Oosthuizen, R. v [2005] EWCA Crim 1978

Case No 200502637/A8[2005] EWCA Crim 1978
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Monday, 11th July 2005
Strand
London, WC2
Wednesday, 13th July 2005
B E F O R E:
THE VICE PRESIDENT
(LORD JUSTICE ROSE)
MR JUSTICE HOLLAND
MR JUSTICE CRANE
Between
R E G I N ACrown-v-
Between
LEE OOSTHUIZEN
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR R HALLOWES appeared for APPLICANT
J U D G M E N T
[1]THE VICE PRESIDENT: On 14th April 2005 at Guildford Crown Court, this applicant pleaded guilty to robbery and on 6th May he was sentenced by His Honour Judge Bull QC to 2 years' detention in a young offender institution. Two other offences, one of stealing a mobile telephone from a friend and the other of obtaining property by deception, that is goods from his former employer, using a stolen credit card, were taken into consideration. His application for leave to appeal against sentence was referred to the Full Court by the Registrar.[2]We say at once that, having regard to the judge's expressed wish that time spent in custody, which we are told but the judge was not was 28 days, should count towards his sentence, we grant the applicant leave to appeal. The position now, by virtue of section 240 of the Criminal Justice Act 2003, that unless express allowance is made in relation to sentence for an offence committed on or after 4th April 2005, time spent in custody does not count.[3]The circumstances of the robbery offence were that, on 8th April 2005, a middle aged lady was walking up Castle Street, Guildford towards the entrance of a shopping centre car park at about 1.30 in the afternoon. Just before she reached the entrance to the car park, she passed the appellant who was leaning against a wall. As she passed, he made a grab for her handbag, which was hanging over her left forearm. She tried to stop him taking it. There was a struggle. The appellant eventually pulled the bag away and ran down Castle Street. She gave chase. She shouted for someone to stop the appellant. As it happens, there was an off-duty police officer nearby who heard her cries. He stopped and later arrested the appellant.[4]When he was interviewed, the appellant made a full admission of the offence. He said he had been short of money following suspension from his employment. He believed he had been suspended on full pay but discovered that, in fact, his account was overdrawn. He was concerned about the rent and also, that night, he was going out with friends. He had no money for these purposes so he decided to do something about it. He decided that he would seize a lady's handbag and, in consequence, he spent some time at the place where he ultimately committed the robbery, "summoning up courage" as he said.[5]He admitted in interview the two offences to which we have referred and which the learned judge expressly took into consideration.[6]The judge, in passing sentence, said that credit would be given for the appellant's guilty plea, which was at the preliminary hearing. But, he said, the appellant had been caught red-handed. In that regard, he referred to a judgment of a differently constituted division of this Court, given, in R v Greenland, by Roderick Evans J on 28th June 2002 [2002] EWCA Crim 1748. In paragraph 8 of that judgment, appears this:
"...he is not entitled to the full credit that he would have had had the evidence against him not been so overwhelming and had he not been caught redhanded."
As will emerge, that is an observation which no longer has the authority that it once had.[7]The judge in his sentencing remarks took into account the fact that the appellant had not sought to minimise his culpability and had fully admitted his responsibility. The level of violence was low and the appellant had not previously experienced custody. On the other hand, the judge pointed out that the robbery was premeditated, to the extent that the appellant, in the context which we have described, waited for about one-and-a-half hours, watching women walking past, until he felt he was able to commit the offence.[8]The learned judge also referred to the judgment of another differently constituted division of this Court in R v Akuany (24th January 2003) [2003] EWCA Crim 156, on which, in his submissions to us, Mr Hallowes, on behalf of the appellant, places some reliance. The judge also referred to R v Howe & Graham [2001] 2 Cr App R(S) 108 and R v Thomas 15 Cr App R(S) 848, in relation to which, Mr Hallowes submits that they are not to be regarded as any longer persuasive, in view of this Court's decision in Attorney-General's Reference No 4 and 7 of 2002 (R v Lobban & Ors) [2002] 2 Cr App R(S) 345.[9]The judge went on to observe that robbery of handbags from women on the streets of Guildford was prevalent and was becoming increasingly so. Women in Guildford were entitled to feel safe on the streets in broad daylight, and it was necessary to include a deterrent element in the sentence passed. The judge went on to conclude that the offence was so serious that custody was called for and the appellant's existing community orders were revoked.