Regina v Wayne Robin March [2002] EWCA Crim 551

IN THE COURT OF APPEAL
CRIMINAL DIVISION
[2002] EWCA Crim 551Case No Case No: 200104557Venue Royal Courts of Justice, Strand,, London, WC2A 2LL
Between
ReginaWayne Robin March
Before
Lord Justice Buxton MrsMr James Scobie appeared on behalf of the Appellant.Date 15 February 2002
[1]Mr. JUSTICE GROSS:PRIVATE  INTRODUCTION On the 11th June, 2001, at the Central Criminal Court, before HHJ Coombe, the Appellant changed his plea to guilty to Count 4, Conspiracy to cause Actual Bodily Harm, Counts 5,6 and 7, all Assaults occasioning Actual Bodily Harm, Count 8, Threats to Kill and Count 14, Incitement to Steal. All other counts were ordered to lie on the file on the usual terms; two of those other counts related to indecent assaults, a matter to which we shall return in due course.[2]The Appellant was born on the 3rd July, 1984; the offences were committed on the 19th November, 2000; he was 16 at the time; he is now 17.[3]On 23rd July, 2001, the Appellant (then 17) was sentenced to a 2 years Detention and Training Order on Count 4, 12 months Detention and Training Order on Counts 5, 6 and 7, 2 years Detention and Training Order on Count 8 and 6 months Detention and Training Order on Count 14, all concurrent.[4]The total sentence was thus 24 months Detention and Training.[5]The Appellant had hitherto spent some 8 months on remand in custody.[6]It will be appreciated that this sentence involved giving the Appellant the maximum permissible Detention and Training Order under the applicable legislation: Powers of Criminal Courts (Sentencing) Act 2000 ("the Act"), s.101 . Credit was not given for the 8 months spent in custody on remand; nor was any discount allowed in respect of the Appellant's plea of guilty.[7]There were two co-accused. As to these:(i) Nicholas Cooper ("Cooper") was convicted after a trial on Counts 2 (also an Assault occasioning Actual Bodily Harm), 4, 5, 6 and 7; he was sentenced to a Detention and Training Order for 18 months in total;(ii) Robert Davenport ("Davenport") changed his plea to guilty to Counts 1 (again, Assault occasioning Actual Bodily Harm), 4, 5, 6, 7, 8 and 14; he was sentenced to, in total, 42 months detention in a Young Offender Institution.[8]The bare recital of the offences does not begin to reflect the nature of this case, described by the learned Judge as the most disgusting case with which he had ever had to deal. THE FACTS[9]We shall keep the summary of the facts to a brief outline. Nothing will be gained by repeating in detail the revolting particulars of the offences committed by the Appellant, Cooper and Davenport against the victim family, whom they humiliated, degraded and tortured. When it is additionally taken into account that the parents of the victim family had learning difficulties and that many, though not all, of the acts in question took place in front of the children of that family, the seriousness of the offending becomes all too obvious. The learned Judge said that the Appellant, Cooper and Davenport had behaved like animals; we agree.[10]Turning to the facts, in a nutshell, the Appellant, Cooper and Davenport had become something of an unwelcome presence in the victims' 9th floor flat. The ordeal to which the Appellant and the two co-accused subjected the victim family included throwing herbs and pepper into the eyes of various family members and the dog and spraying air fresheners and other substances into their eyes; forcing the father of the family to eat the faeces of one of the co-accused; inserting a vibrator into the anus of the father of the family in front of the children; forcing the parents to perform oral sex under the threat of killing the father if they did not and, by way of addition, threatening to cut off the father's penis; finally, cutting the father some 60 times with kitchen knives - all shallow cuts - such cutting only coming to an end when the father agreed to go and steal for them. Physically, the family has recovered. That is all that can be said. The family has had to move home and the parents have become separated from the children as they do not know if they can bring them up. The motive for this behaviour was, apparently, that the Appellant, Cooper and Davenport were "having a laugh".[11]We record that there was a written basis of plea, which we have carefully considered. It is unnecessary to set out its terms here. Suffice to say that it discloses no mitigation of any substance in favour of the Appellant. More broadly, it does nothing to cause us to moderate or qualify the Judge's description of this case or of the Appellant's conduct. SENTENCING OBSERVATIONS[12]When passing sentence and as already foreshadowed, the Judge observed that he had never dealt with a more disgusting case, either at the bench or bar; the three defendants had acted like animals; Cooper was the least involved. The victims had been subject to bullying and wickedness; the parents have had to be separated from the children as they are still suffering from trauma and there is nowhere for them to go as a family. The father of one of the defendants (we interpose, not the Appellant) had threatened them.[13]Everything about the facts of the case was deplorable in the extreme. Because, as

the Judge put it (Transcript, p.3B-F):

" ... I found it difficult to think any human being could behave in the way these did, I ordered psychiatric reports in the case of March and Davenport ... In the case of March, it appears there is nothing mentally wrong with him. I thought there must be because I cannot understand how anybody could behave, a member of the human race, in the way he did. I think this is a terrible case. I intend to lift the ban on the publication of their names for this reason, that the pre-sentence reports do not give him the hope that they necessarily will go right in the future ... so that other families can be aware."
