Case No: 201601443 A3
Neutral Citation Number: [2017] EWCA Crim 1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM READING CROWN COURT
THE HONORARY RECORDER OF READING
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 16 January 2017

Before:

LORD JUSTICE BURNETT
MR JUSTICE WYN WILLIAMS
and
MR JUSTICE SUPPERSTONE

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Between:

	MUHAMMAD ANEES YOUNAS	Appellant	
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	R	Respondent	

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Mr Philip Rule (instructed by Swain & Co, Liverpool) for the Appellant
Mr Simon Heptonstall for the CPS

Hearing date: 16 December 2016

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Judgment
Mr Justice Wyn Williams: 

1.	On 3 January 2014, in the Crown Court at Reading, the applicant pleaded guilty to an indictment containing two counts of rape of a child under the age of 13.  Two months later, on 3 March 2014, the Honorary Recorder of Reading sentenced him to concurrent terms of life imprisonment. The court specified that the minimum term to be served before the applicant would become eligible for release on licence was 6 years’ imprisonment.  The learned judge directed that the 118 days which the applicant had spent on remand in custody should count towards that minimum term.  Additionally, the judge made a sexual offences prevention order and a compensation order.
2.	The provisions of the Sexual Offences (Amendment Act) 1992 apply in these proceedings.  The prohibition upon the publication of any material likely to lead members of the public to identify the victim in this case is therefore in force.
3.	This appeal has been brought out of time.  Before permission to appeal can be granted an extension of time of 718 days is required.  Both the applications for permission to appeal and the necessary extension were considered on the papers by the single judge.  She concluded that the applications were best dealt with by the Full Court and has referred them accordingly. 
4.	We have the benefit of a very extensive advice on appeal from Mr Rule, counsel for the applicant.  We also have a detailed written explanation about why it was that there was a delay in pursuing an appeal.  The Crown Prosecution Service has provided us with a detailed response to the applications for an extension and permission. Mr Heptonstall appeared at the hearing on behalf of the prosecution and made oral submissions about the merits of the appeal.  We have reached the conclusion that in the context of this case, at least, the issue of whether an extension of time should be granted is inextricably bound up with the issue of whether or not the appeal is meritorious.  Accordingly, we propose to deal first with the merits of the proposed appeal.
5.	We begin with a consideration of the indictment.  As we have said it consisted of two counts.  Count 1 alleged that the applicant had raped a child to whom we shall refer to as MA between 17 January 2013 and 31 October 2103.  MA was a boy aged 8 at the time and the allegation was that the applicant had penetrated MA’s anus with his penis.  Count 2 alleged that the applicant had raped MA on 3 November 2013.  We have some doubt about the accuracy of that date but it matters not. Again the allegation was of anal rape at a time when MA was still 8 years of age. Nothing on the face of the indictment suggested other than that the applicant was accused of two separate rapes said to have occurred on two different dates.
6.	We consider next the procedural history. The applicant was sent for trial by the East Berkshire Magistrates Court in respect of these offences on 6 November 2013.  On 3 January 2014 the applicant pleaded guilty to both counts at a hearing convened under the early guilty plea scheme.  The hearing at which the applicant pleaded guilty was conducted by the Honorary Recorder of Reading. There is no transcript available of what occurred at that hearing. In due course the learned Recorder accepted that the applicant had pleaded guilty at the first available opportunity and that, accordingly, he was entitled to the maximum credit for his guilty pleas.
7.	We turn next to the undisputed facts.  In 2013 the applicant was aged 35.  He was of Pakistani origin as was MA and his family.  The applicant and MA’s father became friends.  That friendship resulted in an invitation from MA’s father to the applicant that he should provide religious instruction to MA and MA’S younger brother.  Accordingly, as from about August 2012 the applicant was a frequent visitor to MA’s home ostensibly to teach the two boys about the Muslim faith.  It seems that the applicant attended frequently; for some time, at least, he was attending on a daily basis for approximately 1 hour.  On some occasions MA’s sibling was present; on other occasions the applicant gave instruction to MA when he was alone. 
8.	No useful purpose would be served by a detailed description of the circumstances the rapes. Mr Rule accepts that they constituted very serious offences. He acknowledged that there were a number of aggravating circumstances which he listed for us as (1) there was an abuse of trust; (2) the offending had been in MA’s home; (3) there was an element of grooming; (4) on the occasions of the rapes the applicant had ejaculated; (5) following the first rape MA was cautioned not to tell anyone what had occurred; (6) there were two offences; and (7) on the second occasion, at least, the applicant had caused reddening and soreness to MA’s bottom. 
9.	The offences came to light in late October or early November 2013 when MA made a complaint to his mother that he was suffering from diarrhoea.  This complaint led mum to examine MA’s bottom.  She noticed that it was red and sore and when MA was questioned about why his bottom was in that condition he disclosed that the applicant had placed his penis into his bottom.  
10.	The applicant was arrested shortly after the complaint was made.  MA was interviewed in accordance with the procedure for interviewing child witnesses (an ABE interview) in which he maintained his complaint that he had been raped by the applicant. 
11.	As we have said, we have no transcript of what occurred when the applicant pleaded guilty at the hearing on 3 January 2014.  However, we do have transcripts of what transpired at the sentencing hearing on 3 March 2014. The hearing began with prosecuting counsel describing the facts relating to the offences.  Essentially, in rather more detail, she described the rapes as we have summarised them in this judgment.  She also described how the offending had been discovered by MA’s mother. There was at least the veiled suggestion that there had been a repeated course of conduct as opposed to two rapes on separate days. Towards the end of her opening counsel addressed the Sentencing Guideline.  It was at this stage that it became clear that she was suggesting to the judge that the applicant had engaged not just in the rape of MA on two occasions but rather in a course of conduct in which rape had occurred on many occasions. After counsel had concluded her address to the judge as to the appropriate Sentencing Guideline the judge referred specifically to the indictment.  She said:-

