England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		2 March 2017

MR JUSTICE BLAKE:

1. On 26 November 2015, in the Crown Court at Blackfriars, this appellant pleaded guilty to an offence of conspiracy to rob. He was sentenced by Mr Recorder Taylor at the same court on 18 March 2016 to a term of 6 years and 8 months' imprisonment. The sentence was reconsidered under the slip rule, section 155 of the Powers of Criminal Courts (Sentencing) Act 2000, on 27 April 2016 and on that occasion the sentence was increased to one of eight and a half years. He was granted leave by the single judge on his grounds that argued in essence the subsequent variation of the sentence was unlawful and/or unfair.
2. The conspiracy in which this appellant participated was an agreement to rob jewellers shops by smashing shop windows with a sledgehammer, threatening staff and making off with the contents on motorcycles through town centres before using transit vans parked in strategic places in advance to make good an escape.
3. There was substantial evidence of reconnaissance and pre-planning by the conspirators showing every hallmark of sophisticated professional robberies that were contemplated throughout the country extending from Truro in Cornwall to Tunbridge Wells in Kent to Yorkshire. The judge noted, however, that only one of the robberies contemplated had actually been executed, namely on 3 February 2015 when £94,000 worth of watches was taken and some £21,000 of damage to the shop and merchandise was inflicted.
4. Three men performed the robbery and then made their escape by the route already described to a van that was driven by this appellant, for which he said in his basis of plea he was given a fee of some £2,000. There were reconnaissance trips made on a number of other occasions of different places but these plans to rob were not executed. The police, who had been monitoring the group, concluded that they should intervene to make the arrests to protect the public from potential harm.
5. The judge in his original sentencing remarks indicated that for a conspirator at the appellant's level of participation that was significant but not a lead conspirator a starting point of 7 years would be taken, to which 1 year would be added for each other reconnaissance and planned robbery with which the participant was involved and then aggravating features such as relevant previous convictions might lead to an increase in that starting point. He also indicated that he treated those who drove the getaway van as equally culpable as to those who wielded the sledgehammers in the robbery.
6. Applying that approach in his sentencing remarks of this defendant he identified an agreement to rob jewellers in Bath and Wolverhampton as the core criminality and there were significant aggravating features in the form of previous convictions which included a 2008 conviction for the robbery of a motorcycle. In his original sentencing remarks he therefore indicated a starting point in the appellant's case of 10 years, from which he deducted one-third for a plea on a written basis at the first reasonable opportunity and hence he arrived at the sentence of the 6 years and 8 months that he did.
7. As soon as he had completed his remarks about this appellant, there being a number of other co-defendants, to which we shall refer in one moment, the prosecutor rose to alert the judge to an error in that the written basis of plea by this appellant had admitted his presence at the executed robbery in Tunbridge Wells. The transcript reads as follows:

"MISS DUMMETT: Can I say in relation to Mr Warren, he accepted presence at the robbery in Tunbridge Wells in his basis of plea.

JUDGE TAYLOR: That is my error and I am not going to cause any further distress to the defendant by revising my sentence.

MISS DUMMETT: Thank you.

JUDGE TAYLOR: That is his good fortune.

MISS DUMMETT: I am sorry?

JUDGE TAYLOR: That is his good fortune."

