England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		25 June 2010

1. LORD JUSTICE ELIAS: I will ask Gross J to give the judgment of the court.
2. MR JUSTICE GROSS: On 15 January 2010 at the Crown Court at Cardiff before HHJ Wynn Morgan, the appellant, now aged 21, pleaded guilty to a count of wounding with intent, and was sentenced to an extended sentence of six years pursuant to section 228 of the Criminal Justice Act 2003, made up of a custodial term of four years' detention and an extension period of two years. Various other orders were made. The appellant appeals against sentence by leave of the single judge.
3. The facts of the matter can be shortly summarised. On the evening of 21 October 2009, the complainant went to a public house with his girlfriend. They arrived at about 8.30pm. At some point the complainant and his girlfriend were having a cigarette outside the premises, when the girlfriend pointed out the appellant. The appellant had been her former boyfriend. About an hour later, the complainant went to the toilet. He was standing in front of the urinal when he was struck a very hard blow on the head by the appellant with a bottle, which smashed. The appellant then ran out of the toilet.
4. The complainant received first aid from staff at the public house. He told the girlfriend that he had been "bottled" and she saw the appellant in the car park. The appellant was laughing, and when she approached him, he admitted what he had done. He then ran off. The police and an ambulance were called. The complainant was taken to hospital. He received three stitches in a three centimetre wound to his head. Later the appellant was arrested. When interviewed, he admitted the offence.
5. The appellant has, it must be said, a number of previous convictions, including five for threatening behaviour, one for attempted robbery, one for assault on a constable and one for racially aggravated harassment. Passing sentence, the judge said that the offence fell between two categories in the sentencing guidelines. The middle category dealt with offences involving premeditated wounding involving the use of a weapon prior to committing the offence and taken to the scene with the specific intent to injure the victim, but not resulting in life threatening or serious injury, and a further category of simply premeditated wounding. Had there been a trial, there would have been a six-year sentence. This had been a "wicked" and "cowardly" act. He had waited until the victim was actually urinating, and he crept up behind him and struck him with the bottle. The complainant could not defend himself. The appellant would receive credit for the fact that he had not followed up the attack. An extended sentence was going to be imposed because of what was contained in the pre-sentence report.
6. It was accepted there was a degree of showing-off in what had been said to the probation officer, but a lot of what he had said raised very grave anxieties and resulted in an assessment that he posed a very high risk of causing harm to members of the public.
7. We point out at once that no complaint is made as to the length of the sentence as such, or to the fact that an extended sentence was imposed. But, says Mr Williams for the appellant, and this is the sole point on the appeal, the judge was not entitled to pass that sentence. The reason is that he had previously given a Goodyear indication with a lower maximum than the sentence which was passed. Moreover, the Goodyear indication spoke of a determinate rather than an extended sentence.
8. As Mr Williams put it in his grounds of appeal, at the Goodyear hearing the judge said he would impose a three-year sentence. In consequence, the appellant had pleaded guilty. At the sentencing hearing the judge expressed his view that the indication he had given was incorrect. The judge had erred in law, in deciding to give a Goodyear indication and without reserving his position dependent on receipt of reports, thereafter altering the nature and length of sentence. The Goodyear indication, Mr Williams submitted, was and should be binding on the judge.
9. Before us today, Mr Williams submitted the Goodyear indication became binding from the moment it was acted upon in good faith by the defendant.
10. We start with the facts. The Goodyear ruling or indication was given on 15 January 2010. The judge summarised the facts of the offence, and having done so, indicated that the maximum sentence he would impose, were the appellant to plead guilty on that day, would be three years' detention.
11. When the matter returned to court for the sentencing hearing on 1 March 2010, at the very outset of the hearing, the judge frankly and courteously, if we may say so, acknowledged that he had been in error. He asked the appellant to listen very carefully to what he had to say. In giving a Goodyear direction, the judge said he fell into error. He clarified that in plain language. He made a mistake for which he took full responsibility. He said he should not have given a Goodyear direction for two reasons: first, this was a case which conceivably merited an indeterminate sentence; and secondly, he had not seen the pre-sentence report. Having seen that report, it had raised grave disquiet, as he put it, and he had reconsidered the papers very carefully. Having done so, the judge said that, in giving the appellant full credit for a plea of guilty, notwithstanding the lateness of the plea, a sentence of three years would, in his words, be wholly inadequate. It was his mistake. He got it wrong. He was going to put it right, but, importantly, without full acknowledgement of the appellant's rights in the matter.
