England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Tuesday, 24th June 2008

1. HIS HONOUR JUDGE ROBERTS: This is an appeal against sentence by permission of the single judge.
2. The sole point raised by the appeal concerns the direction under section 240 of the Criminal Justice Act 2003. The direction was that the time served by the appellant in custody on remand after he admitted the offences to which he was sentenced should count towards his sentence, but not the time served prior to his admission of guilt. It is submitted on the appellant's behalf that that direction was wrong in principle and that the whole period served in custody on remand should count towards the sentence. In the circumstances it is unnecessary to set out the facts of the case in any great detail.
3. The appellant is Carl Michael Vaughan, who is now aged 28. He has previous convictions for a number of offences, including assault occasioning actual bodily harm, in December 1996, and inflicting grievous bodily harm, in October 2002.
4. In the early hours of 9th April 2006 the appellant and two other men forced their way into a ground floor flat in Exmouth which was occupied by a couple and their 13-year-old son. The intruders were intent on robbery and used a certain amount of violence to the male occupier but they left empty handed. In the course of the incident the male occupier was threatened with a Stanley knife.
5. On 24th April 2006 the appellant was arrested and interviewed. He made no comment and was released on bail.
6. Late on the evening of 23rd June 2007 the appellant and one other man forced their way into a terraced house in Exmouth, occupied by a different couple. They were again intent on robbery. The female occupier was made to pull down her negligee and then verbally insulted. The male occupier was kicked several times in the groin, causing severe bruising. The intruders left with two mobile telephones, a bottle of perfume, some tobacco and some prescribed medication.
7. On 30th June 2007 the appellant was arrested for and interviewed about the second incident. Again, he largely gave a no comment interview. This time he was remanded in custody.
8. He was charged, as regards the first incident, with aggravated burglary and assault with intent to rob, and as regards the second incident, with robbing both victims, simple burglary and inflicting grievous bodily harm.
9. When he appeared in the Crown Court at Exeter he initially pleaded not guilty. But on 21st December 2007, by which time he had been remanded in custody for 172 days, he came to an agreement with the prosecution. Under that agreement he pleaded guilty, as regards the first incident, to simple burglary and assault occasioning actual bodily harm; and, as regards the second incident, to simple burglary and inflicting grievous bodily harm. It was agreed that those pleas were entered on a "full facts basis" and that the charges to which the appellant did not plead guilty should lie on the file on the usual terms.
10. The appellant was extremely fortunate that the matter was resolved in that way. As his counsel, Mr Strongman, realistically accepted, by virtue of the facts of these and his previous offences and other information before the court, the appellant clearly satisfied the dangerousness criterion for the purposes of the Criminal Justice Act 2003. Aggravated burglary, robbery and assault with intent to rob are all serious specified offences, and if the appellant had been convicted of any of those offences a sentence of imprisonment for public protection would have been inevitable.
11. Sentence was postponed to 25th January 2008, a further 35 days, for a pre-sentence report to be obtained. The recorder, who sentenced the appellant on that day, duly found that the appellant satisfied the dangerousness requirement. He was therefore obliged to pass extended sentences under section 227 of the 2003 Act, for the offences of assault occasioning actual bodily harm and inflicting grievous bodily harm, both of which are specified offences but not serious ones.
12. The recorder imposed concurrent extended sentences for those two offences, comprising in each case a custodial term of 3 years and an extension period of 2 years. In addition, he imposed sentences of 12 months' imprisonment for the two burglaries, to run concurrently with each other and with the extended sentences.
13. In fixing the lengths of those sentences the Recorder made it clear that he was giving the appellant substantial credit for his pleas of guilty, though not the full one-third credit which he would have received if he had pleaded guilty at the first reasonable opportunity. The amount of credit allowed was in fact 25 per cent, which was entirely appropriate in the circumstances.
14. Thus far no complaint is made or could be made about the recorder's approach to the case or the sentences which he imposed. However, when it came to section 240, the Recorder said this:

"I direct that only 35 of the 207 days you have served will count towards the sentence, that is the period since you entered your guilty pleas on 21st December of last year."

Mr Strongman invited the recorder to reconsider that direction but he declined to do so.

15. Mr Strongman now submits, and we agree, that the recorder's approach was wrong in principle and that the full 207 days should count towards sentence.
16. Subject to certain other qualifications which are immaterial for present purpose, section 240 provides that the court must direct that the number of days for which the offender was remanded in custody in connection with the offence or offences to which he was sentenced is to count as time served by him as part of the sentence unless "it is in the opinion of the court just in all the circumstances" not to give such a direction.
17. Section 240(6) provides that where the court does not give such a direction, or gives such a direction in relation to a number of days less than that for which the offender was remanded in custody, it shall state in open court what are the circumstances which cause the court to be of the opinion that no section 240 direction should be given or that the full number of days should not count towards the sentence.
18. In the present case the recorder did not expressly state what the relevant circumstances were, but it is implicit in what he did say, both in passing sentence and in the subsequent discussion with Mr Strongman, that he was of the opinion that the fact that appellant did not admit his guilt until 21st December 2007 justified the conclusion that the time he had served up to that date should not count towards his sentence.
19. The section itself does not attempt to lay down any hard and fast rules as to what circumstances might justify the refusal to give a full section 240 direction. Nor do the judgments of this court in the two cases to which our attention has been drawn, R v Norman & Ors [2006] EWCA Crim 1792 and R v Gordon & Ors [2007] EWCA Crim 165.
20. We are, however, entirely satisfied that the fact that a defendant was continuing, during the period in question, to maintain his denial or non-admission of guilt is not a factor which can in itself amount to a sufficient justification for withholding a section 240 direction in relation to that period. Indeed, a defendant who maintains a denial of guilt right through to conviction is normally entitled to a full section 240 direction in respect of time spent in custody awaiting a trial.
21. The normal and proper way to reflect a defendant's failure to acknowledge his guilt by a plea of guilty at the first reasonable opportunity is by withholding any discount for plea (in a case of a defendant who is convicted after a trial) or given a reduced discount (in the case of a defendant, like this appellant, who pleads guilty but not at the first reasonable opportunity). To withhold the normal section 240 direction on top of withholding or reducing the discount for plea was correctly described by Mr Strongman as taking the same matter into account twice over. That is wrong in principle.
22. We therefore quash the recorder's section 240 direction and substitute in its place a direction that the full 207 days served in custody on remand should count towards the appellant's sentence. To that extent, we allow this appeal.