Reynolds & Ors, R. v

These eight cases have been listed together because they raise yet another facet of the difficulties sentencers face when seeking to apply the provisions of Chapter 5 Part 12 of the Criminal Justice Act 2003 (“the 2003 Act”) relating to dangerous offenders. The leitmotif is the problem presented to this court in the event that the sentencing judge is mistaken as to his powers under Chapter 5 of the 2003 Act, or otherwise misapplies its provisions. The most significant issue of principle with which we are concerned is the effect of section 11(3) of the Criminal Appeal Act 1968 (“the 1968 Act”) which sets out the powers of this court when dealing with appeals against sentence, and which restricts that power so that the court is precluded from making an order which will result in the appellant being dealt with more severely on appeal than he was in the Crown Court. They raise, in a different context, problems akin to those considered by this court in R –v- Norman et al [2006] EWCA Crim 1792 which concerned mistakes made by the sentencing court in crediting periods spent in custody and the appropriate mechanisms for correcting such mistakes. One of the appeals with which we are concerned, Reynolds, provides an opportunity to revisit the provisions of Section 155 of the Powers of Criminal Courts (Sentencing) Act 2000 (“the 2000 Act”), the so called “slip-rule”, which this court has recently considered in R –v- Gordon et al [2007] EWCA Crim 165.

The provisions of Chapter 5 of the 2003 Act have now being extensively reviewed and explained in R –v- Lang [2006] 2 Cr App R(S) 3 and R –v- Johnson [2006] EWCA Crim 2486.They provide a mandatory sentencing framework for all offenders convicted of a “specified” offence committed on or after the 4^th April 2005, where the court is “of the opinion” (sections 225 and 226 of the 2003 Act) or “considers” (sections 227 and 228 of the 2003 Act) that the defendant poses a significant risk to members of the public of serious harm occasioned by the commission by him of further “specified” offences (the criteria of dangerousness: see section 229 of the 2003 Act). “Specified” offences are violent offences or sexual offences specified in Schedule 15 to the 2003 Act. The substantial change to pre-existing sentencing regimes is that where the two conditions are met, namely the nature of the offence and the criteria of dangerousness, only two forms of sentence can be passed, either an indeterminate sentence, or an extended sentence.

For the purposes of determining which of those is appropriate, “specified” offences punishable in the case of a person aged 18 or over by imprisonment for life or imprisonment for a determinate period of 10 years or more, are “serious” offences. Where a person aged over 18 is convicted of a “serious” offence, and the criteria of dangerousness are met, the sentence must be an indeterminate sentence, either life imprisonment, or imprisonment for public protection (section 225 of the 2003 Act). If a person aged 18 or over is convicted of a “specified” offence other than a “serious” offence, and the criteria of dangerousness are met, then he must be sentenced to an extended sentence (section 227 of the 2003 Act). A person under 18 convicted of a “serious” offence who meets the criteria of dangerousness and would be liable to a sentence of detention for life under section 91 of the 2000 Act must be sentenced to detention for life otherwise the court has a choice between detention for public protection (section 226(3) of the 2003 Act) or an extended sentence (section 228 of the 2003 Act). If a person aged under 18 is convicted of a “specified” offence other than a “serious” offence, and the criteria of dangerousness are met the court must impose an extended sentence of detention (section 228 of the 2003 Act).

We have not thought it necessary to set out the statutory provisions in any further detail. The important point is that these provisions create a discrete code for the sentencing of what are described by the Chapter heading as “Dangerous Offenders”. Subject to the court’s assessment of whether or not the criteria of dangerousness are met, its provisions are mandatory. They replaced provisions in the 2000 Act relating to violent or sexual offenders which included longer than commensurate determinate custodial sentences, extended periods of supervision on licence, and the “automatic” life sentence for a second serious offence. As will be seen, one of the common mistakes exemplified by the present appeals and applications is the imposition of extended sentences, in particular in sexual offences, rather than an indeterminate sentence where the offence is a “serious” offence. As we have explained above, the court has no discretion in the case of a person over 18 if the offence is a serious offence. It has to be an indeterminate sentence. And the same applies to those under 18 if the offence is one which would render him liable to a sentence of detention for life. Otherwise, pursuant to section 226(3) the court’s discretion is limited to a choice between an indeterminate sentence and an extended sentence.

Before turning to the particular problems with which we have to deal in these cases, it seems to us that we should make some general comments about the difficulties facing sentencers in relation to these provisions. In doing so we are acutely conscious that we are merely reiterating what has been said before. Nonetheless it seems to us to be necessary to do so. Parliament, for good or ill, has imposed on the courts a sentencing regime with which the courts are required to comply where the offence is a “specified” offence committed on or after 4^th April 2005. That regime requires the court to carry out a careful step by step evaluation of the sentencing consequences of the type of offence, the age of the offender and the assessment of his dangerousness. What follows is a synopsis of the way in which that exercise should be carried out.

The problems to which we referred in paragraph 1 are that sentencers, not surprisingly given the complexity of the legislation, are making mistakes as to their obligations under Chapter 5. As we have said, a common mistake is the failure to appreciate that a “specified” offence is a “serious” offence. As we have said, that is particularly so in sexual offences. It may well be that this is, in part, because courts had become familiar with imposing extended sentences under the 2000 Act, particularly in sexual offences. And extended sentences are often recommended in pre-sentence reports in cases where the ultimate conviction may well be of a “serious” offence. The fact that so many mistakes are still being made means that we must reinforce what this court has said time and time again, and the Lord Chief Justice has recently underlined in R –v- Cain [2006] EWCA Crim 3233 about the duty of both prosecuting and defence counsel to ensure that they are fully aware themselves of the potential impact of Chapter 5 of the 2003 Act on their case, are prepared to assist the judge in that respect, and are alert to any mistakes that the judge makes in passing sentence, so that any problem can be resolved before it is too late. We understand that the Attorney General is reconsidering his Guidelines on the Acceptance of Pleas and the Prosecution’s Role in the Sentencing Exercise originally issued in October 2005. We would welcome any reinforcement he considers appropriate. We would urge NOMS to do whatever it can to draw to the attention of those preparing pre-sentence reports that they must be careful about the distinction between offences which are merely “specified”, and those that are both “specified” and “serious” and the implications that has for sentencing. As far as judges themselves are concerned, we would recommend that they have the Statute itself available so that its provisions can be readily referred to.

