In court

Racist abuse: Sending a message

While a young woman of dual racial heritage (her mother being of African-Caribbean descent and her father white Scottish) was sitting in a pub with family members, including her aunt’s two children aged six and eight, G. came over to her table and said: ‘Don’t you know they don’t let nig nogs in here?’. Shocked and offended, she complained to bar staff. Being in the late stages of pregnancy, the distress caused had made her anxious for the welfare of her unborn child. Her boyfriend had reacted calmly and responsibly. Charged with causing racially aggravated intentional harassment, alarm or distress, G. contested the allegation, claiming that he had said ‘They do not let sprogs in here’, but this was rejected by the jury. Aged in his mid-50s, G. had contributed to the community through charitable work and his previous convictions were considered too historic to be of any relevance for the purposes of sentencing. The judge concluded that an immediate custodial sentence was required, proceeding without a pre-sentence report.

On G.’s appeal against sentence of four months imprisonment the Court of Appeal referred to past appeal decisions indicating that a two-stage approach should normally be adopted in sentencing racially aggravated offences: first, to determine what the sentence should be absent the aggravation; and, secondly, to consider what and by how much the sentence should be increased to reflect it. The Court reiterated that that approach seems ‘more readily applicable in cases where there was a distinct offence such as an assault even without the racial element, whereas here the very essence of the offence was the racial nature of the remark’. The episode had been aggravated by the presence of the children (one of whom had been upset by what had happened) and by the victim’s condition. While ‘fully recognising the distressing impact that offences of this kind understandably have on the victims’, the Court observed that an immediate custodial sentence is not always required for an offence of this kind in which the offender offers no violence. The trial judge had been best placed to form a view as to whether it was required in this instance and the decision to impose an immediate custodial sentence could not be criticised. However, such a sentence ‘should have been very short, marking ‘both recognition of the understandable impact on the victim and society’s condemnation of such conduct’. A term of six weeks would have sufficed and was duly substituted.

R v GARGAN, [2018] 1 Cr App R(S) 6.

Shame, pregnancy and immediate custody

A carer for a woman aged 88 with severe physical disabilities, G. used her client’s credit card over a period of five days to withdraw and steal £900 from her bank account. Discovery of this theft caused the victim severe shock and upset, necessitating her removal to a care home for several weeks before she could return to her own home. Aged 31 and of previous good character, G. was the mother of three children aged six, eight and 11, being primary carer of two (the middle child living with his father), and was again pregnant, by her new partner. Following her guilty plea the Crown Court considered a PSR and applied the relevant Sentencing Council guideline (2015), identifying a starting point of nine months, reduced to six months immediate imprisonment to reflect plea.

Immediately following sentence it came to notice that the PSR had been based on inaccurate and incomplete information. G. had been so shocked and ashamed about her dishonesty that she had told no one of her offence – not even her new partner or his mother with whom she was then living with two of her children. Following an application under the slip rule for the court to be updated as to G.’s full circumstances, the judge considered the further information but determined that the sentence imposed remained correct.

Appeal against sentence was expedited because G.s fourth child was due five days following the hearing date and it was argued on her behalf that sentence should have been suspended to enable her to avoid giving birth in custody or that her sentence should be reduced as a compassionate gesture to achieve the same effect. Meantime she had applied for a place on a prison Mother and Baby Unit.

The Court of Appeal observed that the judge had been amply justified in passing a short sentence of immediate custody for a ‘mean offence, against a very vulnerable victim, in gross breach of trust’. Her children were all being cared for by relatives for the comparatively short time of their mother’s incarceration. She and her baby would be excellently cared for in the Mother and Baby Unit, from where she would be released shortly afterwards, and there was scope for discretion to allow the father to attend the birth there. If she was released on home detention curfew (for which she was eligible) before the birth, her baby would be born in the normal way in hospital with the father present. Accordingly, the appeal was dismissed.

R v GREEN, [2018] 1 Cr App R(S) 4.

