Court of Appeal in Northern Ireland Decisions

IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND ________ THE QUEEN -v- JAMES PATRICK CONWAY ________

McCOLLUM LJ

This is an appeal against sentence brought by leave of the single judge granted on 26 February 2001.

The appellant pleaded guilty on arraignment on 7 November 2000 to a charge of hijacking, contrary to Section 2(1)(a) of the Criminal Jurisdiction Act 1975 and following the provision of a pre-sentence report was sentenced on 20 December 2000 by His Honour Judge Hart QC, Recorder of Belfast, to a custody probation order consisting of 2½ years custody and 12 months probation. Had the appellant not consented to probation his sentence would have been one of 3 years imprisonment.

The offence was committed on the early morning of 17 November 1999 when a Value Cabs taxi driven by Mr Colin Simmons arrived to pick up a fare at Creighton's Garage, 87-89 Upper Lisburn Road, Belfast.

The appellant had ordered the taxi and he asked Mr Simmons to take him to a neighbouring street to pick up some other people, but when the taxi arrived at its destination the appellant pulled out a black plastic bag of approximately 12 inches in length and stated "this is the UVF". Mr Simmons was informed that the car was needed. He was ordered out, but permitted to take both his money and house keys. No gun or other weapon was produced by the appellant. Evidence from another taxi driver and the staff of the garage would suggest that the appellant had alcohol taken at the time of the incident.

The appellant drove the car to County Tyrone arriving at the Battery Bar, Ardboe, Coagh at some time shortly after 5.00 am. He knocked on the door of the bar and asked the publican if he could use the bathroom. The publican questioned the appellant, examined the car and along with a number of other men detained him while the police were called. Upon being asked his name and address by the police the appellant that he was James Scott from Pluto.

In the course of his police interview the appellant made a full confession. He told the police that he had received a job offer in Dublin and had taken the car with a view to driving to that destination. He intended to drive into the Republic through Bundoran to avoid apprehension. He would have dumped or sold the car after his arrival in Dublin. He claimed not to remember what he said to the taxi driver when taking the car.

It is an unfortunate fact of life that taxi drivers providing a public service during the night are subject to considerable dangers because of the nature of their work.

The courts regard it as important that they receive adequate protection and this requires salutary sentences for those who take advantage of the isolated situations to which the drivers may be exposed.

Any form of assault, robbery or hijacking on a taxi driver will in almost all cases require an immediate sentence of imprisonment, even for a first offender.

The appellant is far from being a first offender, having a record which includes nine convictions for theft, two for common assault, six for criminal damage, one for burglary, two for assault on the police and a considerable number of road traffic and associated offences.

He was born on 19 February 1967, so he is now aged 34.

He also has a considerable record for failing to surrender to bail, which he had failed to do on five occasions prior to the present proceedings and during the course of the present proceedings three bench warrants had to be issued to produce his appearance in court.

At the same time it is in his favour that his actions have rarely shown a high degree of malevolence, although he shows little consideration for the property or rights of others.

In spite of his chequered career the only sentence of imprisonment that he has ever served has been one of three months imposed on 25 January 1999 for shoplifting and criminal damage offences.

The pre-sentence report remarked "Mr Conway has found his recent remand in custody to be a salutary experience, it has however, given him the opportunity to reflect on past mistakes in his life and the need for urgent change if he is to avoid further offending."

The Board further commented "statutory supervision attempted to challenge the defendant's attitude and behaviour. However, his willingness to engage was limited and resulted in breach proceedings. Mr Conway is aware that he will need support to address areas of concern upon release from custody. Although he did not comply with statutory requirements in the past he states that he is now more motivated to effect the relevant changes in his lifestyle. He is aware that he will need professional support to effect these changes. The 36 days 'Stop, Think and Change Programme' at the Probation Centre would give the defendant the opportunity to examine his involvement in offending behaviour in a group work setting and also to examine the impact of his behaviour on others. Areas of concern which would be addressed include alcohol management, gambling and relationships."

It is our view that the learned Recorder was correct to take the view that a custodial sentence was appropriate in this case.

Moreover, although compliance with the requirements of authority has not been apparent in the appellant's past, the probation officer at least left some grounds for hope that his attitude might now have changed.

We find it difficult to assess the likelihood of this, but it would appear likely that the appellant will be more amenable to comply with probation requirements after he has served a term of imprisonment.

Two points were raised in the course of the appeal and were presented concisely and with admirable clarity by Mr Boyd.

