No. 2009/04914/A4
Neutral Citation Number: [2010] EWCA Crim 155
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
								Royal Courts of Justice
								The Strand
								London
								WC2A 2LL

								Wednesday 20 January 2010

	B e f o r e:

	LORD  JUSTICE  PILL

	MR  JUSTICE  BENNETT

	and

	MR  JUSTICE  FIELD

	__________________

	R E G I N A
 
	- v -

	JOHN  WILLIAM  LYONS
	__________________

	Computer Aided Transcription by
	Wordwave International Ltd (a Merrill Communications Company)
	165 Fleet Street, London EC4
	Telephone 020 7404 1400; Fax No: 020 7404 1424
	(Official Shorthand Writers to the Court)
	__________________

	Mr C Harris appeared on behalf of the Applicant

	____________________

	J U D G M E N T
	(As Approved by the Court)
	____________________

Wednesday  20  January  2010

LORD JUSTICE PILL:  I shall ask Sir Christopher Holland to give the judgment of the court.

SIR CHRISTOPHER HOLLAND:
1.  The applicant, John William Lyons, is aged 23.  This matter has a lamentable history.  It starts on 1 September 2004 at York Crown Court.  The applicant (then aged 17) pleaded guilty to unlawful sexual intercourse with a girl under the age of 16 (a girl of the age of 11). A month later, on 1 October 2004, a community order was imposed.  

2.  The community order was breached at a fairly early stage.  The applicant then appeared on 28 January 2005 at Leeds Crown Court.  The community order was revoked and in its place he was sentenced to 18 months' detention in a young offender institution and he was made subject to a Sexual Offences Prevention Order for ten years.  This order was then breached leading to a further hearing at York Crown Court to deal with it on 28 October 2005.  On that occasion, for breach of the Sexual Offences Prevention Order, he was sentenced to four months' detention in a young offender institution.  On 10 September 2006, at York Crown Court, for another breach of the order, he was sentenced to nine months' detention in a young offender institution.  On 27 June 2007, at Lincoln Crown Court, for two breaches of the same order, he was sentenced to a total of two years' imprisonment.  On 8 July 2009, before the Wycombe and Beaconsfield Justices, he pleaded guilty to three breaches of the order and was committed for sentence.  On 24 August 2009, in the Crown Court at Aylesbury, he was sentenced to four years' imprisonment with respect to each of the breaches.  The judge ordered that each of those sentences was to be served concurrently.  He further ordered that that period be discounted by the period of 47 days spent in custody on remand.  The applicant now renews his application for leave to appeal against sentence following refusal by the single judge. 

3.  Following exceptionally competent submissions by Mr Harris, we give leave to appeal against sentence.

4.  The facts were these.  All three breaches arise directly or indirectly out of a relationship that the appellant formed with a 15 year old girl to whom we shall refer as "A".  Her date of birth was 6 March 1994.  At all material times she was aged 15.  

5.  The applicant met A and stayed at her address in Amersham Hill with the consent of her mother from 31 May 2009 until his arrest on 7 June 2009.  They slept in the same room in flagrant breach of so much of the Sexual Offences Prevention Order as forbade him from entering or remaining on premises otherwise occupied by a child under 16.

6.  On 20 June 2009, following a family wedding, the appellant stayed at the home of A's father.  At that address there were three children, a 13 year old girl, a 10 year old girl and an 8 year old boy.  That gave rise to the second of the three breaches.

7.  A's mother had another daughter.  On more than one occasion the appellant and A went to the other daughter's home to baby-sit children who were then aged 2 and 3.  That was the third of the three breaches.

8.  On 7 July 2009 the appellant was arrested.  When interviewed he said that he had been in a relationship with a 15 year old.  He accepted that he had stayed at her home address and that he had stayed in her bedroom.  In relation to the wedding (the second breach) he said that he had not intended to stay at the home of A's father.  He said that he had become drunk and the next morning woke on the sofa at the address.  He was aware that there were three children in the house but had not seen them prior to getting up.  He admitted being at the other daughter's address (the third breach), but said that the other children were at all material times in bed.  When asked why he had committed all these clear breaches, he replied, "You can't help who you fall in love with".  