Provided any mistake is identified quickly enough, the court can exercise its power under section 155(1) of the 2000 Act to vary the sentence within the period of 28 days beginning on the day on which the sentence or other order was imposed. There is no doubt that this power can be exercised to reduce or increase the sentence: see R –v- Hart (1983) 5 Cr App R (S) 25, Commissioners of Customs and Excise –v- Menocal [1980] AC 598, and R –v- Hadley (1993) 16 Cr App R(S) 358. However, this court has made it clear that the power to increase the sentence should be exercised with care: see R –v- Woop [2002] 2 Cr App R (S) 65. But in our view, the power to increase the sentence would be properly exercised if the mistake was that the Court had failed to appreciate for example that the “specified” offence was a “serious” offence, so that the mandatory provisions of Section 225 or 227 required an indeterminate sentence as opposed to an extended sentence. Equally the power could be exercised where the mistake was a failure to recognise the offence as a “specified” offence, as a result of which an ordinary determinate sentence or other disposal has been imposed. Whatever inhibition there may be on increasing sentences cannot apply if the court is merely seeking to comply with its statutory obligations.

There may, however, be cases in which the mistake has been identified within the 28 day period, but, for whatever reason, the court is either unable to deal with the matter by way of variation of sentence within 28 days or considers that sentencing should be delayed beyond the 28 day period. That situation arose in the case of Reynolds which is one of the cases with which we are concerned, and to which we will return in detail later. In that case the relevant mistake having been identified, and the matter brought back before the judge within the 28 day period, the judge acceded to a submission from defence counsel that the matter should be adjourned to enable the appellant to put before the court more material in order to try to persuade the court that he did not meet the criteria of dangerousness. Accordingly the judge exercised his power under section 155 of the 2000 Act to rescind the original sentence, and then adjourned the sentencing hearing to a later date.

In R –v- Stillwell and Jewell (1992) 94 Cr App R 65, this court was faced with a very similar situation. Both appellants were originally sentenced to imprisonment. The judge later reconsidered the case and decided that he should have had social inquiry reports before passing sentence. The appellants were then brought back before the court within the 28 day period. The judge rescinded the sentences, and adjourned the matter for the preparation of social inquiry reports, remanding the appellants in custody. They were brought back before him after the expiry of the 28 day period, and sentenced to the same sentences that he had originally imposed. This court held that he had no jurisdiction to do so. Having considered the historical genesis of section 47(2) of the Supreme Court Act 1981 (the predecessor to section 155 of the 2000 Act) as described by Lord Edmund Davies in Menocal (supra), Morland J, giving the judgment of the court said at page 70:

“The 28 day period is not elastic. It cannot be extended by rescinding a sentence and then remanding the prisoner for sentence to a date beyond the 28 day period..... This court therefore quashes those sentences and orders the immediate release of the appellants. The convictions stand, but we make no further order with regard to sentence, the course adopted by this court in Bradford (1911) 7 Cr App R 42, Brook (19493) 33 Cr App 92 and Chapman (April 5, 1990 - unreported).”

The uncomfortable consequence of this decision is that appellants in such a case have been convicted but not sentenced and are apparently entitled to be released. The authorities given for taking that course do not seem to be directly in point. In those cases this court quashed sentences, and made no further order, because in each case the appellant had already served an appropriate sentence by the time that this court came to deal with the appeals. If that principle were applied to cases involving dangerous offenders, the consequences would be unfortunate, and clearly contrary to Parliament’s intention.

One solution in such a case might be to recharge the offender. Because he has not been punished, he cannot plead autrefois convict: see Richards –v- R [1993] AC 217. But that would be a cumbersome way to put right what could be considered a mere technicality, if the ultimate sentence is otherwise a perfectly good sentence. Like this court in Gordon (supra) we have been encouraged to look again at the provisions of section 155 of the 2000 Act by the commentary on Norman (supra) by Dr David Thomas Q.C. in the Criminal Law Review for December 2006 at page 1073. We respectfully agree with the analysis of this issue contained in paragraphs 41 off of the judgment in Gordon. We accordingly do not consider that a solution can be found in the decision of the House of Lords in Soneji and Bullen [2006] 1Cr App R (S) 79. Like this court in Gordon we consider that the problem should be approached in the light of the decision in Annesley [1975] 62 Cr App R 113, in which the jurisdiction of the Crown Court to adjourn sentence was considered.

In Stillwell and Jewell (supra) this court felt constrained by the speeches in Menocal (supra) and in particular the opinions expressed by Lord Salmon at page 162 and Lord Edmund Davies at page 167. Lord Edmund Davies explained how the 28 day provision had its origin in the Courts Act 1971 which created the Crown Court as a superior court of record. The 28 day period was intended to replace the original power at Assizes or Quarter Sessions for the Court to vary any sentence imposed at any time prior to the end of the Assize or Quarter Session. This was on the recommendation of the Royal Commission on Assizes and Quarter Sessions. It was clearly intended to ensure that a time limit of some sort should be imposed on the exercise of the power in order to achieve certainty. In Annesley (supra) it was argued that the Courts Act 1971 provided a complete code in relation to the powers of the court. The question in issue was whether or not the court had any power to adjourn or otherwise defer part of a sentence other than in accordance with the express provisions of the Courts Act. Bristow J, giving the judgment of the courts said as follows at page 115:

“In the judgment of this court it is clear from these authorities and the statutory provisions that the Crown Court still enjoys the common law jurisdiction vested in its predecessors to put off passing the whole of a sentence or indeed part of a sentence, if the circumstances make it necessary.”

