Neutral Citation Number: [2008] EWCA Crim 1525
Case No: 2008/0489/A7
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 17/07/2008

Before :

LORD JUSTICE MAURICE KAY
MR JUSTICE SILBER
and
RECORDER OF NOTTINGHAM (SITTING AS A JUDGE IN THE COURT OF APPEAL CRIMINAL DIVISION)
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	REGINA		
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	LUNKOV		

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Mr Philip Rule for the Appellant
Mr Gerard Pounder for the Crown

Hearing date : 4 July 2008
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Judgment

Recorder of Nottingham :
1.	This appellant is a foreign national who came from Russia to the United Kingdom two years before he was sentenced at Wood Green Crown Court by HH Judge Guggenhein, QC on the 21st December 2007.
2.	He had pleaded guilty to two offences of dwelling house burglary, an offence of aggravated burglary and an offence of sexual assault.  The judge imposed a sentence of  indeterminate detention for public protection in respect of the sexual assault with a minimum term of 5 years.  It is unclear whether she imposed a similar sentence in respect of the aggravated burglary.  She probably intended so to do because both the aggravated burglary and the sexual assault arose out of the same factual circumstances.  No separate penalty was imposed in respect of the two burglaries.
3.	The appellant appeals with the leave of the single judge.
4.	Counsel, Mr. Rule, who settled grounds of appeal and appeared for the appellant, served, at a late stage, a second brief skeleton argument in which he sought to raise an entirely new issue.  In short, he submitted that the imposition of an indeterminate sentence on this appellant was “ the consequence of a sentencing procedure and statutory provision which is incompatible with the minimum rights of the appellant as guaranteed and given further effect by the Human Rights Act 1998…” He cited the decision in Hamadi [2008] EWCA Crim 1157 where this point was certified as being of general public importance although leave to appeal to the House of Lords was refused because the point had not been argued before the Court of Appeal.  Counsel had not, however, prepared any amended grounds of appeal and sought to commence his submissions on this point without making any application to amend his grounds.  Neither had the Crown, represented by Mr Pounder of counsel, been given adequate notice that such a point was to be taken.  Further, notice had not been given to the Lord Chancellor and Secretary of State who would plainly have an interest in such an argument and would, we feel sure, wish to be represented.    Chapter 5 of the Criminal Justice Act 2003 has been in force now for over three years.  Numerous defendants have been sentenced under the dangerousness provisions.  This Court has heard many appeals and issued guidance to sentencing judges in this area on several occasions.  As far as we are aware, such a submission has never met with success in this court.  If it is to be argued, it must be done properly with appropriate detailed skeleton arguments and with sufficient notice to relevant parties.  We would also venture to suggest that such submissions should await a more appropriate case than this appellant’s.
5.	In the event, we refused leave to amend the grounds of appeal and directed that this appeal should be heard on conventional lines.
6.	The facts can be stated quite shortly.  On three occasions over a period of less than 4 weeks, this appellant entered at night the apartments of three lone women.  All the offences occurred in the same area of north London and demonstrate an emerging pattern of offending with marked characteristics and increasing seriousness. In the first burglary, committed  on the 23rd June 2007, the complainant  awoke at about 4am to find this appellant lying face down at the bottom of her bed.  At first she thought she must be dreaming.  She switched on the light.  When she did so he jumped up and bolted from the room through a window which had been left slightly ajar.  He had stolen £160 from her.    The second burglary on the 24th June occurred in a similar studio flat in Alexandra Road. Again it was at night and again the flat was occupied by a young woman.  She was awakened by noises but initially dismissed her fears until, hearing further noises, she moved forward in her bed so she could get a better view and was immediately assaulted.  The appellant had a wine bottle in his possession that he had picked up in the kitchen.  By his basis of plea he says he did not use that as a weapon to strike this complainant but whatever the circumstances the complainant required hospital treatment for cuts to her head.  How he got into the premises is unclear but he stole about £27.00 before leaving.  The third burglary, not very far away, involved another young woman who rented a room on the second floor of a house in Wightman Road.  She awoke at about 5am on the 21st July 2007 to find this appellant standing over her.  She screamed but he started to hit her.  He also had a knife with him which he put to her throat.  He put his hand over her mouth and told her if she did not stop screaming he would kill her.  According to the complainant he pressed the knife against her throat to add to her fear and distress and told her he would cut her face, although he denied doing this in his basis of plea. She stopped screaming and the appellant then put some black tape over her eyes and tied her hands behind her back using the tape.  He lifted her top and started touching her sexually. He touched and kissed her breasts. He then took off her trousers but she told him she was starting her period and as he noticed she was menstruating he appears to have desisted from interfering with her genitalia and returned to assaulting her sexually to her upper body.  This continued for some little time before he left taking about £250 with him.  The complainant was left in great distress and was physically injured by the assault.  She now feels unable to return to her home and the quality of her life has been seriously and adversely affected to the extent that she felt obliged to give up her job.  Everyday she recalls the details of this quite appalling attack. She frequently cries and has lost her trust in people.
7.	The appellant’s description was circulated and he was arrested the next day in the same area where all these offences were committed.  It was obvious to the arresting officers that he had been drinking.  He admitted the offences and pleaded guilty at the Plea and Case Management hearing.  He is now 19 years of age and has no previous convictions.  There were references before the judge that described him as well liked, polite and amiable and academically bright.
8.	The probation officer formed a different view. She described the appellant as minimizing his behaviour and intentions and expressed concern at his detachment and lack of victim empathy. She added:
“…the emerging pattern of offending, the two domestic burglaries one with the sexual element with Mr. Lunkov lying on the bed, leading to the burglary with the sexual assault is a classic example of sexual offending behaviour.  It is also important that alcohol was not a feature in the previous domestic burglaries as this would strengthen the case that Mr. Lunkov was intentionally targeting lone women and building up to a sexual offence.  This is very concerning in terms of dangerousness”

