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Cite as: [2000] EWCA Crim 34

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PERKS, R v. [2000] EWCA Crim 34 (19th April, 2000)

Case No: 1999 07074 W2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT BIRMINGHAM
(HIS HONOUR JUDGE ALAN TAYLOR)
Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday 19th April 2000

B e f o r e :
LORD JUSTICE POTTER
MR JUSTICE GARLAND
and
THE RECORDER OF LONDON
(sitting as a Judge of the Court of Appeal, Criminal Division)

	REGINA
	- v -
	JAMES BENJAMIN PERKS

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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The Crown were unrepresented
Mr Gerard QUIRKE (instructed by Messrs Nicholas G Roy for the Appellant)
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Judgment
As Approved by the Court
Crown Copyright ©

MR JUSTICE GARLAND: On 26th August 1999 in the Crown Court at Birmingham
the Appellant pleaded guilty to a single count of robbery. On 14th October he was sentenced to four years imprisonment: against that sentence he now appeals by leave of the Single Judge. The facts can be briefly stated. At about 11.15 on the morning of 8th April 1999 Mrs Margaret Ann Parker was walking towards her home along Coventry Road having been shopping. She was carrying a black nylon shopping bag containing her shopping, two purses and a building society book. The Appellant came up behind her and grabbed at the shopping bag. Mrs Parker held on to it, the Appellant pulled hard and she fell over on to her right side banging her legs against some railings. Her glasses were broken. The Appellant pulled the bag away and ran off pursued by members of the public who detained him until the police arrived. Mrs Parker's bag was returned to her but about £10 in loose change was missing from one of the purses which fell out of the bag during the struggle. The Appellant was arrested; he said that he was sorry that he had hurt Mrs Parker; he cooperated fully with the police and when interviewed said that he was a heroin addict and that he had committed the offence on the spur of the moment to get money for more heroin. Mrs Parker was treated in hospital on the same day for swelling and bruising to her right leg and was discharged. On 23rd September a police officer saw that her right leg appeared to be discoloured and that while talking about the matter Mrs Parker became very upset and started to cry. She made a further witness statement on the same day confirming that her right leg was still bruised and painful; that she no longer walked alone because she was left with the fear that she would be attacked again; that her sleep was impaired and that she felt that her quality of life was different. Towards the end of her witness statement she says: "This has had a devastating effect on my life."
The Appellant is 24 and has no previous convictions. He has a good record of employment but is a self-confessed heroin addict. The Trial Judge had before him a very full Pre-Sentence Report and a letter from the Appellant's father expressing the family's shock and dismay at the Appellant's conduct. In passing sentence the Judge said:-
"James Benjamin Perks, you have pleaded guilty to the most appalling robbery of a middle-aged lady going about her shopping on a morning earlier this year. Not only did you rob her of her bag but you injured her and the offence has left an appalling blot upon her memory.
The only mitigation in this case is your plea of guilty. This is an appalling offence and the courts have to show that when people like you come before the court, convicted of street robbery, that the courts are strong enough not only to punish you but to seek to deter others from doing the same thing.
This was a particularly serious offence of its kind. There is no mitigation, in my judgement, with the exception of your plea of guilty."
We took the view that although the Appellant may have had little choice but to plead guilty, by doing so he spared Mrs Parker the ordeal of reliving the matter in the witness box. Nevertheless there were other matters of mitigation including his previous good character, his excellent work record, the fact that this was to be his first time in custody, his genuine remorse and insight into his offending as confirmed in the Social Enquiry Report, the low risk of further offending and his attempts to overcome his heroin addiction. In the circumstances, bearing in mind also that no weapon was employed, no blow struck or threat made, it was our view that an appropriate sentence would be one of three years. We therefore allowed the appeal, quashed the sentence of four years and substituted one of three years.
Mr Quirke, on behalf of the Appellant, drew our attention to an aspect of the appeal which had caused him concern. On 9th July Mrs Parker's husband had addressed a document to the Crown Prosecution Service with the heading "The Attack on Margaret Ann Parker". It begins:-
"Update on condition of Margaret Ann Parker - injured party.
Following the submission of 13th April, my wife's (Ann) condition is still being monitored by her G.P. and the specialists at Hartlands Hospital."
It then goes on to deal with medical matters, her tearfulness and fear that her assailant will "come after me because he has been in court". He refers to the devastating effect that the attack has had upon his wife and continues:-
"No matter how much the assailant (James Perks) verbalises his regret to the court, his demeanour over the past few weeks, failing to assign and prepare himself with representation, requiring the court to be reconvened ....... these all contradict his expressions of regret."
The second and third pages are prefaced by "Statement: to be read to the court before sentencing of James Perks - the attacker of Mrs Margaret Ann Parker on Thursday, 8th April 1999 on the Coventry Road, Sheldon, Birmingham." Mr Parker alleges that his wife's physical condition has got very much worse, that the emotional effects that has caused are considerable; and that she is having sleepless nights, is very nervous and has become withdrawn and quiet. There is then a passage that reads as follows:-
