England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		24th October 2007

1. MR JUSTICE BURTON: On 21st December 2006 in the Crown Court at Cardiff the appellant pleaded guilty to a number of offences arising out of four different indictments. We shall identify those by letters in order to make the understanding of them slightly easier.
2. On indictment T20067631 he pleaded guilty to unlawful wounding contrary to section 20 (offence A) and to affray, (offence B) both committed on 23rd June 2006. On indictment T20060835 he pleaded guilty to assault occasioning actual bodily harm on 5th September 2006 (offence C). On indictment T20067632 he pleaded guilty to robbery on 19th September 2006 (offence D). On indictment T20067594 he pleaded guilty to attempted robbery, to wounding with intent contrary to section 18 of the Offences Against the Persons Act, to possessing an offensive weapon and to affray (offences E, F, G and H) all committed at the same time on 21st September 2006.
3. On 19th January 2007 he was sentenced by Mr Recorder Curran to imprisonment for public protection, pursuant to section 225 of the Criminal Justice Act 2003, which we shall refer as an IPP and the 2003 Act respectively, with a minimum term of 4 years and 6 months, in respect of offences D, E, and F. He imposed no separate penalty in respect of the other offences and certain other counts were left on file.
4. The facts of the offences were as follows. First of all, offences A and B, on 23rd June 2006: he had been drinking with friends in a bar. At around 10.30 pm he was told a friend of his was involved in a fight outside and he went outside and he tried to intervene with a number of people who were fighting there. At first he was pushed away, but the victim of the unlawful wounding, Anna Llewellyn, approached him, and he punched her heavily to the face, so hard that she fell to the ground and lost consciousness. He remained at the scene. He was seen by witnesses jumping around the area and waving his arms in the air.
5. When the police arrived the victim was still lying on the ground. She was taken to hospital and treated for a split lip which required five to seven stitches, a loosened tooth, a swollen face and a graze to her forehead. She has made a victim statement which indicates the severity of the injuries, and the residual effect of the injuries was a continuum of headaches.
6. He admitted the offence the following day when interviewed. He was bailed.
7. Whilst on bail he committed offence C. This was 5th September 2006, just over 2 months later. He was on a No 61 bus in Cardiff. He stood up at a bus stop but did not make an attempt to get off the bus. The driver of the bus, the victim, as he became, Richard Snape, drove on and after he had started to drive off the appellant shouted "Fucking let me off you prick." The victim made an emergency stop. The appellant tried to reach around the glass of his cab and spat at the glass and broke the glass. He continued to be abusive and the victim, Mr Snape, picked up a metal piece of frame work to get him off, and he then punched the victim a number of times to the face. He was left with bruising to his left eye, cheekbone and eyebrow and cuts to his hands. He made a "no comment" interview at the time. He pleaded on the express basis that he had punched the window in front of the driver and that the window had smashed and as a result of that he had made contact with the victim's eye. Once again he was bailed and thus was still on bail, now, for the first three offences when he committed the fourth offence, on 19th September, a fortnight after his release on bail for the third.
8. This was a robbery. He was, at about 7.15 pm on that day, the 19th September, in a public house and he saw the victim, as she became, of the robbery, Naomi Williams, and he accused her of having sold him a mobile telephone which was defective. He approached her and grabbed a bottle of lotion from the shopping bag that she had with her. When she complained, he replied: "Don't accuse me of being a thief, you little whore". The victim and her friends left the premises but, as she was getting into her car, he ran after her and jumped at the car smashing a window with both his feet. He continued verbally to abuse and punched and slapped her and said: "Give me the fucking money you bitch." She pulled out £40 and handed it over, and she then managed to get into the car. He shouted that she had more money than that. As she drove off the appellant kicked out at the car damaging a wing mirror and a panel. This victim was left with no visible injuries but was sore.
9. He made off, and was not arrested for this matter until after the further offences which he committed two days later, while still on bail in respect of the earlier matters. This was about 1.00 am on 21st September 2006, and the victim of this series of offences, Michael Richards, was walking towards Cardiff Central Station, intending to use a cash machine. He was approached by the appellant, who was carrying a knife with a 4-inch blade. He demanded money from the victim, who took out his wallet and showed that it was empty, explaining that he was on his way to a cash point. The appellant knocked the wallet from his hand and at that point two young females nearby told him not to be so stupid, a third woman walked by and the victim said to her that he was scared, and asked if he could walk with her, and she agreed. As they walked away the appellant went after them and stabbed the victim to the forearm and the back with the knife, and punched him a number of times to the head.
10. The victim contacted the police after running off. He was taken to hospital where he received four stitches for a wound to his left forearm and three stitches for a wound to his back. He had a wound to his left ear, a cut to the left wrist and a 5-inch cut to his right forearm. The police attended, and saw the appellant holding the knife. He denied having the knife, but, when sprayed with CS spray, threw it in the air, and was restrained. He said he could not remember a confrontation with the victim, because he had been drinking all day and taking drugs, and he remembered, he said, that he had picked up the knife from home.
11. The appellant has a previous record involving 18 previous offences and 13 different convictions in respect of them. None of those are anywhere as serious as the matters which now come before the Court, but they do include, on 20th January 2003, a conviction on a plea of guilty of assault occasioning actual bodily harm, for which he was given a community rehabilitation order, and offences, for which he was dealt with on 17th September 2004, of burglary of a non- dwelling-house, for which on a plea of guilty he was sentenced to 8 months in a young offender institution, and of possessing an offensive weapon in a public place and affray, for which he was sentenced to 4 months in a young offender institution, consecutive to the 8 months for the burglary.
12. He produced character references for the judge from members of his family. Since the conviction and his imprisonment he has produced before us impressive records of how he has been getting on in prison and responding to a number of the programmes in which he had taken part, with which he should himself be very satisfied.
13. However, the learned judge had to deal with these eight very serious offences. The judge noted in sentencing that the appellant fell to be sentenced for offences of serious violence, and he noted the specified offences for which he had previously been convicted, which rendered him liable for the dangerousness provisions of the 2003 Act. He noted the assaults, particularly on Anna Llewellyn and Michael Richards, and that the offences were committed while on bail and that it required two police officers using CS gas to subdue him, and the fact that the violence escalated after the earlier offences, to the extent that he armed himself with a knife and stabbed a stranger in the last series of offences.
14. He concluded that there was a risk of significant harm; as he put it, the risk of his committing further specified offences was such that there was no doubt in his mind, nor is it challenged before us, that an IPP was appropriate. He concluded, as he said after giving credit for pleas of guilty and allowing for totality, that had he not been proposing imprisonment for public protection, the total sentence would have been 9 years' imprisonment, and that he therefore took the minimum term of the IPP as being four-and-a-half years.
15. The grounds of appeal settled by counsel, for which leave was given by the Single Judge, was that the sentence was manifestly excessive because:

