Burinskas, R v

The eight cases before the court give rise to a consideration of the effect upon sentencing of amendments to the dangerous offender provisions in Chapter 5, Part 12 of the Criminal Justice Act 2003 (CJA 2003) made by the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO). In six cases life sentences were passed. In the other two extended sentences were passed.

There are seven applications for permission to appeal against sentence which were referred to the Full Court by the Registrar. There is also an application by HM Attorney General under s.36 of the Criminal Justice Act 1988. Save when dealing with the detail of the Attorney General’s application (Burinskas) we shall refer to all those whose sentences we are considering as appellants. They are all over 21. We grant leave to the Attorney General and have substituted a life sentence. Although we have only quashed the life sentence in two of the appeals and substituted extended sentences for public protection, we grant leave in all cases.

The legislative background

The position before the CJA 2003

In the years prior to the Criminal Justice Act 2003, there were three kinds of indeterminate sentence:

IPP

The dangerous offender provisions of the CJA 2003 enacted, in addition to a sentence of life imprisonment, a new form of indeterminate sentence - the sentence of imprisonment for public protection (IPP). The conditions for the imposition of a sentence of IPP were modified in 2008. As we explain at paragraphs 13-14, this court set out the considerations that a court should take into account when deciding whether to pass a sentence of IPP or a life sentence.

The sentences available after the changes made by LASPO

In 2012, s.123 of LASPO abolished the sentence of IPP (and the equivalent for juveniles (Detention for Public Protection)) and established a new sentencing framework. Before turning to examine the provisions in detail, it is helpful to outline the new provisions.

We are solely concerned in this judgment with life sentences passed under s.224A and s.225 of the CJA 2003 (as amended by LASPO) and extended sentences. We do not deal with:

The sentence under s.224A: life imprisonment for a second listed offence

Section 224A was inserted by s.122 of LASPO. It introduces a new and separate route for a court to consider which might result in a life sentence. It provides in (1) –(4):

“(1)

This section applies where-

(a)

a person aged 18 or over is convicted of an offence listed in Part 1 of Schedule 15B,

(b)

the offence was committed after 3^rd December 2012, and

(c)

the sentence condition and the previous offence condition are met.

(2)

The court must impose a sentence of life imprisonment unless the court is of the opinion that there are particular circumstances which-

(a)

relate to the offence, to the previous offence referred to in subsection (4) or to the offender, and

(b)

would make it unjust to do so in all the circumstances.

(3)

The sentence condition is that, but for this section, the court would, in compliance with sections 152(2) and 153(2) impose a sentence of imprisonment for 10 years or more, [or, if the person is aged at least 18 but under 21, a sentence of detention in a young offender institution for such a period disregarding any extension period imposed under section 226A].

(4)

The previous offence condition is that-

(a)

at the time the offence was committed, the offender had been convicted of an offence listed in Schedule 15B (“the previous offence”), and

(b)

a relevant life sentence of a relevant sentence of imprisonment or detention for a determinate period was imposed on the offender for the previous offence”.

We do not need to refer to the other subsections. Schedule 15B is inserted by operation of Schedule 18 to LASPO.

It may be helpful to make three observations about this section, though none of the cases before us directly raise its application:

The sentence under s.225: life imprisonment for serious offences

The terms of s.225

S.225 of the CJA 2003 applies where a person is convicted of a serious offence after 3 December 2012 and the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences. S.224 of the CJA defines a specified offence and a serious offence:

If s.225 applies on the basis to which we have referred in the preceding paragraph, then s.225(2) provides that if

“(a)

the offence is one where the offender would be liable for 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, sentence of custody for life.”

Where the sentencing judge is satisfied in the exercise of his judgment that an offender is dangerous and that the two conditions at s.225(2)(a) and (b) are met, there is no discretion. He must pass a life sentence.

Section 226 sets out the position for an offender under 18.

The meaning of the condition set out in s.225(2)(b)

The critical issue is the interpretation of the condition in s.225(2)(b). In several of these appeals the advocates submit that life sentences had been imposed by the judges where in the previous regime between 2005 and 2012 the sentence would have been IPP. As Parliament had abolished the sentence of IPP, then it was wrong in principle to impose the greater sentence of life imprisonment. All of the appellants have relied on the well-known decisions of this court in R v Kehoe [2008] EWCA Crim 819 and R v Wilkinson [2009] EWCA Crim 1925, amongst others.

In those cases the Court of Appeal set out the approach to be taken when dealing with a dangerous offender when there were available two types of indeterminate sentence which were for most offenders of precisely the same effect. Lord Judge CJ set out the differences between them in Wilkinson; where an offender was the subject of IPP, the Parole Board had the power to direct that supervision should cease 10 years after the offender’s release on licence. That power was not available in respect of a life prisoner. A whole life order was available only when a life sentence was passed. Otherwise the sentences, once imposed, were of the same practical effect. Lord Judge CJ said at paragraph 17:

“The crucial difference between a discretionary life sentence and a sentence of imprisonment for public protection arising at the time of sentence was the seriousness of the instant offence as assessed in the overall statutory context.”

Later he said at paragraph 19:

“In our judgment it is clear that as a matter of principle the discretionary life sentence under s. 225 should continue to be reserved for offences of the utmost gravity. Without being prescriptive, we suggest that the sentence should come into contemplation when the judgment of the court is that the seriousness is such that a life sentence would have what Lord Bingham observed in Lichniak [2003] 1 AC 903 would be a “denunciatory” value, reflective of public abhorrence of the offence, and where, because of its seriousness, the notional determinate sentence would be very long, measured in very many years.”

The nub of the Court’s reasoning in R v Kehoe is set out at paragraph 17:

“When, as here, an offender meets the criteria of dangerousness, there is no longer any need to protect the public by passing a sentence of life imprisonment for the public are now properly protected by the imposition of the sentence of imprisonment for public protection. In such cases, therefore, the cases decided before the CJA 2003 came into effect no longer offer guidance on when a life sentence should be imposed. We think that now, when the court finds that the defendant satisfies the criteria for dangerousness, a life sentence should be reserved for those cases where the culpability of the offender is particularly high or the offence itself particularly grave.”

On the facts of that case the life sentence was quashed and replaced by a sentence of IPP.

In our judgment decisions about the circumstances in which a life sentence was appropriate handed down during the currency of the version of the CJA which was in force between 3 April 2005 and 3 December 2012 are now of limited assistance. It is necessary for us to have regard to the whole of the new provisions to ascertain what Parliament intended.

Although the provisions of s.225 in respect of life sentences remain the same, the statutory context in which they are to be interpreted is fundamentally changed. The issue for this court in the cases decided after the coming into force of the CJA 2003 in April 2003 and before the LASPO amendments coming into force in December 2012 was how the distinction between two types of indeterminate sentence was to be reflected in the sentence of the court. The reasoning depended on and was occasioned by the existence of two forms of indeterminate sentence. IPP no longer exists.

We cannot interpret the provisions in relation to dangerous offenders in s.225 as now enacted as though the sentence of IPP continues to exist. We interpret the provision in the light of the new regime which includes s.224A and the new extended sentences.

Save where imposed under s.224A, a life sentence remains a sentence of last resort. Where, as with IPP, there was an alternative indeterminate sentence short of that last resort, the courts could impose it. That is no longer the case. It is inevitable therefore that sentences of life imprisonment will be imposed more frequently than before the changes introduced by LASPO.

We agree with the view of Lord Judge CJ in Saunders that the new extended sentence cannot be treated as a direct replacement for the old IPP. This court there concluded that where the court is faced with facts which, prior to the enactment of LASPO would have led the court to pass an IPP, it may well be necessary to pass a life sentence. We have considered what we regret to describe as intemperate criticism of the decision in Saunders. There is no basis whatsoever for the suggestion that the court emasculated the legislation and interpreted the section contrary to the intention of Parliament which was said to be to restrict the discretionary life sentence under s.225 to cases where life imprisonment would have been imposed during the currency of a sentencing regime which included IPP. The intention of Parliament is to be ascertained from a consideration of the whole of the provisions as amended, as we have set out.

We have also considered the cases decided on the law as it was before the CJA 2003 came into force. The guidance given to sentencing courts in relation to the imposition of a life sentence was set out in a number of authorities including R v Hodgson (1968) 53 Cr App R 113, R v Wilkinson (1983) 5 Cr App R (S) 505, AG’s reference no 32 of 1996 (Whittaker) [1997] 1 Cr App R(S) 261 and R v Chapman [2000] 1 Cr App R 77. In Whittaker, Lord Bingham, CJ, said there were two conditions which had to be satisfied before a discretionary life sentence could be passed. First, the offender should have been convicted of a very serious offence. Second there should be good grounds for believing that the offender may be a serious danger to the public for a period which cannot reliably be estimated at the date of sentence. Lord Bingham observed that a discretionary life sentence should be passed only in the most exceptional circumstances.

Most recently, in R v DP [2013] EWCA Crim 1143 this Court dealt with a case with a number of similarities to the eighth case before us. In DP the conviction predated 3 December 2012, the date from which the relevant amendments under LASPO came into force. The conduct which led to the conviction took place before the CJA 2003 came into force on 3 April 2005. It was common ground that the judge had to sentence in accordance with the sentencing regime that existed before that date. This Court upheld a sentence of life imprisonment in respect of a count of assault by penetration contrary to s.6(1) of the Sexual Offences Act 2003. On behalf of the appellant it was argued, in submissions which were echoed in some of these cases, that the judge, unable to pass a sentence of IPP considered himself compelled to pass a life sentence. (There was, however, available at that time a longer than commensurate sentence, by operation then of s.82(2)(b) of the Powers of Criminal Courts (Sentencing) Act 2000). The court applied the law as set out in the cases to which we have referred.

In our judgment, taking into account the law prior to the coming into force of the CJA 2003 and the whole of the new statutory provisions, the question in s.225(2)(b) as to whether the seriousness of the offence (or of the offence and one or more offences associated with it) is such as to justify a life sentence requires consideration of:-

It is inevitable that the application of s.225 in its current form will lead to the imposition of life sentences in circumstances where previously the sentence would have been one of IPP. It is what Parliament intended and also ensures (as Parliament also intended), so far as is possible, the effective protection of the public.