A fuller reference to this passage is contained in paragraph 45 of the judgment in Gordon (supra); but this extract is sufficient for our purposes. Its relevance is that in Stillwell and Jewell (supra) the court, when considering the meaning of the word “rescind” in section 155 of the 2000 Act, said at page 67:

“There is no meaningful distinction in fact or in law between rescinding, quashing, and annulling a sentence.”

If that is the meaning to be given to the word “rescind”, which in our judgment it is, the consequence of rescinding a sentence is that the convicted offender is, as a result of the quashing of his sentence, back before the court as a convicted but unsentenced defendant. It seems to us to follow that the court is then in the same position as it was at the time that the original sentence was imposed. It, accordingly, has all the powers it had at that time. It is difficult, therefore, to see why the court should not have jurisdiction, in accordance with Annesley, to adjourn sentence, having quashed the original sentence, if the justice of the case so requires. Annesley was not brought to the attention of the court in Stillwell and Jewell. And indeed, the court was there not strictly concerned, in practical terms, with the consequences of the view it then took. Quashing the sentences in that case produced no consequence which could be said to have been contrary to public policy.

We have come to the conclusion that for those reasons we can, and should, revisit the question of whether or not the court is entitled in pursuance of section 155 of the 2000 Act, to exercise the power to rescind and then exercise its common law power to adjourn. The consequential adjournment no more offends against the principle of certainty than a decision of the Crown Court to adjourn in the first instance. Clearly, as a matter of good sentencing practice, the defendant is entitled to know his sentence as soon as possible. But there may be many situations in which it would be in the defendant’s own interest for there to be an adjournment. In our judgment, therefore, the Crown Court has power, after rescinding all a part of its original order to adjourn final sentence to a later date. We would, in any event, support the suggestion in Gordon that the period specified in section 155 be extended.

If the court has not exercised its power under section 155 of the 2000 Act, more difficult problems may arise. If the court has, by mistake, imposed an indeterminate sentence for a “specified” but not a “serious” offence, then the matter can clearly be put right on appeal. And if a judge concludes that an offender meets the criteria of dangerousness, but has in any other way either misunderstood or misapplied that consequence to the offender’s disadvantage, again the matter can be put right on appeal. Likewise, if the Attorney General seeks a reference to this court under section 36 of the Criminal Justice Act 1988, (the 1988 Act) this court will have the power to put right any mistake.

But where a mistake has been made which is to the benefit of the offender, the Attorney General will not always be able to refer the sentence to this court. The mistake may go unnoticed by the prosecution. And the function of section 36 of the 1988 Act is not to provide a general right of appeal to the prosecution. It is a means of ensuring by judicious selection of cases, that issues of principle in relation to sentencing can be resolved, and sentences corrected, in cases where public confidence in sentencing could otherwise be undermined. It is where the error in favour of the offender emerges as a result of an appeal by an offender, that the real difficulties arise, as exemplified in some of the present cases. If it becomes apparent during the course of an appeal that the sentencing court has failed to appreciate, for whatever reason, that either a mandatory sentence should have been imposed, or alternatively an indeterminate sentence should have been imposed as opposed to an extended sentence, what should this court do?

In one sense, the sentence is an “unlawful” sentence which this court would normally feel obliged to correct. But in the two scenarios to which we have just referred, the necessary consequence would be to increase an ordinary determinate sentence to an extended sentence or an extended sentence to an indeterminate sentence. The powers of this court are constrained by the provisions of section 11(3) of the 1968 Act which is in the following terms:

“On an appeal against sentence the Court of Appeal, if they consider that the appellant should be sentenced differently for an offence for which he was dealt with by the court below may –

(a)

quash any sentence or order which is the subject of the appeal, and

(b)

in place of it pass such sentence or make such order as they think appropriate for the case and as the court below had the power to pass or make when dealing with him for the offence.

But the court shall so exercise their powers under this sub-section that, taking the case as a while, the appellant is not more severely dealt with on appeal that he was dealt with in the court below.”

It is common ground before us, and in particular it is accepted by counsel instructed on behalf of the respondent, Mr Perry QC, to whom we are immensely grateful, that the imposition of a mandatory extended sentence by this court where the sentencing court had imposed a determinate sentence, or the imposition of an indeterminate sentence where the court had imposed either a determinate sentence or an extended sentence, would almost invariably mean that the appellant was being dealt with more severely than he had been by the sentencing court. In 1968 there was, in effect, only one mandatory sentence, namely life imprisonment for murder. Since then, mandatory sentences have proliferated. The statutory cap on the powers of this court in section 11(3) of the 1968 Act sits uneasily with these changes.

In most cases, of course, those who do not receive the mandatory sentence are unlikely to appeal; and if they do appeal, they usually find out the problem in time to abandon their appeals. But in the case of offences to which Chapter 5 applies, there are many appellants whose appeals are essentially based on a challenge to the judge’s conclusion as to whether or not the criteria of dangerousness have been met. In other words they are seeking to avoid being caught by the provisions of Chapter 5 at all. If an appellant appeals on this basis against an extended sentence which is wrongly imposed for a “serious” offence, is the court bound by reason of the mandatory provisions of section 225 or 226 of the 2003 Act to impose an indeterminate sentence, or is the court precluded from doing so because to do so would be beyond the powers of the court under section 11(3) of the 1968 Act? We have come firmly to the conclusion that section 11(3) of the 1968 Act prevails. This court is a court created by statute, and only has the powers given to it by the statute. The only express powers that this court has to increase sentences are the power contained in section 36 of the 1988 Act and the limited power in section 29 of the 1968 Act to give directions as to the loss of time. Otherwise the court is, as we have said, constrained by section 11(3).

