England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		16th May 2008

1. MR JUSTICE DAVID CLARKE: The appellant in this case, Gary William James Reid, is aged 29. He pleaded guilty in the Crown Court at Stafford before Mr Recorder Qureshi on 6th February 2008 to two counts of handling stolen goods. He was sentenced on the same day to a total of 16 months' imprisonment, being ten months' imprisonment on count 3, which was added to the indictment as an alternative to a count of burglary), and to six months' imprisonment consecutive on count 2, which stood already on the indictment as a count of burglary in respect of other property. A not guilty verdict was entered on the primary count of burglary.
2. The appellant appeals against sentence by leave of the single judge.
3. The appellant only entered the pleas on the date of trial, having been due to face trial for the offence of burglary of items found by his car in these circumstances. At about 1.30am on 7th July 2007 he and his partner, a lady called Dugmore, were in a motor car near a gateway leading into the Chasewater Country Park in Staffordshire. Near the vehicle, just behind it, were a number of power tools which were the majority of the stolen goods concerned in count 3.
4. The appellant was in the passenger seat. The officer approached and the appellant's partner said they were having a domestic dispute and needed five more minutes to sort things out. The officers searched the vehicle and found gloves, a pruning saw and a torch. It was realised by the officers that the unit, County Council property within the park, had been broken into.
5. The home of the appellant and his partner was searched and more goods from the burglary at the country park were found, together with separate items the subject of count 2, a wake board and a crash vest which had been taken in an earlier burglary at a sports centre at the water park.
6. The manager of the country park identified the property as belonging to the park. The tools included seven chainsaws, two cutters and other tools and items. The total valuation of that property was given at about £4,000.
7. In interview the appellant denied breaking into the unit. He said that he had found the property. So far as the items, the wake board and the crash vest at his home, he said that he had bought them.
8. The appellant pleaded guilty on the date of sentence on the written basis that he had been told by a party he knew that he had things he needed to get rid of and to have stored. The appellant agreed to assist him by storing those goods. He realised that they were stolen. He was to be paid about £50 for his services. As for the other items, he had bought them at a low price from a third party, knowing or believing them to be stolen.
9. It is apparent that the prosecution accepted these bases of plea. They thereby accepted that the appellant, although at the scene soon after the burglary, had not had any part in it. This resulted in the Crown offering no evidence against the appellant's co-defendant, who had been in the car with him.
10. The plea to handling had been offered at the time of the plea and case management hearing, but had not been accepted. The appellant could not have entered the plea at that time because there was no such count on the indictment in respect of that property.
11. The appellant had a bad record for offences of dishonesty between 1996 and 1999. During that time he served a number of custodial sentences in a young offender institution, but he had had no convictions since 1999 apart from one in Jamaica in 2003 in relation to drugs.
12. The appellant's counsel, as is normal, applied for an adjournment for a pre-sentence report. The Recorder refused that application. It is clear from the transcript that this refusal took the appellant and his counsel by surprise. The Recorder's view was that a prison sentence was inevitable and that there was no purpose in raising the appellant's hopes to the contrary. This refusal forms the first ground of appeal, to which we shall turn shortly.
13. The Recorder in his sentencing remarks described the facts of the offence by reference to the guideline case for handling stolen goods, R v Webbe [2002] 1 Cr App R (S) 22. He emphasised the aggravating factor in relation to count 3, that the handling took place in circumstances placing the appellant very close to the burglary and thus to the burglar. He remarked that the value of the goods was not high, but it was not low either. He set out the previous convictions. He decided that consecutive sentences were appropriate, because of the separate burglaries from which this property originated.
14. The first question before us is whether the judge should have adjourned for a pre-sentence report. In our view he should. There had been a long gap in this man's offending history. It should not on the facts of this case have been concluded, without the benefit of a report, that an immediate prison sentence was inevitable. However, that is not the only reason for the need for a pre-sentence report.
15. In the case of an adult offender, the court may dispense with a pre-sentence report, pursuant to section 156(4) of the Criminal Justice Act 2003:

"... if, in the circumstances of the case, the court is of the opinion that it is unnecessary to obtain a pre-sentence report."