The first one was that the learned Recorder had failed to make sufficient allowance for the appellant's plea of guilty in determining the appropriate sentence and the second that having decided to impose a custody probation order the Recorder had made an inadequate reduction from the gross sentence.

On the first point Mr Boyd argued that the Recorder had attributed insufficient weight to the mitigating factors, including the plea of guilty at the earliest opportunity and the lack of aggravating features in the offence itself, pointing out that no violence had been used, the appellant had allowed the driver to take his money and keys and he suggested that this offence was far down the scale of hijacking offences.

He pointed out that the learned Recorder had not mentioned in his sentencing remarks that he was taking into account the appellant's plea of guilty. Article 33 of the Criminal Justice (Northern Ireland) Order 1996 provides as follows:

"33.-(1) In determining what sentence to pass on an offender who has pleaded guilty to an offence a court shall take into account –

(a) the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty; and

(b) the circumstances in which this indication was given.

(2) If, as a result of taking into account any matter referred to in paragraph (1), the court imposes a punishment on the offender which is less severe than the punishment it would otherwise have imposed, it shall state in open court that it has done so."

Mr Boyd conceded that it was extremely unlikely that a judge as experienced as the Recorder is would have failed to have been influenced by the fact that the appellant had pleaded guilty, but suggested that it was significant that the Recorder had overlooked mentioning this fact.

This is particularly so, he argued, because in contrast to some cases in which a guilty plea follows a lengthy maintenance of innocence with perhaps every possible avenue of defence being explored and the prosecution being pressed to make disclosure of all possibly relevant documents and ultimately to bring witnesses to court before the plea of guilty is made.

The circumstances of this case were in marked contrast. The appellant made immediate admissions at interview, told the police that he would be pleading guilty and pleaded guilty at his first arraignment.

He suggested that these factors merited the granting of maximum discount for a guilty plea.

This court has every sympathy with the judge of a busy Crown Court who has to deal with the multitude of cases which comes up for hearing.

The cases in which guilty pleas are made become disjointed affairs with a likely delay of a number of weeks before a pre-sentence report is available.

We would regard it as inconceivable that the Recorder would fail to give discount in a case in which a guilty plea has been made, but since this was a particularly strong case for a substantial discount, the fact that the Recorder did not refer to the fact that he was allowing discount for the guilty plea may suggest that he may not have allowed the enhanced discount that the circumstances of the case merited.

We feel sure that if he had considered making a greater allowance than usual, which this case may well have deserved, that he would have referred to that fact.

Therefore while this court will not automatically assume that no discount has been given for a guilty plea when that fact has not been mentioned by the sentencing judge, we feel that in the circumstances of this case it may be that full discount was overlooked and since a doubt exists on that point the appellant should have the benefit of it.

Enhanced discount in this case would be fairly granted by reducing the proposed overall sentence to one of 2½ years imprisonment.

Mr Boyd further argues that the period of probation in this case is disproportionate to the extent to which the custodial element of the sentence was reduced.

The learned Recorder expressed considerable doubts as to the efficacy of the probation element of the order and these are shared by this court.

However, we take the view that if a custody probation order is to be made, the reduction in the period required to be spent in custody should be one that will be regarded as substantial by the offender. We feel that to create the right attitude in the offender towards the probation part of the sentence he should realise that he has gained an appreciable period of liberty and that if he does not comply with the requirements of probation the effects are likely to be salutary, in that a court dealing with breach of the probation order is required under Article 25(3) of the Criminal Justice (Northern Ireland) Order 1996 to "have regard to the term of the custodial sentence which would have been imposed by the court which made the order had the offender not consented to the order and to the term of the custodial sentence served by the offender in respect of the offence".

For practical purposes it would appear likely that on breach of the probation order the offender would be required to serve a sentence equivalent to the period by which his sentence has been reduced.

In The Queen –v- McDonnell 2000 NIR 168 the Lord Chief Justice enumerated in this court the principles applicable to the imposition of a custody probation order.

We repeat those principles here:

"1. It is clear from the terms of Article 24(2) that since the court can deduct such period as it thinks appropriate to "take account of" the effect of the probation that is quite inconsistent with any requirement of mathematical equivalence. It may in many cases appear appropriate to the court to make the reduction the same length as the probation period, but it is not compelled to do so in every instance, and it may exercise its discretion in determining the amount of the reduction. We consider, however, that the reduction should bear some relation to the length of the probation period. There should also be some balance between the custodial and probation elements.