12. He proceeded to say that an appropriate sentence, in the light of his reconsideration of the case and an examination of the pre-sentence report, was an extended sentence of six years, with a custodial period of four years and an extension period of two years. Having indicated that revised view, he then said this. Counsel could talk to the appellant, and if counsel was instructed to apply to withdraw the plea, then leave would be given to do so. The judge reiterated that he had got it wrong and that the appellant would be free to change his plea if he so wished and was so advised. The judge gave the appellant such time as was needed to consider the matter.
13. After an adjournment, counsel (Mr Williams then as today) came back and said to the judge that the matter had been discussed with the appellant. He did not wish to vacate his plea and was content, albeit disappointed, to proceed to sentence. That is the factual background.
14. The matter thereafter proceeded to sentence, and the judge passed the extended sentence to which we have already referred.
15. The attractions of Goodyear [2005] 1 WLR 2532, summarised in Archbold para 5-79b and following, and its practical importance, are manifest. Goodyear indications will only serve their purpose if indications once given can be relied upon. Accordingly, and at least save exceptionally, indications thus given are binding in as far as they go, hence the need for circumspection before they are given. Particular caution is warranted where a Goodyear indication is sought in the case of a specified offence which might attract an extended sentence or a sentence of imprisonment for public protection. In such cases, although a judge retains a discretion to give such an indication, there are obvious dangers involved, as discussed in Kulah [2008] 1 Cr App R (S) 85.
16. There is scope, additionally, for a judge to give what might be termed a qualified Goodyear indication, depending on the ultimate conclusion as to dangerousness, and applicable only if a determinate sentence was ultimately imposed: see Seddon [2008] 2 Cr App R (S) 30. In fairness to the appellant, in this case the indication given was unqualified.
17. It would, however, be unfortunate if a practical and pragmatic measure was to become unduly inflexible. Moreover, the Attorney General is not bound by a Goodyear indication. So, where a judge recognises that he has been plainly in error, were it the case that there was no means of correction, the upshot would be the risk of an otherwise unnecessary Attorney General's Reference.
18. Mr Williams submitted, as we have already recorded, that the indication was binding once acted upon. With respect, we are unable to agree in this sense: Mr Williams' submission is couched in terms of private rights, where such concepts are of course valid and will prevail. But we are not dealing with that situation here. The public interest in an appropriate sentence must trump any question of disappointment in the rare cases where such a situation might arise. It goes without saying, however, as we have already underlined, that revisions to Goodyear indications should be very much the exception, and, as it seems to us, they can only be made in a manner which is fair to the defendant: in other words, where the matter can be revised without the defendant sustaining any prejudice other than mere disappointment.
19. In the present case, the judge was plainly in error, as he himself acknowledged, with regard to the guidelines category in which he placed the offence. The judge was understandably anxious about the facts he had subsequently discovered in the pre-sentence report, and the questions which then arose as to whether the case merited a determinate or some other sentence. Had the judge left the matter as set out in the Goodyear indication, first there would have been the unfortunate consequence of an inadequate sentence being passed contrary to the public interest and, secondly, there would have been a risk of an Attorney General's Reference to the benefit of no one.
20. The course the judge adopted, namely offering the appellant the chance of vacating his plea, was one which was entirely fair to the appellant. The appellant realistically and prudently, if we may say so, chose not to vacate his plea - but he maintained his plea knowing full well that the judge would no longer be bound by the initial Goodyear indication. In these circumstances, we are not persuaded that any injustice resulted or that the appellant now has any legitimate grounds for complaint.
21. For completeness, it is unnecessary to explore any difference of opinion which may be said to exist between Seddon (supra) and McDonald [2008] 1 Cr App R (S) 20, discussed in Archbold at para 5-308a. Suffice to say that the indication in Seddon was qualified, which it does not appear to have been in McDonald. In any event, in neither case does it appear that the judge offered the appellant the choice which was available to the appellant here, namely that of vacating his plea and starting again.
22. Accordingly, notwithstanding our gratitude to Mr Williams for his submissions this morning, this appeal must be dismissed.