Bid to smuggle blade into prison

Aged in her mid-40s and without prior convictions, C. visited her brother in prison a week before his release. As a preliminary before the visit she was scanned for security purposes by an X-ray machine which detected a Stanley knife blade hidden in her boot. Charged with conveying a ‘List A’ article into a prison, she pleaded not guilty on the basis that she had not known that it was there. There was no information regarding the intended purpose for the blade. Mother of three children aged 16, 14 and eight, she was a partner in a small cleaning business, working part-time with one other person. On conviction she incurred 12 months immediate imprisonment without the Crown Court requesting a PSR.

In passing sentence the judge indicated that he had taken into account C.’s age, her previous good character and the catastrophic effect that imprisonment would have on her, her business, including her business partner and the people she worked with, and especially her children. He noted too that the blade had been found before it could be handed over, though that was down to staff alertness, not to any assistance that she had offered. Her bid to smuggle in the blade had put at risk the safety of other prisoners, prison staff and professional visitors, and had served to breed distrust of other visitors. Her actions and similar such initiatives necessitated an expensive and elaborate prison security system. In his view, taking blades into prison was of a different and more serious order even than taking in drugs, mobile phones and SIM cards because of the violence it inevitably encouraged. Prisoners often use people of good character for the purpose because they think they were more likely to get away with it, or will be more likely to be treated leniently if caught. That false impression has to be contradicted by the clearest indication that offending of this kind will be dealt with severely.

On C.’s appeal against sentence it was argued on her behalf that that the judge should have adjourned the case for a PSR and that the sentence had been manifestly excessive, given that her conduct had not caused any actual danger and had been a naive initiative that was bound to be detected. Even if she had got past security there was no certainty that she would have had the nerve to go through with handing over the blade during her intended visit. The Court of Appeal was clear firstly that a PSR had not been necessary, though a pre-appeal report had been obtained indicating that C. still maintained innocence but had informed the probation officer that her mother was staying at her home to look after the children in her absence, with some assistance from their father. The Court observed that though List A offences are not the subject of any guideline, these are indictable-only, with a maximum term of 10 years’ imprisonment, and ‘strike at the heart of the safety of the prison system with grave adverse impact’. ‘The need for deterrence is likely to be to the fore.’ The term imposed had not been excessive and an immediate sentence had been necessary and proportionate, to both the offence and the Article 8 rights of C. and her children. The appeal was thus dismissed.

R v CASHMERE, [2018] 1 Cr App R(S) 9.

Desperate robbery bid where victim not in fear

As a shopkeeper was closing up on the evening, L., well known to him as a regular customer, arrived asking if he could buy beer and was allowed entry. After some conversation and having paid for his beer, L. announced that he wanted money from the till and the victim noticed that he was holding a large knife. The shopkeeper asked why he was behaving like that and told him to go but L. responded that he was ‘sick of my life’ and was prepared to stab him despite knowing of CCTV surveillance at the shop and certainty that he would be caught. Another man entered and was able to persuade L. to leave. As he left L. had called out that he was ‘sorry’. In his subsequent statement the victim said that though he had been surprised and disappointed he had not been frightened, albeit his confidence had been affected and he had been left anxious and scared when shutting up his shop.

Aged in his early 30s, L. had a substantial criminal history from age 14, including instances of robbery as a juvenile, several convictions for blade possession and an instance of aggravated burglary committed 10 years prior to his current crime, for which he had incurred 42 months imprisonment. His more recent offending had mostly involved driving offences, possession of drugs and shoplifting, having been made the subject of a suspended sentence order (SSO) a month before the present offence. On L.’s guilty plea to attempted robbery and weapon possession the Crown Court received a PSR that noted that this crime episode had been preceded by the breakdown of his marriage, leaving him homeless and resorting to heroin and crack cocaine. In light of his history and drug dependency and the absence of any identifiable positive factors in his life, he was assessed to pose a high risk of future re-offending and a high risk of serious harm to the public.

On L.’s appeal against an extended sentence comprising a custodial term of six years and a three year extension period, it was argued on his behalf that he should not have been regarded as ‘dangerous’ and thus eligible for an extended sentence and that the custodial term had been manifestly excessive and wrongly based on the view that the crime had caused the victim serious psychological harm (thus placing him wrongly within Category 1A of the Sentencing Guideline for Robbery (2016), rather than within Category 2A).