Mr Perry, in seeking to help this court, submitted that the wording of section 11(3) suggests that the cap could only apply to discretionary sentences. A sentence which is an “unlawful” sentence, in that the court has failed to comply with its duty to impose the mandatory sentence, is a sentence which must be quashed, in which event this court is bound to impose the “appropriate” sentence, namely the mandatory sentence.

The difficulty with that argument is that, as we have indicated, the only power that the court has to interfere with the sentence is the power contained in section 11(3) (subject to the two exceptions to which we have already referred) and that section requires us to apply the cap. Further, it seems to us that the justification for the application of the cap to appeals against sentence generally is equally applicable to appeals against sentence involving consideration of the mandatory sentence provisions of any statute. The 1968 Act was preceded by the Criminal Appeals Act 1966. This repealed the power given by the Criminal Appeal Act 1907, its predecessor, to this court to increase sentences. The major justification for this change was that it was considered that the power to increase sentences was a significant deterrent to defendants who wished to challenge their sentence. As we have said, in the present context many appeals are essentially based upon the argument that the judge was wrong to conclude that the appellant met the criteria of dangerousness. If the consequence of seeking to persuade the court of that, is to risk an increase in sentence from an extended sentence, say, to an indeterminate sentence, the very mischief which the 1968 Act was intended to avoid would be reintroduced by a side wind in this category of case.

For these reasons, we are satisfied that section 11(3) of the 1968 Act precludes this court from interfering with any sentence, even if the provisions of Chapter 5 mandate a different, ex-hypothesi more severe, sentence. Although this means that there will be sentences which will be “unlawful” in the sense that the court has failed to apply the mandatory sentence, that does not seem to us to create difficulty or absurdity. If the sentence in question had not been appealed, the sentence would have been a perfectly valid and effective sentence. As Lord Scarman explained in R –v- Cain [1985] 1AC 46, at page 55, a sentence of a Crown Court cannot be a nullity. It remains an effective order unless and until varied or quashed. An extended sentence, for example, passed when there should have been an indeterminate sentence, therefore remains a perfectly valid and effective sentence. Further, unlike, for example, a detention and training order for three years, which is beyond the powers of the court, an extended sentence is within the powers of the court. In that sense, also, it is not an “unlawful” sentence.

It seems to us that in those circumstances, where the judge has properly concluded that the criteria of dangerousness have been met, this court should respect that finding so far as it can. As it is, in our view, unable to substitute the mandatory sentence where the Crown Court has failed to impose it, this court in the exercise of its discretion, should not interfere with the sentence in fact imposed, even though that results in a sentence which is not in accordance with Chapter 5. The only other solution would be to quash the finding that the criteria of dangerousness have been met and substitute a determinate sentence. We consider that to be a solution which would not properly reflect the intention of Parliament or respect the findings of the judge.

We turn therefore to the individual cases.

On the 21^st February 2006 at the Crown Court at Exeter, the appellant pleaded guilty to five counts of possession of indecent photographs of children, six counts of making indecent photographs of a child, two counts of inciting another to distribute or show indecent photographs, and two counts of attempting to cause a child to watch a sexual act. On the 8^th May 2006 he was sentenced as follows:

A Sexual Offences Prevention Order under section 104 of the Sexual Offences Act 2003 was made; and the defendant was required to comply with the provisions of Part 2 of that Act indefinitely.

The terms of the Sexual Offences Prevention Order were finally clarified on the 16^th May 2006 and included in particular the following prohibitions:

“.......

4.

Entering or remaining upon any “cyber cafe”/library/other premises offering internet facilities.

.....

9.

Denying police officers access to his home address during visits by dangerous offenders at reasonable times of the day in order to check the above conditions are being complied with”

On the 17^th May 2006 the judge was made aware of the fact that all the offences to which the appellant had pleaded guilty other than the offences of possessing indecent photographs (the first five counts in the indictment) which were “specified” offences, were “serious” offences for the purposes of Part 5 of the 2003 Act. Having found that the criteria of dangerousness were met, the judge appreciated that he was required under section 225 of the 2003 Act to impose an indefinite sentence on the appellant. Counsel for the appellant then sought to persuade the judge that he could revisit the finding that the criteria of dangerousness were met or at least to adjourn the matter so that he could obtain material on behalf of the appellant to persuade the judge that the criteria had not been met. The judge then rescinded the sentences that he had imposed on the 8^th May, and adjourned the matter for further argument as requested on behalf of the appellant.

At the resumed hearing on the 30^th June 2006, having heard counsel for the appellant and read the further material produced on his behalf, the judge concluded that the criteria of dangerousness were met, and sentenced him to imprisonment for public protection. The specified period was 18 months less the 45 days spent on remand; the Sexual Offences Prevention Order was reimposed as was the requirement to comply with the provisions of the Part 2 of the Sexual Offences Act 1973 and he was further disqualified from working with children under section 28 of the Criminal Justice and Court Services Act 2000. This sentence was made up of concurrent sentences of imprisonment for public protection with a specified period of 18 months for the two offences of inciting another to distribute or show indecent photographs and the two offences of attempting to cause a child to watch a sexual act. Concurrent sentences of imprisonment for public protection with a specified period of six months were imposed for the six counts of making an indecent photograph of a child. No separate penalty was imposed in relation to the five counts of possessing indecent photographs of a child.