Extended sentences for public protection

S.226A is in effect a new provision for extended sentences. It is entitled, “Extended sentence for certain violent or sexual offences: persons 18 or over”. It provides:

“(1)

This section applies where-

(a)

a person aged 18 or over is convicted of a specified offence (whether the offence was committed before or after this section comes into force),

(b)

The court considers that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences,

(c)

The court is not required by section 224A or 225(2) to impose a sentence of imprisonment for life, and

(d)

Condition A or B is met.

(2)

Condition A is that, at the time the offence was committed, the offender had been convicted of an offence listed in Schedule 15B.

(3)

Condition B is that, if the court were to impose an extended sentence of imprisonment, the term that it would specify as the appropriate custodial term would be at least 4 years.

(4)

The court may impose an extended sentence of imprisonment on the offender.

(5)

An extended sentence of imprisonment is a sentence of imprisonment the term of which is equal to the aggregate of-

(a)

the appropriate custodial term, and

(b)

a further period (the “extension period” for which the offender is to be subject to a licence

(6)

The appropriate custodial term is the term of imprisonment that would (apart from this section) be imposed in compliance with section 153(2).

(7)

The extension period must be a period of such length as the court considers necessary for the purpose of protecting members of the public from serious harm occasioned by the commission by the offender of further specified offences, subject to subsections (8) and (9).

(8)

The extension period must not exceed-

(a)

5 years in the case of a specified violent offence, and

(b)

8 years in the case of a specified sexual offence.

(9)

The term of an extended sentence of imprisonment imposed under this section in respect of an offence must not exceed the term that, at the time the offence was committed, was the maximum term permitted for the offence.

(10)

In subsections (1)(a) and (8), references to a specified offence, a specified violent offence and a specified sexual offence include an offence that-

(a)

was abolished before 4 April 2001, and

(b)

would have constituted such an offence if committed on the day on which the offender was convicted of the offence.”

There is no need to set out the remaining subsections. S.226B applies to those under 18. Three points arise.

Determinate Sentences

It should not be overlooked that s.226A(4) makes the imposition of this sentence discretionary. As was the case under the previous regime, even where there is a finding of dangerousness, an ordinary determinate sentence is sometimes appropriate. In two of these cases the sentencing judges expressed the view during argument (without correction) that where a finding of dangerousness had been made there were only two sentencing options: life imprisonment or an extended sentence. Where a life sentence is not justified an extended sentence will usually, but not always, be appropriate. The option of a determinate sentence should not be forgotten.

The nature of public protection under an Extended Sentence

As is plain from the terms of the legislation, an extended sentence does not involve the imposition of a custodial term longer than is commensurate with the seriousness of the offence. The extension is to the period of licence which is of the length the court considers necessary for the purpose of protecting the public from serious harm, subject to a maximum of five years in the case of a specified violent offence and eight years in respect of a specified sexual offence. Inherent in those provisions is the principle that it is the extended period of licence that provides protection to the public.

This is quite different from a sentence of IPP where the period of custody was brought to an end only with the approval of the Parole Board at some stage at or after the completion of the minimum term. Further protection was provided by the period of licence thereafter.

Early release under s.246A of the CJA 2003

S.125 of LASPO introduced a new regime of early release for prisoners serving extended sentences by adding s.246A to the CJA 2003. S.246A has the practical effect of significantly increasing the time served in custody, without increasing the appropriate custodial term as defined earlier in the statute. Where the custodial term imposed is 10 years or more (or the offence is listed in Schedule 15B) the offender is not entitled to be released until the end of that term. Once he has served two thirds of the custodial term (the requisite custodial period) he is eligible to be considered for parole which may lead to his earlier release. Where the custodial term imposed is less than 10 years and the offence is not one listed in Schedule 15B the offender is entitled to release after completion of the requisite custodial period (two thirds of the sentence). There is no requirement for an assessment by the parole board. He will then be subject to the licence period, as extended.

Those serving extended sentences imposed under ss.227 or 228 of the CJA 2003 after 14 July 2008 are still entitled to release after completing one half of the custodial term. Those serving extended sentences imposed before 14 July 2008 are only eligible for release at the halfway point and require a direction of the Parole Board for release before the end of their custodial term.

We proceed on the basis of the position under the law as it currently stands, though further changes may be made. We hope they will simplify rather than complicate the provisions.

The effect of the provisions for early release in life cases

We turn next to consider the effect of the provision for early release on life sentence cases.

An offender serving a life sentence is not considered for parole until he has served the minimum term. The length of the minimum term for prisoners sentenced to a mandatory life sentence is set by operation of s.269 and Schedule 21 of the CJA 2003. The minimum term in all other life sentences is set by application of s.82A Powers of the Criminal Courts (Sentencing) Act 2000 (the 2000 Act). The minimum term is the part of the sentence 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 240ZA of the Criminal Justice Act 2003 (crediting period of remand in custody)….if it had sentenced him to a term of imprisonment and c) the early release provisions as compared with s.244 of the CJA 2003. Where an offender is 21 or over the judge may, because of the seriousness of the offence or of the combination of the offence and one or more offences associated with it, direct that there be no minimum term and that the early release provisions shall not apply (see s.82A(4) PCC(S)A 2000). We are not aware that this course has ever been taken where a discretionary life sentence has been passed.

The effect of s.82A is to require the sentencing judge to identify the sentence that would have been appropriate had a life sentence not been justified and to reduce that notional sentence to take account of the fact that had a determinate sentence been passed the offender would have been entitled to early release.

When imposing a discretionary life sentence judges reduce the notional sentence by one half to reach the minimum term. That approach was endorsed in R v Szcerba [2002] EWCA Crim 440, although the court said there might be cases in which, exceptionally, the reduction might be less than one half. When Szcerba was decided any prisoner serving a sentence of four years or more (a “long term prisoner”) was eligible for release at the halfway point of his sentence, but not entitled to release until the two thirds point. The courts did not change their approach when, by operation of s.244(1) and s.249(1) of the CJA 2003 all prisoners serving determinate sentences became entitled to release at the halfway point of their sentences. We note that s.82A (3A) – (3C) of the Powers of Criminal Courts (Sentencing) Act 2000 permit a sentencing judge to reduce the notional determinate term by less than one half in some cases. These provisions were inserted by the Criminal Justice and Immigration Act 2008. They are not in force.

A number of advocates drew to our attention what they described as an anomaly caused by the provisions for early release in respect of the new extended sentences. The effect is that a life prisoner may serve less time in prison than an offender serving the custodial term of an extended sentence even though the appropriate custodial term is the same. Offender A, subject to a life sentence, is given a minimum term of five years on the basis that but for the life sentence he would have been sentenced to a 10 year determinate sentence. He serves five years before being considered for parole. He may be released at that stage. Offender B is made the subject of an extended sentence. The appropriate custodial term is 10 years. Offender B is not eligible for release until he has served two thirds of his sentence. Even if he is released at that point he will have spent longer in prison than the life prisoner who has been released at the first opportunity. Thus the first opportunity for release occurs sooner for the life prisoner than for the prisoner serving an extended sentence.

We understand the argument, but the position is more complex. A life prisoner is not entitled to release at the end of the minimum term. He must wait until the Parole Board consider that it is safe to release him. In some cases that date is years after the minimum term has expired. The prisoner serving an extended sentence is entitled to be released at the end of the custodial period without any further assessment of risk. Where the custodial term is less than 10 years the entitlement arises at the two thirds point.

There is an argument that if the alternative to a life sentence is an extended sentence rather than a determinate sentence then it is the extended sentence, with its longer time to serve, that should form the basis of the calculation of the minimum term in a life sentence. That would reduce the notional determinate sentence by one third rather than one half and would lead to an increase in the minimum term to be served in life cases of one third. There are four difficulties with that approach:

Other than when fixing the minimum term in life cases in the way we have just described, a sentencing judge may not, when sentencing, take account of the early release provisions – see R v Round and Dunn [2009] EWCA Crim 2667 at paragraph 44, Hughes LJ said,

“the general principle that early release, licence and their various ramifications should be left out of account upon sentencing is ...a matter of principle of some importance”.

We agree. It is not for the court to correct the anomaly, if anomaly it be, by reducing the appropriate term to take account of the early release provisions. That would, in our judgment offend the general principle and undermine the purpose of s.246A which is to ensure that those subject to the new extended sentences serve one third more of the appropriate custodial term than those sentenced under the old regime.

In the Attorney General’s reference (Burinskas) the sentencing judge reduced the custodial term by one year to reflect the fact that the time to be served had been increased. Mr Kirk, for the offender submitted that the judge’s approach echoed that of the Sentencing Guidelines Council when the new, more demanding, sentences under the CJA 2003 came into effect. Under the heading “Transitional arrangements” the Council pointed out that sentencing guidelines issued since 1991 had been based on a different framework from that introduced by the CJA 2003 to which we have already referred. It was considered that during a period of transition a general reduction in sentence length of 15% should be applied to “fixed term custodial sentences of 12 months or more” (see paragraph 2.1.9). We remind ourselves that the proposal did not apply to the new sentences for dangerous offenders. There has been no proposal for a similar direction in the light of the new regime. Accordingly, no reduction in sentence may be made to reflect the new early release regime for extended sentences.

The general approach to sentencing where Chapter 5 applies

It may be helpful, following our analysis of the new provisions and in the light of the cases before us, to suggest an approach that a court should take when considering whether to impose a sentence under the dangerous offenders provisions of the CJA 2003 as amended by LASPO.

The first question to be considered in all cases where these provisions apply is whether the offender is dangerous. Where s.224A may be relevant there will be a temptation to move straight to a consideration of that provision. That temptation should be resisted. It may lead to the omission of the crucial first question of whether the offender is dangerous.