The Court of Appeal agreed that the impact on the victim, whilst obviously considerable, fell a long way short of serious psychological harm and that the case clearly came within Category 2A (starting point of five years with a range between four to eight years). However, in light of L.’s record and reoffending while subject to SSO, the Court considered that, notwithstanding some mitigation arising from L.’s restraint and expression of regret, the appropriate starting point following contested trial would be six years. With credit for plea the correct custodial term would be four years. Despite the significant gap since L.’s previous violent offending, his record evidenced ‘a disturbing recurrence of that sort of offending’ and L. had ‘been prepared to threaten the complainant with a large knife in a prolonged incident’. Given too his circumstances indicating the absence of any protective factors and the view of the PSR writer, the judge had been justified in determining him to meet the dangerousness criterion and to merit an extended sentence. Accordingly, the extended sentence was upheld but with the custodial term lowered to 48 months and the extension period adjusted (for reasons that the Appeal Court did not explain) to 24 months.

R v LAWS, October 2017 (not reported at time of writing).

Bookies robbery: Query level of sophistication

A betting shop employee, N. tipped off others that a woman colleague was setting off to bank some £3000, carried that day in a shoulder bag as the money belt normally worn for the purpose could not be located. She was accosted and robbed by two men in the street, the violence used being considered ‘minimal’, limited to covering her eyes, pushing her and taking her bag before they made off in a car driven by O. She was left shocked and scared. The car was traced, leading to O.’s arrest, and his phone history linked him to N. At the first reasonable opportunity N. pleaded guilty to conspiracy to rob, on the basis that he had been approached by somebody he knew and propositioned to be involved in the robbery, it being agreed that no weapons would be used and violence would be limited to wrestling the money from the victim. However, when interviewed for a PSR he gave the probation officer a somewhat different account, saying that he had been in financial difficulties and had been recruited by four others including O. Aged 23, N. had three previous convictions for railway fare dodging but these were not regarded as an aggravating factor. In a letter to the judge he expressed his remorse and his determination to live a law-abiding life in future.

The sentencing judge considered that this had been a professionally planned commercial robbery, rejecting the defence view that the crime should be regarded as a street robbery or a less sophisticated commercial robbery. Accordingly, the judge placed the crime within Category 2, as set by the relevant sentencing guideline (2016) and regarded N.’s culpability as high because of his leading role and the obvious breach of a position of trust. These considerations indicated a range between seven and 14 years, with a starting point of nine years. As only limited violence and no weapon had been used, the judge adopted a starting point of seven years at the bottom of the range, deducting one-third for guilty plea, resulting in the term of four-and-a-half years.

On N.’s appeal against sentence the Court of Appeal noted under the guideline that a professionally planned commercial robbery refers to robberies involving a significant degree of planning, sophistication or organisation, whereas a street or less sophisticated commercial robbery covers robberies committed either in public places (including those in taxis or involving public transport) or within commercial premises or targeting commercial goods or money but without those hallmarks. This robbery did not fall neatly into either of those definitions. There had obviously been a degree of planning, using inside information and putting together a team to undertake the robbery of quite a considerable sum, but it had not been professionally planned and did not fall into the more usual category of commercial robberies of banks or building societies. It had been carried out on the street, in a style similar to a handbag snatch. It thus sat on the line between two types of crime. An appropriate starting point would thus be five years and a term of 40 months was substituted, reflecting credit for plea.

R v NOEL, [2018] 1 Cr App R(S) 5.

Two-way relationship violence: Extended sentence justified?

B. had been in a persisting relationship with H., excessive consumption of alcohol fuelling frequent, often violent arguments in the course of which she sometimes directed verbal or physical aggression towards him, prompting numerous police call-outs. At a point when H. was subject to police bail for allegedly assaulting B. and they were both heavily intoxicated, he stabbed her repeatedly with a knife during an argument, before calling the police. Neither had a clear recollection of what had happened, though he claimed that he had effectively been imprisoned in her home (an assertion that was not considered true), that she had stabbed herself because she felt that she had nothing to live for and also that he had attacked her because she had tried to stab and kill him (the possibility that she had been aggressive to him was given some credence). She sustained multiple wounds to her neck, belly and back, including penetration of her lung, as well as defence wounds to her forearms, and had required three weeks in-patient treatment, including a period of medically induced coma, and had been left feeling unsafe in her home.