“These are the charges that reflect the first time [MA] says that   this occurred and the last?”
Counsel replied:-
“Yes your honour”, 
              The judge then asked whether the counts were said to be specimen counts. 
Counsel replied:-
“Well that is the Crown’s case, your honour, yes.  I do not know that any basis of plea was ever put forward or what… it was a no comment, what the defendant accepted or otherwise but that certainly is so far as [MA’s] account is concerned the first occasion he says was about three weeks after, the last occasion obviously we know about and in his ABE he said it was ongoing effectively throughout that period of time for about a year, and that is why, your honour, I do quite clearly say that it falls within the top category, repeated rape of the same victim, it is obviously the first and the last and they are specimen counts.”

12.	We pause at this point.  So far as we are aware this was the first time that the issue of whether the applicant was to be sentenced for two rapes or a repeated course of conduct was ever raised expressly.  There is nothing to suggest that this issue had surfaced before or at the time that the applicant pleaded guilty to the counts of rape on 3 January 2014.
13.	Mr Rule, who appears before us, was not his representative during the course of the proceedings below.  We have a transcript of the mitigation which was advanced on behalf of the applicant immediately following the exchanges to which we have just made reference.  It was extremely short.  Essentially it consisted of the submission that the applicant’s guilty plea should be given full weight and his plea of guilty represented the best point that could be made in mitigation.
14.	Just prior to the conclusion of mitigation the judge told the solicitor advocate then acting for the applicant in express terms that she was minded to find that the applicant was a dangerous offender within the relevant provisions of the Criminal Justice Act 2003.  The solicitor advocate said nothing to deflect the judge from such a finding.  There then followed this exchange:
Judge       “Well, in my concluding that he is dangerous, of course,    this is a specified offence, is it not?...
Advocate   “Your honour, yes
Judge        “and there is only one sentence I can pass.”
Advocate “Your honour, yes. That has been translated to him.”
Judge         “Thank you”
Advocate “Your honour, I do not think I can assist you any further in the light of this particular case.”
		    