The order in which a judge should approach sentencing in a case of this type is this:-

No counsel sought to persuade us that this order of approach was incorrect. We are grateful to Mr Edis QC who set out the general position on behalf of the Crown and to Ms Smart who, at very short notice, set out in succinct and clear terms the general position on behalf of all the appellants, in addition to presenting the fifth case, that of Donegan.

GINTAS BURINSKAS : Reference by HM Attorney General

This is an application by HM Attorney General under s.36 of the Criminal Justice Act 1988. The offender, Gintas Burinskas, is 37. On 11 April 2013 at the Crown Court in Northampton before HH Judge Mayo he pleaded guilty to two counts: Rape contrary to s.1(1) of the Sexual Offences Act 2003 and Causing Grievous Bodily Harm with Intent, contrary to s.18 of the Offences against the Person Act 1861 (the 1861 Act). He was sentenced to an extended sentence made up of a custodial period of seven years and an extended licence period of three years. It is the Attorney General’s submission that the sentence was unduly lenient.

Facts

The offender is a Lithuanian national. He came to this country in November 2012. He had been released from prison in Lithuania on 7 August 2012, having served a 10 year prison sentence for rape. The victim of both offences, Miss W, was 31 at the time of the attack which took place in the early hours of 26 December 2012. She was walking alone along a street in Northampton. She walked past the offender. He walked up behind her and grabbed her round the throat. He put his hands around her neck and squeezed her throat. She fought him, and shouted, but he increased the pressure on her throat and she lost consciousness. She came to and started shouting again. The offender squeezed her throat again and she lost consciousness for a second time. When she next regained consciousness she was on the ground in an area surrounded by trees and bushes. The offender had pulled down her trousers and underwear. His penis was in her vagina and he had pushed up her top, exposing her breasts. She tried to push him off. He hit her repeatedly to the face and grabbed her by the throat yet again. Miss W pleaded with him to stop. He persisted for some ten minutes until he ejaculated. She then pretended to have an asthma attack. She said she needed her inhaler. The offender poured cider over her body and into her vagina. He then inserted his fingers inside her vagina, apparently trying to remove traces of his semen. The offender turned his back for a moment and Miss W tried to run away. He caught her and kicked her to the ground. He then kicked her to the head some four or five times, he stamped on her body and punched her to the stomach. He then dragged her across the road and tipped alcohol over her. She told him that she lived round the corner and suggested they could go there. As they walked past a hotel she ran inside and sought help from the hotel staff. The police were called.

When the police arrived the offender was still in the street outside the hotel. He had just begun to walk away. He was arrested and made no comment in interview. Tests on the semen taken from Miss W showed it was the offender’s.

Miss W sustained three fractures to her jaw, one of them displaced. She had lost two teeth. A pre-existing plate in her cheek bone had been dislodged. Surgery was required to rectify the damage to the jaw and face. She also suffered significant grazing and bruising to her neck and jaw.

Miss W was devastated by this incident. She had thought she was going to die. She was already suffering from mental health problems. This attack triggered a relapse into self harming and depression for which she was receiving treatment. She had become afraid to go out. Her relationship with her partner had been damaged.

Previous convictions

In 1997 and 1998 the offender was convicted of theft in Lithuania. The sentence of 10 years’ imprisonment for rape to which we have already referred was imposed in September 2002 for an offence committed in February 2002. The offender says he participated in the gang rape of a prostitute. In 2006 while serving that sentence the offender was convicted of possession of drugs and sentenced to six years and six months’ imprisonment to run concurrently with the sentence he was already serving. He was released after serving 10 years and 6 months in prison.

Reports

The judge had before him a pre-sentence report from Ms Lesley Donoghue and a psychiatric report from Dr Thirumalai, consultant forensic psychiatrist at Marlborough House Regional Secure Unit. The reports revealed a history of behavioural and psychiatric difficulties in childhood. He had been subjected to sexual abuse by his step father between the ages of 8 and 11. He told the psychiatrist that he had a history of self harming behaviour and was a heavy drinker from an early age.

The offender told the psychiatrist that by the time of the offence he had been drinking heavily for days. He had also been taking cannabis. He had been with a group of other people and had paid one of the women in the group £10 to get him some cannabis. She had not come back and he was standing waiting for her. He asserted that he had thought Miss W was the person who had gone to buy cannabis. He did not recall his attack upon her, apart from the fact that he had grabbed her and kicked her. He appeared very remorseful. He accepted the attack upon her would affect her for the rest of her life.

Dr Thirumalai concluded that the offender was suffering from a personality disorder and that he posed a significant risk of future harm to members of the pubic. It was his opinion that the risk of harm would significantly reduce in the future “should he engage well with the sex offenders treatment programme and look into any deep rooted issues.” He recommended long term management in custody and an assessment in due course of the level of risk he still posed.

Ms Donoghue reported that the offender had told her of other acts of violence which had not resulted in conviction. Although the actuarial tools she was using suggested (perplexingly, in our view) that the offender was not at high risk of reoffending, it was her conclusion based on all the information about him and the circumstances of the offence that he came within the meaning of “dangerous” within the CJA 2003. She recommended a lengthy determinate sentence followed by deportation. She considered a long period of licence in the UK was undesirable.

The judge’s approach

Before the indictment was put and before he had seen the pre-sentence report the judge indicated that he was considering an extended sentence “under the new provisions”. Shortly after the pleas were taken he indicated that, having read the papers and the reports, he did not have in mind a life sentence for a second rape. In the course of mitigation he said, correctly, that he had first to assess dangerousness. A finding of dangerousness would, he said, lead to life imprisonment “either on its own or life for a second rape”, referring, no doubt, to s.225 and to s.224A respectively, “or an extended sentence under LASPO”.

It is important to point out in fairness to the judge that this case was listed at 2 p.m. with a part heard trial due to begin at 2.30 p.m. (a defendant was in the middle of his evidence). A 30 minute time estimate for a case of this complexity and where an interpreter was required was unrealistic and inappropriate. The judge and counsel felt bound to deal with it at speed because of the pressing requirement of the other trial. The pre-sentence report was being printed and proof read as the case was being called on. The judge plainly had insufficient time properly to consider the sentencing in this difficult case.

At the end of a short mitigation the judge assessed the offender as dangerous within the meaning of the Act. We agree with that assessment. No one has sought to persuade us that he was wrong. The judge then went on to say that he had ruled out a life sentence. He did not explain why he had done so. It is not clear what, if any, consideration he gave to ss.225 or 224A. In the event he concluded that the only sentence open to him was an extended sentence. He considered that the appropriate starting point (by which he meant the sentence before reduction for the guilty plea) was one of 12 years. The judge reduced it by one third to take account of the early guilty plea which he had indicated at the preliminary hearing. It was not taken on that occasion because there was no interpreter present. The judge reduced the sentence by a further year to reflect the early release provisions to which we have already referred and arrived at a custodial term of seven years with an extension period of three years. As we have said, he imposed a concurrent sentence of four years’ imprisonment for the s.18 offence.

The submissions on appeal

On behalf of the Attorney General, Miss Whitehouse argues that this was a case for a life sentence, either pursuant to s.225 or pursuant to s.224A. Alternatively she says the extended sentence was far too short and the judge should not have given a reduction of one third, given that the evidence was overwhelming. As to the latter point we would not criticise a judge who reduces sentence by one third in a case which otherwise would have required a very vulnerable witness to be called, and where the plea was intimated at a very early stage and was indicative of some remorse. We have already accepted Miss Whitehouse’s submission that the judge should not have reduced the sentence to reflect the early release provisions.

Mr Kirk, in succinct helpful submissions, argues that the judge’s approach was correct. He accepts that the defendant represents a significant risk to members of the public of serious harm in the future, i.e. he is dangerous within the meaning of the Act. He does not accept that this was a case for a life sentence. He points to the offender’s remorse and to the fact that no attempt at rehabilitation or offence related work was made while he was serving his sentence in Lithuania. He did not seek to persuade us that a determinate sentence was appropriate here. He submits that the extended sentence was right in principle and of the correct length. He submits that the judge identified the correct bracket (giving a starting point of eight years and a range of 6-11 years) and was entitled to go outside the bracket in light of the aggravating factors.

As to s.224A, Mr Kirk submits that the appellant’s conviction predated Lithuania’s accession to the European Union. Paragraph 49 of Schedule 15B of the CJA 2003 (LASPO 2012) requires the offender to have been “convicted in …a member state”. Since Lithuania was not a Member State at the time of conviction, the offender cannot as a matter of law be said to have been convicted in a Member State. It follows therefore that the previous offence condition is not met and a life sentence may not be passed under s.224A.

Our conclusion : s.225 and minimum term

We deal first with the position under s.225. This was a serious offence within the meaning of the Act. Dangerousness is not in issue. The offender was released from a long sentence of imprisonment for rape in August 2012 and in December 2012 he carried out this attack. By any measure he is a very dangerous man. The test at s.225(1)(b) is plainly satisfied.

We turn to s.225(2)(b). The rape and s.18 offence were part of the same incident. We consider them together as the subsection requires. We do not repeat the facts. This was a very serious sustained, brutal attack by a very dangerous man on a vulnerable woman at night. Even assuming there will be long term work done in prison with which he may well engage it is not possible to say with any degree of confidence when he will no longer be dangerous. That is a matter for assessment at a much later stage. An extended sentence which requires his release at the end of the custodial term does not adequately protect the public. We are satisfied that the seriousness of this offence is such as to justify the imposition of a sentence of life imprisonment.

Were this not a case for a life sentence the assessment of sentence would begin at the second bracket of the Sentencing Guidelines for rape. One moves straight up from the starting point of eight years because of the previous conviction, the fact that he ejaculated and the ferocity of the violence that accompanied this prolonged attack. The provisional sentence before reduction for the plea of guilty would have been 18 years, that is above the sentencing range in the guideline and plainly justified on the facts. The offender is entitled to a one third deduction on account of his early plea which leads to a notional sentence of 12 years. That sentence should be halved, in accordance with the procedure we have already described. The minimum term therefore is one of six years, less the days spent on remand.