16. The judge took the view that since custody was inevitable, it was not necessary. He further took the view that to adjourn for such a report would give rise to an expectation that a custodial sentence might be avoided.
17. It seems to us that neither of these reasons survives scrutiny. As to the first, it must be remembered that to impose a prison sentence the court must form the opinion mentioned in section 152(2) of the Act, namely that the offence was so serious that neither a fine nor a community penalty can be justified. Then, having formed that opinion, the length of the sentence must be considered, for which purpose the court must apply section 153(2) and impose the shortest term which in its opinion is commensurate with the seriousness of the offence. The requirement to obtain a pre-sentence report, enacted in section 156(3), relates to both elements of this process, not only to forming the opinion whether a prison sentence should be imposed, but also as to its length. The learned judge appears to have overlooked those provisions.
18. In this particular case, in our judgment, there was a particular factor which made it necessary to obtain a pre-sentence report, namely the long gap in time since the appellant's prolific offending as a younger man.
19. As to the learned judge's second reason, it is conventional when adjourning for a pre-sentence report to make it clear to the defendant that all sentencing options are open, including a custodial sentence. The fact that a judge considers that prison is inevitable is not in itself and by itself a sufficient reason for refusing a pre-sentence report.
20. This appeal was therefore listed before the full court, the single judge having granted leave, on 25th April. No pre-appeal report having been obtained, there was therefore still no material from the probation service before the court.
21. The court, as presently constituted, was also told that the appellant awaits sentence in the Crown Court for an offence of escape from custody because he absconded from an open prison on 12th April 2008 and was at large for three days, before he surrendered himself to the police and returned to prison, since which time he has naturally been kept in secure conditions.
22. It seemed to us on that day that if we were to hold, as we were minded to hold, that a report should have been obtained, it would be wrong to proceed to dispose of the appeal without ourselves obtaining a pre-appeal report. We therefore adjourned the hearing for three weeks for that purpose, asking that the report should encompass also the offence of escape for which the appellant still awaits sentence by the Crown Court.
23. We have been provided with a pre-appeal report from the probation service, for which we are grateful. It discloses that the history of offending up 1999 was drug-related. The appellant became drug-free in about 2001, when his daughter was born. His offence in Jamaica was for commercial purposes for profit, not to feed his own addiction. He was then held in harsh conditions in prison in Jamaica. We were given some details of that in oral submissions last time. That has had a traumatic effect upon him, so that he has been on antidepressant medication for some time following his return to the United Kingdom. He has made what has been described to us as a serious attempt on his own life.
24. As the matter now stands, the appellant has some job prospects. It is thought that the risk of reoffending can be reduced by regular employment, and we trust that it is a true opportunity of employment, together with structured intervention by the probation service.
25. We have considered how to deal with this case in the light of the matter as it now stands and the time that the appellant has spent in custody. We do regard the sentences imposed by the learned judge as having been too long. He was entitled to impose consecutive sentences, but the length in total was much too long, particularly having regard to the low value and small amount of property involved in the second count of the indictment. In our judgment, the total prison sentence which would have been proper in these circumstances would not have been more than some nine to ten months.
26. It is submitted that the judge could have held back from imposing an immediate custodial sentence. It may be that, had the learned judge received a report along the lines of that which we now have, he might have reached that conclusion. But having regard to the fact that the appellant has served three months already, we are dealing with the case as it now is.
27. In these circumstances, the court is persuaded to adopt the suggestion made in the pre-appeal report and to impose the community order which is set out there. The community order will therefore contain a supervision requirement for a period of 18 months, together with a requirement to complete the Think First Programme at the Walsall Probation Complex or other location specified by the responsible officer. The report goes on to adopt a suggestion for the Crown Court for the sentence hearing in relation to the escape. This court cannot tie the hands of the judge who deals with that case, but this court will of course ensure that the judge in the Crown Court is aware of the disposal of the principal case that we are now directing.
28. Accordingly, the appeal is allowed and the community order in the terms which we have indicated will be substituted for it.
29. Gary Reid, will you stand up. Have you heard all that I have said this morning?
30. THE APPELLANT: I have.
31. MR JUSTICE DAVID CLARKE: Do you understand that a community order requires commitment and effort on your part, and that you must comply with all directions given by the officer in charge of your community order?
32. THE APPELLANT: Yes.
33. MR JUSTICE DAVID CLARKE: And that there is a particular requirement that you undergo and complete the Think First Programme, which we trust will stand you in good stead in the future and help you to keep clear of going back to criminal activity; do you understand all that?
34. THE APPELLANT: I do, yes.
35. MR JUSTICE DAVID CLARKE: Yes, very well.
36. Thank you, Miss Sarginson. Thank you very much, Mr Gardener.
37. THE ASSOCIATE: On both counts? My Lord, there is a letter from the security services, it came in late, for Mr Reid today explaining their position.
38. MR JUSTICE DAVID CLARKE: Thank you very much. So there was a failure of communication. Yes, the intention apparently was to move him to Brixton in advance of today's hearing, so that he would not be travelling from Birmingham this morning for a 9.30 hearing.
39. MISS SARGINSON: Yes.
40. MR JUSTICE DAVID CLARKE: But the arrangements seem to have fallen down.
41. MISS SARGINSON: Yes.
42. MR JUSTICE DAVID CLARKE: It has not inconvenienced me. It has not inconvenienced my Lord too badly, I believe. I think you are the one most inconvenienced by it.
43. MISS SARGINSON: My Lord, there is no inconvenience.
44. MR JUSTICE DAVID CLARKE: Thank you.
________________________ ____________________________________