REGINA v IAN MICHAEL SZCZERBA [2002] EWCA Crim 440

IN THE COURT OF APPEAL
CRIMINAL DIVISION
[2002] EWCA Crim 440Case No No: 200000287/Z4PRIVATE Venue Royal Courts of Justice, The Strand, London WC2
Between
REGINAIAN MICHAEL SZCZERBA
Before
The Vice PresidentLord Justice RoseMr Justice JacksonMr Justice OwenMR E FITZGERALD QC & MR R TAYLOR appeared on behalf of the APPELLANTMR D THOMAS appeared on behalf of the CROWNDate 6 February 2002
[1]THE VICE PRESIDENT: On 14th September 1999, at Bradford Crown Court, this appellant pleaded guilty and, on 22nd December, at the same court, before Mr Recorder Lawler QC, he was sentenced in relation to the offences to which he had pleaded guilty, to life imprisonment, for the offence of false imprisonment, on count 2, and 8 years concurrently for burglary, on count 1. A recommendation was made that a minimum of 6 years be served before release, that period having been specified, following a decision that the notional determinate sentence should be one of 11 years in relation to false imprisonment.[2]Following refusal of leave by the Single Judge, he now appeals against sentence to this Court, by leave of the Full Court, differently constituted.[3]The facts were these. In the early hours of 4th February 1999, the appellant broke into the home of Mrs Lindsay. She was a 71 year old widow, living alone, in a small council bungalow with one bedroom, in Huddersfield. She heard a noise at the side of the house at about 1.30 am. Some minutes later she heard the sound of breaking glass. She found that a brick had been thrown through the bathroom window. She tried to secure the window, and she wedged a brush behind the kitchen door. She tried to telephone the police. She was unable to do so because the telephone wires had been cut.[4]At 1.55 am, there was a knock on the door. She was terrified and went into the kitchen. A few minutes later, the bathroom door opened and the appellant emerged and went into the kitchen. He told Mrs Lindsay to be quiet, as he was from the police. He pushed her into the living room. He asked where she kept her money. She showed him her purse. He said she had more than that; he picked up her walking stick and threatened to kill her. He went and found her shopping bag, and took out her pension book and over £100 in pension. He removed other small items of cash from the handbag and living room table. He told her to take her glasses off; she says he knocked them off her face. He says he removed them.[5]There were further threats to kill her. He made her hand over her eternity and wedding rings but, when she said they meant a lot to her, he handed them back. At one stage, he found some of her tablets in the kitchen and he threatened to give them all to her and kill her. He took her back into the bedroom. He demanded money. He threatened to punch her and to stab her with a screwdriver and said he wondered if that would kill her. He sprayed her face and head with hair spray. That took several minutes. It caused her discomfort in her eyes, in particular, for some weeks. He put his hand round her throat, for some 2 minutes, and applied pressure. She thought she was about to die. Eventually, he left, having been in her home, she estimated, for about an hour and three-quarters, and throughout that time she believed that she was going to be killed.[6]The appellant, during the course of this incident, had smoked three of Mrs Lindsay's cigarettes. The butts which he left behind were tested for DNA which matched a sample of blood taken in due course from the appellant.[7]After the incident, Mrs Lindsay went to stay with her daughter and eventually moved to sheltered accommodation. She had previously suffered from hypertension for which she had been treated by her doctor. As a consequence of this matter, instead of being an active person, who enjoyed going out, she became, at first, very upset and agitated and, later, introspective and nervous.[8]The learned Recorder, in passing sentence, among other things said this at page 2H of the transcript:
"The effect upon this lady has been devastating as the detailed statements show. Before this she was outgoing and lively. Since this she has had to move. She is now obsessive with security, her health has suffered physically and mentally, she has lost interest in much of her life and after suffering her husband's death which she did some years ago this defendant has in my view blighted her remaining years."
