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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Lowe, R. v [2009] EWCA Crim 2321 (29 October 2009) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2009/2321.html Cite as: [2009] EWCA Crim 2321

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		29 October 2009

1. MR JUSTICE FOSKETT: We will refer to the two victims in this case as A and B. Their anonymity is protected by section 1 of the Sexual Offences (Amendment) Act 1992 which makes it an offence to publish the name and address of a victim or any matter that might lead to the identification of a victim of any sexual offence of the type involved in this case.
2. On 21st December 2006 at Bolton Crown Court before His Honour Judge Warnock and a jury, the applicant was convicted upon a trial lasting three days of 20 counts of indecent assault upon two children over the period between 1st January 1990 and 12th July 1993. The first ten counts on the indictment concerned the child A who was, over the relevant period, aged between five years and eight years. The second ten counts concerned her sister, B, who was, over the relevant period, aged between four years and seven years. The applicant was aged between 26 and 30 when these offences took place.
3. By the time of the trial and the sentence imposed in this case on 6th February 2007, the applicant had 14 previous convictions for indecent assault on a female for which he was sentenced to 12 months' imprisonment on 3rd April 1998. Those offences post-dated the offences with which this application is concerned, but indicate the danger the applicant represented to young children.
4. The judge in this case described him as "a cunning, self-justifying, predatory paedophile, whose sole concern and self interest is gratification of your own sexual drive and inclinations". There can be no doubt as to the accuracy of that assessment. The judge also referred to a psychiatric assessment indicating that the applicant was a significant and serious risk to the public. The assessment was that without significant treatment it is probable that he would re-offend and again cause serious harm to others.
5. There is no need to set out the details of the offences for the purposes of this judgment. The judge said with ample justification that A and B had been psychologically damaged by what the applicant had done and that he had shown no remorse or insight into his condition whatsoever.
6. In passing sentence, the judge said he had regard to the totality principle and to the fact that the offences had taken place some time previously. In the belief that he was entitled to do so, in respect of counts 10 and 20 on the indictment, he imposed an extended sentence of 10 years' imprisonment pursuant to section 85 of the Powers of Criminal Courts (Sentencing) Act 2000, made up of a custodial term of five years' imprisonment and an extension period (ie an extended period of licence) of five years on both counts concurrent. In respect of each of the other counts he imposed a sentence of five years' imprisonment, those sentences to run concurrently with each other and concurrently with the sentences on counts 10 and 20. He said that he passed those sentences "in the hope and expectation that they will afford some protection to those whom you might consider as your future victims."
7. With the assistance of Mr Christopher Williams, who did not appear before the judge, the applicant has sought permission to appeal against the extended sentences imposed on counts 10 and 20 on the basis that the judge did not have power to impose sentences of that nature. The Registrar has referred his application for leave to appeal against sentence direct to the full court and has granted the necessary extension of time, some two years and five months, to enable the application to be heard. The Crown have been invited to attend and Mr Treble has appeared before us today.
8. In view of what follows, we grant leave to appeal and henceforth we will refer to the applicant as the appellant. It is not in dispute that the sentences imposed on counts 10 and 20 are unlawful. The powers of section 85 apply only to offences committed on or after 30th September 1998. None of the offences in this case were committed after 12th July 1993. Quite how this was overlooked by everyone at the time of the hearing below remains a mystery, but it hardly represents a satisfactory state of affairs that it was overlooked. Whilst in principle the general approach of the judge to this very worrying case was in our judgment entirely correct, the fact is that he did not have power to do that which in the interests of public protection he felt it appropriate and necessary to do.
9. In those circumstances, we have no alternative but to interfere with the sentence imposed. Our powers on appeal are restricted by the statutory requirement when allowing an appeal not to substitute a sentence that, taken as a whole, is more severe than that imposed by the sentencing judge.
10. Against that background, Mr Williams, for whose well-researched advice on appeal against sentence we express our appreciation, has submitted that the right course would be to quash the extended licence period on counts 10 and 20 and to substitute concurrent five year sentences on each count to run concurrently with the other sentences.
11. Whilst we, like the judge, would prefer to have seen the appellant subject to an extended period of supervision and licence, given the type of offending involved, we can only act within the powers conferred by Parliament. They do not extend to passing such a sentence and accordingly we have no alternative but to accept Mr Williams' indication to act as we have indicated.
12. Accordingly, we allow the appeal by quashing the extended sentences imposed on counts 10 and 20 of the indictment and substituting concurrent five year sentences on each count to run concurrently with the sentences imposed on the other counts. The appeal is allowed to that extent.
13. MR TREBLE: My Lords, forgive me. I do not believe there is any dispute with my learned friend that section 44 of the Criminal Justice Act 1991 does and was in force and that allows the court to extend the licence period to the end of the five year period. Are my Lords minded to do that, or not?
14. MR WILLIAMS: I cannot oppose that application.
15. LORD JUSTICE MOSES: Yes. What order do we make?
16. MR TREBLE: I understand it is an order pursuant to section 44 of the Criminal Justice Act 1991, that the court directs that the appellant should be supervised to the very end of his sentence.
17. LORD JUSTICE MOSES: We will make a direction pursuant to section 44 of the Criminal Justice Act 1991 (as amended) that he be supervised until the expiry of his sentence.
18. MR TREBLE: I am very grateful.
19. LORD JUSTICE MOSES: For the avoidance of doubt, any time spent on remand will count towards the sentence.