The grounds of appeal were directed essentially at the making of the orders under Chapter 5 of the 2003 Act. It was submitted that where a Sexual Offences Prevention Order had been made, consideration should be given to the question of whether that would not be sufficient to enable the court to say that on release, the appellant would not meet the criteria of dangerousness. The Order would provide sufficient controls. Alternatively, it was submitted that such an order should not have been made in addition to the Licence provisions which would apply on his release from custody was a sentence of imprisonment for public protection imposed. In any event, it has been submitted to us that the two specific terms of the Order to which we have referred were too widely drawn.

The facts in the light of which the judge had to consider sentence can be relatively shortly stated. On the 15^th November 2005 police executed a warrant at the appellant’s address. Computer equipment and other items were seized. These disclosed 1,757 still photographs and eight movies at level 1; 1404 stills and 46 movies at level 2; 54 stills and 2 movies at level 3; 22 stills and one movie at level 4; and 7 stills at level 5. It became apparent that for some considerable time the appellant had been taking part in computer chat rooms passing himself off inter alia as a 16 year old boy. He was attempting to get young girls to bare their bodies and send photographs to him over the internet. On a number of occasions he sent pictures of his erect or semi-erect penis to those girls. Although in his first interview, he made no comment on the advice of his solicitor, at his second interview, he was fully cooperative.

As we have said in our general introduction, we consider that the judge was entitled to exercise his powers under section 155 of the 2000 Act to rescind the original sentences, and adjourn the matter as he did. Turning then to the main ground of appeal, it must be remembered, as this court has explained in Richards [2006] EWCA Crim 2519, the two schemes for the protection of the public created by the Sexual Offences Act 2003 and Part 12 Chapter 5 of the Criminal Justice Act 2003 are distinct. That does not mean that they cannot impact on each other. They clearly can; and it may well be relevant in many cases for a judge to evaluate the best method of protecting the public whilst ensuring that no greater restrictions than are necessary are imposed on a defendant. It may well be possible to argue in some cases that the defendant is a person who is likely to abide by the restrictions imposed by a Sex Offenders Protection Order so that he would not pose a significant risk to members of the public of serious harm occasioned by the commission by him of further such offences. Equally, a court could come to the conclusion that the control exercised by the licence requirements after release were an indeterminate sentence to be imposed would be sufficient to prevent the defendant from posing a risk of causing sexual harm. But that does not mean that the court is precluded from imposing both an indeterminate sentence and a Sex Offenders Protection Order if the circumstances justify it.

In the present case, this appellant has previous convictions of a sexual nature, in particular a conviction of five counts of taking indecent photographs of children in February 2000 for which he was fined and placed on the Sex Offenders Register for five years, and a caution for an offence of indecent exposure when he was caught masturbating in a shop whilst watching children. In these circumstances, and in the light of the real concerns expressed in the pre-sentence report, we do not consider that the judge can properly be criticised for concluding that a detailed Sex Offenders Protection Order was required, in addition to licence, to protect the public.

Turning to the Order itself, there seems to us to be little criticism that can be made of clause 9; but clause 4 is accepted by the respondent to be too widely drafted. The term should read:

“Accessing the internet in any cyber café/library/other premises offering internet facilities to visitors/members of the public.”

There is, however, one respect in which the sentence imposed by the judge fails to comply with the provisions of the 2003 Act. As we have said in the general introduction, a court is required by the mandatory provisions of, in this case, section 227 of the 2003 Act, to impose an extended sentence in respect of the “specified” offences in the first five counts in the indictment. We can correct that without infringing section 11(3) of the 1968 Act, by imposing extended sentences of 2 years imprisonment in respect of each concurrent, comprising a custodial term of 12 months and an extension period of 12 months.

We accordingly allow the appeal to the extent of the amendment to the Sexual Offences Protection Order which we have referred to in paragraph 28 above and we order that the extended sentences of two years imprisonment should be substituted for no separate penalty in Counts 1 to 5 in the indictment.

On the 12^th May 2006 in the Crown Court at Southwark Abdul Lubwama pleaded guilty to one count of assault occasioning actual bodily harm and a second count alleging cruelty to a person under 16 years of age. On 16^th June 2006 he was sentenced on count 2, to an extended sentence of 7 years made up of a custodial term of 2 years and an extended period of licence of 5 years, and, on Count 1, to 12 months’ imprisonment concurrent. He appeals with leave of the full Court against his sentence.

The facts regarding the offences were as follows. At about 7.00 pm on the 14^th October 2005 the appellant went to the home address of Lydia Baah to pick up his children, Ella, aged 4, and Amira, aged 1. Lydia Baah had been baby sitting and told the appellant that Ella was playing outside. He left with Amira to collect Ella. A few minutes later Ella banged on the front door screaming “My dad is going to kill me”. The appellant was seen to walk up behind Ella and hit her across the back with what appeared to be the branch of a tree. The door was open and Ella ran inside. She tried to hide behind Lydia Baah’s legs; but the applicant grabbed her and whipped her with the branch. Lydia Baah shouted at the appellant to stop; but he replied “She is my daughter”. A daughter of Lydia Baah pulled at the appellant to get him away from Ella causing Ella to fall to the floor. The appellant was seen to kick Ella a number of times (though this was not accepted by the appellant in his basis of plea) The police were called and the applicant dragged Ella outside by her hair towards his car. Lydia Baah and her daughter were able to stop him from taking Ella away.

In hospital Ella was treated for multiple red wheals over her arms, head and back. She had bruises near her left elbow and a series of lesions over her forehead.

The judge considered the provisions of the Criminal Justice Act 2003. Whilst he appeared in one part of his judgment to conclude that there was no significant risk to members of the public of serious harm occasioned by the commission of further specified offences, in another part of his judgment he concluded that the appellant posed a “significant risk and danger to your daughter” and sentenced him to an extended sentence in respect of count 2.

