England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		18th March 2008

1. LORD JUSTICE MOORE-BICK: On 3rd November 2005, in the Crown Court at Cambridge before Mr Recorder Ayers, the appellant was convicted of incitement to cause grievous bodily harm with intent and of making threats to kill. On the same day he was sentenced to six years' imprisonment for the offence of incitement and three years' imprisonment concurrent for the offence of making threats to kill.
2. The facts giving rise to the convictions arose out of some inter-community unrest in Peterborough caused by the marriage of Pakistani women to men of other ethnic origins. The complainant in this case was an Iraqi Kurd who had married a Pakistani lady, thereby causing some resentment amongst certain people within the Pakistani community. As it happens, this appellant is not himself from Pakistan; he is Indian, his family having originally come here from Uganda, but nonetheless he played a role, as the jury found, in inciting members of the Pakistani community to express their anger and resentment in the form of a violent attack upon the complainant.
3. On 5th February 2005 the appellant, together with a large group of Asian men, some of whom were carrying what looked like golf clubs, gathered outside the complainant's house. The appellant was the ringleader and shouted threats, accusing the complainant of going out with Asian girls and threatening to catch and kill him. The appellant said that the complainant would be the first Kurdish person to be killed with a Pakistani wife.
4. On 9th February, at about 7 pm, the complainant and his wife were sitting in their car in Lincoln Road, Peterborough when they were approached by two Pakistani men and surrounded by other vehicles which prevented their escape. The complainant was pulled out of the car, hit on the head with a brick, beaten with an electrified baton and threatened with a gun.
5. When passing sentence, the Recorder observed that crimes motivated by racial hatred are particularly serious and that it was necessary in his view to impose a deterrent sentence in order to send a message to other members of the community that such behaviour would not be tolerated. Having imposed a sentence of six years' imprisonment, he said this:

"You will serve half of that sentence, and then you will be released, but between the time of your release and the end of the sentence you will be on licence."

6. The appellant sought and obtained from the Full Court permission to appeal against sentence and conviction, but on 30th January 2007 the court, consisting of Longmore LJ, Lloyd Jones J and the Recorder of London, His Honour Judge Beaumont QC, dismissed his appeal.
7. The matter now comes before the court again on a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995. The Commission has referred the matter to this court for consideration on the grounds that:

"It can be inferred from the Judge's sentencing comments that he intended that Mr Giga would serve 3 years in prison. The Judge failed to recognise that, owing to the date of the offences concerned, Mr Giga would be required to serve two-thirds of his sentence (i.e. 4 years) before being entitled to automatic release, rather than one-half."

