England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		21st November 2007

1. HIS HONOUR JUDGE RICHARD BROWN: On 31st July 2007 at the Hull Magistrates' Court the applicant pleaded guilty to two offences and was committed to the Crown Court for sentence. On 24th August 2007 in the Crown Court at Hull before His Honour Judge Thorn, he was sentenced in the following way: offence 1, assaulting a police officer, 4 months' imprisonment; offence 2, driving with excess alcohol, a similar sentence of 4 months' imprisonment, those sentences, at this stage, to be concurrent with each other. He admitted being in breach of a suspended sentence order, comprising a 51 weeks' imprisonment suspended for 2 years, with a requirement of 2 years supervision, which had been imposed on 9th December 2005 in the Crown Court at Hull for an offence of unlawful wounding. That suspended sentence was implemented in full. Therefore a period of 51 weeks and the 4 months from the other offences was made to run consecutively. The total sentence therefore was one of 51 weeks and 4 months' imprisonment. He was disqualified from driving for a period of 2 years and thereafter ordered to take an extended re-test. The applicant now has leave from this Court to appeal against sentence.
2. The facts of the individual offences can be dealt with relatively briefly. We start with the matters that brought him before the Crown Court from the Magistrates' Court. At 11.25 pm on 25th April 2007 two police officers in a marked police vehicle had cause to stop a car being driven by the appellant. When they spoke to him it was apparent that he had been drinking and one of the officers asked him to get out of the car and go and sit in the rear of the police car. He did so but it was noted that he was unsteady on his feet. A breath test was carried out and this proved to be positive. He was cautioned and arrested. The officer went to the appellant's car to explain to the passenger in it what was happening and, when she returned to the police car, the passenger accompanied her. By that time the appellant was out of the police car and he began passing items of property to the passenger. He was told by the officer to stop, and at this point the appellant pushed the male officer out of the way. When the female officer tried to stop him, the appellant punched her in the chest and then, with considerable force, a blow in her eye. The officer stumbled back and cried out in pain. The appellant began to struggle with the male officer who needed assistance from a member of the public in order to restrain him. He was taken to the police station where he provided a reading of 93 micrograms of alcohol in 100 millilitres of breath, the legal limit of course being 35. When interviewed he denied punching the officer in the face.
3. The offence of unlawful wounding had occurred on 30th August 2005. On that occasion the appellant and his partner had been out for the evening and had drunk around 8 or 9 pints of alcohol, beer, each. On their return home the appellant began to make supper in the kitchen but was called through to the lounge by his partner. The appellant appeared, in his words, to be messing about with a kitchen knife which he then used to stab his partner in the abdomen. He claimed that a second stab wound was inflicted because his partner was struggling to take the knife off him. The victim sustained two puncture wounds to his liver as a consequence of the appellant's actions on that occasion.
4. When sentencing the appellant on this occasion, that is the occasion that we are concerned with, the learned judge noted that the appellant had indeed got previous convictions for violence and drinking related offences and of course that he was in breach of the suspended sentence. The judge went on to say:

"It follows that the 51 weeks that were ordered to be suspended must now be served and that is the starting point of the sentence."

In particular he said:

"No doubt when you were sentenced on that occasion, regard was had to the period of time you had spent in custody."

He went on to note that on the later matters the appellant had an excess alcohol reading of approximately three times the legal limit. He noted that although pleas of guilty had been entered, it had taken what he called a "threat" of a Newton hearing before the matters had been resolved.

5. In his grounds of appeal, in writing and before us today, counsel, Mr Thompson, argues that the total of 51 weeks plus 4 months in total sentence is wrong in principle and manifestly excessive. He argues that time spent on remand prior to the passing of the suspended sentence should be ordered to count, and that no allowance has been made for the compliance with the supervision requirement of the original order. Further, he submits that insufficient credit was given for the guilty pleas for later matters and that the starting point for those matters is too high. He refers to the restriction on the sentencing powers that the magistrates would have had for these later matters.
6. We have considered these submissions with care. The offence of wounding for which the suspended sentence was imposed was committed on 30th August 2005 and is therefore governed by the suspended sentence provisions under section 189 of the Criminal Justice Act 2003 and the remand time provisions under section 240 of that same Act. Section 240 (7) of the Act provides that section 240 applies to a suspended sentence at the point of time that it is activated following the conviction of a further offence or breach of a community requirement. Accordingly, in this present case the judge was obliged, under section 240(3), to direct that the days spent in custody on remand for the earlier offence were to count, unless any exception under section 4(b) applied. No such exception appears to be relevant in this case and indeed, if it had been, the judge would have been obliged to have spelt it out in open court. We are told by the authorities that the time in fact spent in custody pending sentence was 100 days, and we shall deal with that in a few moments.
7. The learned judge of course also ordered the entire suspended sentence of 51 weeks to be activated. When activating such sentences the courts are given the power to order that something less then the original total should be imposed, having regard to the extent to which the offender has complied with the community requirements of the suspended sentence order. In this case the community requirement had been running for something in the region of 18 months before the implementation of the suspended sentence. Again, we take the view that that should have been reflected in the length of the period ordered to be activated.
8. As far as the later offences are concerned, they are, in our view, serious matters, and we are satisfied that a sentence of 4 months in total for those offences cannot be argued to be manifestly excessive or wrong in principle. Accordingly, we propose to allow this appeal in the following way: we quash the original sentence; we order that 8 months of the original suspended sentence be activated. The sentence of 4 months is to be ordered to run consecutively, and therefore a total sentence of 12 months' imprisonment. One hundred days spent in custody will count towards that sentence. The disqualification and re-test requirements will remain as originally ordered. To that extent this appeal is allowed.