B. subsequently pleaded guilty to s18 wounding with intent. Aged in his mid-40s, he had incurred six previous convictions, including for ABH assault over 20 years previously. He had incurred s suspended sentence for battery seven years previously, failing to comply, and more recently had been convicted of two instances of criminal damage. The Crown Court judge understandably assessed the harm to be very considerable; though the victim’s life had not been endangered this was ‘pure chance’ and the attack had been both sustained and violent. Harm was mitigated by some degree of provocation and B.’s mental condition of alcohol dependency syndrome that would have contributed to the commission of the offence. Under the relevant sentencing guideline (2011) the crime merited a starting point of 12 years with a range between nine and 16 years. In light of aggravating factors pertaining to both harm and culpability, the judge considered that sentence should be ‘some way up the range’, 15 years before credit for plea. The judge considered a PSR that referred to the number of call-outs by police in response to H.’s complaints as indicative of a clear, prolonged and escalating pattern of violence against the victim. However, this interpretation was not substantiated by police records of the incidents; on many such occasions the police had taken no further action and the prosecution agreed that it would not be right for the judge to rely upon the PSR writer’s conclusion about reported past violence. However, the report properly linked B.’s crime to his alcohol misuse and entrenched and chaotic mode of life. B. was noted to attribute his violence to drink and ‘black-outs’, failing to recognise his problems in managing his emotions and his ‘deficits in managing relationships’. He was assessed to pose a high risk of serious harm, particularly to H. and future potential partners. On this basis the judge concluded that B. was properly considered ‘dangerous’.

On B.’s appeal against an extended sentence comprising a custodial term of 10 years and a five-year extension period, the Court of Appeal considered that the judge had been entitled to draw the conclusion that B. did pose a real and serious threat. ‘The sorts of person with whom [he] had associated in the past have also suffered from alcohol problems and on that basis it can be predicted that the nature of future relations could be equally volatile.’ Accordingly, the finding of dangerousness was valid. As regards the discrete question whether an extended sentence was appropriate, the Court considered that in light of the substantial differences between a determinate and an extended sentence, affecting eligibility for release, a sentencer should give the issue careful thought, having regard to a PSR assessment. Regrettably, in this case the deficiencies in the PSR meant that the judge had not been provided with as much guidance as he needed and deserved.

After weighing the arguments both ways the Court concluded that the following considerations ‘militated in favour of an extended sentence providing some Parole Board oversight of B.’s release: (a) the ferocity of the attack and the number of stab wounds inflicted, spread all over the victim’s body but coming perilously close to vital organs; (b) B.’s persistent alcoholism and related medical and psychological conditions; and (c) the judge’s conclusion that B. presented a risk to others with whom he had a relationship in the future. An extended sentence was thus upheld but the Appeal Court lowered the custodial term to nine years (from a starting point of 13½ years, a three-year uplift being considered too high in the circumstances) and did not consider that an extension period of the maximum of five years was justified.

This assumes that the gravity of the offence is such that it falls into that category where the maximum extension is warranted. We do not consider that this would be a fair reflection of these facts. We also take into account that during the custodial period of his sentence there is time in which B.’s conditions can be addressed in a manner which reduces the future risk and serves to limit the need for such a long extension period.

Sophisticated global DDoS attack: Youthful autism

When police executed a search warrant at M.’s family home, when he was aged in his late teens with no criminal history, he was found to be running DDoS (distributed denial of service) attacks through a programme which he had devised (‘Titanium Stresser’), in breach of the Computer Misuse Act (CMA) 1990. A DDoS attack floods a network with so many additional bogus data requests that regular traffic is slowed or in some cases completely interrupted. In addition to launching some attacks himself he had sold the programme to others for the purpose of launching their own DDoS attacks. A total of 1,738,828 attacks had been carried out across the world, directed against 666,532 individual IP addresses or domain names, 52,836 being located in the UK, including the college he attended and a computer gaming company. He had received around £250,000 in programme sales income. He had initially refused to unlock his computer for the police but was persuaded to cooperate by his father. His very supportive family had known nothing about his unlawful activities.

