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ab0224364e4cf6562c82f8861d5268d4fa22b2ec45e0f750e9ca587e39fa448d | [2008] EWCA Crim 2952 | EWCA_Crim_2952 | null | "2008-11-26T00:00:00" | crown_court | No. 2008/03296/A9 2008/03350/A9 & 2008/03349/A9 Neutral Citation Number: [2008] EWCA Crim 2952 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Wednesday 26 November 2008 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Judge ) LORD JUSTICE TOULSON and MR JUSTICE MADDISON - - - - - - - - - - - - - - R E G I N A - v - RICKY DOUGLAS HAVILL NICHOLAS ANTHONY POWELL JOSEPH ANTHONY GUNNING (JUNIOR ) - - - - - - - - - - - - - - Compu | No.
2008/03296/A9
2008/03350/A9
&
2008/03349/A9
Neutral Citation Number:
[2008] EWCA Crim 2952
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Wednesday 26 November 2008
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(
Lord Judge
)
LORD JUSTICE TOULSON
and
MR JUSTICE MADDISON
- - - - - - - - - - - - - -
R E G I N A
- v -
RICKY DOUGLAS HAVILL
NICHOLAS ANTHONY POWELL
JOSEPH ANTHONY GUNNING (JUNIOR
)
- - - - - - - - - - - - - -
Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
190 Fleet Street, London EC4
Telephone 020-7421 4040
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - -
Mr S Wallace
appeared on behalf of the Appellant Ricky Havill
Mr C Campbell
appeared on behalf of the Appellant Campbell
Mr R Fortson
appeared on behalf of the Appellant Joseph Gunning
Mr R A Leach
appeared on behalf of the Crown
- - - - - - - - - - - - - -
J U D G M E N T
Wednesday 26 November 2008
THE LORD CHIEF JUSTICE:
1. On 28 February 2008 the jury at Wood Green Crown Court in a trial presided over by His Honour Judge Winstanley delivered its verdicts on a seven count indictment against these three appellants. A fourth man, Joseph Gunning Senior (the senior conveniently to distinguish him from Joseph Gunning Junior) was acquitted on all counts. The counts and verdicts were: count 1, possessing a firearm with intent to endanger life, not guilty; count 2, possessing a prohibited firearm, guilty; count 3, possessing a firearm with intent to endanger life, not guilty; count 4, possessing a firearm without a certificate, guilty; count 5, possessing ammunition with intent to endanger life, not guilty; count 6, possessing a firearm without a certificate, guilty; and count 7, possessing ammunition, guilty. On count 8, Powell alone was found not guilty of possession of heroin with intent to supply.
2. The use of the word "firearm" in that brief summary of the indictment is liable to mislead. This was what can only be described as an arsenal of firearms: very dangerous lethal firearms in factory or mint condition, and with ammunition of the same quality. There were 26 handguns in all; the barrels were shorter than 30 centimetres and a length of less than 60 centimetres. They were all prohibited lethal-barrelled weapons. Included in them were 17 Ruger handguns, eleven of which could be fired by pulling the trigger alone, and the other six of which required the hammer to be cocked and the trigger pulled. The serial number of each of the revolvers had been removed. All the ammunition was live and suitable for use in a wide range of firearms. It included a total of 700 rounds of .357 Magnum ammunition designed to expand on impact (known colloquially as "dum dum bullets"). That ammunition could have been used in the 17 Ruger handguns. There were 300 rounds of 9mm Parabellum, 150 rounds of .45 Auto and 149 rounds of .38 Special Calibre ammunition. The .38 ammunition could also have been used in the handguns. The 9mm ammunition was suitable for use in Beretta pistols, and the .45 ammunition could be used in the four Ruger handguns. There were four silencers which are themselves firearms for the purposes of the Firearms Act.
3. The jury's verdicts on counts 1, 3 and 5 were reached on the basis that the Crown had failed to prove that the appellants were in possession of these firearms with intent to danger life, but, as we understand the way in which the case was left to them, the jury had to be sure before they could convict that the defendants knew that the boxes to which we shall refer shortly in this judgment, contained firearms. If the jury was not sure of actual knowledge, they had to acquit.
4. In due course, on 19 May 2008, each of the appellants was sentenced in the same way: on count 2, five years' imprisonment; on counts 4 and 6, four years' imprisonment; and on count 7, five years' imprisonment, all those sentences to run concurrently. Appropriate orders were made for forfeiture and destruction. All three appellants now appeal against sentence.
5. The facts can be summarised in very brief form. On the afternoon of 26 January 2007 police officers were keeping watch on a van which was parked in a car park at a retail park in Enfield. The van had arrived at about 2.30-3.00 in the afternoon and there it remained for some considerable time. It was a work van for which Havill was responsible. It had no business to be in Enfield. It should never have been removed from the borough in London at which he worked. The tracking device on the van was disabled. It was he who had driven the van to the car park. He was accompanied by Gunning Junior in the passenger seat. They remained in the car pack for two to three hours. Shortly after 5.30pm the van drove away from the car park and went to a petrol station. It returned to the car park at about 6pm.
6. In the meantime a Vauxhall Astra car had been driven into the same car park. When the van driven by Havill returned, he parked next to the Vauxhall Astra. Powell, who had driven the Astra to the car park, and Gunning Junior were seen to alight from their respective vehicles. The rear doors of both vehicles were opened and four medium-sized, closed cardboard boxes were transferred from the Astra into the van. Gunning Junior closed the van's doors and he got into it. Powell got into his car. Havill's van then drove away. Police officers stopped that vehicle before it left the car park. Powell was arrested while still in the car park. The guns and ammunition which we have set out earlier in this judgment were found.
7. When interviewed, the appellants all denied any knowledge of the contents of the box.
8. The jury returned verdicts which the judge was bound to accept and to reflect in his sentencing decision. As he put it in his sentencing remarks:
"I must and I do respect those verdicts of the jury. The jury were not sure, I take it from their verdicts of acquittal, that you knew firearms were in the cardboard boxes".
Having acknowledged the primacy of the jury's verdict, the judge went on to record that he did not believe his respect for the jury's verdict meant that he was obliged to accept "all the detail" of what the appellants had advanced in their cases to the jury. He then summarised the case of each of the appellants and concluded:
"You all deliberately closed your eyes, did not want to know what the nature of what it was that you would be collecting or delivering....
.... I am sure that you all realised that there was a risk that what you were collecting or delivering might in some way be illegal. ... I am sure that all three of you had deliberately ensured that you did not know what was in the boxes and that for a few pounds you were prepared to take part in the distribution chain of what may turn out to be highly illegal or dangerous articles ....
.... in my judgment, those in possession, as it turns out, of these dangerous items cannot and do not escape criminal [liability] by turning a blind eye to the circumstances of what they choose to involve themselves in ....
.... I am sure .... that you knew there was significant risk that you were engaged in some criminal behaviour and, in those circumstances, I am quite sure that it is right to impose deterrent sentences."
9. It is clear that each of the three appellants went to the scene in order to be paid a substantial sum of money by making himself available to provide transport. As it turned out, on the jury's verdict, the appellants did not know that the material they were being asked to transport consisted of this arsenal. However, the reality is that each of the appellants was trusted by those responsible for the delivery of the guns, and by those who hoped to take delivery of the guns, to be circumspect and not to check on the goods. Indeed, if any one of them had bothered to check on the goods, those responsible for the delivery and the collection of the guns could trust them nevertheless neither to hand them to the police nor to inform the police, but to continue with their transportation. So it was that these weapons were taken to a pre-arranged destination and there transferred to another vehicle, which was the next vehicle in the transportation system.
10. Our attention has been drawn to
section 51A of the Firearms Act 1968
, as amended by
section 287 of the Criminal Justice Act 2003
, which applies to offences committed on or after 22 January 2004. The judge took the view that this provision applied to the decision which he had to make. It provides:
"(1) The section applies where --
(a)
an individual is convicted of -- [one of the offences of which the appellants were convicted. If so]
(2) The court shall impose an appropriate custodial sentence [which is defined for the purpose of the Act as five years' imprisonment in the case of an adult] .... unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so."
11. It was argued in the course of written submissions, and developed succinctly and clearly in oral submissions before us, that the exceptional circumstances envisaged by the Act did arise here. They arose because the appellants did not know that they were in possession of firearms. If that was so, any deterrent element in the sentence addressed by this section was not needed. However, it may be that in any particular case, for example the possession of one out-of-date firearm without appropriate ammunition for it, the imperative when this section is being examined is that the court must consider whether exceptional circumstances have arisen in the context of the whole of the facts of the particular case.
12. The judge here took the view that even if the appellants did not know that they were dealing with this arsenal of firearms, that was because they had deliberately closed their eyes to it. It was a finding he was fully entitled to make; it did not in any way amount to any form of disloyalty to the verdicts of the jury.
13. The short answer to this appeal is simple. If the appellants had known (in the sense which the jury acquitted them) that what they were carrying was truly an arsenal of firearms, a sentence of five years' imprisonment would have been wholly inadequate. It should be remembered that the five year term for the purposes of
section 51A
is the minimum required term. Without suggesting that this could or would be a test of general application we have asked ourselves whether, irrespective of the statute, this sentence in the circumstances outlined by the judge and in relation to the jury's verdict was manifestly excessive or wrong in principle. Although the appellants had no defence in law to the counts in the indictment of which they were eventually convicted by the jury, the judge was satisfied that they had nevertheless persisted with their "not guilty" pleas in the hope that something might fortuitously turn up to their advantage. There could therefore be no discount for a guilty plea; the case proceeded as a trial. Given what it was that the appellants allowed themselves to become involved in carrying and the fact that they had "turned a blind eye" to what it was they were involved in, in our judgment a sentence of five years' imprisonment, irrespective of the statute, was not in any sense too long. In any event we take the view that the exceptional circumstances envisaged by the statute did not arise in the context of this case and so, whether we approach the matter through the statute or simply stand back from the sentence, in neither situation does the possibility of a manifestly excessive sentence arise. In our judgment these sentences were amply justified. There is no basis therefore for reducing them.
14. There is a further footnote to this judgment. In the case of one of the appellants, material was put before us which may, if drawn to the attention of the prison authorities, amount to compassionate grounds. We do not express any further views. It is for the authorities to decide whether compassionate grounds are established. The appropriate place for those issues to be raised is not with us in the course of today's appeal but with the prison authorities. For that purpose, Mr Campbell, the letter that you have shown to us will be returned to you.
MR CAMPBELL:
My Lord, I am very grateful. | [
"LORD JUSTICE TOULSON",
"MR JUSTICE MADDISON"
] | [
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] | null | null | 2008_11_26-1736.xml | null | null | https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/2952/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/2952 |
d4630d93258ea51ecff4bc4015443b4eecf8d9b2e5b7c5afead636dd4daa476c | [2006] EWCA Crim 3187 | EWCA_Crim_3187 | null | "2006-12-19T00:00:00" | supreme_court | Neutral Citation Number: [2006] EWCA Crim 3187 Case No: 2003/06451/C4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CHESTER CROWN COURT MR JUSTICE STEPHEN RICHARDS Royal Courts of Justice Strand, London, WC2A 2LL Date: 19 December 2006 Before : LORD JUSTICE PILL MR JUSTICE FORBES and MR JUSTICE HODGE - - - - - - - - - - - - - - - - - - - - - Between : THE QUEEN Respondent - and - MAURICE ALAN JOHN LATUS Appellant - - - - - - - - - - - - - - - - - - - - - - | Neutral Citation Number:
[2006] EWCA Crim 3187
Case No:
2003/06451/C4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CHESTER CROWN COURT
MR JUSTICE STEPHEN RICHARDS
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
19 December 2006
Before :
LORD JUSTICE PILL
MR JUSTICE FORBES
and
MR JUSTICE HODGE
- - - - - - - - - - - - - - - - - - - - -
Between :
THE QUEEN
Respondent
- and -
MAURICE ALAN JOHN LATUS
Appellant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
MR S LINEHAN QC
for the Respondent
MR A BARKER QC for the Appellant
Hearing dates : 23 November 2006
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Pill:
1.
On 19 June 2002 in the Crown Court at Chester before Mr Justice Stephen Richards, Maurice Alan John Latus pleaded guilty to wounding with intent to do grievous bodily harm (Count 5). Two days later, he pleaded guilty on re-arraignment to an offence of manslaughter (Count 3) where murder had been charged. On 3 and 4 July 2002, before the same judge and a jury, he was convicted of attempted murder (Count 4) and wounding with intent to do grievous bodily harm (Count 1). On a separate count of murder (Count 2), separate that is from the killing on which there had been a plea to manslaughter, the jury failed to agree.
2.
There was an abortive trial on that count for murder, also at Chester, in February 2000 followed by a further order for re-trial. On 16 October 2003 at the same Crown Court before His Honour Judge Gibbs and a jury, Latus was convicted of that murder.
3.
For each of the offences, Latus was sentenced by Judge Gibbs on 16 October 2003 to life imprisonment. The minimum term provided was 16 years. Latus appeals against the conviction for murder on 16 October 2003, by leave of the full court. An extension of time of one year and five months was granted.
4.
The ground of appeal is simple to state. The conviction is unsafe, it is submitted, because fresh evidence is available which, if admitted, would establish that the appellant was suffering from diminished responsibility at the time of the killing. The conviction should be for manslaughter.
5.
There were three victims; Julian Sanders, Colin Faulkes and the appellant’s mother. Faulkes was the subject of the manslaughter count (Count 3), the offence having been committed in June 2001. The appellant’s mother was the victim of attempted murder (Count 4), the offence having been committed on the day following the killing of Faulkes. Sanders was the victim of wounding with intent (Count 5) on 29 February 2000 and of the murder now in issue, to the facts of which we now turn.
6.
From about 1985, the appellant lived in the Gatehouse a house owned by Colin Faulkes in rural Shropshire. The appellant alleged that Faulkes had physically and sexually abused him over many years but that he could not leave the house because he had nowhere to go. His relationship with his mother was difficult. She had re-married a much younger man, a pupil of hers, in the early 1980s.
7.
The appellant and the deceased Julian Sanders worked together from 1997 onwards and became friendly. They saw each other fairly frequently. Sanders was admitted to a mental hospital twice in 1999 suffering from a drug induced psychosis.
8.
On 29 February 2000, Sanders attended Shrewsbury hospital with wounds to his forehead and the back of his head. There was extensive bruising and swelling at the back of his skull. At the time, he said that he had fallen down a flight of stairs. He was again an inpatient at a mental hospital from early April to late May 2000.
9.
Sanders was killed on 27 or 28 May 2000. His body was found at Cofton Park, a grassed area in outer Birmingham. CCTV which normally operated in the area had malfunctioned. The evidence was that Sanders had been killed elsewhere, that the killer had severed the head from the body and travelled to Cofton Park, it was thought by car.
10.
The appellant was arrested in October 2000. At interview, he denied any connection with the killing and was released without charge.
11.
The prosecution case was that the appellant had hacked Sanders to death with an axe or a heavy implement with a sharp edge. Reliance was placed on evidence that the deceased had telephoned the appellant shortly before he was killed. A watch worn by the deceased a week before his death was in possession of the appellant after the death and the appellant attempted to destroy it. The appellant was seen driving his car on the day on which Sanders was likely to have been killed. Reliance was placed on the guilty plea to wounding Sanders with intent in February 2000 as showing animosity towards him.
12.
The defence case was a denial that the appellant was the killer of Sanders. At interview, he had stated that the deceased’s injuries in February 2000 were caused accidentally. The appellant did not give evidence.
13.