"The actions of this greedy, self-indulgent irresponsible mindless and spoilt thug has FOREVER ruined the carefree life of a caring woman. She will never be able to forget it, never be free from the horrible memory that this attack will leave her with. Any remorse that the attacker may be showing is purely concern for his own welfare, concern that he will not be able to have more drugs `to make him happy', and that HIS freedom might be affected. He is still free to socialise.
What about the victim of this crime, she is totally and utterly innocent, yet she is going to pay for someone else's crime, for the rest of her life. WHY?
Morally the law is required to make the punishment fit the crime, let it also fit the punishment that the victim has to bear.
JAIL HIM!
AND MAKE AN EXAMPLE OF HIM TO OTHERS WHO THINK THAT DRUGS ARE SOCIALLY ACCEPTABLE - THEY ARE NOT!!
STOP DRUG USING CRIMINALS PUNISHING US ALL."
Mr Quirke expressed concern that the document had been included in the case papers and that the sentencing Judge's phrase: "The offence has left an appalling blot on her memory", as well as his reference to the court being "strong enough" to seek to deter others, could have been derived from it rather than from Mrs Parker's witness statement of 23rd September. The Court shared that concern. We have not enquired into the matter because our concern was that a document, strongly worded, apparently from the victim's husband and which was not disclosed to the Defence, may have been included in the case papers. We therefore felt it appropriate to revisit the authorities on "Victim Impact Statements" which are now an increasingly common feature of the sentencing process.
In Attorney General's Reference (No 1 of 1989) [1989] 11 Cr App R(S) Lord Lane, in considering the appropriate level of sentencing for incest with a girl under 13, put at the top of the list of other aggravating factors:-
"There is evidence (emphasis added) that the girl has suffered physically or psychologically from the incest".
In Hobstaff 14 Cr App R(S) 605 the Appellant pleaded guilty to three counts of indecent assault on the young daughters of a neighbour. In opening the case, Counsel for the Prosecution stated that the effects on the children had been horrific; one suffered from nightmares and sleepwalking, both had been seen by a child psychologist. One child was withdrawn and frightened. Those allegations were not supported in any statements disclosed to the Defence before trial but the sentencer stated that he took the effect of the incidents on the children into account in determining sentence. This court, presided over the McCowan, L.J., held that if there is admissible evidence of the effects of the offence on the victim it should be taken into account; where there was no admissible evidence it should be disregarded. Evidence of the effect of an offence on the victim must be available in proper form whether as an expert's report, a Section 9 witness statement or otherwise. This served two essential purposes; first, like all other material, it must be served in advance on the Defence so that the Defence would be able to meet the material and address the Judge on it as they saw fit, and secondly, it would form part of the Judge's papers. In Peter O'S reported in the same volume at page 632 the Appellant had pleaded guilty to incest with and indecent assaults on his daughter and also to indecently assaulting another girl of eleven. In passing sentence the Judge had said:-
"The damage to those girls is incalculable. Clearly some damage, perhaps serious damage, has resulted from your behaviour. It could be that they will be marked for the rest of their lives."
This court, presided over by Farquharson, L.J., commented:-
"We have tried to discover whether any evidence (emphasis supplied) of that nature was in fact given during the course of the hearing. We are told that a police officer gave evidence that the girls were coming round or improving following these incidents but it does not appear that any specific evidence (emphasis supplied) justifying the learned Judge's comments was in fact placed before the court."
The court then referred to Hobstaff and continued:-
"The danger of course is that a case can be opened in a florid way on material which has not been available to the Defence. If that is to be accepted by the learned Judge, or the learned Judge is to make assumptions not based on evidence but perhaps on his experience, then the Defence may be, as a result, put at a disadvantage. Therefore I would respectfully urge that the practice adumbrated by my Lord should indeed be followed".
That practice, was of course that the evidence in proper form should be available to the Defence before trial. In Nunn [1996] 2 Cr App R(S) 136 the Appellant pleaded guilty to causing by dangerous driving the death of a close friend. He was sentenced to four years imprisonment. This court was supplied with statements from the mother and one of the sisters of the deceased which indicated that the sentence passed on the Appellant was having an adverse affect on their ability to come to terms with the loss and grief which they had suffered following the death of the deceased. In giving the judgement of the court, Judge, J. (as he then was) said:-
"We mean no disrespect to the mother and sister of the deceased, but the opinions of the victim or the surviving members of the family, about the appropriate level of sentence do not provide any sound basis for reassessing a sentence. If the victim feels utterly merciful towards the criminal, and some do, the crime has still been committed and must be punished as it deserves. If the victim is obsessed with vengeance, which can in reality only be assuaged by a very long sentence, as also happens, the punishment cannot be made longer by the court than would otherwise be appropriate. Otherwise cases with identical features would be dealt with in widely differing ways leading to improper and unfair disparity, and even in this particular case, as the short judgment has already indicated, the views of the members of the family of the deceased are not absolutely identical. If carried to its logical conclusion, the process would end up by imposing unfair pressures on the victims of crime or the survivors of crime resulting in death, to play a part in the sentencing process which many of them would find painful and distasteful. It is very far removed from the court being kept properly (emphasis added) informed of the anguish and suffering inflicted on the victims by crime."
