England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CENTRAL CRIMINAL COURT
Mr Justice Wilkie
T20127321

		Royal Courts of Justice Strand, London, WC2A 2LL
		13/03/2015

Lord Justice Treacy :

1. The appellant Rakesh Bhayani was convicted of murder (count 1) on 27 November 2013 at the Central Criminal Court. He had previously pleaded guilty to count 2 (conspiracy to defraud) and count 6 (doing an act tending and intended to pervert the course of public justice). He also fell to be sentenced on a count of possession of unlawful goods, namely counterfeit euros and sterling, to which he had pleaded guilty on a separate indictment.
2. Wilkie J sentenced him on 28 November 2013 to life imprisonment with a minimum term of 27 years less 490 days on remand in relation to count 1. He passed concurrent 6 year terms in relation to counts 2 and 6. In respect of the possession of unlawful goods a further concurrent term of 40 months imprisonment was imposed.
3. Bhayani appeals against his conviction by leave of the single judge.
4. We are also concerned with Nicholas Kutner who applies for leave to appeal against sentence. At the trial below he was acquitted of count 1 (murder) but convicted of count 6 (perverting the course of public justice). He had previously pleaded guilty to count 2 (conspiracy to defraud) and to three counts of fraud (counts 3, 4 and 5). He was sentenced to 7 years on count 6, 6 years consecutive on count 2, 3 years 6 months concurrent on count 3, and 1 year 4 months concurrent on counts 4 and 5. Thus his total sentence was 13 years imprisonment. The single judge refused Kutner's application for leave to appeal against sentence. It has been renewed before us and supplemented by written submissions after the hearing because of a lack of clarity regarding one ground.
5. As already stated both men faced a charge of murder. Counts 2 to 6 of the indictment represented the systematic stripping of the property of the victim of the murder, Carole Waugh, together with determined efforts to cover up the fact of her murder.
6. Carole Waugh was 49 years old at the time of her death. She had a substantial portfolio of assets including a flat in London worth £650,000. She had met Bhayani in 2010. In 2011 she had lent him £54,000 on the basis of a fraudulent bank draft as security. He subsequently paid her back with money won from gambling using forged banker's drafts to obtain credit at a casino. For this he was prosecuted and sentenced to 18 months imprisonment. She visited him while in prison. He was released in February 2012.
7. Ms Waugh was last seen alive on 16 April 2012. Bhayani had spent the previous evening at her flat and they had visited a jeweller in Mayfair the next day before travelling to see a friend. Cell site evidence showed that Ms Waugh, Bhayani and Kutner were present in or near her flat on the evening of 16 April. Bhayani accepted presence there until about 1030PM. On the following day there was evidence that both men were already involved in dealing with assets of Ms Waugh's for their own advantage. This process continued over the following months, with Bhayani being the more active of the two. Attempts were made to sell the flat. A loan was raised on its security. Kutner went to live at the flat and attempted to rent it out. A number of other people were used to impersonate Ms Waugh or to handle the proceeds of the frauds. The total fraudulent activity in respect of Ms Waugh's assets amounted to £315,000. However, if the flat had been sold as intended at one point, the fraudsters' benefit would have approached £1,000,000.
8. The Crown's case was that both men were jointly responsible for the murder of Ms Waugh having decided to defraud her and with her death being a pre-requisite. Thereafter the pair had jointly acted in the concealment and disposal of her body and clearance of the flat in order to dispose of evidence. Both men had many convictions for dishonesty and were addicted to gambling. They were confidence tricksters skilled in confabulation. Bhayani was also in debt to Ms Waugh from whom he required more money but whom he had no means to repay. He was fearful that Waugh would expose his activities to his family. There was evidence of close contact between Bhayani and Kutner both prior to, on the day of and after the killing.
9. The defendants acknowledged their bad characters and gambling addiction but pointed to the absence of any convictions for violence. Both of them admitted the conspiracy to defraud, with Kutner admitting specific aspects of that represented by counts 3, 4 and 5.
10. Bhayani's case was that Kutner had killed Waugh on the evening of 16 April and he claimed to have left the flat beforehand at around 10:30PM. He claimed not to have learnt of Ms Waugh's death until 23 April when Kutner had told him that he had found her dead in the bedroom of the flat.