For the reasons we have explained, if the judge was thereby holding that the criteria of dangerousness has been met, an extended sentence was not in accordance with the requirements of Chapter 5 since count 2, cruelty to a person under 16, is a “serious” offence within the meaning of section 224 of the CJA 2003. But we do not consider that his findings in this respect are consistent. He appears to have concluded that the appellant met the criteria for the purposes of section 227 of the 2003 Act, but not for the purposes of section 225 of the 2003 Act. That is not permissible. The criteria do not depend on the nature of the particular count of which the defendant is guilty. They are either met or they are not met. We cannot be sure therefore that his conclusion was soundly based. And on the material before us, we do not consider that we ourselves can be satisfied that the criteria are met. In those circumstances we propose to quash the judge’s findings as to dangerousness and substitute a determinate sentence.

It has been submitted that a determinate sentence of 2 years on count 2 was excessive and that a sentence of 12 months would have been appropriate. The appellant is aged 39 and had no previous convictions. He pleaded guilty, accepting that what he did went far beyond lawful chastisement. In this regard we were referred to the following cases, Kelly [1998] 2 Cr App R (S) 368, O’Gorman 1999 2 Cr App R (S) 280 and Sujan Ali [2002] 2 Cr App R (S) 542. From these cases it appears that a sentencing bracket of 12 months to 2 years is appropriate for cases of this type. It follows that the 2 years “custodial term” suggested by the judge was at the top end of the appropriate bracket but cannot therefore be said to be excessive.

For these reasons we allow the appeal. The extended sentence on count 2 is quashed and we substituted a sentence of two years imprisonment. The sentence of 12 months concurrent on count 1 remains.

On the 5^th September 2005 in the Crown Court at Luton John Paul Webb pleaded guilty to attempted robbery, count 1, and possession of an imitation firearm at the time of committing a scheduled offence, count 2. On the 3^rd October 2005 he was sentenced (on each count concurrent) to an extended sentence of 13 years made up of a custodial period of 5 years and an extended licence period of 8 years. Having committed these offences before the expiry of an earlier custodial sentence he was ordered to be returned to prison to serve the remaining period of 1 year and 28 days. The extended sentence was to be served consecutively to that. 95 days spent on remand was ordered to count towards his sentence. His application was referred to the full court by the registrar.

The facts regarding the offences were as follows. At about 13.45 on the 30^th June 2005 the applicant was seen acting suspiciously in Bedford town centre. He removed two toy handguns from their packaging, concealed one on his person and placed the other in a nearby dustbin. He then went to the O2 mobile telephone store in which there were three members of staff and three customers. The applicant said to the manager “Give me the money”. When the manager refused the applicant said: “I have a gun in my pocket, give me the money”. He then produced the imitation handgun and held it in front of him with both hands. The manager pressed the panic alarm and the applicant left the store, holding the imitation handgun out in front of him so that it was clearly visible. He was arrested shortly afterwards.

The judge considered that there was a significant risk to members of the public of serious harm occasioned by the commission of further specified offence. He did not consider that a sentence of life imprisonment was justified but proceeded to pass an extended sentence on each count of “4 years imprisonment ... a term of 12 months’ imprisonment on top of that” and ordered that the applicant be “on licence for a period of 8 years.” The recorded sentence is an extended sentence of thirteen years being a custodial period of 5 years plus the extension period of 8 years.

An extended sentence was not in accordance with the requirements of Chapter 5, since the offences to which he had pleaded guilty were “serious” offences within the meaning of section 224 of the CJA 2003. But by reason of the terms of section 11(3) of the Criminal Appeal Act 1968 and for the reasons we have explained, this court has no power to impose a sentence of imprisonment for public protection which was, on the judge’s apparent findings, the mandatory sentence. We do not therefore interfere with the imposition of the extended sentence save that the extension period cannot stand. By section 227(4)(a) of the 2003 Act, the maximum extension period for a specified violent offence is 5 years. Turning to the length of the custodial period, on behalf of the applicant it was accepted that a determinate sentence of 4 years, the first period of imprisonment mentioned by the judge, could not be said to be excessive. We agree. However, the judge plainly had in mind a custodial sentence of 5 years, made up of 4 years plus 1 year and the order so records. In our judgment a custodial period of 5 years cannot be said to be excessive for each of these offences on a plea of guilty.

For these reasons we extend the time for seeking leave to appeal, we grant leave to appeal and we allow the appeal, to the extent only that the extension period is reduced to a concurrent period of 5 years, so that the sentences are extended sentences of 10 years on each count, concurrent, comprising a custodial term of 5 years, and an extension period of 5 years.

On the 9^th January 2006 in the Crown Court at Chelmsford James Honore pleaded guilty to robbery. On the 24^th April 2006 in the Crown Court at Southwark he pleaded guilty to assault occasioning actual bodily harm. On the 25^th May 2006 he was sentenced to 12 months in custody on the assault and 2 years’ imprisonment, consecutive, on the robbery charge. In addition the judge imposed an extended licence period of 2 years’ pursuant to section 227 of the CJA 2003. 219 days spent on remand were to be counted towards his sentence. He has applied for leave to appeal against his sentence and his application has been referred to the full court by the registrar.

The facts regarding the offence of assault are as follows. On the 20^th August 2005 the applicant assaulted his girlfriend, Marlene Herbert, by grabbing her around the throat and banging her head against the kitchen cabinets several times. He also hit her with a bottle and a belt. The victim sustained bruising around both eyes which were closed with swelling. She also received bruising behind her left ear and on her chest, arms, left shoulder, lower back and right thigh.

The robbery occurred on the evening of the 17^th October 2005. The victim, John Baker, was cycling home when he was stopped by the applicant who demanded that he get off his bicycle. The applicant then hit the victim on his head and threatened to shoot him unless he handed over his bicycle. The victim was wearing a helmet and so was not injured but was placed in fear by the applicant and allowed the applicant to take his bicycle.