Our views on s.224A and its application to convictions in a Member State pre-accession

In the light of our finding in respect of s.225(2)(b), the Attorney General’s submissions in respect of s.224A become academic. However, given that it was upon this section that the reference originally relied we shall consider it briefly. The phrase “Member State” is not defined in either LASPO or the CJA 2003. We are satisfied, by reference to a combination of the first schedule to Part 1 of the European Communities Act 1972, as amended by the European Union (Amendment) Act 2008, that Member State means a member of the EU. Lithuania became a member of the EU in early 2004.

We think it arguable, as Mr Kirk submits, that the phrase “convicted in a member state” in paragraph 49 of Schedule 15B requires that the conviction occurred at a time when the state was a member of the EU. There is good reason in principle for that to be the case. A state which accedes to the EU is required to comply with the Rules of the EU (the acquis). They are not negotiable. Chapter 23 is headed “Judiciary and Fundamental Rights”. It includes requirements for an independent judiciary and legal guarantees for fair trial procedures to be in place. It also requires Member States to ensure respect for fundamental rights in accordance with the Fundamental Rights Charter. Thus, where a conviction has occurred in a Member State it is known that there has been a fair trial process. That may not necessarily have been the case in the same country before accession. We leave further consideration of the point to a case in which a life sentence would not otherwise be imposed.

Victim Surcharge

No victim surcharge order was made. The courts have no discretion in this regard, however serious the offence or long the sentence. By operation of changes to the Victim Surcharge payable under s.161A of the CJA 2003 introduced by the Criminal Justice Act 2003 (Surcharge) Order 2012 with two exceptions, which are not relevant here, all offending which took place on or after 1 October 2012 attracts a Victim Surcharge Order. The required order here was in the sum of £120.

Overall conclusion

We therefore give leave to the Attorney General. This sentence was unduly lenient. We quash the extended sentence of seven years with an extension period of three years and the concurrent four year term in respect of the s.18 offence. We substitute for the extended sentence a life sentence with a minimum term of six years less the number of days the appellant has served on remand. We impose no separate penalty in respect of the s.18 offence. We make the Victim Surcharge order in the sum of £120.

R v ANTHONY PHILLIPS

On 18 December 2012 in the Crown Court at Preston the appellant, now 38, pleaded guilty to two offences of Assault occasioning Actual Bodily Harm, contrary to s.47 of the 1861 Act and to a single count of Assault by beating, contrary to s.39 of the Criminal Justice Act 1988. On 5 March 2013 he was convicted after a trial of Rape, contrary to s.1(1) of the Sexual Offences Act 2003. The complainant of all 4 offences was his former partner, Z.

For the offence of rape the appellant was sentenced by HH Judge Beech to life imprisonment with a minimum term to serve of 11 years. No separate penalty was imposed in respect of the other offences. The judge also imposed a Restraining Order which was expressed to run until further order.

Facts

The appellant and Z had known each other for some years. In July 2010 following the appellant’s release from custody on licence they had a brief relationship. It lasted two weeks during which the appellant repeatedly assaulted Z. She reported him to the police. The appellant’s licence was revoked and he was returned to prison. He served a further two years in custody. Z withdrew the complaints of assault and visited the appellant in prison. The appellant talked of rekindling the relationship and of marriage. Z felt she had to try again. Under pressure from the appellant she agreed that he could stay with her on his release. On 7 September 2012 the appellant was released from custody and moved into Z’s flat. That same day the appellant viciously assaulted Z. He accused her of getting him locked up for two years. He pulled her hair, punched her in both eyes causing two black eyes, struck her mouth causing a split lip, punched her to the nose causing bleeding, dragged her around by the hair and applied pressure to her throat with his elbow. These facts form the basis of the first count of occasioning actual bodily harm.

On 8 September the appellant accused Z of having had numerous affairs and while he did so he continually slapped her. These facts formed the basis of the offence of assault by beating.

The following day, 9 September, the appellant continued verbally to abuse Z. When she admitted that she had a brief relationship with someone while the appellant was in prison he assaulted her again. He grabbed her hair and punched her to the face and head knocking her to the floor. He then stood on her throat and applied pressure with his foot. The appellant then dragged her up by the hair and punched and kicked her. When her nose bled the appellant dragged her to the bathroom and dunked her head in a basin of water.

For the rest of the week the appellant continued to assault Z and on one occasion hit her four or five times to the mouth with a TV remote control. When Z was eventually examined she was found to have over 50 injuries. Over the next seven days the appellant was repeatedly violent and controlling. He took Z’s keys and mobile phone, told her who she could talk to, and accompanied her when she left the flat.

Finally, on 14 September the appellant raped Z while she was in bed. She had taken medication for anxiety, for panic attacks and to relieve the pain caused by the earlier attacks upon her by the appellant. The appellant got on top of her. She started to cry because she was in pain and she told him to get off. He got off but told her the injuries were her own fault. A few minutes later the appellant grabbed her arms, pinned her down and forcefully penetrated her vagina with his penis. She repeatedly told him to stop but he did not. He continued until he ejaculated. The following day Z got the appellant drunk, managed to escape the flat and called the police.

The powerful victim personal statement sets out the terrible psychological effect the conduct had had upon her.

Previous convictions

The appellant had 19 previous court appearances for 60 offences in the period October 1990 (when he was 15) and September 2008. They included attempted robbery, burglary, theft, threatening behaviour, possession of a bladed article, failing to surrender, assault on police, robbery, affray, common assault, s.47 assault, sex offender failing to notify change, battery and criminal damage. In November 1998 he was sentenced to six years’ imprisonment for two offences of rape when he detained his brother’s girlfriend and raped her twice. The judge had a pre-sentence report from Seamus Cullum who expressed the firm view that the appellant was dangerous, particularly to women he knew. The judge found that he posed a very significant risk of very serious harm to women in the future. Whilst she accepted that the rape may not have been accompanied by violence the judge observed that the appellant knew that he was causing extreme pain as a result of a pre-existing injury and the injuries he had already inflicted upon Z.

The judge took into account the appellant’s previous violent and sexual offending, in particular the previous rapes. In her view the appellant’s intention from the beginning was to exact revenge for the victim’s complaint to police in 2010. His aim had been to control, subjugate and humiliate Z. He was a very controlling man. That much was clear, the judge said, from his evidence during the trial and from the pre-sentence report.

Our conclusion on the life sentence and minimum term

Mr Hargreaves submits firstly that there was insufficient evidence to allow the court safely to conclude that the appellant was a danger. Secondly, the offence, grave as it was, was not so serious as to merit a life sentence. He further submits that the pre-sentence report was defective and should be ignored because the appellant and the probation officer did not get on and because the probation officer did not have the details of the previous offences of rape. He had relied on the admissions made during the trial.

There is nothing in either of the submissions about the pre-sentence report. It was careful and measured. The difficulties between Mr Cullum and the appellant were identified. We see no basis for criticising the probation officer’s conclusions.

The primary submission, that there was insufficient evidence that the appellant was dangerous, is impossible to accept. We agree entirely with the sentencing judge’s assessment. This was a planned, sustained campaign of violence, including sexual violence, designed to take revenge on his partner. He had previously raped, twice, his brother’s girlfriend. By any measure he is highly dangerous. As to the seriousness of the offence, again we agree with the judge’s assessment. This was a gratuitous attack in the circumstances we have described. The fact that he did not use exceptional violence to overcome his victim on this occasion matters not. By the time he committed the rape the appellant had already inflicted over 50 injuries on his unfortunate and now vulnerable partner over several days. She was in bed, on medication. This was the final deliberate humiliation. He showed no remorse at any stage. Given his previous history, this offence and the offences associated with it plainly justified a sentence of life imprisonment. An extended sentence would not adequately protect the public.

Whilst the sentencing exercise starts in the second bracket of the guideline the facts of the rape in the context we have already described plainly take it well outside the sentencing range in that bracket. However we do not think that a determinate sentence of 22 years for this offending by this offender, would have been justified, even given his record. In our judgment the appropriate determinate sentence would have been one of 20 years which leads to a reduction of one year in the minimum term. Accordingly, the minimum term of 11 years is quashed and a minimum term of 10 years, less any days spent on remand, is substituted.

Restraining Order

Before leaving this case, we add that where a judge imposes a life sentence, a restraining order serves no purpose. All steps which are required to protect the public when a life prisoner is released on licence will be taken within the parole process. At the time the decisions are taken the Board will act in the knowledge of contemporaneous assessments of the risk posed by the individual. We quash the restraining order.

To that extent but to that extent only the appeal is allowed.

R v GORAN KAMAL AHMAD

On 28 March 2013 in the Crown Court at Cardiff before Mr Recorder Aubrey QC and a jury, Goran Ahmad, 23, was convicted after a trial on one count of rape, contrary to s.1(1) of the Sexual Offences Act 2003 and of one count of sexual assault contrary to s.3 of the Sexual Offences Act 2003. He was sentenced to life imprisonment for the rape with nine years specified as the minimum term. The judge imposed a concurrent sentence of three years’ imprisonment for the sexual assault.

Facts

The first offence in time was the sexual assault. In the early hours of 1 January 2012 the complainant, C, had been out celebrating the New Year in Swansea. She had been drinking but decided to drive. She crashed her car on a roundabout. As she walked away from the scene the appellant approached her. He told her to come with him and when she resisted he dragged her into a nearby car park. He forced her against a wall, tried to kiss her, and bit her lip. He then pushed her to the ground and got on top of her. The complainant was drunk and could not later remember what had happened next. However there was semen on her clothing, the appellant had ejaculated on her before leaving the scene. She remained on the ground. His responsibility for this attack came to light in March 2012 when he was arrested for the rape to which we now turn.

On 22 April 2012 the victim, N, was in the AM nightclub in Cardiff. She was drunk. The appellant approached her, spoke to her, and bought her a drink. She accepted the drink but did not want the appellant’s attention. He followed her about and at one point sat beside her. He had his hands “all over her,” she said. She pushed him away and eventually left the club. The appellant followed her and there was an argument between the two outside.