[9]He then, as we indicated at the outset, proceeded to pass a life sentence for the offence of false imprisonment and he identified 11 years as the notional determinate sentence, specifying the minimum period to be served as one of 6 years, having regard to a period already spent in custody.[10]The appellant is 28 years of age. He has 19 previous convictions, involving some 44 offences, the majority for dishonesty, particularly burglary. By way of example, in 1991, he was sentenced to 7 years' detention, for the robbery, rape and buggery of a 77 year old disabled woman. In 1996, he was sentenced to 3 years' imprisonment for several offences of burglary, and he was sentenced to a short period of imprisonment in 1997, for affray.[11]There were reports before the Recorder. A pre-sentence report, in October 1999, indicated the appellant's claim that there was no premeditation or planning of this offence. He claimed not to know that the victim was elderly, despite the fact that he was familiar with the area and the premises were purpose built for elderly people. He denied threatening or assaulting the victim. He demonstrated little insight and he displayed what was described in the report as a "worrying pattern of offending", especially against the elderly. The high risk of him reoffending was referred to.[12]There was a psychiatrist's report dated 15th December 1999, which described the appellant as being of average intelligence and not suffering from mental illness. But he suffered from a dissocial personality disorder, and the latest offending could best be described as prolonged, deliberate, controlled, demanding and directly threatening to his elderly victim. He was assessed as presenting a high risk to vulnerable isolated individuals, and his condition was not amenable to psychiatric treatment. No medical recommendation was offered.[13]The original grounds of appeal before the Single Judge were that it was not necessary to pass an indeterminate sentence and that insufficient credit was given for the guilty plea, age, background, history and circumstances of the appellant. Amended grounds, by counsel appearing before this Court today, were before the Full Court which granted leave. Those grounds allege that the judge erred in setting the relevant part of the life sentence at 6 years. The 11 year starting point was too high and failed to reflect the guilty pleas, the appellant's mental state, the irrelevance of the dangerousness element and the likely effect of a life sentence. It was further contended that the Recorder wrongly took a proportion of the notional determinate sentence, greater than half. There were no exceptional circumstances justifying that. The submission was made, at that stage, that an appropriate starting point would have been about 9 years.[14]Since those grounds of appeal were before the Full Court, this Court has been presented with a considerable number of written submissions, on behalf of the appellant, and by Dr Thomas, acting at the Court's invitation as an amicus. We have also been provided with a considerable number of bundles of authorities. We are grateful to Dr Thomas for his written submissions. It was not necessary for the Court to call on him for oral elaboration. He resisted all the submissions made on behalf of the appellant, in the course of the written submissions, save that which is at the heart of this appeal, namely the length of the notional determinate sentence and the proportion of that sentence which ought properly to be served by the appellant. Dr Thomas conceded, in his written submissions, that the Recorder took too high a figure for both aspects of that part of the sentencing process.[15]On behalf of the appellant, Mr Fitzgerald QC was, in his written submissions, critical of the Recorder in five respects, although some of those matters, as will appear, have fallen away in oral argument today. First, he sought leave to argue a matter not raised in the grounds before the Full Court, namely, that it was not open to the judge to impose a life sentence for false imprisonment, which is a common-law misdemeanour. In our judgment that contention is unarguable, as Mr Fitzgerald came close to conceding. But, in any event, as we indicated, we refused leave to argue that point. As a matter of principle and authority, in our judgment, that contention has been unarguable for the best part of a century.[16]In Castro [1885] QB 490, affirmed by the House of Lords in [1883] 6 AC 229, it was held, in the words of Lord Goddard CJ, in R v Morris 34 Cr App R 210, at 215 that:
"...a Court can sentence to imprisonment and fine at discretion, provided, of course, that it does not give an inordinate sentence."
[17]Those word were of course directed to the sentencing process in relation to a misdemeanour.[18]It is clear that a sentence exceeding 2 years should only be imposed in serious cases of misdemeanour (see R v Higgins [1951] 2 All ER 759 at 760E) but there are many examples in the authorities of sentences very substantially exceeding 2 years being upheld. In Castro itself, 14 years penal servitude, consisting of two consecutive periods of 7 years, was upheld; and a sentence of 10 years' imprisonment was upheld in R v Bryan 35 Cr App R 121. There can, in our judgment, be no difference in principle between the court's power to impose a very long determinate sentence and a power to impose an indeterminate sentence of life imprisonment. Both, as it seems to us, are equally within the principle that provided the sentence is not inordinate, it is "at discretion".