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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Fowkes, R. v [2007] EWCA Crim 3206 (07 November 2007) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2007/3206.html Cite as: [2007] EWCA Crim 3206

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		7th November 2007

1. LADY JUSTICE HALLETT: Daniel Fowkes is a 50 year old convicted rapist. He has 11 previous convictions for 19 offences including offences of causing grievous bodily harm and possession of weapons. The relevant convictions for present purposes are as follows: in April 1980, he was convicted of rape and sentenced to 3 years' imprisonment. On that occasion it is said that he gained entry to a woman's home on false pretences, strangled her to the point of suffocation and raped her. On 22nd October 1993, for two offences of unlawful sexual intercourse with a child, he was sentenced to 12 months' imprisonment. On 24th April 1998 he was convicted of a further offence of rape and sentenced to 8 years' imprisonment.
2. As a designated sex offender he was required to comply with the requirement to notify the police of his address within three days of release and to notify the police of any change of address. Mr Fowkes resents his convictions for rape and he resents the statutory requirements. This has led to his being reported for a number of breaches.
3. On his first release on licence from the 1998 conviction for rape, he failed to notify his address as required. On 4th December 2003 he was convicted of failing to notify his address and was fined £400. His licence was revoked and he was recalled to prison. On 31st December 2005 he was again released on licence. He was required to notify the police of his address by 2nd January 2006. On 3rd January 2006 (one day late) he registered an address in Clapham Road. This failure to register in time constituted offence No 1. When the address was checked in May 2006 it was found to be a derelict taxi rank. This was the subject of offence No 2.
4. On 8th June 2007 the appellant was arrested. He said he had moved to an address in Tulse Hill. Thus, during the substantial period from February 2006 to 8th June 2007 the appellant had failed to provide his address. This formed the subject matter of offence No 3. The appellant admitted the offences in interview.
5. When interviewed for the pre-sentence report, its author recorded the appellant as saying that as a result of his being released from prison with no fixed abode, he found it difficult to find accommodation. That was why he had missed the deadline of registering by one day. Thereafter, he said he felt pressurised because the police told him he had to have an address. He gave the address of the derelict taxi rank behind which there was a squat at which he had stayed for one night. Thereafter, he said he moved on a regular basis between squats and short-term accommodation.
6. In relation to the last offence, he admitted he had found settled accommodation but he did not regularise the situation with the police. He had taken legal advice and he was aware that there were serious implications consequent upon his failure to register and he wished to avoid what was an inevitable punishment. The author of the report went on to describe the appellant as a "manipulative" individual, who had a total disregard for the rights of the community to monitor him. It was said he did not accept his conviction and showed no remorse. He tended to minimise the seriousness of his failing to comply with the statutory requirements. There had been minimal compliance with probation supervision on licence and he had failed to engage in any sex offender treatment. There were concerns about his future behaviour, given his offences against extremely vulnerable or young females in the past and the use of violence in committing sexual acts. He was described as posing a high risk of harm to the public in relation to violent and or sexual offences. In particular, he poses a high risk of harm to women and young girls.
7. On 2nd July 2007, at the Camberwell Green Magistrates' Court the appellant pleaded guilty to the offences numbers 1-3. He was committed to the Crown Court for sentence. On 1st August 2007 Her Honour Judge Karu sentenced him as follows: offence 1, failing to register an address: 3 months' imprisonment; offence 2, providing a false address: 6 months' imprisonment ordered to run consecutively; offence 3: failing to register an address, 9 months' imprisonment, again ordered to run consecutively. This made a total sentence of 18 months' imprisonment. He appeals against that sentence by leave of the Single Judge, who queried the structure of the sentence.
8. Mr Reid, on behalf of the appellant placed particular reliance, as an example of the level of sentence appropriate to this type of offending, on a decision of this Court in R v Bowman [2006] 2 Cr App R(S) 40. In Bowman [2005] EWCA Crim 3612, the appellant was sentenced to 6 months' imprisonment. He failed to register his address as he was required to do within three days. He gave as his explanation the fact that he was homeless. His sentence was reduced by this Court to one of 2 months.
9. However, the judge below distinguished Bowman, observing that this appellant was not in the same position as the appellant, Bowman. This appellant was not a homeless man who had simply had no means of finding a home or address. She described him as someone who had deliberately and flagrantly avoided any notification procedures and avoided any form of the monitoring required by the law.
10. Mr Reid argued that the sentences were both wrong in principle and the total excessive. He argued that the three offences all arose from the same failure to register within three days of release from prison and, therefore, the three sentences should have been ordered to run concurrently and not consecutively. Further, he submitted that the sentences on offences 2 and 3 were excessive individually. He referred this Court to two further cases, as an illustration of decisions of this Court. In R v B [2005] 2 Cr App R(S) 65, 6 months' imprisonment, imposed on a man previously convicted of attempted rape who failed to notify the police of his address following his release from prison, was reduced to 3 months. In R v Clark [2003] 1 Cr App R (S) 2, CA the appellant was convicted of attempting to abduct a child and impersonating a police officer. He was sentenced to 3 years' imprisonment. On his release he was seen in the company of young girls. A Sex Offender Order was made restricting his movement. He breached that order by living in premises where children under the age of 16 also lived. There was no suggestion that he had attempted to interfere with the children. His sentence of 3 years was reduced to one of 18 months. A 3 month sentence of imprisonment was ordered to run concurrently for failure to notify a change of address.
11. Much as we sympathise with the approach adopted by the judge below, We see considerable force in one limb of Mr Reid's submissions namely that the first two offences were in fact one incident. Arguably, it would have been sufficient to charge but one offence. As a matter of general principle the sentences imposed should, therefore, have been ordered to run concurrently. We can see no reason here to deviate from the general principle. Accordingly, we shall quash the order that they run consecutively and substitute for it an order that they be served concurrently.
12. However, that will be the extent of our intervention. We do not accept that the third offence was also part of the same incident. It was a separate and continuing offence, spread over a period of nearly 18 months. It merited a distinct and significant penalty. If ever there were an offender whom Parliament had in mind when it enacted these provisions, it was this appellant. He appears to be an unrepentant sexual predator and a danger to the community. The requirement that he register his address is a simple measure designed to offer some measure of protection to women and children whom he may encounter. It will offer no protection at all if he continually flouts the orders of the court. The appellant, whatever his own views of the statutory requirements and his convictions, must learn that he has to obey court orders. If he does not, Parliament has fixed a maximum penalty of 5 years for offences of this kind. Given the statutory maximum and the circumstances of these offences, we are not persuaded that the sentences on any of the offences or the total sentence imposed is in any way excessive. For those reasons, the appeal will be allowed to the extent indicated on count 2. The final total sentence is 15 months' imprisonment.