Neutral Citation Number: [2009] EWCA Crim 216
Case No: 200805732 A7
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM 
HHJ CROCKER
CROWN COURT GUILDFORD
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 20th February 2009
Before:

THE HON MR. JUSTICE BLAKE
and
THE HON MR. BURNETT
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Between :

	REGINA		
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	LUIS COTILLA		

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Mr. MA Kennedy for the Crown
Daniel Higgins for the Applicant

Hearing date: 13th February 2009
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Judgment

The Hon Mr Justice Burnett:
1.	This appeal again raises the problem of what this Court should do when it becomes apparent that the sentencing Court failed to impose the sentence it was in fact obliged to, and instead effectively sentenced under a regime which had been superseded. It provides a further example of difficulties resulting from the dangerousness provisions in the Criminal Justice Act 2003 [“the Act”] as originally enacted. Those provisions have now been substantially amended by the Criminal Justice and Immigration Act 2008. So this appeal is concerned with provisions whose active life is now limited.

2.	This is an application for permission to appeal out of time against a sentence imposed on the 22 March 2007 at the Crown Court at Guildford by His Honour Judge Crocker, the applicant having earlier pleaded guilty to one count of attempting to meet a child following sexual grooming. We indicated in the course of the hearing that we would extend time. The particulars of the offence were:
“Luis Cotilla, a person over the age of 18 years, having attempted to communicate on at least 2 occasions with a 12 year old girl and on 22nd September 2006 attempted to intentionally meet that child not reasonably believing that she would be aged 16 years and intending to do anything to or in respect of her, during or after the meeting, which, if done, would involve the commission by him of a relevant offence”

3.	The maximum penalty for the complete offence of grooming under section 15 of the Sexual Offences Act 2003 is 10 years imprisonment.

4.	The Judge imposed an extended sentence of a total of 10 years, made up of 3½ years imprisonment with an extended licence period of 6½ years), under s.227 Criminal Justice Act 2003. 178 days of time spent on remand were ordered to count towards sentence. In the course of his sentencing remarks the judge indicated his understanding that the applicant would serve half of the determinate part of the sentence and then be released on licence. 

5.	Having been convicted of a sexual offence listed in Schedule 3 of the Sexual Offences Act 2003, the appellant was required to comply with the provisions of Part 2 of the Act (Notification to the police) for life.  Additionally, an indefinite Sexual Offences Prevention Order (“SOPO”) was imposed for life, subject to further order. It is unnecessary to set out the detail of the order because it not the subject of challenge in this application. It is sufficient to observe that it was crafted with skill and care by the learned judge to provide extended protection to young girls in the face of overwhelming evidence that this applicant’s sexual interest was likely to remain a danger to them for his lifetime. It will restrict, for example, his use of mobile telephones, internet access and association with young girls. The judge had in mind the need for a strict order to augment protection that might be provided during the licence period and continue protection after the licence period had expired.

6.	There was a common misunderstanding of the correct sentencing provisions between the Judge, report writers and counsel then appearing, so the dangerousness provisions the 2003 Act then in force were not accurately applied to this applicant. As a result much went wrong in the sentencing exercise. Those provisions, since amended but not retrospectively, are found in Chapter 5 in sections 224 to 236. 
7.	Section 224 defines a ‘specified offence’ and a ‘serious offence’. The applicant was convicted of a serious specified offence, namely sexual grooming contrary to section15 of Sexual Offences Act 2003. It is a specified sexual offence under Schedule 15 to the Criminal Justice Act 2003 and a serious offence because it carries a maximum penalty of 10 years imprisonment. The Learned judge concluded that the applicant presented a 
‘significant risk to the public, namely children, of serious psychological injury caused by [the applicant] committing further offences specified in Schedule 15.’ 

