Case No: 201505183/A6
Neutral Citation Number: [2016] EWCA Crim 1034
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WINCHESTER CROWN COURT
His Honour Judge Brodrick
T20060264 & T20067168
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 20 July 2016
Before :

LORD JUSTICE TREACY
MRS JUSTICE LANG DBE
and
SIR ALISTAIR MACDUFF

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Between :

	IAN DAVID GRAY	Appellant	
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	REGINA	Respondent	

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Michael Biggs for the Appellant
Simon Heptonstall (instructed by the Crown Prosecution Service) for the Respondent

Hearing date : 30 June 2016

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Judgment
Mrs Justice Lang : 
1.	On 16 October 2006, in the Crown Court at Winchester, the Appellant pleaded guilty to two offences of sexual assault, contrary to sections 3 and 7 of the Sexual Offences Act 2003 (“SOA 2003”). 
2.	On 12 February 2007, he was sentenced to two indeterminate sentences of detention for public protection (“DPP”), each with a minimum term of 2 years (less 133 days spent on remand). At the date of sentence, he was 16 years old (his date of birth is 28 May 1990). 
3.	The single judge granted leave to appeal, and extended the time for lodging the appeal. 
The facts
4.	The first offence occurred on 22 April 2006 when the Appellant approached a 6 year old girl in the street commenting upon her ripped skirt.  He made grossly inappropriate sexual remarks to her, tore her skirt further, and touched her in the area of her knickers.  Fortunately someone intervened to stop him.   
5.	The second offence occurred on 3 September 2006 when the Appellant approached a woman in the street on the pretext of conducting a survey. She agreed, but as the questions continued and became more personal, she became uneasy.  The Appellant then asked her to hug him, and when she refused, he blocked her way with his arms so she could not get away.  He then grabbed her and said “give me a hug, you filthy bitch”.  He pushed her to the ground, straddled her, and put his hands over her nose and mouth, stopping her from breathing. He said he had a gun and would shoot her if she shouted out.  He put his hands on her breasts, slid his hands under her clothing, kissed her, and said he was “going to fuck” her.  Fortunately passers-by intervened and helped her escape.  
The law
6.	In considering the grounds of appeal, we have had regard to the guidance given by the Lord Thomas CJ in R v Roberts [2016] EWCA Crim 71, when hearing 13 appeals against sentences of imprisonment or detention for public protection, reminding us that the function of this court is only to review whether a sentence was wrong in principle or manifestly excessive on the basis of the material available to the sentence, and any further material admitted on appeal under well-established principles.  The Lord Chief Justice endorsed the case of  R v Johnson [2006] EWCA Crim 2486, [2007] 1 Cr. App. R. (S.) 112, in which Sir Igor Judge, then President of the Queens Bench Division said, at [11],  that this court will not normally interfere with the conclusions reached by a sentencer who has accurately identified the relevant principles, and applied his mind to the relevant facts, whether or not he has deployed language which is inconsistent with the precise language used in the leading case of  R v Lang [2005] EWCA Crim 2864, [2006] 2 Cr. App. R. (S.) 3.
7.	In our judgment, it follows that failings in the reasoning of the sentencing judge, or the manner in which he expressed his sentencing remarks, as alleged in this Appellant’s Grounds of Appeal, will only be material in so far as they may signal that the sentence passed was wrong in principle or manifestly excessive.   Such failings are not a free-standing ground of appeal, as they might be in a judicial review claim where the process of decision-making may be challenged.
8.	We also bear in mind that in Roberts, Lord Thomas CJ expressly rejected the submission that this court should now re-consider the appropriateness of IPP sentences which were lawful when originally imposed, either in light of the fact that the sentence was abolished in 2012, or because new information regarding the Appellant’s progress is now available, or because Article 5 ECHR is engaged.  
9.	The grounds of appeal are, in summary, that:
i)	The Judge erred in making a finding of “dangerousness”.
ii)	Alternatively, an extended sentence should have been passed, not a sentence of DPP.