The sentencing judge on 16 October 2003 had to consider a conviction for manslaughter based on diminished responsibility and a conviction for murder. The offences were committed about a year apart, the murder offence being the earlier in time. When accepting the manslaughter plea in June 2002, Stephen Richards J had before him a report from Dr J D Collins, consultant forensic psychiatrist, based on his knowledge of the appellant as his responsible medical officer. Dr Collins had been given a detailed account by the appellant of his killing of Colin Faulkes. In relation to the killing of Sanders, Dr Collins added:
“In relation to the charge Mr Latus is facing in respect of Mr Sanders, I have no medical recommendation to make. He has consistently denied any involvement in the killing. Whilst I think it the case that Mr Latus was suffering from a mental illness at the time of Mr Sanders’ death, he has never said anything about him, which would suggest that Mr Sanders was involved in his delusional system or any other aspect of his mental illness. Under the circumstances, if Mr Latus is convicted of an offence in respect of Mr Sanders, there is no indication at present to suggest that a hospital disposal is appropriate and no bed would be made available for him at Ashworth hospital in relation to this.”
14.
When sentencing the appellant in October 2003, the judge acted on the basis of that and subsequent reports from Dr Collins. The subsequent reports dealt only with the Faulkes killing.
15.
The appellant sought leave to appeal against his conviction for the murder Sanders, on grounds unconnected with the present ground. His application for leave was refused by the single judge on 15 March 2004. On 29 July 2004, the appellant admitted killing Sanders. He made the admission to his solicitor, giving an account of what he said had happened. The solicitor understandably obtained a further report from Dr Collins. It is this report which the appellant relies as being fresh evidence for the purposes of this appeal.
16.
In his report dated 9 November 2005, Dr Collins first confirmed that, before the trial, he advised the appellant that, since he denied killing Sanders, he was “not able to make any decision as to the extent to which [the appellant’s] mental illness had contributed to the offence”. Dr Collins then recorded in detail the account of the killing given to him. Dr Collins asked him, properly and in accordance with his professional duty, why he had not given the account pre-trial and why he had denied involvement in the offence. We will consider later the reasons given by the applicant.
17.
The appellant’s description of the killing fitted, in the doctor’s view, the facts insofar as he had been able to establish them and he had no reason to doubt its validity. Dr Collins considered that there was a “striking similarity” in the aggression of the applicant towards Faulkes and Sanders. On the appellant’s account, Sanders was involved in his delusional beliefs in much the same way as was Faulkes and that Sanders was perceived to be persecuting him as an agent for Faulkes. Dr Collins concluded:
“Had Mr Latus given these accounts to me before his trial, I would have considered that he was suffering from diminished responsibility”.
He said he would have recommended imposition of a hospital order, with restrictions.
18.
The prosecution obtained a report from Dr N M J Kennedy, consultant psychiatrist. He too heard the appellant’s account of how Sanders was killed and said that, had he heard that account at the time of the first trial, he would have advised the prosecution to accept a plea of diminished responsibility. He added that when unwell the appellant “represents a grave and immediate danger to the public. There would be a substantial risk of serious violence to anybody about whom he formed paranoid beliefs in the future”. In a short supplementary report, Dr Kennedy stated that, if the appellant was not telling the truth as to the circumstances of the killing, he would still take the view that the appellant was suffering from an abnormality of mind which was “something that would have globally affected his mental functioning to a substantial degree”.
19.
On behalf of the appellant, Mr Barker QC seeks leave to call as further evidence, that of Dr Collins just described.
Section 23 of the Criminal Appeal Act 1968
provides, insofar as is material:
“
(1) For the purposes of an appeal under this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice-
(a) …
(b) order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court, whether or not he was called in those proceedings; and
(c) receive any evidence which was not adduced in the proceedings from which the appeal lies.
(2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to-
(a) whether the evidence appears to the Court to be capable of belief;
(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;
(c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and
(d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.
”
20.
It is common ground that the requirements of
Section 23(2)(a)(b)
and (c) are satisfied. Mr Barker submits that it is necessary and expedient in the interests of justice to receive the evidence and that there is a reasonable explanation for the failure to adduce the evidence at the trial. The appellant should be sentenced on the basis of the up-to-date medical evidence, as to what his mental condition was at the time of the killing of Sanders. It was not adduced at the trial because the appellant sought to deny any involvement in the killing. It is further submitted that the appellant’s mental condition at the time of the offence was such as to affect his responsibility for decisions taken before and at the trial including the decision to deny the killing.
21.
For the prosecution, Mr Lineham QC submits that it would subvert the trial process to permit an appellant to mount on appeal an expert case which, if sound, should and could have been advanced before the jury. Further, the current medical opinion depends on acceptance of an account of the killing given by the appellant, the accuracy of which is in issue and is to be seriously doubted. The appellant knew of the partial defence of diminished responsibility because it was adopted, and accepted, in relation to the murder charge involving Faulkes, heard at the same time as the first trial of the murder charge involving Sanders. The appellant had determinedly and persistently lied about his involvement in the killing of Sanders. He had been interviewed under caution in October 2000 for over 4 hours. The appellant answered detailed questions and throughout denied any involvement in the killing.
22.
There have been cases in which fresh medical evidence of diminished responsibility has been admitted in this court notwithstanding a denial at trial of involvement in the offence. In
R v Borthwick
[1998] Crim LR 274, the court held that if there was overwhelming or clear evidence that a defence of diminished responsibility would have succeeded and that it was the mental illness itself that caused the defence not to be run, the interests of justice would seem to require the substitution of a manslaughter verdict or at least a retrial. In
R v Ahluwalia
(1993) 96 Cr.App.R 133
, fresh medical evidence was admitted when a medical report available at the trial was overlooked or not further pursued and the appellant was not consulted about it. However, Lord Taylor of Gosforth CJ stated, at page 142:
“Ordinarily, of course, any available defences should be advanced at trial. Accordingly, if medical evidence is available to support a plea of diminished responsibility, it should be adduced at the trial. It cannot be too strongly emphasised that this court would require much persuasion to allow such a defence [diminished responsibility] to be raised for the first time here if the option had been exercised at trial not to pursue it. Otherwise, as must be clear, defendants might be encouraged to run one defence at trial in the belief that if it fails, this court would allow a different defence to be raised and give the defendant, in effect, two opportunities to run different defences. Nothing could be further from the truth”
23.
In the earlier case in
R v Straw
[1995] 1 All ER 187
, the court refused leave to call fresh medical evidence when an appellant who was capable in law of taking the decision as to how her case should be put before the jury and, with full advice as to a defence of diminished responsibility, declined to allow it to be put before the court.
24.
In
R v Neaven
[2006] EWCA Crim 955
, this court, Rix LJ presiding, drew, at paragraph 41, this guidance from the authorities:
“(1) That the obligation on a defendant to advance his whole case at trial, and the scepticism directed towards tactical decisions, remain fundamental. (2) That it therefore takes an exceptional case to allow it to be in the interest of justice to admit and give effect to fresh evidence, not relied on at trial, designed to promote a new defence of diminished responsibility. However, subject to this, (3) each case turns on its own facts. Therefore, (4) where the evidence of mental illness and substantial impairment is common ground or otherwise clear and undisputed, it may be in the interests of justice (In the absence of opposition from the appellant himself – see Kooken) to admit it. (5) This is especially so if the potential vice of tactical decisions is met by undisputed evidence that such decisions were affected by the defendant’s illness itself. (6) The emerging only after conviction of evidence of mental illness and of the potential of a defence of diminished responsibility is of little weight, unless perhaps there is unanimity as to the conditions necessary for such a defence at the time of offence.”
25.
Doubts have been raised by the prosecution as to the accuracy and frankness of the appellant’s present account of how Sanders was killed. The prosecution case remains that it was a deliberate killing, whereas the appellant denies an intention to kill. Doubts have been raised as to the credibility of the entire account now given by him. Evidence, probably including pathological evidence, would be required in any attempt to resolve them. It is not, in our view, necessary or appropriate for this court to attempt to resolve them.
26.
The potential relevance of the issue, apart from the issue of whether the appellant had been frank with the court, is that
Section 2(1) of the Homicide Act 1957
, which defines the partial defence of diminished responsibility, requires that the abnormality of mind substantially impaired the defendant’s mental responsibility for his acts and omissions in doing or being a party to the killing, the burden of proof being, by virtue of
section 2(2)
on the defence. The impairment of mental responsibility must be for the “acts in doing the killing”. Until it is decided what those acts were, the link, if any, between the impairment and the killing cannot be established. There is no doubt that Dr Collins, very understandably in our view, was not prepared to express an opinion about diminished responsibility in relation to the charge involving the death of Sanders at the time of the appellant’s trial.
27.
That point, however, is not central to our deliberations in this particular case. If the point were to be crucial, the defence would rely on alleged similarities between the killing of Faulkes and the killing of Sanders to establish that, whatever the precise acts, the defence of diminished responsibility should cover both killings.
28.
Analysis is required of the appellant’s decisions at the time of the first and the second trial. At the first trial, a plea of diminished responsibility was accepted in the count involving Faulkes. We have no doubt that its possible availability in the count involving Sanders was fully explained to the appellant by his legal advisors. He decided to plead not guilty. He was asked about that when interviewed by Dr Collins prior to him writing his report of 31 October 2005:
“When I asked Mr Latus why he had not given this account of the killing to us when he was in Ashworth on remand, and why he had denied any involvement in this offence, he gave me a number of reasons, as follows:
1.
He admitted that he was trying to achieve “damage limitation … I hoped to get away with it. There wasn’t much evidence”.
2.
He feared that, if he had given this account, people would have thought he was making it up.
3.
He thought that this crime was so terrible that people would be horrified by what he had done and not wish to associate with him.
At the time of his trial, he was still not really sure whether he had a mental illness or not. He acknowledged that he had been told this often enough at Ashworth, but he was still convinced that he had been repeatedly attacked at night in the caravan and, as far as he was concerned, there was evidence to prove it, eg the pain in his knees and the various marks on his body that he had identified.
4.
He said that, whilst he knew that killing someone was wrong, he had thought, at the time, that he was justified as he had been the victim of repeated, serious, unprovoked assaults for many months. However, he did not see any way of making his story seem credible to others. He pointed out that he has never gone to the police either, his view being that, if he had done so, “they would have just laughed me out of the station.”
29.
While, under point 3, the question of mental illness was raised, these explanations demonstrate what the prosecution have fairly described as a deliberate tactical decision not to allow the defence of diminished responsibility to be investigated because the appellant believed that he had a good chance of acquittal based on his denial of any responsibility. We cannot accept the submission that it was the mental illness which gave rise to these attempts to evade responsibility. Moreover, the appellant’s conduct after the killing, by way of attempting to dispose of the body and by his persistent denials of involvement tend to confirm the statement he made to Dr Collins that he “hoped to get away with it”. He persisted in his denial following his arrest for the killing of Faulkes and his “hope” succeeded to the extent of a jury disagreement on the Sanders count at the first trial. The appellant persisted in denying involvement at the time of the retrial at which he was convicted and until his application for leave to appeal had been refused.
30.
This is not a case in which the decisions made by the court in, for example,
Borthwick
and
Ahluwalia
can be followed. In our judgment, no reasonable explanation has been given for the failure to adduce appropriate medical evidence at the trial and it is neither necessary nor expedient in the interests of justice to admit it now. If it is necessary to state it, we state that this involves no criticism whatever of the conduct of Dr Collins at any stage. We agree with, and apply, the principle stated by Lord Taylor CJ in
Ahluwalia
, and cited in paragraph 22 above. We note that in
Neaven
, at paragraph 43, the court, while admitting fresh evidence on the basis that the illness had affected the defendant’s ability to give rational instructions, stated, at paragraph 47:
“As stated above, we have no doubt that the principles in favour of one trial and against changing tactics remain of paramount and fundamental importance.”
31.
For the reasons given, leave to call further evidence was at the hearing refused. It followed that the appeal was dismissed. | [
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] | null | null | 2006_12_19-996.xml | conviction | null | https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/3187/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/3187 |
37183a714b626cfe98081ac0250c804f992f340281f6d2ee4167a29dd2b6bd77 | [2012] EWCA Crim 1840 | EWCA_Crim_1840 | null | "2012-08-08T00:00:00" | crown_court | Neutral Citation Number: [2012] EWCA Crim 1840 Case No: 201106042D2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE INNER LONDON CROWN COURT MS RECORDER CRANE S20110222 Royal Courts of Justice Strand, London, WC2A 2LL Date: 08/08/2012 Before : LORD JUSTICE DAVIS MR JUSTICE BURTON and MR JUSTICE LANGSTAFF - - - - - - - - - - - - - - - - Between : SUMAL & SONS (PROPERTIES) LIMITED Appellant - and THE CROWN (LONDON BOROUGH OF NEWHAM) Respondent - - - - - - - - - - - - - - - - - - - | Neutral Citation Number:
[2012] EWCA Crim 1840
Case No:
201106042D2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE INNER LONDON CROWN COURT
MS RECORDER CRANE
S20110222
Royal Courts of Justice Strand,
London, WC2A 2LL
Date:
08/08/2012
Before :
LORD JUSTICE DAVIS
MR JUSTICE BURTON
and
MR JUSTICE LANGSTAFF
- - - - - - - - - - - - - - - -
Between :
SUMAL & SONS (PROPERTIES) LIMITED
Appellant
- and
THE CROWN
(LONDON BOROUGH OF NEWHAM)
Respondent
- - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - -
PHILIP RULE
(instructed by
PGA Solicitors LLP
) for the
Appellant
.
MATTHEW PAUL
(instructed by
Solicitor, London Borough of Newham
) for the
Respondent
.
Hearing date: 26th July 2012
- - - - - - - - - - - - - - - -
Judgment
Lord Justice Davis :
Introduction
1.
On 8
th
April 2011 at Stratford Magistrates
‟
Court the appellant, Sumal & Sons (Properties) Limited, was found guilty, after a trial in its absence, of being the owner of a rented property without a licence contrary to
section 95(1)
of the
Housing Act 2004
(“
the 2004 Act
”). The information stated that the offence was committed “on or about 10
th
January 2011”. The appellant was committed to the Crown Court for sentence under
section 70
of the
Proceeds of Crime Act 2002
(“
the 2002 Act
”).
2.
On 3
rd
October 2011 at the Inner London Crown Court the appellant was sentenced by Ms Recorder Crane as follows:
(i)
It was fined £2,000.00 (plus Victim Surcharge of £15.00);
(ii)
It was ordered to pay prosecution costs of £3,821.96;
(iii)
It was made the subject of a confiscation order under
the 2002 Act
in the sum of £6,450.83.
The total sum due (£12,287.79) was ordered to be paid within six months.
3.
Section 80
of
the 2004 Act
, putting it in general terms, makes provision for the introduction by local authorities of selective licensing of rented residential property in the private sector. This can be achieved by a local authority designating either the whole of its district or an area or areas within its district to such licensing. The Little Ilford Ward of the London Borough of Newham was designated a Selective Licensing Area (“SLA”). On 1
st
March 2010 the SLA designation became operative. The designation was publicised in the area of the London Borough of Newham through a campaign in the local press.
4.
The appellant has for many years been and is the owner and landlord of 48 Worcester
Park Road, Manor Park, Little Ilford, Newham (“the property”). The property, which had been privately rented for a significant period of time, is situated within the SLA. As a result it had to be licensed in accordance with Part 3 of
the 2004 Act
.
5.
An application pack for a licence and covering letter were sent to the appellant on 9 February 2010. There was correspondence. On 15 March 2010 and again on 27 August 2010 and on 9 December 2010 the appellant wrote to the London Borough of Newham asking why the property needed to be licensed; the London Borough of Newham replied, referring to the legislation. In that correspondence, it also drew attention to the financial discounts available if the licence were applied for promptly. It further referred to potential consequences under
the 2004 Act
of failure to obtain a licence (including a fine, liability to a rent repayment order and restrictions on recovery of possession). It made no mention of possible confiscation proceedings. The property was, it may be added, subsequently inspected by the Council. It was said to have two “Category 1” faults, both denied by the appellant: overcrowding (6 people in a house suitable for 3) and poor heating. However, it was ultimately accepted that the appellant was a fit and proper person to be licensed and had it only applied for a licence for the property at the relevant time one would have been issued for it. In the event, on application eventually made, the London Borough of Newham did indeed issue a licence for the property on 11 July 2011, with effect from 11 April 2011.
