Appeal by the defendant ('T') against a total sentence of four years' imprisonment, expressed to be a longer than normal sentence passed under s.2(2)(b) Criminal Justice Act 1991, imposed regarding two counts of indecent assault and one count of gross indecency. An extended licence period of a further six years was passed under s.58 Crime and Disorder Act 1998. At the time of the offences T was 77 years old. The two counts of indecent assault related to separate incidents when T had touched a young boy and girl who were visitors at his home. The count of gross indecency related to a separate occasion on which T had exposed himself to the girl and some of her friends at his home. In sentencing, the judge referred to T's "long history of criminal offences involving indecent behaviour and indecent assaults" and the pre-sentence report, which stated that T was a "predatory paedophile" who presented a "high risk of re-offending with a high risk of harm". A subsequent psychiatric report indicated that T suffered from a serious psychosexual abnormality which was "probably not treatable". T contended that the sentence was manifestly excessive in that: (i) the judge erred in law in passing a sentence under s.2(2)(b) of the 1991 Act; (ii) the judge had erred by equating T's risk of re-offending with seriousness of harm; and (iii) the judge had failed to give sufficient credit for T's age and early guilty pleas.HELD: (1) The "high risk of harm" referred to in the pre-sentence report and relied upon by the judge was not the same as "serious harm", which was the trigger laid down in s.2(2)(b) of the 1991 Act. It followed that it had not been open to the judge to impose a longer than normal sentence. (2) The appropriate sentence, addressing both questions of punishment and deterrence, was concurrent terms of three years' imprisonment in respect of the indecent assaults, with the original concurrent sentence of 18 months' imprisonment in relation to the gross indecency to stand.Appeal allowed to the extent indicated.
CA (Crim Div) (Tuckey LJ, Sir Harry Ognall, Judge Beaumont QC)