11. Kutner, who did not give evidence, advanced the case that the jury could not be sure that he had killed Ms Waugh either jointly with Bhayani or on his own. His defence was that Bhayani was responsible. He called a serving prisoner, known to the defendants, who had spent time on remand with them at Wandsworth Prison and who was referred to at the trial as witness X. X gave evidence that whilst on remand Bhayani had confessed over a period of time to stabbing Ms Waugh to death in anger during an argument over money. His evidence was that Bhayani said that Kutner had been present but had not taken part or encouraged the offence in any way.
12. Ms Waugh's body was not found until 9 August 2012 when it was found inside a canvas holdall inside the boot of a car in a lockup garage in New Malden, Surrey. By the time the body was found it was very seriously decomposed. At least one stab wound to Ms Waugh's neck was found. Although the precise cause of death could not be ascertained due to the extent of decomposition, forensic analysis of the flat showed a number of blood spots on the bed and in the bedroom consistent with an impact with a person already wet with blood. The findings were consistent with a stabbing having taken place.
13. There was no dispute that Ms Waugh had been murdered and that the killing took place on the night of 16/17 April. There was no suggestion that an unknown third party was responsible. The case was left to the jury on the basis that this was a murder by joint enterprise, as the Crown contended, or, alternatively, a murder carried out by an individual defendant depending on the view the jury took of evidence called. For example, Bhayani's case was that he had left Ms Waugh alone in the flat with Kutner on the evening of 16 April. Kutner, against whom there was a smaller amount of circumstantial evidence, relied on the evidence given by X, notwithstanding the fact that it appeared to be inconsistent with his case as advanced to prosecution witnesses, by putting him present at the scene as a witness to the murder.
14. At the close of the Crown's case a submission of no case to answer was made on behalf of Bhayani which the judge rejected. Bhayani's first ground of appeal submitted that the judge erred in rejecting that submission. In essence it was submitted that whilst there was plenty of evidence to show that both the applicant and Kutner had been involved in a fraud, there was insufficient evidence to show that the death of Ms Waugh was the fulfilment of a joint enterprise rather than an independent and spontaneous act of violence by one or other of the defendants acting on his own. A similar submission was made and rejected in the case of Kutner.
15. The judge held that a reasonable jury properly directed could convict both defendants of murder and that such convictions would be safe. The jury could conclude that Ms Waugh had been killed by the defendants acting in concert as a precursor to them, as a team, proceeding to defraud her estate and strip it of its value. He pointed out that within hours of the death, the fraud was embarked upon and that within about two days of the murder a bag and a car had been purchased in order to store and move the body. The activities of the defendants could be regarded by a reasonable jury as pointing to a calm and methodical carrying out of a planned fraud which could not be achieved were Ms Waugh alive. This supported the evidence relating to the day of the killing and previously in presenting a conclusion that this was a preordained killing by way of joint enterprise.
16. Mr Pownall QC rightly abandoned this first ground.
17. Ground 2 relates to the evidence of the prisoner X. X said that he had been a fellow inmate of Bhayani's in prison and that Bhayani had spoken to him on a number of occasions, confessing that he had killed Ms Waugh by stabbing her in the neck during an argument about money. He said that this had occurred on 17 April after they had been to a casino. He also said that Bhayani had told him that Kutner and a man by the name of Earl had also been present at the time of the killing. There had been conversations on a number of occasions, and X had made notes in a diary. He also said that Bhayani had spoken about the fraud on Ms Waugh's assets stating that a number of people had been involved in that.
18. An officer confirmed that X had been unwilling to give evidence out of fear for his family. He needed hours of persuasion and special measures before he would give evidence. He claimed to have received a threatening text from India on the first day of the trial, but other evidence of that was not produced. When X had himself been sentenced for matters of dishonesty, a text had been provided to the sentencing judge referring to the assistance X had provided in this investigation.
19. The appearance of X at the trial requires a little more explanation. On the first day of the trial the Crown sought a disclosure hearing with the judge and two days later (9 October 2013) the defence were provided with a disclosure document revealing the following:

"On various occasions since his arrest Rakesh Bhayani has been heard to give a number of accounts touching upon the killing of Carole Waugh. This included a claim that he had been holding her when she had been stabbed and reference to a stabbing motion to the neck. He has also said that Earl, who was Carole's boyfriend, was involved in the killing which he said occurred during a heated argument over money."

20. That information was provided but the source of the information was not disclosed. It was explained that the material had only been revealed at that stage because of a combination of the recent identification of the trial judge and delay caused by ill health of the case worker.