6.
It appears that the appellant has a considerable number of other properties which it rents out. It apparently has a turnover of over £600,000 p.a. It had no previous convictions of any kind and it was said to be a landlord which complied with all its statutory obligations in renting out properties. Its managing director, Mr Sumal, at the time was, it is also said, experiencing the stress of divorce proceedings and so had significant distractions.
7.
The Recorder considered various preliminary arguments to the effect that the proceedings were an abuse of process or were oppressive or were in breach of the appellant
‟
s rights under the European Convention on Human Rights. The Recorder rejected all those points. When she came to pass sentence, the Recorder said this:
“As I have already said, the legitimate aim of this legislation and licensing was to prevent landlords who did not have appropriate licences from renting out properties, in order to ensure that properties are rented out appropriately to prevent antisocial behaviour in the area.
The defendant knew of the requirement for the licence and failed to apply for it for a number of months, despite repeated reminders. It is important that landlords who are renting out the property meet their obligations under the law.”
The Recorder proceeded to impose the fine of £2,000 and also made the order for costs as previously indicated. The Recorder had previously ruled that the appellant had benefited from criminal conduct in the amount of the rent received whilst the property was unlicensed – that being in an agreed amount of £6,450.83 – and she had made a confiscation order accordingly. The Recorder indicated that she had had that in mind in imposing the level of fine and the order for costs as she did.
8.
Mr Rule renews all his points in this court. His grounds for disputing the outcome in the court below are many and varied, albeit in some respects overlapping. The ground, however, in respect of which he was actually granted leave by the single judge related to the Court
‟
s imposition of a confiscation order. But before turning to Mr Rule
‟
s arguments, it is appropriate to refer to some of the provisions of
the 2004 Act
.
Housing Act 2004
9.
The relevant provisions are contained in Part 3 of
the 2004 Act
. One of the evident purposes of those provisions was to assist local housing authorities in (amongst other things) improving social conditions and reducing antisocial behaviour in the area of its district or in any area within that district.
Section 80
empowers a local housing authority to designate any such area subject to selective licensing, if the specified requirements are met.
10.
The scheme is that a house coming within the reach of such provisions must be licensed under Part 3: see s.85. Section 87 provides for applications for licences; and
s.88 and s.89 relates to the grant and refusal of licences. Section 90 provides that licences may have conditions attached to them as the Housing Authority may consider appropriate for regulating the management, use or occupation of the house concerned.
Section 95
is headed “Offences in relation to licensing of houses under this Part”, and is, in the relevant respects, in these terms:
“(1) A person commits an offence if he is a person having control of or managing a house which is required to be licensed under this Part (see section 85(1)) but is not so licensed.
(2) A person commits an offence if –
(a) he is a licence holder or a person on whom restrictions or obligations under a licence are imposed in accordance with section 90(6), and
(b) he fails to comply with any condition of the licence.
….
(5) A person who commits an offence under subsection (1) is liable on summary conviction to a fine not exceeding £20,000.
(6) A person who commits an offence under subsection (2) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.”
11.
Section 96 is headed “Other consequences of operating unlicensed houses: rent repayment orders”. In the relevant respects, section 96 is in these terms:
“(1) For the purposes of this section a house is an „unlicensed house
‟
if –
(a) it is required to be licensed under this Part but is not so licensed, and
(b) neither of the conditions in subsection (2) is satisfied.
(2) The conditions are –
(a) that a notification has been duly given in respect of the house under section 62(1) or 86(1) and that notification is still effective (as defined by
section 95(7)
);
(b) that an application for a licence has been duly made in respect of the house under section 87 and that application is still effective (as so defined).
(3) No rule of law relating to the validity or enforceability of contracts in circumstances involving illegality is to affect the validity or enforceability of –
(a) any provision requiring the payment of rent or the making of any other periodical payment in connection with any tenancy or licence of the whole or a part of an unlicensed house, or
(b) any other provision of such a tenancy or licence.
(4) But amounts paid in respect of rent or other periodical payments payable in connection with such a tenancy or licence may be recovered in accordance with subsection (5) and section
97.
(5) If –
(a) an application in respect of a house is made to a residential property tribunal by the local housing authority or an occupier of the whole or part of the house, and
(b) the tribunal is satisfied as to the matters mentioned in subsection (6) or (8),
the tribunal may make an order (a “rent repayment order”) requiring the appropriate person to pay to the applicant such amount in respect of the housing benefit paid as mentioned in subsection (6)(b), or (as the case may be) the periodical payments paid as mentioned in subsection (8)(b), as is specified in the order (see section 97(2) to (8).
(6) If the application is made to the local housing authority, the tribunal must be satisfied as to the following matters –
(a) that, at any time within the period of 12 months ending with the date of the notice of intended proceedings required by subsection (7), the appropriate person has committed an offence under
section 95(1)
in relation to the house (whether or not he has been charged or convicted),
(b) that housing benefit has been paid (to any person) in respect of periodical payments payable in connection with the occupation of the whole or any part or parts of the house during any period during which it appears to the tribunal that such an offence was being committed, and
(c) that the requirements of subsection (7) have been complied with in relation to the application.
…..”
12.
Section 97 then goes on to make further provision about rent repayment orders among other things providing this:
“97 Further provisions about rent repayment orders
(1) This section applies in relation to orders made by residential property tribunals under section 96(5).
(2) Where, on an application by the local housing authority, the tribunal is satisfied –
(a) that a person has been convicted of an offence under
section 95(1)
in relation to the house, and
(b) that housing benefit was paid (whether or not to the appropriate person) in respect of periodical payments payable in connection with occupation of the whole or any part or parts of the house during any period during which it appears to the tribunal that such an offence was being committed in relation to the house,
the tribunal must make a rent repayment order requiring the appropriate person to pay to the authority an amount equal to the total amount of housing benefit paid as mentioned in paragraph (b).
This is subject to subsections (3), (4) and (8).
……
(5) In a case where subsection (2) does not apply, the amount required to be paid by virtue of a rent repayment order under section 96(5) is to be such amount as the tribunal considers reasonable in the circumstances.
This is subject to subsections (6) to (8).
…..”
13.
Section 98 (headed: “Other consequences of operating unlicensed houses: restriction on terminating tenancies”) provides that no notice seeking a recovery of possession on termination of an assured short-hold tenancy may be given so long as a house remains an unlicensed house.
14.
Definitions are provided for the phrases “Person having control” and “Person managing” in
s.263
of
the 2004 Act
as follows (in the relevant respects):
“(1) In
this Act
“person having control” in relation to premises, means (unless the context otherwise requires) the person who receives the rack-rent of the premises (whether on his own account or as agent or trustee of another person) or who would so receive it if the premises were let as a rack-rent.
……
(3) In
this Act
“person managing” means, in relation to premises, the person who, being an owner or lessee of the premises –
(a) receives (whether directly or through an agent or trustee) rents or other payments from
(i) in the case of a house in multiple occupation, persons who are in occupation as tenants or licensees of parts of the premises; and
(ii) in the case of a house to which Part 3 applies (see section 79(2)), persons who are in occupation as tenants or licensees of parts of the premises, or of the whole of the premises; or
(b) would so receive those rents or other payments but for having entered into an arrangement (whether in pursuance of a court order or otherwise) with another person who is not an owner or lessee of the premises by virtue of which that other person receives the rents or other payments;
and includes, where those rents or other payments are received through another person as agent or trustee, that other person.
……
(5) References in
this Act
to any person involved in the management of a house in multiple occupation or a house to which Part 3 applies (see section 79(2)) include references to the person managing it.”
15.
In the present case, as indicated, the house was properly required to be licensed and, as found, was not licensed at the relevant time; albeit in due course, when application was made, a licence was issued. It continues to be agreed that had only the appellant so applied at the relevant time, the licence would have been issued and so no offence would have been committed.
Jurisdiction to commit to Crown Court
16.
Mr Rule
‟
s first point was to assert that the Crown Court had no jurisdiction to deal with the matter and that the committal for sentence purportedly pursuant to
s.70
of
the 2002 Act
was invalid. The argument is that the Magistrates only have power so to commit in the case of an either way offence: there is simply no such power to commit under
s.70
for summary offences only. If that is right, then paragraph 126 of the Explanatory Note to
the 2002 Act
has misunderstood the section; as have the editors of the well-known textbook in this field, Mitchell, Kennedy and Talbot, at V-008. In our view, it is not right. In our view, His Honour Judge Chapple (at a previous stage of the proceedings) had quite correctly rejected such an argument.
17.
Section 6
of
the 2002 Act
, in the relevant respects, provides as follows:
“6. Making of order
(1) The Crown Court must proceed under this section if the following two conditions are satisfied.
(2) The first condition is that the defendant falls within any of the following paragraphs –
(a) he is convicted of an offence or offences in proceedings before the Crown Court;
(b) he is committed to the Crown Court for sentence in respect of an offence or offences under section 3, 4 or 6 of the Sentencing Act;
(c) he is committed to the Crown Court in respect of an offence or offences under
section 70
below (committal with a view to a confiscation order being considered).
……”
Section 70
of
the 2002 Act
then provides as follows:
“70. Committal by Magistrates
‟
Court
(1) This section applies if –
(a) a defendant is convicted of an offence by a magistrates' court, and
(b) the prosecutor asks the court to commit the defendant to the Crown Court with a view to a confiscation order being considered under
section 6
.
(2) In such a case the magistrates' court –
(a) must commit the defendant to the Crown Court in respect of the offence, and
(b) may commit him to the Crown Court in respect of any other offence falling within subsection (3).
(3) An offence falls within this subsection if –
(a) the defendant has been convicted of it by the magistrates' court or any other court, and
(b) the magistrates' court has power to deal with him in respect of it.
(4) If a committal is made under this section in respect of an offence or offences –
(a)
section 6
applies accordingly, and
(b) the committal operates as a committal of the defendant to be dealt with by the Crown Court in accordance with s.71.
(5) If a committal is made under this section in respect of an offence for which (apart from this section) the magistrates' court could have committed the defendant for sentence under section 3(2) of the Sentencing Act (offences triable either way) the court must state whether it would have done so.
(6) A committal under this section may be in custody or on bail.”
(It may be added that
s.97
of the
Serious Organised Crime and Police Act 2005
is designed now to confer power on the magistrates to make a confiscation order, in an amount not exceeding £10,000, in the circumstances there specified.)
18.
There is absolutely nothing in the wording of
s.70
of
the 2002 Act
to limit its ambit to either-way offences. On the contrary,
s.70(1)
– as does
s.70(3)
– quite generally and without qualification refers to “an offence”. There is no justification for writing in words of limitation in the way that Mr Rule
‟
s argument would connote. Mr Rule sought to rely on the provisions of
s.70(5)
as supporting his argument. In truth, however, those words are against his argument: since they clearly connote by implication that there are other offences which may be so committed to the Crown Court which are not either-way offences coming within
s.3(2)
of the
Powers of Criminal Courts (Sentencing) Act 2000
. The purpose of
s.70(5)
would appear to relate, in fact, to the extent of the Crown Court
‟
s sentencing powers under the immediately following section, s.71.
19.
Accordingly, this preliminary argument fails. Mr Rule did submit that one would expect Parliament to be entirely clear if it were intended that the Crown Court was to deal with an offence which was otherwise summary only. In our view, the statute is indeed entirely clear on this.
Abuse and oppression
20.
Then Mr Rule sought to argue that the confiscation proceedings should have been stayed and should have been categorised as an abuse of the process. He put his case in various ways. But in the judgment of this court there is nothing in any of them.
21.
This particular prosecutor – the local housing authority – may have had no general policy in existence at the time relating to prosecutions and claims for confiscation orders by reference to
the 2004 Act
. But there is nothing to show that individual consideration was not given in this case to the decision to bring these proceedings and to seek a confiscation order. Mr Rule sought to rely on the fact that a s.16 statement was only produced at a late stage in the Crown Court; and he suggested that the matter had initially simply not been thought through. That is not an inference that can properly be drawn. Further, it is not for a defendant in a case such as this to decide whether or not such a decision is taking a sledgehammer to crack a nut. It was matter for the prosecution to decide in this particular case whether or not to prosecute and whether or not to seek a confiscation order; and the decision to do so was one open to the London Borough of Newham here in the circumstances.
22.
The case is quite different from the case of
Adaway
[2004] EWCA (Crim) 2831, to which Mr Rule referred. That was a case where the prosecution positively contravened its applicable policy criteria. Certainly there may be examples where a stay is justified (see, for example
Shabir
[2008] EWCA (Crim) 1809, [2009] 1 CAR(S) 84): but that ordinarily is likely to be a relatively rare case. In saying that, we accept that – putting it generally – in prosecutions of what may be called regulatory offences the prosecuting authority may perfectly properly decide not to seek a confiscation order (where one is in principle available) in any particular case. Further, there may be cases where, if such a decision to seek confiscation is made, the court may, on appropriate facts, grant a stay on the ground of oppression. But there was nothing in this present case to require the Recorder to stay these proceedings, and the Recorder was entitled to reject the arguments as she did. Of course, in saying that we acknowledge that certain aspects of Mr Rule
‟
s argument here did to some extent also mirror points he sought to make as to whether there was jurisdiction to make a confiscation order at all. We will come on to that later in this judgment.
23.
Mr Rule, however, then sought to complain that it was in any event an abuse for the magistrates' court to commit under
s.70
of
the 2002 Act
when the appellant had received no prior warning of the prosecutor
‟
s intention to pursue a committal for sentence under
s.70
and to seek a confiscation order in the Crown Court. Not knowing that, Mr Rule said, the appellant would not have been in a position to make any representations on the matter to the magistrates' court. But Mr Rule could point to no statutory provision requiring the prosecutor to give prior notice to a defendant of its intentions in this regard; and the fact is that the appellant chose not to attend before the magistrates
‟
court or be represented. Under
s.70(2)
(a) of
the 2002 Act
, moreover, the magistrates' court was required to commit to the Crown Court on request made. No question of abuse in such circumstances as these can arise.
24.
To the extent Mr Rule had his other challenges asserting an abuse in this regard, then, as the Recorder rightly pointed out, they could be (as indeed they were) heard in the Crown Court. So the procedure was fully Article 6 compliant.
25.
As to Mr Rule
‟
s other arguments that the confiscation proceedings were disproportionate and in contravention of the European Convention on Human Rights, those add nothing. Parliament here has decided on the terms of
the 2002 Act
and it is not sought to be said, and cannot be said, that
the 2002 Act
itself is incompatible with the Convention. The fact that it is capable in some circumstances of giving rise to draconian results is not in itself necessarily a reason for staying proceedings. Again, the Recorder was entitled to reject the argument run in this regard.
Sentence
26.
Then Mr Rule sought to renew his grounds of challenge to the sentence. He submitted that the fine was excessive. He pointed to the appellant company
‟
s good record, to the fact that it would have got a licence had it applied for one and to the
personal distractions of its managing director. He also pointed to the fact that the initial fee, on the introductory terms offered by the London Borough of Newham, as discounted for a five year licence would be £300 if promptly paid, rather than the indicated £500. Failure to apply for a licence has meant, under the publicised procedure, that the appellant would have to pay the full £500 licence fee and moreover that would only be for an initial one year period. So, he submitted, that was quite a significant financial penalty suffered already by virtue of the failure to obtain the licence.
27.
