No. 2006/05696/A4, 2006/03508/A5
    2006/02808/A9, 2006/04594/A9
Neutral Citation Number: [2006] EWCA Crim 3233
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Tuesday  5  December  2006

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Phillips of Worth Matravers)
MRS  JUSTICE  RAFFERTY
and
MR  JUSTICE  WALKER

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R E G I N A

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ALAN  JOHN  CAIN

ROBERT  BENTON

IAN  JOHN  LIVERSIDGE

PHILLIP  HODSON
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A P P E A R A N C E S:

2006/05696/A4

MR J MACADAM appeared on behalf of THE APPLICANT ALAN CAIN
MR R WRIGHT appeared on behalf of THE CROWN

2006/ 03508/A5

MR D SECONDE appeared on behalf of THE APPLICANT ROBERT BENTON
MR J EDWARDS appeared on behalf of THE CROWN

2006/02808/A9

MR J PITTER appeared on behalf of THE APPLICANT IAN LIVERSIDGE
MR R WRIGHT appeared on behalf of THE CROWN

2006/04594/A9

MR J LAMB appeared on behalf of THE APPLICANT PHILIP HODSON
MR M FLETCHER appeared on behalf of THE CROWN

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J U D G M E N T
THE LORD CHIEF JUSTICE:
Introduction:
1.  These four appeals have been heard together because they have one thing in common.  In each case the judge imposed a sentence that was unlawful.  In some of these cases that fact formed no part of the grounds of appeal drafted by counsel in support of the application for leave to appeal.  It was identified by the diligence of the staff of this court who were preparing the papers to be placed before the single judge.  They are to be congratulated but, by the same token, this situation reflects adversely on the advocates whose duty it was to represent the interests of their clients when the appropriate sentences were being considered by the judge.  It is of course the duty of a judge to impose a lawful sentence, but sentencing has become a complex matter and a judge will often not see the papers very long before the hearing and does not have the time for preparation that advocates should enjoy.  In these circumstances a judge relies on the advocates to assist him with sentencing.  It is unacceptable for advocates not to ascertain and be prepared to assist the judge with the legal restrictions on the sentence that he can impose on their clients.

2.  This duty is not restricted to defence advocates.  We emphasise the fact that advocates for the prosecution also owe a duty to assist the judge at the stage of sentencing.  It is not satisfactory for a prosecuting advocate, having secured a conviction, to sit back and leave sentencing to the defence.  Nor can an advocate, when appearing for the prosecution for the purpose of sentence on a plea of guilty, limit the assistance that he provides to the court to the outlining of the facts and details of the defendant's previous convictions.

3.  The advocate for the prosecution should always be ready to assist the court by drawing attention to any statutory provisions that govern the court's sentencing powers.  It is the duty of the prosecuting advocate to ensure that the judge does not, through inadvertence, impose a sentence that is outside his powers.  The advocate for the prosecution should also be in a position to offer to draw the judge's attention to any relevant sentencing guidelines or guideline decisions of this court.

4.  There is nothing novel about these propositions.  They were clearly stated by Lord Woolf CJ in Attorney General's Reference No 52 of 2003 [2003] EWCA Crim 3731 at paragraph 8, and by the Vice-President, Rose LJ, in R v Pepper and Others [2005] EWCA Crim 1181, at paragraph 6.  What causes us particular concern is that, as the appeals before us demonstrate, there appears to be a widespread disregard of these judicial admonitions.  It may be that the only way of achieving an acceptable standard of practice is to require the prosecuting advocate to prepare a schedule or memorandum that identifies the matters relevant to sentence to which we have referred above.  We are aware that such a requirement has been imposed by Practice Note dated 21 May 2003 in New Zealand.  We invite the Criminal Procedure Rules Committee to consider whether it would be desirable to impose some such requirement in this jurisdiction.

5.  All that we have said is equally applicable to those appearing for prosecution and defence before the magistrates.

6.  We now turn to consider the appeals before us.

R  v  ALAN  JOHN  CAIN
7.  On 27 September 2006, at the Crown Court at Leeds before His Honour Judge Dobkin and a jury, the applicant Alan John Cain was convicted of a number of serious offences.  The judge proceeded at once to sentence him.  The offences of which he was convicted and the sentences that were imposed were As follows:

	1.	on count 1, indecency with a child, SS, contrary to section 1(1) of the Indecency with Children Act 1960, three years' imprisonment;

	2.	on count 2, indecency with a child, LM, contrary to the same section, four years' imprisonment;

	3.	on counts 9, 10 and 11, indecency with a child, PM, contrary to the same section, four years' imprisonment on each count; 

	4.	on counts 3 and 4, indecent assault on a female, LM, contrary to section 14(1) of the Sexual Offences Act 1956, four years' imprisonment on each count;

	5.	on count 5, rape of LM, contrary to section 1(1) of the Sexual Offences Act 1956, six years' imprisonment;

	6.	on counts 6, 7 and 12, indecent assault of a male, PM, contrary to section 15(1) of the Sexual Offences Act 1956, four years' imprisonment on each count; and

	7.	on count 13, buggery of PM, contrary to section 12(1) of the Sexual Offences Act 1956, seven years' imprisonment.

