Delucca, R v (Rev 1)

These appeals were heard together because they raised common issues as to the powers of the court in relation to the minimum term that can be imposed when sentences of Imprisonment for Public Protection (IPP) are passed under the provisions of the Criminal Justice Act 2003 (CJA 2003). The issues that have in the result arisen for decision arise out of the difficulties facing a judge when he concludes that a sentence of IPP is necessary on one of the offences before him, but there are other offences in respect of which, if he had not imposed a sentence of IPP, it would have been necessary to impose a determinate term consecutive to the term he would have imposed on the specified offence. The specific issues are:

It is accepted in each appeal that the offender is a dangerous offender within the meaning of the CJA 2003. It is not necessary for us to lengthen this judgment by setting out any matters that justified those findings.

We consider the first question (which arises in the appeal by Murray) has been answered affirmatively in R v C [2008] EWCA Crim 2790; the second has been answered expressly by this court in an earlier appeal - Delucca [2007] EWCA Crim 1455. However the Criminal Cases Review Commission (CCRC) in its reference has asked the court to reconsider that decision on the basis that the court was not referred to a previous decision of the court. We have concluded that the decision of this court in Delucca was not only correct, but supported by a number of other decisions of this court. However, we will, out of courtesy to the careful arguments put forward by the CCRC, give our answer at greater length.

In the event, no question as to the powers of the court arose on the third appeal, but in that appeal it was contended that the length of a minimum term imposed was manifestly excessive. That case, unusually, involved one of those at the centre of the production of child pornography. We will deal with the issues of law (on which the first two appeals turn) before dealing with the third appeal.

The legislative background and the issues raised

The 2003 Act and the guidance in Lang

To explain why the decision of this court in Delucca was correct and the first question was answered in R v C, we must summarise the way in which the provisions relating to minimum terms have developed and been commented on or interpreted by the courts. The difficulties have all risen out of the long history of interrelationship between indeterminate and determinate sentences, the necessity to fix minimum terms and the way in which sentencing legislation has been drafted. It appears to have been intended in 2000 that all the sentencing legislation should be included and retained in one statute which could then be amended as new provisions were needed. If that statute had been clear in its terms, set out principles and not been overly prescriptive in constraining the discretion of this court in developing the principles and then been updated instead of new provisions being included in other legislation, many of these difficulties, uncertainty and consequent expense would not have arisen and the law could be simpler and clearer for everyone. However the concepts of clarity and simplicity have not been, apparently, at the forefront of consideration by those who formulate policy and draft this type of legislation. The following paragraphs are but one illustration (of many) which demonstrate the necessity for a new approach to sentencing legislation.

That history appears to have begun as follows:

In 1991, as a consequence of a decision of the Strasbourg Court in Thynne, Wilson & Gunnell v UK (1990) 13 ECHR 666, the first step was taken to place this practice on a statutory basis. S.34 of the Criminal Justice Act 1991 gave the judge power to fix in discretionary life sentence cases what was then known as the “tariff term”, “relevant” part or “specified” part and has become known as “the minimum term”. We shall use the expression minimum term. The section stated that the minimum term was to be fixed by taking into account “the seriousness of the offence, or the combination of the offence and other offences associated with it”. By sections 51(4) and s.31(2) of that same Act an offence was defined as associated with another if:

“(a)

the offender is convicted of it in the proceedings in which he is convicted of the other offence, or (although convicted of it in earlier proceedings) is sentenced for it at the same time as he is sentenced for that offence; or

(b)

the offender admits the commission of it in the proceedings in which he is sentenced for the other offence and requests the court to take it into consideration in sentencing him for that offence.”

That definition has been carried forward into s.161(1) of the Powers of Criminal Courts (Sentencing Act 2000) and s.305(1) of the CJA 2003.

The power to consider the question of release was given to the Parole Board which had to consider that question at the expiry of the minimum term. The legislative provision in s.34 was accompanied by a Practice Direction: Practice Direction (Crime: Life Sentences) [1993] 1 W.L.R. 223 which made it clear that the minimum term was to be that part of the sentence that was imposed for punishment and deterrence; this is now to be found in Part IV.47 of the Consolidated Criminal Practice Direction. In R v Marklew and Lambert [1999] 1 Cr. App. R.(S.) 6, this Court set out the approach that courts should adopt:

“the general approach is to decide first the determinate part of the sentence that the judge would have imposed if the need to protect the public and the potential danger of the offender had not required him to pass a life sentence. It is the imposition of the life sentence that protects the public and is necessitated by the risk that the defendant poses. That element is therefore not to be reflected in the determinate part of the sentence that the court would have imposed; the determinate part is therefore that part that would have been necessary to reflect punishment, retribution, and the need for deterrence. It is we consider important that the judge should, when passing sentence, make clear to the defendant what that determinate period would have been.

… In the case of adult offenders, we consider that again the general approach should be to begin consideration of the specified part under s.34 by taking half the determinate period that would have been passed; that determinate period will reflect the element of punishment, retribution and deterrence in the sentence. In many cases half the determinate period may well be the appropriate period to specify under section 34. However, there may well be circumstances, as the decisions of this Court show, where it would be appropriate for the judge in the exercise of his general discretion and in circumstances that arise on the facts of a particular case to fix the specified period at a period which was more than half and up to two-thirds of the determinate sentence that would have been passed. ”

The provisions of the Criminal Justice Act 1991 were replaced by s.28(3) of Chapter 2 of Part II of the Crime (Sentences) Act 1997 which remains in force. In Haywood [2000] 2 Cr App R (S) 418 and Szczerba [2002] 2 Cr App R (S) 86 this court considered the circumstances where the court should impose a minimum term of more than half. The position was summarised in the judgment of the court given by Rose LJ in the second case.