[19]In any event, there have been several occasions in recent years when different constitutions of this Court have upheld the imposition of a life sentence, for a common-law misdemeanour (see for example R v Waller 16 Cr App R(S) 251, in relation to false imprisonment ; R v Ellis [1999] 1 Cr App R(S) 245, BAILII: [1998] EWCA Crim 2015, in relation to kidnapping and R v Willoughby [1999] 2 Cr App R(S) 18, in relation to false imprisonment). Those authorities are, as it seems to us, well founded, binding and cannot be ignored.[20]Secondly, Mr Fitzgerald submitted that the offence of false imprisonment in this case is not properly characterised as a violent offence within section 31(1) of the Criminal Justice Act 1991, which is now section 161(3) of the Powers of Criminal Courts (Sentencing) Act 2000. The subsection defines a violent offence as one "which leads or is intended or likely to lead to a person's death or to physical injury to a person." It is accepted that whether an offence is within this definition depends on the individual facts of the particular case; psychological harm is insufficient, and there is no requirement that the physical injury should be serious (see per Lord Taylor CJ in R v Robinson 14 Cr App R(S) 448, at 452).[21]But Mr Fitzgerald submits that the mere risk of injury should be insufficient to lead to an offence being categorised as violent: there must be a probability of injury. He accepts that that submission is contrary to R v Cochrane 15 Cr App R(S) 708 and Attorney-General's Reference No 13 of 2001 (R v Connors) [2002] EWCA Crim 143. He submits, which might seem to be contrary to what Lord Taylor said in Robinson , that there must be significant injury of some duration.[22]In our judgment, the present offence "lead to physical injury". The spraying of the face with hair spray caused the victim discomfort for several weeks. It is right, as Mr Fitzgerald points out, that there was no medical evidence in relation to that. As against this the Recorder, in the passage in his sentencing remarks which we have earlier rehearsed, specifically found that the victim's health had suffered physically.[23]We also take the view, in the light of our construction of the phrase to which we shall shortly come, that the appellant's conduct, in the present case, was "likely to lead to physical injury" (compare Cochrane and Connors , to which we have referred and R v Newsome [1997] 2 Cr App R(S) 69), BAILII: [1996] EWCA Crim 1446 . The appellant threatened the victim with a walking stick, his fist and a screwdriver and he knocked the spectacles off her face. All of those activities, in our judgment, gave rise to more than a mere risk of injury. He also put his hands round her throat, for some 2 minutes and applied pressure. That assault, on a 71 year old lady was, in our judgment, likely to lead to marks on the neck, and could very well have led to cardiac arrest or vagal inhibition.[24]In our judgment, although the mere risk of injury is insufficient to give rise to a violent offence, it does not have to be shown that injury was "a necessary or probable consequence" (see Cochrane page 712 ). Conduct which could very well lead to injury is in our judgment properly characterised as likely so to lead. It is to be noted that the words of the statute are not 'likely to cause injury,' but "likely to lead to injury". Mr Fitzgerald, rightly points out that the statute here under consideration is a criminal one and therefore, he submits, it should be construed in a narrow way: it is on that basis that he proffers his preferred interpretation, based on probability.[25]The other matter for consideration, however, when assessing the intention of Parliament, is that the legislature were here clearly concerned with effects on victims and with protecting the public. Words take their meaning from their context. Protection of the public was one of the matters which was relevant to the decision of their Lordship's House in the case of Re: H [1996] AC 563 whether meaning of "likely to suffer significant harm" in section 31 of the Children's Act 1989 was considered. In our judgment, some support for the conclusion which we have reached, as to the meaning of "likely to lead to" is to be found in the speech of Lord Nicholls of Birkenhead in that case at 585 A-F.[26]So far as the third possibility, of intention to cause injury, is concerned, the Recorder made no finding as to the appellant's intention. Clearly, if it was to be part of the appellant's case, as being relevant for sentencing purposes, that he did not intend to injury the victim, one might have expected that to be canvassed in evidence before the Recorder, particularly in the light of that which the victim said the appellant had said at the time. But it is unnecessary, for the purpose of the resolution of this appeal, for this Court to make any finding as to the intention of this appellant, even if there were before us the material to enable us to do so.[27]The next question, which is not a matter of contention before us today, is whether the conditions necessary for the imposition of a life sentence are met by the circumstances of this case. It is common ground that a life sentence should not be passed unless, first, the offence is sufficiently serious to call for a substantial sentence (see Chapman [2000] 1 Cr App R(S) 377 ), BAILII: [1999] EWCA Crim 2056 ; secondly, the defendant must be dangerous (see Attorney-General's Reference No 32 of 1996 (R v Whittaker) [1997] 1 Cr App R(S) 261),BAILII: [1996] EWCA Crim 1797; and thirdly, the consequences to others of the defendant re-offending are likely to be specially injurious (see R v Hodgson (1968) Cr App R 113).