9.  All three breaches were blatant and amounted to renewed disregard for the Sexual Offences Prevention Order and indeed for the steps previously taken by the court to enforce the order and to bring home by way of custodial sentences its importance to the appellant.  The submissions of Mr Harris that these sentences for these offences should be served concurrently is plainly well-founded.  The one common feature to all three was the close association with the 15 year old girl.  It is to be observed that the law provides a maximum sentence of five years' imprisonment for breach of such an order. 

10.  There was a pre-sentence report before the sentencing judge.  In its last paragraph the author wrote:

		"If the court agrees that a custodial sentence should be imposed it is relevant to note that any sentence of less than two years would make it unlikely that there would be sufficient time for him to be included in the prison based Sex Offender Treatment Programme."

11.  In passing sentence the learned judge addressed the appellant in these terms:

		"You are young, but it seems to me that you are still dangerous to young females.  You are fully aware of the Sexual Offences Prevention Order.  You breach it again and again and again.  Whenever you get the opportunity you take steps to breach it.  You are manipulative, you are cunning and when caught you seek to blame everybody else for what has happened.  'It's her fault.  It's their fault.  I didn't understand.  It was all a mistake'.

		In fairness, you realise you had to plead guilty and you did, so I give you full credit for your plea of guilty.

		You are liable to up to five years on each of these three breaches.  Three times five is fifteen years.  Obviously I am not going to do that, but you simply have to learn that these SOPOs mean what they say."

12.  Mr Harris makes two points, succinctly but forcefully.  The first relates to the discount for the plea of guilty.  He submits that the appellant is entitled to a discount of one-third, that being appropriate when, as here, there was an early and complete admission of the offence.  The maximum sentence for each breach is five years.  Mr Harris points out that a sentence of four years' imprisonment does not give a one-third discount as against the maximum of five years.  He submits that on that basis alone the sentence of four years with respect to each matter concurrently was manifestly excessive.  

13.  Next, he boldly submits that a five year starting point in these circumstances would be unfair to the appellant.  He submits that the starting point should be at a lower level.  He has sought by reference to several cases to give some assistance as to what that lower level should be.  In that exercise he was hampered inevitably by the fact that the history which is pertinent to this case is unique in terms of the successive appearances before the courts and the successive imposition of custodial sentences to no apparent effect.  That is the history that led the judge consciously to impose as high a sentence as he could in the hope that it would finally bring home to the appellant the significance of the order that had been made against him.

14.  For our part it is the first point that Mr Harris has made that has had its impact.  We bear that strongly in mind.  We also bear in mind, equally strongly, the policy that was behind the previous sentence, that is to bring home the importance of observation of this order, not least because to do so accords with that which a court expects when its orders are imposed, but also to protect people like A from the attentions of this predatory young man.

15.  That having been said, a proper discount for the plea leads to quashing the sentences of four years' imprisonment for each of these breaches and substituting in their place sentences of three years' imprisonment.  The period of 47 days that he spent in custody on remand will continue to count towards the sentence.  To that extent this appeal is allowed.

LORD JUSTICE PILL:  Thank you, Mr Harris.  We have proceeded with the appeal, notwithstanding the absence of the appellant.  Do you have instructions that we should proceed with the appeal?

MR HARRIS:  I do not have any instructions.

LORD JUSTICE PILL:  If you do not have express instructions, we had better say that this order will take effect in seven days unless the appellant applies for a further hearing in his presence.

MR HARRIS:  I am grateful.

LORD JUSTICE PILL:  We do not encourage that, but in the absence of express instructions it is right to say that.

MR HARRIS:  My Lord, may I have a representation order?

LORD JUSTICE PILL:  You may have a representation order for today for one junior counsel only.  We are grateful that you were prepared to appear pro bono, and for your submissions.

MR HARRIS:  I am most grateful.

	__________________________________