Case No: 200804409/A2 
Neutral Citation Number: [2008] EWCA Crim 2691
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Wednesday, 22 October 2008
 
B e f o r e:

MR JUSTICE RICHARDS 

MRS JUSTICE SWIFT DBE 
 
SIR CHARLES GRAY 
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R E G I N A 

v 

C
 
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Mr A D Smith appeared on behalf of the Appellant 
Mrs C Wilson [solicitor advocate] appeared on behalf of the Crown 
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J U D G M E N T 

1.	SIR CHARLES GRAY:  The applicant ("C") is aged 16 years.  His application for leave to appeal has been referred to the Full Court by the registrar.  As we have already indicated, we consider this a proper case in which to grant leave.
2.	On 23 June 2008 C pleaded guilty at Sheffield Crown Court to an offence of attempted rape.  On 14 July 2008 he was sentenced by His Honour Judge Goldsack QC to detention for public protection pursuant to section 82A of the Powers of Criminal Courts (Sentencing) Act 2000.  The learned judge specified a period of two years, less 139 days spent on remand, as being the period before which the appellant might be considered for release on licence.
3.	The attempted rape took place in the following circumstances.  At about 2.15 in the afternoon on 14 February 2008 an 11 year old boy decided to use the facilities at a leisure centre in Doncaster.  He entered the toilet.  C was already in the toilet.  He came out of a cubicle wearing a towel round his waist.  He told the boy to take his trousers down.  Initially the boy refused but complied after C had pushed him into a cubicle because he thought he was suspected of stealing something.  C then lifted the boy's shirt and started to kiss his stomach before opening his mouth and trying to place it over the boy's penis over his boxer shorts.  He then laid the boy on the ground and lay on top of him.  He tried to roll the boy over on to his front but the boy struggled and shouted for assistance.  
4.	An off‑duty police officer, who happened to be nearby, heard the boy's cries of distress.  The officer entered the toilet and saw the boy's feet under the door.  The boy was still crying out so the officer asked what was going on.  At this point C, who was naked, emerged from the cubicle.  The officer noticed that his penis was semi‑erect.  The boy told the officer that C had attempted to rape him.  The officer arrested C.  
5.	When interviewed C eventually admitted that he had intended to have anal sex with the boy.  He later told a social worker that he had been planning the offence for about a week.  He said that once the plan was formulated he could not stop himself from carrying it out.
6.	C is of good character.  However, he does have one reprimand for having been in possession of a knife on school premises on 30 January 2008.  That was some two weeks before the attempted rape took place.
7.	The date on which His Honour Judge Goldsack had to sentence C, 14 July 2008, happened to be the date when the Criminal Justice and Immigration Act 2008 came into force.  The 2008 Act changes the law as it had stood under the Criminal Justice Act 2003 ("the 2003 Act") in respects which are, potentially at least, material to the issues arising on this appeal.  So far as relevant to the present appeal section 226 of the 2003 Act provides that:
"Where an offender under the age of 18, has been convicted of a serious offence specified in the schedule 15A of the Act and has been assessed as dangerous, the court may impose a sentence of detention under section 91 of the Sentencing ACt for public protection.  But it may do so only if the notional minimum term would have been at least two years.  A notional minimum term of two years is the equivalent of a notional determinate sentence of four years under the 2000 Act."
8.	Section 228 of the 2003 Act as amended by section 16 of the 2008 Act further provides that: 
"An extended sentence may be imposed on an offender aged under 18 at the date of conviction if the offender is convicted of an offence specified in schedule 15A (whether or not the offence is a serious offence) and has been assessed as dangerous, but only if the appropriate custodial term for the extended sentence would be at least four years."
9.	Before the sentencing judge were two reports.  First, a psychiatric report from Dr Gwilym Hayes.  Having summarised the tragically unhappy childhood of C, Dr Hayes expresses the opinion that there is no evidence that C was actively mentally ill at the time or was suffering from a clear psychotic illness or suffering from depression, although he does have an abnormal presentation.  
10.	The doctor continues that: 
"There is a possibility that the presentation is caused by prodromal (i.e pre‑illness) phase of serious mental illness.  However, it is more likely that his offending and presentation is a reflection of the structure of his personality that is continuing to develop along an abnormal trajectory and which has its roots in what appears, on the limited information I have been able to study so far, in his unsatisfactory early social environment."
11.	The report continues: 
"With regard to risk, in the absence of remorse or explanation as to why he committed the offence, and in the presence of similar previous behaviours, it can only be concluded that he continues to pose a risk of re‑offending in a similar manner in the future."
12.	The psychiatric report concludes: 
"It is unlikely that hospital disposal is going to be appropriate in this case.  C will need to be reviewed during any sentence and he may well require further psychiatric intervention During the course of any sentence as it may well be that his presentation will alter dramatically over the next couple of years."