10.	The Appellant did not proceed with the third ground pleaded, namely, that the notional determinate sentence was too long, accepting that it had become academic, since the minimum term had long since expired. 
11.	Section 226 Criminal Justice Act 2003 (“CJA 2003”)  provided, at the relevant time:
“226 Detention for life or detention for public protection for serious offences committed by those under 18
(1) This section applies where—
(a) a person aged under 18 is convicted of a serious offence committed after the commencement of this section, and
(b) the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences.
(2) If—
(a) the offence is one in respect of which the offender would apart from this section be liable to a sentence of detention for life under section 91 of the Sentencing Act, and
(b) the court considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of detention for life,
the court must impose a sentence of detention for life under that section.
 (3) If, in a case not falling within subsection (2), the court considers that an extended sentence under section 228 would not be adequate for the purposes of protecting the public from serious harm occasioned by the commission by the offender of further specified offences, the court must impose a sentence of detention for public protection.
(4) …
(5) …”
12.	Section 228 CJA 2003 provided, at the relevant time: 
“228 Extended sentence for certain violent or sexual offences: persons under 18
(1) This section applies where—
(a) a person aged under 18 is convicted of a specified offence committed after the commencement of this section, and
(b) the court considers—
(i) that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences, and
(ii) where the specified offence is a serious offence, that the case is not one in which the court is required by section 226(2) to impose a sentence of detention for life under section 91 of the Sentencing Act or by section 226(3) to impose a sentence of detention for public protection.
(2) The court must impose on the offender an extended sentence of detention, that is to say, a sentence of detention the term of which is equal to the aggregate of—
(a) the appropriate custodial term, and
(b) a further period (“the extension period”) for which the offender is to be subject to a licence and which is of such length as the court considers necessary for the purpose of protecting members of the public from serious harm occasioned by the commission by him of further specified offences.
(3) In subsections (2) “the appropriate custodial term” means such term as the court considers appropriate, which—
(a) must be at least 12 months, and
(b) must not exceed the maximum term of imprisonment permitted for the offence.
(4) The extension period must not exceed—
(a) five years in the case of a specified violent offence, and
(b) eight years in the case of a specified sexual offence.
(5) The term of an extended sentence of detention passed under this section in respect of an offence must not exceed the maximum term of imprisonment permitted for the offence.
(6) Any reference in this section to the maximum term of imprisonment permitted for an offence is a reference to the maximum term of imprisonment that is, apart from section 225, permitted for the offence in the case of a person aged 18 or over.”
13.	Section 229 CJA 2003 provided at the relevant time:
“229 The assessment of dangerousness
(1) This section applies where—
(a) a person has been convicted of a specified offence, and
(b) it falls to a court to assess under any of sections 225 to 228 whether there is a significant risk to members of the public of serious harm occasioned by the commission by him of further such offences.
(2) If at the time when that offence was committed the offender had not been convicted in any part of the United Kingdom of any relevant offence or was aged under 18, the court in making the assessment referred to in subsection (1)(b)—
(a) must take into account all such information as is available to it abut the nature and circumstances of the offence,
(b) may take into account any information which is before it about any pattern of behaviour of which the offence forms part, and
(c) may take into account any information about the offender which is before it.
(3) …
(4) …”
14.	The indecent assault offences for which the Appellant was sentenced were serious offences as defined in section 224 CJA 2003, as they were specified offences with a maximum sentence of 10 years or more.  
15.	The term “serious harm” was defined in Section 224 as “death or serious personal injury whether physical or psychological”.
16.	These provisions were comprehensively considered in R v Lang & Ors in which Rose LJ said:
“17. In our judgment, the following factors should be borne in mind when a sentencer is assessing significant risk.
(i) The risk identified must be significant. This is a higher threshold than mere possibility of occurrence and in our view can be taken to mean (as in the Concise Oxford Dictionary) “noteworthy, of considerable amount … or importance”.