The victim walked away from the area but the appellant followed her and made demands for sex. As the victim approached an underpass the appellant grabbed her and dragged her towards an area that was partly secluded by bushes. There he attacked her. He threw her to the ground, punched and slapped her. He also placed his hands over her face and mouth. Several times he pulled her to her feet and threw her into the bushes again. The victim became tired and could no longer fight. In fear of what the appellant might do she agreed to his demands and performed oral sex on him. However she made the appellant use a condom first. He ejaculated and then threw the condom aside. The appellant slapped the victim and then left the scene.

N walked home in a state of distress. On the way she told a member of the public she had been raped. He followed her home and contacted the police. Initially N did not want to make a complaint. CCTV footage revealed the appellant wandering in the city centre. DNA from the condom recovered from the scene of the rape matched the semen found at the scene of the sexual assault. The two offences were linked. South Wales Police were searching for him with no success. In September 2012 he handed himself into the police station in Edmonton, North London. He made no comment during interview. He denied the offences at trial.

The appellant had no previous convictions. He had come to this country from Iran and claimed Asylum which was refused. He was unable lawfully to work and was living a rootless existence, working unofficially for friends.

As the judge who had presided over the trial observed, both victims were vulnerable women who were significantly smaller than he was. Both of them sustained injuries. The victim of the rape had been left with extensive scratches and scrapes to almost all parts of her body. She was bleeding from the mouth. The victim of the sexual assault sustained bruising and marking to her lip. During the rape the appellant had used gratuitous violence far beyond that which was needed to complete the offence. The violence had been sustained and prolonged.

The judge’s approach

When sentencing, the judge considered first the question of dangerousness; he was satisfied that there was a considerable risk of serious harm by the commission of further specified offences, namely further sexual assaults on women. Firstly these were two grave offences committed within a relatively short period of time and secondly there was the deliberate targeting of vulnerable victims. Each victim had been dragged to a relatively secluded spot, force was used to subdue, and the violence was prolonged and ruthless.

The judge observed that the appellant had displayed a callous indifference to women and showed no remorse. The pre-sentence report reinforced his view of dangerousness. The report indicated a developing pattern and an escalation in seriousness. Neither offence was impulsive and indicators of a risk of serious harm were identified.

The judge concluded that he could not say when the appellant could safely be released; the only appropriate sentence therefore was life imprisonment.

Having described the rape as coming within the second category of the guideline the judge found that the serious aggravating features took it outside the normal bracket. The same pertained in respect of the sexual assault. He concluded that had a determinate sentence been appropriate it would have been 15 years for the rape and three years consecutive for the sexual assault, a total of 18 years. The minimum term therefore was nine years. A concurrent sentence of three years was imposed for the sexual assault.

Submissions on the appeal

The grounds of appeal are that the judge erred in his assessment of risk and secondly that the rape was not sufficiently serious to justify a sentence of life imprisonment.

As to the assessment of dangerousness we can find no error in the judge’s approach. The appellant was plainly dangerous for the reasons the recorder identified. As to seriousness, Mr Roberts submits that the rape came within category 2. He accepted that sentence would be at the top of the range for that category but it could not be said that there was any feature of the offence which took it outside the category altogether and so it could not be sufficiently serious as to justify a life sentence. He points out that the fact of a sustained attack is specifically included as an aggravating factor in the guideline. As to count 2 the offence came squarely within the second bracket and there was no reason to sentence outside it.

Our conclusion on life imprisonment and the minimum term

Mr Roberts’ approach overlooks the express requirement in s.225(2)(b) to consider the seriousness of the offence together with other offences associated it with it. It is plain from the sentencing remarks that when considering seriousness the recorder considered each of the matters we have identified as relevant to the consideration of seriousness. His conclusion is unimpeachable. A life sentence was justified.

We have set out the judge’s approach to the minimum term. In our judgment his reasoning was correct and led to the right sentence.

Since it is not clear from the transcript that the minimum term was reduced by the time spent on remand we make that clear now. The minimum term to be served before the appellant is to be considered for parole shall be reduced by the number of days (we believe it to be 223) he spent remanded in custody before his trial. If the number of days is other than 223 the error may be corrected administratively.

This appeal is dismissed.

R v JOHN HANSON

On 7 February 2013, at Basildon Crown Court, John Hanson, 37, pleaded guilty to two offences of arson contrary to s.1(1) and (3) of the Criminal Damage Act 1971. He was sentenced by HH Judge Davies QC to life imprisonment with a minimum term of five years on each count concurrent. Not guilty verdicts were entered in respect of two other offences of arson.

The sentencing hearing proceeded on the basis of a fundamental misapprehension. The case was opened, counsel mitigated, and the judge sentenced on the basis that the appellant had pleaded guilty to two offences of arson being reckless as to whether life was endangered. As the indictment and the Court record make clear he had pleaded guilty to two offences of arson being reckless as to whether property would be damaged. Although the maximum sentence for arson being reckless as to whether property was damaged is life imprisonment, it is overwhelmingly likely that had the true position been drawn to the judge’s attention he would have passed a different sentence. We approach the sentence afresh.

Facts

On 10 September 2012 at around 9 p.m. the appellant set fire to a pile of rubbish at the back of a card shop in Westcliffe-on-Sea. The fire burned through the back door of the shop. The residents of a flat above the shop left their home via a fire escape and contacted the police. The fire service attended and put out the fire. The damage caused was valued at £2,000. At about the same time the appellant set fire to a wheelie bin outside a fish and chip shop. The owner saw him do so and his actions were caught on CCTV. It took some 15 minutes to put out the fire. The damage was to the bin only. It cost £204 to replace. The appellant was arrested near the card shop. He said that he had thrown a cigarette into a wheelie bin and that he was stupid. When interviewed he accepted that he was the person shown in the CCTV. He said that the fire at the fish bar was simply an accident. By his plea he accepted his guilt.

The victim personal statements from the owners of the card shop and the fish and chip shop recounted the upset and inconvenience the fire had caused. We add that it must have been extremely alarming for those who lived in the flat above the card shop, although in the event there was no injury to them and no damage to their home.

Previous convictions and reports

The appellant had been before the court on 6 previous occasions and had been convicted of 16 offences. In 2003 he had been sentenced to seven years imprisonment for two offences of arson. The pre-sentence report and the psychiatric report both identified the appellant’s personality disorder. At the root of his offending was his addiction to alcohol and drugs, including prescription drugs. The psychiatrist described the addiction as severe and his behaviour as self destructive. Both pointed to the appellant’s tendency to act without thought of the consequences. Both the psychiatrist and the probation officer considered he was likely to offend again. The psychiatrist, Dr McLintock, considered that he posed a high risk of harm to himself and to others. The psychiatrist did not find that he had a pathological fascination with fire.

Our conclusion

In the light of the offences, and the content of the reports, a finding that the appellant was dangerous was inevitable. The issue is whether or not the offences were such to justify the imposition of imprisonment for life. We are satisfied that they were not. In our judgment an extended sentence under s.226A would properly reflect the culpability of the offender, the seriousness of the offences and would adequately protect the public. There are no guidelines for cases of arson. In Attorney General’s Reference (No 68 of 2008) (Myrie) [2009] 2 Cr App R (S) 48 the starting point, after a trial, for arson with intent to endanger life was said to be in the range of eight to ten years. Recklessness as to whether life was endangered would generally, but not always, lead to a shorter sentence.

These offences come into a category below that. The previous convictions for arson are serious aggravating features, as was the fact that the fires were started close to residential premises, with the obvious danger of fires spreading. The mitigating features were the lack of planning and the absence of accelerants. No injuries were in fact caused and the damage was, as we have said, relatively limited. The judge said that he had given full credit for a guilty plea. We shall adopt the same approach. The fact that there were two offences should be reflected in the total sentence but given the close proximity in time between the two fires (minutes only) the sentences should properly be made concurrent.

In our judgment the correct custodial term to reflect the totality of the offending, together with the mitigating features, after credit for the pleas of guilty would be five years. As there was a finding of dangerousness the court was entitled to consider an extended sentence as (a) arson is a specified offence (that is to say within Part 1 of Schedule 15 (see paragraph 9.ii) above)) and (b) the custodial term was in excess of four years (see s.226A(1)(d) and s.226A(3) (set out at paragraph 24 above). In our judgment, therefore, the sentence should have been a sentence of 10 years made up of a custodial term of five years and an extended licence period of five years, the maximum available to the court. Accordingly we quash the life sentences and impose these sentences concurrently on each count.

To that extent this appeal is allowed.

R v DAVID DONEGAN

On 3 December 2012, in the Crown Court at Southwark on the day of trial, David Donegan, 49, pleaded guilty to 8 offences and on 3 May 2013 he was sentenced by HH Judge Taylor as follows:

Facts

The appellant had known Margaret Flanagan for some time. He had discussed with her daughter a number of money making schemes and in early 2012, with the daughter’s help, he had started a business buying and selling cars. The cars bought were in poor condition and he was unable to recoup the money he had spent purchasing them. On 23 January 2012 Margaret Flanagan went to the pub to visit the appellant. He was smoking cannabis and she felt he was behaving unusually. Mrs Flanagan decided to leave, but the appellant prevented her from doing so. He said “I’m going to fucking kill you, you cunt. I’m going to throw you out of the window.” He opened the window and dragged her towards it. She was very frightened and managed to escape. She alerted the police but by the time they arrived the appellant had gone. This was the basis of the first of the threats to kill.

The appellant moved house and moved into a flat, which was the home of Richard Finnegan, a fellow longstanding drug user whom he had met in a clinic. Mr Finnegan was the victim of all the other counts on the indictment. The appellant took over the flat and persuaded Mr Finnegan to supply crack cocaine, which he had brought with him. Mr Finnegan agreed because he was to be supplied with drugs for his own consumption and also because he was afraid of the appellant. During February the appellant became increasingly violent and threatening to Mr Finnegan and on a number of occasions was violent towards him. He detained Finnegan in his own home and forced him to take crack. He threatened to kill him, and held a claw hammer to his head. On one occasion he put a claw hammer into Mr Finnegan’s mouth and pulled out a tooth. He assaulted him on at least two occasions, causing a broken nose and bruising round the eyes. On another occasion (the common assault) he pushed things (wires, sellotape, cords, shoes) across or into Mr Finnegan’s mouth to stop him breathing. He wrapped sheets and towels over his face. He bit his nose. He deprived him of food.