[14]Turning to the appropriate sentence, the Judge criticised the Crown for having accepted a plea of not guilty to the two counts of indecent assault. If the Crown had not done so, then the Judge would have exercised his power to make a detention order under s.91 of the Act and passed a sentence commensurate with the very grave crimes they had committed. The Crown had accepted a plea, saying that all the facts would emerge in opening; however, the effect of the Crown taking that course was that the maximum sentence which could be imposed was a 2 years Detention and Training Order (at least on the Appellant and Cooper). Moreover, authority precluded the making of consecutive Detention and Training Orders to exceed two years.[15]Continuing,

the Judge said this (Transcript, p.5B-G):

" ... So the totality for a particularly wicked crime, and the public must think the criminal justice system is failing them when that is the position, is only two years. Mr. Scobie [counsel for the Appellant] has argued that I am statutorily bound to take into account in his client's case a plea of guilty... and the period he has served and I certainly found his argument powerful, but it has not persuaded me. In this case, the defendants are in an enviable position which they did not deserve by the acceptance by the Crown of lesser pleas to the same events and it seems to me that they have had all the discount they could possibly hope for, indeed far more because if they had been found guilty of indecent assault, two years would not have been the length of the sentence I would have imposed. They have had all the benefit of the acceptance of pleas to counts which do not fully reflect what are the unchallenged facts in this case and I therefore propose in the case of March to impose 24 months in totality, a detention and training order."
[16]Dealing with Cooper, the Judge said that although he had fought the case, he was the least wicked of the trio. He was indifferent to much of what was going on around him and at times endeavoured to restrain the other two. In arriving at the sentence of 18 months Detention and Training for Cooper, the Judge stated in terms that some distinction must be made between Cooper and the Appellant. THE APPEAL[17]Leave to appeal against sentence was granted by Bell,J.[18]In his forceful oral submissions, Mr. Scobie developed a number of grounds of appeal, which may be summarised as follows:(1) The Judge erred in not giving the Appellant credit for the 8 months spent on remand in custody. S.101(9)(b) of the Act, the relevant statutory provision, made it mandatory for the court to "take account" of the period for which the offender had been remanded in custody; while it could not be said to be mandatory for the court then to go on and give a credit for any such period, still less any mathematical "day for day" credit, fairness dictated that some credit must be given. As counsel put it, the Appellant had "done the time". Were no credit to be given in such a case, then a young offender faced with a Detention and Training Order would be in a worse position than an older offender, facing for instance a sentence of imprisonment, where time on remand is deducted automatically; such an outcome would be unfair and absurd and could not have been intended by the legislature.(2) The Judge erred in giving no discount for the Appellant's plea of guilty. Such a discount was mandatory, whether pursuant to s.152 of the Act, or otherwise. Alternatively, such a discount should have been given on the basis of settled practice and general grounds of fairness. A discount was particularly appropriate in a sensitive case such as this because a plea of guilty was capable of sparing vulnerable witnesses the ordeal of coming to court to give evidence. That the Appellant's plea of guilty did not in fact have that effect here (and that members of the victim family were required to give evidence), was through no fault of the Appellant; it was instead the result of Cooper choosing to fight the case. This last matter made Cooper's lesser sentence of 18 months remarkable and highlighted the unfairness of the Appellant receiving no discount, even if not disclosing an independent complaint of disparity. Finally, here, the imposition of the maximum 24 months Detention and Training Order could not be justified on the ground that the Order (as its name suggests) contemplates a period of training. The Judge had custody in mind rather than training; had a period of training been his object, there were a variety of non-custodial options available to him.(3) As a matter of general practical importance, in cases up and down the country on a daily basis, defendants were advised by counsel to plead guilty in the expectation of a discount off the sentence which would otherwise have been imposed. Encouraging such pleas of guilty was in the public interest but a refusal of a discount here, would create uncertainty for both counsel and defendants, discourage pleas of guilty and, hence, would not be in the public interest. Moreover, the Appellant's legitimate expecations based on counsel's advice, itself based on the relevant authorities, would be defeated.