R v Pepper; R v Barber; R v Lamont; R v Gya; R v Murray
| Jurisdiction | England & Wales |
| Judge | THE VICE PRESIDENT |
| Judgment Date | 28 April 2005 |
| Neutral Citation | [2005] EWCA Crim 1181 |
| Docket Number | No: 200406148/A3 200404752/A6 200406137/A5 200406909/A2 |
| Date | 28 April 2005 |
| Court | Court of Appeal (Criminal Division) |
[2005] EWCA Crim 1181
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Guideline Court
The Vice President
(lord Justice Rose)
Mr Justice Gibbs
Mr Justice Stanley Burnton
No: 200406148/A3
200404816/A0
200404752/A6
200406137/A5
200406909/A2
MR K MONTEITH appeared on behalf of the APPELLANT PEPPER
MR I STRONGMAN appeared on behalf of the APPELLANT BARBER
MR J HILL appeared on behalf of the APPEAL LAMONT
MR C ABBOTT appeared on behalf of the APPLICANT GYA
MR P CROSS appeared on behalf of the APPLICANT MURRAY
MR D PERRY appeared on behalf of the CROWN
The legislative labyrinth into which it has been necessary to enter in relation to these appeals changes on an almost monthly basis.
We begin by expressing our gratitude to Mr Perry, whose comprehensive written and oral submissions have, characteristically, not only greatly helped the Court but have also alerted each of the appellants to points of questionable legality in sentencing and/or to relevant authorities which, in most cases, do not appear in the grounds of appeal, and which, in most cases, regrettably, were not brought to the attention of the sentencing judge by counsel in the court below.
In each of these five cases the Crown Court judge purported to pass an extended sentence under section 85 of the Powers of Criminal Courts (Sentencing) Act 2000. In each case, it was inappropriate to do so in the way chosen. We have heard the cases together because they afford illustrations of the traps into which it is possible for sentencers, however experienced, to fall, particularly if unassisted by counsel, when seeking to impose such a sentence.
These cases do not, however, provide a basis for the Court to give further general guidance in addition to that provided in R v Nelson [2002] 1 Cr App R(S) 565, [2001] EWCA Crim 2264, which should continue to be a sentencer's first port of call when grappling with legislation described by the Sentencing Advisory Panel, in the Foreword to their Advice of October 2001 which led to Nelson, as "extremely complex". The Panel were only referring to the legislation in relation to extended sentences. It is to be noted that, in relation to offences committed on or after 4th April 2005, the provisions of section 85 are replaced by sections 224 to 236 of the Criminal Justice Act 2003 which provide a new regime of public protection sentences for specified violent or sexual offences committed by dangerous offenders of any age.
We stress that sentencers, when sentencing for several offences, should always take care to identify the offence to which the extended sentence is intended to relate. This will assist in focussing on whether such a sentence complies with the statutorily prescribed criteria, bearing in mind, in particular, whether the offence was committed before or after 30th September 1998, the need not to exceed the maximum sentence for the offence and the different restrictions applicable to sexual and violent offences, namely, for a sexual offence the extension period must not exceed 10 years and, for a violent offence, the custodial term must be at least 4 years and the extension period must not exceed 5 years. It should also be borne in mind that, by virtue of section 85(1)(b) the purpose of an extended sentence is to prevent the commission of further offences and to secure the offender's rehabilitation and not, for example, to protect the public from serious harm, which is the role of a longer than commensurate sentence (see section 80(2)(b) of the Powers of Criminal Courts (Sentencing) Act 2000). A judge who has it in mind to impose an extended sentence, should always, before passing sentence, invite submissions from counsel on this aspect (see R v Evans [2004] EWCA Crim 632 paragraph 5): this should help to avoid error.