Following his guilty pleas to (a) unauthorised acts with intent to impair the operation of computers (CMA s3(1)), (b) making, supplying and offering to supply an article for use in an offence (CMA s1) and (c) concealing criminal property (by using a PayPal account) (Proceeds of Crime Act 2002 s327(1)), the Crown Court considered a PSR reporting that M. was autistic and that this condition had undoubtedly been central to his DDoS offending. Though he had received considerable financial gain, his motivation had been more to do with a perception he thus gained about himself as clever, in contrast to the sense of failure he had experienced during his upbringing. Since the detection of his actions it was obvious that he had come to appreciate the gravity and wrongfulness of his actions and the shame he had brought on himself and his family. He had learned a severe lesson and presented a low risk both of further offending and of causing serious harm to the public. The PSR raised concern that a custodial sentence would break him and proposed a suspended sentence order with rehabilitation activity requirements and unpaid work requirements.

A psychological report indicated that M.’s parents’ account of his developmental history supported a diagnosis of autistic spectrum disorder, though the psychologist’s clinical observations of him indicated that M. was above the threshold for autistic spectrum disorder. A further psychological report indicated that there was clear evidence of behaviours typically associated with autism and considered that his offending had had the function of meeting his emotional and social needs rather than being for financial gain. Accordingly, targeting his functioning, the development of skills and enabling him to live more independently would be an important factor in reducing the risk of re-offending. He was considered likely to have significant difficulties coping within a custodial setting; a community-based sentence, with a focus on rehabilitation, was recommended. One more expert report offered a diagnosis of Asperger’s Syndrome, said to reduce culpability, given M.’s age and the absence of a correct diagnosis hitherto. It suggested that now that he had been correctly diagnosed there was no risk of re-offending.

Finally, a psychiatric report stated that M. had high-functioning autism and Asperger’s Syndrome and, though aware that an action was wrong and could cause harm, may have had little sense of what this meant to the recipient individual or organisation. M. had been aged only 16 when his offending began, before his autism had been detected; as now he was aged 20 (nearly two years having passed since arrest, because of the complexity of the case) the risk of repetition was low but he remained vulnerable and would not cope well with custody.

On M.’s appeal against sentence of 24 months YOI detention the Court of Appeal noted his very high level of culpability. He had evidenced considerable care, patience and determination in creating, using and marketing a product, the sole purpose of which was to undertake worldwide cyber-attacks causing considerable disruption, harm and loss. Notwithstanding his condition, M. had known full well that he was not just having fun but committing serious crime, including the element of money laundering, and in doing so was taking a risk with his liberty, yet he had continued with his illegal activities for some time. Aggravating factors included: the size of his user database; the large number of attacks; the actual and potential damage caused; the degree of sophistication involved; his persistence over a prolonged period of time; targeting the websites of educational establishments; substantial financial gain, albeit that this had not been his main motivation. Mitigating factors included: the offending was a by-product of his then undiagnosed condition; his age at the time; the fees he had charged had mostly not reached him, being mainly frozen in PayPal accounts; previous good character; guilty pleas (for which the Crown Court had opted to apply a discount of 25%). He had the possibility of employment with a cyber-security consultancy company that hoped to use his undoubted skills in cyber security and the Court had little doubt that similar opportunities would present themselves, given his obvious potential.

After careful and anxious consideration, having ‘very much in mind every parent’s worst nightmare in a case such as this’, the Appeal Court concluded that, in light of the scale of the enterprise and M.’s calculated choice to persist in his actions, the judge could not be faulted for opting not to suspend sentence. An adult offender could have expected a term of six years in a contested case. The only reason to differ from the Crown Court concerned the discount for plea. On the particular facts of the case, full one-third credit should have been preserved. Accordingly, sentence was reduced to 21 months YOI.

