England and Wales Court of Appeal (Criminal Division) Decisions

Royal Courts of Justice

The Strand

London WC2

Wednesday 19th February 1997

B E F O R E :

LORD JUSTICE McCOWAN

MR JUSTICE IAN KENNEDY

and

THE COMMON SERJEANT

(HIS HONOUR JUDGE DENISON)

(Acting as a Judge of the CACD)

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R E G I N A

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ANTHONY COUGHTREY

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Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Tel No: 0171 831 3183 Fax No: 0171 831 8838

(Official Shorthand Writers to the Court)

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MR G LOBBENBER appeared on behalf of the Appellant

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JUDGMENT

( As Approved by the Court )

Crown Copyright

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Wednesday 19th February 1997

LORD JUSTICE McCOWAN: The appellant pleaded guilty to breaking prison at Knightsbridge Crown Court and, on 28th March 1996, was sentenced by Judge Pontius to

7 years' imprisonment to run concurrently with the sentence of life imprisonment that he was already serving.

A co-accused call Johns, who also had been serving a life sentence, and admitted a like charge of breaking prison, received an identical sentence.

The appellant renews his application for leave to appeal his sentence after refusal by the Single Judge. On 28th January 1997 the Full Court, differently constituted, granted him leave to appeal and indicated that it would be helpful if the Court hearing the appeal would give guidance on the general approach of sentencers dealing with cases of this nature.

The appellant was born on 27th January 1973 and before his life sentence had been before the courts for burglary, taking conveyances and road traffic offences. On 7th May 1993, in the Crown Court at Luton, for an offence of murder, he was sentenced to life imprisonment.

Unfortunately, counsel for the appellant had not armed himself with much detail about the facts of that matter, but from our own investigations what we understand the position to have been is this. There was a drunken brawl in a house. It started off friendly, with some armwrestling, and then things became less friendly. One of the people who had been involved in the armwrestling was killed by two men, one of them the appellantused a monkey wrench, the other man used his feet.

The appellant was eventually transferred to a ("lifer unit") at Wormwood Scrubs, classified as category B and because he was not known to be a security risk allocated duties in the works department. On 30th July 1995 the appellant, with his co-accused, who had not been involved in the same murder, but who was allocated to similar duties, in Wormwood Scrubs, left the works department, burnt through the perimeter fence with oxyacetylene equipment and used a ladder to scale the outside wall over which they made their escape.

In the grounds of appeal the point is made that the break-out was achieved by guile rather than by violence. The appellant gave himself up on 7th August 1996.

In his sentencing remarks, the judge gave credit for the pleas of guilty. He then continued:

"As you both realise, the only sentence I can pass is one which is concurrent with the life sentences which you are both serving. Plainly a prison sentence, in those circumstances, cannot be ordered to run consecutively; but it is a matter of considerable regret that I cannot order that the sentence for this offence should not begin to run until after the expiry of the tariff period in respect of those life sentences. That is a matter which, in my view, requires the urgent attention of Parliament in the next Criminal Justice bill. In those unsatisfactory circumstances, therefore, the most I can do is to express the hope that the facts of this offence and the sentence imposed will be taken into consideration by the Home Secretary and the Parole Board when the time comes for thought to be given to your release on licence in respect of the life sentences. For the foregoing reasons I direct that a transcript of these sentencing remarks should be placed before the Secretary of State without delay... In order to emphasise the clear duty upon the courts very firmly to discourage offences of this kind, I am confident that the proper sentence upon both of you is seven years' imprisonment. The sentences will, of course, in each case run concurrently with the life sentence each of you is currently serving."

We are not persuaded that the change in the law advocated by the learned judge is necessary or desirable.

What has to be said, in general terms, is that breaking prison is a very serious offence, for which a substantial sentence of imprisonment is always to be expected because of the fear and apprehension it generates, the disruption to prison life, the violence and disorder that it may lead to, and the need to deter both the culprit and others.

If the offender is serving a determinant sentence, a consecutive sentence should almost invariably be imposed. Obviously if he is serving a life sentence the sentence for breaking prison will have to be served concurrently. But the length of it should usually be the same as it would have been had he been serving a determinant sentence.

The facts to be taken into account, in determining the length of sentence, will include (i) the nature and the circumstances of the crime for which he was in prison; (ii) his conduct while in prison; (iii) the methods employed in effecting escape and in particular, whether any violence was involved and whether there was extensive planning and outside assistance; (iv) whether he surrendered himself and how soon and (v) a plea of guilty.

Taking into account all the relevant circumstances of this case, we conclude that 7 years was manifestly excessive. We think the right sentence would be 4 years to be served concurrently with his life sentence. To that extent this appeal is allowed.