England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		17 March 2009

1. JUDGE RADFORD: On 12th March 2008 at the Southampton Magistrates' Court for offences of possessing an offensive weapon and failure to surrender, the appellant was sentenced to six weeks' imprisonment, that sentence being suspended for a period of nine months. Later the same year, on 5th November at the Crown Court at Southampton, the appellant pleaded guilty on rearraignment on the day of trial to an offence of assault occasioning actual bodily harm and to an offence of theft, an offence which was added to the indictment on the day the matter was listed, as we have specified. It seems that originally the appellant was, as is conceded he properly should have been, charged with an offence of robbery in relation to the events which we will refer to. It is accepted before this court that the failure to include a count of robbery in the indictment that was subsequently drawn was clearly a wrong decision which has, it was clear, led to events which have occasioned this appeal to come before this court. It is conceded by Mr Newell, who appears today on behalf of the appellant, that had his client been charged with robbery and been convicted of that offence, the matters which he seeks to argue before this court would never have been raised. As has been observed in the course of argument by my Lord, Thomas LJ, this court takes an extremely dim view of the failure properly to charge the appropriate offence on indictment and to pursue that in accordance with the evidence that was plainly available.
2. For the offences of assault occasioning actual bodily harm and theft the appellant came to be sentenced on 26th November 2008 by the sentencing judge, His Honour Judge Longbotham. For the offence of assault occasioning actual bodily harm he was sentenced to three years' imprisonment and for the offence of theft he was sentenced to two years' imprisonment consecutive. The six weeks suspended sentence was activated to run consecutively. No complaint is made before this court as to the activation of that sentence or of the direction that it should take effect consecutively. The appellant now appeals against the sentences passed for the two offences on the indictment to which he pleaded guilty by leave of the single judge.
3. The facts of this case are stark and disturbing. The victim of both these offences, Mr Purves, had been diagnosed as dying from emphysema and partly due to his condition was residing at a hostel in Southampton. The appellant was also resident in a different room in the hostel, having moved in some weeks prior to the offences. All of the residents had their own secure rooms. There was a communal bathroom and kitchen areas for the residents to share.
4. Early last year Mr Purves had succeeded in a disability claim before a tribunal which resulted in an increase of his disability allowance. That increase was back-dated in the form of giro cheques which were paid to him. He saved the amounts concerned, hoping to purchase a mobility scooter as walking and cycling on an electrical bicycle had become increasingly difficult due to the deterioration of his health. He stored the giro cheques in a safe at the hostel until he had enough for a mobility scooter.
5. On the day of the offences he took the giros to the post office in order to cash them. He tried to open a savings account at the post office but was unsuccessful and had to return back to the hostel with £1,060 which he had obtained from the cashing of those giro cheques. About 5.30 on that day, 25th June 2008, Mr Purves was in his room when he heard what he thought was a female resident calling through the door asking to borrow something. He opened the door and in fact found it was the appellant. Without more, the appellant entered Mr Purves' room and immediately assaulted him by punching him twice, once to the face and once to the arm. The punches were forceful enough to knock him to the floor. The victim was then kicked once in the leg. Not surprisingly, Mr Purves did not know why this was happening and he did not try to defend himself. In any event, it is to be noted he was a man who weighed only seven stones and he felt, understandably, that he was unable to defend himself from this attack and indeed it might make matters worse if he attempted to. The appellant then picked up Mr Purves' wallet containing the £1,060 in cash from Mr Purves' bed, glanced inside it and then walked out of the room taking the wallet with him. Mr Purves got up off the floor and tried to follow the appellant out into the corridor. He called to him hoping that he would return and give back to him his wallet. The appellant did return, but instead of giving back the wallet he assaulted (by punching) Mr Purves again before then running out of the room.
6. Mr Purves spoke to a worker at the hostel, who in turn contacted the police. There was concern for Mr Purves' health as he was seen to be having difficulty in breathing and was clearly in shock as a result of these events. In a statement made on the same day to the police Mr Purves said he was totally devastated as the money taken had been for his mobility scooter and his children. In a statement taken 18 days later Mr Purves stated that he had been in severe pain and had only just recovered some of his mobility. He said his arm was covered in bruises. Unhappily the Department of Work and Pensions had been unable to replace the stolen money as Mr Purves had cashed the giro cheques that they had provided. He was therefore not able to purchase the mobility scooter that he so badly needed.
7. The appellant was arrested about a week and a half later. When he was interviewed he made no comment to the questions asked of him. It seems from the contents of the pre-sentence report prepared for the Crown Court that in fact some 14 days earlier than this incident Mr Purves had lost £700 to £800 from his room and in the course of interviewing the appellant for the purpose of preparing the report, it is noteworthy that the appellant admitted that he had been responsible for taking that money. However, no charge resulted and it therefore does not feature in the grounds of appeal or the merits thereof which we have to consider.