The fact remains that the appellant – an experienced, professional landlord – had, in the face of repeated warnings, chosen not to comply with its obligations. Further, there could be no mitigation for a plea as there had been a trial. The company has a substantial turnover of over £600,000 p.a. It is in fact generally not particularly helpful to refer – as happened here in the Crown Court – to other informally reported decisions, to the extent that any can be found, as to the level of fines imposed in this particular Housing Act context – just because the amount of the fine will depend on the particular circumstances of the particular case and also will necessarily be geared to some extent to the ability of the landlord in question to pay a particular amount. Ordinarily, a fine in this context can also properly convey a degree of “sting” geared to a particular landlord
‟
s financial situation. It is to be borne in mind that the maximum fine available in respect of a particular offence under
s.95(1)
for one particular house is £20,000. It could in fact be said that this fine in this particular case was, given the circumstances, on the moderate side – it may well be in part because, as the Recorder had indicated, she was bearing in mind the amount of the confiscation order. At all events, Mr Rule
‟
s suggestion that the amount of the fine was excessive is unsustainable. His initial suggestion that in this case there should, as a matter of principle, have been a conditional discharge was completely unrealistic.
28.
We will come back to deal with the question of the costs of the proceedings in the light of our decision on the main point of this appeal: which is whether or not a confiscation order could validly be made at all in a case of this kind. To that point (the real point in this appeal) we now turn.
Benefit from criminal conduct
29.
Section 70
of
the 2002 Act
(which is to be read in the context of
sections 6
to 8 of
that Act
) is in these terms:
“76. Conduct and benefit
(1) Criminal conduct is conduct which –
(a) constitutes an offence in England and Wales, or
(b) would constitute an offence if it occurred in England and Wales.
(2) General criminal conduct of the defendant is all his criminal conduct, and it is immaterial –
(a) whether conduct occurred before or after the passing of
this Act
;
(b) whether property constituting a benefit from conduct was obtained before or after the passing of
this Act
.
(3) Particular criminal conduct of the defendant is all his criminal conduct which falls within the following paragraphs –
(a) conduct which constitutes the offence or offences concerned;
(b) conduct which constitutes offences of which he was convicted in the same proceedings as those in which he was convicted of the offence or offences concerned;
(c) conduct which constitutes offences which the court will be taking into consideration in deciding his sentence for the offence or offences concerned.
(4) A person benefits from conduct if he obtains property as a result of or in connection with the conduct.
(5) If a person obtains a pecuniary advantage as a result of or in connection with conduct, he is to be taken to obtain as a result of or in connection with the conduct a sum of money equal to the value of the pecuniary advantage.
(6) References to property or a pecuniary advantage obtained in connection with conduct include references to property or a pecuniary advantage obtained both in that connection and some other.
(7) If a person benefits from conduct his benefit is the value of the property obtained.”
“Property” is very widely defined in s.84.
30.
As an initial observation, Mr Rule re-emphasised that the present case involves what he calls a “regulatory offence” – it is not a case of dishonestly obtaining property by dishonest means, such as by the importation of illegal drugs or by the importation of alcohol and tobacco without paying the applicable duties (to take two very familiar examples). That may be so. But it cannot of itself answer the question arising. Whether what may be styled a regulatory offence can, when committed, give rise to the availability of a confiscation order will depend on the terms of the statute or regulations creating the offence, read with the terms of
the 2002 Act
and set in the context of the facts of the case.
31.
It was common ground here that this was not a case of general criminal conduct.
32.
As reiterated by the House of Lords in the case of
May
[2008] UKHL 28
, [2008] 2 CAR 28 ordinarily there are, in this context, three questions for the court: (1) has the
defendant benefited from the relevant criminal conduct? If so, (2) what is the value of the benefit; and (3) what sum is recoverable from the defendant?
33.
There is no doubt that in general terms – and consistently with the title of the statute – the focus initially is on benefit obtained by reason of criminal conduct (the first stage of
May
). In the present case, as we have said, it was agreed that the property was already tenanted before the designation of the SLA and that the appellant would have obtained a licence at the correct time had only it applied for one. It may be that, for that reason, the Recorder held that the benefit was obtained “in connection with” (rather than “as a result of”) the offence committed under
s.95(1)
of
the 2004 Act
. It is established that the words “in connection with” as used in
s.76(4)
of
the 2002 Act
, widen the meaning of the words “as a result of”: see
James and Blackburn
[2011] EWCA (Crim) 2991; [2012] 2 CAR (S) 44 at para 49. The court gave an example in that case of what might be covered. The court, however, also stated (as part of its reasoning in that case) that the words “in connection with” must be given a narrow construction: see paragraph 65. In our view, at all events, the availability of confiscation proceedings in the context of an offence under
s.95(1)
of
the 2004 Act
cannot depend on the happenstance of whether or not the house in question was already tenanted or whether or not the landlord would have obtained a licence if only he had applied for one at the time (although, of course, such a consideration may be highly relevant on sentence). Either confiscation orders are available in cases of offences under
s.95(1)
of
the 2004 Act
or they are not.
34.
The Recorder, in her initial ruling, held that “the purpose of the legislation is to prevent landlords who do not have the appropriate licence from renting out properties and in that circumstance the rent was obtained in connection with the failure to obtain a licence”: comments subsequently reflected in her sentencing remarks set out above. Mr Paul, in his submissions, supported that. He said that the rent obtained was obtained unlawfully; and it was unlawful as a consequence of the appellant committing the index offence.
35.
If that is right, then plainly a confiscation order could properly be made. But is it right?
Section 95(1)
taken on its own confines the offence to that of having control of or managing a house which is required to be licensed but is not so licensed. The definitions in
section 263
of “a person having control” or “person managing” are, however, wide: and since they focus on the receipt of (or entitlement to receive) rent, they lend initial support to Mr Paul
‟
s submissions.
36.
But matters do not stop there.
The 2004 Act
has to be read as a whole. And within Part 3 of this statute there is express provision, in s.96(3), that no rule of law relating to validity or enforceability of contracts in circumstances of illegality affects the validity or enforceability of the provisions of a tenancy or licence requiring payment of rent or of the other provisions. It follows that such provisions – including the right to recover rent – remain enforceable: at the suit not only of a tenant but also of a landlord, notwithstanding that he has no licence for the house in question. That is inconsistent with the notion that the landlord is unlawfully obtaining rent as a result of or in connection with his breach of
s.95(1)
.
37.
Further,
the 2004 Act
provides its own code for what may happen in such circumstances. Rent repayment orders may be made by the tribunal, in the circumstances set out in s.96 or
s.97
as the case may be, where the landlord has committed an offence under
s.95(1)
. But that scenario necessarily contemplates that the landlord has (lawfully) in the interim received the rent or housing benefit. (For good measure, a further sanction is imposed by
the 2004 Act
on the landlord of the unlicensed house, restricting his entitlement to terminate an assured short-hold tenancy). Mr Paul sought, however, to emphasise the words “in circumstances of illegality” in s.96(3). He submitted that the statute was thereby acknowledging that receipt of rent in such circumstances was illegal. But it seems extraordinary to attribute to Parliament an intention that a landlord of an unlicensed house may lawfully seek to recover in civil proceedings rent due under the tenancy whilst at the same time making it a criminal offence actually to receive such rent so recovered. That is not a tenable proposition.
38.
We asked counsel if
the 2004 Act
confers any power on the local housing authority to issue a prohibition order against a landlord from renting out a house while it is unlicensed. We were told that there is none. We were referred to
sections 20
and 21 of
the 2004 Act
which give powers to local housing authorities to make prohibition orders in relation to premises on which there are Category 1 or Category 2 hazards (as defined). But no such power apparently is conferred in respect of a breach of
s.95(1)
. That too is consistent with a Parliamentary intention that the continuance of the tenancy, and payment and receipt of rent thereunder, is being regarded as lawful. What is unlawful is the failure to obtain a licence.
39.
Mr Paul referred us to the case of
Nelson, Pashak and Poulet
[2009] EWCA (Crim) 1573, [2010] 1 CAR(S) 82. But, while those cases are on their facts illustrative of the potentially harsh consequences that
s.76
of
the 2002 Act
can throw up, they are plainly distinguishable from the present case: in that there property had indeed been obtained as a result of dishonest conduct. It was emphasised in the decision, it may be noted, that there has to be a causal connection. For his part, Mr Rule referred us to
Rigby and Bowley
[2006] [2006] EWCA (Crim) 1653, [2007] 1 CAR(S) 73. That too was a case on its own facts. There the criminal conduct in question – the confiscation was sought under the
Criminal Justice Act 1988
, but the relevant words correspond to
s.76(4)
of
the 2002 Act
– was held not to result in benefit. It was held (see para.17) that the increase in share price was “not the proceeds of the offence of which he was convicted nor… the positive consequence of the offending”: and so here in the present case by analogy, says Mr Rule. Nor, in that case, was the continued receipt of salary causally linked to the offending: the defendants continued to be employed despite the offence, not because of it. Again so here, says Mr Rule: the appellant continued to receive rent not because of the
s.95(1)
offence but in spite of it. There was no sufficient causal connection. There is, in our view, obvious force in Mr Rule
‟
s submissions.
40.
As to the case of
del Basso
[2010] EWCA (Crim) 1119, [2011] 1 CAR (S) 41, to
which we were referred, that lends no support to the respondent
‟
s argument. There the defendants continued, for very large profits, to put the land to park and ride use without planning consent and notwithstanding the service of an enforcement notice (thereby committing a criminal offence). They had no lawful entitlement to use the land in this way, but instead deliberately flouted the law in doing so in order to secure a profit (benefit). That is in clear distinction from the present case: where the continuance of the letting and the receipt of rent (in contrast with the failure not to have the house licensed) was not made unlawful by
the 2004 Act
. Putting it in other words, a licence granted under
s.88
of
the 2004 Act
does not operate to confer on a landlord an entitlement lawfully to receive rent which he does not otherwise have.
41.
A yet further difficulty in the respondent
‟
s argument is this. If it were right, then that could mean that an errant landlord could both be liable (aside from any fine) to a rent repayment order under
the 2004 Act
and also be liable to a confiscation order in respect of the same offending. That would be double jeopardy or double recovery. Mr Paul acknowledged that would be so. But his answer was that “in practice” that would hardly ever happen (and had not happened here). In any case, a local housing authority would “choose one or the other” remedy, he asserted: or, if it elected to pursue both, the courts could then stay the confiscation proceedings as oppressive. That is not a sufficient answer. The very possibility of such a scenario is in itself an indication that Parliament had not intended the confiscation procedure to be available at all.
42.
Mr Paul did refer us to the observations of the court in
Nelson
(at paragraphs 44 and 45), whereby the possibility of both compensation and confiscation in respect of the same offence was acknowledged. But such a “gap in the statutory process”, as it was described (by reference to
s.6(6)
of
the 2002 Act
), does not need to be found here and should not be found here, given the wording of
the 2004 Act
. It is not readily to be thought that Parliament could have intended a landlord, at least potentially, to be mulcted of more than the total rent he has received during the period the house was unlicensed. (It may also, in fact, be queried why, if confiscation was intended to be available at the behest of a prosecuting local housing authority, it was thought necessary to confer powers of recovery of housing benefit under
s.97
at all.)
43.
It also does no harm to stand back a little from the intricacies of some of the arguments here. As stated by the House of Lords in
Jennings
[2008] UKHL 29
; [2008] 2 CAR 29 at paragraph 13:
“It is, however, relevant to remember that the object of the legislation is to deprive the defendant of the product of his crime or its equivalent, not to operate by way of fine. The rationale of the confiscation regime is that the defendant is deprived of what he has gained or its equivalent…”
In the present case, having regard to the provisions of
the 2004 Act
, the continued receipt of the rent was not the product of the appellant
‟
s crime. To impose a confiscation order would in substance, in our view, be in the nature of a fine: and the provisions of
s.76
of
the 2002 Act
, read with the provisions of
the 2004 Act
, do not permit it. By the continued receipt of rent the appellant did not “obtain” property “as a result of or in connection with” the criminal conduct.
44.
Such a conclusion, we might also add, does not deprive the courts, and local housing authorities, of effective sanctions. Quite apart from the remedy of rent repayment orders, fines of up to £20,000 for each offence per house under
s.95(1)
are authorised by the statute to be imposed: and magistrates can be expected to be robust and to impose suitably severe fines in cases where the circumstances call for robustness and severity.
45.
For the avoidance of doubt, it should be stated that the fact that the Crown Court had no power, as this court has decided, to make a confiscation order does not mean that the committal for sentence under
s.70
was itself invalid. Mr Rule rightly accepted that. Committal is available “with a view to a confiscation order being considered under
section 6
”.
Conclusion
46.
It follows that the appeal succeeds to the extent that the confiscation order must be quashed. The various other renewed grounds of application are dismissed.
47.
As we have indicated, the fine of £2,000 imposed in the Crown Court can in no way be criticised as excessive. As to the order for costs in the Crown Court, the amount was reasonable in itself. Mr Rule says, however, that an element of time was taken up in the Crown Court in arguing the confiscation point: and on that point he has now been shown to be right. But the appellant took very many points below (even arguing for a conditional discharge) on all of which it lost. And as to the confiscation point, that seems in its present form to have been argued relatively shortly below and only to have been fully developed on appeal to this Court (albeit even then as only one of a number of grounds advanced): indeed, Mr Rule
‟
s ultimate argument was only fully expounded in the course of his submissions before us. In all the circumstances, we vary the order as to costs below only to the extent of substituting a figure of £3,000. As to the costs of this appeal, we will receive counsel
‟
s written submissions before deciding on the appropriate order. | [
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b41933b19505ab8767ce30faf8db9524f737ec5ac2c17e0eedd3b28d377d56d2 | [2014] EWCA Crim 1730 | EWCA_Crim_1730 | null | "2014-07-08T00:00:00" | crown_court | Neutral Citation Number: [2014] EWCA Crim 1730 Case No: 201300932 C3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday 8th July 2014 B e f o r e : LORD JUSTICE TREACY MR JUSTICE GRIFFITH WILLIAMS MR JUSTICE LEWIS - - - - - - - - - - - - - - - - R E G I N A v STEVEN (AKA STEVEN EDDIE) MOSES (AKA OLIVER) - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Co | Neutral Citation Number:
[2014] EWCA Crim 1730
Case No:
201300932 C3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Tuesday 8th July 2014
B e f o r e
:
LORD JUSTICE TREACY
MR JUSTICE GRIFFITH WILLIAMS
MR JUSTICE LEWIS
- - - - - - - - - - - - - - - -
R E G I N A
v
STEVEN (AKA STEVEN EDDIE) MOSES (AKA OLIVER)
- - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - -
Miss R Martin
appeared on behalf of the
Applicant
- - - - - - - - - - - - - - - -
J U D G M E N T
1.
MR JUSTICE GRIFFITH WILLIAMS: On 18th January 2013 in the Crown Court at Newcastle-upon-Tyne, the applicant was convicted of the rape of "D", a male child under the age of 13 (count 1), the sexual assault of D, a male child under 13 (count 2) and causing or inciting D, a child under 13, to engage in sexual activity (count 3). On 28th February 2013 he was sentenced by the trial judge, the Recorder of Newcastle-upon-Tyne, to concurrent sentences of 15 years, two years and six months respectively, a total sentence of 15 years' imprisonment. The Recorder made other orders all consequential upon the convictions, none of which are material for present purposes.
2.
The applicant renews his application for an extension of time in which to appeal conviction and sentence following refusal by the single judge. In a ground of appeal of his own making following the refusal of permission by the single judge, he seeks to adduce fresh evidence.
3.
The
Sexual Offences (Amendment) Act 1992
applies to this appeal so that nothing is to be reported that might reveal D's identity.
4.
D was born in July 2006. He lived with his mother and older brother, "K". He suffered from a speech impediment, had difficulty understanding spoken language and his mental ability was mildly delayed for his age (by more than one year). Nevertheless, he was described at the age of three as a happy and active child.
5.
In July 2010, when he was four years old, the applicant formed a relationship with his mother and lived at their address for approximately two months before he was arrested on 13th August 2010 in respect of unrelated matters and remanded in custody.