The sentences which governed the overall period of imprisonment were those in respect of counts 5 and 13, which were ordered to be served consecutively.  All the other sentences were ordered to be served concurrently.

8.  The applicant applies for leave to appeal against these sentences.  There is some doubt as to whether the notice of appeal was given in time.  Lest it was not, leave to appeal out of time is sought.  The Registrar has referred these applications to this court.  We grant leave to appeal and leave to appeal out of time should that be necessary.

9.  We shall deal straightaway with the sentences that were unlawful:

	  i)	Counts 1, 2, 9 and 11: At the time that these offences were committed they were subject to a maximum sentence of two years.  This was increased to ten years by section 52 of the Crime (Sentences) Act 1997, which came into force on 1 October 1997, but this increase did not apply to offences committed before that date.  It follows that the sentences of four years were unlawful.  They must be quashed.  We shall substitute a sentence of eighteen months in the case of each.

	 ii)	Count 10: This offence was one which related to a child under 14.  Consequent upon advice provided by the Registrar, Mr MacAdam for the appellant sought leave to appeal against conviction on this count, which we granted.  The age of 14 was raised to 16 with effect from 11 January 2001 by section 39 of the Criminal Justice and Courts Service Act 2000.  Count 10 charged the appellant with indecency with PM between 26 August 1987 and 25 August 1988.  26 August 1987 was the victim's 15th birthday.  It follows that the appellant was not guilty of this count and should have been acquitted.  Whoever drafted the indictment probably overlooked the change in the law to which we have referred.  The appropriate course in these circumstances is for this court to quash the conviction, which we do.

	iii)	Count 3: The maximum sentence for this count during the period specified in the count was two years.  It follows that the sentence of four years passed was unlawful.  We quash it and substitute a sentence of eighteen months.

10.  All the sentences that we have substituted are concurrent sentences, as were those that they have replaced.  This leaves untouched the overall sentence of thirteen years.  Mr MacAdam submits that this is too long having regard to the scale to be derived from decided cases imposing sentences for similar offending.  He has invited us to make an order which will reduce the overall sentence to ten years.

The Facts
11.  SS and LM were sisters.  PM was their brother.  The girls were born on 4 November 1969 and 15 July 1971, and their brother on 26 August 1973.  The appellant commenced a relationship with their grandmother in around 1980 and the two younger children would regularly visit her at her flat and spend the night there, although sometimes not at the same time.  For some of the time they actually lived with their grandmother rather than their mother.  The sexual abuse lasted from about 1980 until 1988.

12.  When she was aged 12 or 13, SS, the elder sister, was spending the night on the sofa in the flat when she became aware of the appellant standing over her.  She saw that he was masturbating and he encouraged her to touch his penis.  She rolled over, turning her back on him, and told him to go away.  Those facts are the basis for count 1.

13.  LM was aged 7 or 8 when the appellant peered at her through the keyhole as she was using the lavatory.  When she was 9 or 10 he started to masturbate in front of her and encourage her to touch and kiss his penis.  He would give her cider to drink beforehand.  The abuse progressed to him inserting his fingers into her vagina after she had gone to bed.  The abuse continued on a regular basis and ultimately led the appellant to rape her on one occasion when she was about 15.  Shortly afterwards, she moved out of her grandmother's flat.  Those are the facts that support counts 2-5.

14.  PM was about 9 when the appellant started sexually to abuse him.  The abuse started when the boy was in bed and the appellant would fondle the child's penis.  The abuse progressed to the appellant masturbating himself and ejaculating over the boy's legs.  On occasions he made the boy dress in women's clothing and would again ejaculate over his legs.  He would give the boy extra pocket money and buy him presents.  The abuse escalated to the appellant forcing the boy to perform oral sex on him until he ejaculated in the boy's mouth.  The abuse continued on a regular basis.  When the boy was 13, the appellant started to bugger him.  He would also insert a vibrator in the boy's anus on occasions.  The abuse stopped when the boy was 14 after the relationship between the appellant and the grandmother came to an end.  Those are the facts which support counts 6, 7, 9 and 13.