[10]On the appellant's behalf, Mr Hallowes advances a number of grounds of appeal. First, he submits that, in the light of Lobban, the judge in taking, as he must have done, a period of 3 years as his starting point, took too high a starting point. The judge, in identifying this victim as vulnerable, was only justified in that conclusion by virtue of the fact that this was a woman on her own with a handbag, plus the fact of premeditation. She was, as the judge described her, a plucky woman. That is so. But, in our judgment, that is not inconsistent with her also having been vulnerable. But the essence of Mr Hallowes' submission on this aspect is that the judge's starting point was too high. He referred to paragraph 6 in the judgment of Lord Woolf in Lobban, where the Court accepted prosecuting counsel's submission that the upper limit where no weapon is used, in relation to street robbery of this kind, is 3 years.[11]Mr Hallowes stresses that, in the present case, the offence was committed not in the hours of darkness but in broad daylight. It was not in an unfrequented place on the contrary was in the busy, well populated and frequented centre of Guildford. On the other hand, of course, as is apparent from what we have said, this offence was premeditated and planned in the sense that the appellant had decided well in advance of this offence what he was going to do.[12]As it seems to us, although Mr Hollowes relies, as we have said, on Akuany, where the sentence of one of the appellants was reduced by this Court from 4 years to 2, and the sentence on another was reduced from three-and-a-half years to 18 months, there were respects in which the offence there under consideration differed from the present case. We are not persuaded, however, that, on the basis of that authority, a starting point of 3 years could be regarded as being too high for this appellant, bearing in mind that the judge was sentencing not just for the offence of robbery, but was also taking into account the two rather unpleasant offences which the appellant asked to have taken into consideration.[13]Mr Hallowes' next submission is that, by virtue of the changes brought about by the Criminal Justice Act 2003, in relation to licence periods, the sentence which the judge passed required the appellant to be vulnerable to recall if there was a breach of his licence during the period of 12 months after release - a longer period than would have been the case prior to the 2003 Act.[14]In paragraph 2.1.9 of the Sentencing Guideline Council's Guideline in relation to New Sentences issued in December 2004, appears the following:
"The Council's conclusion is that the sentencer should seek to achieve the best match between a sentence under the new framework and its equivalent under the old framework, so as to maintain the same level of punishment. As a guide the Council suggests sentence length should be reduced by in the region of 15%."
That said, where a comparatively short sentence of the present kind is under consideration, the effect of the change in the licence provisions is merely that the defendant is at risk of being brought back for an increasingly short period of time within the 12 month time scale to which we have referred. In our judgment, there is no sustainable criticism to be made of the 2 year sentence by reference to this aspect of the matter.[15]The next submission made by Mr Hallowes is that the judge was wrong to seek to impose a deterrent sentence by reference to the prevalence of robbery in the City of Guildford. In that respect, Mr Hallowes relied on paragraph 1.39 of the Sentencing Guidelines Council's Guideline on Seriousness issued in December 2004, where appears the following:
"There may be exceptional local circumstances that arise which may lead a court to decide that prevalence should influence sentencing levels. The pivotal issue in such cases will be the harm being caused to the community. It is essential that sentencers both have supporting evidence from an external source (for example the local Criminal Justice Board) to justify claims that a particular crime is prevalent in their area and are satisfied that there is a compelling need to treat the offence more seriously than elsewhere."
In relation to that passage, Laws LJ, giving the judgment of this Court, differently constituted in R v Stockdale, Flynn and Tankard (16th June 2005) at paragraph 14, said this:
"We are driven to say that, with respect to the Sentencing Guidelines Council, we entertain very great difficulty in accepting that in a case of this kind a local judge is not entitled to go on his local knowledge but must have evidence of conditions in the relevant area. The situation relating to crime in the locality in question may be notorious. The judge may be extremely well placed to have an informed view of it. He may have had hundreds of cases paraded before him displaying time and again the kind of criminality taking place in the area in question. We, for these reasons, have to say, that we seriously question this approach commented by the Council."
It is not apparent from the transcript of the judgment in Stockdale, whether the Court had drawn to its attention the provision of section 172(1)(a) of the Criminal