6.
The evidence was that from mid-July 2010 it was noted that D's behaviour started to alter. He often became angry or upset and exhibited sexualised behaviour, particularly when at his nursery. He and his brother went to live with their natural father during 2011, and from May 2012 onwards his step-mother "M" also lived with them.
7.
In May 2012 D told his step-mother that he had no friends because he was "naughty and dirty". He explained that "Steve done naughty things to mammy" and that he, D, had done what Steve had done. In June he informed her "Steve used to buy me big presents if I did things to him". In due course the police and social services were informed and D was interviewed on 13th July 2012.
8.
D explained that he was sexually abused by the applicant when he was living at their address in 2010. On a number of occasions he had removed his trousers and exposed his backside and his penis to the child. He recalled an occasion when he was sitting in the lounge watching television and the applicant forced his penis into his, D's, mouth. He continued moving his penis about and only stopped when what D thought was "wee" came out (count 1). He described the applicant coming to his room when he was sleeping, pulling down his pyjama bottoms and playing with his penis (count 2). The applicant would also put his hand up D's mother's skirt whilst D was watching and offered to buy D a present if he did the same and touched his mother's knickers (count 3).
9.
Following his arrest on 13th August 2012 on suspicion of raping a child, the applicant made no reply. In interview he denied the allegations and suggested that the complainant must have been told what to say by someone else, possibly his natural father. He also suggested the nursery staff had lied about him exhibiting inappropriate behaviour in public.
10.
The prosecution case was that D had given a true and accurate account: he had been sexually abused by the applicant during the period when the applicant was living at their address. The Crown relied upon D's account in his ABE interview, on evidence from his step-mother and evidence from staff from D's nursery who described the applicant as behaving inappropriately in public, including fondling D's mother's breasts and putting his hand up her skirt and into her pants.
11.
The defence case was that D's account was untrue. He denied ever touching the child in a sexual manner as alleged or at all. He denied that he had exhibited sexual behaviour in front of D or encouraged him to behave in any such way. He gave evidence confirming that he had met D's mother in June/July 2010 and slept at her address two or three nights a week. He said that he had some contact with D, but not much. He was never alone with him at the beginning and never engaged in sexual behaviour in front of D or his brother, or in front of the nursery staff. He denied buying the children gifts, apart from a birthday present for his sixth birthday and bars of chocolate when they went shopping. He said that he never told D to behave in a sexual way towards his mother, he never touched or rubbed his penis, he never placed his own penis in D's mouth and he never exposed himself to D as alleged. He said that he had had limited physical contact with D and denied blowing raspberries on his tummy, as alleged by nursery staff.
12.
The issue for the jury was a straightforward factual one: were they sure that the account given by D was true and accurate?
13.
The grounds of appeal against conviction drafted by trial counsel have been adopted by Miss Martin, who has appeared for the applicant in this court. We should say that we are grateful to her for her well-focused submissions which have been made with commendable clarity and brevity.
14.
The grounds of appeal are, first, that the ABE interview should have been excluded pursuant to the provisions of
section 78 of the Police and Criminal Evidence Act 1984
; secondly, that there was no evidence to support a conviction on count 2; thirdly, that the convictions are unsafe because D, who had a speech impediment, had a mental age of five years at the time of trial when his actual age was six years, and was describing events which had occurred two years earlier in his short life; fourthly, that D, despite being counselled in private by the intermediary and the trial judge, refused to answer defence counsel's questions in cross-examination and so answered defence counsel's questions which had been provided in writing to the judge and had been asked by the judge.
15.
Miss Martin's final submission was that while, with the exception of the ground of appeal relating to count 2, the individual grounds may not render any of the convictions unsafe, their cumulative effect supports the conclusion that the applicant did not have a fair trial and so his convictions should be quashed.
16.
The complaints about the ABE interview are that there was no evidence of the competency of a child in D's position who was being asked questions about events said to have occurred two years earlier in his short life; there was no intermediary present during the interview. D was asked leading questions and prompted by the interviewing officer by questions which suggested the applicant had done wrong; D was told he had said something else to a police officer to whom he had spoken before in a direct attempt to persuade him to change his account. It was also submitted that there was unfairness because D was being cuddled and reassured throughout the interview by his step-mother.
17.
We observe that the issue of D's competence was not raised until the first day of the trial, and then without prior notice. Section 53(1), (2) and (3) of the
Youth Justice and Criminal Evidence Act 1999
provides:
"(1) At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence.
(2) Subsection (1) has effect subject to subsections (3) and (4).
(3) A person is not competent to give evidence in criminal proceedings if it appears to the court that he is not a person who is able to -
(a) understand questions put to him as a witness, and
(b) give answers to them which can be understood."
18.
As the issue had not been raised, the court was not required to determine D's competence in accordance with the provisions of section 54 of the Act, but we observe there was in fact no evidence that D could not understand and answer questions. Indeed, the intermediary instructed for the trial in the Crown Court in her report had stated:
"Despite his age, delayed understanding of spoken language and his speech difficulties [D] has the ability to give evidence in court and would benefit from the use of a registered intermediary to maximise the completeness, coherence and accuracy of the evidence given."
It is clear that her view was that D was a competent witness.
19.
The criticisms of the conduct of the ABE interview were for the most part, if not wholly, accepted. Miss Martin accepted that pursuant to the provisions of
section 78 of the Police and Criminal Evidence Act 1984
, the interview should not have been admitted because of those failures to comply with the code "Achieving Best Evidence". Her submission was that the admitted breaches were very significant and could only be addressed by the exclusion of the interview.
20.
In his ruling on the application to exclude the interview, the learned judge said:
"It is apparent that prior to the interview, he told others about the alleged acts by the defendant; his comments were noted and reported to the Police and the defence have been supplied with those notes. It is right that it is not precisely known what has been said by and to [D] over the interval between the alleged acts and the recorded interview, but there is a good deal of detail from the notes and nursery, school and local authority records, which have all been disclosed to the defence.
The defence have identified the various stages in the video recorded interview at which [D] was prompted or reminded that he had said things to another officer. The details of the prompts are set out in the skeleton argument. I have considered them all. It is right to observe that the questioning was, at times, a little clumsy and there were the prompts identified, but at no stage was [D] obviously led into giving any detail and such faults as there were can properly be the subject of argument and legal direction to the jury: in other words, the complaints go to the weight of the evidence, something to be determined by the jury. With hindsight, it is clear that there should have been an intermediary present during the interview and a series of breaks: it is quite apparent that [D]'s attention span, unsurprisingly for a 6 yo boy in his circumstances, made breaks desirable. However, he was able to address all questions in an apparently competent and coherent manner. It is also right, as has been submitted, that there is no evidence as to [D]'s ability, aged six, to remember events almost two years earlier. However, again, this is a matter for the jury to consider in the context of all the evidence and their life experiences.
I have considered all the points made by the defence. I am satisfied that the trial process, by questioning, comment and submission by Counsel and by direction by me, can and should properly address the criticism raised. The circumstances of and means by which [D]'s interview was obtained was not inherently unfair and none of the complaints, either individually or in combination are of such a nature or degree that the admission of the evidence of the interview would have such an adverse effect on the fairness of the trial that it should not be admitted."
21.
In our judgment, there can be no criticism of the learned judge's approach to that submission. While he did not refer to it, his reasoning is amply supported by the observations of this court in
K
[2006] 2 Cr App R 10
at paragraphs 23 to 26. We observe that later, in what we consider to be a scrupulously fair summing-up, the Recorder drew the jury's attention to all these criticisms of the interview.
22.
Of the other grounds of appeal, no objection was taken at trial to the course followed by the Recorder when D refused to answer questions in cross-examination. That course was, in our judgment, both sensible and pragmatic, and the jury were in due course directed as to their approach to this part of the evidence.
23.
The course taken by the learned Recorder reflected the views of this court in
Cameron
[2001] EWCA Crim 562
at paragraphs 19 to 23. We repeat that the questions asked were the questions drafted by defence counsel and were not questions of the judge's choosing. What matters in the judgment of this court is not who asked the question, but D's answers to them.
24.
The submission of no case on count 2 turned on answers of D when he was describing the occasion when the applicant played with his penis when he was in bed. Miss Martin accepted that the interviewing officer clearly misunderstood what D was saying. The evidence was helpfully summarised in the Recorder's Ruling:
"The introduction to the passage in question began with the question, 'Has Steve ever seen your willy?, and then [D] said, yes, when he was in the living room, and then said, 'I mean, when - when I was in bed'. And he went on to explain, page 27, 'He was sneaking up, and him ...' - he used the word 'Him' when he meant 'He' - '... and him pulled my pants down'. And the passage goes on, 'Was [K] there?' Answer: 'Mm, but he was asleep'. Police Officer: 'He was asleep? So was it night-time?' 'Erm yeah'. Police Officer: 'And had you been asleep and woke up, or had you just not gone to sleep? And then [D] replied, 10:06:16, 'Erm, I just went ...', and then he demonstrated in the interview, closing his eyes. And he said, 'I just went ...' and closed his eyes, '... a few ...' And then the Police Officer, with nothing more, said this. 'So you were asleep. But did you wake up when Steve sneaked up ...' [D] said, 'No', '... and pulled your pants down?' 'No'. 'You didn't wake up?' 'No'. 'So how do you know what happened, then?' 'Cause I would feel it'."
25.
In his written grounds, Mr Callan submitted that on that evidence D was or may have been asleep and so may have been dreaming what had happened, and so there was no evidence of the alleged sexual assault and the count should have been withdrawn from the jury under the second limb of
Galbraith
[1981] 73 Cr App R 124
.
26.
Miss Martin, who adopted that submission, argued that the learned judge in fact substituted his own interpretation of D's evidence. We cannot accept that, and that is clear from the later part of the learned judge's Ruling:
"Now, the problem in relation to this whole passage is that at no stage does [D] ever say that he was actually asleep. It is the assumption of the interviewing Police Officer that he did fall asleep, and she was just concerned as to - that he had fallen asleep, whether he had woken up. But what [D] then says and goes on to say in the remainder of the passage is entirely consistent with a child who is in bed, with his eyes closed, but not asleep, and is describing events that take place and that he can feel, with his eyes closed. But he does not actually look and see who it is, what he is doing, what is happening, or what he says is happening to him, which consisted of playing with his willy, rubbing his willy with his hand, and he described, demonstrated a backwards and forwards or side to side-type motion with his hand when he described that. And that it was - he knew it was Steve, because he said,'I know what Steve feel like', and it was not [K] or his Mum, because they would not do it. And then there came a point when he, the person, who he says was Steve, talked once and said, 'Rock-A-Bye Baby'. And he said that at a time that he was playing with his, [D]'s willy.
All this leads me to the conclusion that it is perfectly open to a Jury to conclude that he was not asleep at the time this event occurred."
27.
In the judgment of this court, that was a correct summary of the evidential position. It was for the jury to decide what had happened.
28.
The single judge, in his observations when he refused permission, concluded with these words:
"... I find no substance in any of your Grounds of Appeal. Although [D] was very young, and the normal trial process had to be modified in a number of ways, the judge took great care to ensure that your trial was fair. I can find no ground on which it could be argued that any of your convictions is unsafe."
29.
With those observations, this court respectfully agrees, and we adopt them.
30.
The additional ground of appeal of the applicant's own making is based on an undated signed witness statement of D's mother, who states that D did not want to go to his natural father and got on well with the applicant, who was loving and caring to both D and his elder brother, "K". She states:
"I had no concerns with Steven being around my children as he is warm and friendly and caring to be around.
I can't tell you enough how much both myself and my children loved having him around but it's the truth. He was a breath of fresh air, he taught [K] to have confidence and not to be scared to ask if he wasn't sure on anything. He was what we all needed, we did things together as a family, played games went out even homework was done as a family."
31.
There is extremely limited support for that assessment of the applicant in the evidence of the nursery school manager, who described the applicant as cuddling and kissing D and blowing raspberries on his tummy. But that witness also described the applicant and D's mother behaving in a sexually inappropriate way in public (see above).
32.
We have concluded the evidence is not capable of belief but, more importantly, there is no explanation, reasonable or otherwise, for the failure to adduce that evidence at trial. That application would accordingly be refused if we were minded to allow the application for an extension of time, but we are not persuaded there are any arguable grounds to challenge the safety of the conviction.
33.
We accordingly refuse the application for an extension of time.
34.
We consider the application for leave to appeal against sentence. The submission is that the sentence was manifestly excessive.
35.
If we may say so, Miss Martin made her submission with understandable hesitation, recognising as she does that the starting point of 13 years applied to this offending because of D's age and the abuse of trust. We would add that there are additional aggravating factors. They are D's extreme youth and what the sentencing judge referred to as an element of grooming. Additionally, the sentence had to reflect the applicant's overall criminality and culpability. While he had no previous convictions of sexual offending, he had a number of previous convictions. We are not persuaded there are any arguable grounds that the sentences were manifestly excessive. | [
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418382a2a6c0c32d3d2bd4cb7b39e1ba259dc6bf56a78e60dd1684e605789d5a | [2018] EWCA Crim 2189 | EWCA_Crim_2189 | null | "2018-07-26T00:00:00" | crown_court | No: 201802356 A2 Neutral Citation Number: [2018] EWCA Crim 2189 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 26 July 2018 B e f o r e : LORD JUSTICE SIMON MRS JUSTICE CARR DBE THE RECORDER OF PRESTON - HIS HONOUR JUDGE BROWN (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v CHERU DAKARI ALLEN - - - - - - - - - - - - - - - - - - - - - Mr S Cadwaladr appeared on behalf of the Appellant - - - - - - - - - - | No:
201802356 A2
Neutral Citation Number:
[2018] EWCA Crim 2189
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday, 26 July 2018
B e f o r e
:
LORD JUSTICE SIMON
MRS JUSTICE CARR DBE
THE RECORDER OF PRESTON - HIS HONOUR JUDGE BROWN
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
CHERU DAKARI ALLEN
- - - - - - - - - - - - - - - - - - - - -
Mr S Cadwaladr
appeared on behalf of the
Appellant
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
LORD JUSTICE SIMON:
1.
On 5 June 2018, the appellant, who had previously pleaded guilty to a single offence of theft before the magistrates, was sentenced by His Honour Judge Berlin at Wolverhampton Crown Court to a term of 20 months' imprisonment. He appeals against that sentence with the leave of the single judge.
2.
The appellant was employed by Caretech Community Services. One of their clients was a young man with learning difficulties, Kyle Griffiths. He did not go out after 6.00 pm and when he did so he was always assisted. The role of Caretech was to help him and to make his life as independent as possible, particularly in relation to financial management. As an employee of Caretech, one of the appellant's tasks was to accompany Mr Griffiths to his bank or a cash point and assist him with the withdrawal of money. Caretech operated a system whereby a log was kept of any money that was withdrawn so there was an audit trail for the cash.
3.
In November 2016, it came to their attention that there had been unauthorised withdrawals from Mr Griffiths' account. These had been made after 6.00 pm and so could not have been made by him. It was discovered that the unauthorised withdrawals made between April 2015 and February 2016 amounted to £3,140.
4.
The appellant was interviewed on 8 May 2017 and admitted what he had done. He told the police that he had a cocaine habit which had left him with debt problems. He said that the withdrawals had usually been about £150 at a time and that he either did not record the withdrawals or he recorded a lower amount.
5.
There was a victim personal statement from Sheryl Tombs, an employee of Caretech, in which she said that she had suspected another member of staff as being involved, as that person had worked most of the same shifts as the appellant when the thefts had occurred. She said that she felt sad for Kyle Griffiths as he had trusted the appellant and they had a good bond.
6.
