Neutral Citation Number: [2010] EWCA Crim 1316
Case No. 2009/06227/A6
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Tuesday  18  May  2010

B e f o r e:

LORD  JUSTICE  PITCHFORD

MR  JUSTICE  AKENHEAD

and

HIS  HONOUR  JUDGE  GOLDSTONE  QC
(Sitting as a Judge of the Court of Appeal Criminal Division)
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R E G I N A

- v -

KEVIN  MARK  BUCHANAN
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Mr B O'Toole appeared on behalf of the Appellant

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J U D G M E N T

LORD JUSTICE PITCHFORD:  I shall ask His Honour Judge Goldstone to give the judgment of the court.

HIS HONOUR JUDGE GOLDSTONE:

1.  On 19 October 2009, following a trial in the Crown Court at Reading, the appellant, Kevin Mark Buchanan, was sentenced to a total term of 30 months' imprisonment for five counts of indecent assault.  He was ordered to sign the Sex Offenders Register indefinitely and was made the subject of an indefinite Sexual Offences Prevention Order which contained six prohibitions.  An application for leave to appeal against the sentence of imprisonment was refused by the single judge who did, however, grant leave to appeal in relation to certain aspects of the Sexual Offences Prevention Order.  We gave leave at the outset of the hearing for the appellant to renew out of time his application for leave to appeal against the sentence of imprisonment.

2.  The facts giving rise to the appellant's convictions may shortly be stated.  The offences were committed between January 2001 and January 2004 against three young girls.  One of the girls was the subject of offending on no less than three occasions.  Each of the girls was the friend of the appellant's stepdaughter.  None of them was older then 12 years of age at the time.  The offences were committed in the appellant's home which he shared with his partner and his son and stepdaughters.

3.  Count 1 related to an incident which occurred on the occasion of the appellant's stepdaughter's birthday party when he lay across C, licked her neck and said that he was going to "snog" her.  On the same occasion he lay on another child, J, and bit her neck.  That gave rise to count 2.

4.  After a shopping trip the appellant told C to remove her trousers and show him a thong that she had purchased (count 3).

5.  Following a Halloween party the appellant got into bed where his stepdaughter was sleeping with a friend, S.  He stoked S's leg from top to bottom (count 4).

6.  Finally, count 5 related to an occasion conceded to be the most serious offence when, between January 2003 and January 2004 he put his hand down C's trousers and touched her vagina.  

7.  When arrested and interviewed the appellant denied the offences.  Even when, following conviction, he was interviewed for the pre-sentence report he admitted no more than that he used to play games with all of the children, but denied any suggestion that it included sexual or inappropriate behaviour or touching.  

8.  In summary, all the offences were committed against friends of his stepdaughter, giving rise to a breach of trust.  All the girls were aged 12 or under.  The offences were committed at his home which he shared with his family.  They increased in seriousness, no doubt as he had not been stopped and thought that he would continue not to be stopped.  Finally, they were committed over a prolonged period.  Each of those factors is an aggravating feature of the offences.

9.  In mitigation much emphasis was rightly placed upon the appellant's good character.  It might be said that in a case such as this the phrase "good character" is richly deserved and does not state the full extent of the qualities which the appellant has displayed in the course of his life, both in relation to employment and in relation to many charitable works.  Nevertheless, Mr O'Toole concedes, and rightly so, that these offences crossed the custody threshold and that an immediate sentence of imprisonment had to be imposed.  It is, however, argued that the total sentence of 30 months' imprisonment was manifestly excessive, not only when considered individually, offence by offence, but (and this is the nub of the appeal) also when the principles of totality are considered.

10.  Guidelines are designed to guide a court when dealing with one offence.  We are not dealing with one offence; we are dealing with five, none of which can be considered in isolation from any of the other four.  We have not been assisted by reference to authorities which predate or postdate the Sentencing Guidelines, although we did not seek to prevent Mr O'Toole from referring to them.  

11.  In our judgment a total of 30 months' imprisonment for these five offences is well within the bounds of the Sentencing Guidelines.  It is not arguably excessive, far less manifestly so.  It follows that the renewed application for leave to appeal against the sentence of imprisonment is refused.  The Sex Offenders Register requirement remains indefinite.

12.  We turn to the second limb of the appeal, which relates to the terms and duration of the Sexual Offences Prevention Order.  As to the principle of making such an order, no argument has been advanced before us.  However, by way of elaboration of a very helpful skeleton argument, Mr O'Toole has submitted that the Sexual Offences Prevention Order was excessive both so far as the prohibitions are concerned and in relation to its duration.  It is said to be draconian and ill-defined, and that it was provided moments before the hearing with no advanced notice which was "somewhat worrying".  