15.	 The judge began her sentencing remarks by describing how the applicant’s offending had come to light.  In that same section of her remarks she made it clear that she was proceeding on the basis that the applicant had engaged in a repeated course of conduct as opposed to two acts of rape separated in time. In her view the counts on the indictment represented “the first and the last occasion upon which this continuing activity occurred”.  
16.	The judge then proceeded to make a specific finding that the applicant was a dangerous offender within the provisions of the Criminal Justice Act 2003. She said:-  
“It is right that you have no previous convictions but taking into account the nature of the offences charged, the circumstances wherein they took place and your attitude to the offending the court concludes that you do pose a significant risk to members of the public, that is children, of serious harm by the commission of further specified offences.”
The reference by the judge to “further specified offences” in context, no doubt, was a reference to further sexual offences.  
17.	The Recorder then announced the sentence which she intended to impose. Her words were:-
“In these circumstances I must impose a sentence of life imprisonment.”
That, of course, was a view she had, in effect, expressed to the applicant’s advocate during the exchange which occurred at the end of mitigation.
18.	In his written material Mr Rule has advanced a number of grounds of appeal.  We mean no disrespect to him by saying that, in reality, the issues in this case can be distilled into three principal issues.  First, was it open to the Recorder to sentence on the basis that the applicant had engaged in a repeated course of rape of MA as opposed to there being two such crimes separated in time?  Second, was the Recorder correct to conclude that once she had found, as she did, that the applicant was a dangerous offender within the relevant provisions of the Criminal Justice Act 2003 she had no option but to pass life sentences for the offences of rape? Third, was her finding that the applicant is a dangerous offender justified? 
19.	We turn to deal with each of those issues. We take them in the order set out immediately above. 
20.	In Canavan [1998] 1 Crim App Rep 79 this court laid down the following general principle:- 
“Where a defendant is convicted on an indictment charging him with offences said to be representative of other similar criminal offences committed by him, it is inconsistent with principle that the court should take into account other offences so as to increase the sentence if the defendant does not admit the commission of other offences and does not ask the court to take them into consideration.  Nor does [statute] legitimate the practice of sentencing for unindicted unadmitted offences.”
In Hartley [2012] Crim App Rep 7 this court made it clear that if the prosecution is alleging that an offender has committed a large number of offences of a similar nature and it would not be reasonable or practicable to have separate counts upon an indictment in respect of each alleged offence it is for the prosecution to frame the indictment in such a way that sufficient counts are specified to enable the judge to impose an appropriate sentence for an offender’s criminality when looked at overall.  Further recent guidance to the same effect is to be found in the decision of this court in A [2015] 2 Crim App Rep (S) 12 which also provides clear guidance about the use of counts which are intended to allege more than one offence where the prosecution case is that the offending constitutes a course of conduct (see Criminal Procedure Rules 2015 10.2(2) for the current rule – the predecessor rule in force in early 2014 being to like effect).   We recognise, of course, that the Recorder did not have the detailed guidance set out in A at the time she imposed sentences in this case.
21.	We acknowledge that the applicant’s advocate appears to have acquiesced in the Recorder sentencing the applicant on the basis that he was engaged in a course of conduct. Nonetheless, it seems to us that it was not permissible for the Recorder to proceed in that way.  There was nothing on the face of the indictment which suggested that these counts were to be taken as specimen counts or multiple incident counts.  It is at least possible, indeed it seems to us to be likely, that the applicant pleaded guilty to the indictment upon the understanding that he was admitting two allegations of rape which were separated in time and that was the extent of his criminality. Such information as Mr Rule has obtained from the applicant’s previous solicitors suggests that is the case.  
22.	On the state of the information before us we have reached the conclusion that it was not permissible for the Recorder to sentence the applicant upon the basis that he had engaged in the rape of MA on many occasions.  
23.	We turn to the approach which the Recorder took to the imposition of a life sentence.  For the moment, we assume that her finding that the applicant was a dangerous offender was justified.
24.	It was common ground before us between Mr Rule and Mr Heptonstall that the Recorder was of the view that she had no option but to pass sentences of life imprisonment once she had found that the applicant was a dangerous offender. In the light of the exchange between the applicant’s advocate and the Recorder at the end of mitigation and the Recorder’s sentencing remarks no other conclusion is possible. It was also common ground that this view was erroneous. We agree. 
25.	In the light of this consensus we can deal with the issue quite shortly. The relevant sections of the Criminal Justice Act 2003 are sections 225 and 226A. Section 224A which mandates a court to impose a life sentence if the criteria set out in the section are met has no application in this case.  Section 225 provides:-
“1) This section applies where –
A person aged 18 or over is convicted of a serious offence committed after the commencement of this section,
The court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences.
If – 
a. the offence is one in respect of which the offender would apart from this section be liable to imprisonment for life, and 
b. the court considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life
    the court must impose a sentence of imprisonment for life.”