The appellant is aged 26 and was of previous good character. There was a pre-sentence report which referred to his explanation that he had committed the thefts because he had developed a cocaine addiction and could see no alternative way of repaying his debt other than to steal money from Mr Griffiths. At the time of the offence the report recorded the appellant was in an abusive domestic relationship and there were also difficulties with Mr Griffiths in respect of which the appellant felt he was not getting sufficient assistance from Caretech. He expressed remorse for his crime. The author of the report proposed a community order with a rehabilitation activity requirement. The appellant was described as also suitable for unpaid work and curfew requirements. There were in addition references before the sentencing judge, which we have seen, that referred to the appellant's good qualities.
7.
In passing sentence, the judge noted that the appellant had pleaded guilty at the earliest possible opportunity to theft over a 10-month period from a vulnerable adult aged 35. The judge noted that the appellant had set out to steal from his victim in what he described as an utterly wicked and systematic way. The judge accepted that the probation service said that this was partly based on resentment of Mr Griffiths' treatment of him and further based on his cocaine problem borne out of depression. However, the offence was based on greed and the greed took hold to the extent that he took almost half of the income of a vulnerable adult every month for a period of 10 months. It was a grotesque breach of trust.
8.
The judge went on to describe the crime as sophisticated in the sense that the appellant on three or four occasions altered the figures to show that he had taken a lesser sum than in fact he had taken. On other occasions he did not bother doing that and just took the money. The appellant was able to gain Mr Griffiths' trust because of the nature of the person he was dealing with and he knew that. He was able to use the victim's bank card and PIN number because they were readily available for him to use when he helped Mr Griffiths to remove money from his account lawfully.
9.
In mitigation, the judge accepted the appellant's remorse and that he had been depressed but that had to be balanced against judge’s public duty. The crime was, in his view, high culpability, category A, within the guidelines because there was a high degree of trust which the appellant breached in respect of a vulnerable adult. As to harm, whilst this was medium value theft, to someone of that vulnerability living in the way that he was, receiving £700 a money in benefits, the appellant was taking almost half of that for himself over a 10-month period. That was a significant additional harm factor. The offending therefore fell squarely within category 2A, which had a starting point of 2 years with a range of 1 to 3 years. The judge then said this at page 3:
I bear in mind that you have no previous convictions, and the other matters that have been urged upon me. But for this matter, the aggravating features bring this to thirty months as my starting point, taking account of those matters.
10.
The judge did not elaborate on what those matters were. He then gave full credit and passed the sentence of 20 months' imprisonment. He recognised the significance of the Imposition of Community and Custodial Sentencing guideline but found that the appropriate punishment for this type of offence could only be achieved by immediate custody.
11.
Mr Cadwaladr, who appears for the appellant, makes a number of points, but two of them form the basis of the present application. First, he submits it was wrong to place the offending within category 2A of the theft guidelines; the offence should have been placed within category 3A in view of the amount that was stolen: more than £500 but less than £10,000. The provision of the victim’s needs, he submits, was not affected by the theft, and he appears to have been unaware of it.
12.
Secondly, he submits that the judge was wrong to take a starting point of 30 months rather than 2 years which is the prescribed starting point for a category 2A offence. Thirdly, he urges that insufficient regard was given to the mitigating factors, including the appellant's good character, and, fourthly, that insufficient regard was given to the recommendation in the pre-sentence report. He submits that the sentence should have been suspended. There had been 2 years between his offending and sentence. He had not offended in that time and had addressed his addiction problem and found new work.
13.
In our view, the judge was right to treat this as a serious offence of theft. It was theft by someone who was trusted to care for a vulnerable client and abused that trust. It is the type of crime that undermines trust in those who give devoted care to vulnerable people and who do not succumb to temptation, and it tends to have a wider effect on public confidence in the care system. It may also result, as in this case, in suspicion being cast on those who are entirely innocent. We do not accept that this was an offence that could be properly dealt with by a non-custodial sentence. The judge rightly regarded this as a category A offence because of the breach of trust.
14.
The first issue that arises is whether he was right to characterise the offending as category 2 medium harm because there was additional harm due to the appellant taking half of the victim's £700 per month.
15.
We accept that what may be a relatively small amount to one person will seem a large amount to another and there is no reason to think that the victim here could easily bear a loss of £3,140 or forgo half of his entitlement. But in the present case, it mattered little whether this fell within category 2A of the guidelines within a starting point of 2 years, or category 3A with a starting point of 1 year's custody and a category range up to 2 years, if the features identified by the judge justified starting at the top of the range.
16.
However, instead of taking a starting point of 2 years, the judge adopted a starting point of 30 months because of the unidentified aggravating matters. In our view, the appropriate sentence before giving credit for the plea and one that took into account the mitigating factors to which we have referred was a term of 21 months, that mitigation being his good character and clear remorse, and with full credit for the plea the sentence should have been a term of 14 months' immediate imprisonment.
17.
Accordingly, we quash the term of 20 months and substitute a term of 14 months' imprisonment.
18.
To that extent, the appeal is allowed. | [
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f6cd705ac63edfaca5b2d48495f9bc7d60d7c17e33561314961f7fffe7a1d99e | [2020] EWCA Crim 467 | EWCA_Crim_467 | null | "2020-03-13T00:00:00" | crown_court | WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A pers | WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
No. 201904686 B3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
[2020] EWCA Crim 467
Royal Courts of Justice
Friday, 13 March 2020
Before:
LORD JUSTICE HADDON-CAVE
MRS JUSTICE CARR DBE
MR JUSTICE PEPPERALL
REGINA
V
PAUL ROBERT HESSEY
REPORTING RESTRICTIONS APPLY:
THE SEXUAL OFFENCES (AMENDMENT) ACT 1992
__________
Computer-aided Transcript prepared from the Stenographic Notes of Opus 2 International Ltd.
Official Court Reporters and Audio Transcribers
5 New Street Square, London, EC4A 3BF
Tel: 020 7831 5627 Fax: 020 7831 7737
CACD.ACO@opus2.digital
_________
J U D G M E N T
MRS JUSTICE CARR:
1
On 29 November 2019 in Derby Crown Court the appellant was convicted of nine counts of sexual offending. The provisions of the
Sexual Offences (Amendment) Act 1992
apply to these offences. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with
s.3
of
the Act
.
2
The appellant appeals his conviction on Count 7, being a count of indecent assault contrary to
s.14(1)
of the
Sexual Offences Act 1956
. Count 7 was a multiple incident count of indecent assault by the applicant putting his penis in the vagina of the complainant on at least ten occasions. The incidents occurred during the period December 1996 to December 1998 when the complainant was aged 14 or 15. The offending behaving would have been charged as unlawful sexual intercourse with a girl under 16 contrary to
s.6(1)
of the
Sexual Offences Act 1956
. However, that offence bears a time restriction contained in s.37(2) and para.10 sch.2 of that act: a prosecution for such an offence may not be commenced more than 12 months after the offence charged. That was why the offence was charged with an offence contrary to
s.14(1)
of the
Sexual Offences Act 1956
.
3
Following the decision in
R v J
[2004] UKHL 42
, the Crown was in fact precluded from prosecuting the appellant for the offence on Count 7 under
s.14(1)
of the
Sexual Offences Act 1956
in such circumstances. Thus, and as the prosecution rightly concedes, Count 7 should never have been on the indictment or allowed to go to the jury.
4
The appeal will accordingly be allowed to this extent. The conviction on Count 7 will be quashed.
__________
OPUS 2 DIGITAL TRANSCRIPTION
CERTIFICATE
Opus 2 International Limited hereby certifies that the above is an accurate and complete record of the Judgment or part thereof.
Transcribed by
Opus 2 International Limited
Official Court Reporters and Audio Transcribers
5
New Street Square, London, EC4A 3BF
Tel: 020 7831 5627 Fax: 020 7831 7737
CACD.ACO@opus2.digital
This transcript has been approved by the Judge. | [
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1ceef15242c306c29954e97a81d412043be3c7e82f69c456a5e4ceb97e880ff7 | [2008] EWCA Crim 2936 | EWCA_Crim_2936 | null | "2008-12-05T00:00:00" | supreme_court | Neutral Citation Number: [2008] EWCA Crim 2936 Case No: 2008/02288 D1 & 2008/02550 A3 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT ST ALBANS HH Judge Findlay Baker QC T20077198 Royal Courts of Justice Strand, London, WC2A 2LL Date: 05/12/2008 Before : LORD JUSTICE THOMAS MR JUSTICE SWEENEY and RECORDER OF CHESTER (SITTING AS A JUDGE IN THE COURT OF APPEAL CRIMINAL DIVISION - - - - - - - - - - - - - - - - - - - - - Between : Regina Responden | Neutral Citation Number:
[2008] EWCA Crim 2936
Case No: 2008/02288 D1 & 2008/02550 A3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT ST ALBANS
HH Judge Findlay Baker QC
T20077198
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
05/12/2008
Before :
LORD JUSTICE THOMAS
MR JUSTICE SWEENEY
and
RECORDER OF CHESTER (SITTING AS A JUDGE IN THE COURT OF APPEAL CRIMINAL DIVISION
- - - - - - - - - - - - - - - - - - - - -
Between :
Regina
Respondent
- and -
Kelly Elizabeth Sanchez
Appellant
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL’S REFERENCE NO 24 OF 2008
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr L French and Ms C O’Connor
for the
Appellant
Mrs A Evans and Mr P Shaw
for the
Respondent
Mr A Jafferjee, QC
appeared on behalf of the
Attorney General
Hearing date : 13 November 2008
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Thomas :
1.
On 26 August 2007 Mark Russell stabbed John Redhead to death at a petrol station in Potters Bar. Although he accepted that he had inflicted the fatal wounds, he pleaded not guilty to murder on the basis that he acted in lawful self defence. He was tried with Kelly Elizabeth Sanchez, who was charged with murder as an aider and abetter. After a trial before His Honour Judge Baker QC and a jury, both Russell and Sanchez were convicted of murder on 26 March 2008. Russell was sentenced to life imprisonment that day and a minimum term of 14 years less time on remand was specified. Sanchez was not sentenced that day but subsequently sentenced to life imprisonment; a minimum term of 3 years less time on remand was specified.
2.
There is before the Court an application by Sanchez to appeal against her conviction and Her Majesty’s Attorney-General applies for permission to refer the sentence to this Court on the basis it is unduly lenient.
The background
3.
Sanchez was at the time 21 years of age. She had been in a relationship with the deceased (a man 20 years her senior) for over a year when in early August 2007, about three weeks prior to the stabbing, she and the deceased broke up their relationship, though Sanchez maintained that they both still loved each other. There was evidence that the relationship had been a stormy one and there had been previous break-ups.
4.
After the break-up in August 2007, Sanchez formed a relationship with Russell, a 31 year old, again a man older than her; in contradistinction to her relationship with the deceased, it was seen by both as short term. According to the evidence given at the trial she was sexually attracted to him and she liked to indulge with him in taking cocaine; she had started on her drug habit at the age of 13. After the break-up the deceased left the premises at which they lived and went to live with John Darling.
5.
In the period between the break-up and the killing, there was evidence from John Darling of telephone calls between the deceased, Russell and Sanchez. An analysis of the texts sent by Sanchez to the deceased showed they were in many instances abusive of the deceased.
6.
In the early hours of 25 August the deceased sent texts to Sanchez stating he still loved her. On the afternoon of Saturday, 25 August, Sanchez and the deceased met at the Green Man Public House in Potters Bar some time between 12.30 and about 2 or 3 p.m. There was evidence that the deceased wanted to resume the relationship but there was an argument. Sanchez then left.
7.
She stopped at the house of the mother of one of her friends. The mother, Lisa McCarthy, gave evidence that she was told by Sanchez that the deceased and John Darling had insulted her; that Russell was going to beat the deceased up and she was going to stab John Darling with a screwdriver. She then went to her father’s house and thereafter spent the rest of the afternoon with Russell. They drank and took cocaine. On the evening of that day the deceased sent Sanchez a text which stated, “If you love me come up to The Bridge”, a public house at which Darling worked as a doorman.
8.
At about 10.30 p.m. Sanchez arrived at The Bridge where the deceased had been since about 8.30 p.m.; John Darling was working as doorman. Relations were calm between Sanchez and the deceased at first but the evidence was that she began to cry; she claimed that John Darling had abused her and the deceased had done nothing in her defence. Sanchez went outside telling John Darling they were going to get him. She was refused re-admittance to the public house and said, “We’ll be back”. She told him that he was going to get it and drew her finger across her throat. She telephoned Russell.
9.
The evidence was that about some 15 minutes later she returned in a car driven by Russell. Russell’s evidence was that before picking up Sanchez Russell had picked up a kitchen knife with a 22 cm blade and taken it with him. He claimed it was in the fly pocket of the baggy trousers he was wearing and it could not be seen because of the jacket he was wearing. The prosecution case was that Sanchez must have seen the knife when she was in the car with him and the next hour she denied it.
10.
On reaching The Bridge, Russell threatened John Darling on that occasion from the car and they drove past several times; there was at least one further exchange of words.
11.
Between about 11.30 p.m. and 1 a.m. the following morning there was an extensive exchange of texts.
i)
The exchange between Russell and Sanchez was to the effect of asking her to bring the deceased and John Darling to Russell’s house for a fight.
ii)
As between the deceased and Russell the exchanges were abusive. In one of the exchanges the deceased told Russell that Sanchez had been begging him to resume their relationship.
iii)
At 1 a.m. the deceased sent the applicant a text calling her a cunt.
12.
Shortly after 1 a.m. Sanchez and Russell drove to the location of John Darling’s house where Sanchez knew the deceased was living. They arrived outside at 1.26 a.m. This was picked up on CCTV cameras. The CCTV stills showed both Sanchez and the appellant outside the car. One of them showed Russell cradling something.
13.
At 1.46 a.m. the deceased and John Darling arrived in their car. They had been told that Russell was waiting for them outside John Darling’s house. When they arrived the deceased got out of the car. There was a fight during which Russell stabbed the deceased, leaving a knife in his arm. It was Russell’s evidence that the deceased had a gun, but by their verdict, the jury clearly disbelieved him. There was evidence from John Darling that Sanchez shouted after the deceased had been stabbed by Russell, “Do him as well”, referring to John Darling.
14.
Russell did not do that. He got into the car and they drove away. At 2 a.m. Russell was arrested in the company of Sanchez. He told her not to say anything. At the police station she was tearful. There was a conflict of evidence as to whether she said she saw Russell kill the deceased. During her interview she made no comment and read a Harry Potter book.
The case against Sanchez
15.
The Crown’s case against Sanchez was clear.
i)
She gave assistance to Russell in directing Russell to the place where he would find the deceased and John Darling.
ii)
It could be inferred that she encouraged him to kill the deceased from all her actions.
THE APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION
The grounds
16.
There were six grounds on which there was an application for leave to appeal against conviction.
i)
There was insufficient evidence to leave the case to the jury.
ii)
The direction by the Judge to the jury was inadequate in relation to identifying the acts said to constitute aiding and abetting.
iii)
The direction on intoxication was inadequate.
iv)
The Judge did not give a proper direction in relation to the CCTV evidence and should have advised the jury to proceed with greater caution.
v)
There was an unacceptable break during the jury’s deliberations over the Easter holiday.
vi)
An amendment permitted late in the day to the indictment was prejudicial.
We will take each of those grounds briefly in turn.
Our conclusions on each of the grounds
17.
At the end of prosecution case there was a submission of no case to answer. In a clear and full ruling, the Judge set out the 14 reasons as to why there was a case to answer. In essence, apart from the evidence of John Darling, to which we have referred, there was, he concluded, a case based on powerful circumstantial evidence. This comprised the nature of the relationship between the parties, the consumption by Sanchez and Russell of alcohol and cocaine, the events of the evening at and outside The Bridge, her seeking help from Russell, her accompanying Russell to the home of John Darling, an address which she knew, the wait at the petrol station near John Darling’s home, her presence during the attack, her remark in respect of John Darling and her conduct after the event. In addition there was the clear inference from the size of the knife that she must have known Russell had it with him in the car. In our view the Judge correctly identified the salient points of the evidence at the close of the prosecution case. On the basis of that evidence there was a strong case against Sanchez; the fact that it was significantly based on circumstantial evidence did not in any way detract from its strength. In our view the Judge was correct and there was a case to answer; this was not a case where there could be any doubt about that.