R v MUDD, [2018] 1 Cr App R(S) 7.

Street molestation: Planning and vulnerability?

Walking home in the late evening (22.45) after drinking with friends, a medical student aged 21 passed T., aged 30 and without prior convictions, who was sitting on a wall. She accepted his offer of a cigarette and sat beside him, exchanging names in a brief conversation. When he asked if she knew if there was CCTV coverage in that area she opted to walk away but he followed her, seeking to obtain her phone number and putting his arm round her as a prelude to sexually assaulting her, by placing his hand inside her trousers and underwear, grabbing her breast and forcing kisses upon her. When he sought to manoeuvre her into an alley she was able to walk briskly away, stopped a passer-by to complain that T. had tried to rape her. In interview he did not deny touching the complainant but said that she had instigated intimacy, kissing him, controlling his hands and directing his movements, it having been a joint decision to go down the alleyway to secure more privacy. He maintained that account at trial.

Following his conviction by a jury of sexual assault T. was sentenced to four years’ imprisonment. The Crown Court judge identified a number of aggravating features: the degree of planning; offending late at night in a public street close to an alleyway; the victim’s vulnerability; the perpetrator’s persistence in face of her clear indication that she did not welcome his intrusive attentions. The judge also noted that T. had cast aspersions on her as the basis of his defence, claiming she had been the driving force in what happened. The judge concluded that the crime counted as a Category 2A offence within the relevant sentencing guidelines (2013), with a range of one to four years’ imprisonment and a starting point of two years.

On T.’s appeal against sentence of 48 months imprisonment (imposed without a PSR) it was argued on his behalf that the judge had been wrong to conclude that the offence displayed a significant degree of planning, as conceived by the guideline, as he had given the victim his name, phone number and address. Further, even if Category 2A had been correctly identified, four years’ imprisonment was manifestly excessive, making no allowance for previous good character.

The Court of Appeal considered that the trial judge had been well-placed to assess the extent to which this offence involved planning.

‘Significant’ in this context is not an absolute concept. A sexual assault can be committed without implements or tools or any sophisticated planning…lying in wait, in a position that is perfectly designed to prey on lone young women (particularly given the timing) who have had a night out and are on their way home, did involve a significant degree of planning in context. The judge was amply entitled in those circumstances to conclude that this was a Category 2A offence.

R v TEKLU, [2018] 1 Cr App R(S) 12.

Belated appreciation of willing victim’s age

Aged in his early 60s (with a single and non-relevant prior conviction), R. encountered L. via an internet dating site designed for adult males which required users to confirm that they were aged 18 or older. On several occasions L. sent R. explicit messages in which he asked whether they could meet for masturbation and oral/anal sex, also sending pictures of his erect penis and making reference to his ‘pay day’ and to the booking of hotels. He clearly purported to be an adult and it was not disputed that this was R.’s understanding and that he was interested in sex only with a male adult. In fact L. was aged 13, though physically well developed (he was five foot seven inches tall and weighed well over 11 stone) and his genitalia ‘presented as normal by reference to comparison with adults’. His cognitive ability was considered to be well below his chronological age and he had been diagnosed with autism spectrum disorder and oppositional defiance disorder, although R. was not aware of these medical diagnoses. He had a difficult background and had spent time in residential care, being described as controlling and extremely attention-seeking. (At R.’s trial the jury learned that in the past L. had made a number of false allegations of physical and sexual assault.) When they were arranging to meet, L told R. that he wanted to spend the whole night with him and suggested that R. should ‘sneak in’ to his home because he lived with his grandparents who were not to know. R. declined this idea and parked outside where R. joined him in his nightclothes at 23.00, having first ‘put his guinea pig away’. They drove to a quiet spot where R. sucked L.’s penis. On the following day R. collected L. again in the daytime (though again dressed in night-clothes) and took him to a friend’s house. When they were both naked on a bed, by L.’s account he had told R. that he was only 13, R. responding to the effect that he would pretend that he had not heard that, next penetrating L.’s mouth, also asking him whether he ‘liked it rough’. Shortly afterwards L. complained that he had been sexually assaulted.