Section 226A is concerned with extended sentences.  It provides:- 
     “(1) This section applies where –
a. a person aged 18 or over is convicted of a specified offence…
b. the court considers that there is a significant risk to members of the public of serious harm occasioned by the commission of the offender of further specified offences,
c. the court is not required by section 224A or 225 (2) to impose a sentence of imprisonment for life, and; 
d. condition A or B is met.  
 (2) …
 (3) …
   (4) The court may impose an extended sentence of imprisonment on the offender.  
 (5)  An extended sentence of imprisonment is a sentence of imprisonment the term of which is equal to the aggregate of –
  a. the appropriate custodial term, and 
  b. a further period (the “extension period”) for which the offender is to be subject to a licence.” 
26.	The approach to be taken to those sections was set out definitively in AG’s Reference 27 of 2013 (Burinskas & other appeals) [2014] 2 Crim App Rep (S) 45. The judgment of this court makes it clear that before a sentence of life imprisonment can be imposed under section 225 of the 2003 Act a judge must consider first whether the seriousness of the offence for which the sentence is under consideration either standing alone or taken together with one or more other offences justifies a life sentence. If the offence does not fulfil this criterion a sentence of life imprisonment cannot be imposed even if the dangerous offender criteria are met. In that event the judge should next consider whether the criteria for the imposition of an extended sentence pursuant section 226A are established. In this case we are satisfied that the Recorder did not consider the statutory provisions as she should have done in accordance with Burinskas. Her reasoning appears to have been that once she found the applicant to be a dangerous offender a life sentence must follow. Despite identifying this error in approach on the part of the Recorder we should record our sympathy for her. The decision in Burisnskas was not handed down until the day after she passed sentence and neither of the advocates who appeared before her suggested that her approach was erroneous.
27.	Was the Recorder justified in her view that the applicant was a dangerous offender?  In our judgment, the pre-sentence report available to the Recorder, read as a whole, justified such a conclusion.  The difficulty, however, is that the author of the pre-sentence report may well have reached her conclusion about the risk posed by the applicant in the future on the basis that the applicant had been involved in a campaign of rape which began early in 2013 and which did not end until late October 2013.  There are certainly passages in the pre-sentence report which convey the impression that the author was assessing a man who had raped a young child on a weekly basis over a period of many months.  As we have said the Recorder’s sentencing remarks convey the impression that she was sentencing on the basis that the applicant had repeatedly raped MA over a period of months.  As we have said, the Recorder should have been sentencing on the basis that the applicant had committed two offences of rape that were separated in time.  
28.	We are driven to the conclusion that the Recorder’s assessment that the applicant was a dangerous offender was influenced by her belief that she was entitled to sentence on the basis of many offences of rape and that she was assessing an offender who had admitted committing many such offences.  That being the case her assessment cannot stand and we have no option but to consider the issue of dangerousness for ourselves.  We stress, at the outset, that our assessment is undertaken on the basis that the appellant has been convicted of two offences of rape of a child under the age of 13 which were separated in time by some months.
29.	It was common ground between Mr Rule and Mr Heptonstall that our assessment of whether the applicant was a dangerous offender should be based upon all the information which is currently available.  It was not suggested to us that we should confine ourselves to the information which was known at the time of sentencing by the Recorder.