2. There should ordinarily be a significant period of custody before the offender is released to commence the period of supervision. The supervision seems to us to be intended to operate as an additional element which is designed to help the offender to keep out of trouble after his release rather than constituting the main element in the arrangement. It should be borne in mind that a custody probation order cannot be made unless the court regards a gross sentence of twelve months or more to be justified, so that it is not appropriate where the court might think in terms of a short sentence on the "clang of the prison gates" principle.

3. We therefore do not think that it would ordinarily be in accordance with the legislature's intention to make an order by which the custody element is very much shorter than the probation period, for in such a case it is doubtful whether a sentence of twelve months would have been justified in the first place, and the court should be giving consideration to other forms of sanction.

4. For the same reasons we doubt whether a reduction in the gross sentence which is materially greater than the length of the probation period would be a desirable disposition in most cases.

5. On the other hand, if the reduction in the gross sentence is materially less than the length of the probation period, that would savour of a double penalty, consisting of most of the appropriate gross sentence plus a significant length of probation. We doubt whether that would accord with the statutory intention."

In the later case of The Queen –v- Darragh and Boyd he remarked:

"We think that it is generally appropriate that a reduction should equate with the period of probation: see our discussion of the principles applicable in R –v- McDonnell 2000 Northern Ireland 168 at 172."

The latter remark, which must be viewed in the context of the case with which the court was then dealing and with his remarks in McDonnell have led to a suggestion that for all practical purposes the period of probation should not exceed the period of reduction in sentence.

However, it is quite clear from what was said in R –v- McDonnell that this is not so and the court reiterates that the period of probation need not be identical to the period by which the custodial sentence has been reduced, although in certain cases that might be the appropriate outcome.

We also affirm the remarks of the Lord Chief Justice that the reduction in sentence should bear some relation to the period of probation.

The custody probation option is a useful one and it can be applied in many different kinds of cases.

One type of case is that mentioned by the Lord Chief Justice in Darragh and Boyd at page 10 where probation may be directed simply towards keeping an offender clear of further offending and to help the offender to adjust to life outside prison.

However, as this case illustrates there may be cases in which an offender may be shown to have an addiction to solvent abuse, gambling or alcohol or he may have a personality problem or may be inadequately skilled in managing financial affairs or personal relationships, and these problems, for which prison may provide little long term assistance, may be addressed directly by probation and the offender may benefit from a prolonged period of access to the advice and support which a probation officer can provide.

In such circumstances a fairly lengthy period of probation would obviously be desirable.

In such a case if the actual offence merits a sentence of one to three years a court might well take the view that the amount by which the sentence should be reduced should be shorter than the period of probation required to influence the rehabilitation and future behaviour of the offender.

There can be no formula to cope with every case and the trial judge should exercise the option of a custody probation order in the light of individual circumstances of the offender and the benefit which he sees likely to accrue from a period of probation.

It may well be that a court which considers it appropriate to impose a custody probation order should first consider the appropriate period by which the gross sentence is to be reduced having regard to the effect of supervision by the probation officer on the completion of that term.

We would suggest that it is a rare case in which the reduction would be less than 12 months, except in the case of a gross sentence not greatly exceeding 12 months.

The court should then consider what period of probation would best meet the particular needs of the offender and we would not regard it as excessive if the probationary period were to be 2 years as against a one year reduction in sentence.

It is important to appreciate that the custody probation order is a composite one with two elements of disposal. It was not intended that after serving the appropriate sentence offenders should be required to undergo a period of probation, but rather that the appropriate sentence would be reduced in order to enable the offender to take advantage of the period of probation.

Making a small reduction in the sentence to be served and adding a substantial period of probation comes close to simply requiring the offender to undergo a period of probation at the end of his normal sentence.

In the circumstances of this case while, like the learned Recorder, we are not wholly convinced that the appellant will benefit from his period of probation, we do believe that that period should be a substantial one in order to give him an opportunity to face up to the realities of life and to attain a degree of self-discipline.

That in turn requires an appreciable reduction in the gross sentence.

In our view therefore the appropriate disposal of this case would be the imposition of a custody probation order with a period of 18 months custody and 2 years probation, during which the appellant will be required to attend the Stop, Think and Change Programme provided by the Probation Service.

Should the appellant not consent to this order the sentence of the court will be one of 2½ years imprisonment.

We repeat the warning given by the learned Recorder, that failure to observe all the requirements of his probation service is very likely to result in the appellant having to serve the 12 months by which his custodial sentence has been reduced.


 
IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND ________ THE QUEEN -v- JAMES PATRICK CONWAY ________
J U D G M E N T O F McCOLLUM LJ _______