R v Crow and Pennington

JurisdictionEngland & Wales
JudgeTHE LORD CHIEF JUSTICE
Judgment Date01 August 1994
Judgment citation (vLex)[1994] EWCA Crim J0801-13
Docket NumberNo. 93/3276/Z4
CourtCourt of Appeal (Criminal Division)
Date01 August 1994

[1994] EWCA Crim J0801-13

IN THE COURT OF APPEAL CRIMINAL DIVISION

Before: The Lord Chief Justice of England (Lord Taylor of Gosforth) Mr Justice Curtis and Mr Justice Gage

No. 93/3276/Z4

93/3479/Z4

Regina
and
William John Crow
Derek Pennington

MR STEWART PATTERSON appeared on behalf of THE APPELLANT CROW

MISS LINDSAY ADAMS appeared on behalf of THE APPELLANT PENNINGTON

1

Monday 1 August 1994

THE LORD CHIEF JUSTICE
2

THE LORD CHIEF JUSTICEThese two appeals against sentence have been listed to be heard successively because in both cases the trial judges, in passing sentence, invoked section 2(2)(b) of the Criminal Justice Act 1991 and in both it is argued they ought not to have done. That section provides as follows:

"(1) This section applies where a court passes a custodial sentence other than one fixed by law.

(2) The custodial sentence shall be —

(a) for such term (not exceeding the permitted maximum) as in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and other offences associated with it; or

(b) where the offence is a violent or sexual offence, for such longer term (not exceeding that maximum) as in the opinion of the court is necessary to protect the public from serious harm from the offender."

3

It is not every case of violence or sex offending which would require that section 2(2)(b) should be invoked. If for example the offence before the court is an isolated one, and there is no reason to fear a substantial risk of further violence or sex offending, then clearly the subsection would not apply. But the circumstances of the offence or offences before the court, the nature and circumstances of previous offences, medical or other evidence about the offender, statements of intent by the offender himself, or a combination of any of these and other sources, may raise in the judgment of the sentencing judge a substantial risk of the offender committing violent or sexual offences in the future which may cause serious harm. If that is so, section 2(2)(b) applies. How long should the term be? It might rationally be argued that where a risk of serious harm is established, the only way the public can be totally protected from it is by imposing the maximum sentence, even life imprisonment when that is available. However, the circumstances in which a discretionary life sentence is justifiable have been defined in limited terms in a number of decisions which it is unnecessary to rehearse (see R v Hodgson 52 Cr App R 113, R v Wilkinson 5 Cr App R(S) 105, and other cases). Even when the maximum sentence is a determinate one, it will usually be inappropriate to impose it pursuant to section 2(2)(b). Some allowance should usually be made, even in the worst cases, for a plea of guilty. Account must be taken of the age of the offender. With older offenders, risk to the public may diminish with the passage of time. With a younger offender, the court must balance the protection afforded to the public during his detention against the possible added risk he may present on release from a crushingly long sentence. Finally, we consider that even where section 2(2)(b) is applied, the sentence should, whilst long enough to give necessary protection to the public for an extended period, still bear a reasonable relationship to the offence for which it is being imposed. This issue was raised in R v Mansell reported only at [1994] Crim LR, but of which we have a transcript. In that case it was decided that the learned judge had been justified in applying section 2(2)(b), and the judgment went on:

"When one goes on to consider what would be the appropriate period to add, the learned judge has to perform a balancing act. In theory someone who is addicted to conduct which could cause serious harm to members of the public may need to be prevented from doing that for a very long time. In the ultimate case an indeterminate sentence may be necessary where the harm is likely to be very serious and the predilection of indulging in such conduct looks likely to continue for an indefinite time. But the learned judge in each individual case has to try to balance the need to protect the public on the one hand with the need to look at the totality of the sentence and to see that it is not out of all proportion to the nature of the offending. In the present case, it is sufficient to say that in our judgment the learned judge's sentence could not be faulted in the way he struck the balance. It is quite impossible to give any guidance as to what length of sentence would be appropriate for the purposes of protecting the public as between one case and another. Each case turns on its own facts and different offences committed in different ways may require different responses from the court in regard to the protection of the public."

