England and Wales Court of Appeal (Criminal Division) Decisions
AM, R v. [1999] EWCA Crim 803 (23rd March, 1999)
No: 9805558 X3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
Tuesday 23rd March 1999
B E F O R E :
LORD JUSTICE ROCH
MR JUSTICE MITCHELL
and
HIS HONOUR COLSTON QC
( acting as a judge of the CACD )
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R E G I N A
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AM
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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Tel No: 0171 421 4040 Fax No: 0171 831 8838
(Official Shorthand Writers to the Court)
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MR N SOPPITT appeared on behalf of the Appellant
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JUDGMENT
( As Approved by the Court )
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Crown Copyright
Tuesday 23rd March 1999
JUDGMENT
LORD JUSTICE ROCH: I will ask his Honour Judge Colston QC to give the judgment of the Court.
HIS HONOUR JUDGE COLSTON QC: At the Crown Court at Teesside on 27th July 1998 this appellant pleaded guilty to an indecent assault on a woman on 21st January 1998. On 21st August 1998 he appeared again before the same judge and was sentenced as follows. For the indecent assault, three years' imprisonment. An order was made under section 44 of the Criminal Justice Act relating to his licence on release and an order was made under the Sexual Offenders Act. In addition to that he was dealt with for failure to surrender to his bail. For that a sentence of one month's imprisonment concurrently with the three years was imposed, and there is no criticism of that part of the sentence. His application for leave to appeal against that sentence was refused by the Single Judge, but on 16th February 1999 the Full Court gave him leave to appeal against that three year sentence.
What had happened was that this appellant worked for a firm of builders, who, amongst other things, did roof repairs and, as would be normal in such circumstances, quotations would be given to potential customers. So it was that on 20th January 1998 this appellant went to the complainant's home, an appointment for him to do so having been made the previous evening. Having inspected the roof, he told her that some tiles would need to be replaced and that the cost to her would be £95. Her insurance policy had a £100 excess and accordingly she asked him, quite wrongly, to put up the price so that she would not have to pay for this herself. His response to that was that there had to be something in it for him. She agreed, thinking that what he wanted was extra money for himself. The appellant said he would get some cigarettes from his van and, when he had done so, they would come to an arrangement. He did go to the van but as he did so he put his arms round her and went to kiss her on the mouth. She turned her head away and he in fact kissed her on the cheek. At that time she was seven months pregnant and, according to the evidence of the police officer who was there at the time the appellant was arrested, that pregnancy was there for all to see.
The complainant said that she had frozen on the spot. The appellant went out the front door and came back from his van. She was, as one might well suppose, confused and shocked at that time. She accepted a cigarette from him. He lit his own cigarette but held his hand down low in order to light her cigarette. She put her hand on his arm in order to raise the cigarette lighter but he took hold of her arm and said, "No, you come down for it", and spoke to her in a suggestive manner. She left the room feeling anxious and fearful. The appellant told her that if the price was going to go up there had to be something in it for him. She said she was not prepared to do him any sexual favours and emphasised her pregnancy. Further suggestions of a sexual nature were made by this appellant before he left the house. As he had left the house, he said to her, "I don't do this very often as I would be out of a job". The police were informed subsequently. The appellant was arrested in his home.
When he was interviewed he admitted going to the house and that there had been discussion about repairs. He had joked about the woman propositioning him. He accepted that he had put his arm on her shoulder and kissed her, and he had asked her to masturbate him but she had declined.
The appellant was in fact due to have appeared before the Crown Court at Teesside on 26th June 1998. He did not appear and so it was that, a warrant having been issued in the ordinary way for his arrest, he in fact came before the court on 27th July and pleaded guilty in the way which we have already noted.
This appellant is now 56. Over a period of 14 years, between 1970 and 1984, he had committed offences of various kinds with considerable frequency. So far as this appeal is concerned, it is noteworthy that his convictions during that period included seven for indecent exposure and four for indecent assault. However, it needs to be emphasised that by the time he came before the Crown Court all those offences were spent and the last of them was 18 years ago.
The learned trial judge had before him a Pre-sentence Report dated 18th August prepared by Mr Warden from which it is clear that the appellant had made it plain, and had accepted to the author of that report, that his purpose in holding his cigarette lighter low down was to get this woman to masturbate him. His previous history of sexual offending is examined and set out in the Pre-sentence Report. It is unnecessary for us to go into the detail.