21. After that disclosure, nothing further of substance appears to have occurred until 5 November 2013. By then Bhayani had given evidence in chief and cross-examination began on behalf of Kutner. Bhayani was asked whether he had ever admitted to anyone that he was holding Ms Waugh when she was stabbed. He denied this. The defence then renewed their application for further disclosure in relation to the material provided by the Crown at the start of the trial. The jury was sent away until the following week. There followed consideration of that issue resulting in further disclosure on 7 November to the defence identifying X as the source. The Crown also acknowledged that it had previously misunderstood the basis on which X had provided information with the result that he had been not been identified by them earlier when he should have been. The Crown expressed its regret. X was located in Pakistan and flew back to the UK voluntarily to give evidence.
22. The trial resumed with the jury on 11 November after which a witness statement from X was provided. Bhayani was allowed to speak to his counsel so as to provide instructions regarding X. By that stage also, the Crown had provided a significant amount of material relating to X's credibility. When further cross examined on behalf of Kutner, Bhayani denied that there was any truth in X's evidence. Mr Pownall was able later to cross-examine X. As will be seen shortly, he was also able to call evidence to rebut some of what X had said and to put before the jury material tending to discredit X.
23. As we have already stated, when the judge left the case to the jury, he did so on the basis of joint enterprise, but he also left it open to them to convict an individual defendant based on a consideration of the evidence. For Bhayani it is submitted that disclosure of material relating to X, which enabled Kutner to call him as a witness came at a late stage and at a disadvantageous time for this appellant. The material was potentially devastating in a case involving cutthroat defences. It was material which went to a central issue in the case and provided a new basis for a conviction for Bhayani for murder in a case which the Crown had put on the basis of joint enterprise.
24. The Crown did not rely upon the evidence of X which began on 13 November 2013. It did not cross-examine X nor did it cross-examine Bhayani about X's evidence. At the close of the case it placed no reliance on X and did not invite the jury to convict Bhayani on the basis of X's evidence. It maintained its case of a joint enterprise killing.
25. It is contended that the defence had insufficient time to marshal evidence which would have completely undermined X's evidence. It is said that it is plain that the evidence of X proved decisive in the jury's rejection of the Crown's case that this was a joint enterprise murder. It must have led directly to the conviction of Bhayani.
26. Finally it was submitted that the circumstances in which X's evidence entered the trial operated unfairly towards Bhayani who did not have sufficient time to deal with X's evidence and who should have at that stage been granted severance.
27. Whilst it is true, as the Crown asserts, that X's account would not have been disclosable to Bhayani because X's allegations did not undermine the prosecution's case against him, it was disclosable in relation to Kutner since it tended to show that Bhayani acting on his own was responsible for the killing of Ms Waugh. That no doubt is why some disclosure on the topic without identifying X was made at the start of the trial. If there had been full disclosure to Kutner at that point, it was accepted Bhayani would have also become aware of it.
28. The information actually disclosed at that stage would have been sufficient to alert those advising Bhayani of the possibility of some cross-examination of him based on alleged confessions to some other person. However, the damage that could potentially cause would in our view be relatively limited in the absence of chapter and verse. Chapter and verse in the form of the identification of X as the source regrettably only occurred at a relatively late stage of the proceedings because of the Crown's misapprehension as to the willingness of X to give evidence and to be identified.
29. It seems that an important question for us must be the effect on the fairness of the trial of this late disclosure, taking account of the provision of evidence and information enabling Bhayani's team to deal with it.
30. It is clear that extensive undermining materials were provided by the Crown once X was identified as the source. Indeed such materials and assistance probably went beyond what would normally have occurred. In our judgment it had the capacity very considerably to undermine the credibility of X. In particular he had over forty previous convictions for dishonesty as well as no less than five convictions for perverting the course of justice. He was a user of different names. On one occasion he had forged a medical certificate with a view to obtaining bail. He had previously pleaded not guilty and been disbelieved on oath. He had most recently been sentenced for a large fraud involving elderly victims and had masqueraded as a police officer on one occasion.