30.	We have considered, with care, those parts of the pre-sentence report which do not relate to the issue of the number of offences committed by the applicant, the opinions expressed in the report prepared by Dr. Peter Pratt, a consultant clinical and forensic psychologist, dated 3 December 2015, the nature and seriousness of the applicant’s two offences, his age, his lack or any previous convictions of any kind and all the other written material relied upon by Mr Rule in relation to this issue.  We have applied Lang [2006] 1WLR 2509.  In the light of all the relevant information available we are not satisfied that the applicant poses a significant risk to members of the public, namely children, of serious harm by the commission of further specified offences.
31.	In the light of our conclusions on the three principal issues identified above we are satisfied that the sentences of life imprisonment must be quashed.  In these circumstances, and notwithstanding the lengthy period of time which has elapsed between the imposition of the sentences and the date when applications for an extension of time and permission to appeal were launched we have no doubt but the interests of justice demand that we should grant the necessary extension of time, grant leave and allow the appeal on the merits.  
32.	We turn finally to consider the sentences which should be substituted for the life sentences imposed by the Recorder.  We should say, for the avoidance of doubt, that we do not consider that the two offences of rape either considered alone or together were so serious that life sentences were justified.  We do not, of course, intend to minimise the seriousness of the offences; however, serious as they were they do not, in our judgment, justify life sentences.
33.	In any event life sentences under section 225 would not be permissible because the applicant does not pose a significant risk to children of serious harm by the commission of further specified offences.  For that same reason extended sentences cannot be imposed.  Accordingly, the appropriate sentences for the two offences are lengthy determinate sentences.
34.	Notwithstanding the imposition of the life sentences the Recorder was obliged to fix a minimum term to be served by the applicant before he became eligible for consideration for release on parole.  The Recorder determined that the appropriate determinate sentence in respect of each rape was 12 years imprisonment.  That term was derived after a full discount of one third for the applicant’s early guilty pleas.
35.	Mr Rule complains that such a sentence, if passed as a determinate term would be outwith the relevant sentencing guideline. We remind ourselves, in any event, that the Recorder was proceeding on the basis that there had been many more offences of rape than the two offences specified on the indictment. Mr Rule submits that under the guideline in force at the time that the Recorder passed sentence a starting point of no more than 14 years would have been appropriate.  Allowing a discount for the plea of guilty at the first available opportunity that would mean an actual sentence of 9 years and 4 months.  
36.	We have reached the conclusion that balancing the aggravating features which we have identified at paragraph 8 above with the principal mitigating features (apart from guilty plea), namely the applicant’s previous good character and his remorse, and paying close attention to the guideline, the result after trial would be a sentence of 15 years’ imprisonment.  In our judgment such a sentence would be a proportionate and commensurate sentence for the applicant’s offending. Taking account of the appropriate discount for guilty pleas the sentences which we impose upon the appellant are 10 years’ imprisonment on each count to be served concurrently.
37.	In the result the life sentences imposed upon the applicant at the Reading Crown Court on 3 March 2014 are quashed and we substitute concurrent terms of imprisonment of 10 years.   In the course of argument Mr Rule raised an issue with regard to the Sexual Offences Prevention Order which was made by the Recorder.  There is no attack on the making of the order in principle but he submits that the second prohibition was unnecessary and also defective because its terms carried a substantial risk of inadvertent breach.  We do not set out the terms of the Order in full or develop the argument further, because Mr Heptonstall agreed.   The first prohibition, namely not to have unsupervised contact with a boy, subject to various provisos which derive from R v Smith and others [2012] 1WLR 1316 at paragraph 33, is unaffected.  The second prohibition, namely “not to be alone with any male under the age of 16” is quashed.  All other orders made in the Crown Court will remain.