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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 >> Dyer, R. v [2014] EWCA Crim 2340 (30 October 2014) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2014/2340.html Cite as: [2014] EWCA Crim 2340

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL Thursday, 30th October 2014

1. PRESIDENT OF THE QUEEN'S BENCH DIVISION: Following a trial before His Honour Judge Lucas QC and a jury in the Crown Court at Guildford this applicant, who is now 50 years of age, was convicted unanimously of two offences of sexual assault and, by a majority, of attempted rape, two counts of sexual activity with a child, inciting a child to engage in sexual activity and sexual assault.
2. On 3rd July 2014 the learned judge imposed sentences which he articulated as follows: in relation to the first victim, for attempted rape, 10 years' imprisonment; for sexual activity with a child, 2 years' imprisonment consecutive; for inciting a child to engage in sexual activity, 3 years' imprisonment concurrent; for sexual activity with a child, 5 years' imprisonment concurrent; for sexual assault, 1 years' imprisonment concurrent. Sentences were also imposed for sexual assault with a second victim, 12 months' imprisonment consecutive to the terms imposed and for a further offence of sexual assault of a third victim, a further 12 months' imprisonment similarly consecutive to the other terms. In addition the judge purported to impose an extension period, that is to say an extended licence period, of 5 years. Ancillary orders were made pursuant to the Sexual Offences Act.
3. In short, as he made clear, the judge intended to impose a total term of 19 years comprising a custodial term of 14 years and an extension period of 5 years and this is how it was interpreted. As we shall explain, however, he subsequently realised that, as articulated, the sentence did not comply with the requirements of the legislation and he sought to vary it. The applicant now seeks leave to appeal against sentence; the application has been referred to the Full Court by the Registrar. We grant leave.
4. The circumstances can be summarised in brief. The complainant in relation to the five counts to which we have referred was a young teenager, J, whose family was known to the applicant. In 2005 the applicant took J on a golfing trip. They stayed in a hotel and the applicant plied him with a quantity of alcohol. During the course of the evening he stroked J in a sexual manner, removing his clothing and touching his penis with hands and mouth. He asked J to touch his penis although he refused.
5. When J was 15 the applicant took him on a World Cup trip. On that occasion again he touched J's penis with his hands and mouth, kissed him on the neck and stroked him in a sexual manner. Furthermore he attempted to insert his penis into J's anus but stopped when the boy complained that it was painful.
6. In 2009, after playing golf, the applicant and J, who was then 18 years of age, returned to the former's home. On that occasion whilst his own wife and children were upstairs the applicant touched J on his penis with his hands and mouth.
7. The remaining two counts concerned different victims. S, aged 18, worked in a public house frequented by the applicant. In the early hour of 13th November 2014 the applicant invited him back to his address and they consumed alcohol together. Because S felt very drunk it was decided he should stay the night. As he slept the applicant put his hands down S's trouser and masturbated him.
8. Nearly 6 years later, in the early hours of 5th August 2010, the applicant invited A, also aged 18, back to his address after the public house had closed and they continued drinking there. It was decided that A should stay overnight. Whilst he slept the applicant stroked his head and the right side of his body, placed his hands on A's penis and masturbated him placing A's hand on his own penis.
9. At trial these allegations were hotly contested, it being contended that such activity as took place only occurred with those who were of full age and capacity at the time and entirely consensually. The judge of course had every opportunity to observe the applicant during the trial.
10. The judge had the benefit of victim personal statements from each of the three young men who had been assaulted. They make disturbing reading, not least because of the very real impact that his behaviour has had on each of them, not only at the time but on an enduring basis.
11. The applicant was of prior good character. A pre-sentence report was prepared. That pre-sentence report analysed the offending, noted that there was a clear pattern of the applicant inviting men to his home, consuming alcohol and then inviting them to stay, waiting for them to sleep before sexually assaulting them.
12. The probation officer made use of the risk assessment tool known as OASys which indicated the factors which contributed to his offending.
13. On the basis of a statistical analysis, using RM 20008, the probation officer reported that the applicant was assessed as posing a low risk of re-offending and a low risk of re-conviction for sexual crime. The probation officer goes on:

"This means he has none or very few of the characteristics that are associated with raised risk of sexual re-conviction in sexual offenders. This low assessment is due to his lack of convictions; however the time frame and pattern of offending lead me to assess that his risk of re-offending is raised."

The probation therefore concluded:

"In my opinion Mr Dyer poses a high risk of serious harm to the public, specifically young adult males. He also poses a high risk of serious harm to children, especially teenage boys."

He went on:

"I believe that the likelihood of him committing a further similar offence is raised due the fact that Mr Dyer committed these offences over a number of years and demonstrated a sustained pattern of offending. I am also concerned that Mr Dyer believed his sexual activity with [J] to be consensual and this may indicate distorted attitudes regarding consent."

