Neutral Citation Number: [2009] EWCA Crim 999
Case No. 2008/05918/A6
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Tuesday  28 April 2009

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)

MR  JUSTICE  DAVID  CLARKE

and

MR  JUSTICE  WYN  WILLIAMS
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R E G I N A

- v -

SIMON  TYLER  WILSON
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Mr A Polson appeared on behalf of the Applicant

Miss C Briscoe appeared on behalf of the Crown
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J U D G M E N T

THE LORD CHIEF JUSTICE:  

1.  On 5 September 2008, in the Crown Court at Blackfriars, Simon Wilson pleaded guilty to attempted rape (count 1), wounding with intent (count 2) and causing a person to engage in sexual activity without her consent (count 3).  On 10 October 2008 he was sentenced by His Honour Judge Marron as follows: on counts 1 and 2, to life imprisonment pursuant to section 225 of the Criminal Justice Act 2003 (with an order that a whole life term should be served), and on count 3 to five years' imprisonment, to run concurrently.  Having been convicted of an offence listed in Schedule 3 to the Sexual Offences Act 2003, the applicant was required to comply with the notification provisions contained in that schedule.

2.  The applicant's application for leave to appeal against sentence has been referred to the full court by the Registrar.  We grant leave.

3.  The facts can be briefly summarised.  The appellant was born in 1957 in the United Kingdom.  His family emigrated to Australia when he was a boy.  While he was in Australia he acquired an extensive criminal record, with 17 previous court appearances for 75 offences which included both opportunistic and acquisitive offending.  However, they all pale into insignificance when set against a conviction in July 1985 for rape and grievous bodily harm.  The victim was an elderly lady who was repeatedly raped by the applicant in her home.  After he had raped her, he attacked her violently as she lay helpless on the ground.  For these crimes the appellant was sentenced to ten years' imprisonment.  In due course he was released on licence.  Then, during the early period of his licence, another attack was committed by the appellant on another defenceless, elderly woman who was beaten to death.  The appellant used his fists on her.  After her death, he removed her clothing and left her body naked in a park.  He re-visited the scene on two occasions apparently to determine whether her death had been discovered.  In July 1992 he was sentenced to life imprisonment for that murder.  

4.  In January 2008 he was released from that sentence and an order was made that he should be deported back to this country.  The Metropolitan Police were informed.  On 15 January 2008 the appellant returned to the country of his birth.  He was questioned and informed that he would be monitored under the Multi Agency for Public Protection, but he was not made subject to the Sex Offenders Register.  He showed every apparent sign of co-operation.  He expressed a willingness to be supervised and volunteered to provide samples of his DNA.  Temporary housing was found for him in the Borough of Newham.

5.  We turn to the instant offences.  On 13 April 2008, the 71 year old female victim visited a friend.  At about 10pm she left to go home.  She waited at a bus stop.  It appears that the appellant targeted her while she was waiting at the bus stop.  The first bus that came was very crowded and she decided to wait for the next one.  The appellant did not board the first bus either.  Eventually the victim got onto a bus in the Charring Cross Road.  The appellant boarded the same bus and sat fairly close to her.  At the end of her journey she got off the bus at the Tottenham Court Road.  The appellant also got off the bus.  He followed her as she walked down the street.  When she reached her home she approached her front door with her key in her hand.  She was grabbed by the appellant around her neck.  He held a knife in one hand and pointed it at her face.  He told her to be quiet.  The victim was so terrified that she lost her voice for a few moments.  The appellant called her a "bitch" and punched her repeatedly in the face.  He asked if she had a husband and children.  She said that she had.  He told her that if she screamed or shouted, she would never see them again.  He called her a "bloody bitch" and punched her very hard in the face.  She asked him to leave her alone.  He said that if she shouted he would kill her.  The appellant used his knife to cut the victim's clothes from her body.  He forced her to handle his penis.  She took his penis into her hand for fear of what would happen to her.  He told her to go to her knees so that he could put his penis into her mouth.  She said that she was physically unable to get down onto her knees.  She began to scream.  He punched her in the face.  He used his knife to cut her clothes from her neck to her mid-body area.  He insisted that she touch his penis.  She was in no doubt that he wanted to have sex with her.  She tried her best to resist him.  She started to scream and he cut her face with the knife.  She fought him off and grabbed hold of the knife.  As a result she sustained a very serious laceration to her hand.  The attack stopped because two boys disturbed the appellant.  The victim later said that she was convinced that without the arrival of the two boys she would have been left for dead.  Her cries were heard by people in the street.  They went to assist.  They found her in a distressed state, collapsed on the doorstep.  The emergency services were called.

6.  The victim sustained serious injuries, including a 5cm cut to the left cheek, bruising to her face and body, black eyes, a 10cm cut to the palm of her left hand, and two smaller cuts to the middle part of her ring finger.  A fracture of the right cheekbone was found when she was X-rayed later in hospital.  She was admitted to hospital for surgery to her hand to repair the wound and for the damage to her nerves and tendon to be assessed.  She was an inpatient for a while at the Maxi Facial Department so that doctors could investigate the cut to her face and the broken bone which underlay that cut.  

7.  By the time of the hearing before Blackfriars Crown Court the victim continued to suffer from physical disabilities with painful sensation in the fingers of her left hand and restricted movement.  Unsurpisingly, there is also psychological injury.  This elderly lady now lives in fear in her own home.  Her children want her to move away from the home in which she is fearful.  She, understandably, does not want to leave the home in which she has lived for 40 years. 

8.  CCTV footage showed the appellant on the relevant bus and showed him following the victim.  He was arrested on 22 April 2008.  His car was searched.  A knife was found in it.  At his address a black folding knife was seized.  Blood found upon it provided a DNA profile match with that of the victim.