…
	(iii) If the foreseen specified offence is serious, there will clearly be some cases, though not by any means all, in which there may be a significant risk of serious harm. For example, robbery is a serious offence. But it can be committed in a wide variety of ways many of which do not give rise to a significant risk of serious harm. Sentencers must therefore guard against assuming there is a significant risk of serious harm merely because the foreseen specified offence is serious. A pre-sentence report should usually be obtained before any sentence is passed which is based on significant risk of serious harm. In a small number of cases, where the circumstances of the current offence or the history of the offender suggest mental abnormality on his part, a medical report may be necessary before risk can properly be assessed.
	…
(vi) In relation to offenders under 18 and adults with no relevant previous convictions at the time the specified offence was committed, the court's discretion under section 229(2) is not constrained by any initial assumption such as, under section 229(3), applies to adults with previous convictions. It is still necessary, when sentencing young offenders, to bear in mind that, within a shorter time than adults, they may change and develop. This and their level of maturity may be highly pertinent when assessing what their future conduct may be and whether it may give rise to significant risk of serious harm.
…”
17.	In R v Pedley & Ors [2009] EWCA Crim 840, [2010] 1 Cr. App. R. (S.) 24, Hughes LJ disapproved of attempts to “re-write the statute” by re-defining “significant risk” and endorsed Rose LJ’s description of “significant risk” in Lang at [17(i)], saying “[t]hat was not to substitute a different expression for the statute but was and remains a helpful indication of what kind of risk is in issue.”
18.	We do not consider that the Court of Appeal in R v JW [2009] EWCA Crim 107, [2009] 2 Cr. App. R. (S.) 94 intended to introduce a more stringent statutory test for defendants under 18, namely, “a very grave risk”.   In that case,  Dobbs J. said:
“26 (iii) With regard to indeterminate sentences, the Youth Justice Board has recommended that in the case of youths, save in certain limited circumstances, a finding of dangerousness should not be made if the assessment is only a high risk, as opposed to a very high risk, of causing serious harm.”
“30….The rationale underlying the guidance from the Youth Justice Board, is that an indeterminate sentence, such as detention for public protection, is unnecessary save in cases of very grave risk, since the likelihood of change is inherent in youth.” 
19.	Those passages have since been cited with approval in R v RL & Ors [2011] EWCA Crim 1862, at [25] and R v W [2009] EWCA Crim 2858, at [7]. 
20.	In our view, Dobbs J. in JW was summarising her understanding of the guidance from the Youth Justice Board.  The Youth Justice Board gave guidance to youth offending teams (not courts) in 2006.  It set out the statutory test of “significant risk” and referred to the explanation in Lang cited above, and did not substitute a test of “very grave risk”.  It “anticipated” that courts would only assess a young person as dangerous if they had been assessed in the categories of “very high” or “high” risk of serious harm.   In advising on the assessment of risk by youth offending teams it stated (at p.10):
“‘Risk of serious harm’ categories
More detailed information on the four serious harm categories (low, medium, high and very high) can be found in the guidance section of Asset, and Managing Risk in the Community (TJB, 2005b).  The key principles which should determine the categorisation are:
-	That the behaviour being considered fits the Asset definition of serious harm
-	The likelihood of the behaviour occurring
-	The impact of such behaviour. 
It is anticipated that courts would normally only consider assessing a young person “dangerous” if s/he were regarded as being in the “very high risk” of serious harm Asset category.  There might also be a small number of other cases where - owing to specific or unusual circumstances -  young people in the “high risk” category are regarded by the court as “dangerous”.”
21.	We would be inclined to characterise this passage as guidance to probation officers on the court’s likely approach to sentencing, rather than a recommendation to judges, to whom the document was not addressed. Either way, it could not possibly change the statutory test to be applied by the courts, and did not purport to do so. 
22.	We note that the sentencing guideline ‘Overarching Principles – Sentencing Youths’, published in November 2009, confirmed the applicability of the statutory test to youths, and did not suggest a more stringent one.  It stated  at paragraph 12.12:
“There are rigorous statutory tests which must be satisfied before a court may conclude that a youth is a “dangerous offender” and requires sentence under the dangerous offender provisions in the Criminal Justice Act 2003….Criteria relating to future offending and the risk of serious harm must be assessed in the light of the maturity of the offender, the possibility of change in a much shorter time than would apply for an adult and the wider circumstances of the young person.”