13.	The second report before the learned judge was a pre‑sentence report which describes C as having appeared "flat and emotionless" throughout the interview and displaying little, if any, empathy with the victim.  The author of the report also describes C's sad family history.  Assessing the risk of offending and harm to the community, the report refers to C's "increasingly serious deviant sexualised behaviour".  The author of the report expresses the opinion that C: 
"... poses a significant risk of harm and reoffending and that long‑term intensive intervention in a secure setting will be required before this risk is reduced."
14.	The judge also had a letter from C expressing regret about what he had done.
15.	In his sentencing remarks Judge Goldsack made reference to the C's dysfunctional family background.  He commented that not surprisingly professionals are of the view that further similar offences are likely and that C, in his view, poses a significant risk of causing serious harm to members of the public.
16.	In relation to the appropriate determinate sentence the learned judge said this: 
"If an adult male had committed the full offence that you attempted he would, after a trial, have received a sentence in double figures.  It was not your intention that the offence did not succeed and be completed.  Your intention was to complete the offence.  Giving you appropriate reductions for your plea and your youth, the appropriate determinate sentence would have been four years' detention under section 91."
17.	The judge then had to determine whether to exercise the discretionary power to impose a sentence for public protection pursuant to the provisions of the 2008 Act to which we have referred.  He said this: 
"Yours is classic case where it is simply impossible to predict at this stage for how long you may remain a danger.  Sometimes youngsters change for the better relatively quickly; others do not.  The whole purpose of detention for public protection is that the authorities have the power to detain you for whatever time it takes until that stage is reached.  The sentence must therefore be one of detention for public protection."
18.	The effect of the sentence imposed on C is that he is serving an indeterminate sentence of detention from which he will not be released unless and until the parole board is satisfied that he no longer poses a danger to the public.  The effect of the notional minimum term being set at four years is that the parole board will not start to consider that question until the appellant has served half of that term, that is two years less the time spent on remand, namely 139 days.
19.	Mr Andrew Smith has appeared before us today as he did before the sentencing judge.  We are grateful to him for his clear written submissions and his equally clear and succinct submissions this morning.  He points out, correctly, that to pass a sentence of detention for public protection pursuant to section 226 of the 2003 Act as amended by the 2008 Act the court would have to find that the defendant was "dangerous" within the terms of the Act and that the determinate sentence for his offending should be at least four years' detention.
20.	Mr Smith submitted in his written advice, first, that, notwithstanding the opinions expressed in the psychiatric report and in the pre‑sentence report, to which we have referred, C is not dangerous within the terms of section 229 of the Criminal Justice Act 2003 as amended by the 2008 Act.  That submission was based in part on the fact that the appellant has not actually caused any serious harm to his victim.  However, before us this morning Mr Smith, rightly in our view, did not press that submission.  He recognises that, albeit that the complete offence of rape is not committed, serious psychological harm may be caused to a victim.
21.	The second submission which Mr Smith advances is that in the present case the appropriate starting point was significantly short of the four years set by the learned sentencing judge.  Mr Smith points out that C effectively pleaded guilty at the earliest opportunity.  He also points to the fact that C is only 16 years of age and that the offence was an attempt rather than a complete offence.  No violence was used, nor was there any threat of violence.  Moreover, the appellant quickly desisted when the boy cried for help and thereafter he was co‑operative with the police once they arrived on the scene.  It is the contention of Mr Smith, having regard to the guidance in Millberry [2003] 1 WLR 546, that the appropriate tariff for this offence should have been one of three years.
22.	Mrs Wilson, who has been instructed on this appeal on behalf of the Crown, draws our attention to the sentencing guidelines and, in particular, to the guideline relating to a single offence of rape by a single offender.  The guideline in such a case is one of ten years' custody if the victim is under 13 years, as was the victim in the present case.  The bracket is one ranging from eight years up to 13 years.  Mrs Smith also pointed out that there was in this case evidence of some planning having taken place.
23.	We do note, however, that the guideline figure of ten years with a bracket of eight to 13 years are the starting points where the full offence of rape has been committed and has been committed by an adult offender.  Neither of those two conditions apply in the circumstances of the present case.
24.	We address in turn the two issues which arise, namely the issue of dangerousness and the issue of the appropriate minimum term.  We will deal with those two issues in turn.  Before we do so, however, we should indicate that we are aware that a group of cases dealing with the effect of the changes made to the 2003 Act made by the 2008 Act has recently been heard in a court presided over by the Lord Chief Justice.  Judgment has not yet been delivered in those cases.  Anything we say in the present case is, of course, subject to the guidance which will in due course be given by the Full Court in that group of cases.