The author of that report carried out, as he was required to carry out, a risk assessment, and on that issue he concluded:
".....there is a risk of harm to female members of the community."
In dealing with that point during the course of his helpful submissions to us today, Mr Soppitt has pointed out that whilst that was the view of the author of that report, in fact the last time that this appellant had been involved in any offence of a sexual nature was 18 years ago.
The learned trial judge also had before him a letter from a prison officer saying that there had been no problems regarding discipline. There was also a letter from the prison medical officer saying that there were no relevant physical or mental illness issues to be raised, and there was also a letter from a Mr Robinson, an elder of the 
Jehovah's witnesses
, who said that this appellant was attending Mr Robinson's Bible study courses and was helping to build up his Christian qualities and principles in his life.
The features of this case which cannot be ignored, as has been made plain by Mr Soppitt in his submissions to us, were that this was a complainant who was vulnerable and heavily pregnant and in her own home, and rightly, in our judgment, Mr Soppitt accepted that there was some degree of intimidation of her. However, it is important to note that once he had tried to kiss her on the mouth and that had not succeeded, he did not go further than that, and at the time when he was charged with this offence he made plain his abject apologies.
The submission is made to us that this sentence of three years was far too much and that sufficient credit was not given for the features which have been urged upon us, including the remorse shown, his plea of guilty and the fact that he had been out of trouble for so many years.
In passing the sentence the learned trial judge had said:
"This is a very serious breach of trust and, in my view, merits a sentence which is both deterrent and exemplary, to demonstrate to you and to others that conduct of this kind by tradesmen admitted to the house of a woman, where they are admitted to carry out repairs, will be regarded by the court as very serious."
We have considered the case on its totality and the decision of this Court is as follows. In our judgment the sentence passed by the learned trial judge was manifestly excessive. Accordingly the sentence of three years' imprisonment will be set aside and in its place, to reflect the particular circumstances of this offence, there will be a sentence of nine months' imprisonment. The order made under section 44 of the Criminal Justice Act relating to his release on licence will remain.
Under the Sexual Offenders Act 1997 the sentencing judge was required by law to specify the period during which this appellant's name should remain on the sex offender's register. By an oversight that was not done. We correct that matter now. His name will remain on the register for the period of seven years, which is the appropriate period relating to a sentence of nine months' imprisonment.
To that extent, and that extent alone, this appeal against sentence succeeds.
MR SOPPITT: My Lord, there is perhaps one matter that I urge your Lordships to consider. Under the Sexual Offenders Act, my Lords, there are, of course, requirements for registration relating to a number of offences. Could I refer your Lordships to page 1,735 of Archbold? Your Lordship sees registration provisions are, as I understand it, embraced by sections 1 to 4 of the 1997 Act. Your Lordship, the schedule of offences that are relevant for that are contained at Schedule 1 of the Sex Offenders Act 1997, referred to at paragraph 20-271c. My Lords, plainly over the page there at (vii), section 14 is included within that schedule, though, my Lords, it would appear that there is a proviso to that, and it is at subsection (2) of the Schedule. My Lords, it is at subsection (2)(b):
"Subject to subparagraph (3) below, paragraph (a)(iv) to (ix) does not apply where the victim of or, as the case may be, the other party to the offence was 18 or over;....."
My Lords, that is subject to the overriding section there at subsection (3) of that Schedule, where it reinstates the obligation to register where a defendant has been sentenced to a term of imprisonment for 30 months or more.
LORD JUSTICE ROCH: It is now below 30 months so you
say ----
MR SOPPITT: Your Lordships, yes. It seems there is no requirement therefore for registration in those circumstances.
LORD JUSTICE ROCH: It should have been done in the court below but not now that we have reduced the sentence to nine months.
MR SOPPITT: Indeed, my Lord, yes.
LORD JUSTICE ROCH: Very well. Then we will allow the appeal, reduce the sentence to nine months and we will delete the requirement to register.
MR SOPPITT: I am grateful, my Lord.
LORD JUSTICE ROCH: Thank you for pointing that out.
Mr Soppitt, in the last case we point out the reporting restriction that applies to cases of that sort, and we apply the reporting restriction to that effect.
© 1999 Crown Copyright