31. He claimed that demonstrations by Bhayani of the stabbing were caught on CCTV footage when in fact it was agreed that CCTV cameras, although installed, were not operational. He identified two members of prison staff who he said had witnessed Bhayani boasting about the murder and demonstrating stabbing motions with his arms. Two such officers were called on behalf of Bhayani in rebuttal and rejected X's account. A remand prisoner by the name of Keenan was called. He spoke of X as being prone to extravagant exaggeration and of the unlikelihood of Bhayani confessing his involvement in a relatively notorious crime to which other inmates would not be sympathetic. In addition there were a number of matters of detail in X's evidence which were contradicted by other evidence as Mr Pownall pointed out to the jury. One small example was that there was no evidence that the applicant and/or Ms Waugh had been to a casino on the evening of the murder as X claimed Bhayani had told him.
32. Over 15 months have passed since trial, and since the defence submitted in its grounds that it anticipated being able to provide significant additional materials which would undermine X's credibility. In the event, notwithstanding further enquiries and that passage of time, a relatively small quantity of material has emerged.
33. It was sought to rely on that material pursuant to section 23 of the Criminal Appeal Act as amended. Only in the case of one witness, Adam Adamou, had the necessary notice and procedures been properly followed. Indeed the remaining materials were only served on the court and the Crown on the evening before the hearing. Notwithstanding that, the members of the court and the prosecuting team considered those materials in advance of the hearing. This late and informal notification was something for which Mr Pownall took responsibility. In the result, the court and the Crown exceptionally decided to deal with matters as they stood rather than disadvantage the appellant as a result of failures of procedure which were not his fault. We heard evidence from Mr Adamou de bene esse and considered statements or information from other witnesses on the face of the documents provided.
34. Mr Adamou's evidence was to the effect that he was an inmate on the induction wing at Wandsworth in August 2012. He knew both Bhayani and Kutner. On one or two occasions he had seen Kutner speaking to the prisoner X. There was a possible third occasion in an exercise yard. He spoke of Bhayani as being quiet and humble and a man who had spoken about his offence to him. That had included mentioning or describing a stabbing motion. He referred to X as someone who was "very slippery". He said it was well known that he could not be trusted. In evidence X had denied knowing Kutner.
35. The defence rely on this fresh evidence as further undermining X's evidence and raising the possibility that Kutner may have put him up to giving it. This suggestion seems to us to be ill-founded since if that were the case Kutner would have known of X's identity and what he could say in advance of the trial and would have been in a position to call him to give evidence without needing to await disclosure by the Crown after Bhayani had started giving evidence. Moreover, at that time Kutner would have had no reason to know that Bhayani might blame him at trial over a year later. Alternatively it was submitted that Kutner could have provided information after the offence to X so that details which were suggested could only have come from Bhayani to X might have come from Kutner. This submission is undermined by the fact that X kept (and provided to the Police shortly afterwards) a diary recording what Bhayani had said. It is hard to see why X should have attributed his information to Bhayani rather than Kutner unless put up to it at that stage by Kutner. That is a proposition we reject.
36. Even assuming in the appellant's favour that Mr Adamou's evidence is to be regarded as credible and that in the circumstances there was a reasonable explanation for not having called this evidence at trial, we do not consider that it adds anything of substance to what was already before the court. It was known that Bhayani and Kutner had both been present at Wandsworth when Adamou was there. The fact that there had been some contact between Kutner and Adamou (albeit over a short period in August 2012), would not be surprising and does not provide any sound basis for thinking that a sinister connotation should be put on it. Adamou's description of X's character adds nothing to what was already known of it.
37. None of those matters assist the appellant to any real extent. There is a small detriment to the appellant in that Adamou revealed that Bhayani did talk about his offence as X claimed he did. We do not regard Adamou's evidence as materially affecting the position and decline to receive it since it does not appear to us that it would afford any ground for allowing the appeal.
38. On the basis previously indicated we were prepared to consider de bene esse evidence relating to a statement from a DC Donoghue, which had been read to the jury, and in relation to which Mr Pownall highlighted two matters; firstly that X had claimed that Bhayani knew who his sister was and had identified her on an occasion when she visited X at Wandsworth; secondly, a claim that he had been blackmailed into committing his later fraud offences and that the judge who sentenced him had been made aware of that. As to the first matter, Mr Pownall relied on a statement from a DC Cooke which appears to show that there could have been no occasion on which Bhayani could have seen X's sister in the visiting centre. As to the second matter, Mr Pownall submitted that the officer's statement was inconsistent with what X had said in cross-examination of him. If that be the case, (and we think there is ambiguity in the transcript), it does not assist the appellant because that material was already before the jury as was the fact that a text had been presented to the sentencing judge as well as an extract from the judge's sentencing remarks. We do not think either of these points advances the appellant's case at all.