8. The judge then proceeded to deal with the other members of the conspiracy. So far as is relevant to the issues in this appeal, those other members included the lead conspirator, Lee Jackson, who was sentenced to 12 years' imprisonment. He had a number of aggravating previous convictions and his application for leave to appeal against sentence was refused last year. There were other conspirators who received sentences ranging from 5 years 4 months through to 8 years depending upon the number of reconnaissance with which they were involved and the existence or otherwise of previous convictions.
9. On 27 April 2016, within the 56 days allowed by section 155, the judge had clearly changed his mind from the indication that he had given once the faulty basis of his sentencing had been drawn to his attention. Quite clearly influential in that change of mind was the fact that the Attorney General had indicated that he was intending to review the judge's sentence as unduly lenient and the start of that procedure had already been initiated when the judge directed that the matter should be relisted.
10. When it was relisted this appellant was not present and it seems that there was an administrative slip in that he was not told that he was required and it may be that he was unaware of the purpose of the relisting. He was, however, represented by his trial advocate, who was well able to make submissions on the fairness of the procedure and anything else that was relevant at that rehearing. When it was pointed out that the appellant through no fault of his own was not present the judge first raised the matter asa preliminary point whether he had jurisdiction to proceed in the absence of the defendant. He was referred to the relevant provisions of the Criminal Procedure Rule. Rule 28.44 generally requires the defendant to be present unless the slip to be amended is suggested by the defendant or the revision intended is not an increase in severity but the Rule enables the judge to proceed in the absence of the defendant despite those general principles if the defendant has had the opportunity to make representations at the hearing.
11. The judge was satisfied that the presence of his advocate, well aware of what had happened previously and fully cognisant of the relevant factors and considerations in the case, enabled the defendant to make representations to him and those representations undoubtedly were made with vigour.
12. The Recorder then explained that he had passed sentence on an erroneous basis of fact, the Crown had lodged an application to review it and whilst it would have been preferable for the appellant to have attended, he had the chance to make representations and because of the passage of time and the approach of the 56-day limit to the power he concluded the interest of justice required the matter to be dealt with that day.
13. A submission was advanced at the re-sentencing hearing on the basis of the current edition of Archbold that it was wrong to exercise the power the under the slip rule to increase sentence where subsequent reflection had led to a view that the original sentence was inadequate. The case of R v Hadley (1995) 16 Cr App R (S) 538 was brought to the Recorder's attention. He distinguished that principle in the present case because he frankly admitted that he had made a mistake when constructing his original sentencing remarks in forgetting that the appellant had participated in the actual robbery at Tunbridge Wells and for good measure it appears that he was actually involved in two more reconnaissance missions than he had identified. The Recorder was clearly cognisant that the Court of Appeal had power to review the sentence he had originally passed in due course and there was evidence that that power was intended to be exercised on behalf the Attorney General in case. He concluded that given that the sentence might well be reviewed by the Court of Appeal in due course later down the line there was no prejudice to this appellant in the Recorder exercising his powers under the slip rule.
14. Reviewing the facts and the aggravating features, while at the same time anxious to draw a distinction between the sentence imposed on the chief conspirator Mr Jackson, the Recorder identified a revised starting point of 13 years for this appellant that would give a sentence of 8 years and 8 months after full credit for the plea. However, having regard to the circumstances in which the matter was being re-sentenced he gave another 2 months' reduction and imposed a sentence of 8 years 6 months recognising that there was an increase in sentence after some 40 days as a result of the court's own error.
15. Before us, the written grounds of appeal have been developed in oral argument and we summarise them as three propositions. One, it was wrong to proceed in the absence of the appellant when he was not present through no fault of his own. Two, on the basis of the old authority of R v Nodjoumi (1985) 7 Cr App R (S) 183, it was an affront to the appearance of justice for the slip rule to be used to increase sentence after several days. Three, balancing fairness to the defendant against the public interest in a sentence that reflected the proper factual base either no increase should have been made and the power should not have been used at all or greater reduction should have been made for the disappointed expectation that the appellant would have had based upon the Recorder's remarks on the original occasion of the sentence.
16. The single judge granted leave on those grounds and invited the prosecution to be present to make submissions and in the respondent's notice attention was drawn to the case of R v Goss [2016] EWCA Crim 541 (reported as R v G [2016] 2 Cr App R (S) 17), a decision of this court with the President of the Queen's Bench Division presiding handed down on 21 March 2016. At paragraph 16, Sir Brian Leveson said:

"In our judgment the procedure adopted by criminal courts thirty years ago no longer reflects the power of the Attorney General, under the provisions set out in Section 36 of the Criminal Justice Act 1988, to refer as unduly lenient sentences imposed by a court and, thus, the power of the court to increase such sentences. This means that the power to exercise discretion under the slip rule is no longer encumbered by the approach which the court in Nodjouni outlined."