The appellant sought to explain his actions to Mr Finnegan at the time by saying he was toughening him up to be his foot soldier. Matters came to a head when the appellant tied him up and slashed his neck with a carpet cutter, causing a ten centimetre wound along the deeper layers of neck tissue, very close to the jugular vein and carotid artery. The appellant appeared shocked by the extent of the injury and untied Mr Finnegan. Mr Finnegan managed to escape from the flat and raise the alarm. In the event the injury was repaired by surgeons and the ultimate course of Mr Finnegan’s recovery was uneventful. The potential for very grave injury had been high.

The victim personal statement revealed the distress and terror felt by Mr Finnegan. He had been physically and mentally scarred by a prolonged course of conduct which was both terrifying and humiliating. The judge accepted that Mr Finnegan had been very grievously affected, with continuing flashbacks and some elements of post-traumatic stress disorder. His addiction to crack cocaine had got worse.

Previous convictions

The appellant had a long criminal record. Between 1984 and 2007 he had appeared before the English courts on 14 previous occasions for 44 offences, largely of dishonesty. Most recently, in October 2007, he had been sentenced to 2 years’ imprisonment for offences of kidnapping, both involving the use of knives. He went into the home of two women, one of whom was his niece, dragged them out and frogmarched them to a cash point machine, holding them by their hair and brandishing knives. In 2010 he attacked a woman prison officer and was convicted of battery. He also had convictions in the Irish Republic, including 1989 when a sentence of 6 year’ imprisonment was imposed (for a s.18 wounding). The offences with which we are concerned were the worst he had committed and they came after a long gap in his offending.

Reports

The judge had a pre-sentence report and a psychiatric report. Both concluded that the appellant was a dangerous man. He had a personality disorder and a tendency to outbursts of serious violence, including against people he knew and against his family. He minimised his own responsibility and blamed others including Mr Finnegan for what had happened. The probation officer and the psychiatrist concluded, unsurprisingly, that the appellant was capable of serious physical violence. His childhood had been difficult and traumatic. For many years as a boy he had been physically and sexually abused when in the care of priests in Ireland. In recent years he had received £100,000 or £150,000 in compensation (both figures appear in the papers) from the Catholic Church. He was addicted to alcohol and drugs, which he had begun using at the age of 12. He had only managed to be drug and alcohol free when in prison.

The judge’s approach

The judge concluded that the appellant was dangerous within the meaning of the Act. In her judgment the offences were so serious that, in the light of past history, a life sentence was the only appropriate sentence. An extended sentence would not sufficiently protect the public.

The wounding with intent undoubtedly fell, she said, into the highest category of the guidelines, with both elements of serious harm and high culpability. This was a sustained and repeated assault on a vulnerable man, imprisoned in his own home, unable to escape. There was a significant degree of premeditation. Over a lengthy period the appellant had used a number of weapons and what he had done amounted to torture. Further aggravating features were the appellant’s previous convictions, the fact that the offences were committed under the influence of drugs, which he had brought to the flat, and the very serious long term effect on Mr Finnegan. The determinate sentence would have been 19 years. Given the plea, albeit at a very late stage, that would be reduced to 17 years, one half of which was 8 years and 6 months, less the time spent on remand.

Our conclusion

Miss Smart in admirably focussed submissions argues that the seriousness of the offence and the offences associated with it did not justify a life sentence, alternatively the minimum term was manifestly excessive. She relies on the fact that injuries which were the basis of the s.18 count had plainly shocked the appellant and he had untied his victim. She also points out that the abuse of drugs had been at the root of these offences. He had now spent all his compensation so would not now be able to buy drugs as easily as before. There was therefore a good prospect of his being able to remain free of drugs if released from prison. Miss Smart did not seek to argue that the appellant was not dangerous.

This was a horrible, prolonged, premeditated and cruel attack upon Mr Finnegan which has had very long lasting consequences. We cannot fault the trial judge’s conclusion that the s.18, when taken with the other offences, was so serious that a life sentence was justified. There is no need to repeat the careful and measured findings to which we have already referred. A life sentence was inevitable.

We turn then to the minimum term. We can identify no error in the approach of the judge. Her sentencing remarks explain her reasoning with great clarity. We agree with her conclusion. It may well be that those responsible for supervising the appellant’s period of imprisonment are aware that the minimum term must be reduced by the number of days he spent on remand in custody awaiting his trial. To ensure that is done we make clear that the minimum term shall be reduced by the 435 days we understand he spent on remand. Any error in the number of days may be corrected administratively.

Accordingly this appeal is dismissed.

R v PAUL SIMON SMITH

On 21 February 2013, in the Crown Court at Leicester, Paul Smith, now 35, pleaded guilty to kidnapping and aggravated vehicle taking, counts 1 and 3 of an indictment containing three counts. He pleaded guilty to count 2, an offence of sexual assault, on 11 April 2013. On 24 May 2013 he was sentenced by HH Judge Pert QC to life imprisonment with a minimum term of 3 years for the kidnapping. The judge passed two sentences of 18 months’ imprisonment for each of the other two offences, to run concurrently with each other and with the minimum term. There was a further offence of using a vehicle without insurance in respect of which no separate penalty was imposed. A victim surcharge order was imposed of £120. He was disqualified from driving for 12 months.

Facts

The offences all arose out of the appellant’s conduct on 21 November 2012. His victim was a woman of 31. During the late afternoon she had driven to a supermarket to do the family shopping. She bought a number of items including some lager. She loaded her shopping into the boot of her car, returned the trolley, and got back into the car. It was now about 5.45 p.m. As she started up the engine the appellant got into the front passenger seat. She asked him what he was doing and he said “If you don’t want me to hurt you you’d better do as I say. Drive out of the car park and, if you do as I say, you won’t get hurt.”

The woman could see something metallic in the appellant’s hand. She thought it was a weapon. The appellant repeated that, if she did what he said, she would not be harmed. He directed her to drive towards Wigston which she did. She was terrified and shaking. At one stage she looked at him. The appellant told her not to look at him and to concentrate on the road. She did as she was told. He asked her if she had any money. She told him that she had spent it in Asda. He asked whether she had any cards which could be used to get cash. She asked him whether, if she did what he said, he would let her go. He said he would if she dropped him at an appropriate place. She thought the he was going to direct her to a cash machine, but his directions became rather confused and it became clear to her that he did not really know where he was going. He told her to stop the car, which she did. He asked her whether there was any beer in the back. He told her to get the beer but required her to climb over him to get out of the car so he could hold onto her and prevent her escape. She took the beer from the boot and put it in the footwell. He told her to get back into the driver’s seat, via the passenger side, and demanded that she drive on. He started drinking beer. Shortly afterwards he touched her leg and started to rub his hands up and down it, “You have lovely legs. Your husband is a lucky man.” She tried to ignore him but he went on to say, “I want you; you know what I mean.” She was feeling physically sick and was afraid that he was going to take her to a secluded area and rape her.

Eventually the appellant told her to stop. He again asked for money and she repeated that she had spent it in Asda. He was clearly desperate and asked for a pound or two. She reached into her purse and found some coins, at which stage he asked for her phone. He took her phone and her purse, which he looked through. He rifled through her bag. The woman told the appellant that the phone had GPRS and that if he kept it he would easily be traced. His demeanour changed and he said, “I don’t want to be doing any of this. I don’t want to hurt you.” He went on, “Sometimes you have to do things that you don’t want to do. I’ve no choice. I’m in a bad situation but if you take me where I need to go I’ll let you go.”

They got out of the car again. He was holding her very tightly. He then told her to follow him back into the car, at which stage he slackened his grip on her. She shook him off and flagged down a car. The occupants called the police. Their call was made at 5.59 p.m. The entire incident had taken around 15 minutes.

The appellant drove off in the car. At about 7 p.m. it collided with another vehicle, causing significant damage to it. At 8.30 p.m. the car was found parked very close to the appellant’s house. A beer can found nearby had the appellant’s fingerprints on it.

On 1 December 2012 the appellant was arrested at his home where he lived with his partner and children. He answered “no comment” to all questions at interview. He was subsequently picked out at an identification procedure.

The victim personal statement made clear the effects of this frightening incident. She was still afraid to go to work, was suffering from palpitations and feared for her safety and that of her family.

Previous convictions and reports

The appellant’s previous offending began in 1995. There were convictions, mainly for dishonesty including burglaries. There were two previous appearances before the courts that were highly relevant. In 1997 he was sentenced to 3 years’ detention for indecent assault; on that occasion he had stolen a car and then met up with a prostitute. They had agreed a price. He had then aggressively indecently assaulted her and tried to force her to perform oral sex upon him, forcing her head down on his penis. He then stopped and told her to get out of the car. He was arrested the following day and admitted what he had done. In February 2003 he was sentenced to 7 years’ imprisonment for rape; he had been released from prison on 31 May 2002 (the sentence was in respect of theft and a failure to notify the police of a change of address as required under the Sex Offenders Act 1997, s.3(1)(a)). On the evening of 24 June 2002 the appellant stole a car. In the early hours of 25 June 2002 he met a prostitute in Leicester. They agreed a price for sex. The appellant drove with the prostitute to a retail park. He then produced a screwdriver and held it to her neck. He had sexual intercourse with her without a condom. After he had finished he told her that if she told anyone he would kill her. She rang the police immediately. The car was recovered within hours and the appellant was arrested 2 days later. He was interviewed. He denied the offences. The victim identified him at an identification parade on 4 July 2002.

The judge had a pre-sentence report and a psychiatric report. It was the psychiatrist’s view that the primary motive of the incident was robbery. He did not consider the appellant to be at risk of causing serious physical harm but he considered there was a significant risk that his actions could cause lasting and serious psychological harm. The probation officer expressed the view, with which the judge agreed, that the appellant had an interest in coercive and violent sex.