Justice Act 2003, which is in these terms:

"Every court must in sentencing an offender have regard to any guidelines which are relevant to the offender's case."
Individual judges and indeed constitutions of this Court may, from time to time, disagree with some aspect of a guideline issued by the Sentencing Guidelines Council. But it is not open to them to disregard what the Council says. On the contrary, by virtue of the statutory duty imposed by section 172, they must have regard to guidelines so issued. It does not necessarily follow that in every case a guideline will be followed. As was pointed out by Lord Woolf CJ in Last & Ors [2005] EWCA Crim 106, paragraph 16:
"The fact that 'every Court must have regard to the relevant guideline' does not mean that it has to be followed."

Judge LJ, similarly in R v Peters & Ors [2005] EWCA Crim 605, at paragraph 3, said this:

"Guidelines, whether resulting from cases decided in this Court, or produced by the Sentencing Guidelines Council, are guidelines: no more no less."
It follows that, had the guidelines to which we have so far referred been brought to the attention of the learned judge, he may well not have made the observations which he did with regard to prevalence. If, in any particular town or city, there are statistics available to the Crown Prosecution Service, the Local Criminal Justice Board or otherwise, which demonstrate a prevalence greater than that nationally of a particular type of offence, those statistics can and should be made available to the Court.[16]In the absence of such statistics or other evidence identifying particular prevalence in a particular area, a judge, however experienced in a particular area, should not make the assumption that prevalence of that offence is more marked in the area with which he is familiar than it is nationally. Such an assumption will be particularly hazardous when, as in the present case, there is either a guideline decision of this Court, or a guideline issued by the Sentencing Guidelines Council, or specific guidance in relation to particular offences, intended to be of national application. Lobban, as the Lord Chief Justice pointed out, was not, strictly speaking, a guideline case, but it did afford guidance which was intended to be of general application. It follows that the learned judge was not entitled to impose, for reasons of local deterrence, a sentence higher than would otherwise be appropriate for that particular kind of offence by reference to national guidance.[17]Mr Hallowes' last submission is in relation to the discount accorded for the plea of guilty which the learned judge indicated would be less than it otherwise might have been, because the appellant was caught red-handed. In its Guideline, with regard to Reduction in Sentence for the Guilty Plea, issued in December 2004, the Sentencing Guidelines Council said this, by reference to an offender caught red-handed at paragraph 5.2:
"Since the purpose of giving credit is to encourage those who are guilty to plead at the earliest opportunity, there is no reason why credit should be withheld or reduced on these grounds alone. The normal sliding scale should apply."
[18]It follows that, had the learned judge had his attention drawn to that Guideline, he is unlikely to have regarded the fact that the appellant was caught red-handed as justifying a reduction in the discount for pleading guilty which might otherwise have been appropriate. Greenland paragraph 8, to which the judge referred and which we have earlier quoted, should no longer be regarded as authoritative.[19]It is apparent from what we have already said that none of the three Guidelines to which we are referred was present to the mind of the judge or the advocates appearing for prosecution or defence in this case. We have, in this Court, sympathy with the judge and the advocates, having regard to the plethora of ways in which the principles of criminal justice have been changed by Parliament by the Criminal Justice Act 2003, the terms of which were brought into force more prematurely than had been anticipated (see Bradley [2005] EWCA Crim 20).[20]One final observation is appropriate so far as the level of discount is concerned. The maximum discount for pleading guilty at the earliest reasonable opportunity is generally one third. It is, however, to be borne in mind that, when assessing culpability, remorse is a separate matter from pleading guilty. The Sentencing Guidelines Council Guideline on Seriousness provides, in paragraph 1.27, as follows:
"The issue of remorse should be taken into account at this point along with other mitigating features such as admissions to the police in interview."
The context of that observation is personal mitigation as a mitigating factor indicating significantly lower culpability.[21]So far as this appellant is concerned, save for the 28 days which he had spent in custody and which would not have counted towards his sentence without a specific direction by the trial judge, we are unpersuaded, despite Mr Hallowes's attractive submissions, that there was anything excessive or wrong in principle in the sentence of 2 years for this offence of robbery, taking into consideration all the circumstances of the case including the two other offences which the judge had to take into consideration. Accordingly, this appeal is allowed solely to the extent that the sentence will be one of 2 years less 28 days. (On 13th July, counsel not attending)[22]THE VICE PRESIDENT: At the end of the Court's judgment on Monday 11th July it was ordered that the appellant's appeal against sentence be allowed and his sentence of 2 years detention in a young offender institution be reduced by the 28 days he had spent in custody. It seems to the Court, on reflection, that this was incorrect, first, because 28 days served is the equivalent of a 56 day sentence, and secondly, more fundamentally, because this Court upheld the sentence of 2 years as being appropriate.[23]Accordingly, both counsel having been notified yesterday, the case has been re-listed for mention today, with an indication to counsel that they need not attend unless they wish to argue to the contrary of what we now propose. Neither counsel has appeared. Accordingly, we amend our order of 11th July by dismissing the appeal against the 2 year sentence and directing under section 240(3) of the Criminal Justice Act 2003 that 28 days on remand in custody is to count as time served as part of the sentence. The Crown Court judge said that he wanted time served to count, but he had no information as to the number of days which had been served.[24]In future, if, in an appropriate case, the judge fails to give a direction as required by section 240(3), counsel for the prosecution, or the defence, should raise the matter with the Crown Court judge within 28 days, seeking a variation of the order under section 155 of the Powers of Criminal Courts (Sentencing) Act 2000. Even outside the 28 day period, it may be arguable that the Crown Court has such jurisdiction (see Saville 70 Cr App R 204) though, having heard no argument on the point, we express no concluded view. Non-direction, under section 240(3) will not, usually, be a ground of appeal to this Court, where the sentence passed in the Crown Court is otherwise appropriate.[25]This case shows the importance of Crown Court judges being provided with accurate information as to time served, in order to enable them to carry out their obligation with regard to a direction under section 240(3).

Cited in 4 later judgments