The applicant is aged 35 and has previous convictions. However, the previous conviction for violence was an assault in 1997 for which he was sentenced to 3 months’ imprisonment. Before that there were 6 offences between 1988 and 1992, none of which was for violence though one (in 1988) was for possessing an offensive weapon in public.

The judge considered that because of problems that the applicant was having with drugs there was “a significant risk of continuing harm ... of serious injury to people” and so a “sentence for public protection is necessary”. The judge then proceeded to pass the sentences which we have described.

In the light of these findings and for the reasons which we have given, an extended sentence was not the correct sentence for robbery, which is a “serious” offence within the meaning of section 224 of the CJA 2003, for which an indeterminate sentence was mandatory.

It may be that the judge took the merciful view that the facts which gave rise to the assault charge, together with his drugs problem, were the real cause for concern for the future, rather than the robbery charge. But once the judge had answered affirmatively the question of whether the appellant met the criteria of dangerousness, for whatever reason, the mandatory provisions of section 225 of the 203 Act applied. And he was entitled to conclude that the criteria were met.

For the reasons we have given, we cannot increase the sentence. But the sentence in the present form is unclear as to how the extension period is calculated. The custodial periods have been expressed to run consecutively. The extension period has not been specified or attached to either. The judge’s intention would appear to have been a total sentence of 5 years, 3 years being the custodial term, and two years the extension period. That sentence is not manifestly excessive. It can be accommodated best by adjusting the sentences so that the sentence for assault is an extended sentence of 2 years, with a custodial period of one year and an extension period of one year; and the sentence for robbery will be an extended sentence for of 3 years, comprising a custodial sentence of 2 years and an extended period of one year, those to be served consecutively. The application is granted; and the appeal allowed, but only to that extent. This is a case in which consecutive sentences were clearly called for. For reasons which will be set out fully in a decision of this Court to be handed down shortly (“C” et al) such a sentence is not wrong in principle, nor impracticable to operate. The fact that we are restrained to amend the sentence as we have is the inevitable consequence of the constraints imposed by section 11(3).

On the 26^th May 2006 at Northeast Sussex Court the appellant pleaded guilty to 6 offences of sexual touching of a child family member contrary to section 25 of the Sexual Offences Act 2003. He was committed for sentence to the Crown Court at Ipswich and on the 27^th June 2006 was sentenced by HHJ Holt to two concurrent extended sentences of five and a half years made up of a custodial term of 2½ years and an extension period of three years. In addition, an indefinite Sexual Prevention Order was made and he was disqualified from working with children for life. He was subject to the notification requirements of Part 2 of the 2003 Act indefinitely. The only element of the sentence that is challenged is the three year extension period.

The facts can be shortly stated. The victim of each offence was a 15 year old girl who had been placed with the appellant and his wife as a foster parent. She had learning difficulties and functioned at the level of a child of seven or eight. When she was alone with the appellant in the swimming pool, he had touched her vagina and chest on more than one occasion. On a separate occasion he had taken her to the spare room of the house and laid on top of her with his penis exposed and simulated sexual intercourse until he ejaculated on her stomach. When arrested and interviewed, he eventually accepted that he had done what was alleged. He admitted that his actions were for his own sexual gratification.

The appellant was 67 years of age, and of previous good character. The judge made no finding that there was a significant risk to members of the public of serious harm occasioned by the commission of him of further specified offences. Accordingly, the judge had no power to impose any sentence other than a determinate sentence. Had he found that the appellant did meet the criteria of dangerousness he would have been required to impose an indeterminate sentence under section 225, as the offences to which he pleaded guilty carry a maximum sentence of 14 years imprisonment and were accordingly “serious” offences. No criticism is made of the two and a half years determinate term imposed by the judge but for the reasons that we have given, the appeal must be allowed and the extension period quashed.

On the 1^st September 2006 at the Crown Court at Northampton, the appellant pleaded guilty to two counts of sexual activity with a child contrary to Section 9 of the Sexual Offences 2003. He was sentenced by HHJ Wide, QC to an extended sentence of 7 years imprisonment, made up of a custodial term of 4 years and an extension period of three years concurrent. He was disqualified from working with children and was subject to the notification requirements of Part 2 of the Act indefinitely.

The victim was a vulnerable 13 year old. She had been the victim of abuse, some of it sexual, since the age of four at the hands of others. The appellant was a 33 year old man with an extensive criminal record, though without previous convictions for sexual offences. On the 20^th June 2005 he was released from prison. By prior arrangement, he went to stay at the home of the victim and her mother. On the 22^nd June at about half past midnight he asked the victim if she wanted to have sex with him; she agreed. The appellant went into her room and woke her up. He took off her trousers and penetrated her with his penis. She consented, but was concerned that she might become pregnant. Two days later, once again in the early hours of the morning, he woke her and suggested and attempted sexual intercourse with her. He did not succeed in penetrating her on this occasion because she was too tense.

In July, the victim admitted to her mother what had occurred. She was interviewed by the police on the 13^th July. The appellant was arrested on the same day and denied the offences. Subsequently scientific analysis of semen found on the victims underwear revealed a DNA profile matching that of the appellant. He pleaded not guilty on arraignment but changed his plea to guilty on the day on which he was sentenced. The judge discounted the custodial sentence he would have imposed after trial by 20% to reflect that fact. No criticism is made of the discount.

The author of the pre-sentence report assessed the future risk of serious and significant harm to pre-pubescent and young females as high. The judge accepted this conclusion and expressly found that the criteria of dangerousness had been met. The offences to which he had pleaded guilty were offences for which the maximum sentence on conviction on indictment is 14 years imprisonment. Accordingly it is a “serious” offence. The judge therefore should have imposed an indeterminate sentence of imprisonment pursuant to section 225 of the 2003 Act. But, for the reasons that we have already given, we do not propose to interfere with the imposition of an extended sentence.