39. There was in addition a post trial statement obtained from DC Donoghue in which he confirmed X's failure despite several requests to provide the allegedly threatening text he claimed to have received on the first day of the trial. We do not think this further information adds to the appellant's case. Firstly, it was clear at trial that the claim of a threatening text made by X was unsupported by any other evidence, and by the conclusion of the trial evidence had been provided by DC Donoghue that by that stage despite repeated requests X had failed to provide details of the text message or the number it had come from. In our view the additional material adds nothing to the very strong scepticism surrounding X's claim at the time of the trial.
40. Further, there was a letter from Claire Walls of HMP Wandsworth. It is not entirely clear. Even construing it at its most favourable to the appellant, it does no more than confirm that over a period of about 5 days in August 2012 there would have been an opportunity for Kutner and X to have met on the induction wing at Wandsworth. Since we have already proceeded on that basis in relation to Adamou's evidence, this adds nothing further.
41. Mr Pownall submitted that these additional pieces of information were significant and taken together constituted a tipping point which should lead this court to view X's evidence as so seriously flawed that it should have been rejected. We do not accept that submission. Whether viewed individually or cumulatively, the further evidence relied on adds next to nothing when set alongside the already unfavourable picture of X which had emerged during the trial. None of this evidence, even taken cumulatively, could lead this court to receive it under section 23 as evidence which could afford a ground for allowing the appeal.
42. We therefore return to the wider issues raised by Mr Pownall on Bhayani's behalf. Whilst we regard the late disclosure of X as the source of the information previously provided as regrettable, what we must consider is whether the effect which it had, namely that of making X available at a late stage as a potential witness in Kutner's defence, operated so as to render Bhayani's trial unfair.
43. On examination it seems to us that when those matters were revealed, not only were they balanced by a considerable amount of disclosure useful to Bhayani enabling undermining of X's credibility to take place, but that the judge gave sufficient time for the defence to take stock of the position. That enabled them to call the prison officers and another prisoner in rebuttal to good effect. Bhayani was enabled to repeat his denial of having confided in X as alleged, and of course his counsel had the opportunity to cross-examine X at length and to bring out factual contradictions in his account. We have read the transcript. By the end of Mr Pownall's cross-examination, very serious damage had been done to X's credibility. Further damage will have been done by the rebuttal evidence and by, no doubt, a powerful address in closing by Mr Pownall.
44. It is important to note that at no point did the Crown seek to rely upon the evidence of X as against Bhayani. Indeed they expressly disclaimed any such reliance in their closing speech to the jury. In summing up, the judge gave a detailed direction about the approach to take to X's evidence in which he emphasised that the jury must be very careful before accepting any of it. All of those are relevant factors in considering whether Bhayani was unduly prejudiced by what took place.
45. A suggestion was made in the submissions that insufficient time was granted for further investigations into X to be made on behalf of Bhayani. Mr Pownall did not make any express application for further time at any point after the trial resumed. The matter can perhaps best be judged by the fact that in the time which has elapsed since the trial, the only fresh material that has been placed before the court has been lacking in substance. It has not been shown that the granting of additional time at trial, even if requested, would have led to any more cogent evidence becoming available.
46. It appears to be clear that once X's evidence had emerged, the Crown made full efforts to accumulate and investigate sources of evidence which might be of assistance to the defence who themselves had provided details to enable the Crown to pursue lines of enquiry. We note also that no application was made to discharge the jury on the basis that a fair trial had become impossible or to sever the indictment. Mr Pownall conceded that he did not consider that these applications could succeed.
47. In the circumstances where there was a cutthroat defence, we would regard it as being highly unlikely that a trial judge would be persuaded to sever one defendant. The interests of justice would normally strongly point to both accused being dealt with together. Unfortunate as the situation was, we think it likely that the judge would have held that the trial process was capable of dealing with the situation which had arisen. We do not consider that it has been shown to us that there was unfairness. If X's potential evidence had been disclosed to Kutner, and thus to Bhayani, in a timely fashion no complaint could have been made of the two being tried together on that account; nor would Bhayani have been in any materially different position than he was on 11 November.
48. Mr Pownall also submits that the conviction for murder should be regarded as unsafe because it must have been substantially based on the confession allegedly made to X by Bhayani. There was, it seems to us, a strong case to be made against this appellant irrespective of the evidence of X. The jury were aware that the Crown did not seek to rely on X's evidence, and they had been given a strong warning as to the care which they needed to take in approaching it. They were fully aware of matters impugning X's credibility.