(4) The learned Judge had gone wrong here because he strongly disliked the 2 year maximum sentence he could impose. Such dislike or anger was understandable on the facts of the case but was a consequence of the agreement entered into by the Crown not to pursue the indecent assault charges together with the 2 year maximum for Detention and Training Orders contained in the Act. The Judge, however, was bound by the relevant legislation, which was to be applied loyally. It was improper and wrong to sentence on the basis of what might have been appropriate had the Crown pursued other charges which, in the event, it had chosen not to do. Anger and sentiment were inappropriate guides to sentencing decisions. For these reasons, the correct sentence in the present case, once proper credit had been given for time on remand and/or for the Appellant's guilty plea, was a maximum 4 months Detention and Training Order or no custodial penalty at all. At all events, the 24 months custodial sentence passed was wrong in principle and/or manifestly excessive.[19]Realistically, Mr. Scobie did not press various other matters foreshadowed in the written Grounds of Appeal. We can dispose of these at once; if we are not otherwise obliged to reduce the sentence, neither the Appellant's age nor anything contained in the various reports or his mother's letter begins to warrant any reduction in sentence. To the contrary, in the circumstances of this case, unless we are constrained to hold otherwise, a 2 year Detention and Training Order was amply deserved. For completeness, we note in this regard, the reference in the pre-sentence report to a high risk of reoffending. Further, for much the same reasons and, as already indicated, nothing in the substance of the written basis of plea calls for a reduction in sentence. We return, therefore, to the real issues on this appeal, arising from the submissions developed before us by Mr. Scobie. DISCUSSION[20]It will be convenient to deal with the matter under the following broad headings:(i) (I) Discount for a guilty plea;(ii) (II) Practical considerations and legitimate expectations;(iii) (III) Credit for time on remand(iv) (IV) Result and postscript.[21](I) Discount for a guilty plea: Sympathetic as we are to the sentiments expressed by the Judge, we are driven to the conclusion that his approach cannot be sustained; the Appellant should not have been sentenced to the maximum 24 months Detention and Training Order; some discount should have been given to him by virtue of his guilty plea.[22]We turn to the applicable law, guided by the following authorities: Costen (1989) 11 Cr. App. R. (S) 182; Raymond Reay (1992) 13 Cr. App. R. (S) 533; Sharkey and Daniels (1995) 16 Cr. App. R. (S) 257; Kelly [2002] 1 Cr. App. R. (S) 11; Paul Kevin Smith [2002] 1 Cr. App. R. (S) 90. For present purposes, we venture the following summary:(1) The general principle is that a plea of guilty attracts some discount from the sentence that would have been imposed in the event of a conviction following a not guilty plea. This principle, developed in the case law, has now received "statutory recognition" in s.152 of the Act: Archbold (2002 ed.), at para. 5-154. That guilty pleas should, in general, attract lower sentences, is in the public interest; they save time and expense and may be taken as an indication of remorse. If anything, guilty pleas are all the more important in cases which, if fought, will require vulnerable witnesses to give evidence.(2) The principle, however, is only a general principle; for instance, there is no invariable rule to the effect that a maximum sentence cannot be given in the case of a guilty plea. There are a number of well-established exceptions to the general rule and their list is not closed. When such an exception applies, a maximum sentence may be imposed, even in the event of a guilty plea. That said, given the general principle, it will rarely be appropriate to impose a maximum sentence where there has been a guilty plea.(3) The exceptions to the general rule include at least the following: (i) where the imposition of the maximum term is necessary for the protection of the public; (ii) where the plea was of a tactical nature; (iii) cases where a plea is practically speaking inevitable; (iv) where the count is a specimen count. As to the effect of these exceptions, we incline to the view that the existence of an exception does not automatically mean that the maximum sentence is to be imposed regardless of a plea of guilty; all the circumstances fall to be considered.