The judge’s approach

The judge concluded that the appellant was dangerous within the meaning of the Act. He considered that an extended sentence of imprisonment would not afford a sufficient degree of protection because in his view there was no material upon which he could decide when it would be safe to release him. A life sentence was, therefore, the only safe sentence that he could pass.

The judge’s approach was measured and careful; he considered the decision in R v Wilkinson and others [2009] EWCA Crim 1925, to which we have referred at paragraphs 12 and following. He had regard in particular to the passage in which Lord Judge CJ said that the seriousness which would justify a life sentence was where the “notional determinate sentence would be very long, measured in very many years”. The sentencing judge went on to say that he was not suggesting that this was such a case. He observed correctly that the courts now have to consider the relationship afresh between a discretionary life sentence and the extended sentence that is available to them and “a case like yours…is an example where the discretionary life sentence is necessary even though I would not be passing a determinate sentence measuring very many years. And as I’ve indicated, it seems to me the only safe sentence that I can properly pass”. In those two sentences the judge neatly encapsulated the issue before us in most of these cases.

In fixing the minimum term he said that the sentence after a trial would have been 8 years. He reduced that by 25% to take account of the guilty plea and halved it to reach 3 years.

The appellant’s submission

On behalf of the appellant, Miss Cutter’s primary submission is that the judge’s approach cuts across parliament’s intention that there should be fewer prisoners detained for life (by whatever name). She further submits that the offence was not so serious as to justify a life sentence, the judge should have passed an extended sentence. Alternatively, she submits, the minimum term was too long.

Miss Cutter does not argue with the judge’s conclusion, with which we agree, that the appellant was dangerous.

Our conclusion

The appellant plainly is dangerous. A powerful factor in the judge’s deliberations was that he was not able to say with any certainty when the appellant would no longer be a danger. Whilst we understand the judge’s concern that factor cannot of itself lead to the conclusion that a life sentence is justified. The court must consider all the matters set out at paragraph 22 of this judgment, starting with the seriousness of the offence itself. This was a difficult sentencing exercise because the appellant was a dangerous man whose crime was much less serious than those he had previously committed. There were echoes of former crimes but he had on this occasion stopped short of more serious offences. The victim’s ordeal, while terrifying, was relatively short. We do not consider that the seriousness of the offence justified a life sentence under s.225(2)(b) of the CJA 2003. Although we have no doubt that under the sentencing regime between 2005 and 2012 a sentence of IPP would have been passed, this case illustrates the position that amendments made by LASPO to the CJA 2003 do not permit the court to impose a life sentence for reasons solely of public protection.

The appellant’s case did not come within s.224A. We turn then to s.226A. This was not a case for a pure determinate sentence. Public protection was needed. An extended sentence was available. We agree with the judge that it is impossible to say for how long this man will pose a risk to the public. However the sentencing judge’s consideration of the necessary length of the extension period required to protect the public must be carried out in the light of the maximum periods of extension prescribed by s.226A(8), namely 5 years in the case of a specified violent offence and 8 years in the case of a specified sexual offence.

In our judgment the correct sentence for this kidnapping was an extended sentence of 11 years made up of a custodial term of 6 years and an extended licence period of 5 years, the maximum available to the court.

Accordingly we allow this appeal. We quash the life sentence and we substitute for it an extended sentence of 11 years made up of a custodial term of 6 years and an extended licence period of 5 years.

R v MICHAEL RICHARD MATHEWS

On 15 April 2013 at the Crown Court in Swansea, Michael Matthews, 44, pleaded guilty to 3 counts of wounding with intent contrary to s.18 of the Offences Against the Person Act 1861 and to a single count of damaging property contrary to s.1(1) of the Criminal Damage Act 1971. He had earlier pleaded guilty to another offence of criminal damage.

He was sentenced by HH Judge Keith Thomas on 13 May 2013 to life imprisonment on each of the 3 counts of wounding with intent, with a minimum term to be served of 5 years on each concurrent. Two months’ imprisonment was imposed in respect of each count of criminal damage, also expressed to run concurrently with the life sentence.

The facts

The first offence of criminal damage took place in the early hours of 13 August 2012. The appellant threw a large boulder at a motor vehicle, causing the windscreen to shatter. The owner of the car was the boyfriend of the daughter of the appellant’s former partner. The offence was committed shortly after the breakdown of that relationship. It was preceded during the previous evening by the appellant shouting threats outside his former partner’s house. He had also posted a threatening letter through the letter box. There is no appeal in respect of this sentence. It is relevant because of the relationship breakdown and because the later offences were committed when he was on bail.

The appellant pleaded guilty on 10 December 2012 and was bailed to attend for sentence on 7 January 2013. The offences with which we are concerned took place in the early hours of New Year’s day 2013. The Strawbridge family lived in Townhill Road, Swansea. They vaguely knew who the appellant was. They were holding a party. At around 3.15 a.m. the appellant kicked open the back gate and entered the garden. He confronted Christian Strawbridge. He said to him “I’m going to kill you all. Jay, I’m going to kill you”. Mr Strawbridge had no idea what he was talking about but could see that the appellant was extremely angry. He attempted to reason with the appellant but failed. The appellant stabbed Mr Strawbridge through the right thigh. Mr Strawbridge ran away from his own home, so terrified was he of the appellant. His brother, Andrew Strawbridge, came out of the house. The appellant immediately stabbed him twice in the stomach and once in the leg. The wound to the stomach was so deep that his internal organs could be seen. Mrs Catherine Strawbridge, the wife of Mr Andrew Strawbridge, went outside to get between the two men. The appellant stabbed her in the back. He then ran away, saying, sorry, wrong house. He was pursued by a number of people who gave up the chase when they realised he was still armed with the knife. He was arrested later that night after his mother told the police that he had gone off the rails since his relationship with his partner had ended. He had, that evening, smashed a window at his mother’s home. That was the initial reason for his arrest, and formed the basis of the second charge of criminal damage. While he was in custody the police realised it was he who was responsible for the stabbings in the early hours of the morning.

Mr Christian Strawbridge suffered a deep wound to the artery and to the muscle. Surgery was required to repair the artery. Some 18 staples were needed to close the external wound. His victim impact statement conveyed the far reaching effects of the incident which had changed his life. He was constantly fearful and unable to go out at night.

Mr Andrew Strawbridge’s injuries were life threatening. Prompt and effective medial attention saved his life. By the time of the sentencing hearing he had undergone surgery and further treatment was anticipated. He was still walking with a limp. He too described himself as having retreated into his own shell. He had lost confidence and felt afraid even in his own home. Mrs Strawbridge was also admitted to hospital with her injuries. The wounds to her back were some 2 to 3 inches deep and required internal and external stitching. She recalled the pain she had sustained and the anguish of knowing that her children had observed this dreadful incident.

Previous convictions and reports

By the time of the sentencing hearing the appellant had appeared before the courts for some 30 years, beginning at the age of 14. There were a number of public order offences and a number of assaults and woundings. In October 1988 he had been imprisoned for 4 years for wounding with intent. During the 1990s the offences were of criminal damage, affray and possession of an offensive weapon on several occasions. In 1996 he was sentenced to 42 months for wounding (the weapon was a knife) and 54 months consecutive for false imprisonment. A further sentence of 42 months’ imprisonment was imposed in 2003 for possession of heroin with intent to supply. He was released from that sentence in 2006 and committed no offences from then until these offences. During that time he was not taking drugs or drinking. At the time of these offences the appellant had, he said, been drinking very heavily and had stopped taking prescribed mental health medication. He had, he said, no recollection of the incident at all.

The judge had before him a pre-sentence report and a psychiatric report. The probation officer and the psychiatrist both expressed the view that the appellant was a man who presented a very significant risk of causing serious harm through further serious offences. The psychiatrist said he was a dangerous individual who would be prone to further episodes of violence for the foreseeable future. Such episodes were far more likely to occur when he was under the influence of alcohol or illicit substances.

The judge’s approach

The judge concluded that the appellant was indeed dangerous and considered the offences so serious as to justify a life sentence. He was satisfied that an extended sentence was not appropriate because he could not, in the light of the reports, have any confidence as to whether the risk presented by the appellant would ever reduce. He reached a minimum term of 5 years thus: 15 years was the starting point (by which we take him to mean the sentence before reduction for the guilty plea). Had he been passing a determinate sentence he would have given one third credit for the guilty plea. He halved the term to reflect the fact that the appellant would have served one half of that sentence had it been determinate.

Our conclusion

Mr Rees does not seek to argue that the judge was wrong to find the appellant dangerous. He submits commendably succinctly that the offences were not so serious as to justify a life sentence. An extended sentence was the correct sentence. Alternatively he submits that the minimum term was too long.

We disagree. These were deliberate and persistent stabbings committed whilst on bail by a highly dangerous man. His victims were three innocent people in their own garden, at night. The injuries were very serious. They would have been even more serious had it not been for the prompt medical attention. The psychological consequences were significant. We are satisfied that an extended sentence would not adequately protect the public and that the condition in s.225(2)(b) was met.

We turn then to the minimum term. A determinate term of less than 15 years after a trial for these offences would be unthinkable. We can see no error in the judge’s approach.

This appeal is dismissed.

R v BARRY TYRONE COLEMAN

On 22 April 2013 in the Crown Court at Exeter Coleman, 67, pleaded guilty to 13 offences. On 7 June 2013 he was sentenced by HH Judge Wassall to an extended sentence of 32 years and 8 months pursuant to s.226A of the CJA 2003. The custodial term was expressed to be 24 years and 8 months with an extension period of 8 years. The custodial term was made up as follows:

Facts

The appellant had subjected his stepdaughter to persistent and serious sexual abuse over a 10 year period when she was aged between 5 and 16 years old. It included frequent vaginal and anal sexual intercourse on occasions that were so frequent they could not be counted. He was also concerned with the possession, making and distribution of thousands of images of an indecent, prohibited or extreme nature over a 4 year period covering all categories of obscenity from levels 1 to 5 on the COPINE scale.