15.  The offences came to light in the autumn of 2004.  In January 2005 the appellant was arrested.  When interviewed, he denied all the allegations and said that the victims had made it all up.

The Judge's Reasons
16.  The judge's sentencing remarks were short.  He left the nature of the offending to speak for itself.  He emphasised the effect that the appellant's conduct had had on his young victims.  The judge was well placed to assess this for not only did he have before him witness impact statements from each of the victims, but he had heard the victims give evidence.  He was clearly deeply moved by what he had heard.  This is what he said:

		"I cannot summon up the words that I feel that I want to say to you to express my disgust at what you did in the 1980s towards these children who were in your care effectively.  You lived with their grandmother.  They came to live with you.  They were young; they were impressionable; they were developing, and you, as I have seen in this court, damaged them irreparably.

		Twenty years later -- twenty years later -- they come to this court and you saw last Wednesday what they had become and I saw last Wednesday what they had become.  They have lived this for that time, they have lived it in this court.  They are shattered by it and it is all down to you.

		I am not going to waste words any more on what we have all seen and what you have done.  The jury have found you guilty on all of these counts and I propose to sentence you today in respect of these offences.

		You are in your sixties.  You have not previously been convicted of offences.  Of course that stands you in good stead to some extent, but you have fought this case and they gave their evidence and they have to relive in 2006 what they underwent in the 1980s, and my goodness me what you did to them, put them through it, like I do not know what.

		Obviously only long sentences of imprisonment will suffice to reflect what you did.  What I propose to do, because of my need to maintain a totality which is within bounds, is to reduce sentences in respect of certain offences and the other sentences concurrent, but there will be long prison sentences in total."

17.  In support of his submissions that the total of thirteen years should be reduced, Mr MacAdam submitted that there was no risk of re-offending so far as the appellant is concerned.  There is no personality disorder.  The rape offence was comparatively short and it was committed without the use of force.  He submits that thirteen years is too long; such a sentence should be reserved for more serious offences, more complaints and more victims.  In his advice on appeal Mr MacAdam submits that this sentence is out of line with other similar cases.  We have considered the reported cases in relation to these types of offences and have not found the sentence imposed by this judge to be out of line.  These were hideous offences, in breach of trust, which plainly devastated the lives of the victims who were seen by the judge.  In our judgment a sentence totalling thirteen years was entirely appropriate.  We dismiss the appeal against that total.

R  v  ROBERT  BENTON
18.  On 26 May 2006, at the Birmingham Magistrates' Court, the appellant Robert Benton pleaded guilty to a number of offences and was committed to the Crown Court for sentence.  On 20 June 2006, at the Crown Court at Birmingham, he was sentenced by Mr Recorder Hill as follows: 

	1.  on offence 1 (theft), nine months' imprisonment; 

	2.	on offence 2 (making off without payment), six months' imprisonment consecutive; 

	3.	on offence 3 (using a vehicle without insurance), no separate penalty was imposed; 

	4.	on offence 4 (using a vehicle with no test certificate), no separate penalty was imposed; 

	5.	on offence 5 (driving other than in accordance with a licence), no separate penalty was imposed; 

	6.	on offence 6 (criminal damage), 18 months' imprisonment consecutive; and 

	7.	on offence 7 (having an offensive weapon), six months' imprisonment concurrent.  

He was also committed for breach of a twelve month conditional discharge in relation to an offence of theft that had been imposed by the Crown Court.  In relation to that the Recorder imposed a sentence of nine months' imprisonment concurrent.  The total sentence was therefore 33 months' imprisonment, with credit to be given for 56 days spent on remand.  The appellant was also disqualified from driving for eighteen months.  All of the offences were committed to the Crown Court pursuant to section 6 of the Criminal Courts (Sentencing) Act 2000.  This was because it fell to the Crown Court to deal with the appellant for breach of the conditional discharge.  The Magistrates' Court committed the appellant to the Crown Court for that purpose pursuant to section 13(5) of the 2005 Act and committed him under section 6 so that the other offences could be dealt with at the same time.  In these circumstances the sentencing powers of the Crown Court in respect of those offences were, by virtue of section 7 of the Act, no greater than the powers that the Magistrates' Court could have enjoyed.