23.	More recently, in Roberts, the Court of Appeal applied the statutory test to a 16 year old defendant, when upholding imposition of a DPP for an offence of  rape, finding that he “plainly presented a substantial risk of committing a further specified offence which might cause serious harm to the public” (at [118]).   
24.	Therefore we conclude that the court should apply the test of “significant risk” to defendants under the age of 18, not “a very grave risk”. 
Conclusions
25.	 In our judgment, the Judge was entitled to conclude that the Appellant met the criteria for a finding of dangerousness on the material before him. 
26.	Mr Regan, a probation officer, prepared a pre-sentence report and also attended the sentencing hearing.  He concluded that the Appellant was dangerous within the meaning of the CJA 2003, based on an assessment of his past offending, the index offences, how he presented in interview, and the psychiatric report.
27.	Mr Regan’s assessment was as follows:
“Assessment of Young Person
15.	Ian Gray received a Reprimand in August 2004 for Criminal Damage and a Warning for Battery in June 2005. The Criminal Damage related to an incident when he threw a stone and broke a house window. The Warning for the Battery is said to be related to Ian Gray throwing a deodorant can at his younger sister, …. He did not receive any form of early intervention.
16.	Ian Gray’s first conviction was on 18th May 2006 for Attempted Robbery which was committed 14 months earlier on 14th March 2005. He sustained his innocence of that offence until after he was found guilty at trial when eventually he disclosed to his then Social Worker that he had committed the offence. He demanded that the victim, a school boy, give him a hockey stick. When the victim declined his head was grabbed and pushed towards the ground. The victim believed that Ian Gray had a knife in his right hand. Ian Gray has always maintained that he had no knife.
17.	Ian Gray received a six month Supervision Order for that conviction and I became his Supervising Officer. Fifteen days earlier, on 25th April 2006, he was remanded into the Care of the Local Authority by Aldershot Magistrates’ Court in connection with the sexual offence against the six year old girl. He maintained his innocence of that offence until 7th June 2006 when he changed his plea to a guilty one. The remand into the Care of the Local Authority resulted in his placement at the Cornerhouse Children’s Home in Aldershot. Paragraph 11 and 12 of my Pre-Sentence Report of 28th June 2006 summarises some of the work which was undertaken as a result of the conviction for the Attempted Robbery. I remain of the opinion that by and large Ian Gray can respond to notions of “right” and “wrong” and concrete reasoning, on a one-to-one basis.
18.	Ian is also convicted for two offences of Common Assault and one of Criminal Damage. The offences occurred in the summer of 2006 and each one related to his behaviour at the Cornerhouse Children’s Home. He assaulted another resident twice and damaged the victim’s bedroom door. A worrying feature of one of the assaults is that the victim was sat on at one point and had difficulty breathing. Ian Gray will be sentenced for these convictions on 13th February 2006 at Aldershot Magistrates’ Court by the District Judge who decided to await the outcome of today’s sentencing knowing it to be linked to the consideration of the psychiatric report.
19.	The first of the sexual assaults, the one against the six year old girl, was committed almost seven months to the day after an alleged incident of an offence against a six year old with learning and speech difficulties. Ian Gray was allegedly suspected of removing the boy’s clothing in a park, placing them in a nearby bin, allegedly flicking the boy’s penis. This alleged event was thought to have taken place between 5.00 p.m. and 6.00 p.m. on Friday 23rd September 2005. The boy became cold and upset and the alleged perpetrator left him there. The boy was helped home by Ian Gray’s younger sister, …. When Ian Gray was confronted by his mother about the alleged incident he denied it and shouted abuse at his sister. The alleged incident was reported to the Police and an investigation did begin. It does not appear that the alleged incident proceeded to a full investigation by surrey Police.