“There are, however, circumstances in which more than half may well be appropriate. Dr Thomas identified two examples. In Hayward [2000] 2 Cr.App.R. (S.) 418 a life sentence was imposed on a serving prisoner for an offence committed in prison. In such a case the term specified can appropriately be fixed to end at a date after that on which the defendant would have been eligible for release on licence from his original sentence. This may involve identifying a proportion of the notional determinate term up to two-thirds. Another example is where a life sentence is imposed on a defendant for an offence committed during licensed release from an earlier sentence, who is therefore susceptible to return to custody under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000. In such a case the specified period could properly be increased above one-half, to reflect the fact that a specified period cannot be ordered to run consecutively to any other sentence.”

When Chapter 5 of Part 12 (ss.224-236) of the CJA 2003 created the indeterminate sentence of IPP, s.225(4) made the sentence of IPP a life sentence for the purposes of Chapter 2 of Part II of the Crime (Sentences) Act 1997 (to which we referred in paragraph 8) and s.82A of the Powers of Criminal Courts (Sentencing) Act 2000 which had been inserted into that Act by the Criminal Justice and Court Services Act 2000. The court accordingly had to determine the minimum term to be served under s.82A which, as in turn amended by the CJA 2003, read so far as material:

“(2)

The court shall, unless it makes an order under subsection (4) below, order that the provisions of section 28(5) to (8) of theCrime (Sentences) Act 1997 (referred to in this section as the“early release provisions”) shall apply to the offender as soon as he has served the part of his sentence which is specified in the order.

(3)

The part of his sentence shall be such as the court considers appropriate taking into account—

(a)

the seriousness of the offence, or of the combination of the offence and one or more offences associated with it;

(b)

the effect of any direction which it would have given under section 240 of the Criminal Justice Act 2003 (crediting periods of remand in custody) … if it had sentenced him to a term of imprisonment; and

(c)

the early release provisions as compared with section 244(1) of the Criminal Justice Act 2003.

(4)

If the offender was aged 21 or over when he committed the offence and court is of the opinion that, because of the seriousness of the offence or of the combination of the offence and one or more offences associated with it, no order should be made under subsection (2) above, the court shall order that … the early release provisions shall not apply to the offender.

(4A)     No order under subsection (4) above may be made where the life sentence is--

(a)

a sentence of imprisonment for public protection under section 225 of the Criminal Justice Act 2003, or

(b)

a sentence of detention for public protection under section 226 of that Act

(7)

In this section—

“life sentence” has the same meaning as in Chapter II of Part II of theCrime (Sentences) Act 1997.

The section carried through the policy of the earlier legislation of requiring the judge to fix the minimum term by reference to the seriousness of the offence and one or more offences associated with it. However, the position of a sentencing judge was made more complex by the provision of s.240 which required him to allow for time on remand when specifying the actual minimum term to be served.

These provisions were brought into effect in April 2005. However the terms of the CJA 2003 caused so many difficulties that Rose LJ had to give general guidance in respect of sentences of IPP in Lang [2005] EWCA Crim 2864. When giving guidance about fixing the minimum term, he emphasised the continuity of the provisions which we have set out above:

10.

The procedure for fixing a minimum term in relation to these new sentences should be as before the Act in relation to discretionary and automatic life sentences. The court, taking into account the seriousness of the offence or the combination of the offence and one or more offences associated with it, must identify the notional determinate sentence which would have been imposed if a life sentence or imprisonment for public protection had not be required. This should not exceed the maximum permitted for the offence. Half that term should normally then be taken and from this should be deducted time spent in custody or on remand…. There will continue to be exceptional cases where more than half may be an appropriate: see R v Szczerba ….. In calculating the minimum term, an appropriate reduction should be allowed for a plea of guilty (see Sentencing Guidelines Council Guideline on Reduction for a Guilty Plea paragraph 5.1), and care should be taken not to incorporate in the notional determinate sentence an element for risk which is already covered by the indeterminate sentence.”

The further guidance in O’Brien

Other issues continued to arise in relation to the minimum term. In O’Brien [2006] EWCA Crim 1741, this court had to consider these issues in the context of two specific questions where the detailed statutory regime set out in the legislation was silent. The first was whether a sentence of IPP could be ordered to run consecutively to another sentence of IPP. The second was how a court should, as a matter of practice, formulate a sentence when a court wished to order the remaining period of a sentence to be served and to impose a sentence of IPP. Hooper LJ in giving the judgment of the court followed the long standing practice of the court set out in Jones that it was undesirable to impose consecutive indeterminate sentences or to order an indeterminate sentence to be served consecutively to another period of imprisonment; a sentence of life imprisonment or a sentence of IPP should start on its imposition. But to ensure that the balance of any existing sentence should be included, the judge should increase the notional determinate term to reflect the balance of the period, rather than increasing the proportion to be served as the minimum term above half following the decision in Haywood and Szczerba. The court also made clear that if a court was imposing two indeterminate sentences, it was not good practice to make the sentences consecutive to each other, but to increase the minimum term on the more serious to reflect the totality of the offending and make both sentences concurrent.