1. Insufficient weight was given to the pleas of guilty;

2. Insufficient regard was had to the principle of totality.

16. The matter came before the Full Court on 27th July 2007, and the Court raised two questions, as a result of which the matter was adjourned to come on before us, and we have had the benefit of written submissions, both from Miss Bahia, for the appellant, and Miss Whitehouse, for the prosecution, for which we are grateful. But, in essence, they are both agreed that those two questions can be straightforwardly answered, and we now give the answer to them.
17. The first question was: can a sentencing judge take into account all offences, that is any specified offences within schedule 15 of the 2003 Act, in arriving at the minimum term for the purposes of an IPP? That is what this learned judge plainly did, in accordance with his full explanation of how he arrived at the minimum term. Thus question can be answered by reference to the decisions of this Court. In R v O'Brien [2007] 1 Cr App R(S) 75 at 442, at paragraph 58, the Court indicated, per Hooper LJ, that it was undesirable to impose consecutive indeterminate sentences, or to order an indeterminate sentence to be served consecutively to another period of imprisonment. But what the court concluded, at paragraph 68 of the same judgment, was that the notional determinate term, which should then become the minimum term for the purposes of an IPP, should reflect the "totality of the offending", as it was described by Hooper LJ. That has now become incorporated in the sentencing guideline, issued by the Sentencing Guidelines Council in September 2007, which specifically says at paragraph 10.2.1:

"The court should order the other sentence of imprisonment to be concurrent with the sentence of imprisonment for public protection and increase the notional determinate sentence to take account of the overall criminality."

18. A similar course was taken in R v O'Halloran [2006] EWCA Crim 3148 (see paragraphs 35-37) in the judgment of the Court, given by Treacy J with the President of the Queen's Bench Division presiding (see also to the same effect the case of R v Edwards [2007] 1 Cr App R(S) 106 at 646, paragraph 20).
19. The answer therefore to the Full Court's question is that a sentencing judge not only can, but should, take account of the total criminality, in arriving at and imposing the minimum term for an IPP, that is the total criminality of all the matters for which the court was sentencing.
20. The second question arose out of the fact that, as was pointed out by the Registrar, there had been no order made in respect of offences A, B, C, G and H. Of those offences, all save G were specified offences. Sections 227(1) and (2) of the 2003 Act apply in respect of all those offences, so that in fact the court could not impose no order in respect of them. By s227, the following provisions are set out:

"(1) This section applies where—

(a) a person aged 18 or over is convicted of a specified offence, other than a serious offence, committed after the commencement of this section, and

(b) the court considers that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences.

(2) The court must impose on the offender an extended sentence of imprisonment, that is to say, a sentence of imprisonment the term of which is equal to the aggregate of—

(a) the appropriate custodial term, and.

(b) a further period ('the extension period') for which the offender is to be subject to a licence..."

That meant that in respect of two affrays, the one unlawful wounding and the one assault occasioning actual bodily harm, where no order was imposed, all of them being specified offences, section 227(2) ought to have been, but was not, operated by imposing an extended sentence.