25.	Reverting to the issue of dangerousness, we do not accept Mr Smith's submission, which, as we have said, was not pressed before us today, that C does not qualify as dangerous.  That term is defined in section 229(1)(b) of the Criminal Justice Act 2003 as being: 
"... whether there is a significant risk to members of the public of serious harm occasioned by the commission by him of further such offences."
That wording has not been materially altered by section 17 of the 2008 Act.
26.	We are satisfied that the sentencing judge was correct to conclude that C does pose such a risk.  It appears to us to be fortuitous that no serious harm was occasioned to the victim on this occasion.  If the police officer had not been nearby and so heard the victim's cries for help, C might well not have desisted and the consequence might well have been even more serious harm to the victim.  
27.	Moreover, both the author of the psychiatric report and the author of the pre‑sentence report concur in the view that C qualifies as dangerous.  We quoted their reasoning earlier in this judgment.  We consider that they were right to reach the conclusion that C is dangerous within the meaning of the 2003 Act as amended.
28.	We turn then to the second question which arises, namely whether the learned judge was right to set the notional minimum term at two years, that period representing one half of a notional determinate term of four years.  This is a case where we accept that C was entitled to full credit for his plea.  We do not overlook the fact that C did not enter his plea until after receipt of the psychiatric report but in our view he should not be deprived of any credit on that account. That means that the notional sentence of four years set by the learned judge would equate to a sentence of six years if C had been convicted after trial.
29.	We ask ourselves whether the notional determinate term of four years on a plea, or six years on conviction, was appropriate for C.  Serious though this case undoubtedly is because of the youth of the victim, we have to bear in mind that C himself is only 16 years of age.  He did plead guilty at effectively the first opportunity, so saving the victim from the ordeal of having to give evidence.  He has no previous convictions.  The offence was not the full offence of rape; it was an attempted rape.  There was no significant violence.  C was co‑operative throughout with the police.
30.	Taking all these considerations into account, and bearing in mind the authority of Millberry to which Mr Smith has referred us this morning, we have concluded that the notional minimum term of four years set by the learned judge was manifestly excessive.  We accept the submission of Mr Smith that in the circumstances of this case the appropriate notional determinate term would have been one of three years.
31.	It follows from our conclusion that in our judgment the learned judge was wrong to have imposed a sentence of detention for public protection on C.  We say that because of the terms of section 226(3A) of the 2003 Act as amended by the 2008 Act which provides: 
"The notional minimum term is the part of the sentence that the court would specify under section 82A(2) of the Sentencing Act (determination of tariff) if it imposed a sentence of detention for public protection but was required to disregard the matter mentioned in section 82A(3)(b) of that Act (crediting periods of remand)."
32.	We have considered carefully whether in the light of our decision on the issue of dangerousness it would be possible for us to substitute a sentence of detention for public protection in accordance with the provisions of  section 226(3) of the 2003 Act as amended which provides as follows: 
"If, in a case not falling within subsection (2), the court considers that an extended sentence under section 228 would not be adequate for the purpose of protecting the public from serious harm occasioned by the commission by the offender of further specified offences, the court must impose a sentence of detention for public protection."
33.	Subsection (2) of the 2003 Act as amended has no application here.  We therefore take the view that we are precluded from substituting a sentence of detention for public protection.  
34.	As we have already said, we take the view that in the circumstances of this case the appropriate custodial sentence is one significantly less than four years.  It must, in our judgment, follow that an extended sentence pursuant to section 16 of the 2008 Act is not an available course for us.  
35.	It follows that we quash the sentence imposed below and allow this appeal to the extent that, in substitution for that sentence, a determinate sentence of three years less the 139 days spent on remand is imposed.  To that extent the appeal is allowed.
36.	LORD JUSTICE RICHARDS:  A few points.  Yes, it is a three year determinate sentence that is substituted and the court directs that the time on remand, the 139 days, should count towards that sentence.
37.	MR SMITH:  Just to clarify what the sentence it is.
38.	LORD JUSTICE RICHARDS:  It is a detention in a young offender institution.  It is a section 91 ‑‑ 
39.	MR SMITH:  Section 91 Powers of Criminal Courts (Sentencing) Act 2000.
40.	LORD JUSTICE RICHARDS:  Yes, it is.  At one point, I think by a slip of the tongue, my Lord said the learned judge below passed an extended sentence.  Of course, it was detention for public protection.  The alternative that we looked at was the possibility of an extended sentence, but for the reasons canvassed in argument neither of them is available in circumstances where a three year determinate custodial sentence is considered appropriate.
41.	MR SMITH:  I understand, my Lord.  
42.	LORD JUSTICE RICHARDS:  When we referred to the plea at the earliest opportunity, we took into account what you had said about the psychiatric report being obtained and credit is to be given as if a plea at the earliest opportunity even though, in fact, it was a later plea because of the time spent getting a psychiatric report.  
43.	Thank you both very much for your assistance.