(4) On the authority of Reay ( supra ), at p.535, it would appear that a further exception to the general principle arises in cases where the offence is of such seriousness that the public interest requires the imposition of a maximum sentence. If seriousness of the offence, by itself, meant that the maximum sentence was to be imposed despite a plea of guilty, then reconciling this suggested exception and the authorities would not be straightforward; see, for example, Sharkey and Daniels ( supra ), where a guilty plea in respect of an appalling offence with grave consequences attracted a discount. In our judgment, the answer to this concern lies in the analysis set out in (3) above. Seriousness of the offence is a factor to be considered with all the other circumstances of the case in coming to the sentencing decision; in an exceptionally serious case, the court may (not must ) impose the maximum sentence despite a plea of guilty. On this footing all the authorities can be reconciled; the rationale of the general principle is preserved (it would lack content if it could never operate in a serious case); finally, the court is not deprived of the power to refuse a discount on commonsense grounds in an exceptionally serious case.(5) Turning to the framework for young offenders (ie. any persons aged under 18), Parliament has legislated for a maximum 24 month term for Detention and Training Orders: ss. 100 and 101 of the Act . Here, as elsewhere, Judges are bound by legislation; that maximum must be respected. If it is too low, the remedy lies with others - not with the courts.(6) In certain, limited, circumstances, set out in s.91 of the Act, to which s.100 is subject, a person aged under 18 may be detained for longer than 24 months; for present purposes, it is to be noted that indecent assault comes within s.91(1) (b) and (c) . In a case where it is open to a Judge to sentence a young offender to a term of detention in excess of 24 months, pursuant to s.91, the discount for a plea of guilty may (depending on all the circumstances) properly be reflected by the Judge sentencing the offender to the maximum 24 months Detention and Training Order. In such a case, the offender cannot complain of not receiving a further discount; he has benefited from his plea of guilty by the Judge confining the sentence to the maximum Detention and Training period rather than imposing a longer sentence under s.91.(7) The position is different in the case of a "compromise" agreed between a defendant and the Crown, whereby (i) the defendant pleads guilty to offences for which the maximum sentence is a 24 months Detention and Training Order and (ii) the Crown accepts pleas of not guilty to offences which potentially carry longer sentences pursuant to s.91. A Judge can only sentence in respect of the offences which have been pursued, not the offences which might have been pursued; whatever the circumstances leading to the compromise, the Judge has before him only offences carrying a maximum 24 months sentence: see, Paul Kevin Smith ( supra ), esp. at pp. 390-1 and 393. In these circumstances, it is inappropriate to treat the defendant as having obtained, by means of the "compromise", the benefit of coming within the 24 months Detention and Training Order "cap" and, on that ground, to deprive him of the discount otherwise due for a guilty plea.[23]Applying the law to the facts:(1) As already indicated, the Crown agreed not to pursue the counts of indecent assault against the Appellant. In respect of the offences pursued by the Crown and to which the Appellant pleaded guilty, the maximum to which he could be sentenced was a 24 month Detention and Training Order. An application of the general principle would accordingly result in the Appellant receiving some reduction from a 24 month sentence by reason of his guilty plea.(2) None of the recognised exceptions to the general principle, set out in paragraph 22(3) above, are applicable. Plainly, this was not a tactical plea (see, Costen , supra , at p.185) and the the counts were not specimen counts. Imposition of the 24 month maximum sentence could not be justified here as coming within the exception "for the protection of the public"; that phrase has a somewhat restricted meaning, inapplicable here, as is made clear in Sharkey and Daniels ( supra ), at p.260. Nor was this a case where a plea was inevitable; we were told by Mr. Scobie - and accept from him - that but for the "compromise" agreed with the Crown, there would have been a defence of duress, based on fear of Davenport. At all events, it is to be noted that the learned Judge did not rely on any of these exceptions to support the imposition of the maximum 24 months sentence.