R v Michael Instone and Others
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 17 July 2012 |
| Neutral Citation | [2012] EWCA Crim 1792 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 2012/00844/A6, 2012/01585/A5, 2011/03420/D1 & 2011/05691/D1 |
| Date | 17 July 2012 |
[2012] EWCA Crim 1792
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
The Lord Chief Justice of England and Wales
(Lord Judge)
Mr Justice Mackay
and
Mr Justice Sweeney
No. 2012/00844/A6, 2012/01585/A5, 2011/03420/D1 & 2011/05691/D1
Mr T Gent appeared on behalf of the Appellant Michael Instone and the Applicant Ronald Aston
Mr J Caudle appeared on behalf of the Appellant Corrie Pinney The Applicant Jermaine Kraftner was not represented
Mr M Cotter appeared on behalf of the Crown
Tuesday 17 July 2012
The Background
Almost exactly one year ago, on 19 July 2011, this court presided over by the Vice-President (Hughes LJ) gave judgment in R v Smith and Others [2011] EWCA Crim 1772 in which a number of questions arising from Sexual Offences Prevention Orders ("SOPOs") were addressed. Among a number of other considerations the court explained that a SOPO should be made only if necessary to protect from serious harm through the commission of one or more offences listed in Schedule 3 to the Sexual Offences Act 2003. In the specific context of an offender sentenced to an indeterminate term of custody—imprisonment for public protection—a SOPO would not normally satisfy the necessity requirement because the offender's release from such a sentence would invariably be subject to whatever licence conditions were appropriate to ensure public protection at a time when the requirements of safety could be more accurately assessed, that is, at the time when the offender leaves custody. The judgment includes this passage:
"13. …. The usual rule ought to be that an indeterminate sentence needs no SOPO, at least unless there is some very unusual feature which means that such an order could add something useful and did not run the risk of undesirably tying the hands of the offender managers later."
In addressing Smith's case the court observed:
"45. …. Since the sentence is indefinite they [those considering the case at the time Smith came to be released] will remain responsible indefinitely for the terms and conditions under which he lives; there is nothing useful which a SOPO can add. For those reasons we allow the appeal and quash the SOPO."
As a result of Smith it will be rare for a SOPO to be made simultaneously with an indeterminate custodial sentence. Rare, of course, does not mean never. In general, however, SOPOs should not be ordered when a defendant is sentenced to imprisonment for public protection.
We are concerned in the current cases with SOPOs which were imposed some years ago. In July 2006 a SOPO was imposed on the applicant Aston. The minimum term attached to the order of imprisonment for public protection in his case was four years. In July 2008 a SOPO was imposed on the appellant Instone. The minimum term attached to the order of imprisonment for public protection was twelve months. The SOPOs in these two cases were imposed long before the decision in Smith. As far as we can ascertain, no appeal was made against either of them.
The cases of Pinney and Kraftner are different because the SOPO was imposed on each of them in September 2011. The minimum term attached to the order of imprisonment for public protection in each case was nine years. The significance of the date when the order was made in their cases is that they were made after the decision in Smith had been promulgated.
Aston, therefore, is five years (or longer) out of time. His application for leave to appeal against the SOPO has been referred to the full court by the Registrar. He would require an extension of time to advances his application.
Instone appeals against the SOPO by leave of the single judge who granted an extension of time of three and a half years.
Kraftner renews his application for leave to appeal against conviction after refusal by the single judge. He takes no point on the SOPO.
Pinney seeks to renew his application for leave to appeal against the substance of the sentence imposed on him following refusal by the single judge. He appeals against the SOPO by leave of the single judge.