8. The Commission declined to refer the matter on another ground put forward by the applicant, namely, that he had a legitimate expectation that he would be released automatically after serving half his sentence, and that has not been pursued.
9. The argument for the appellant can be stated very shortly without robbing it of any of its weight. It is that the Recorder, having in mind the effect of the Criminal Justice Act 2003, passed a sentence of six years' imprisonment with the intention that the appellant should spend a period of three years in custody (less of course time spent in custody on remand), but that in the event, because the provisions of the Criminal Justice Act 1991 apply in this case, he will in fact be required to spend four years in custody. The sentence should therefore be reduced to reflect the Recorder's true intention.
10. We are unable to accept that submission. In some cases judges can be seen to have had particular regard to the sentencing regime in force at the time and to have tailored their sentences by reference to the effect which they understand that regime would have on the period which the defendant could expect to spend in custody. However, there is nothing in the Recorder's sentencing remarks to suggest that in determining the correct sentence for these offences he was directing his mind primarily, or indeed at all, to that question. What one sees there is that he determined what he considered to be the correct sentence having regard to the nature of the offences, such mitigation as was available to the appellant and the circumstances of the case as a whole, before providing an explanation of what he understood to be the effect of the statutory sentencing regime – an explanation which he was required by statute to give but which did not itself have any bearing on the time that the appellant would be required to spend in custody.
11. Our attention has been drawn to three authorities in which a similar question has been considered. In the case of Ravel [2007] EWCA Crim 1091 the appellant pleaded guilty to unlawful wounding and perverting the course of justice. He was liable to be sentenced to an extended sentence of imprisonment under the provisions of the Criminal Justice Act 2003 for the offence of wounding. The judge passed a sentence of four years and three months' imprisonment, being a custodial period of 15 months and three years extended period of licence. He passed a consecutive sentence of three months' imprisonment for perverting the course of justice. At the conclusion of his sentencing remarks the judge said that the defendant would have to serve one-half of the sentence, apparently overlooking the fact that under section 247 of the Criminal Justice Act the approval of the Parole Board is required before a prisoner subject to an extended sentence can be released.
12. After the appellant had served nine months of his sentence the Parole Board had still not considered his case so the matter was re-listed before the sentencing judge, who made it clear that he had intended the appellant to serve only 18 months in custody. The Full Court gave leave to appeal, expressing concern that since the judge had passed a sentence intending that the appellant should be released after nine months and that had not occurred, the appellant had an understandable grievance that should be considered on appeal. On the substantive appeal the court expressed some sympathy with the appellant and indicated that it might have given effect to the concerns voiced earlier, if it had had the power to do so, but since the statutory provisions gave it no discretion on the matter it could not. Mr Middleton relies in support of his submissions on the indication that the court gave in that case that it might have been willing to adjust the sentence had it had the power to do so.
13. In Doyle [2007] EWCA Crim 2960 the appellant was charged in September 2000 with two offences of assault occasioning actual bodily harm against his cohabitee. Having been released on bail, he absconded and was not arrested until March 2005. In July 2005 he was convicted of the two offences and sentenced to two and two and a half years' imprisonment consecutive, that is, four and a half years' imprisonment in all. The judge explained that he would be released after he had served half the sentence and would then remain on licence for the balance of the period. She clearly had the provisions of the Criminal Justice Act 2003 in mind.
14. The appellant appealed on the grounds that the judge had intended him to serve 27 months in prison but had unintentionally passed a sentence that would lead to his spending a longer period than that in custody. This court accepted that submission, albeit, as it said, with some reluctance, and reduced the sentence.
15. In Bright [2008] EWCA Crim 462, however, another constitution of this court, presided over by Sir Igor Judge, President of the Queen's Bench Division, took a rather different view of a similar submission. The appellant had been the managing director and chief executive officer of the Independent Insurance Group, which had collapsed in 2001 and gone into liquidation with an enormous deficiency of assets to liabilities. The appellant was convicted on two counts of conspiracy to defraud and sentenced to seven years' imprisonment. He appealed against sentence. It is unnecessary for the purposes of the present appeal to summarise most of the issues which arose in that case or the court's decision on them. However, one ground of appeal in that case, as in the present, was that, having told the appellant that he would be released after serving three and a half years' imprisonment, the judge had failed to give effect to his intention because he had overlooked the fact that the relevant sentencing regime was that applicable under the Criminal Justice Act 1991, rather than that established by the Criminal Justice Act 2003.
16. The President, giving the judgment of the court, said this in paragraph 41:

"... Mr Winter sought to argue that as the judge intended a 3½ year sentence actually to be served, the sentence should in any event be reduced to 5¼ years. The submission is based on a fallacy. The actual sentence was 7 years imprisonment. The release provisions did not and should not have affected the judge's sentencing decision. What he was required to do was to explain the effect of the sentence in the context of the applicable statutory provisions relating to release. He did not 'intend' that the appellant should be released after 3½ years: that would simply have been the consequence if the 2003 Act had applied to the sentence, and he was required to state that consequence in open court."

17. In our view, the present case falls squarely within these principles, and if we have to chose between the earlier decisions of this court we unhesitatingly prefer the decision in Bright which deals with the matter as one of principle. It is true that in the present case the Recorder did not clarify his intentions in the way that the judge did in Bright on the very day of sentence and so make it clear what his actual intention was, but that does not, in our view, affect the fundamental principle that the judge's task is to determine the overall length of sentence, not how long the defendant will actually spend in custody.
18. Mr Middleton submitted that the essential ground of appeal in this case, as in all such cases, is that it would be unfair to the appellant to require him to serve a period in custody longer than the judge had told him he would have to serve. In our view, however, the judge is simply required to explain the effect of his sentence and it does not make the sentence unfair in any sense which gives rise to a ground of appeal if he simply makes an error in carrying out that function.
19. In the present case we are unable to accept that the Recorder did "intend" in any conscious sense that the appellant should be released after three years or any other particular period; he simply passed what he considered to be the sentence appropriate to the offences of which the appellant had been convicted, namely, one of six years' imprisonment. He was required to explain the effect of his decision, but the fact that his explanation was inaccurate because he had the wrong statutory provisions in mind does not undermine his decision or provide grounds for saying that the sentence was wrong in principle or manifestly excessive; indeed this court has already held that it was not. In these circumstances, the appeal constituted by the reference is dismissed.