14. At the sentencing hearing, we are told that an issue arose in relation to the apparent difference between the use of the Assessment Matrix and the probation officer's conclusion. The probation officer was not available but the court liaison officer was asked for his views. We do not have a transcript of that exchange. In any event when passing sentence the learned judge expressed himself in these terms:

"I had assessed your actions over a long period of time on young men who trusted you. I find that there was a strong degree of compulsion in your actions. You have been convicted of specified sexual offences. In my judgment, a judgment supported by the assessment of you by the probation officer who prepared the report, you pose a significant - in fact, it is higher than that - a high risk of serious harm by the commission of further specified offences on teenage boys. I am not, in these circumstances, required to impose life imprisonment, but I do intend to impose an extended sentence by imposing an extension to your sentence of 5 years' imprisonment. What this means in your case is that you ... will be eligible for release having served two thirds of the 14 year sentence. You will then be on licence for the remainder of the sentence, plus an additional 5 years.

You must comply with the terms of your licence, otherwise you risk being recalled to prison."

15. The difficulty with the sentence imposed is that the way in which the judge formulated the terms of imprisonment for each offence did not then accord with the result that he identified. He imposed the specific custodial terms which made a total of 14 years and then, without associating the 5-year extension with any sentence, imposed that extension. That issue was brought to his attention after the conclusion of the 56 days available to him to vary or rescind an order pursuant to the provisions of section 155 of the Powers of Criminal Courts (Sentencing) Act 2000.
16. By analysing a decision of a circuit judge in R v Michael [1975] 3 WLR, considered by this court in R v Saville (1982) Cr App R(S) 26, which he believed permitted him to make an adjustment to what was an inchoate order, he concluded that he had jurisdiction to adjust the order that he had made if he could do so equitably and in a manner which did not cause an adverse consequence to a third party.
17. In our judgment, he had no such power. Subsequent to the decisions to which we have referred in Commissioner of Customs and Excise v Menocal [1980] AC 598, 69 Cr App R 148, it was made clear that "any variation of substance made after the expiration of the time limit of 56 days will be of no effect." In addition it is clear from a study of the authorities that any variation of sentence should be made in the presence of the defendant unless either expressly or by application his right to attend had been waived. In this case, although the learned judge apparently communicated by e-mail with the defence, he did not communicate with the Crown, he did not order the case to come back into court; in short, he did not comply with these requirements.
18. In this court, the first challenge is to the assessment of dangerousness. It is argued that the judge should have called the probation officer who wrote the report to justify what Mr Dyke contends is a change of mind or inconsistent approach in the report. Further, that without so doing, it was wrong to rely upon the probation officer's assessment. Mr Dyke concedes, quite correctly, that had the judge not had the benefit of the pre-sentence report, the assessment of dangerousness could not have been challenged. The judge had the opportunity not only of considering all the facts but also assessing the applicant's personality.
19. In our judgment, this submission is not well founded. The probation officer did not hide the result of the assessment tool which had been used but reached her own conclusion as to the dangerousness of the applicant and explained why she differed from the conclusion to be inferred from the assessment tool. The judge reached his own view. He took support from the professional opinion of the probation officer. He was entitled to do so. Thus, this ground of appeal fails.
20. Mr Dyke then seeks to use the judge's further observations in his attempted correction of the sentence unlawfully passed to argue that the judge intended that the extended sentence should only attach to count 4, ie to the 10 year term and that therefore the additional 4 years should not be subject to any extension which of course has an impact on the potential release date. He cites in support of that proposition as to the legality of that approach the decision of this court in R v Pinnell & Ors [2010] EWCA Crim 2848 and the observations of Cranston J at paragraph 47 in these terms:

"If a four year custodial term results from aggregating the shortest terms commensurate with the seriousness of each offence, then that four year term can be imposed in relation to the specified offence. If there is more than one specified offence that aggregate term should be passed for the lead specified offence, or, if appropriate, concurrently on more than one specified offence. If appropriate a concurrent determinate term may be imposed for other offences. The combination of the custodial term and extension period cannot exceed the maximum statutory sentence for the offence to which the extended sentence is attached."

Cranston J was there dealing with a slightly different circumstance. The position in this case is that the learned judge clearly intended by his sentencing remarks to pass a total term of 19 years' imprisonment, comprising 14 years of the custodial term, of which the applicant would serve two-thirds with an extension of 5 years.

21. In that regard, it is appropriate to note the guideline issued by the Sentencing Council in relation to this particular issue, which reads in relation to extended sentences:

"The extended sentence should be passed either for one specified offence or concurrently on a number of them. Ordinarily either a concurrent determinate sentence or no separate penalty will be appropriate to the remaining offences."

The law permits the judge to increase the term for the most serious offence to reflect the other offending and so pass an extended term. In our judgment that is what the learned judge sought to do in this case without expressing himself appropriately by reference to the legislative requirements.

22. In the circumstances the sentences will be adjusted in this way: for attempted rape, the sentence will be a total of 19 years' imprisonment comprising a determinate term of 14 years and extended period of 5 years. No separate penalty will be imposed in relation to any of the other offending on the basis that the criminality reflected in those sentences is encompassed within the extended term to which we have referred. To that extent the sentence is varied. Of course it makes no difference to the overall impact that the judge intended, accurately expressed in the remarks to which we have previously referred.