R v Ronald Thomas Aston
Aston is now 46 years old. He has a number of previous convictions, including convictions for offences of indecent assault on females and of cruelty to persons under 16 years of age. On 26 July 2006 in the Crown Court at Norwich before His Honour Judge Barham and a jury he was convicted of a number of offences and on 7 September 2006 was sentenced for them. On count 3 (attempted rape) the sentence was one of imprisonment for public protection with a minimum term of four years (less the time spent in custody on remand), and on counts 1 and 2 (sexual assault of a child under 13 years) no separate penalty was imposed. In addition, a SOPO was made for a period of twenty years. The applicant was required to comply indefinitely with the provisions of Part 2 of the Sexual Offences Act 2003 (notification to the police).
We can deal with the facts briefly. The applicant was in a relationship with a woman with five children. The complainant was her 12 year old daughter "R". In August 2005, when two of the other children were staying with their biological father in North Wales, they told him that the complainant had been raped by the applicant. This led in due course to police investigations. An ABE interview took place in which the complainant stated that the first incident took place between Christmas 2004 and April 2005 at her then home in Great Yarmouth. The complainant was in the lounge. The applicant dragged her on to a sofa, undid the zip on her jeans, and tried to touch her "privates" under her knickers. Her brother was in the room watching television at the time. He turned round and the applicant stopped what he was doing. On this occasion there was no penetration.
The second incident took place shortly afterwards at a different home address. The applicant sat next to the complainant, undid her jeans, put his hand into her knickers and touched her in the area of her genitalia. No penetration took place. This time he was disturbed when the complainant's mother walked into the room.
The third incident occurred on 8 May 2005, again at their home address. This time the complainant was in her bedroom which was accessed by way of a ladder. She was lying on her bed. The applicant entered the room, put a pillow over her face, pulled down her pyjama bottoms and tried to rape her. He heard the ladder to the bedroom creaking and so he stopped. He covered the complainant with a blanket. Another brother entered the room and so the applicant did not persist. There was no penetration.
In passing sentence the judge noted the applicant's previous convictions. In a pre-sentence report the applicant claimed, and continued to claim, that he was the victim of a series of false allegations. The judge took the view that this was a case in which the applicant was in a position of trust and responsibility to the complainant. There was an escalation in the seriousness of the sexual assaults carried out on her. Having reflected on all the matters required of him, the judge imposed the sentence which we have indicated and took the view that it was necessary for a SOPO to be made for the purposes of protecting the public, or particular members of the public, from serious harm for a period of twenty years.
R v Michael Instone
The appellant Instone is now aged 71. He was a man of good character. On 29 November 2007 in the Crown Court at Reading before Her Honour Judge Mowat he pleaded guilty to six counts in an indictment alleging sexual assault. On 30 May 2008 before His Honour Judge Risius he pleaded guilty to three further counts in the indictment. On 11 July 2008 in the Crown Court at Reading before Judge Elly he was sentenced on counts 1, 4, 5 and 6 (sexual assault of a child under 13), on counts 7, 8 and 9 (sexual activity with a child), on count 10 (engaging in sexual activity in the presence of a child), and on count 12 (causing a child under 13 to engage in sexual activity) to imprisonment for public protection. The minimum term specified was twelve months. A SOPO was made which was to last until further order. The appellant was required to comply indefinitely with the provisions of Part 2 of the 2003 Act (notification to the police).
The appellant was the step-grandfather of two children who lived in Swindon. The grandparents lived in Reading. The children saw them often. In April 2007 the first little girl, who was then aged 6, told her mother that the appellant had touched her in the area of the vagina. She repeated the allegation. When her sister was collected from school she was asked if anything had happened to her. She said that she, too, had been touched in the vaginal area. She was marginally older, between 7 and 8 when the offences were committed.
The police were contacted. The complainants were video-interviewed. They described a number of occasions when they were touched indecently and inappropriately. Indeed, there had been some occasions of penetration of the second little girl which had hurt her because he had "done it really hard". There were two separate incidents which took place in the garden shed. The appellant exposed his penis and masturbated in the presence of one of the children on one occasion, and on another caused her to touch his exposed penis. The offences all occurred when their grandmother was out of the house.
The judge took the view that this was a breach of trust. The appellant was not...
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