In a commentary in the Criminal Law Review at [2006] Crim LR 1074, Dr David Thomas, considered the approach consistent with s.82A of the 2000 Act and gave a useful example:

“.the offender is convicted of burglary with intent to steal (not a specified offence) and relatively minor sexual assault (a specified offence). The court would have imposed seven years for the burglary with 12 months consecutive for the sexual assault. In view of the offender's history, the court finds itself obliged to impose a sentence of imprisonment for public protection for the sexual assault. The court should take a total of eight years as the notional determinate sentence (combining the two determinate sentences which would have been imposed), divide this by two, and then subtract any remand time, to produce a minimum term of four years, less time on remand. There seems to be no reason why the court should not impose a concurrent sentence of seven years for the burglary, with an order under s.240 that any remand time should count against that sentence. This will merely be a symbolic gesture which may confuse the media and the public, but it will not affect the reality of the sentence; the offender will serve the minimum period specified (four years, less time on remand), notwithstanding that he would otherwise be entitled to be released from the seven-year sentence after serving three-and-a-half years less time on remand.”

The decision in O’Brien has been widely applied. In O’Halloran [2006] EWCA Crim 3148, this court applied O’Brien in determining that a judge should have regard to the circumstances of non specified offences when fixing the minimum term. A court was bound under s.143(2) of the CJA 2003 in considering the seriousness of the offence to take into account each previous conviction as an aggravating factor. It would therefore be irrational not to take account of the non specified offence. Furthermore it would give “an uncovenanted bonus to the offender and would short-change victims and the public.” In Ashes [2007] EWCA Crim 1848, this court applied the principles in O’Brien to a prisoner already serving a sentence of IPP.

The decision of this court in DeLucca and the subsequent reference by the CCRC

That was the state of the development of the principles applicable to the determination of the minimum term when this court decided in 2007 in the original appeal by Delucca that the court could, in setting the minimum term, take a notional term that was in excess of the statutory maximum for the specified offence where there were other offences before the court. The background to that decision was the following

When Delucca was sentenced to IPP, HHJ Stewart QC specified a minimum term of five and a half years imprisonment less time on remand on all three counts. He arrived at that minimum term by calculating the overall notional determinate term he would have imposed as being 11 years. He aggregated the 8 years he would have imposed on Count 1 (on the basis that the appellant had been part of offending where a gun had been fired in a public place as part of gang warfare) with the consecutive term of 3 years he would have imposed on Counts 7 and 8 (5 years reduced to 3 years for totality).

Delucca appealed against conviction and sentence. The appeal against conviction failed. He contended in the appeal against sentence that the sentences of IPP on Counts 7 and 8 were unlawful, as they were not serious specified offences. The court hearing the appeal on 4 May 2007 accepted that contention. However, following the principle in O’Brien the court considered that the issue before it was the propriety of the minimum term of 5½ years for Count 1, the serious specified offence.

“20.

In our judgment (and no real argument has been advanced to the contrary), the judge was entitled to order that the applicant Delucca serve that period as a minimum period on count 1. The question then is whether it is proper for us to raise the notional determinate sentence of eight years on count 1 to one of eleven years in order to achieve that result. In our judgment it is. Firstly, to do so is not contrary to section 11(3) of the Criminal Appeal Act 1968, since the totality is not being increased. Further, although the notional determinate period of eight years on count 1 would have to be increased to one of eleven years to achieve the same minimum period of five-and-a-half years (less 262 days), to do so would not offend against the maximum sentence imposed by Parliament of ten years for an offence contrary to section 16A. It must always be recalled that the sentence on count 1 was an indeterminate sentence of imprisonment for public protection. The notional determinate sentence is nothing more than an explanation by the court of the process by which it arrives at a minimum term. It is not a sentence of imprisonment at all. Thus, for example, fixing a notional determinate sentence of eleven years in no way exceeds the statutory maximum of ten.

21.

In our judgment, the appropriate way of curing the error for which the judge and counsel can be wholly forgiven, faced as they were with these arcane sentencing provisions, is to maintain the minimum term of five-and-a-half years' imprisonment (less 262 days) by this process. The sentence on count 1 will remain as imprisonment for public protection pursuant to section 225 of the 2003 Act, with a minimum term of five-and-a-half years' imprisonment (less 262 days). So far as counts 7 and 8 are concerned, the order of this court will be that the applicant should be imprisoned for three years on each, to run concurrently, concurrent with the imprisonment for public protection. So to do takes account of section 82A(3)(a) of the Powers of Criminal Courts (Sentencing) Act 2000, which permits, when considering the count of possessing a firearm with intent to cause fear of violence, the court to take into account offences associated with that offence, namely the other offences under counts 7 and 8 in considering the appropriate sentence and seriousness of the offence under count 1. That we have done. ”

Delucca applied to the CCRC for a review of his conviction; the CCRC declined to refer his case. He then applied for a review of his sentence on the basis that the court had passed a sentence which exceeded the statutory maximum for the offence. The CCRC determined on 21 July 2009 that a reference should be made to the Court under s.13(b)(ii) of the Criminal Appeal Act 1995 which gives the CCRC power to refer on the basis that an argument on a point of law was not raised. The CCRC determined that the Court had not been referred to Lang [2005] EWCA Crim 2864and its decision was not reconcilable with the observations of Rose LJ in Lang at paragraph 10 which we have set out in paragraph 10 above.

Before setting out our reasons for our conclusion that the decision in Delucca was plainly correct, it is convenient next to refer to the statutory changes made in 2008.