19.  On 18 October 2006, the single judge granted leave to appeal against the sentence of eighteen months' imprisonment for criminal damage on the basis that this sentence was impermissible in that the maximum sentence was three months.  He refused leave to appeal against all the other sentences having regard to the appellant's "exceptionally poor record".  We have granted leave to appeal in relation to the other sentences.  In granting leave to appeal, the single judge recognised the validity of an amended ground of appeal filed on behalf of the appellant.  He was correct to conclude that the sentence imposed in respect of offence 6 was unlawful.  The value of the property damaged was less then £5,000.  In these circumstances, by reason of section 1(1) of the Criminal Damage Act 1971, the offence was a summary offence with a maximum penalty of three months' imprisonment.  Accordingly, that sentence must be quashed.  We shall substitute for it a sentence of three months' imprisonment.  This was not the only unlawful sentence.  The sentence of nine months' imprisonment in respect of the first offence was unlawful, for the maximum sentence that the Magistrates' Court could have imposed was six months.  Accordingly, that sentence also must be quashed.  We shall substitute a sentence of six months' imprisonment.

20.  All of the offences were committed to the Crown Court pursuant to section 6 of the 2000 Act.  For that reason the court was constrained by section 7 and section 133(2) to impose no greater an aggregate sentence than the Magistrates' Court could have imposed, which on the facts of this case was a sentence of twelve months.  We consider that it is appropriate to substitute such an aggregate sentence for that imposed by the Recorder.  We shall achieve this by quashing the order that the sentence in respect of offence 6, now revised at three months, be consecutive, and order that it be concurrent.  This will result in the aggregate of the sentences for the offences committed by the magistrates being twelve months.

21.  It would have been open to the Recorder to make the sentence of nine months in relation to the breach of the conditional discharge consecutive to the twelve months in respect of the other offences rather than concurrent.  Having regard to his overall view of the case it is likely that he would have done so.  Mr Seconde appearing for the appellant recognised that this was so and that it would have been very hard to resist the total sentence of 21 months that this would have produced.  Nonetheless, he has urged on us that the appropriate sentence that we should impose in all the circumstances is one of eighteen months.  We accept that submission, having regard to the unlawfulness of the sentences that have been imposed on the appellant.  We will achieve that total by ordering that six months of the nine months imposed by the Recorder in relation to the breach of the conditional discharge shall run consecutively rather than concurrently, producing a total of eighteen months.

R  v  IAN  JOHN  LIVERSIDGE
22.  On 12 May 2006, at the Crown Court at Leeds, the appellant Ian John Liversidge, to whom we have granted leave to appeal, was sentenced by His Honour Judge McCallum to a total sentence of 42 months' imprisonment following his conviction on pleas of guilty at Leeds Magistrates' Court for eight offences.  The offences and the sentences were as follows:

	1.	For burglary, between 10 and 17 January 2006, six months' imprisonment;

	2.	for taking a vehicle without consent on 17 January 2006, six months' imprisonment concurrent;

	3.	for driving while disqualified between 17 and 23 January 2006, four months' imprisonment consecutive;

	4.	for theft on 23 January 2006, eight months' imprisonment consecutive;

	5.	for taking a vehicle without consent on 23 January 2006, eight months' imprisonment concurrent;

	6.	for driving while disqualified between 21 and 23 January 2006, four months' imprisonment consecutive;

	7.	for theft on 29 January 2006, two months' imprisonment consecutive; and

	8.	for aggravated vehicle taking on 9 February 2006, 18 months' imprisonment consecutive.

Thirty-one other offences relating to thefts of or from vehicles were taken into consideration.  The appellant was disqualified from driving for four years and required to take an extended driving test.  His application for leave to appeal against sentence was refused by the single judge, but since then the fact that some of the sentences imposed were unlawful has been noticed.  For that reason the appellant renewed his application for leave to appeal against sentence out of time and we granted it.

23.  The memoranda of conviction state that in the case of all the offences the appellant was committed under section 3 of the 2000 Act.  This cannot be right as the power to commit conferred by section 3 is restricted to offences triable either way.  In such cases the Crown Court has the same powers of sentencing as it would have had on a conviction of that court.  Section 6 enables the Crown Court to sentence the defendant in respect of summary offences in the circumstances specified in that section.  But the Crown Court is restricted by section 7 to impose such sentences as would have been open to the Magistrates' Court.  The offences of taking a vehicle without consent, contrary to section 12(1) of the Theft Act 1968, and of driving while disqualified are both summary offences.  They must have been committed to the Crown Court pursuant to section 6.  It follows that the maximum that the judge was empowered to impose for the fifth offence was the six months that the magistrates would have been entitled to impose.  For that reason the sentence of eight months must be quashed and substituted with a sentence of six months.  As the sentence was imposed concurrently with the eight month sentence for theft, this does not affect the overall result.  The fact that the sentences for offence number 3 and offence number 6 have been made consecutive is unlawful for the aggregate of the sentences for all the summary offences cannot exceed six months, for that is the most that the magistrates could have imposed by virtue of section 133 of the Magistrates' Courts Act 1980.  We propose to put this right by quashing the orders that the sentences in respect of offences 3 and 6 be consecutive, and to order that they be concurrent.  This reduces the overall sentence to one of 34 months' imprisonment.  It is accepted by Mr Wright for the Crown that it is appropriate that we should reduce the overall sentence to that total in this way.