8.	 In the face of his behaviour and the reports available to the judge that finding of dangerousness was inevitable. By virtue of the provisions of section 225 of the 2003 Act the Judge was in fact obliged to impose a sentence of imprisonment for public protection [“IPP”], because (a) the applicant had been convicted of a specified offence; (b) the offence was also a serious offence; and (c) he was dangerous. Instead, he passed the extended sentence of imprisonment. That mandatory requirement was the subject of much academic and judicial criticism to which Parliament has responded. The provisions of the Criminal Justice and Immigration Act 2008 now confer a discretion on the sentencing judge in respect of the sentence to be imposed. As we have indicated, that new regime had no impact on this sentencing exercise.
9.	The power available to impose an extended sentence in respect of offences committed by adults after Part 5 of the 2003 Act came into force is found in section 227. The earlier regime established by section 85 of the Powers of Criminal Courts (Sentencing) Act 1998 was replaced in respect of such offences. Section 227 had no application to serious offences which are also specified offences. 
10.	The correct sentence here should have been IPP with a specified minimum custodial term. The question thus arises whether this Court has power to substitute the mistaken sentence with an IPP and, if not, whether it can adjust the extended sentence should there be any underlying difficulties with its terms. This was an issue considered by this Court in R v Reynolds and others [2007] EWCA Crim 538 in which a series of 8 cases where the provisions of Part 5 of the 2003 Act had been misapplied were heard.  In the judgment of the Court given by Latham LJ, following a review of the statutory provisions, the question: ‘What happens if things go wrong’ was extensively discussed. Between paragraphs [7] and [16] of his judgment the powers of the Crown Court to correct an error are considered and there is discussion of the Attorney-General’s power to refer an unduly lenient sentence to the Court of Appeal. Neither happened in this case. In paragraph [17] of the judgment, Latham LJ recognised that:
“It is where the error in favour of the offender emerges as a result of an appeal by the offender, that the real difficulties arise, as exemplified in some of the present cases. If it becomes apparent during the course of the appeal that the sentencing court has failed to appreciate, for whatever reason, that either a mandatory sentence should have been imposed, or alternatively an indeterminate sentence should have been imposed as opposed to an extended sentence, what should this court do?”
11.	 That is precisely what has happened in respect of this applicant. His application for permission to appeal was founded on a number of arguments, to which we will return, but not that the extended sentence was wrong in principle.  It was the knowledge and skill of those in Criminal Appeal Office, to whom both we and the parties are indebted, that resulted in this point being picked up. In Reynolds it was the submission of the Crown that in such circumstances the sentence imposed by the Court was ‘unlawful’ and so had to be quashed and then substituted with a lawful sentence. That submission was rejected because it would amount to dealing with an appellant more severely than in the court below, which is prohibited by section 11(3) of the Criminal Appeal Act 1968. The reasoning of this court is found between paragraphs [18] and [23] of the judgment:
18.	In one sense, the sentence is an "unlawful" sentence which this court would normally feel obliged to correct. But in the two scenarios to which we have just referred, the necessary consequence would be to increase an ordinary determinate sentence to an extended sentence or an extended sentence to an indeterminate sentence. The powers of this court are constrained by the provisions of section 11(3) of the 1968 Act which is in the following terms: 
"On an appeal against sentence the Court of Appeal, if they consider that the appellant should be sentenced differently for an offence for which he was dealt with by the court below may – 
(a) quash any sentence or order which is the subject of the appeal, and
(b) in place of it pass such sentence or make such order as they think appropriate for the case and as the court below had the power to pass or make when dealing with him for the offence.
But the court shall so exercise their powers under this sub-section that, taking the case as a while, the appellant is not more severely dealt with on appeal that he was dealt with in the court below."
19.	It is common ground before us, and in particular it is accepted by counsel instructed on behalf of the respondent, Mr Perry QC, to whom we are immensely grateful, that the imposition of a mandatory extended sentence by this court where the sentencing court had imposed a determinate sentence, or the imposition of an indeterminate sentence where the court had imposed either a determinate sentence or an extended sentence, would almost invariably mean that the appellant was being dealt with more severely than he had been by the sentencing court. In 1968 there was, in effect, only one mandatory sentence, namely life imprisonment for murder. Since then, mandatory sentences have proliferated. The statutory cap on the powers of this court in section 11(3) of the 1968 Act sits uneasily with these changes. 
20.	In most cases, of course, those who do not receive the mandatory sentence are unlikely to appeal; and if they do appeal, they usually find out the problem in time to abandon their appeals. But in the case of offences to which Chapter 5 applies, there are many appellants whose appeals are essentially based on a challenge to the judge's conclusion as to whether or not the criteria of dangerousness have been met. In other words they are seeking to avoid being caught by the provisions of Chapter 5 at all. If an appellant appeals on this basis against an extended sentence which is wrongly imposed for a "serious" offence, is the court bound by reason of the mandatory provisions of section 225 or 226 of the 2003 Act to impose an indeterminate sentence, or is the court precluded from doing so because to do so would be beyond the powers of the court under section 11(3) of the 1968 Act? We have come firmly to the conclusion that section 11(3) of the 1968 Act prevails. This court is a court created by statute, and only has the powers given to it by the statute. The only express powers that this court has to increase sentences are the power contained in section 36 of the 1988 Act and the limited power in section 29 of the 1968 Act to give directions as to the loss of time. Otherwise the court is, as we have said, constrained by section 11(3). 
21.	Mr Perry, in seeking to help this court, submitted that the wording of section 11(3) suggests that the cap could only apply to discretionary sentences. A sentence which is an "unlawful" sentence, in that the court has failed to comply with its duty to impose the mandatory sentence, is a sentence which must be quashed, in which event this court is bound to impose the "appropriate" sentence, namely the mandatory sentence. 
22.	The difficulty with that argument is that, as we have indicated, the only power that the court has to interfere with the sentence is the power contained in section 11(3) (subject to the two exceptions to which we have already referred) and that section requires us to apply the cap. Further, it seems to us that the justification for the application of the cap to appeals against sentence generally is equally applicable to appeals against sentence involving consideration of the mandatory sentence provisions of any statute. The 1968 Act was preceded by the Criminal Appeals Act 1966. This repealed the power given by the Criminal Appeal Act 1907, its predecessor, to this court to increase sentences. The major justification for this change was that it was considered that the power to increase sentences was a significant deterrent to defendants who wished to challenge their sentence. As we have said, in the present context many appeals are essentially based upon the argument that the judge was wrong to conclude that the appellant met the criteria of dangerousness. If the consequence of seeking to persuade the court of that, is to risk an increase in sentence from an extended sentence, say, to an indeterminate sentence, the very mischief which the 1968 Act was intended to avoid would be reintroduced by a side wind in this category of case. 
23.	For these reasons, we are satisfied that section 11(3) of the 1968 Act precludes this court from interfering with any sentence, even if the provisions of Chapter 5 mandate a different, ex-hypothesi more severe, sentence. Although this means that there will be sentences which will be "unlawful" in the sense that the court has failed to apply the mandatory sentence, that does not seem to us to create difficulty or absurdity. If the sentence in question had not been appealed, the sentence would have been a perfectly valid and effective sentence. As Lord Scarman explained in R –v- Cain [1985] 1AC 46, at page 55, a sentence of a Crown Court cannot be a nullity. It remains an effective order unless and until varied or quashed. An extended sentence, for example, passed when there should have been an indeterminate sentence, therefore remains a perfectly valid and effective sentence. Further, unlike, for example, a detention and training order for three years, which is beyond the powers of the court, an extended sentence is within the powers of the court. In that sense, also, it is not an "unlawful" sentence. 