The amendment in 2008 to provide for a qualifying notional minimum term of 2 years

One of the consequences of way in which the terms of the provisions relating to sentences of IPP in CJA 2003 were formulated was that, if the offender was found to qualify for a sentence of IPP because he was a dangerous offender, a court was required to impose a sentence of IPP, even though the minimum term might be 12 months or even less. There was no restriction on the duty to impose a sentence of IPP by reference to the notional minimum term that the judge would impose. As a result a number of persons were sentenced to IPP with minimum terms much less than 24 months. In 2008 Parliament amended the provisions relating to the sentence of IPP to give the court more discretion as to whether to impose a sentence of IPP; it also decided to introduce a restriction on the ability of the court to impose a sentence of IPP by requiring the minimum term to be 2 years before crediting time on remand. It did so by s.13 and Schedule 15 to the Criminal Justice and Immigration Act 2008 (CJIA 2008) which amended s.225 of the CJA 2003. These new provisions were brought into force on 14 July 2008. The five relevant subsections of s.225 of the CJA 2003, as amended, are:

(2)

If—

(a)

the offence is one in respect of which the offender would apart from this section be liable to imprisonment for life, and

(b)

the court considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life,

the court must impose a sentence of imprisonment for life or in the case of a person aged at least 18 but under 21, a sentence of custody for lifehttp://login.westlaw.co.uk/maf/wluk/app/document?src=doc&linktype=ref&&context=7&crumb-action=replace&docguid=I9F0B7B10E44F11DA8D70A0E70A78ED65 - targetfn1#targetfn1

(3)

In a case not falling within subsection (2), the court may impose a sentence of imprisonment for public protection or, in the case of a person aged at least 18 but under 21, a sentence of detention in a young offender institution for public protection if the condition in subsection (3A) or in subsection (3B) is met.

(3A)The condition in this subsection is that, at the time when the offence was committed, the offender had been convicted in any part of the United Kingdom of an offence specified in Schedule 15A.

(3B)The condition in this subsection is that the notional minimum term is at least two years.

(3C)The notional minimum term is that part of the sentence that the court would specify under section 82A(2) of the Sentencing Act (determination of tariff) if it imposed a sentence of imprisonment for public protection but was required to disregard the matter mentioned in section 82A(3)(b).

The issue raised by the appeal in Murray in relation to the amendments made by the CJIA 2008

The second appeal, Murray, specifically concerns the effect of this amendment. Murray had committed two serious sexual offences in 2004 (prior to the coming into force of the provisions of the CJA 2003 relating to sentences of IPP); he then committed a further offence which was a serious specified offence on 14 June 2007. At the time of the commission of that 2007 offence, he was then liable to be sentenced to a sentence of IPP even if the minimum term was less than 2 years. Although charged with the offences before the coming into force of the amendment effected by the CJIA 2008, he did not plead guilty until 21 August 2008 (that is after s.225 as amended by the CJIA 2008 came into force) and was sentenced on 20 October 2008 at the Crown Court at Birmingham. The judge, Judge Inman, considered that the notional determinate term for the only specified offence was 3 years and 9 months, but that he was entitled to take into account the other offences (committed in 2004) in specifying a minimum term of 4½ years and thus was entitled to impose a sentence of IPP. The facts of the offences before the court were, in summary:

The judge concluded that the notional determinate term for the only specified offence was 3 years 9 months; this would result on its own in a minimum term less than 2 years. He then considered, in the light of the other offences, whether he was entitled to impose a sentence of IPP and, if so, how to set the minimum term for the sentence of IPP. He concluded that, in the light of O’Brien and other cases following it, he was entitled to impose a minimum term reflecting the overall criminality on the indictment rather than the single count for the specified offence viewed in isolation. He then set out the determinate sentences he would have passed individually on each count - count 3 six years, on count 2 three years concurrent, on count 4, three years and nine months consecutive, but reduced to three years for totality and on counts 5-9 three months concurrent. The aggregate of those terms was 9 years

He then took as the notional determinate term, the term of 9 years he had arrived at and reduced that by half to set the notional minimum term as 4 and a half years, less time on remand. His sentence was expressed as a sentence of IPP with a minimum term of 4 and a half years on count 4, with concurrent determinate sentences of 3 years on Count 2, 6 years on count 3 and 3 months on each of counts 5-9. Ancillary orders were also made.

Further changes enacted by the CJIA 2008 but not yet brought into force.

The CJIA 2008 also amended s.82A of the Powers of Criminal Courts (Sentencing) Act 2000 by a provision in s.19. Although these amendments have not yet been brought into force, the CCRC relied on the provisions in support of their contentions made in the reference to the court as to the correctness of the decision in Delucca. S.19 of the CJIA 2008 added three additional subsections to s.82A (which according to the explanatory note relied on by the CCRC were intended to empower the courts to increase the minimum term). These subsections qualify the duty of the court under s.82A(3) in the manner set out in new subsection (3C) in cases of the type described in what are designated in new subsections (3A) and (3B) as Case A and Case B:

“(3A)Case A is where the offender was aged 18 or over when he committed the offence and the court is of the opinion that the seriousness of the offence, or of the combination of the offence and one or more other offences associated with it,—

(a)

is exceptional (but not such that the court proposes to make an order under subsection (4) below), and

(b)

would not be adequately reflected by the period which the court would otherwise specify under subsection (2) above.

(3B)Case B is where the court is of the opinion that the period which it would otherwise specify under subsection (2) above would have little or no effect on time spent in custody, taking into account all the circumstances of the particular offender.