21. This question was addressed in paragraph 20 of the judgment of this Court in R v Stephen Howard Lang [2006] 2 Cr App R(S) 3 at 13, [2005] EWCA Crim 2864; also by this Court in R v Reynolds [2007] EWCA Crim 538, at paragraphs 36 to 37 and Edwards at paragraph 29. The failure by the learned judge was understandable in the light of the difficulties of the legislation and the apparent lack of common sense in the imposing of a sentence which involves the operation of a licence while the defendant remains in prison. But the effect is nevertheless straightforward, and that is that there ought to be an extended sentence imposed, concurrent with the minimum term of the IPP, in respect of all the specified offences, even though of course they will be subsumed under the minimum term which he will then be serving in custody. The imposition of such an order on appeal in order to comply with the statutory requirements, with regard to offences on which no order had been made, does not offend under s11 of the Criminal Appeal Act, provided that the total custody is not affected or in any way extended. In this case that can be straightforwardly done, and we propose, with the agreement of both sides that it is the proper course, to do it in this case. Thus in respect of the two affrays, offences B and H, the section 20, that is offence A, and the assault occasioning actual bodily harm actual bodily harm, that is offence C, we substitute for no order, or we rather impose an order, that there will be an extended sentence of 2 years, consisting of 12 months custody and 12 months licence, concurrent with the IPP minimum term.
22. That takes us back to the ground of appeal which was originally put forward (in respect of which the Single Judge gave leave) by Miss Bahia before the matter came before the Full Court in July.
23. What happened here is that there was a period of what the learned judge described as escalating violence by this defendant, over a period of months, and while on bail. There were two robberies or attempted robberies. There was a wounding with intent with a knife. There was an unlawful wounding with relatively severe consequences. There was an assault occasioning actual bodily harm. There were two offences of affray and the offensive weapon.
24. The learned judge plainly concluded that the dangerousness provisions of the 2003 Act were upheld. There is no appeal, as we have indicated, and we entirely agree with the conclusion. Miss Bahia submits that in considering whether there has been a manifestly excessive sentence, we should be careful to ensure that the learned judge did not include the element of dangerousness in topping up the sentence, when it was already separately provided for by the making of the IPP; otherwise there might be thought to be doublecounting. We do not conclude there is any difficulty in that regard in this case, because the learned judge did indicate his thinking in the make up of the 9 years, reduced to four-and-a-half for the purposes of the IPP minimum term, in the course of his sentencing remarks, in reflecting the totality of the criminality in the way that he is entitled and obliged to do, as we have previously described.
25. So far as the offences A, B, C and D are concerned, on three different indictments and on three different occasions, he allocated four-and-a-half years to those matters; two years for the robbery of Naomi Williams, one-and-a-half years for the unlawful wounding of Anna Llewellyn and the affray (with the affray sentence concurrent) and a year for the assault on Richard Snape. The other four-and-a-half years he allocated to the fourth indictment, and offences E, F, G and H: four-and-a-half years, that is the total of that period, to the stabbing with the knife, the wounding with intent, with the other offences concurrent, attempted robbery 2 years, the affray and the offensive weapon 6 months. That led to a 9 year period, which he said he would have imposed by way of a determinate sentence. So we are not in any area of guesswork; we have the workings by which the learned judge arrived at it. Miss Bahia points out that that is on a plea, and on four contested indictments, had they been, then that results at a totality, assuming, as one must and does, a full discount for plea, of a period of thirteen-and-a-half years. The appellant is now 23, and for him 9 years for a determinate sentence, four-and-a-half years for a minimum term in respect of IPP, is a long period to have to stomach. It is plainly a severe sentence. We have to ask ourselves, however, as the Court of Appeal, whether it was manifestly excessive, and we must also remind ourselves that it was not in respect of one offence. It was in respect of eight, committed on four separate occasions, and involving three occasions when injury was caused to innocent people. The suggestion by Miss Bahia is that the learned judge failed to give sufficient credit for the plea. The learned judge said he was in doing so. We have no reason to doubt he did. We turn to the second issue, which is, given that he did give full credit for plea, does the 9 years total, after full discount for a plea, give sufficient credit for totality, the second basis on which Miss Bahia makes her submission.
26. Given that we have the workings of the learned judge, we can see he did not arrive at that figure without careful thought as to the ingredients. Each one of those offences we have mentioned, particularly the robberies and the woundings could have led, if they had stood alone, to higher sentences than were imposed on the basis of how the learned judge explained his calculation in respect of them as they stood together. It is plain the learned judge did take account of totality in giving a lesser sentence because he was dealing with them all together than he would had he dealt with him separately. But a court must also guard against any suggestion that someone can have a free go at a further offence because they have already committed others. That is obviously illustrated in this case, whereby these offences were committed while on bail over a relatively short period, when the original offences might well have led to almost as lengthy sentences as were in fact imposed on him.
27. We are satisfied that it was necessary to consider totality, but that this learned judge did so. The sentence that he arrived at may well be thought to have been severe, it is perhaps on the high side, but cannot possibly qualify for the requirements of the manifestly excessive, which will entitle this Court to intervene, and we do not. In those circumstances, this appeal is dismissed.