12.	Having reached the conclusion that the statutory regime which governs the powers of this Court did not allow the sentence which should have been passed to be substituted for the erroneous sentence, Latham LJ went on to consider what in fact should happen. The conclusion of the Court is found in the next paragraph of the judgment:
“24.	It seems to us that in those circumstances, where the judge has properly concluded that the criteria of dangerousness have been met, this court should respect that finding so far as it can. As it is, in our view, unable to substitute the mandatory sentence where the Crown Court has failed to impose it, this court in the exercise of its discretion, should not interfere with the sentence in fact imposed, even though that results in a sentence which is not in accordance with Chapter 5. The only other solution would be to quash the finding that the criteria of dangerousness have been met and substitute a determinate sentence. We consider that to be a solution which would not properly reflect the intention of Parliament or respect the findings of the judge.”

13.	That conclusion flows from the wording of section 11(3) which shows that the court may quash a sentence. At first blush this conclusion would suggest that this Court has the choice of substituting a determinate sentence or leaving the defective extended sentence in place. However, it becomes clear when attention is paid to how the court dealt with the individual cases before it that its approach was more subtle. In the case of Webb an extended sentence of 13 years was imposed made up of a 5 year custodial period and an extension of 8 years. The sentence should have been one of an IPP. There was an additional problem, however, because the maximum extension period in respect of a violent offence is only 5 years. Furthermore, it was submitted that the 5 year custodial period was too long. The Court reduced the extension period to 5 years but considered that the custodial term was not excessive. The importance of this illustration is that it demonstrates that the Court considered that its conclusion in paragraph 24 of the judgment enabled it to adjust the extended sentence when there is good reason to do so. It did not consider that the language of section 11(3)(b), which allows this Court to impose a different sentence only if the court below had power to do so, presented any obstacle to such a course. Accordingly we conclude that we are able to consider the submissions advanced on behalf of this applicant that the custodial period of 3 ½ years imposed as part of the extended sentence was manifestly excessive, and that the extension period was also too long.
14.	We turn to the facts. In 2006 an internet chat room entitled ‘No Adults’ was set up by a retired police officer employed by the News of the World newspaper. The chat room was intended to lure people who might be interested in sexual activity with underage girls. The retired police officer created an identity which used the name ‘Charlotte12’ and corresponded with others in the chat room. Charlotte12 never initiated contact and was neutral in what was said so as not to provoke those contacting her into saying something they otherwise might not have said. The applicant contacted Charlotte12 via an instant messaging facility and chat sessions took place between them. The applicant introduced himself as Luis, a 39 man from Spain, living in Epsom. He is now in fact 63. Discussions continued and became overtly sexual. The applicant indicated he wanted to have sexual intercourse with Charlotte and would teach her how to perform oral sex, despite his belief that she was only12, and fully recognising in the exchanges that he was proposing unlawful activity. Sexually graphic exchanges continued. A meeting was arranged for 22nd September 2006 at Epsom railway station. The police had been made aware of the News of the World investigation and travelled on the train with an 18 year old member of staff from the newspaper who was posing as Charlotte12. The applicant was arrested.  His home was searched and chocolates were found in his kitchen and a large soft toy on his bed. There was a t-shirt hanging near the bed similar to that which the applicant had suggested earlier he would like Charlotte12 to wear. A tub of Vaseline was also found. 

