R v Kevin Robson
| Jurisdiction | England & Wales |
| Judgment Date | 23 June 2006 |
| Date | 23 June 2006 |
| Court | Court of Appeal (Criminal Division) |
Hooper LJ, Keith and Lloyd Jones JJ
: F Currie for R; K Barker and R Posner for the prosecution
: The point at which age is determined for the purposes of the provisions for sentencing dangerous offenders under the Criminal Justice Act 2003
: R, who was born in November 1987, had indecently exposed himself on several occasions. In October 2005, he was convicted of two offences of sexual assault on a woman (contrary to s. 3 Sexual Offences Act 2003), which were serious specified offences under s. 224 Criminal Justice Act 2003. They had been committed in July 2005, when he was 17. He had touched the leg of a girl of his age and then put his arm around her shoulder whilst moving his other hand in such a way as to make her think he was masturbating; some minutes later, having followed her when she moved away, he pinned her against a wall and put his hand up her skirt, but the incident ended as people came out of a nearby public house. The incidents had caused distress to the victim, who became less willing to go out.
In early November 2005, he was committed to the Crown Court for sentence, where he appeared two days after his 18th birthday. A pre-sentence report indicated that the risk of further offences was high; he had been unwilling to engage in therapy, or was unsuitable for some programmes because he lacked empathy for his victims. He was sentenced to an extended sentence of 2 years' imprisonment with an extended licence of 5 years; and to detention for 12 months in relation to a breach of a supervision order (although it was not clear whether he intended that also to be an extended sentence). An appeal was commenced; the Registrar raised for the Court the issue of whether the judge had correctly sentenced R under ss. 226 and 228 of the 2003 Act rather than s. 225. The difference was that, once the view was formed that R met the dangerousness test, if his sentence should have been imposed under s. 225 (on the basis that he was 18), the judge would have been bound to impose at least a sentence of detention for public protection as the offences were serious specified offences; if ss. 226 and 228 applied, the judge had a discretion to impose an extended sentence if that would be adequate to protect the public from the dangerousness posed.
Keith J
Introduction
1. The appellant was born on 16 November 1987. On 20 October 2005 at Bath and Wansdyke Youth Court, he was convicted of two offences of sexual assault on a woman contrary to s. 3 of the Sexual Offences Act 2003. These were specified and serious offences within the meaning of ss. 224(1) and 224(2) of the Criminal Justice Act 2003 ("the 2003 Act"). He had pleaded not guilty. The offences had been committed on 9 July 2005, making him 17 years old at the time. He returned to the Youth Court for sentence on 3 November 2005 after a pre-sentence report on him had been prepared. On that occasion, he was committed to the Crown Court for sentence under s. 3C of the Powers of Criminal Courts (Sentencing) Act 2000 ("the 2000 Act") on the basis that it appeared to the court that the criteria for the imposition of sentences of detention for public protection or extended sentences of detention under the 2003 Act would be met. He was still only 17 at the time of his committal.
2. The appellant appeared at Bristol Crown Court on 18 November 2005. By then he was 18 years old. His 18th birthday had been two days earlier. The judge, Judge Simon Darwall Smith, thought that the appellant's age at the time of his offences meant that he had to be sentenced under the regime applicable to those aged under 18, namely ss. 226 and 228 of the 2003 Act, rather than under the regime applicable to those aged 18 or over, namely ss. 225 and 227 of the 2003 Act. He concluded that the appellant was a dangerous offender - or to use the language of ss. 226(2)(b) and 228(1)(b)(ii) - that there was a significant risk to members of the public of serious harm occasioned by the commission by the appellant of further specified offences. But he also concluded that the case was not one for which sentences of detention for public protection needed to be passed. Instead, he passed extended sentences of detention for each offence. The custodial term in each case was 2 years' detention, and the extension period - during which the appellant would remain on licence - was 5 years in each case. Those terms were to be served concurrently.
3. In addition, the appellant had to be sentenced for the breach of a supervision order for 12 months which had been imposed on 23 June 2005 for an offence of exposure. The breach of the supervision order had not been put to the appellant when he had appeared at the Youth Court. Since it was only put to him when he appeared at the Crown Court, the judge treated him as aged 18 or over for the purpose of sentencing him for the breach of that order. That is not apparent from the judge's sentencing remarks. It is what the record sheet prepared by the official shorthand writers reports the judge as having said in chambers. In the event, the judge revoked the suspension order, and passed a sentence of detention for 12 months. The appellant was ordered to serve that term consecutively to the custodial terms passed for the two offences of sexual assault. The effect was that the appellant was sentenced to 3 years' detention, of which he would serve half in detention and half in the community, and that he would remain on licence for a further 5 years. He now appeals against sentence, the Registrar having referred his appeal to the Full Court. At the commencement of the hearing, we granted the appellant leave to appeal.
The facts
4. Both the assaults took place on the same evening - 9 July 2005 - just over two weeks after the imposition of the supervision order. At about 10.30pm that evening, a 17 year old girl was sitting on a bench waiting to meet her boyfriend. The appellant rode past her on his motorcycle and stopped. They knew each other because according to the appellant they used to "hang out" in the same crowd. There was an awkward silence between them at first, but they began to talk to each other after a while. The appellant then sat down beside her. She told him that she was waiting for her boyfriend, but the appellant got close to her and put his hand on her leg. She pushed it away with her handbag. He then put his arm around her shoulder, and began to move his other hand, which was in his pocket, in such a way as made her think that he might be masturbating. These events constituted the first offence of sexual assault.
5. At this point, the girl stood up and walked off in the direction of a nearby public house towards a no-through road which had bollards preventing anything other than pedestrian access. The appellant then got back onto his motorcycle, and drove around the block in order to meet the girl at the other end of the no-through road. He got off his motorcycle, grabbed the girl's arm and pinned her against a wall. She struggled and tried to get away, but as she did so he moved his other hand down to the bottom of the full-length skirt she was wearing. As he began to slide his hand up her skirt, she hit him with her handbag. At that moment, some people came out of the public house, and that was when the incident came to an end. These events constituted the second offence of sexual assault.
6. The girl was later to say that she had been shocked when the appellant had put his hand on her leg while they were on the bench. And when the appellant had met her...
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