We remind counsel of their duty in two respects. First, prosecuting counsel should always be ready to draw the court's attention to the relevant statutory provisions and authorities (see Attorney-General's Reference No 52 of 2003 (R v Webb) [2003] EWCA Crim 3731, paragraphs 5 and 6 and the Bar Council's Written Standards for the Conduct of Professional Work General Standards (paragraph 11.8), set out in the supplement to the 2005 Edition of Archbold, paragraph C —33). Secondly, if an error is made by the judge in sentencing, particularly in relation to his powers, counsel, whether prosecuting or defending, should be alive to the possibility of rectifying it under the slip rule provisions of section 155 of the Powers of Criminal Courts (Sentencing) Act 2000, which are set out in Archbold 2005 edition at paragraph 5 —94O (see the Bar Code of Conduct, 7th Edition, as amended (paragraphs 708)(c) and (d), set out in the supplement to the same Edition of Archbold, paragraph C —17). Attention is also drawn to the likelihood that Attorney-General's Guidelines on the acceptance of pleas and the Prosecution's Role in the sentencing exercise will be issued as soon as possible and, hopefully, within the next 6 months.
We turn to the individual appeals. Pepper, on 6th September 2004, at Middlesex Guildhall Crown Court, pleaded guilty before His Honour Judge Smith to distribution of an indecent photograph of a child, contrary to section 1(1)(b) of the Protection of Children Act 1978, (count 1), to attempting to incite another to distribute an indecent photograph of a child, contrary to section 1(1) of the Criminal Attempts Act 1981, (count 2), to making an indecent photograph of a child, contrary to section 1(1)(a) of the 1978 Act, (count 3), and to attempting to incite another to procure a girl under the age of 21 for the purpose of unlawful sexual intercourse, contrary to section 1(1) of the 1981 Act (count 4).
On 1st October he was sentenced on count 4 to 1 year's imprisonment; on count 2, to 1 years' imprisonment consecutively; on count 1, to 3 months concurrently; and on count 3, to 3 months concurrently. An extended licence period of 2 years, under section 85, was also imposed. The total sentence was therefore said to be an extended one of 4 years, consisting of a custodial term of 2, and an extended licence period of 2 years. The judge also made a 10 year Prevention Order under the Sexual Offences Act 2003, preventing the appellant from going to a chatroom or chatline or any other device permitting electronic contact or communication. The appellant was also purportedly disqualified from working with children indefinitely.
It was unclear from the sentencing remarks to which count the extended period of licence was intended to apply. If it was intended to apply to count 4, which the judge described as the most serious, or to count 2, the sentence would be unlawful as the offence of attempting to incite is not one of the offences listed as a sexual offence in section 161(2)(a), (h), or otherwise, in the Powers of Criminal Courts (Sentencing) Act 2000 (see paragraphs 8 and 9 of the judgment of this Court, differently constituted, in R v Parnell [2004] EWCA Crim 2523, which, if we may say so, was clearly correct). This was also a case in which an extended licence purported to be imposed where consecutive sentences had been imposed. That, in practice, is not generally desirable, as was pointed out in paragraph 23 of the Court's judgment in Nelson.
Notification, under Part 2 of the Sexual Offences Act 2003, was also required for a period of 10 years. A Sexual Offences Prevention Order, under sections 104 and 106 of the Sexual Offences Act 2003 was made for 10 years. An order was made for the forfeiture of two hard drives and a lap top. Pepper appeals against sentence by leave of the Single Judge.
The facts were these. He believed that he was corresponding via the Internet with people interested in child pornography and sex tourism. In fact those with whom he was corresponding were a United States Law Enforcement Officer and an undercover English police officer.
On 27th June 2001 the appellant made contact with the American officer's profile on the Internet, claiming that he was a single bisexual female, who wanted to take nude pictures and may be more of 8 year olds and upwards. The officer suggested that he had friends in the United Kingdom and links on the website to a tour company operating sex tourism with children. Email communications continued over the next few weeks, in the course of which the appellant said he would like to take part in one of the tours.
On 25th July, he e-mailed the officer wanting to know exactly what was available and, in mid-August, he asked the officer to get his United Kingdom contacts to contact him, the appellant. There was then a lack of communication for some time until, at the beginning of June 2002, the appellant reasserted his interest. The Americans, at that stage, handed over details to the undercover English officer, with whom the appellant began to correspond. He requested "11 to 14ish females only, who participate fully, can achieve penetration, but at least can offer oral". That gave rise to count 4.
In January 2003 he asked for a picture of an 11 year old and sent three indecent photographs (at level 1) of young teenage girls to the undercover officer. That was count 1. The following week he requested a video of someone having a sexual encounter with an 11/12 to 14 year old, with penetration and possible oral sex. That gave rise to count 2. There were further emails in which the appellant questioned costs and resources and enquired where the girl would come from and...
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