(3C)In Case A or Case B above, in deciding the effect which the comparison required by subsection (3)(c) above is to have on reducing the period which the court determines for the purposes of subsection (3)(a) (and before giving effect to subsection (3)(b) above), the court may, instead of reducing that period by one-half,—

(a)

in Case A above, reduce it by such lesser amount (including nil) as the court may consider appropriate according to the seriousness of the offence, or

(b)

in Case B above, reduce it by such lesser amount (but not by less than one-third) as the court may consider appropriate in the circumstances.”

The legal issue originally raised in the third appeal

In the third appeal, Stubbings, the minimum term imposed by Macur J at the Crown Court at Stafford on 25 July 2008 was 12½ years less 262 days spent on remand. Although the sole point in issue was in the result whether, taking into account all the circumstances, the specified minimum term imposed was manifestly excessive, an issue had been raised as to whether it was permissible to arrive at a minimum term where the notional determinate sentence was greater than the maximum for any of the offences.

The contentions on the construction of the legislation

We turn next to summarise the contentions advanced:

In relation to the power of the court to impose a minimum term that was more than double the statutory maximum for the only specified offence, the contentions, in summary, were:

It was additionally submitted in relation to the qualifying notional minimum term introduced by CJIA 2008 that it was contrary to the principle to circumvent the new restriction by taking into account offences for which the offender could not have received a sentence of IPP as the offences had been committed prior to the introduction of sentences of IPP in April 2005.

In a very helpful submission made on behalf of the Secretary of State for Justice through HM Prison Service, it was explained that in practice the imposition of a consecutive sentence at the same time as a sentence of IPP had caused difficulties, but a policy had been adopted to give operational effect to cases where a court had contrary to long standing good practice passed such a sentence. HM Prison Service’s policy was to give effect to what the court had intended in such cases:

Our conclusions on the powers of the court

Although prior to the CJIA 2008, it might not have made any practical difference whether the courts imposed a consecutive term for non specified offences when imposing an IPP, it was not good practice. However, in the light of the CJIA 2008, the correct approach to the setting of the minimum term must be resolved as a matter of principle, as the power of the court is constrained by the requirement that the minimum term be two years.

We agree with the view expressed in Delucca that when a court imposes a sentence of IPP, it is self evidently not imposing a term of imprisonment limited by the statutory maximum for a determinate sentence. It is imposing an indeterminate sentence the effect of which has been made clear beyond argument in Secretary of State for the Home Department v James [2009] UKHL 22; the offender remains in lawful custody until he demonstrates to the Parole Board he is safe to be released.

The fixing of the minimum term is, nonetheless of great importance as it entitles the offender to require the Parole Board to consider his release. The principles are however clear. The legislation which has been broadly the same since 1991 requires the court to have regard to the seriousness of the offence or offences associated with it. The long standing Practice Directions and decisions of this court have provided guidance as to how a judge should approach that assessment. As it is also clear from very long standing practice that a court should not impose consecutively an indeterminate sentence at the same time as a determinate sentence, it must follow that a court, in considering the notional determinate sentence it would have passed, must have regard to the totality of the sentences it would have passed for all the offences before it. If it did not, but was constrained to pass a determinate sentence only by reference to the single offence, it would be disregarding the requirements imposed on the court by Parliament since 1991 which require that the penal element for the totality of the offending be expressed in the minimum term – a consideration that underlies the whole of the statutory regime.

It therefore must follow that the notional determinate term for the purposes of a sentence of IPP for an offender being sentenced for several offences where consecutive sentences would have been appropriate if determinate sentences had been passed, will be greater than the notional determinate term for the offence in respect of which the sentence of IPP is being imposed. Where a sentence of IPP is being imposed for a single offence, then as Rose LJ said in Lang, it would be difficult to see how the penal element could exceed half the statutory maximum for that offence, as in enacting the statutory maximum Parliament would have expressed its view as to the penal element. But where there are offences associated with that offence, that consideration can no longer apply. The court is imposing an indeterminate sentence to reflect the risk of serious harm, and then imposing a minimum term for the penal element to take account, as Parliament requires, of the totality of the offending before the court. In such a case, it is irrelevant that the notional determinate sentence which takes into account all the offences may exceed the statutory maximum for the one offence in respect of which the offender is given an indeterminate sentence.

The same considerations apply to the duty of the court after the amendment made by the CJIA 2008 where it has to consider more than one offence at the time of sentencing. A court must first determine whether an indeterminate sentence is appropriate having regard to the provisions in respect of dangerousness. It must then consider a notional determinate sentence which reflects the totality of the offending; the court must normally take half of that sentence, prior to the deduction of time on remand, as the minimum term. Provided that minimum term is more than 2 years, then a sentence of IPP can be imposed.