20.	… The primary factors of concern in the pattern of offending behaviour consist of threats and physical violence towards either peers or minors and the emergent impulses towards illegitimate sexual gratification which it is now known includes unknown adult female.
…
Assessment of Risk to the Community
(including risk of re-offending and risk of harm)
22.	I assess Ian Gray’s risk of general offending to be at the low level. His personality is not fully developed and with the appropriate support in the community he could desist from minor offending.
23.	I do, however, assess Ian Gray’s risk of causing serious harm to be at no less than the medium level. This conclusion is premised on the assumption that he would be provided with specialist inputs wherever he is in the community and providing that he follows the specific advice given. Without an extraordinary high level of resource I would assess the risk to be at a high level. The issue of the imminence of serious harm being caused, would, in my opinion, become a probable one. Ian Gray has impulses of an aggressive and sexual nature which are wholly unacceptable and over which he has yet to demonstrate, empirically, that he can sufficiently control. I hope that he can do so. But, until then, I have no alternative other than to point towards the significant risk of dangerousness manifesting itself in the form of further offences which are likely to cause serious harm.
24.	I am concerned about Ian Gray’s mental health and I assess the risk of self harm or thoughts of suicide to be at the medium level. That could certainly rise to a high level in the event of him becoming identified with any self-harm or suicidal ideation. The problem is that unless he is placed in a specialist unit, which can observe his changing moods and help in directing his thinking, the risk of self-harm or suicide could become latent for a time and then seek expression.
Conclusion
25.	Ian Gray has entered early guilty pleas to the two Sexual Assaults. The first offence was conducted upon a six year old girl in April 2006. The second was in September 2006 and for the adult woman posed a strong sense of imminent danger to herself. She feared for her life. Whilst the six year old may not have, and probably did not fear for her life, the force with which Ian Gray carried out the second sexual assault actually indicates the wilfulness inherent in the sexually offending behaviour. At this time it is important to deduce that he cannot, sufficiently act upon the effects of his sexual fantasies or imaginings in such a way as to prevent himself from causing serious harm to either a female child or adult female. This deduction alone is enough for me to offer the Court the opinion that Ian Gray is a dangerous offender. I also offer the Court the view that in its consideration of the significant risk to members of the public such a risk exists.
26.	As a consequence of my conclusions I make no proposal for a community sentence. It is evident to me that the highest imaginable level of constraints from within the most highly supportive environment would be needed to begin to manage the high level of risk that Ian Gray poses. Such resources are not available to the Court for its consideration today as they have yet to be identified by Children’s Services.
27.	In any event Ian Gray is convicted of two serious and specified offences and my understanding is that the Court, once having determined the question of “significant risk” and the “dangerousness” issue will then first consider a sentence for the purposes of public protection.
28.	In the light of my own conclusions and now coupled with the benefit of liaison with Dr P Bester, I do propose an extended sentence of detention for the purposes of protecting the public. Such a sentence would punish Ian Gray and it is my belief that he will understand and accept that effect of a custodial sentence. It would be hoped that such a sentence will also have a deterrent effect. The fullest ramifications of the extended (licence) period may take a little time for him to understand. However, I do believe that he will quickly grasp what a breach would constitute.
29.	I am of opinion that the protection of the community must be the overriding consideration towards Ian Gray.”
28.	Dr Bester, consultant child and adolescent forensic psychiatrist, provided a report dated 8 February 2007.  He stated that the Appellant had displayed aggressive behaviour towards other children at school from an early age which led to him being excluded.  He was diagnosed as suffering from attention deficit hyperactivity disorder in 1998 and was on medication for this.  He had special educational needs with learning difficulties and an IQ in the low average range, possibly caused by a chromosomal disorder.  He attended a boarding school for children with educational and behavioural difficulties and had been under the care of the Child and Adolescent Mental Health Services. 
29.	Dr Bester concluded:
“9.6 	I have been asked to consider dangerousness and when considering the provisions of the Criminal Justice Act 2003 my understanding is the issues are whether there is a risk of serious harm (either death or personal injury) to the public in the future.