When prosecuted on two counts of sexual activity with a child, R. gave evidence that he was gay but had preferred his grown up children not to know so he had sought out casual sex on the internet, always with adult males, in accord with his preference, and never with male children. On the first occasion he met L. he had thought that L was 18 or 19 years of age. He stated that, with the benefit of hindsight, he should have known that something was wrong but it had not occurred to him that L might be under-age. He denied that L. had ever said that he was only 13. Their sexual activity had been consensual throughout. The jury convicted him on Count Two but could not agree on Count One which the prosecution opted not to pursue to retrial.

A PSR considered that R. sought to minimise what had happened but recorded that his acknowledgment that he should have questioned L about his age. At the time of the offence he had been lonely and in a low mood and had been flattered by the attentions of an obviously younger male. The risk of further offending was assessed as low, although if that occurred there was a medium risk of serious harm to children.

The judge acknowledged that R. had been expecting to meet an adult, albeit that he was confronted with a young male ‘who obviously had difficulties’ and the circumstances of their meetings ‘must have, at the very least, put you on notice that there was a certain vulnerability about that young man’. ‘Even if you didn’t target a vulnerable young person, it must have been apparent that he was vulnerable’. Determining that the crime amounted to a Category 1A offence for the purposes of the relevant Definitive Guideline (2013), indicating a starting point of five years’ custody with a range between four and 10 years, but accepting that there were ‘certain circumstances’ in mitigation which justified a reduction in sentence, the judge imposed three years’ imprisonment.

On reference to the Court of Appeal by the Attorney General on grounds of undue leniency it was argued that there had been no good reason to depart from that starting point, given the aggravating factors of age disparity, penile penetration and the victim’s particular vulnerability. The Court disagreed, on the basis that the first two factors could not be considered aggravating as they had already contributed to the determination that the offence came within Category 1A, while the assertion in respect of the third factor was at odds with the prosecution’s acceptance that R. had not been aware of L.’s medical problems. The sole aggravating factor arose from R. being told by L. during their second encounter that he was 13, nevertheless continuing to pursue their sexual activity. As regards mitigation, R. was now aged 64 with positive character references and no relevant previous convictions of any kind. It was accepted that he had not at the outset been looking for sex with a minor; on the contrary, he had been looking for sex with another man and that initially was what he thought he would be getting. There had been no prior targeting or grooming of anyone known to be under-age. He learned the truth only when both were already naked and preparing for sexual activity.

The Appeal Court fully appreciated that ‘young people need to be protected from themselves’ and an under-age person like L. who positively initiates or encourages sexual contact may be in particular need of protection. However, ‘that particular point loses much of its force…once it is appreciated that at the outset R. had not realised that L was 13 and first realised that was so only at a late stage during the course of their second encounter.’ The judge had been fully entitled to describe this case as being out of the norm. ‘The aggravating factors were not of any very great significance, whereas there was powerful personal and other mitigation available to this offender.’ Accordingly, a sentence below the lower end of the indicated range was justified and the term was left unchanged.

ATTORNEY GENERAL’s REFERENCE (R v R.), [2018] 1 Cr App R(S) 10.

Cybersafe intervention via suspended sentence

Aged in his early 50s and of previous ‘positive good character’, FJ was found to be in possession (on his computer hard drive) of indecent images depicting children, one rated Category B and one Category A (a boy penetrating a younger boy), and of two images featuring extreme pornography. Following his guilty pleas he was committed to the Crown Court for sentence. A PSR indicated that his attitudes linked to this offending needed to be challenged, reported that he was willing to undertake work on his sexual offending and indicated that he was suitable for a one-to-one intervention (‘Cybersafe’). The judge considered the offences so serious that only an immediate custodial sentence could be justified and imposed a term of nine months.