9.	Later in her report, she assessed the appellant as presenting a high risk of re-conviction for sexual offending.
“…it is concerning that he has moved from having no convictions to 
a number of offences that have escalated  in seriousness over a 
short period of time and that there appears to be an emerging pattern 
of offending behaviour with regards to entering occupied houses.   
It is also of concern that as well as minimizing  much of his offending 
he appears very detached from his behaviour lacking any emotion and 
awareness around the impact of his offending on the victims.   These offences caused not only physical and sexual harm but also had a deep psychological impact on the victims.  I am also concerned that despite attributing alcohol to being behind the sexual offence, Mr Lunkov has taken no steps to address this issue and remains unmotivated to do so.  It is for these reasons that I assess Mr. Lunkov as posing a high risk of harm to females sleeping in their homes”
10.	The judge made similar observations and was satisfied that the appellant presented a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences (s. 225 (1)(b) Criminal Justice Act 2003).  Accordingly she imposed an indeterminate sentence for public protection expressed because of his age as detention for public protection.  In our judgment she was wholly right to do so.  Despite the comparative youth of this appellant and his lack of previous convictions, there was no realistic alternative in this case when looking at the offences that were both specified and serious and the context of this appellant’s offending.  In so far as we understand Mr Rule to be arguing to the contrary we reject his submissions. 
11.	We turn to the minimum period imposed.   The judge recognized, of course, that burglary is neither a serious and specified offence nor a specified offence.  She indicated that she would have passed consecutive determinate sentences for the two burglaries had she not been passing an indeterminate sentence in respect of the last incident.  She indicated sentences of 2 years would have been imposed on each count to run consecutively.  Mr. Rule criticizes this approach and submits that the judge erred in principle in fixing the minimum term by the simple addition of the notional determinate terms she would have imposed.  He points out that the judge calculated a total determinate sentence of 10 years by adding together the terms she would have imposed for the burglaries with a term of 6 years she would have imposed for the sexual offence. He seeks to persuade us that we should regard the notional terms for the two burglaries as being manifestly excessive and emphasizes that burglary is not specified. Whatever criticisms are made of the way the judge went about calculating the minimum term to be served, this is precisely the sort of case where it is not only appropriate to have regard to the whole of the offender’s criminal behaviour, but essential to do so.  This approach has been considered and approved by this court on several occasions.  See: O’Brien and others [2006] EWCA Crim.1741; O’Halloran and others [2006] EWCA Crim 3148; Edwards [2006]  EWCA Crim 3362 and Crees [2007] All ER (D) 376.  To hold otherwise would give an undeserved bonus to the offender and would short change the victims and the public.
12.	There is one submission made by Mr Rule which is worthy of consideration by this court.  The minimum period of 5 years reflects a starting point of 15 years, which, given the age and previous good character of the appellant, we are persuaded is excessive.  In our judgment, the appropriate starting point after a trial would have been 12 years and given the defendant’s early pleas of guilty, the appropriate determinate sentence would have been 8 years.  This reduces the minimum term from 5 years to 4 years.
13.	There is some ambiguity as to whether the judge passed an indeterminate sentence or any sentence on count 4 which charged aggravated burglary and arose from the same circumstances as the sexual assault. In order to remove any confusion, we propose to impose a sentence of indeterminate detention for public protection on that count with a minimum term of 4 years to run concurrently with the sentence on count 5.  In exercising  our powers under section 11 (3) of the Criminal Appeal Act 1968, we shall thereby ensure that the overall sentence passed on this appellant does not mean he has been more severely dealt with on appeal than he was in the court below.  
14.	The net effect is that we uphold the sentence of indeterminate detention for public protection but reduce the minimum period from 5 years to 4.  Having taken into account the whole of the appellant’s criminal behaviour in fixing the minimum term, the orders of no separate penalty on the two burglary counts will stand and the period of 151 days served on remand will be deducted in accordance with section 240 of the Criminal Justice Act 2003.
15.	To that extent and that extent only, the appeal is allowed.