8. The appellant was born on 7th September 1980 and was therefore aged 27 at the time of the offences. He has 17 previous convictions for 32 offences. They include robbery, theft from the person, three offences of common assault, three offences of battery, two of threatening behaviour, two of possessing offensive weapons and three of burglary (one of a dwelling) and eight offences of theft. In the pre-sentence report dated 25th November 2008 the appellant summarised his feelings in relation to these offences in this way: "I knew he had lots of money and I wanted it." He said he had used about £20 worth of crack cocaine before committing the offence. He explained that this assisted with his violence, as he often became aggressive after using these drugs. The author of the report found it difficult to locate a genuine sense of remorse for the offences. As is clear, the appellant had a long history of drug misuse and a tendency, as the report writer stated, to react violently when under the influence of such substances. It was noted that he had previous convictions for violence and possessing offensive weapons.
9. With some reluctance the report writer stated the appellant conceded he had a previous conviction for robbery which involved him and two other men taking a pregnant female's handbag. For that we note that he received a sentence of four years' imprisonment in October 2002. Reference was made in the report to the difficult childhood background which the appellant had experienced and of his relationships and children. The appellant told the reporting officer how he had started taking illicit substances at an early age and had worked up from taking glue to amphetamine to heroin at the age of 15 and then on to crack cocaine. Unsurprisingly in our view, the probation officer preparing the report concluded that the appellant had a high risk of re-conviction and posed a high risk of harm to the public. The writer of the report was not in possession of the list of previous convictions at the time of writing and therefore left to the learned sentencing judge the assessment of dangerousness raised under the Criminal Justice Act 2003.
10. In sentencing the appellant, the learned judge referred to the victim as having suffered from an awful condition which had reduced him prior to the offences to a skeletal condition and being about as vulnerable a victim as one could imagine. He referred to the fact that the appellant had known that the victim had money in his room and he had treated the victim with no mercy in the course of committing these offences. The learned judge remarked, as we have done, that the offence had properly been charged as robbery. Someone had taken the view - we now know it was a reviewing lawyer from the Crown Prosecution Service - that the more appropriate charges were those which featured on the indictment. The judge referred to the numerous previous convictions of the appellant and the fact that the offences were committed whilst subject to a suspended sentence. He referred to the worrying features of the pre-sentence report which indicated, as we have recounted, the high risk of harm which the appellant presented to the public through physical harm or threatening behaviour. He made clear in the sentencing observations that as there was no offence of robbery on the indictment he was not sentencing the appellant for such an offence. Nevertheless, as he stated, he observed that the criminality was grave involving an awful assault on the most vulnerable of men and that the assault offence was a despicable act and that the offences totally merited significant sentences of imprisonment. Bearing in mind, the learned judge said, the appellant's extensive criminal record and the fact that he pleaded guilty only on the day of the trial, a sentence approaching six years in his view was justified. Allowing as he did ten per cent discount for the pleas of guilty, the learned judge concluded that the appropriate overall sentence was one of five years' imprisonment, made up, as we have stated, of three years for the assault occasioning actual bodily harm and two years consecutive for the offence of theft, with the suspended sentence activated in addition to that.
11. In the grounds of appeal settled by learned counsel, Mr Newell, who appears today for the appellant, it is contended that it is wrong in principle, as is first submitted, for consecutive sentences to have been passed for the offences of assault occasioning actual bodily harm and theft, and secondly, in any event it is submitted that having regard to the principle of totality requiring a sentencer who imposes consecutive sentences of imprisonment to review the aggregate sentence and make such reduction as may be necessary if the aggregate term does not appear just and appropriate, it is contended that the learned sentencing judge should have reduced the overall sentence of five years it, being submitted that the aggregate sentence is equivalent to that for an offence of a much more serious nature. We note though that in the course of his helpful and succinct submissions to this court that Mr Newell has conceded that had the appellant been charged, as he could and should have been, with the offence of robbery then the submissions he makes to this court on that basis would not have arisen.
12. We consider though the merits of the grounds of appeal given the basis upon which the appellant was convicted. We note that it is conceded in the grounds that the sentences of three years' imprisonment for the offence of assault occasioning actual bodily harm and separately two years' imprisonment for the offence of theft are not said in themselves to be manifestly excessive on the facts of each of those offences, nor is there any contention that the activation of the suspended sentence consecutively was inappropriate.
13. The first issue we address is whether it was, as is submitted, wrong in principle for the separate sentences of three and two years' imprisonment to be ordered to run consecutively. Reliance is placed by Mr Newell on three decisions of this court: R v Jones (1986) 2 Cr.App.R (S) 152 and R v Skinner (1986) 8 Cr.App.R (S) 166, which illustrate the general principle which applies throughout sentencing criminal cases, namely that consecutive sentences should not normally be imposed for offences arising out of the same single incident. However, as Mr Newell concedes, it has been made clear in the course of the more recent decision of this court in R v Noble [2003] 1 CrAppR (S) 65 that in the words of the judgment in that case given by Keene LJ that is not an "absolute principle and it may admit of exceptional circumstances." Keene LJ went on later in the judgment to observe:

