Case No: 201200039 A2
Neutral Citation Number: [2012] EWCA Crim 1222

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT PRESTON
HER HONOUR JUDGE P. BADLEY
T20110571
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 1 June 2012
Before :

LORD JUSTICE ELIAS
MR JUSTICE EADY
and
THE RECORDER OF LIVERPOOL
(Sitting as a Judge of the Court of Appeal Criminal Division)
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Between :

	DARREN LEE PENFOLD
	Appellant	
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	REGINA	Respondent	

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Richard M Hunt (instructed by Barrett & Nelligan) for the Appellant

Hearing date: 10 May 2012
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Judgment
Mr Justice Eady: 
1.	On 9 September 2011, in the Crown Court at Preston, this Appellant was convicted of three offences and, on 9 December of that year, he was sentenced by Her Honour Judge Badley in respect of (i) sexual assault, contrary to s.3 of the Sexual Offences Act 2003, (ii) administering a substance with intent contrary to s.61(1) of the same act and (iii) theft, contrary to s.1(1) of the Theft Act 1968.  In respect of the two offences under the 2003 Act, the Appellant was sentenced to concurrent terms of imprisonment for public protection.  The minimum term specified was six years (less 91 days spent on remand).  No separate penalty was imposed in respect of the theft.
2.	Having been convicted of an offence listed in Schedule 3 of the 2003 Act, the Appellant was required to comply with the provisions of Part II (notification to the police) indefinitely.  He will also be included in the relevant list by the Independent Safeguarding Authority in accordance with the Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009 (SI 2009 No 37).
3.	He now appeals against sentence by leave of Thirlwall J.
4.	The provisions of the Sexual Offences (Amendment) Act 1992 mean that the anonymity of the victim in this case is protected and I shall refer to her as Ms B.
5.	The Appellant was working as an aerial and satellite television installer.  He had done some work at the home of Ms B, who is a disabled lady living by herself in Blackpool and aged 84.  She had trouble with walking and was aided by sticks and by a stair lift.  In the course of his work, the Appellant had visited her on more than one occasion and finished what he was doing on 18 January 2010.  During the early evening of 27 January of that year, however, he called at her house again and stayed for some time with her.  Some alcohol was consumed.
6.	Ms B at some point seems to have lost consciousness while she was downstairs and next recalled finding herself in her bed upstairs.  Everything seemed “foggy” and she felt sick.  She also sensed some pain in her genital area and recalled saying “Stop it, leave me alone, I’m feeling sick”.  She could not at that point see anyone, but she was aware that somebody was in the room.  When she awoke in the early hours, she discovered that her clothing had been disturbed.  She found her trousers behind a pillow and her underwear was inside out.  She came to the conclusion that she had been drugged and, while unconscious, sexually interfered with.  She went downstairs and noticed that four bottles of alcohol were missing.  She contacted her son and the police were called.  
7.	Subsequent investigations revealed that the Appellant’s DNA was on a glass in Ms B’s bedroom.  There were traces of the “designer” drugs BZB and TFMPP found on a glass in the kitchen.  Traces of those two drugs were also found in Ms B’s urine the following day.  Those drugs have since been classified as Class C controlled drugs.  The Appellant’s DNA was also on Ms B’s underwear and hers was found in his fingernail scrapings.
8.	When interviewed, the Appellant admitted being at Ms B’s house and having a drink with her.  He said that she had gone upstairs and had then called down for him to leave, as she was feeling tired.  He claimed then to have gone home and denied any sexual assault.  
9.	In a second interview, the Appellant was unable to explain why his DNA should be on a glass in Ms B’s bedroom, but simply suggested that she might have carried it upstairs.  He also denied going into her bedroom.  He said that she had given him a bottle of champagne for taking away her old television sets and had agreed to swap a bottle of scotch whiskey for a bottle of Southern Comfort.  He could not explain how his DNA came to be found in her underwear.  He denied drugging her or even touching her.
10.	Ms B explained in a victim personal statement that she still suffered from physical effects and woke every night.  She was worried about people coming to her home and no longer knew who she could trust.  She was very nervous of strangers.  In passing sentence, the judge observed that this was a horrific attack on an elderly woman in her own home and cited the phrase “a pitiless, wicked crime”, from a reported case, as being equally apt in the circumstances before her.
11.	The Appellant’s previous convictions were at a fairly low level and there was nothing remotely comparable to the present case.  He had no previous convictions for sexual offences at all.
12.	The learned judge referred to the pre-sentence report, which had reached the conclusion that the Appellant met the dangerousness criteria relevant to the imposition of an extended or indeterminate sentence.  She added that it was difficult to see how there could be any more aggravating features present.  She referred, in particular, to the age of the victim, to the fact that there was a breach of trust and to the fact that the Appellant had used guile to sneak the drugs into her drink.