9.7	In my view, at the present time, Ian does pose a risk to vulnerable victims, possibly to children, as sexual assault is regarded as personal injury. He does not present as necessarily having paedophilic intentions but presents as having a poor understanding of what is appropriate sexual behaviour and it is in this regard that he needs extensive help. His strategy used on his adult victim demonstrated cunning, but also significant ineptness and poor social skills. Ian will need ongoing intervention from mental health services, including medication, and is going to need a great deal of psychosexual counselling in a way that he understands, in order to learn the norms and what is acceptable behaviour. He has demonstrated some ability to learn skills, judging from his presentation and his school reports.”
30.	After reviewing the details of the index offences, the Judge said:
“Mr Brown who appears on your behalf accepts that you are in terms of the Act dangerous, and in the light of what I have said about the offences themselves and what I have read in relation to you, I am quite satisfied that this is an appropriate concession for him to make.”
31.	Thus, dangerousness was conceded by the defence (properly so in our view) and so the Judge was not required to go into any further details about the basis for the finding that the Appellant was dangerous. In our judgment, the Appellant’s history and offending behaviour, together with the professional assessments of him, provided ample material upon which the judge could properly find that the criteria for dangerousness were met.  
32.	The Judge then went on to consider the appropriate sentence to pass. Although he did not set out the legislation in terms, he correctly summarised the thrust of it, saying,   “I must pass an extended sentence unless I come to the conclusion that it is not appropriate to do so”.  He then set out his reasons for not following the recommendation of Mr Regan:
“Mr Reagan, who wrote the Pre Sentence Reports and has taken the trouble to come to court today, has given evidence urging me to say that an extended sentence is appropriate in this case. I have come to a different conclusion, because it seems to me that there is no clear indication that you will mature sufficiently within the next eight years for you to cease to be a danger to the public. It is wholly uncertain. There is undoubtedly the potential for improvement over that period if you are properly treated and given appropriate courses. There is the hope that you will improve but there is complete uncertainty as to what the eventual outcome will be. And in that situation it seems to me that the interests of the public must outweigh your interests as someone aged 16 and a half, because I do not think in fact it would be in your interest to be released before it is safe and appropriate to do so, and I do not think it would be in your interest for a licence period to end at an arbitrary date when it may be that a much longer period of licence would be required. So the public interest and your interest coincide, and that means that the sentence must be one of detention for public protection.”
33.	In our view, the Judge had appropriate regard to Mr Regan’s view, hearing oral representations from him, as well as considering his detailed report.  The Judge gave valid and sufficient reasons for coming to a different conclusion. He was, of course, not bound to follow the recommendation of the probation service. This passage demonstrates that the Judge had clearly in mind the Appellant’s young age and the fact that he would change and develop.  He was clearly engaging with the question whether or not an extended sentence would be adequate for the purpose of protecting the public as required under section 226(3). The problem which the Judge identified was that it was not possible to predict how and when he would change and develop, given his deep-seated problems, and he might be automatically released on licence when he still represented a real risk to the safety of the public.  The Judge also rightly considered it was not in this Appellant’s interests to be released prematurely and then re-offend.  It is evident that he did not consider that it would be safe to release him at the end of the minimum term and that the Parole Board would be best placed to determine when it was safe to release him. We note that, although the minimum term expired in 2008, the Parole Board has not concluded that that he can be released, which retrospectively lends support to the Judge’s assessment. 
34.	The difficult task of assessing the risk to the public at a future date is one which is ultimately entrusted to Judges, not probation officers.  This was a decision by a highly experienced Judge, with sufficient material before him, and this court should not interfere with his exercise of judgment unless it is plainly wrong.  
35.	Contrary to the Appellant’s submission, we consider that the Judge’s sentencing remarks on all the issues were clear and well reasoned.  We bear in mind that none of the authorities cited above, apart from Lang and Johnson, had been decided in February 2007 when the Judge was conducting this sentencing exercise.  
36.	For these reasons, the appeal is dismissed.
37.	The reporting restrictions in section 1 of the Sexual Offences Amendment Act 1992 apply.