On FJ’s appeal against sentence the Court of Appeal did not criticise the judge for concluding that this was a case where a custodial sentence was required, given that FJ had acquired a number of images, the Category A depiction being ‘particularly repellent’. However, the judge had fallen into error in determining that there was no proper basis for suspending the sentence. Though the Appeal Court will not readily interfere with the sentencer’s ‘nuanced exercise’ of determining whether a sentence should be suspended or not, there will be cases where the decision not to suspend is plainly wrong and this was one of them. ‘There was in this case every reason to suspend the sentence. There was rehabilitation available in which [FJ] was willing to engage. There was strong personal mitigation. There were no obvious and clear aggravating factors.’ The Court substituted a sentence of six months’ imprisonment suspended for 18 months, with a supervision requirement of 18 months (the Court appeared to overlook that this kind of requirement had been repealed by the Offender Rehabilitation Act (ORA) 2014, with effect from 1 February 2015), and a rehabilitation activity requirement, namely participation in the one-to-one Cybersafe work.

R v FORREST-JAMESON, [2018] 1 Cr App R(S) 1.

SHPOs: Length and fit with licence

The Court of Appeal took the opportunity to review together two unrelated cases involving the imposition of sexual harm prevention orders (SHPO).

Length of SHPO. Having pleaded guilty to seven counts of making indecent photographs of a child, committed over an eight year period and including numerous images within Category A (some involving children as young as three being subjected to penetrative activity), McL (aged in his early 40s) was sentenced to 12 months imprisonment, suspended for 24 months, with a rehabilitation activity requirement (RAR) for 25 days and a requirement to complete the internet sex offenders programme (iSOTP). On the same sentencing occasion a SHPO was made ‘until further order’. Had the suspended sentence of imprisonment stood alone, its length meant that McL would be subject to the statutory notification requirements (usually known as sex offender registration) for 10 years, but SOA 2003 s103G(1) specifies that where a SHPO is made, the offender concerned automatically remains subject to the notification requirements while the SHPO has effect. He would thus be subject to notification requirements indefinitely or until the SHPO ceased to have effect.

On his appeal, limited to the SHPO length, it was submitted on his behalf that the imposition of a SHPO without limit of time had been manifestly excessive and wrong in principle and that, ordinarily, the duration of a SHPO should be no longer than the statutory notification period for the sentence imposed. The Court of Appeal gave the following points of guidance:

There is no requirement of principle that the duration of a SHPO should not exceed the duration of the applicable notification requirements. ‘It all depends on the circumstances.’

In this case the Appeal Court could not discern from the Judge’s sentencing remarks any clear rationale for an indefinite SHPO. Further, McL had powerful support for his position from the probation service, his offender manager reporting that he

has done more to rehabilitate himself than any other individual I can think of working with over the past 12 years. An example of his commitment to change and desistance is his engagement in counselling…. Whilst engaging in iSOTP he increased the frequency of his counselling from weekly to twice weekly and this offered him space to evaluate and reflect upon learning from that week’s programme. McL has realistic and achievable goals for the future….

SOPO/SHPO in conflict with post-release licence. In 2005 B. had incurred a sentence of imprisonment for public protection (IPP) on conviction of numerous offences of downloading numerous indecent images of children. The Crown Court also imposed a SOPO, until further order, though B. had not appreciated that obligation until informed of it in the course of his parole hearing, the Parole Board directing his release, his licence including a set of additional conditions, at odds with the SOPO terms, governing his possession and use of internet-enabled devises and cameras. On B.’s out-of-time appeal against the SOPO, the Court of Appeal firstly noted its earlier judgements (post-dating 2005) indicating that ‘some very unusual feature would be required’ to justify imposition of a SOPO (now SHPO) at the same time as an indeterminate sentence. In this instance the Court readily accepted the conflict between the lawfully imposed SOPO terms and B.’s licence conditions.

Self-evidently, those terms and conditions cannot be reconciled. It follows that [B.] would be at risk of breaching the SOPO terms despite scrupulous compliance with his licence conditions. In our judgment, it would be unacceptable – and substantially unjust – to permit that conflict to stand. We have no doubt that steps should be taken to ensure that the SOPO terms mirror the licence conditions.

R v McLELLAN and R v BINGLEY, [2018] 1 Cr App R(S) 18.