13.	Despite the fact that there was nothing comparable in his past record of offending, the judge added that the Appellant’s attitude towards the index offence meant that it would be a long process before the public could be shown to be safe from his activities.  She considered the possibility of a determinate sentence, but rejected it because of the risk to others.  Moreover, she concluded that the circumstances easily passed the four year threshold, so as to enable her to pass an indeterminate sentence for public protection.
14.	For administering a substance with intent, there would have been in her view a starting point of four years with a range of three to seven years.  Her sentence would have been seven years to reflect the nature and gravity of the Appellant’s intentions.  As to the sexual assault, she added that her sentence would have been one of five years imprisonment.  She concluded that the determinate sentence would thus have totalled twelve years, and no separate penalty would be imposed in respect of the theft.  The minimum term to be specified, therefore, was six years (less the time spent on remand).  It follows that the judge took the view that it had not been appropriate to view the notional determinate sentences as concurrent.  It is necessary to remember, in this context, that the maximum sentence for each of the two principal offences before her was one of ten years. 
15.	In fixing upon the appropriate sentence, the learned judge made it clear that she had read a number of letters about the Appellant and had taken them into account.
16.	The grounds of appeal were as follows:
i)	It was wrong to have found the Appellant “dangerous”, and the sentence should have been determinate.
ii)	The minimum term was, in any event, too long.  
iii)	The sentence for administering a substance with intent was too long in the circumstances of the case.
iv)	The determinate sentences should have been regarded as concurrent.
v)	It was said no regard had been given to the principle of totality.
17.	The single judge did not grant permission to challenge the finding of dangerousness and we are thus concerned primarily, it would seem, with the length of the notional determinate sentences, whether they should have been treated as being concurrent with one another, and with the principle of totality.  
18.	Nevertheless, in the course of his submissions, counsel sought to renew the Appellant’s application for permission to challenge also the finding of dangerousness.  Mr Hunt referred to Pedley, Martin and Hamadi [2009] EWCA Crim 840 and Lang [2005] EWCA Crim 2864.  He argues that the risk he poses is insignificant:  “Such risk as this Appellant poses to the public can be quite adequately managed by means of a determinate sentence, with an extended licence if the court deems it necessary.  Otherwise, unless the Appellant admits the offences, nothing else will change and his sentence will never end”.
19.	In the view of this court, however, that was a conclusion the Judge was entitled to reach because of the Appellant’s extraordinary behaviour.  It can hardly be disputed that the psychological harm incurred by the victim in this case can properly be regarded as “serious”.  It is reasonable, in the absence of any solid evidence to the contrary, to apprehend a significant risk that some other vulnerable person might be similarly targeted and so suffer serious harm.  It is true that the Appellant has never behaved in this way before.  Nor did he misbehave during the 18 month period for which he was on bail.  But it is not the sort of incident that can be readily explained away as a momentary lapse, or as being obviously an isolated incident.  It apparently involved an element of planning and determination.  
20.	This cannot be said to be on all fours, or even remotely similar to the facts in Xhelollari [2007] EWCA Crim 2052, where this Court held that, standing alone, a refusal by a convicted first-time sex offender to admit his guilt would warrant a finding of dangerousness.  In this case, it is quite apparent from the tenor of the sentencing Judge’s remarks that she based her finding of dangerousness on an overall picture of which the Appellant’s refusal to acknowledge guilt was but a part.  That conclusion, as well as her conclusion that it would be a long time before the public would be safe from the Appellant, were ones which, on all the evidence, she was entitled to reach.
21.	In relation to the notional determinate term, we have borne in mind here, as we have said, the statutory maximum sentences laid down by Parliament in respect of these two serious offences, to which we have already referred.  We bear in mind also the fact that these offences formed part of a continuum of wrongdoing on the same occasion.  Against that background, we have come to the conclusion that it would have been more appropriate to treat the determinate sentences as being concurrent with one another.  Accordingly, we conclude that the minimum term specified was too long.  We therefore quash the sentence.
22.	It is necessary, however, properly to reflect the gravity of the Appellant’s wrongdoing, albeit within the framework of the maximum sentences fixed by Parliament.  Also, as the judge reminded herself, she was not sentencing for an offence of rape and any determinate sentence would have to take that into account.
23.	For the assault, we think that the appropriate determinate sentence would have been one of nine years.  On the other hand, we could not criticise the notional term of seven years selected by the judge in respect of administering the drugs.  In the result, the minimum term will be 54 months (less 91 days served on remand).  That is a reduction of 18 months and to that extent only this appeal succeeds.