England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		19th November 1996

MR JUSTICE DOUGLAS BROWN: This appellant (as he now is), Brian Lovell Cowan, appeals against two separate sentences imposed on different occasions by different judges. On 6th June 1996, in the Crown Court sitting at Middlesex Guildhall before Mr Recorder Salmon, the appellant was convicted of two counts of handling stolen goods and sentenced to nine months' imprisonment to run consecutively on each of those two counts. The total, therefore, being eighteen months' imprisonment. He now appeals against sentence with leave of the single judge.

In the other case, on 28th June, in the Crown Court at Snaresbrook, the appellant pleaded guilty on re-arraignment before Mr Gledhill (sitting as an assistant recorder) to an offence of assault occasioning actual bodily harm and was sentenced to twelve months' imprisonment. That was ordered to run consecutively to the eighteen months' imprisonment passed on 6th June.

The Court gave leave for the appellant to appeal today.

Taking the circumstances of the first appeal, on 26th May 1995 police officers entered the appellant's 12th floor flat in possession of a search warrant. Two other officers remained outside at ground level. When the officers went into the flat the appellant entered the bedroom, opened a window and threw various items out of the window. He was then arrested and was informed that officers below had retrieved these items. He denied that they had come from his window.

The relevant items were eighteen social security benefit books in a plastic bag. The evidence from the post office was that none of the books had been stamped by the account office. They were new books and the belief was that they had been stolen in transit between the Department of Social Security office and the issuing post office.

At trial the appellant ran the defence, anticipated by his interview with the police, that the watching officers had the wrong window and the wrong flat and these books were nothing to do with him. The jury clearly rejected that by their verdicts.

The appellant originally faced a count alleging handling of all eighteen books, but after discussion between counsel and the recorder, the indictment was amended during the trial so that two counts specifying the details of two particular books became counts 1 and 2 of the amended indictment and there were no counts for the balance of the books. One of the books, the one referred to in count 1, had a value of £1,277 on presentation and the other £678.45.

The appeal is mounted on a number of grounds. The learned recorder was said to have taken into account all the benefit books, not just the two in the two counts, and this was not permissible because there was no admission in respect of those unproved counts. In reliance on the recent authority of Clark [1996] 2 Cr App R (S) 351, Mr Bassa, counsel for the appellant, submitted that it was not permissible for the judge to have regard to the possession of the remaining books in relation to which there had been no count and therefore no conviction; the judge had to concentrate on the two counts that were before the jury and on which they convicted.

Secondly, it is said that the learned judge was wrong in principle in imposing consecutive sentences.

Thirdly, it is said that the sentence of nine months' imprisonment, even if it had been imposed as a concurrent sentence, was too long; that the criminality involved did not warrant a custodial sentence, certainly not a custodial sentence of that length.

It was pointed out that, although he has a reasonably substantial criminal record, this was his first custodial sentence.

So far as the other offence was concerned at Snaresbrook Crown Court, this was an offence of a wholly different character. It was an offence of assault occasioning actual bodily harm on a Mr Smith, who was a metropolitan traffic warden who was on duty when he was assaulted by the appellant.

The circumstances of it, in summary, are these. On 3rd January 1996, in the early afternoon, Mr Smith approached the appellant's vehicle, which was illegally parked on a single yellow line. As Mr Smith was beginning to take the vehicle's particulars, the appellant approached. The traffic warden had noticed that the tax disc on the vehicle had expired in October 1995. He was asked about that and the appellant said that his application for a new disk was in the post. Mr Smith explained that he would report the appellant for having no tax on his car. The appellant, according to Mr Smith, replied, "Oh, come on". Mr Smith stood his ground. The appellant, according to him (and this is disputed by the appellant) grabbed the traffic warden's ticket binder and pocketbook and ran off. Mr Smith followed them and caught up with him within a very short distance and grabbed at his jacket. The appellant turned round, took hold of Mr Smith's lapel and asked him what he was doing, and the assault then began. He pushed Mr Smith against some railings and held him against the railings. Mr Smith shouted to a colleague nearby. His recollection extends no further than that point. The next thing he remembered was that an ambulance man was looking after him.

There were witnesses who said that the appellant punched Mr Smith a number of blows, causing him to fall to the ground. The appellant himself said that he only struck him one blow, and that was the basis of his plea before the learned assistant recorder.

The result, one blow or not, was that Mr Smith had a swelling and grazing to the back of his head and ear, a cut lip, an area of tenderness to the left cheek and an area of cross-hatching, indicating that there might be bruising to the right cheek. The cut on the lip involved the insertion of a suture. The appellant himself had a bruised thumb and some soreness round the throat.

