England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		13 April 2018

LORD JUSTICE SIMON:

1. On 26 September 2017 in the Crown Court at Leeds, the appellant pleaded guilty to a single offence of assisting an offender, contrary to section 4(1) of the Criminal Law Act 1967 (count 4). On 5 January 2018 he was sentenced by His Honour Judge Mairs to a term of 25 months' imprisonment. He appeals against that sentence with the leave of the single judge.
2. A co-defendant, Karl Stewart pleaded guilty to an offence of possessing a prohibited firearm (count 1) and possessing prohibited ammunition without a firearms certificate (count 2). Stewart also pleaded guilty to two conspiracies charged on different indictments: a conspiracy to transfer a prohibited weapon and a conspiracy to supply class A drugs. He was sentenced to an overall term of 13 years and 11 months' imprisonment. This included five years for the offences charged as counts 1 and 2.
3. On the evening of 3 April 2017 armed police officers were attempting to arrest Stewart. At around 10.43 in the evening a police helicopter located a motor vehicle connected to him in a cul-de-sac in Alwoodley, Leeds, where the appellant lived. The driver's door of the car was open and the officers could see two men standing near the vehicle. These two men went into a wooded area nearby and an item was seen to be left near a hedge in the neighbouring street.
4. Both men then returned to the vehicle which was driven away. Officers in a police car attempted to stop the vehicle but it made off, colliding with the police car and driving on the pavement in order to evade capture. There was a short pursuit before the vehicle was abandoned and the two men made off on foot. They went to the back doors of nearby houses and tried several, before finding a house that was unlocked. They entered this property, causing considerable alarm to the occupants, who immediately heard armed police identifying themselves outside. Soon after, the occupants managed to get out and Stewart and the appellant emerged and were arrested.
5. With the assistance of the helicopter and a police dog the police searched the area where they had seen the item being left. They found a man bag which contained a 7.62mm calibre semi-automatic handgun with a barrel length of 11.5 cm and an overall length of 22.5 cm. There were two live rounds of ammunition inside the gun, one in the breach and one in the magazine. There were two further empty magazines within the bag. Both defendants made no comment in interview.
6. There was a basis of plea in the following terms:

The defendant will plead guilty to assisting an offender on the following basis:

He was not aware that Stewart was attempting to dispose of or conceal the firearm but knew that he had been in possession of a firearm earlier and presumed that is why the police wanted to arrest Stewart. Thereafter he assisted Stewart in making his escape.

7. The appellant was aged 25 at the date of sentence with three convictions spanning 2008 to 2012. Materially for present purposes he had a conviction for possession of class A and class B controlled drugs with intent to supply, for which he received a sentence of six years' detention on 13th November 2012. There was no pre-sentence report before the judge and we are satisfied that none is required for the purpose of this appeal.
8. In passing sentence, the judge observed that the appellant had pleaded guilty on the day of the trial. Although it was also right to note that the Crown had added the count to the indictment on the day of trial. It was substantially different in nature to the other offences on the indictment and therefore there would be more credit than would be due to a plea on the day of trial. The judge rehearsed the facts of the offence and observed that the assistance was provided in relation to a lethal weapon ready for instant use. He said that he would be loyal to the appellant's basis of plea which said that he did not know that the man bag that was hidden contained a firearm, but it was clear that he knew that Stewart was wanted for firearms offences. He had some history of criminality himself and had been sentenced in 2012 to a period of six years' detention and was released in May 2015. That sentence did not expire until May 2018.
9. The judge had been referred to the case of R v Worthington-Hale [2010] EWCA Crim. 1664. The criminality of the main offender's offence in the present case was less serious than the very serious offence in that case. He also recognised that the defendant who assisted the offender in that case did so for several days, although he also tried to assist the police in the apprehension of the offender to convince him to come from an attic in which he had hidden. In the appellant's case his assistance was trying to help the offender to flee from the police and initially he did so successfully.
10. The judge said that the appellant would be given substantial credit for his guilty plea and some reduction for the fact that he had spent time on licence, which meant that remand time would not count. However, that licence period was imposed for serious criminality. Had the appellant contested the offence at trial the sentence would have been a term of three years' imprisonment. With substantial credit for the guilty plea, that was reduced to 28 months and it was reduced further to take into account the fact that the appellant wished to be sentenced in September 2017 but could not be. The sentence was accordingly a term of 25 months' imprisonment.
11. In the grounds of appeal, and today, Mr Birkby advanced a number of points in support of the appeal. First, the criminality of the offending was assisting Stewart to evade arrest when the police car attempted to arrest them. The offence was spontaneous and short-lived, lasting no more than a couple of minutes and it was ultimately unsuccessful. Secondly, while the underlying offences by Stewart were serious, the prosecution accepted on the basis of plea that the appellant did not know that Stewart had attempted to dispose of the firearm in the woods immediately before the arrival of the police. Thirdly, by reference to the case of Worthington-Hale, where the court reduced the sentence to two-and-a-half years on a very late plea, he submitted that the index offence here was less serious. Fourthly, he argued there was personal mitigation available to the appellant, despite his antecedent history. Finally, he submitted that the appellant was entitled to maximum credit for his plea. Up until the day of the trial the prosecution had made it clear that only pleas to the firearm and ammunition counts would be acceptable. In summary he submitted that the starting point was too high and the credit for the plea was insufficient.
12. We take that last point first. The appellant originally faced the same charges as Stewart: count 1, possession of a prohibited firearm on 3 April 2017, and count 3, possession of ammunition without a firearms certificate on the same day. On the day of the appellant's trial, fixed for 26 September 2017, the prosecution advanced the alternative charge, count 4, assisting an offender, to which the appellant pleaded guilty on the agreed basis. He wanted to be sentenced on the same date but this was not possible because Stewart had not been produced at court. Stewart and the appellant were produced on 28th September when it became clear that Stewart faced charges on other indictments. It was therefore not until 5th January 2018 that the appellant was sentenced. The judge gave 22 per cent credit for the plea and we are not persuaded that he was wrong in this assessment. The appellant was certainly not entitled to full credit in circumstances where he had remained silent in interview.
13. We turn then to the other points. Although Worthington-Hale is a reported decision we doubt whether in general it is helpful to refer to cases of assisting offenders on different facts, and seek to compare the culpability and harm in one case with the culpability and harm in another. In the case of Attorney General's Reference No 16 of 2009 (Yates) [2010] 2 Cr.App.R (S) 11, at page 64, in a judgment given by the Lord Chief Justice, this court made clear at paragraph 33 that it was not intending to give detailed guidance on sentencing in cases of assisting offenders. Nevertheless, the court indicated the issues that arise in sentencing. First the nature and extent of the underlying criminality of the offender to whom assistance was given; second, the nature and extent of the assistance provided; third, the extent to which efforts to assist the primary offender damaged the interests of justice.
14. So far as the first issue is concerned, the underlying criminality here was grave, but the prosecution did not dispute that the appellant was unaware that Stewart had disposed of a firearm, although he was aware that the police were looking for him in connection with a firearm.
15. As to the second and third issues, the assistance given was not pre-planned, it was short-lived and it was largely ineffective, although he was on licence at the time.
16. In our view the starting point in this case should have been a term of 30 months and with credit for his plea, together with the further reduction the judge made to take into account the delay in sentence, the sentence should be reduced to a term of 20 months.
17. Accordingly, we quash the sentence of 25 months and substitute a sentence of 20 months. To that extent the appeal is allowed.

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