15.	It considering the appropriate sentence in this case it must be remembered that the applicant was convicted of an attempt, rather than the complete offence. Furthermore, he was a man of good character who pleaded guilty. He had fallen for a sting operation which resulted in national publicity and thus additional humiliation for him.
16.	In support of his submission that the custodial period of 3 ½ years was too long, Mr Higgins has drawn our attention to two cases in this court namely MS [2008] EWCA Crim 600 and Barnett [2008] 1 Cr App R (S) 61. The latter is an almost identical case of a sting where this court described a sentence of 30 months as ‘far too long’. The appellant was a man of good character who had pleaded guilty to an offence arising from a similar sting. A sentence of 30 months accords with the definitive guideline for a grooming offence because the starting point for the substantive offence, rather than an attempt, after a contested trial for a man of good character is 4 years. That would suggest a starting point of 2 years and 8 months (32 months) on a plea. However, the sentence for an attempt, rather than the substantive offence, must be significantly less. In Barnett this Court substituted the sentence of 30 months with one of 18 months. 
17.	An additional feature of the applicant’s case is that the Judge indicated in his sentencing remarks that he would serve half of the 3 ½ year sentence and then be released. That was the position under the pre-2003 Act regime. However, section 247 of the 2003 Act as originally enacted made release on licence during the custodial period of an extended sentence a matter for the Parole Board. In short, a prisoner serving the custodial period of an extended period became eligible for release at the half way stage, but only if the Parole Board so recommended. This applicant has not been released on licence and so has spent a total of about 29 months in custody, taking account of the time spent on remand. That is the equivalent of almost a 5 year determinate sentence.
18.	The release provisions for those serving extended sentences have also been changed by the Criminal Justice and Immigration Act 2008 for those newly sentenced to remove the involvement of the Parole Board and to return to the previous position of release at the half way stage.
19.	We consider that there is force in Mr Higgins’ submissions that the custodial period was set too high in this case. In our judgment the custodial term was excessive and the appropriate term should be one of 18 months. 
20.	We turn then to the licence period. Mr Higgins submits that if the custodial term is reduced an extended licence of 6 ½ years would be disproportionate and place undue restrictions on this applicant’s freedoms. He emphasises that the SOPO in this case is comprehensive and of long duration. Therefore, he submits, the members of the public who might be vulnerable to the applicant’s predatory instincts, should those persist, are adequately protected by that order.
21.	In the particular circumstances of this case, where on the Judge’s findings there should been an IPP and a licence period (subject to application) of an indefinite duration, we cannot accept that this licence period was excessive. We do not consider that the terms of the SOPO eliminated the need for a substantial licence period.

22.	 There is a difference between being subject to a SOPO and being on licence. When on licence conditions can be imposed which would include the need to maintain contact with the authorities in a way which is designed to give continued support to an offender and reduce the chances of reoffending. A breach of licence condition can be visited with recall, rather than prosecution which is necessary when there is an alleged breach of a SOPO. The reports prepared in this case show a very real risk for the future, a risk which the sentencing judge was careful to try to guard against by the extended licence and a detailed SOPO. 
23.	In these circumstance we give permission to appeal and allow the appeal to the extent of quashing the custodial period of 3 ½ years and substituting a custodial period of 18 months. The time served on remand counts towards that custodial term. As will be apparent, given the time spent in custody by the applicant, he will be released immediately. The extended licence period runs from the end of the custodial period we have imposed.