Practice and Procedure


PUBLISHED June 25, 2003

A custodial sentence of five years for indecent assault on a female was not on these particular facts manifestly excessive. However, an extended period under s.85 Powers of Criminal Courts (Sentencing) Act 2000, should not be imposed as a matter of course but only if the circumstances of each particular case required it. The extended sentence of two and a half years was quashed as the judge gave no indication he considered the statutory requirements.Appeal, with leave of the single judge, against an extended sentence with a custodial element of five years and an extended period of two and a half years for an offence of indecent assault on a female. On 5 September 2002 at Warwick Crown Court before HH Judge Cole the defendant ('N') pleaded guilty and was sentenced on 11 October 2002. At the time of the offence N was a bus driver. N's victim ('V') was 20 years old and had severe learning difficulties which, made her very vulnerable. On 6 January 2002 she was a passenger on N's bus and had a conversation with him. When V came to her stop N refused to open the doors to let her off. He eventually stopped the bus and sat next to her, he took out his penis and told V to hold it. When she refused N dragged her to the back of the bus, pushed her to her knees and forced his penis into her mouth. He forced her head up and down until he ejaculated into her mouth. N then let V off the bus and told her to wait at the bus stop and not to tell anyone. V was extremely distressed and a woman stopped to help her to contact police. The police took swabs from V's mouth which contained traces of sperm, DNA matched N's. N was arrested and despite the DNA evidence he denied the offence until shortly before the trial. When sentencing the single judge described the offence as "as serious as an offence of rape". N appealed sentence on the grounds it was manifestly excessive given his plea of guilty, the fact he was 50 years old and had no previous convictions, his wife had left him as a result of the offence and he had eventually showed remorse.HELD: (1) The offence was very serious and the indecency involved was of a disgusting nature, there was no doubt V must have been revolted, it was actually worse than some offences of rape. N was in a position of responsibility and trust and breaching that position was undoubtedly a grave aggravating feature. Despite the mitigating factors, the offence was so bad it merited a substantial sentence making him a long term prisoner and the five year custodial element was not manifestly excessive. (2) Under s.85 Powers of Criminal Courts (Sentencing) Act 2000 an extended sentence was available in violent or sexual offences. However, for the court to impose an extended sentence it had to be satisfied that a normal licence period would not have been adequate. It followed that orders under that section should not be made as a matter of course but only if the circumstances of the particular case required it. (3) Guidance was provided in the cases of R v Nelson (2001) 1 Cr App R 565 and R v Cornelius (2002) 2 Cr App R 69. Firstly, the appropriate commensurate sentence should be decided, secondly, whether, for the protection of the public, an extended sentence was called for and thirdly, whether the entire sentence was adequate to prevent further offences and to protect the public. The court should use the correct terminology when passing an extended sentence. (4) There was nothing to suggest that the judge gave any consideration to the statutory requirements. Having regard to N's previous good character and the length of the custodial sentence the two and a half year extended period would be quashed.Appeal allowed in part.