13.  We would observe that if a person is convicted of a qualifying offence and presents a significant risk of harm to children, defence counsel should be alert to the possibility, if not the likelihood, of such an order being made when sentence is finally passed.  Second, if the judge takes the initiative and prepares a proposed draft Sex Offenders Prevention Order, or alters one submitted by the Crown, that is effectively a discussion document.  If there is insufficient time for counsel and the defendant to consider the contents or terms of such a proposed order because of late service, application should be made to the sentencing judge for the hearing to be put back in order for instructions to be taken.  It is difficult to consider circumstances in which an appropriate period of time on the morning of the hearing would not be granted to enable such instructions to be taken.  Third, just as the judge may have formed, by the conclusion of a trial or the opening of a plea of guilty, a provisional view as to the type of appropriate sentence, so he may also have a provisional view as to the imposition of such an order (subject, of course, to the assessment of risk).  In such circumstances, when he directs the preparation of a pre-sentence report and a consideration of the assessment of dangerousness, it will usually be helpful to invite the Probation Service to consider whether the management of the risk could be assisted by the imposition of a Sexual Offences Prevention Order and, if so, the restrictions which might be appropriate.  Furthermore, counsel for the prosecution should be in a position, when asked by the court, to submit draft proposals for incorporation into a Sexual Offences Prevention Order both to the court and to the defence in good time for the hearing.  

14.  Those preliminary observations having been made, we remind ourselves that no Sexual Offences Prevention Order should be drawn wider than is necessary to achieve its stated purpose.  In the absence of evidence or inference which can properly be drawn, normal activities should not be prohibited or restrained.  Section 107(2) of the Sex Offences Act 2003 states in terms that the only prohibitions that may be included in the order are those necessary for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant. 

15.  Applying those principles to the facts of this case, we note that the offences involved young girls and young girls alone.  There is no evidence that the appellant has an unhealthy interest in young boys.  Second, they were committed in circumstances which amount to a breach of trust.  Third, although there were a number of offences which appeared on an indictment yet to be tried and which might justify the imposition of prohibitions in relation to the use of internet or photographs, the fact of the matter remains that at the time when the sentencing judge dealt with the appellant, those matters had been severed from the original indictment and had not been proved.  There was, therefore, no evidence upon which the sentencing judge could properly reach the conclusion that the prohibitions which precluded access to the internet and the related prohibition in relation to photographs were justified.

16.  We have been helped considerably by the proposed draft which appears at Appendix 5 of Mr O'Toole's Grounds of Appeal (as revised).  We consider, subject to the duration of such an order, that the prohibitions identified therein (four in number) achieve the purpose of the legislation and are consistent with the evidence and findings which the judge was entitled to make.  We therefore propose to substitute for the original Sexual Offences Prevention Order, an order in the following terms:

"Kevin Mark Buchanan is prohibited from:

1.	Seeking the company of or being in the company of any female under the age of 16 in the absence of a supervising adult, save by order of this court or a Judge of the High Court or County Court.  This prohibition does not operate to restrict communication or prohibit contact with females under the age of 16 when unavoidable in the course of lawful activities in public places, for example when travelling or shopping.

2.	Attending any leisure or voluntary activity involving females under the age of 16 in the absence of supervising adults.

3.	Undertaking any business, obtaining or seeking to obtain any employment, or voluntary activity that is likely to bring the appellant into routine contact with females under the age of 16 in the absence of supervising adults.

4.	Staying after 9pm at an address where any female under the age of 16 resides in the absence of a supervising adult."

17.  Mr O'Toole has submitted that the duration of this order should be for five years.  However, in the course of argument he conceded that if the renewed application for leave to appeal against the sentence of imprisonment was unsuccessful, it would be more difficult for his arguments in relation to the duration of the order to be sustained.  

18.  Even if we had reduced the sentence to the level which he invited us to do so, we would still have had to consider the risk which the appellant presents in determining, first of all, whether to impose such an order and, secondly, as to its length.  Having considered all the material available to us, including the contents of, and opinions contained within the pre-sentence report, we conclude, as did the sentencing judge, that the duration of this order should be indefinite.  It will be open to the appellant to seek to vary the terms of the order or its duration if he shows the degree of insight into his offending which is currently lacking.

18.  (To the appellant)  Kevin Mark Buchanan, if, without reasonable excuse, you do anything which is now prohibited by the order, you will be liable to a sentence of up to five years' imprisonment.

19.  LORD JUSTICE PITCHFORD:  Mr O'Toole, we have reviewed the order of the single judge and we take the view that it would not be appropriate to make an representation order in favour of those instructing you.  You already have a representation order in order to advance the successful ground of appeal.

20.  MR O'TOOLE:  I do. 

21.  LORD JUSTICE PITCHFORD:  Thank you for your help.