In relation to that offence, Mr Bassa's submission is that, although a custodial sentence had to follow, and he accepted that, it was out of line with a number of decisions of this Court when cases involving public servants who have been assaulted were considered. Two of them involved traffic wardens, and sentences of the order of eight months and six months, in the circumstances of those cases, were approved by the Court. Mr Bassa says the assistant recorder was wrong to impose the twelve month sentence consecutively to the sentence passed on 6th June; he assigned no reason for that, and it was wrong and produced an excessive sentence.

The appellant is now 24 years of age. He had two findings of guilt and nine previous convictions, most of which were for offences of dishonesty, but there were four offences of violence: an assault occasioning actual bodily harm in 1990, for which he was placed on probation; a common assault in 1991, for which he was given community service; and he was also fined this year for possessing an offensive weapon.

We have considered Mr Bassa's submissions. Taking first his submissions in relation to the first appeal, we think that, with respect to him and his careful argument, his citation of the case of Clark is misconceived. There is no doubt now that the principle enunciated by this Court in that case confirms a number of authorities in recent years which are authority for the proposition that, where an offender is convicted of a single count put forward as a specimen count by the Crown, the sentencer cannot sentence him on the basis that he is guilty of further offences of a similar nature unless the offender has admitted it was so. Clark was a case involving indecent assault on a male person and there were a number of other sexual encounters which did not form the subject of any count which were relied upon by the prosecution on a similar-fact basis. It was held in that case that the judge was wrong to sentence on the basis of those other incidents which had not been admitted by the defendant in that case.

In this case the circumstances are wholly different. There was one action on the part of the appellant which drew attention to his possession of eighteen benefit books, and that was the act of throwing the bag containing them out of the window. The fact that, for reasons connected with the law as to indictments, only two counts were preferred, did not prevent the sentencing judge from taking into account the circumstances of all these other benefits books; they were part and parcel of the same offence, which was handling eighteen benefit books, although it had been charged as only two. In theory the prosecution could have charged all eighteen books as eighteen counts, but that clearly would have been the wrong course to take and the judge was entitled to consider the overall criminality.

Where Mr Bassa is on stronger ground is in relation to the submission that there should not have been a consecutive sentence. In that, with respect to the recorder, he is plainly right. These were all arising out of the same transaction and there was no scope here for the use of consecutive sentences. The nine months' imprisonment imposed on the second count should have been ordered to run concurrently.

The question which then arises is whether nine months' imprisonment was manifestly excessive for the handling of these benefit books. It is perfectly true that they were not stamped and could not have been used in the state they were. But it would not have been difficult for a resourceful criminal (not necessarily this appellant, who could easily have sold them on) to convert them by simple forgery in relation to the stamp into benefit books that could be used that might deceive an unobservant post office clerk. They clearly had some value. They are books which should not fall into the hands of anyone other than the post office staff who issue them. This Court can see nothing wrong, not only in a custodial sentence, but in a custodial sentence of the length of nine months.

Turning to the other appeal, the learned assistant recorder in passing sentence said this:

"Traffic wardens have a difficult job to do. They are particularly vulnerable to people who are upset, for one reason or another, at the way they carry out their duties. They are particularly vulnerable to being assaulted by people who lose their tempers, usually for no very good reason. And the primary duty of these courts are to protect such people from the likes of you who are unable to keep your temper and behave in a way that I accept you now see is totally unjustified."

The recorder went on to say that the assault itself was serious and that the injuries that resulted were in turn serious.

Clearly Mr Bassa is right when he says that the injuries were not of the most serious, but nevertheless from the description we have given this was a nasty assault in circumstances where, as the learned assistant recorder said, and we entirely agree with him, the victim was entitled to the protection of the Court.

The recorder had to deal with an offender who had a record for not one but a number of offences of violence, and that was bound to play a part in any decision he arrived at as to the length of the sentence. The sentence of twelve months' imprisonment is certainly higher than some of the examples that counsel has cited to us, and is on the high side, but we have to ask ourselves whether it was manifestly excessive. By that test, in our judgment, it was not. Twelve months' imprisonment for the injuries received by this traffic warden, inflicted by a man with this appellant's record, was not, in the judgment of this Court, manifestly excessive.

The last question, therefore, to be considered is whether that sentence should have been ordered to run consecutively to the nine months' imprisonment which the recorder at Middlesex Guildhall should have imposed. We cannot see that the Court at Snaresbrook was acting in any way wrongly in principle in so ordering. It does not produce in totality a manifestly excessive sentence. The result being that, with the twelve months and the nine months added together, 21 months is not, in the judgment of this Court, an excessive sentence for the total criminality of this appellant. In all the circumstances, to the extent that we have indicated, namely that the second count on the first indictment will be ordered to run concurrently to the first count, this appeal succeeds, leaving a sentence of 21 months.