4

We do not feel that we can add to those observations by way of guidance in this class of case.

5

We turn now to consider the two appeals before us. First, the appeal of William John Crow. On 9 June 1993, at Winchester Crown Court, the appellant was convicted of one count of buggery (count 1), two counts of gross indecency (counts 2 and 4), and he had earlier pleaded guilty to taking indecent photographs (count 5). He was sentenced as follows: for buggery (count 1), seven years imprisonment; for gross indecency (count 2), two years imprisonment concurrent; for gross indecency (count 4), three years imprisonment concurrent; for taking indecent photographs (count 5), two years imprisonment concurrent. He was acquitted on count 3, a further count of gross indecency. The total sentence was one of seven years imprisonment. This appeal is brought by the leave of the single judge.

6

The appellant is now 56 years of old. He was 53 at the time of the offences. He had not previously been convicted of any sexual offence. Indeed, he had only one minor conviction on his record, which it is not necessary to mention.

7

The appellant met the complainant, a boy of 13 named Carl August, in public lavatories on the Isle of Wight in early summer 1990. The boy, August had gone to the lavatory in the hope of meeting someone to take part in homosexual acts for money. He had done this before. The appellant and he were in adjoining cubicles. They passed notes through a hole in the wall. According to the boy, each in turn put his penis through the hole whilst the other performed oral sex upon it. The appellant then gave the boy a lift in his vehicle. When they parted he gave him £10, and they arranged another meeting. That conduct was the subject of count 2.

8

As already indicated, count 3 resulted in an acquittal. That was on a later occasion when, at the instance of the boy, the parties met, and photographs were taken. However, the prosecution allegation that there had been gross indecency was not accepted by the jury.

9

Later again, the boy telephoned the appellant. They drove to Parkhurst Forest in the appellant's minibus. There, according to the complainant, he posed for photographs in return for money. They included photographs of him masturbating and performing oral sex on the appellant. There were also photographs of the appellant performing oral sex on him. The boy claimed that on that occasion he received £50. That was the subject of count 5, the taking of indecent photographs.

10

A week later, they met again for further photographs. A sum of between £10 to £20 was passed between them. They performed oral sex on each other and masturbated each other.

11

About a fortnight later, the appellant drove the minibus to a car park near the British Legion Club, Ryde, with the boy aboard. The boy undressed, and the appellant partly undressed. Photographs were taken of the boy performing oral sex. Then, by agreement, the boy buggered the appellant as he bent over one of the seats in the minibus. That act was photographed as it took place. The boy wore a condom. He ejaculated whilst inside the appellant. That conduct was the basis for counts 1 and 4, buggery and gross indecency. The boy claimed that he was annoyed because he had not been given any money. Accordingly, he complained as to what had occurred to staff at the Family Resource Unit at Newport.

12

Some time later, he ran away from that unit, and arranged to meet the appellant after he had finished work. They went to the appellant's home where they watched a pornographic video.

13

The appellant was arrested at his home on 10 May 1991. On a search there, the police found a camera, a homosexual magazine in an envelope, a heterosexual magazine, and 22 photographs. On arrest, the appellant explained the photographs by saying, "Carl is buggering me. It was only the once."

14

The appellant was interviewed on 10 May. He said he first met the boy when he lent him £5, after the boy approached him. He rang later to get the money back. He believed the boy was 20 years old. He admitted meeting him in the lavatory, and masturbating through the hole in the lavatory wall. He gave the boy a lift and £5. He met him later to recover the money, and the boy suggested taking photographs in Parkhurst Forest. Buggery was suggested by the boy. The appellant dropped his trousers, and the boy buggered him for as long as it took to take the photograph. He agreed that oral sex had also taken place and that he had masturbated the boy. He denied buggering the boy, although he accepted that there was a photograph showing his (the appellant's) penis in proximity to the boy's anus. There was a description of other conduct which it is not necessary to mention.

15

The appellant is a single man. He has no children. He was self-employed as a coach driver. There were before the...

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