18.
In his direction to the jury, in our view, the Judge made clear to the jury the acts said to constitute aiding and abetting. In a short and succinct passage the Judge said:
“It is said that Miss Sanchez gave assistance in directing Mr Russell to the place where he would find Mr Redhead and Mr Darling and you are invited to infer that she encouraged him in the act of murder as well.”
That was in essence the case of the Crown. It was succinctly put. There is no merit in the suggestion that the direction to the jury was inadequate.
19.
The Judge gave, as he was required to do on the basis of the evidence, a direction in regard to intoxication. The direction was in standard form but tailored to the facts of the case. There is no arguable ground in respect of that.
20.
We have already referred to the importance of CCTV evidence. There were 9 “stills” abstracted from the CCTV camera at timed intervals. It was taken not from a digital recording system but from a tape; the images were not as clear as modern digital systems. However they clearly showed Sanchez outside in one still and Russell in a separate still cradling something. It was suggested that the jury should have been particularly warned to have been careful about the images. The Judge referred to the evidence in fair terms. It was perfectly obvious to the jury that the images were not of the highest quality; it was unnecessary, in our judgment, to point that out to the jury as they were as well aware as anyone else of the quality of the images.
21.
There was a break of 6 days over Easter. The jury retired at 3.58 p.m. on Tuesday, 18 March and had a retirement of approximately half an hour that evening. They retired again on Wednesday, 19 March. It became clear on the afternoon of that Wednesday that the jury were unlikely to reach agreement that afternoon. At the close of the afternoon the Judge released the jury until Wednesday, 26 March; the break was necessary because of the public holiday for the Easter Weekend. Before the jury resumed their deliberations on 26 March 2008 the Judge gave a very clear direction to the jury in relation to their ability to ask him to remind them of any part of the evidence or the directions. The jury returned at 11.33 a.m. that same day and gave their verdicts.
22.
Matters of jury management are essentially a matter for the trial Judge. The precise timing and length of a trial where a public holiday period intervenes is always difficult to manage. In the circumstances we consider that the Judge did what was entirely reasonable in hearing the two speeches and summing up to the jury and giving them a day to consider the matter before the holiday period intervened. There is no arguable ground in relation to his conduct.
23.
The last ground of appeal related to the form of the indictment. What had happened surprised us. The indictment as originally drafted contained two counts. It contained a simple count of murder in respect of Russell and a count of “aiding and abetting murder contrary to common law and s.8 of the Accessories and Abetters Act 1861”. That count was then amended prior to the commencement of the trial so that count 2 was a count of “murder contrary to common law” with the particulars of the offence being that Sanchez had aided and abetted Russell when Russell murdered the deceased. A submission was made after the close of the Crown’s case that the amendment in this form was bad in law. The Judge enquired why the indictment was not in the form of a single count. The Crown applied to amend the indictment so that there was a single count charging murder at common law with the particulars being that Russell had murdered the deceased and that Sanchez had aided and abetted Russell in committing the offence. An objection was taken that this would be prejudicial and should not be permitted.
24.
It is clear that throughout, not only in the previous versions of the indictment but in the way the case had been put before the jury, the Crown’s case was that Sanchez was an aider and abetter. We can see no basis upon which it could possibly be argued there was any prejudice to Sanchez in amending the indictment in the way suggested.
25.
Each of the grounds put forward has no prospect of success whatsoever. The summing up was characteristically clear, fair and full. The conviction is safe. We refuse leave to appeal.
REFERENCE BY THE ATTORNEY GENERAL
The Facts
26.
After the jury had returned their verdict on Wednesday, 26 March the Judge made clear that in the case of Sanchez he would ask for a pre-sentence report but would sentence Russell immediately. He observed to counsel for Sanchez:
“Mr French, I think it may be of assistance both to you and your client if I indicate now that, having given some considerable consideration to my statutory obligations in relation to sentence, I am not minded to adopt any of the statutory starting points in this case.”
After counsel for Sanchez had expressed his extreme gratitude for that indication, the Judge proceeded to sentence Russell. It is, we think, of importance to note that the first junior counsel for the Crown, Mrs Evans, was not present when the Judge made the remarks we have set out; the second junior counsel instructed in the case said nothing.
27.
A pre-sentence report was prepared. It set out in considerable detail the background of Sanchez and her account of events.
28.
The matter came before the Judge for sentence on Friday, 18 April. After short mitigation from counsel for Sanchez, the Judge proceeded to sentence. He set out in very clear terms his findings. They can be summarised as follows:
i)
Sanchez had had a long-standing relationship with the deceased, a man she had loved, and 20 years her senior; it had broken down; she had started a “fling” with Russell.
ii)
Although 21, she was emotionally extremely ill-equipped to deal with the changes in her life.
iii)
She rendered herself less able to deal with the problems by taking drink and Class A drugs on which she had a long-term dependency.
iv)
She gave some encouragement in the pub and elsewhere for Russell to hurt the deceased but the precise nature of that was unclear.
v)
She must have known that Russell had taken a large knife from his mother’s home.
vi)
She was not so far gone as a result of drink and drugs that she did not know that he had in mind at least to cause serious injury to the deceased.
vii)
She directed Russell to the flat where she knew Redhead would return and waited for his return; she must have been aware that that was an ambush.
viii)
She played no part in the killing and within a short time afterwards began to realise the enormity of what she had been involved in.
ix)
The Judge had no doubt that she deeply regretted the part she had played in causing the death of the deceased. She would not have contemplated doing anything to help Russell if she had not been significantly under the influence of alcohol and drugs. Russell was a malign evil influence upon her.
29.
The Judge then said:
“I have already indicated that I will not take the statutory starting point of the minimum term at 15 years. The reasons for declining to adopt that starting point lie in the secondary role that you played and in the influence Mark Russell seems to have had upon you. However it has to be said that playing any criminal part in the events that lead to the loss of someone’s life has to be taken seriously.”
He then imposed the sentence of life imprisonment with a specified term of 3 years, stating that it was the equivalent of a 6 year determinate sentence.
The provisions of the
Criminal Justice Act 2003
30.
It is, we would observe, a matter for very significant regret that counsel for the Crown did not, at any time after the Judge had indicated that he was not going to take a statutory starting point, point out that that was a course that needed to be considered by reference to the
Criminal Justice Act 2003
. The provisions are those in ss.269 and 270. S.269(5) requires the court to have regard to the general principles set out in Schedule 21. Under s.270 the court is under a duty to give reasons. S.270(2) provides:
“In stating its reasons the court must, in particular –
a)
state which of the starting points in Schedule 21 it has chosen and its reasons for doing so, and
b)
state its reasons for any departure from that starting point.”
The statutory starting points are set out in Schedule 21; paragraph 6 of the schedule provides that if the case does not fall within what are described as offences where the seriousness is exceptionally high or particularly high then the appropriate starting point in determining a minimum term is 15 years. The statutory framework was recently reviewed in
R v Height & Anderson
[2008] EWCA Crim 2500
, a court presided over by the Lord Chief Justice of England and Wales. At paragraphs 27-30 the court set out the approach that should be adopted by a Judge.
The starting point
31.
It was the submission of Mr Jafferjee QC on behalf of Her Majesty’s Attorney General that the approach adopted by the learned Judge had been wrong. The appropriate starting point in this case had been 15 years and the Judge should have started at that point. The course the Judge adopted was not open to him. In his submissions to us, Mr French, on behalf of Sanchez, accepted that submission and that the Judge had fallen into error.
32.
Mr Jafferjee QC contended that if the Judge had started at 15 years, then it would have been apparent to him that in comparison to the position of Russell, the minimum term of 3 years which he specified in relation to Sanchez was wholly disproportionate and did not take into account the proper operation of the statutory scheme. He submitted that if the Judge had approached the matter correctly and in accordance with principle, the minimum could not have been less than a term in double figures.
33.
On behalf of Sanchez, Mr French submitted that the provisions of Schedule 21 did not deal with the position of a secondary party; a Judge was therefore entitled to approach the position of a secondary party in a flexible manner. We cannot accept that submission. It is quite clear, not the least from the judgment of this court in
Height and Anderson
, that the approach of a court to a sentence of life imprisonment for murder whether the offender is a principal or a secondary party is governed by the provisions of Schedule 21. Furthermore the type of case where one person inflicts violence, with one or more than one encouraging or assisting him, is not these days uncommon. Although the culpability of the secondary party may in many cases be less than the principal, the sentences must be viewed proportionately in the light of the policy of the law, that he who encourages the commission of a murder or assists with the commission is to be dealt with as a murderer.
The specified term
34.
In approaching the particular circumstances of this case we have taken into account what the Judge said in relation to Russell. In respect of Russell he found that the killing was a pre-meditated act of aggression, an ambush leading to a vicious multiple stabbing in which he could see no lesser intention than an intention to kill. He also considered that the motivation for the offence was sexual jealousy fuelled by alcohol and cocaine. He then stated:
“I have adopted the statutory starting point of 15 years, being of the opinion that your case fits into that category. I treat you as a man who has no relevant other convictions and no record of violence. Although there was an element of pre-meditation in this case that is not inconsistent with there also being an element of impulsiveness. The provocative texts sent by the deceased provides some but really little by way of mitigation.”
The Judge then specified a period of 14 years.
35.
The position of Sanchez was different on the basis of the Judge’s findings, to which we have referred. However we would observe that although she had not realised that there was an intention to kill, but insofar as the Judge found that in the case of Russell there was an element of pre-meditation, this must also have applied to Sanchez. A lesser specified term was clearly called for in her case but that term cannot have been less than 10 years. No reduction can be made any longer for any element of double jeopardy (see s.36(3a) of the
Criminal Justice Act 1988)
. We appreciate that the term of 10 years is a low term, but it has to be fixed by us in relation to the minimum term imposed on Russell in respect of which there has been no reference. The term cannot in these circumstances be viewed as guidance for any other case.
36.
We therefore quash the specified minimum term of 3 years less time on remand and substitute a specified minimum term of 10 years, less time on remand.
Postscript
37.
It is self-evident that the effect on any young woman of the magnitude of the increase which we have had to make in this case has been profound. No less has been the distress to the family of the deceased at the proceedings before this Court which have been rendered necessary. There is now clear guidance to prosecutors as to the assistance to which a Judge is entitled in a case. The Judge made clear his intended course. Counsel for the Crown should have drawn to his attention the specific provisions of
the 2003 Act
. If counsel for the Crown had done this, the Judge would have approached the matter, we have no doubt, in accordance with the statutory provisions and would not have imposed the specified term that he did.
38.
A report was published on 4 November 2008 by HM Crown Prosecution Service Inspectorate in respect of the guidelines given by the Attorney General in 2007 in relation to the prosecution role in sentencing when a plea was accepted. It was pointed out that there was a low level of compliance with the guidance given. The obligation of counsel for the prosecution to assist the judge in relation to his powers on sentencing have been made clear for a longer period. This case illustrates a failure of compliance in the discharge of that duty.
39.
The course of events in this case is also a poignant reminder of the absolute necessity of counsel for the Crown discharging their duty in this respect and the wholly unnecessary distress this has caused to the family of the victim. | [
"LORD JUSTICE THOMAS"
] | [
"2008/02288 D1 & 2008/02550 A3"
] | null | null | 2008_12_05-1748.xml | conviction | null | https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/2936/data.xml | https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/2936 |
964a384e0781c2b2e0d6f8ec7a0b75b0b8fd9d0f416109c38b9e1ccb40310111 | [2020] EWCA Crim 349 | EWCA_Crim_349 | null | "2020-02-11T00:00:00" | crown_court | NCN: [2020] EWCA (Crim) 349 No: 201904698 A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand, London, WC2A 2LL Tuesday, 11 February 2020 B e f o r e : LORD JUSTICE SIMON MR JUSTICE EDIS MR JUSTICE CHAMBERLAIN REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 R E G I N A v DAVID CONTEH Mr P Jarvis appeared on behalf of the Attorney General Mr C Burton appeared on behalf of the Offender Computer Aided Transcript of the Stenograph Notes of Epiq Eu | NCN: [2020] EWCA (Crim) 349
No: 201904698 A4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Tuesday, 11 February 2020
B e f o r e
:
LORD JUSTICE SIMON
MR JUSTICE EDIS
MR JUSTICE CHAMBERLAIN
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988
R E G I N A
v
DAVID CONTEH
Mr P Jarvis
appeared on behalf of the
Attorney General
Mr C Burton
appeared on behalf of the
Offender
Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd, Lower Ground, 18-22
Furnival Street, London, EC4A 1JS, Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)
This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
J U D G M E N T
LORD JUSTICE SIMON:
1.
The Solicitor General applies, under section 36 of the Criminal Justice Act 1988, for leave to refer sentences passed on the offender, David Conteh, at Inner London Crown Court on 4 December 2019, as unduly lenient. We grant leave.
2.
The offender was charged on indictment with eight offences: counts 1 to 5 and 7 charged offences of robbery, contrary to section 8(1) of the Theft Act 1968, counts 6 and 8 charged the offence of having an offensive weapon, contrary to section 1(1) of the Prevention of Crime Act 1953. At the plea and trial preparation hearing on 2 August the offender (then and now aged 22) pleaded guilty to count 3 and not guilty to counts 1, 2, 4 and 5 but guilty to theft in the alternative. He pleaded not guilty to count 6 and by an
oversight was not arraigned on counts 7 and 8.
3.
At a mention hearing on 4 November he changed his plea to guilty on counts 1, 2, 4, 5 and 7 and not guilty to count 8. The trial on counts 6 and 8 was confirmed for 4 December.
4.
It was on that day (the first day of the trial) that he pleaded guilty to the two remaining
counts. He was sentenced by Mr Recorder Sallon QC to concurrent terms of
imprisonment: 18 months on counts 6 and 8, the offensive weapon charges, 3 years on counts 1, 2, 3 and 4 and 4 years on counts 5 and 7 - those collectively being the robbery
charges. The overall sentence was a term of 4 years' imprisonment.
5.
The charges arose out of a spate of criminality between 15 and 21 April 2019, when the offender robbed a number of shopkeepers occupying convenience stores, making off with
alcohol and, on one occasion, with cash from the till.
6.
Although there were six robberies there were four direct victims because two of premises were robbed twice. On several occasions violence was used against the shopkeepers. One was struck with a bottle and another grabbed by the throat. On two occasions, on the same day, he took a knife with him and threatened the shopkeepers with it. The offender had previous convictions for robbery and possessing a knife in a public place, and was on
licence at the time of the offences.
7.
On 15 April 2019 the offender entered a Costcutter supermarket in Tower Bridge Road. He looked at some items on the shelves before he turned and lunged towards alcohol behind the counter. The shopkeeper, Amir Shafiq, tried to stop him. The offender struck him twice on the head with a bottle which caused Mr Shafiq's head to bleed and ripped his jumper. The offender then grabbed three bottles of alcohol worth about £90 and ran
out of the shop (count 1).
8.
Two days later, on 17 April 2019, the offender entered the same shop. Mr Shafiq was on duty again, and recognised the offender straightaway. The offender said to him: "Give me a bottle. Don't tell the police or I'll beat you". Mr Shafiq was in shock. The offender jumped onto the counter and grabbed a further three bottles of alcohol worth between £60
and £90 and ran off, saying: "Don't tell anyone. Don't tell the police" (count 2).
9.