It was submitted on behalf of the applicant that the custodial period of 4 years, was, however, manifestly excessive. We do not agree. This was a bad case of an older man exploiting an exceptionally vulnerable child in her own home for his own sexual gratification. Had the judge imposed the proper sentence under section 225 of the 2003 Act, a minimum term based on a determinate term of four years imprisonment could not have been faulted. In those circumstances we refuse this application.

On the 16^th August 2006 at the Nottingham Crown Court, the applicant was convicted by a jury of wounding the victim with intent to cause him grievous bodily harm contrary to section 18 of the Offences Against the Persons Act 1861. He pleaded guilty to a separate assault causing actual bodily harm contrary to section 47 of the 1861 Act on the same victim. On the 11^th September 2006 he was sentenced by HHJ Mitchell to six year’s detention under section 91 of the 2000 Act, on Count 1, and a concurrent term of one year’s detention on Count 2.

The victim had driven, with his girlfriend, to a square in Calverton to find his parents. On walking through the square, he encountered a large group of youths including the applicant. Although he did nothing to provoke any of them, they took offence at his presence. Four of them encircled him and punched him to the ground. When he got up, the applicant was standing in front of him with a Stanley knife in his right hand which he used to slash the victim’s face and then made a slash across his stomach, but in the event only damaged his clothing. The slash to the face resulted in a 1 cm laceration to the lip and a defensive injury to the victim’s left hand. He also sustained a 2 cm laceration of the left eyebrow which had been caused by a punch. The jury rejected the applicant’s evidence that he had played no part in the attack.

The offence under section 18 of the Offences Against the Persons Act 1861 is a “serious” offence and accordingly the applicant was at risk of the imposition of a sentence of detention for public protection under section 226 or an extended sentence under section 228 if the judge had made a finding that he met the criteria of dangerousness. Although he had been convicted of an offence of street robbery on the 9^th January 2006 for which a three year supervision order had been made that conviction post dated the offence for which he fell to be sentenced by Judge Mitchell and accordingly the judge was not required to make the statutory assumptions provided for in section 229(3) of the 2003 Act. The judge, in his sentencing remarks, said:

“The suggestion that you are not dangerous, I reject. You are a dangerous young man who arms themselves with a weapon before they go out at night.”

We accept that the judge did not intend by those remarks to indicate that he made a finding that the criteria of dangerousness were met for the purposes of the 2003 Act. And the fact that he did not impose either an indeterminate sentence, or an extended sentence, supports that conclusion. But we are wholly unpersuaded that the judge was not entitled to consider that this was an extremely serious example of unprovoked violence which should be marked by a significant sentence of detention. In our view the judge was accordingly right to invoke the court’s powers under section 91 of the 2000 Act; and a detention period of 6 years is not in our view manifestly excessive.

However, he was not entitled to impose a sentence of detention under section 91 of the 2000 Act for the offence of assault occasioning actual bodily harm. The only practicable course was to impose no separate penalty for this offence. We accordingly give leave to appeal, and allow the appeal to the extent of quashing that element of the sentence.

On the 22^nd June 2006 at the Central Criminal Court, the applicant was convicted by a jury of attempted murder. On the 25^th June 2006 at the Inner London Crown Court, he pleaded guilty on re-arraignment to possession of a class A drug, crack cocaine, with intent to supply. On the 23^rd August 2006 he was sentenced by HHJ Simon Smith to 18 years’ detention in a young offenders’ institution for attempted murder and to six years detention in a young offenders institution for the drugs offence, to be served concurrently. He directed that only forty days of the 204 days which had been spent in custody on remand would count towards sentence.

The facts were on the 11^th September 2005, the applicant entered the Ocean Centre in Dalston Lane armed with a loaded handgun. He shot a man called Dayne Thompson at close range. The bullet passed through his kidney and gall bladder. The injuries were life threatening and required several surgical procedures, including removal of his gall bladder. The victim identified the applicant by identification procedure. The motive for the crime was never established, but was plausibly assumed by the judge to have been a revenge attack with a background of drug dealing.

On arrest, the appellant was found to have concealed in his buttocks 15 cling film wraps, containing 2.67gms of crack cocaine at 55% purity. On arrest, and until 40 days before he was sentenced, the appellant maintained that he was his younger brother Omaro Thompson, aged 17 whereas his name is Emelio Thompson, and he is aged 20. It was for this reason that the judge declined to credit the time which he had spent on remand while claiming to be his brother.

It is submitted on his behalf that the sentences imposed were manifestly excessive in two respects. Firstly it is said that 18 years’ detention was too long; and secondly it is said the judge should have credited the whole period spent in remand. We do not accept either submission. This was an attempted execution. If it had succeeded the starting point would have been detention for life with a minimum term of 30 years (i.e. the equivalent of a determinate sentence of imprisonment of 60 years). But for the defendant’s age an even longer term might well have been appropriate. The judge did not expressly state in his sentencing remarks that he had decided not to impose an indeterminate sentence under section 225 of the 2003 Act. Given the nature of the offence, either sentence may well have been appropriate. The judge may have been affected by the fact that he made a recommendation for deportation which, if acted upon, will ensure the protection of the public in this country at any rate on his release. It would, however, have been better sentencing practice, in view of the fact that the attempted murder offence was a “serious” offence for the sentencing judge to have dealt expressly with the question of whether or not the applicant met the criteria of dangerousness. Turning then to the submission that the judge should not have reduced the number of days spent of remand which would be credited against his sentence, we can see no justification for interfering with the exercise of the judge’s discretion in this respect. The applicant was clearly intending to obtain some advantage by pretending to be his brother. And so long as he maintained that deception, the judge was entitled to conclude that he should not obtain the benefit of credit for those days served. The application is dismissed.