49. In the end it was for the jury to assess the value of X's evidence in the light of the judge's direction. It clearly was sufficient to cause the jury doubt as to whether it was shown that Kutner had participated in a joint enterprise to kill Ms Waugh. In Bhayani's case, there was no reason why if the jury saw fit, it should not take what X said into account alongside the other evidence implicating Bhayani. The judge indicated that they could do so if they approached his evidence with real caution, and no criticism has been made of that direction. In all the circumstances we are unpersuaded that anything occurred which should lead us to conclude that this conviction was unsafe. Accordingly this appeal is dismissed.
50. We record that after the hearing we received representations in writing from Bhayani himself. We considered them, but they have not affected our conclusion. They were essentially jury points or re-iteration of points considered at the oral hearing.
51. We turn then to Kutner's renewed application relating to sentence. He no longer pursues the ground originally raised based on the judge's findings as to his involvement; instead he pursues two points. The first is an assertion of disparity with the sentences imposed on Bhayani. The judge had found that Bhayani was the prime mover in relation both to the fraud and perverting of justice offences, notwithstanding that he also found that Kutner was an important and willing accomplice in them.
52. The essential complaint is that Bhayani received concurrent 6 year terms for those offences alongside his life sentence with the minimum term of 27 years whereas Kutner was sentenced to consecutive sentences for the fraud and perverting justice amounting to some 13 years in all. No argument has been made that the total of 13 years was unjustified or excessive or that it did not reflect credit for role or a guilty plea to the fraud. The argument that is made is that if Bhayani's conviction for murder were to be quashed and/or if he were to be acquitted on any retrial, he would only end up serving a sentence of 6 years whereas Kutner would be serving 13 years.
53. The difference in the judge's treatment of the sentences on counts 2 and 6 for the two defendants arises from the fact that Bhayani was convicted of murder. The judge expressly stated on more than one occasion in sentencing that in arriving on the minimum term of 27 years for Bhayani for count 1, he took account of factors which he would otherwise have reflected in sentences for counts 2 and 6. That explains the different approach he took to Kutner who was to be sentenced for those offences but not for murder.
54. As is clear from our conclusion on Bhayani's conviction appeal, his sentence in relation to the murder remains intact. In those circumstances no question of disparity arises. We would only add that had Bhayani's conviction been quashed and had there been an acquittal on any retrial, that would not have affected our view. The circumstances then pertaining would not have affected what we regard as a just sentence passed on Kutner. Nor would any right thinking individual have considered that some unfairness or injustice had been done to Kutner by reason of the fact that if Bhayani were acquitted of murder a court would not have power to increase the sentences passed originally on Bhayani. What might be viewed as Bhayani's good fortune in those circumstances could not be converted into a tenable disparity argument on behalf of Kutner. The interests of justice do not require what would in truth be a second injustice to be done.
55. The second point taken relates to time served before sentence. In passing sentence, the judge indicated that time already served would be credited against the 13 year sentence. By a letter dated 13 March 2013 the prison service indicated that time served would not be credited because during that period Kutner was subject to a recall in relation to another sentence. Mr Kutner complained that his sentence is therefore excessive because the judge's intentions are being thwarted.
56. This point is wholly misconceived. Since the passing of the LASPO Act 2012 with its abolition of section 240 of the 2003 Act, the granting of credit for time spent on remand has ceased to be a judicial act. It is now a purely administrative function of the prison service. The judge had clearly indicated that 13 years was the appropriate sentence for Mr Kutner. His reference to credit for time spent in custody was based on misinformation as to the status of that time spent in custody. It appears that Kutner had been recalled to custody in relation to a 4 year prison sentence imposed for frauds in November 2010. Section 240ZA(4) provides that if on any day when an offender was remanded in custody the offender was also detained in connection with any other matter that day is not to count as time served. Accordingly Mr Kutner's time spent in custody on recall could not count towards his 13 year sentence. The judge was not intending to pass less than 13 years; he was merely erroneously stating that credit towards that sentence was due to Mr Kutner. As already stated the matter is one for the prison administration and not for the judiciary. Unfortunate as the misinformation was, it does not alter the intended sentence of the court or its effect, nor did it create any legitimate expectation of a lesser sentence. Accordingly, we refuse the renewed application for leave to appeal against sentence in Kutner's case.