(3) As will be recollected from the Sentencing Remarks (paragraph 15 above), the learned Judge reasoned that the Appellant had had all the discount he could hope for by reason of the Crown's acceptance of pleas to counts which did not fully reflect the (or, what had become the) unchallenged facts of the case. On this ground, the Judge decided to impose the 24 months maximum Detention and Training Order and to give no discount for the Appellant's guilty plea. Respecting, as we do, the sentiment which led the learned Judge to impose the sentence which he did, we cannot uphold the course which he followed. In short, he did the very thing which Paul Kevin Smith ( supra , reported of course subsequently) precludes. For the Judge, the starting point should have been the offences which remained "live" in the light of the agreement between the Appellant and the Crown. He was only entitled to sentence the Appellant in respect of those offences. What he could not do was go behind the compromise between Appellant and the Crown and sentence on the basis of offences which the Crown might have pursued but had chosen not to pursue. It follows that the decision of the Judge to deprive the Appellant of any discount for his guilty plea cannot be sustained by the reasoning on which the Judge relied. We turn next to consider whether it can be sustained on any other basis.(4) We mention at once two matters in order to put them to one side. First, insofar as the learned Judge was influenced by possible public disquiet at the legislative maximum sentence for the offences in question (Sentencing Remarks, p.5 B-C), such considerations were irrelevant and impermissible. The Judge had no option but loyally to apply the provisions of the Act. If the Appellant was otherwise entitled to a discount in respect of his guilty plea, the fact that Parliament had set the maximum sentence too low in the Judge's or in public opinion, was neither here nor there. Secondly, we do not think that the 24 month sentence here could be justified on the ground that the Appellant needed training; any suggestion that such considerations lay behind the Judge's approach to sentencing would simply be unrealistic. What the Judge had in mind was Detention, not Training; were it otherwise, a variety of non-custodial sentences could have been considered.(5) What remains is what might be termed the Reay exception (paragraph 22(4) above). For reasons which need not be repeated, this was an appalling case. We have anxiously considered whether, on this ground alone, the sentence can be upheld. With some reluctance, we do not think it would be right to do so. This factor is outweighed by other considerations with regard to the question of whether any discount should be given; it will, however, again be relevant when, later, we consider what that discount should be. For the present, we bear in mind the weight of authority (discounts given even in very bad cases), the chance (even if no more than that) that a not guilty plea might have succeeded and the statutory maximum sentence upon which Parliament has decided. Moreover and importantly, given the vulnerable nature of the victim family, this was a case where particular importance attached to a plea of guilty. The fact that, in the event, the Appellant's plea did not save the victims from the ordeal of giving evidence was due (as we have seen) to Cooper's decision to fight the case rather than to any fault on the Appellant's part. It would be unfortunate in a case such as this to cast doubt on the general principle that guilty pleas attract lower sentences.[24]For all these reasons, we have therefore concluded that the 24 month sentence on the Appellant cannot be upheld; some discount must be given for his guilty pleas. We accept Mr. Scobie's submission in this regard though, as will be apparent, not his categorisation of the discount as "mandatory". As already touched upon, the amount of the discount is another matter and one to which we shall return in due course.[25](II) Practical considerations and legitimate expectations: Here too, we accept the thrust of Mr. Scobie's submission, subject to a caution, to be mentioned presently. Practical considerations have weighed heavily with us in arriving at our decision on the issue of a discount for a guilty plea. On a daily basis, in courts throughout the country, legal advice is given to defendants that, as a general rule, guilty pleas attract lower sentences. We are concerned not to undermine this beneficial practice, which undoubtedly encourages pleas of guilty, in the public interest. While in the present case we have no doubt that any advice given to the Appellant to plead guilty would have been good advice even if no more could have been obtained than limiting the maximum sentence to 24 months, we do not think that the advice was likely to have been limited in that fashion. On the assumption that the advice had regard to the authorities to which we have already referred (or others to like effect), it was likely to go further and deal with the question of the discount for a guilty plea.[26]We cannot however leave this topic without underlining and endorsing the caution given in Costen ( supra ), at p.185, by way of approval of the observations in an earlier decision:
" ... counsel should be wary when offering advice that a discount can be expected, and [should] not .. be over-emphatic and should avoid giving anything in the nature of an assurance which might raise the defendant's hopes unduly. To that caution we add our approval. There were exceptional cases ... where no discount was given for a plea of guilty...."
