shall quash the extended sentence of fifteen years imposed in respect of the rape and substitute for it an extended sentence of thirteen years’ imprisonment comprising a custodial term of eight years with an extension period of five years; third, we shall then direct that the sentences imposed on counts 7, 8 and 9 be served concurrently with each other and with the sentence imposed on count 10. The result will be an extended sentence of 13 years’ imprisonment comprising a custodial period of eight years with an extension period of five years. All time spent in custody on remand will of course count against it.

We have considered whether we should interfere with the judge's order returning the appellant to custody to serve the balance of his previous sentence. In our view, however, that order was properly made and we do not think it appropriate to do so. It follows that the sentence we have just indicated will be served after the appellant has completed the 491 days remaining of his previous sentence.

Watson has previous convictions, mainly arising out of prostitution, but despite the absence of a guilty plea there are a number of matters to be taken into account in mitigation. This is her first custodial sentence and, having observed her and Alam in the course of the trial, the judge was satisfied that she had been acting under his influence in committing these offences. In those circumstances it is much to her credit that she was brave enough to give evidence against him on the charge of rape.

Since the offences covered by counts 1 and 11 in the indictment were committed quite separately from each other and from those covered by counts 7 and 8, it was, in our view, right in principle for the judge to pass consecutive sentences in respect of them, but we think that the custodial element of six years was rather too long overall. Taking account of the various matters to which we have referred we think that a sentence in the region of four years’ imprisonment would be sufficient. We propose, therefore, to quash the sentence of 30 months' imprisonment imposed for the offence of robbery (count 11) and to substitute for it a sentence of 18 months’ imprisonment. We also propose to order that the sentence imposed on count 8 (controlling prostitution) be served concurrently with the sentence imposed on count 7 (false imprisonment). That will result in the total length of the sentence being reduced to 51 months' imprisonment. For the reasons we have given when considering the appeal of Alam we are satisfied that it was not open to the judge to pass an extended sentence on this appellant.

Accordingly, the sentences imposed by the judge will be quashed and in her case there will be substituted the following: in respect of the offence of blackmail (count 1) a sentence of nine months' imprisonment, in respect of the offence of robbery (count 11) 18 months' imprisonment consecutive, in respect of the offence of false imprisonment (count 7) two years' imprisonment consecutive, and in respect of the offence of controlling a prostitute for gain (count 8) nine months' imprisonment concurrent making four years and three months’ imprisonment in all.

To that extent each of these appeals is allowed.