The offences came to light during an investigation into the activities of Graham Godbeer. On 30 September 2012, Godbeer was arrested for sexual assaults on children. His mobile phones were forensically examined. The appellant’s number was one of his regular contacts. It transpired that the two men had met when one of them had left a telephone number in a public toilet. They had exchanged pornographic and indecent images of children and frequent text messages discussing sexual acts with children.

Godbeer was subsequently convicted and sentenced to a substantial prison sentence in respect of a number of sexual offences. As a result of the investigation into his activities, a warrant was executed at the appellant’s home address. A search was conducted and a number of mobile phones, laptops, DVDs and a memory stick were seized from his bedroom. From one laptop, 400 illegal images of children from level 1 through to 5, and 68 extreme images were identified.

From another laptop, over 550 illegal images from levels 1 to 4 were discovered. The appellant had used the following search terms amongst others: ‘pre-teen porn’, ‘fucked little girls’, ‘very young naked pussy’, ‘pre-teen naked boys and ‘underage girl fucked by a dog’. In addition, lower level indecent images had been sent from his mobile phone.

Two of the DVDs contained 19 films and over 700 images at levels 1 to 5. From the memory stick were retrieved hundreds of other images of child abuse images including 15 films at levels 1 to 4. The extreme images (count 18) were concerned with bestiality, not with children. Any bestiality or sadism involving children were represented by counts 12, 14 and 17 which included the level 5 images.

The mobile phone exchanges between the appellant and Godbeer were analysed. They revealed that in the summer of 2011, Godbeer had persuaded a 10 year old girl, a family member, to show him her knickers. The appellant explained how to progress with the child. He told Godbeer to offer the child money for sexual favours. He said such things as “Give her £1 today and say that is for showing me your knickers. That way she will know she can earn money from it.” He also said “Find out what she wants and offer to get it for her. Once she accepts, you have got her where you want her. Trust me, I used that method with my S daughter and it worked.”

The texts exchanges continued on a very frequent basis using a variety of different phones. A number of children were referred to not by name but simply by their age. In this way the appellant said, “You will enjoy your 10 when she starts to play with you. Don’t know anyone offhand at the mo, you’re so lucky to have a girl who likes cock. Well hopefully your 10 will soon.”

The appellant discussed a number of other methods of grooming a child or inciting a child, such as offering to babysit the child or giving them a price list for different sexual favours. Close analysis of those text messages revealed that the appellant had sexually abused his own step daughter, LC, now LM, between 1975 and 1986. LM was born on 11 August 1970.

One of the texts he sent to Godbeer read as follows. He was referring to LM. “The first time I licked her she was having a bath. She had got out and let the water out. She bent over. I stuck my tongue on her dirty cow just opened her legs a bit and let me”. In other texts he said, “I had her for 5 years before the shit hit the fan. It was good while it lasted. She was eight when she wanked me off first. Didn’t get my cock up her until she was about 11. My step D, aged about 10 at the time, used to cost me 50p of sweets at a time, well worth it.”

In 1988 when LM was 18 she wrote a letter to her then boyfriend setting out what had happened. Her mother found the letter. She accepted her daughter’s account and threw out the appellant the same day. She began divorce proceedings. Nothing else happened at that stage because LM was not prepared to provide a statement to the police.

In October 2011 as a result of the investigation into Godbeer, LM’s mother was interviewed. She said the appellant would bathe the children when they were small. She only became aware of any wrongdoing against LM in the letter that was written.

LM had left the UK and settled in the USA where she still lives. She had returned to provide statements about what the appellant had done to her and the effects upon her of his conduct. She had been admitted to hospital for eating disorders. She was made a ward of the State in the USA which involved at one stage being handcuffed and shackled because of her extreme mental difficulties. She was an in-patient at hospital. The effects of the abuse were plainly profound and long lasting. Her marriage collapsed. Fortunately in recent years she had remarried, had a young child and was working as a pathologist. Her account of what the appellant had done to her was detailed and disturbing.

She disclosed that sexual assaults had happened for as long as she could remember. He had touched her virtually daily in every conceivable way. When she was in the bath, at the Primary School swimming pool, and when she was at school alone with him where he worked as a caretaker. He would get her to masturbate him and to perform oral sex on him from her primary school age.

He would tell her to suck his penis like a lollipop and would ejaculate in her mouth or over her body. It progressed to full vaginal intercourse on her mother’s bedroom floor on her back which hurt. By this stage the appellant and his wife had separate bedrooms. He sometimes wore condoms. Other times he withdrew and ejaculated over her body. He would sometimes throw 50p down on the floor besides her where she lay after he had ejaculated. He would take photographs of her in sexy underwear.

They had sex on the stairs in the family home. He often had anal sex with her which was even more painful. She felt forced, smothered and unable to breathe. He had sex with her in various positions whilst forcing her to watch pornography. She described in harrowing detail the appellant’s depraved conduct towards her. It is a comprehensive and shocking account. She tried not to eat. She had her hair cut. She was trying to make herself unattractive to him. She did not succeed. As she started to develop physically he made comments about her body. He insisted that she model her first bra for him.

Her family was not close. The appellant was violent and would chastise the children with a belt. She told no-one what was happening because he told her that he would go to jail and that she would be put in the same cell. The abuse stopped when she was approximately 15 years old and at college. They were driving along and she told the appellant that she would tell if he ever touched her again.

The appellant was arrested and interviewed. He accepted that the phones and computers were his and that all of the text messages and the images were his responsibility. He accepted the relationship with Godbeer and that he masturbated whilst texts were being exchanged. He accepted he had given Godbeer some DVDs, but maintained that he was not seeking to encourage Godbeer specifically, but it was a fantasy exchange.

LM’s allegations were put to him. He said he could not remember doing the things she had stated. He also made it clear that he was not denying that they had happened nor did he admit that they had. In due course he pleaded guilty. Counts 1 to 4 were specimen counts covering countless occasions over the 10 year period of the indictment.

Reports

The pre-sentence report showed that the appellant had no real insight into the harm he had done. There was no remorse for his offending. It was plain that his thinking was distorted. He did not easily accept that there was a sexual component to his offending. The probation officer considered he posed a very serious and high risk of harm to children.

The judge’s approach

The judge was undertaking a complex sentencing exercise. It is not apparent that any submissions were made to him as to which sentencing regime applied to the offences against LM which were committed long before the CJA 2003 came into force. We have set out at paragraph 21 the approach taken by this court in R v PD. Any consideration of a life sentence should have taken place applying the principles to which we have already referred.

However, the effect of s.226A(11) is that a new extended sentence is available even where the offence was committed before 4 April 2005. It follows therefore that, provided the necessary conditions were met, an extended sentence under s.226A was available to the sentencing judge where the requisite conditions were met.

Although the offences at counts 12-19 inclusive are specified offences neither conditions A or B of s.226A are met. Extended sentences were not available in respect of those offences. The judge was not alerted to this.

In addition no one drew the court’s attention to the decision of this court in R v Pinnell [2010] EWCA Crim 2848 which sets out the approach to be taken where the court is sentencing on a number of counts some but not all of which are eligible for extended sentences. These matters are all of form rather than of substance on the facts of this case.

Our conclusion

We turn to the substance. When sentencing the appellant, the judge correctly described his attitude to children and sex as truly shocking and depraved. He was satisfied that the risk of the appellant causing serious harm as a result of committing further specified offences was significant. The judge concluded that it was not appropriate to impose a life sentence because he had no previous convictions and he had pleaded guilty. We make no comment on that, as there is no reference by the Attorney General. We simply accept it as there can be no appeal. We recall that the countless offences of rape against his stepdaughter took place over a 10 year period. The offences involving pornography were more recent. Whilst he had no convictions he was not in any real sense a man of good character. In the event the sentencing judge concluded that an extended sentence with the maximum extension period was the proper sentence. He passed the individual sentences to which we have referred and imposed a single extended licence period of 8 years (the maximum).

Mr Sapiecha submits first that the judge was wrong to find the appellant a dangerous offender. We disagree. We have not the slightest doubt that the judge was entitled to find the appellant dangerous and was correct to do so. No one who has listened to the facts could come to a different conclusion.

Mr Sapiecha’s second submission is that the custodial period and the period of extension were simply too long. Given that there was a one third deduction for the guilty plea the judge must have had in mind a provisional custodial term of 37½ years. This was, he submits, manifestly excessive. The judge had insufficient regard to totality, failed to give sufficient weight to the appellant’s age. He should have made some of the sentences concurrent or made some of them shorter. A sentence of 11 years was appropriate in respect of each of the counts of rape but he argues that the aggregate of the first four counts on the indictment should not have exceeded the 19 years envisaged in the sentencing range in the guidelines. He also submits that the starting point for the offences of making and distributing indecent images was too high. Finally, given the appellant’s age, 67, a prolonged period of extended licence was unnecessary.

In our judgment the seriousness of the first four counts on the indictment taken with the high culpability of the offender and such mitigation meant that a very substantial extended sentence was the least possible sentence, notwithstanding the appellant’s age. However, even on these dreadful facts the provisional custodial term of 37½ years was too long. It follows that the custodial term of 24½ years and the overall sentence was manifestly excessive. We consider afresh the length of this sentence.

Given the very prolonged period of time over which the offences of rape and buggery continued the custodial period must be well above the sentencing range in the first bracket of the rape guideline. We consider that before any reduction for the plea of guilty the total appropriate custodial term for the offences against LM is at least 25 years. To that will be added 2 years to reflect the later offences. From that 27 year sentence a one third reduction should be made to reflect the appellant’s early guilty plea which meant that LM was spared the distress of giving evidence.

In our judgment, having regard to totality, the custodial term which reflects the seriousness of the offending, the culpability of the offender and such mitigation as there is together with the plea of guilty is 18 years imprisonment. Despite the appellant’s age we consider that the maximum extension period of 8 years is necessary to protect the public. Accordingly we quash the sentences imposed below. On counts 1, 2, 3 and 4 we impose on each count concurrently with each other an extended sentence of 26 years made up of a custodial term of 18 years and an extension period of 8 years. We impose no separate penalty on any other count, the sentence reflecting the whole of the criminality.

To the extent we have indicated, this appeal is allowed.