[28]In our judgment, all those conditions are met in the present case. It is unthinkable that this offence could attract anything other than a very long sentence. The appellant's record and the contents of the pre-sentence and psychiatrist's reports before the recorder demonstrate the danger which the appellant represents, particularly to the elderly, vulnerable and isolated who are likely to suffer in their homes if this appellant is at large and reoffends. A discretionary life sentence was plainly called for and Mr Fitzgerald does not seek to contend to the contrary.[29]Mr Fitzgerald's next submission is that the Recorder's starting point for the notional determinate sentence for 11 years for punishment, retribution and deterrence was too high. We agree. Serious though this offence was, it did not, in our judgment, call for a double figure term, following a plea of guilty - albeit the possibility of maintaining a not guilty plea would have been somewhat remote in the light of the DNA evidence.[30]Having considered, among other authorities, R v Karunaratne and Whitnall 5 Cr App R(S) 2, R v Pitts and Davies 8 Cr App R(S) 84, R v De Houghton 14 Cr App R(S) 411, Attorney-General's Reference No 17 of 1999 BAILII: [1999] EWCA Crim 1642 , (R v Taylor) [2001] 1 16 Cr App R(S) 215, R v Waller 16 Cr App R(S) 251, R v Meek 16 Cr App R(S) 1003, Attorney-General's Reference No 89 of 1999 (R v Farrow) [2000] 2 Cr App R(S) 382 and Attorney-General Reference No 19 of 2000 (R v Stock) [2001] 1 Cr App R(S) 35, we take the view that 9 years rather than eleven would have been the appropriate notional determinate sentence in this case.[31]Finally, Mr Fitzgerald submits that there was no reason for the Recorder to take, as the specified period to be served, a higher proportion of the determinate term than one half, which the recent authorities show should be the norm in the absence of exceptional circumstances (see R v Marklew and Lambert [1999] 1 Cr App R(S) 6 at 12, BAILII: [1998] EWCA Crim 1188 , R v Adams and Harding [2000] 2 Cr App R(S) 274, BAILII: [2000] EWCA Crim 6 , and R v McQuaid [2001] EWCA Crim 2398). Indeed, Mr Fitzgerald goes further and submits that one-half of the notional determinate sentence should be the invariable rule.[32]In our judgment, as Marklew and Lambert makes plain, whether the specified period should be half or two-thirds of the determinate term, or somewhere between the two, is essentially a matter for the exercise of the sentencing judge's discretion. But that discretion must be exercised in accordance with principle. We accept that half should normally be taken. Some of the decisions in this Court, in which the Court has taken a higher proportion, are not, as it seems to us, obviously explicable, save on the basis that the relevant principles were not always argued or addressed.[33]There are, however, circumstances in which, more than half may well be appropriate. Dr Thomas, identified two examples. In R v Hayward [2000] 2 Cr App R(S) 418 a life sentence was imposed on a serving prisoner for an offence committed in prison. In such a case the term specified can appropriately be fixed to end at a date after that on which the defendant would have been eligible for release on licence from his original sentence. This may involve identifying a proportion of the notional determinate term up to two-thirds. Another example is where a life sentence is imposed on a defendant for an offence committed during licensed release from an earlier sentence, who is therefore susceptible to return to custody under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000. In such a case the specified period could properly be increased above one-half, to reflect the fact that a specified period cannot be ordered to run consecutively to any other sentence.[34]There may well be other cases, apart from these two examples, in which it is appropriate to specify a period greater than one-half. It would not, in our judgment, be helpful to seek to list all the circumstances in which the sentencing judge's discretion can properly be so exercised.[35]But, as we have said, unless there are exceptional circumstances, half the notional determinate sentence should be taken, (less, of course, time spent in custody) as the period specified to be served. If a judge specifies a higher proportion than one-half, he should always state his reasons for so doing.[36]In the present case, there was no good reason to take a proportion greater than one-half. Accordingly the specified period, in the appellant's case, will be four-and-a-half years, less the period which he has spent in custody, which is of the order of 10 months but the precise number of days can be indicated to the court.[37]We add this. It will not be open to defendants to complain, in this Court, that a specified period should be reduced as being in excess of half the notional determinate term in cases where the determinate term, assessed by the sentencing judge, is itself too low. This Court will only reduce a sentence as being manifestly excessive if, looking at both the notional determinate term and the specified period, it can be said that the appellant is being required to serve an excessive period before he can be considered for parole.[38]MR FITZGERALD: I think the period he spent 320 days on remand.[39]THE VICE PRESIDENT: It is four-and-a-half years less 320 days and when you have done the sum, Mr Fitzgerald, would you be kind enough to hand it to the Associate.[40]MR FITZGERALD: My Lord, yes.

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