Newton, R. v

1. John Robert Newton, appeals against sentence by leave of the Single Judge, who also granted an extension of time of 579 days and a representation order for counsel.

2. On 27 October 2014 in the Crown Court sitting in Carlisle the appellant pleaded guilty before His Honour Judge Batty QC to 5 offences. On 6 March 2015, he was sentenced by the same judge as follows: Committing an offence with intent to commit a sexual offence, s 62 (1) Sexual Offences Act 2003 Extended sentence of 12 years custody with an 8 year extension Breach of a Sexual Offences Prevention Order, s 113 (1) (a) Sexual Offences Act 2003 18 months imprisonment Voyeurism, s 67 (3) Sexual Offences Act 2003 18 months imprisonment Assault occasioning actual bodily harm, s 47 Offences Against the Person Act 1861 18 months imprisonment Assault by beating, s 39 criminal Justice Act 1988 4 months imprisonment Having committed an offence during the 2 year operational period of a suspended sentence of 9months’ imprisonment, imposed on 28th February 2014 at the Crown Court at Carlisle for offences of voyeurism and theft, the suspended sentence was activated with a reduced term of 6 months imprisonment concurrent.

3. This is a case to which reporting restrictions apply and nothing should be published which would identify the complainant throughout the rest of her life. FACTS

4. On 26 August 2014, the complainant, aged nine, was playing with friends in a park. At about 5:30pm she went to use the lavatory in a cafe next to the children’s play area. The appellant bumped into her as she entered the lavatory. She went into a cubicle and locked the door behind her. The appellant entered the neighbouring cubicle, stood on the lavatory seat and using his mobile phone, began to film the complainant holding his phone over the communicating wall. The complainant shouted “no” and immediately pulled her trousers up.

5. The appellant pushed his way into her cubicle using sufficient force to break the lock on the door. She could see that his penis was exposed over the waistband of his trousers which had been pushed down. He pulled up his trousers. He came into her cubicle and took hold of her by her arms and forced her to sit on the toilet. He asked what was in the bag that she was carrying, pulled out her purse, looked to see what it contained and then put it back into the bag. Again, he took hold of the complainant’s arms and ordered her to remove her trousers. She refused. She tried to push past the appellant to escape but he grabbed her by the side of her trousers scratching her hip in the process. In due course his DNA was found on the waistband of her trousers.

6. The appellant pushed the complainant back into the cubicle and back onto the toilet seat. He kept ordering her to remove her trousers. He threatened that if she refused or shouted for help he would hit her. At that stage the complainant heard someone enter the toilet area and she shouted for help. The appellant punched her to the area around her left eye causing bruising, he slapped her across the right ear causing reddening and swelling and then hit her over the head. The first blow was of such force that it made her fall off the toilet seat.

7. The lady who had entered the toilets realised that something very untoward was happening and so went out to call for help. The appellant ran past her and pushed her causing her to fall to the ground. She again entered the lavatories and the complainant immediately ran to her crying and distressed. A man who was in the park tried to chase after the appellant but lost sight of him.

8. The complainant was taken to hospital where she was found to have a bruise to her left forehead, abrasions to the area of her left pelvis and a bruise to her left middle finger.

9. The description given matched the appellant and police officers arrested him at his home address.

10. The judge read a Victim Personal Statement from the family of the complainant dealing with the distress, fear and anxiety from which she and all the family had suffered. This court has also seen a more recent statement from the victim’s father, expressing his concerns and the continuing effect the offences and the publicity surrounding it has upon the complainant and her family. Antecedent history

11. The appellant was aged 28 at sentence (born 19/03/1988). He had 14 convictions spanning from 2001-14. His relevant convictions are for indecent assault on a female aged 16 or over in 2005 and voyeurism in 2014 for which he received a Suspended Sentence and a Sexual Offences Prevention Order to which he was subject at the time of the current offences.

12. He was therefore in breach of that suspended sentence order of nine months suspended for 2 years, imposed on the 28 February 2014. On that occasion the appellant had gone into the lavatories at a supermarket and placed a mobile device above the ceiling tiles with the camera facing towards the lavatory. It was noticed by member of the public and the appellant was identified. A Sexual Offences Prevention Order was imposed. The index offences were committed in breach of two of the prohibitions in that order, namely entering a women’s lavatory and using a device capable of recording images. Sentence

13. In passing sentence the learned judge observed that the complainant in this case had been targeted because of her vulnerability and youth. She had sustained injury. The appellant had admitted that his intent was to carry out a sexual assault on the complainant by an act of digital penetration. The learned judge rightly observed that these were very worrying offences set against a background of a troubling history of offending and in breach of a suspended sentence and SOPO.

14. It was rightly conceded that there was ample material upon which to reach a finding of dangerousness. A psychiatric report on the appellant concluded that the risk of repetition of similar offences must be viewed as high; the risk of committing further offences against younger females was unlikely to diminish.

15. The appellant had admitted his responsibility and indicated that he would plead guilty at an early stage. He suffered from mild learning disability and ADHD which had markedly improved now that he was older. He also had Alcohol Dependence Syndrome.

16. The learned judge was entirely right to consider that a very lengthy prison sentence was the only appropriate way of dealing with the appellant. Committing an offence with intent to commit a sexual offence contrary to s.62(1) Sexual Offences Act 2003, is dealt with in the Sexual Offences Definitive Guideline. It states, “the starting point and range should be commensurate with that of the preliminary offence actually committed with an enhancement to reflect the intention to commit a sexual offence.”

17. The preliminary offence committed was false imprisonment. The appellant had targeted a young child alone in a public lavatory, he attempted to film her whilst she was using the lavatory, he forced his way into the cubicle and exposed his penis to her, he searched her purse to rob her of money, he then struck her on three occasions, at least one of them with sufficient force to knock her to the ground. During his false imprisonment of the complainant in the lavatory it was his intention that he would sexually assault her by an act of digital penetration.

18. The combination of these features including an element of enhancement to reflect the intended sexual assault means that the judge was right to impose a very substantial term of imprisonment. Given the length of that sentence he ordered that six months of the nine month suspended term should be activated but ordered that it should be served concurrently to the total term. The Judge set the term for this offending at 18 years after a trial which he reduced to 12 to reflect the early indication of the plea of guilty. In addition, he imposed the maximum term of extended licence on release of eight years. The effect of the extended sentence is that the appellant will serve at least two thirds of any sentence before being eligible to be considered for parole and will remain on licence for eight years after eventual release.

19. Although a very long sentence was entirely justified it is the view of this court that the term of 18 years before credit for his guilty plea was manifestly excessive in all the circumstances. This was not a completed or attempted rape, the detention of the child did not last for an extended period as it was in a public place and although the violence used was gratuitous and frightening it caused no serious physical injury. As the learned judge observed, this was not the worst case in this category of offending.

20. Taking account of all the relevant features, the appropriate term after a trial was one of 15 years, and applying the appropriate credit for his plea of guilty, we therefore substitute a term of 10 years. To that extent this appeal is allowed.

21. The learned judge was entirely right to impose an extended sentence and, although it is the maximum period under the legislation, the licence period of eight years cannot be said to be either wrong in principle or manifestly excessive.