9.  In interview the appellant made no comment to any questions.  He provided a prepared statement.  He said that he could not remember his movements on the day.  He said that the knife found in his room had never left it.  

10.  The pre-sentence report acknowledged that the appellant did not attempt to deny the offence.  He accepted that he had committed the attack, although he could not recall much about it or why he had committed it.  The author of the report regarded him as at a high risk of re-offending and that he posed a significant risk of serious harm to female members of the public.  He understood that he would receive an indeterminate sentence.  He expressed his willingness to participate in a Sexual Offending Treatment Programme.

11.  In his sentencing remarks the judge set out the history of the appellant's sexual crime in 1985 in Australia and the circumstances in which he was convicted of murder in 1992.  He noted the similarity in features between all three cases and he expressed the view that on this occasion the victim was "singularly fortunate to survive with her life".  He was extremely concerned about what would have happened if the attack had not been brought to an end by the interruption of the two boys and by the victim's continued resistance to the extent that she grabbed the blade of a knife in order to protect herself.  The judge expressed the view that the appellant was "exceptionally dangerous" and that his offending was "exceptionally serious".  We agree.  The judge addressed the relevant statutory provisions and in particular how the circumstances of the offences committed by the appellant in 1985 and 1992 might bear on his sentencing decision in the context of section 143(2) of the Criminal Justice Act 2003.  He concluded that there was a significant risk of the commission of further specified offending, as well as a significant risk of serious harm being caused to members of the public.  Accordingly, he concluded that the appellant should be imprisoned for life.  Having reflected on the relevant provisions, he concluded that no order should be made in respect of early release.  He observed:

		".... in sentencing you .... to life imprisonment, that is precisely what it means.  The probability is you will spend the rest of your natural life in custody."

12.  It is conceded by Mr Polson that the appellant satisfied the dangerousness criteria for the purposes of section 225 of the 2003 Act.  Indeed it was not argued either in the Crown Court or before us that a life sentence was inappropriate.  

13.  The argument on behalf of the appellant was directed to the whole life order.  The submission was based on an analysis of the statutory framework to be found in sections 269(4) of the 2003 Act, paragraph 4(2) of Schedule 21 to the 2003 Act, the Practice Direction (Crime: Mandatory Life Sentences) (No 2) [2004] 1 WLR 2552, and the early release provisions as they applied.  The argument is structured around the proposition that, taken on their own, the offences committed by the appellant in April 2008 in England, serious as they were, were not so serious that a whole life term was justified; and that the appellant's previous convictions, again serious as they were, were not of immediate relevance -- Mr Polson's phrase, "marginal relevance" is an understatement -- but were relevant only to the issue of the potential danger that the appellant might represent.  Even if, on all the evidence, he represented a continuing long-term and serious public danger, that aspect was addressed by the life sentence itself.  The contention is that a specific minimum term was required.  Once that term was fixed, the safety of the public would be procured by the life sentence.  Any release would be subject to the decision of the Parole Board, which has the responsibility to protect the public.

14.  We accept the argument that, even when a mandatory life sentence is required, a whole life order is very rarely made.  The same holds good in the case of a discretionary life sentence.  It remains a sentence of last resort for cases of the most extreme gravity.  In our judgment this was a very serious offence indeed.  The judge was right to approach it in that way.  We also agree with the submission -- and the judge approached the sentencing decision on this basis -- that, taken on their own, these offences in April 2008 would not justify a whole life term.  However, these crimes were not isolated.  They were committed, shortly after his return to the community, by a man with a lengthy criminal record which included offences of the rape of, and the murder of, elderly females. 

15.  It is unnecessary in the course of this judgment to set out the provisions of section 143(2) of the 2003 Act, which embodies common law sentencing principles.  It is clear that there was a link between the instant offence and the earlier offences of rape and murder.  The facts speak for themselves.  Although the time since they were committed is now long past, the fact is that while the appellant was in prison he had no opportunity to commit such crimes.  However, he committed both the murder and the instant crimes within a very short time of his release from the sentences he was serving. 

16.  Taking all these matters into account, in our judgment each of the earlier offences is properly to be treated as a serious aggravating feature of the instant very serious crimes.  In short, the seriousness is significantly greater because they were committed by the same man who had committed the earlier offences.  Therefore they were relevant to the decision that the sentencing judge had to reach.  Nevertheless, they needed to be approached with caution proportionate to the fact that the appellant is not being re-sentenced for those earlier offences.  He was being sentenced, and we must approach the case on the basis that he is only to be sentenced, for the offences he committed here in April 2008.

17.  We have no wish to minimise these horrific offences.  We have set out their circumstances in graphic detail.  Without minimising them, but after reflecting on sentencing decisions in which a whole life order has been made in the context of a discretionary life sentence, we have concluded that the punitive element of the sentence should be fixed by the court.

18.  The sentence must have two distinct features.  First, the appellant's criminal record requires the closest possible attention to public safety.  The sentence of life imprisonment imposed by Judge Marron, which we endorse, is designed to protect the public from the appellant.  He must not be released until it is shown that he no longer represents a threat to public safety.  It is right that we should add that, on what we can see at present, the day may never arise when it would be right for him to be released.  He may well remain in prison until extreme old age or incapacity or death overtake him.  The sentence of life imprisonment in relation to counts 1 and 2 will therefore stand.

19.  After making every allowance for the guilty plea in what seems to us to have been a very strong case indeed, we shall approach the punitive element of the sentence now to be served by assessing it at twenty years.  To reflect the term which would otherwise be served, we must take half of that.  We shall order a minimum period of ten years to be served.  Credit will be given to the appellant under section 240 of the Criminal Justice Act 2003 for time spent in custody on remand.  To that extent this appeal will be allowed.

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