The evident purpose of the amendments effected by the CJIA 2008 was to give the court greater discretion in determining whether a person was dangerous and in the consequences of such a finding, but that if he was, then he could not be sentenced to IPP unless the penal element of the sentence was more than 2 years. It did not change the basis on which the totality of the seriousness of the offences was to be taken into account in arriving at a penal element. Indeed that was made clear by this court in R v C [2008] EWCA Crim 2790 at paragraph 13:

“The length of the minimum term is governed by s.82A(3) of the 2000 Acts which for present purposes is not affected by s.19 of the 2008 Act. Section 82A(3)(a) provides that the determination of the “tariff” should reflect ”

“(a)

… the seriousness of the offence, or the combination of the offence and one or more offences associated with it”,

but disregarding the credit which would normally be due for time already spent in custody. We have already recited the way in which an associated offence is defined for these purposes ([5] above). The definition therefore includes both “ordinary” specified offences, and non-specified offences. Consideration of these statutory provisions led the Court to a number of cases, such as O'Brien and O'Halloran and to conclude that the combined totality of the offending should be reflected in the assessment of the notional term for the purposes of condition 3B. The amending legislation in the 2008 Act was enacted in the context of existing jurisprudence. If any change of practice had been intended, some indication to that effect would have been included in the amending statute. There is none. Moreover, if the offender's overall criminality requires a sentence in excess of the minimum laid down in condition 3B, and the court is satisfied of the necessary risk, it would be illogical for the protective powers inherent in imprisonment for public protection to be unavailable. Accordingly, condition 3B may be established notwithstanding the absence of an individual offence for which a four-year term would be appropriate. We should perhaps add that s.225(3)C excludes any deduction for the purposes of time spent on remand from the calculation of the minimum term for the purposes of condition 3B

We do not attach weight to the argument of the CCRC on the provisions of s.19 of the CJIA which have not been brought into effect. In our judgement, the practice of the courts and their interpretation of the legislation clear. It is, in what Moses LJ aptly described as “arcane provisions”, not sensible to take s.19 as empowering the court for the first time, when the court have plainly considered that they have had that power for a long time.

Nor does it matter that some of the offences occurred prior to April 2005 when the IPP regime entered into force, provided that the offence in respect of which the sentence of IPP was imposed occurred after the regime entered into force. The indefinite sentence is the result of that offence, but the minimum term is calculated by reference to all the offences.

It is clearly established that in assessing the dangerousness of an offender, the court was entitled to have regard to matters occurring before April 2005: see Stannard [2008] EWCA Crim 2789. As the court is imposing punishment for all the offences before it, it must follow that the court must have regard to all the offences including those before April 2005 when assessing the notional determinate term. There is no infringement of the principle against retrospective penalties provided that the offence for which the IPP is imposed occurred after the entry into force of the IPP regime in April 2005. The sentence of IPP is imposed for the offence committed after the entry into force of the regime and is assessed by reference to the dangerousness of the offender at the time of sentence. The calculation as to the minimum term by taking into account the whole of the offending behaviour reflected in the other offences before the court, including those occurring before April 2005, cannot infringe any principle. There is no infringement against the principle of retrospective penalties, as the minimum term is calculated by reference to the determinate sentences to which the offender would have been subject at the time the other offences were committed; the penal element of the minimum term is the same as if determinate sentences had been passed.

We now turn to our conclusions in each appeal

The appeal in Delucca

In our view, for the reasons, we have given the court was entitled to have regard to the seriousness of all the offending before it and to impose the minimum term that it did. Although it is bad practice, it is right to observe that the court would have had power under the legislation to impose a consecutive sentence to reflect the overall criminality and HM Prison Service would have lawfully operated that sentence in exactly the same way as the minimum term that has been imposed.

Grounds were advanced specific to the facts of the case, it was contended that the notional determinate sentence was too long. It was necessary for us to consider those separately and for reasons then given, we do not accept that contention.

The appeal in Murray

In our view, for the reasons, we have given the court was entitled to have regard to the all the offences on the indictment and to impose the minimum term that it did. Murray’s offences plainly merited a very significant determinate term.

It could not be argued, and was not argued, that if the legal arguments failed that the minimum term was excessive or wrong in principle. As the legal argument has failed, the appeal must therefore be dismissed.

The appeal in Stubbings

As we have mentioned, the appeal in Stubbings was in the result confined to a submission that the minimum term of 12½ years was manifestly excessive. That submission was put forward by Mr Whitehead on behalf of Stubbings; it was a model of advocacy to which we would like to pay especial tribute for the way in which it was formulated and advanced.

The appellant’s role

It is necessary to set out the role the appellant played and to describe the activities which he procured and which brought upon him at the age of 55 a minimum term of such severity.

He had been a management consultant for some years and plainly had a comfortable lifestyle. However, in 2004, the appellant founded with others a closely-knit group of paedophiles. The group had about 50-60 active contributors. It operated internationally and included members from Europe, Japan and the US. It had an obvious hierarchy with members of the group having responsibility for functions such as membership, security and finance, as the group collected money which financed the production of pornographic material. The appellant was second in command of this worldwide group and there was clear evidence to show he played a key role in commissioning and procuring hard core paedophilic pornography.

It could be shown that in 2006, acting as treasurer of the group, he posted messages asking for funds to purchase more pornographic material. He set up a number of e-gold accounts so that members of the group could place money into them. It is also clear, as the judge found, that the appellant was interested in the commercial exploitation of the material beyond the group so that funds could be obtained for the production of more child pornography.

The group used highly sophisticated encryption methods to stop persons infiltrating the group. The members kept themselves anonymous and concealed their true identity from one another in an attempt to avoid detection. The appellant adopted several pseudonyms. To conceal his true identity, he went out of his way on occasions to try and ensure that people really thought he was a woman. The appellant played a leading role in the maintenance of this system. Key codes and passwords only known to members of the group were used. The pornographic material could only be accessed by passwords, encrypted and broken down so that they were very difficult to detect.

E-mail traffic demonstrated that the appellant knew that he was encouraging the production of extreme pornography for his own sexual gratification and that of others. Some of the children were very young; they came from different states including at least one in the Far East; the subject matter was often extreme with many forms of sexual activity and perversion being available. He knew that this was conduct that the law enforcement authorities were trying to detect and eradicate, as it involved the grooming, degradation and corruption of children worldwide.