We agree. Those giving advice must build this caution into their advice. If they do not, any undue expectations may not be met.[27](III) Credit for time on remand: Here, we are unable to accept the reasoning underlying Mr. Scobie's submission. Neither as a matter of statutory obligation nor as a matter of fairness, is there any general requirement that a specific period of credit must be given to an offender sentenced to a Detention and Training Order for time spent in custody on remand.[28]In the light of R v Inner London Crown Court, ex parte I (unreported), Divisional Court Transcript 4th May 2000, R v Inner London Crown Court, ex p. N and S [2001] 1 Cr. App. R. (S) 99 (DC), Lee James B [2001] 1 Cr. App. R. (S) 89 and R v Fieldhouse and Watts [2001] 1 Cr. App. R.

(b) of the Act, which provides as follows:

" in determining the total term of the detention and training orders it proposes to make in respect of the offender, the court shall take account of the total period (if any) for which he has been remanded in custody in connection with any of those offences..." (2) It is therefore plain that, when imposing a Detention and Training Order, the court must "take account" of the time spent by the offender in custody on remand. (3) However, to "take account" of time spent in custody on remand does not mean reflecting it in some specific way in the sentence passed; there is no rule of general application as to what credit should be allowed; as explained by Rose,LJ in Fieldhouse and Watts ( supra ), at p.365: "
Parliament has chosen to confer on the courts ... the power to make detention and training orders only in steps of four, six, eight, 10, 12, 18 or 24 months, and periods in custody may range from days to months. Therefore .. no rule of general application can be devised to cover the infinitely various situations which may arise." (4) That there is no general rule as to the credit that is to be given for time on remand, is reinforced by the fact that no mathematical credit can reflect time in custody on a one for one, or day for day, basis:
" The reason for that may be that the periods to which the court is entitled to sentence a young defendant to detention and training orders are specified in blocks separated by several precise numbers of months and a provision that time spent in custody is to be deducted from the sentence according to the precise amount of time spent in custody would be inconsistent or capable of being inconsistent with that provision."
Bell,J. in Lee James B ( supra ), at p.306. (5) Whatever anomaly may be perceived when contrasting the position of young offenders and older defendants in this regard, no complaint of unfairness is tenable; Parliament must have been aware of the different effects of differently expressed legislation when passing the Act and its predecessor in this form: see, Lee James B ( loc. cit. ). (6) For completeness, if the law leaves the credit given for time on remand very much in the hands of the judges, then no legitimate expectations can be created, impinging on the court's sentencing powers, by legal advice which erroneously gives rise to undue expectations on the part of a defendant.[29]Against this background, we return, in the event briefly, to the facts of the present case. The Judge plainly took into account the fact that the Appellant had spent 8 months on remand; he cannot be faulted in that regard. Having ourselves formed the view that some discount must be given to the Appellant on account of his guilty plea, we propose to consider the amount of that discount in the round and by reference to the legislation providing for Detention and Training Orders to be made only in particular "steps" or "blocks". For the reasons already given, we are not obliged to add some specific or indeed any credit for time on remand. In the circumstances, it is unnecessary to decide (and we do not decide) whether, had no credit been due to the Appellant by reason of his guilty plea, it would have been appropriate on the facts of this individual case to give the Appellant some credit for the time he spent on remand.[30](IV) Result and postscript: We have come to the conclusion that the right discount to give in this case is one of 6 months, so that the total sentence on the Appellant is to be reduced from 24 months Detention and Training to 18 months Detention and Training. To such extent the appeal will be allowed. Our reasons are these:(1) The policy that guilty pleas should attract lower sentences necessarily requires that such discounts, if given, should be meaningful. While the matter is not one of arithmetical precision or statutory obligation, it is ordinarily the case that discounts of a quarter or a third are allowed.(2) In the present case, given the provisions of s.101 of the Act as to Detention and Training Orders only being made in specific "steps" or "blocks", the result of a discount greater than 25% would be to reduce the sentence on the Appellant to one of 12 months Detention and Training; there is no halfway house between an 18 months order and a 12 months order.(3) Given the seriousness of these offences, as already catalogued, we are of the opinion that a sentence of less than 18 months would be unconscionable and would wholly fail to reflect the justice of this case. We therefore feel justified in restricting the credit to one of 6 months.