Nevertheless the court did find it possible as an act of mercy to reduce the sentence. In the report in (1996) Criminal Law Review 210 there is a commentary, referring to other authorities, which was quoted in full and with approval by the present Lord Chief Justice in Roche [1999] 2 Cr App R(S) 105 to which we will refer shortly. In Hird [1998] 2 Cr App R(S) 241, a case of causing death by dangerous driving, the widow and daughter of the deceased had written to the court describing the effect of the death on the family and asking the court not to interfere with the sentence of 30 months' detention imposed on the Appellant. The court observed that it was the type of case in which human feelings run strongly and because there is a potentially wide disparity in what might be considered the appropriate sentence, it was essential, in the interests of justice to all, that the courts should act with some degree of consistency, bearing in mind always that the facts of each case must be looked at individually. The court went on to review the authorities and concluded that the appropriate sentence was one of 21 months. At page 244 Toulson, J., giving the judgement of the court, said:-
"It is our duty to look at the matter afresh, conscious of the feelings on both sides, but above all seeking to apply loyally the guidance which we find in the cases to which we have referred. Testing the matter in that way, we have been persuaded, on careful consideration, that the sentence imposed by the Judge was above the tariff set within that line of authorities, and that consistently with the approach that this court has taken in cases of this kind, the appropriate sentence is one of 21 months' detention."
In the case of Roche, the Applicant pleaded guilty to causing the death of his cousin by careless driving while under the influence of drink or drugs. The court acknowledged that there could be two exceptions to the general rule that a court must pass a sentence in accordance with the governing sentencing considerations. The first is if the sentence passed on the offender is actually aggravating the victim's distress; the sentence may then be moderated to some degree. The second is where the victim's unwillingness to press charges and forgiveness of the offender indicate that the psychological and mental suffering must be very much less than might otherwise be the case. Reference was made to the case of Hutchinson [1994] 15 Cr App R(S) 134 , a case of rape by a man of his former partner from whom he was separated but who had attempted to withdraw the charges and had forgiven the Appellant. Another example is to be found in Mills [1998] 2 Cr App R(S) 252. In Roche the Lord Chief Justice said at page 109 :-
"It is of course a cardinal principle of sentencing that it is for the court to pass what it judges to be the appropriate sentence, having regard to all the circumstances relating to the offence and the offender. The system is not one which allows the injured party to dictate the sentence to be imposed, which must always have regard to wider considerations than the wishes of those who suffer as the result of the commission of criminal offences. Just as it is not for the injured party to call for such and such a sentence to be imposed by way of vengeance, so it is not for the injured party to prevail by calling for a sentence well below the level of sentence ordinarily passed. If the court were as a matter of course to accede to a plea for vengeance by the relatives of a deceased person, then it would be appropriate to pay regard to pleas for compassion also. But the court is not swayed by demands for vengeance and has to be very cautious in paying attention to pleas for mercy."
The Lord Chief Justice went on to consider the facts of the particular case and to conclude that the court may in appropriate circumstances and to some degree become an instrument of compassion as it had in the case of Nunn. The sentence of four years was reduced to one of three years.
In the case of H [1999] "Times" 18th March, also reported in Current Law April 1999 144 the Judge was provided, prior to sentencing, with statements from five complainants to offences of indecent assault indicating that the abuse had had a serious impact on their lives and their relationships with their children. In allowing an appeal against sentence the court observed that the victims had not been cross-examined on their statements which necessarily reflected only one side of the case and therefore had to be approached with some caution. A total sentence of nine years was reduced to six years.
In our judgement a number of propositions can be derived from the authorities.
1. A sentencer must not make assumptions, unsupported by evidence, about the effects of an offence on the victim.
2. If an offence has had a particularly damaging or distressing effect upon a victim, this should be known to and taken into account by the court when passing sentence.
3. Evidence of the effects of an offence on the victim must be in proper form, a Section 9 witness statement, an expert's report or otherwise, duly served upon the defendant or his representatives prior to sentence.
4. Evidence of the victim alone should be approached with care, the more so if it relates to matters which the Defence cannot realistically be expected to investigate.
5. The opinions of the victim and the victim's close relatives on the appropriate level of sentence should not be taken into account. The court must pass what it judges to be the appropriate sentence having regard to the circumstances of the offence and of the offender subject to two exceptions:-
(i) Where the sentence passed on the offender is aggravating the victim's distress, the sentence may be moderated to some degree.
(ii) Where the victim's forgiveness or unwillingness to press charges provide evidence that his or her psychological or mental suffering must be very much less than would normally be the case.
In allowing the appeal we disregarded Mr Parker's document and treated Mrs Parker's witness statement of 23rd September with the appropriate degree of caution. It is to be regretted that Mr Parker's document generated the concern expressed by Mr Quirke on behalf of the Appellant and also by this court. It is to be hoped that in future "victim impact statements" will be in proper form as envisaged by this court in Hobstaff .
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