Eventually law enforcement authorities gained access to the group and were able to find still and video images being distributed by members of the group. Although details of the appellant became known to the police by August 2006 he was not arrested until February 2008.

When he was arrested in February 2008, a vast number of images and films were found. There were 17,000 level 1 images and 31 films at level 1. There were 152 images and seven films at level 2, 1,219 images and three films at level 3. More seriously there were eight films and 1,514 images at level 4 and at level 5 there were 640 images and 85 films.

When the appellant was interviewed, he admitted:

He told the psychiatrist who examined him that he had been interested in child pornography since 1997 and was sexually attracted to prepubescent girls. He considered that it should be legal to engage in the activities in which he had engaged and denied that they had any detrimental effect on the children.

After his arrest on 28 February 2008, the proceedings were progressed speedily; a PCMH fixed for 19 May 2008 had to be adjourned as the papers were only served the day before. At the resumed PCMH, he pleaded guilty to all the counts save one; he subsequently pleaded guilty to that on 13 August 2008.

The judge viewed a portion of the material found in the possession of the appellant; we were asked to do the same and did so. We feel compelled to give a brief description of the material, as it demonstrates the extreme nature of the degradation and perversions and consequent harm inflicted on the children and which the appellant played a significant role in procuring.

Counts 4 and 7

Count 4 was the procurement between 1 January 2005 and 20 June 2006 of the production of pornographic videos of a child called Daphne. Daphne was at that time aged 9-10 and had a sister Kimberly 15 months older. Their father, a Belgian, had begun the sexual abuse of his daughters in 2005; he had placed numerous advertisements offering his daughters as photo models. Responses were made to those advertisements by paedophiles. In September 2005 the father used an Italian photographer to make a series of pornographic films involving the children.

There were several films involving these girls, one of which, an hour long and filmed in June 2006, formed the basis of count 4; it showed Daphne engaged in masturbation, using vibrators and then in sexual activities, including simulated intercourse and oral sex with her father.

It is clear from the e-mail traffic that Stubbings received money that went towards the production of these films. The e-mail traffic on Stubbings’ computer disclosed e-mails suggesting that the girls should masturbate to orgasm, they should use toys, they should moan with pleasure and engage together in sexual activity. Some of these e-mails made clear that the funds collected by the group should be used for these purposes. Some e-mails set out in detail the sexual gratification that the paedophile group had derived from the film that was the subject of Count 4 with further suggestions as to activities that the young girls should perform. The appellant responded to one request for more graphic images: “I would guess that could be possible”.

There were several films involving Kimberly, Daphne’s elder sister. Count 7 alleged the arranging or facilitating of child pornography between 20 June 2006 and 27 July 2006 in relation to one of these videos that showed Kimberley engaged in sexual activity, including masturbation, with Daphne. The e-mail traffic relating to these images was very similar to the e-mail traffic in relation to count 4.

Counts 5 and 6

Two further counts, counts 5 and 6, charged the appellant with arranging or facilitating the commission of a child sex offence in respect of Daphne and Kimberly. Although separate offences to those in Counts 4 and 7 they were based on the same facts.

Counts 8-10

These counts charged the making, distributing and possessing indecent images of children offences contrary to s.1(1)(a) of the Protection of Children Act 1978. The images were largely still images; a number were at level 5 and some were moving pictures. The gravamen of the appellant’s conduct was his involvement in procuring the making of the images through the network of which he was a party. The images so procured included child pornography of the most extreme kind, including masturbation, vaginal and oral sex, ejaculation over children, the use of dogs for oral sex, bestiality, sadism through tying up with chains or ropes sometimes with objects inserted into the children’s vaginas, caning, birching and whipping and the binding of children to expose their genitalia or anuses sometimes in close contact with or being penetrated by adult male genitalia or other objects (such as knives, wires, needles or rods). In some the children were as young as 1 or 2; this was plainly appreciated as the name of the files contained references to “baby”; the majority were 11 or older. The pain inflicted on some children was evident in the still images from the expressions on faces or welts on their bodies; captions emphasised the degradation to which they had been subjected and the gratification that this would provide to the appellant’s group. For example, a naked 10 year old girl was shown with a knife held close to her vagina with the words “Cut me” written on her abdomen; a number of stills showing beating of naked children with captions such as, “This little pre-teen girl slave savaged from the intensity of the punishment after Daddy lovingly disciplined her”. Screams could be heard on the videos where children were beaten on their naked buttocks or had objects or penises inserted into their vaginas or anuses; bleeding could be seen in some videos. A number of the images showed children in the Far East, making clear the extent of reach of this group.

Count 1

There was a further count of indecent assault on a young girl who was a friend of his daughter beginning when she was 7 or 8 between January 1996 and December 2000; the appellant put his hand under her trousers on occasions and rubbed her over her vagina. Stubbings admitted doing so on one occasion. The appellant subsequently wrote an account of this which he circulated to the paedophile group; he claimed that account was an embellishment of the one occasion which he had admitted.

The notional determinate term

The determinate terms which the judge indicated she would have imposed in arriving at that minimum term were:

The judge considered that total determinate sentence therefore prior to the plea of guilty would have been in total, 33 years. The appellant had been caught red handed and that he had but little option to plead guilty. He showed no remorse. The appropriate discount should be one of 25%. The judge therefore reached the notional determinate sentence as one of 25 years.