"... where such exceptional circumstances occur, they tend to be the ones where different offences are committed."

Reliance is placed on this observation in relation to this case by Miss Linsley, who appears for the respondent. Mr Newell submits that as offence in this case occurred over a short space of time against the same person no such exceptional circumstances were present. Miss Linsley in her helpful skeleton argument has drawn attention to two further decisions of this court: R v Dillon (1983) 5 Cr.App.R (S) 439 and R v Wheatley (1983) 5 Cr.App.R (S) 417 which she submits illustrates the submission that consecutive sentences may be imposed even if the offences arise out of the same incident. We note that indeed those cases bear out the submission which she makes.

14. In the course of argument we drew counsels' attention to two admittedly not recent but in our judgment still applicable decisions of this court appearing in the current edition of Professor Thomas' Encyclopaedia of Current Sentencing Practice: R v Bunch, a decision of this court on November 6th 1971 and R v Jones, December 15th 1975, in which in both cases the passing of consecutive sentences for offences of burglary and assault in the course of the burglary on the victim of both offences during the same incident were approved as appropriate by this court. In the instant case before us clearly the two separate offences were of a different kind and involved separate elements of criminality. Culpability in our judgment for the offences was cumulative and not coincidental. Gratuitous and renewed violence towards a vulnerable victim causing injury is one thing. Stealing a not inconsiderable sum of money much needed by its owner is quite another.
15. In our judgment this situation is analogous to that considered by this court in the cases of burglary and violence to the householder to which we have drawn attention. We conclude that the learned judge was entitled to find and was right to find that there were exceptional circumstances justifying consecutive sentences in this case. A decision to impose consecutive sentences was not in any way wrong in principle on the facts of this case. Of course, as Mr Newell has argued, the totality of those consecutive sentences required review to ensure they were just and appropriate. Mr Newell has submitted that in totality five years was manifestly excessive. He has drawn attention to the learned judge's reference to the appropriate sentence that he would have passed had the appellant been convicted of robbery. Mr Newell contends that had he been so the court would have to have regard, as no doubt it would, to the definitive guidelines for robbery offences issued by the Sentencing Guidelines Council and that the appropriate sentencing bracket he argues for such offence would have a range of two to seven years. We would observe though that this guideline is predicated on the basis that the offender, to whom it would apply, has no previous convictions. Additionally, the instant offences were committed in the victim's own room and involved in the words used by the single judge in her observations for our attention when granting leave:

"... two despicable acts of assault and theft of a large sum of money from a frail and vulnerable man."

We go on to say by an offender with relevant aggravating convictions including a four year sentence for robbery passed upon him in 2002. The discount for pleas of guilty was in our view rightly limited by the learned judge to 10 per cent.

16. Having regard to all these relevant factors, we do not find that even on the hypothesis postulated by Mr Newell a sentence of five years' imprisonment in total would have been or was manifestly excessive for such an offence, even if it had been charged, as it should have been, as an offence of robbery. In our judgment, the sentences passed in this case were neither wrong in principle nor in any way manifestly excessive in totality. For those reasons the appeals against sentence are dismissed.