(4) As such, it remains a meaningful 25% discount "earned" by the guilty plea. Insofar as the result is that no specific extra credit is given for time on remand, we cannot help thinking that this is not inconsistent with what the legislation contemplated. The scheme of the legislation providing for Detention and Training Orders must be considered as a whole: relatively low maximum periods, specified blocks and the absence of any determinate credit for time on remand must all be considered together, as giving the court a substantial degree of discretion with the limits set by the legislation in deciding the appropriate block within which to place the defendant.(5) For completeness, we were not impressed with the point that there was some unfairness in Cooper having received a lesser sentence than the Appellant. The Judge specifically treated Cooper as being (relatively) less culpable than the Appellant; on the material available to this Court, we neither can nor should go behind that conclusion. In the event, the effect of the discount is that both the Appellant and Cooper will serve the same sentence. Neither, we add, has any ground for complaint; the Appellant (as the Judge held) was more culpable; Cooper, on the other hand, cannot be given credit for any plea.[31]By way of postscript, in the event of understandable disquiet that appalling offences such as these should only attract a sentence of 18 months Detention and Training and no more, we should make the following plain:(1) The Court's hands have been tied. Both the Judge and this Court are bound by the statutory maximum of 24 months Detention and Training for young offenders. That is a matter decided on by Parliament.(2) The Court was deprived of the option of sentencing the Appellant to a term longer than 24 months, pursuant to the provisions of s.91 of the Act, by reason of the Crown's agreement not to pursue the charges of indecent assault. The Judge expressed strong criticism of this decision. We have not heard from the Crown, so we must be cautious in any observations that we make. The Crown was in charge of the case and may have been privy to matters that are not apparent to us. However, the case is so striking that we feel bound to add some general observations about prosecution decisions in such circumstances.(3) The principle is clear and unchallenged that the prosecutor has unfettered discretion in determining how the prosecution should be conducted. The judge can comment and warn but he cannot require and control. That discretion, however, must be exercised according to some important principles of public policy. First, the charges to which the Crown accept pleas should properly reflect the criminality of the admitted conduct. The Judge considered that the facts as set out in paragraph 10 above evidenced a clear case of indecent assault. We agree. The omission of such a count could only be justified by the type of special considerations to which we refer below. Secondly, the prosecutor should carefully consider whether the limited matters to which pleas of guilty are to be accepted unreasonably limit the ability of the judge to pass a sentence that properly reflects the conduct that actually occurred. The present case is exactly in point. Parliament, in s.91 (1)(b) and (c) of the Act has specifically picked out indecent assault as a case in which the limits otherwise placed on the judge's sentencing powers do not obtain. By failing to pursue a charge of indecent assault in a case where the facts warrant such a charge, the prosecutor will deprive the judge of the sentencing freedom that, on the facts, Parliament has specifically conferred upon him.(4) We of course accept that there will be cases in which these principles cannot prevail. They will mainly, though not exclusively, be cases where the prosecutor thinks it right that witnesses should not be required to testify: whether because of the traumatic effect upon them, or because the prosecutor, although satisfied that they can be put forward as witnesses of truth, fears that their evidence will not be accepted by the jury, or for other reasons. In such cases, the prosecutor may properly accept pleas on the basis that other and more serious charges are not to be pursued. Whether any such considerations applied in the present case we do not know; though we are bound to observe that the trial went ahead in any event in relation to Cooper. How the prosecutor should deal with such a case is, again, a matter for him or her. But the present case was particularly striking. The facts had caused widespread disquiet and disgust. A judge at the Central Criminal Court had expressed concern about the prosecution's decision in the most outspoken terms. There may be circumstances which would prompt counsel to be able to reassure the judge that the troubling decision had been endorsed at senior level within the prosecuting authority. What should be avoided, if at all possible, is what unfortunately occurred in this case, where a judge, properly exercising his role of commenting on prosecution decisions, received no answer to objections that on their face appear to have been wholly well-founded.

Cited in 1 later judgment