The submissions

The approach to the sentence which it was accepted was rightly taken on counts 4 and 7 and counts 9 and 10 was that the appellant was at the centre of procurement and payment for and distribution of extreme child pornography. But it was submitted that as Parliament had specified a maximum term of 14 years for counts 4 and 7 and 10 years for counts 9 and 10, it was not correct in principle to take a starting point, having regard to the principle of totality, so close to the maximum on counts that were so closely related. Although it was accepted that the judge had been right to make the terms on counts 9 and 10 consecutive to the terms on counts 4 and 7, as counts 4 and 7 related to the same activity, the notional terms on each of those counts should not have been calculated by making the terms consecutive to each other.

It was also submitted that the judge had no paid any real regard to the personal mitigation; the appellant had lived an unblemished life and had no previous convictions; he would, on the basis of the minimum term imposed be 68 before he would be entitled to be considered for parole.

It was further submitted that the reduction for the guilty plea should not have been reduced to 25% and he should have received a full one third credit. The appellant had pleaded guilty at the earliest available opportunity. He had saved a 2-3 week trial with consequent saving of expense and reduced the stress that would otherwise have been caused to young complainants giving evidence. His lack of remorse should not have resulted in the reduction of the credit to which he was entitled by reason of his early plea. He relied in support of his submission on paragraphs 2.2 and 2.4 of the Sentencing Guidelines Council Guideline on Reduction in Sentence for Guilty Plea (2007 revision). This provides:

“2.2

A reduction in sentence is appropriate because a guilty plea avoids the need for a trial (thus enabling other cases to be disposed of more expeditiously), shortens the gap between charge and sentence, saves considerable cost, and, in the case of an early plea, saves victims and witnesses from the concern about having to give evidence. The reduction principle derives from the need for the effective administration of justice and not as an aspect of mitigation.

2.4

When deciding the most appropriate length of sentence, the sentencer should address separately the issue of remorse, together with any other mitigating features, before calculating the reduction for the guilty plea. Similarly, assistance to the prosecuting or enforcement authorities is a separate issue which may attract a reduction in sentence under other procedures; care will need to be taken to ensure that there is no “double counting”.”

He also referred us to the passage in Archbold (2010 edition) at paragraphs 5-83a. The appellant should accordingly have received maximum credit.

Our conclusions

The offences charged on counts 4 and 7 and 9 and 10 on the indictment were instances of conduct involving the commissioning and encouragement of child pornography exhibiting sexual perversion of an extreme kind involving a large number of children in several countries over a four year period. This criminality had to be reflected by calculating the notional determinate sentence on the basis that the terms should be consecutive. The judge’s approach cannot be faulted in any way. She rightly did not make the terms of imprisonment for the conduct reflected in counts 5 and 6 which was based on the same conduct as that charged in counts 4 and 7 consecutive to the terms on counts 4 and 7, but she was right in making the terms on counts 4 and 7 consecutive to each other. That was necessary properly to reflect the grave criminality involving different children.

The judge was also right to take starting points close to the maximum as these were for the reasons given offences of the most serious kind. There were no grounds to reduce them for totality – the high starting points viewed in the overall context properly reflected the seriousness of the offending

There was little mitigation in Stubbings’ personal circumstances. Such as there was, was properly reflected by the judge’s express consideration of his previous good character when determining that the minimum term should be half of the notional determinate sentence. The fact that he might not be considered for parole until he is 68 is irrelevant given the seriousness of his offending.

The judge was also correct in only allowing a reduction of 25% for his guilty plea. Stubbings was caught red handed; in the light of the material on the computer, he had no real option but to plead guilty. The case was overwhelming. That was in itself sufficient to permit a reduction of only 25%.

The judge also took into account a lack of remorse. Indeed, far from expressing remorse, Stubbings continued to claim that the degradation to which the children were subjected was enjoyed by them. His statement that he would not engage in this procuring or downloading child pornography was a statement designed to try and mitigate the severity of the sentence and not a statement of contrition or regret. As the judge said, the only matter that Stubbings regretted was that the security systems had failed to prevent his detection.

It is clear the judge took this lack of remorse into account as a reason for not giving him a greater reduction than 25%. Although, in the light of our conclusion, that the overwhelming nature of the case meant that a reduction of 25% was appropriate it is not strictly necessary that we address the way in which the judge took into account the lack of remorse. We agree, however, with the observations expressed in Barney and Barney [2007] EWCA Crim 3181, [2008] 2 Cr App R(S) 37 where the court stated that questions of remorse cannot, despite the passage in the foreword of the original Sentencing Guidelines Council’s Guidelines and paragraphs in the Sentencing Guidelines Council’s revised Guidelines, be entirely divorced from the question of plea. We would again emphasise that it is important for judges to look at the sentence in the round and to reflect remorse, or in this case, lack of remorse in the sentence passed. It would have been possible to express the lack of remorse in this case in concluding there was no personal mitigation or, as the judge did, in refusing to increase the discount for a guilty plea. The result in setting the overall sentence would have been the same.

In our judgment, those who engage in the procurement of child pornography on a significant scale must expect severe punishment. It inflicted unimaginable degradation and very serious harm on children in many countries. The depravity it represents is beyond the comprehension of any ordinary person. Such conduct must be deterred and punished. Stubbings was at the centre of procurement of the extreme pornography described for a period of over four years. The harm he caused over that period is incalculable. A minimum term of the length imposed by the judge was entirely merited both to punish him and to deter others from engaging in this destructive and perverted activity.

The appeal is dismissed.