Despite an ambitious submission advanced before us this morning that that must have been obiter because there were other factors in the case (a submission which, in fairness, Ms Yarrow did not pursue once it was pointed out that those remarks had also subsequently received approval), we conclude that much of the basis of the written grounds of appeal needs reconsideration in the light of the principle in G. We agree with the remarks in G and we conclude that that does mean that Nodjoumi is unlikely to have relevance any further as an absolute prohibition on the exercise of discretion under the slip rule.

17. It has also been pointed out that the same constitution which decided the case of G also decided the case of R v Nguyen [2016] EWCA Crim 448, where it concluded that there were limits to the exercise of the power and the 56-day period was such a limit and a case could not be listed inside that time and then adjourned beyond it and so the power, if it is to be exercised at first instance, has to be exercised within the time limit provided by the statute. That, of course, is not a difficulty that arises here.
18. In the hearing before us a further point was advanced, namely a point by comparison with the sentence imposed upon the co-defendant Smith who had a worse record in terms of a robbery of a jewellers shop.
19. We have not doubt that that fact does not make this sentence manifestly excessive since it was clearly based upon a rational view of the hierarchy of culpability, the seriousness of the conspiracy, the number of incidents of it and a relevant degree of aggravation by previous convictions.
20. Our conclusion is that there was nothing wrong with the 13 years starting point adopted at the second hearing given the true factual basis of the appellant's participation in this very serious professionally organised conspiracy to rob. The judge clearly had jurisdiction to increase the sentence by reason of his earlier mistakes and misapprehensions at the hearing despite the fact that he had declined to change his mind at the first hearing when the matter was drawn to his attention. Third, he could do so as a matter of jurisdiction in the absence of the defendant, although clearly relisting of the matter in the presence of the defendant was the preferable course.
21. The fact that there was a real risk that the sentence might, indeed almost certainly would, have been reviewed by this court on the application of the Attorney General was a material consideration and why there was no unfair to the defendant in exercising those powers sooner rather than later.
22. In our view, the current state of the law as shown by the authorities is as follows:

(1) Where an error occurs in the factual basis of sentence it should be pointed out to the court as soon as possible and consideration should be given to correcting it at the earliest opportunity, preferably by revisiting sentence on the same day rather than a subsequent day.

(2) A judge should not use the slip rule simply because there is a change of mind about the nature or length of the sentence but the slip rule is available where the judge is persuaded that he had made a material error in the sentencing process whether of fact or law. It is relevant in considering whether he had made a material error that that error might be corrected by the Court of Appeal on the Attorney General's application.

(3) The sooner the slip rule is invoked in such a case the better. The passage of time from the first decision to its revision is a material consideration as to how the power should be exercised but there is a 56-day cut off in any event.

(4) A judge should not be unduly influenced by the prospect of a reference being made to change the sentence that he thought was right at the time by the mere threat of a review by the Attorney General. If the judge concludes that the sentence was not wrong in principle and was not unduly lenient, he should not change his mind simply because there is the possibility of a reference. The judge can then use the opportunity at the further sentencing hearing to give any further explanations for the original decision for the sentence.

(5) Sentencing and re-sentencing should take place in the presence of the appellant and administrative convenience should not be allowed to degrade that principle. But if for one reason or another the appellant cannot be brought to court in the 56 days there is a discretion to proceed in his absence so long as there is an advocate who can fully represent in the sense of who is properly instructed as to the relevant facts and is able to assist the court to make pertinent submissions on the facts and the law, as clearly this appellant's advocate was on the date of the re-sentence.

(6) Although Nodjoumi no longer identifies the basic rule in such cases, the appearance of justice and the impact of the change on a defendant where an error has not been induced by anything that he has said or done is a relevant consideration and in appropriate cases it can be reflected in a modest discount to the proposed revised sentence to reflect this fact. This is done in this case. We consider that modest discount was appropriate and sufficient.

23. For the reasons given earlier in this judgment, we conclude that the judge had the jurisdiction to re-sentence, exercised that power in the circumstances of this offence rationally, lawfully and fairly, did not result in him being unable to increase sentence by reason of any expectation that might have been generated by his remarks on the earlier occasion and reached a sentence that cannot be said to be unfair or manifestly excessive or wrong in principle. For these reasons this appeal is accordingly dismissed.