24.  There is one further matter with which we must deal.  The appellant was already subject to a requirement to take an extended test under section 36(7)(b) of the Road Traffic Offenders Act 1988.  In these circumstances it was not lawful to impose a duplicate requirement to that end and accordingly we quash that requirement.

R  v  PHILLIP  HODSON
25.  On 14 July 2006, in the Crawley Magistrates' Court, the appellant Phillip Hodson pleaded guilty to various offences and was committed to the Crown Court for sentence under the Powers of Criminal Courts (Sentencing) Act 2000.  On 23 August 2006, in the Crown Court at Lewes, before His Honour Judge Coltart, the appellant was sentenced for those offences as follows: 

	1.	on offence 1, taking a motor vehicle without consent, four months' detention in a young offender institute consecutive; 

	2.	on offence 2, aggravated vehicle taking, eighteen months' detention in a young offender institution; 

	3.	on offence 3, using a vehicle without insurance, no separate penalty; 

	4.	on offence 4, using a vehicle without insurance, no separate penalty; 

	5.	on offence 5, driving while disqualified, four months' detention in a young offender institution consecutive; and 

	6.	on offence 6, driving while disqualified, four months' detention in a young offender institution consecutive. 
These sentences totalled two-and-a-half years' detention, and the judge ordered that they should be served consecutively to the sentence that the appellant was currently serving.  In addition, the judge disqualified the appellant from driving for five years and made him the subject of an Anti-Social Behaviour Order for a period of five years with the single condition that he did not enter the County of Sussex.

26.  Elements of these sentences were unlawful for reasons that we have already explored in the earlier cases.  For that reason we gave leave to appeal against sentence at the beginning of this hearing.  The offence of taking a motor vehicle without consent and the offence of driving while disqualified are summary offences.  Accordingly the maximum sentence that could properly have been imposed by the judge in relation to each offence was a sentence of six months' detention because that was the limit of the jurisdiction of the magistrates.  Equally, it was not lawful to order such sentences to be imposed consecutively if the result was going to exceed a total sentence of six months.  It was here that the judge fell into error because the sentence in relation to offences 1, 5 and 6 were ordered to be served consecutively, producing a total of twelve months rather than the maximum of six.  Mr Lamb asks us to put the record straight by ordering that each of these sentences should be served concurrently rather than consecutively, and Mr Fletcher for the prosecution has acceded to that suggestion as being a proper course to take.  Accordingly, we quash the order that each of those sentences be served consecutively and order that each be served concurrently.

27.  The judge's second error was to order that the total of the sentences be served consecutively to that which the appellant was currently serving.  That order contravened section 265 of the Criminal Justice Act 2003.  Under earlier legislation it would have been lawful, but the law had been changed.  We will quash the order that the sentences be served consecutively to the sentence that the appellant was currently serving.

28.  The next error was a failure to have regard to the requirement of section 240 of the Criminal Justice Act 2003 that credit be given for any time spent on remand in custody in relation to the offences for which the sentences were imposed.  This error occurred perhaps in part because of a misunderstanding on the part of Mr Lamb for the appellant as to whether the appellant's licence had been revoked.  The reality is that the appellant was entitled to 41 days credit for time spent on remand and we order that he be given that credit.

29.  Finally, we turn to an appeal by Mr Lamb against the Anti-Social Behaviour Order.  The position is that all of the appellant's family live in Sussex, except for his step-father who lives in Surrey.  There is no suggestion that this appellant has been behaving in an anti-social manner in Sussex, other than by committing these criminal offences which are, and will remain, breaches of the law.  We can sympathise with the suggestion that if an offender has a predisposition to a particular course of offending such as vehicle taking and driving while disqualified, it might seem fairer if the area in which he commits them is not restricted to a single county.  We are told that all the offences had been committed in Sussex but that is not a valid reason for imposing an Anti-Social Behaviour Order of this nature.  It was wrong in principle and we quash it.