The following day, 19 April, the offender went into Terry's News on Dunton Road SE1 at around 7.20 am. The shopkeeper was Tarun Patel. The offender pretended to peruse the shelves before placing some eggs, beans and soft drinks on the counter. He asked Mr Patel for two expensive bottles of alcohol. Having been the victim of previous robberies at the shop Mr Patel was weary of handing over bottles of alcohol to anyone before receiving payment. He asked the offender to pay, at which point the offender said that his bank cards were in his car, and left. He returned some minutes later. He was pretending to talk loudly on his mobile phone. As soon as the shop was clear of customers he flipped the counter up to get to the alcohol behind it. He grabbed Mr Patel by the throat and said: "Don't move or I'll smash the bottle on your head". With his spare hand he reached into the open till and pulled out £50 in cash. He said to Mr Patel: "Let me get two bottles". Afraid for his safety, Mr Patel replied: "Okay, no problem". Whilst still holding his neck the offender took two bottles of alcohol worth about £60 and ran off (count 3).
10.
On 20 April, the offender entered Chris Convenience Store on Dawes Street SE17 at about 7.30 am. The shopkeeper was Sivagi Thambapillai. The offender approached the counter, placed a bottle of soft drink on it and asked Mr Thambapillai for a bottle of white rum. Mr Thambapillai took a bottle from behind the counter and put it down. The offender reached over and grabbed it. There was a struggle during which the offender threw a bottle of soft drink at Mr Thambapillai with force. Mr Thambapillai moved out of the way and the bottle struck the wall. As he dodged out of the way his glasses broke. He ran out of the shop for help. Seizing this opportunity the offender jumped onto the counter, took two bottles of white rum and ran off. In the process some of the shelves behind the counter where sweets were kept were damaged (count 4).
11.
On 21 April, the offender went into the Convenience Store at Browning Street S17. The shopkeeper was Magbool Ahmad. The offender walked around the store until the number of customers reduced. He then went behind the counter, pulled out a knife and
threatened Mr Ahmed.
12.
There was a struggle, during the course of which Mr Ahmed received a number of minor cuts to his hand. The offender grabbed two bottles of alcohol and made off (counts 5
and 6).
13.
On the same day the offender returned to Chris Convenience Store in Dawes Street. As before the shopkeeper was Mr Thambapillai. He recognised the offender immediately and pressed the panic alarm several times. The offender went behind the counter where Mr Thambapillai was standing, drew out a knife and threatened him with it. A number of elderly customers were in the shop and saw what was happening but unsurprisingly were too afraid to intervene. Fearing a confrontation Mr Thambapillai backed away. The
offender took three bottles of alcohol and made off (counts 7 and 8).
14.
He was arrested and interviewed on 4 July. He told the police he was dependent on drugs and that he stole in order to feed his habit. He admitted the robbery in count 3 but said
that he had not committed any other robberies. He was subsequently charged.
15.
The offender had 14 criminal convictions from eight previous court appearances. His earliest conviction was in July 2011, when he was 14 years old, for an offence of robbery. Since then he had been convicted of possession of cannabis, possession with intent to supply heroin, cocaine and crack cocaine, assault, assaulting a police constable in the
execution of his duty, robbery and having a knife in a public place.
16.
On 3 February 2017, he had been sentenced to 15 months' detention for an offence of robbery committed while he was on bail. On 24 November 2017, he received a
concurrent sentence of 3 years' detention for an offence of possessing cocaine with intent to supply. He was on release on licence from that sentence when he committed the
offences between 15 and 21 April. There were no reports in this case.
17.
In his personal statement Mr Shafiq (counts 1 and 2) said that the robberies had left him feeling shocked and frightened. He runs a small business, and even the theft of a few bottles of alcohol can have a significant impact on his profits. He now feels more
anxious going to work than he did before.
18.
In his personal statement Mr Patel (count 3) said that the crimes had scared him so much that he was selling his business and planned to move away from the area. He does not want his daughter to grow up in the area knowing that there are people like the offender around. He bought his business for £95,000, but was only able to sell it for £75,000 so
his decision to sell up has cost him a considerable amount of money.
19.
In his personal statement Mr Thambapillai (counts 4, 7 and 8) said the robberies had left him feeling very scared. Since then he has refused to work alone and insists that another person is in the shop with him at all times. He works fewer shifts, and that costs him money. There was no victim personal statement from Mr Ahmed (counts 5 and 6).
20.
The Recorder was taken to the Sentencing Council's Definitive Guideline for Robbery for street and less sophisticated commercial robberies. Prosecution counsel submitted that so far as counts 1, 5 and 7 were concerned, there was high culpability, category A because the offender had either produced a knife, in order to threaten victims (counts 5 and 7) or had used a weapon (a bottle) to inflict violence on the victim (count 1). The harm was category 2. Category 2A provides a starting point for a single offence of 5 years' imprisonment and a range of 4 to 8 years. It was submitted that for count 3 there was medium culpability category B, but category 1 harm because there had been a serious detrimental impact on the victim's business as a result of the sale at a loss. Category 1B
also provided a starting point of 5 years' imprisonment and a range of 4 to 8 years.
21.
As to the other robberies (counts 2 and 4) there was medium culpability and category 2 harm which provided a starting point for a single offence of 4 years' imprisonment with a
range of 3 to 6 years.
22.
Prosecuting counsel did not take the Recorder to the Definitive Guideline for sentencing the offensive weapons offences (counts 6 and 8). It was submitted that the fact that the offender was armed with a knife should properly be considered as a feature of the robberies. The Recorder decided to give 20% credit for the pleas of guilty. He took an overall sentence for the offending of 5 years' imprisonment and reduced that to reach the final term of 4 years. He imposed a 4-year sentence for the two offences where the
offender had a knife (counts 5 and 7) and lesser concurrent terms for the other offences.
23.
For the Solicitor General Mr Jarvis takes the initial point that for four of the robberies the starting point for a single offence was a term of 5 years and a range of 4 to 8 years: Counts 5 and 7, where a knife was produced and which the Recorder regarded as the most serious offences, count 3 where the victim had to sell his business and count 1, where a bottle was used as a weapon. But there were two other robberies and looking at the matter broadly, the offender had to be sentenced for six robberies carried out over a period of around 1 week, where there were four victims (two of whom were robbed twice). In the course of committing those offences the offender used or threatened violence against the victims and on two occasions produced a knife that he had taken with him in order to reinforce his threats. Each of these offences carried a starting point of either 4 or 5 years' imprisonment. The offending was also aggravated by the fact that the offender was on licence from an earlier sentence at the time and had a number of relevant previous convictions. There was, submitted Mr Jarvis, little by way of mitigation available to the offender. Mr Jarvis also sidled up to a complaint about the 20% credit for the pleas but the focus of his argument was that this highlights the undue
lenience of the overall sentence of 4 years.
24.
For the offender Mr Burton recognises that this was a lenient sentence but submits that it was not unduly so. He accepts that three of the robberies fell within category 2A of the guidelines and that the Recorder was bound to treat the other offences as calling for an upward adjustment to what would otherwise be the appropriate sentence for a single offence. It is likely therefore that he took a sentence before mitigation of above 5 years. He submits that the Recorder was entitled to give effect to the mitigation. He had been drawn into drug dealing by a gang when he was very young and had been unable to
extricate himself. It was this that led to the conviction in 2017 and the term of 3 years
youth detention. He has, Mr Burton says, been previously unable to articulate the way he has been ‘trapped’, as Mr Burton put it, into offending. Mr Burton also drew our attention to a document entitled "Instructions of the defendant" which was before the Crown Court. His broad submission is that the current offending was the result of both a continuing need to pay off his drug debt to the gang and his addiction to crack cocaine. He accepts that this is a matter wholly within the knowledge of the offender but highlights his expressed desire to move away from those who controlled him. This background, he submits, provided compelling mitigation which had been acknowledged and properly
taken into account by the Recorder.
25.
As the Recorder noted in his sentencing remarks, the offender had committed these offences within 3 months of being released on licence for his previous offending. In a spree of robberies he "targeted, attacked and physically assaulted vulnerable single
storekeepers in the local High Streets" taking alcohol, cash or both.
26.
The relevant sentencing guideline is the Sentencing Council's Definitive Guidelines for Street and Less Sophisticated Commercial Robberies. For the offences where a knife was produced (counts 5 and 7), where violence was used with a weapon (count 1) and where the victim had to sell his business (count 3), the starting point for a single offence was a term of 5 years' imprisonment with a range of 4 to 8 years. For the other two robberies
the starting point was a term of 4 years and a range of 3 to 6 years.
27.
There was the further aggravation of the offender's previous convictions for robbery and the fact that he had been released on licence shortly before these offences. The fact that
the robberies were not planned, although of little consolation to the victims, reduced the seriousness. An expression of remorse and a self-reported history of exploitation by a gang may carry some weight, and although the Recorder did not refer to it in his sentencing remarks, we accept that he acknowledged this during the course of the mitigation. However the potency of expressed remorse and the background to offending are reduced in effect the more the offender continues to commit crimes. He is now 22. The excuse of youth and immaturity is thin. Nevertheless, there are signs of progress and
we accept that there is hope for the future in turning his life around.
28.
However, even with some of the mitigation relied upon, the sentence before credit for plea should not have been less than seven-and-a-half years bearing in mind the number of offences and the history of offending. We are not inclined to interfere with the credit of 20% credit for plea. The resulting sentence should have been an overall term of 6 years
and not 4 years. The sentence of 4 years was unduly lenient.
29.
Accordingly, we quash the sentence of 4 years' imprisonment on counts 5 and 7 and substitute terms of 6 years on each count. The other sentences will remain unaffected. | [
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Dataset Card for JuDDGES/en-court-raw
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The dataset consists of England and Wales Appeal Court judgements available at https://caselaw.nationalarchives.gov.uk/judgments/advanced_search?court=ewca/crim/, containing full content of the judgements from official website. This dataset contains raw data.
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{ "id": "f6cd705ac63edfaca5b2d48495f9bc7d60d7c17e33561314961f7fffe7a1d99e", "citation": "[2020] EWCA Crim 467", "signature": "EWCA_Crim_467", "date": null, "publicationDate": "2020-03-13", "type": "crown_court", "excerpt": "WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A pers", "content": "WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.\nThis Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.\nNo. 201904686 B3\nIN THE COURT OF APPEAL\nCRIMINAL DIVISION\n[2020] EWCA Crim 467\nRoyal Courts of Justice\nFriday, 13 March 2020\nBefore:\nLORD JUSTICE HADDON-CAVE\nMRS JUSTICE CARR DBE\nMR JUSTICE PEPPERALL\nREGINA\nV\nPAUL ROBERT HESSEY\nREPORTING RESTRICTIONS APPLY:\nTHE SEXUAL OFFENCES (AMENDMENT) ACT 1992\n_________\nComputer-aided Transcript prepared from the Stenographic Notes of Opus 2 International Ltd.\nOfficial Court Reporters and Audio Transcribers\n5 New Street Square, London, EC4A 3BF\nTel: 020 7831 5627 Fax: 020 7831 7737\nCACD.ACO@opus2.digital\n_________\nJ U D G M E N T\nMRS JUSTICE CARR:\n1\nOn 29 November 2019 in Derby Crown Court the appellant was convicted of nine counts of sexual offending. The provisions of the\nSexual Offences (Amendment) Act 1992\napply to these offences. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with\ns.3\nof\nthe Act\n.\n2\nThe appellant appeals his conviction on Count 7, being a count of indecent assault contrary to\ns.14(1)\nof the\nSexual Offences Act 1956\n. Count 7 was a multiple incident count of indecent assault by the applicant putting his penis in the vagina of the complainant on at least ten occasions. The incidents occurred during the period December 1996 to December 1998 when the complainant was aged 14 or 15. The offending behaving would have been charged as unlawful sexual intercourse with a girl under 16 contrary to\ns.6(1)\nof the\nSexual Offences Act 1956\n. However, that offence bears a time restriction contained in s.37(2) and para.10 sch.2 of that act: a prosecution for such an offence may not be commenced more than 12 months after the offence charged. That was why the offence was charged with an offence contrary to\ns.14(1)\nof the\nSexual Offences Act 1956\n.\n3\nFollowing the decision in\nR v J\n[2004] UKHL 42\n, the Crown was in fact precluded from prosecuting the appellant for the offence on Count 7 under\ns.14(1)\nof the\nSexual Offences Act 1956\nin such circumstances. Thus, and as the prosecution rightly concedes, Count 7 should never have been on the indictment or allowed to go to the jury.\n4\nThe appeal will accordingly be allowed to this extent. The conviction on Count 7 will be quashed.\n__________\nOPUS 2 DIGITAL TRANSCRIPTION\nCERTIFICATE\nOpus 2 International Limited hereby certifies that the above is an accurate and complete record of the Judgment or part thereof.\nTranscribed by\nOpus 2 International Limited\nOfficial Court Reporters and Audio Transcribers\n5\nNew Street Square, London, EC4A 3BF\nTel: 020 7831 5627 Fax: 020 7831 7737\nCACD.ACO@opus2.digital\nThis transcript has been approved by the Judge.", "judges": ["LORD JUSTICE HADDON"], "caseNumbers": ["201904"], "citation_references": ["[2004] UKHL 42"], "legislation": ["s.6(1)", "Sexual Offences Act 1956", "s.14(1)", "Sexual Offences (Amendment) Act 1992", "the Act", "s.3"], "file_name": "2020_03_13-4860.xml", "appeal_type": null, "appeal_outcome": null, "xml_uri": "https://caselaw.nationalarchives.gov.uk/ewca/crim/2020/467/data.xml", "uri": "https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2020/467" }Data Fields
| Feature name | Feature description | Type |
|---|---|---|
| _id | Unique identifier of the judgment | string |
| citation | Citation of the judgment | string |
| signature | Signature identifier of the judgment | string |
| date | Hearing date of the judgment | string |
| publicationDate | Date when the judgment was published | string |
| type | Categorized court type | string |
| excerpt | Excerpt from the judgment header | string |
| content | Full text content of the judgment | string |
| judges | List of judges involved in the judgment | list |
| caseNumbers | List of case numbers associated with the judgment | list |
| citation_references | List of cited case references | list |
| legislation | List of referenced legislations | list |
| file_name | Name of the file containing the judgment | string |
| appeal_type | Type of appeal | string |
| appeal_outcome | Outcome of the appeal | string |
| xml_uri | URI of the XML file | string |
| uri | URI of the original document | string |
Data Splits
This dataset is not split into subsets. The dataset has only train split.
Dataset Creation
For details on creating the dataset, see the paper TBA and the code repository here.
Curation Rationale
Created to enable cross-jurisdictional legal analytics.
Source Data
Initial Data Collection and Normalization
- Download judgements xml files.
- Extract raw text from XML content and details of judgments.
- For further processing, prepare a local dataset dump in a parquet file, version it with DVC, and push it to remote storage.
Who are the source language producers?
Produced by human legal professionals (judges, court clerks), it was not analyzed for demographics and was sourced from public court databases.
Annotations
Annotation process
We performed no annotation. All features were provided by the judiciary.uk
Who are the annotators?
As above.
Statistics
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Licensing Information
We license the actual packaging of these data under Open Government Licence https://www.nationalarchives.gov.uk/doc/open-government-licence/version/3/
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Homepage: TBA
Homepage: TBA
Repository: [github](https://github.com/pwr-ai/JuDDGES)
Repository: [github](https://github.com/pwr-ai/JuDDGES)
Paper: TBA
Paper: TBA
Point of Contact: lukasz.augustyniak@pwr.edu.pl; jakub.binkowski@pwr.edu.pl; albert.sawczyn@pwr.edu.pl; s.tirunagari@mdx.ac.uk
Point of Contact: lukasz.augustyniak@pwr.edu.pl; jakub.binkowski@pwr.edu.pl; albert.sawczyn@pwr.edu.pl; s.tirunagari@mdx.ac.uk
Size of downloaded dataset files:
86.6 MB
Size of the auto-converted Parquet files:
86.6 MB
Number of rows:
6,154