Attorney General's Reference No. 76 OF 2005 [2005] EWCA Crim 2567

Case No 200503866/A2

[2005] EWCA Crim 2567

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Thursday, 6th October 2005

Strand

London, WC2

B E F O R E:

LORD JUSTICE LATHAM

MR JUSTICE NEWMAN

MR JUSTICE OPENSHAW

REFERENCE BY THE ATTORNEY GENERAL UNDER

S.36 CRIMINAL JUSTICE ACT 1988

ATTORNEY-GENERAL's REFERENCE NO 76 OF 2005

Computer Aided Transcript of the Stenograph Notes of

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MISS B CHEEMA appeared on behalf of the ATTORNEY GENERAL

MR A HOSSAIN appeared on behalf of the OFFENDER

J U D G M E N T

LORD JUSTICE LATHAM:

[1]This is an application by the Attorney General for leave to refer to this Court a sentence pursuant to section 36 of the Criminal Justice Act 1988 on the grounds that it is unduly lenient. The sentence was imposed on 20th June 2005 on the offender on an indictment containing counts of possession of a firearm or imitation firearm with intent to cause fear of violence contrary to section 16A of the Firearms Act 1968 and common assault.

[2]The sentence was a sentence of two years' imprisonment suspended for two years with a suspended sentence supervision order and an order for compensation to be made to the victim of the assault and £500 towards the costs of the prosecution.

[3]The offender is 22 years of age. On the occasion when the offences were committed he was with others in the early hours of the morning of 23rd October 2004 at a garage in Chichester town centre. He went to the garage shop. When he came out of the shop and got back into the car, in which he had arrived and which was then driven towards the exit from the garage, he then came across two men who were standing waiting for a taxi. That was Mr Wilkins and the victim of the assault, who was David Goldsmith.

[4]For some reason the offender took offence at what the two had been doing and in particular Mr Goldsmith. He called out to Mr Goldsmith "Come over here". He got out of the car and stood face to face with Mr Goldsmith, carrying what appeared to Mr Goldsmith to be an air rifle with a broken coloured butt about a foot and a half long. Mr Goldsmith was asked "What, you looking at me? You're looking at me the wrong way". Mr Goldsmith was repeatedly abused.

[5]Mr Goldsmith pleaded with the offender, saying that he did not want any trouble. He certainly was not looking at him. But this did not pacify the offender who put his face close to Mr Goldsmith and repeated the abuse. He then hit Mr Goldsmith with the butt of the gun to the forehead. He then turned his attention to Mr Wilkins. Mr Wilkins was undoubtedly frightened that the gun might be used. The incident then ended with the offender, and one other person from the car who had got out by then, returning to their car and being driven away.

[6]When the offender was ultimately arrested, he was interviewed and made no comment.

[7]When it came to the trial, he, in the first instance, pleaded not guilty. The trial proceeded to the end of the evidence of Mr Goldsmith. The jury was then discharged; and there was a retrial.

[8]Immediately before the retrial commenced counsel for the offender sought an indication from the judge as to the likely sentence. The record shows that the judge indicated that the bracket for sentencing would be between two years and four years' imprisonment, four years being the appropriate figure if he was convicted after a trial. The result was that the appellant pleaded guilty on a short basis of plea which was to the effect, firstly, that the gun was in fact an imitation gun and not a real gun, and, secondly, that one aspect of Mr Goldsmith's evidence, namely that the gun muzzle had been put in his mouth, was not accepted as an accurate account of what had happened.

[9]The matter was then adjourned for sentence. There were reports available to the judge. They indicated that the offender had a disturbed background. He has previous convictions. For an assault occasioning actual bodily harm he was made the subject of a community service order of 120 hours. For using racially threatening abusive or insulting words or behaviour he was sentenced on a separate occasion to a community punishment order. Then, finally, for using threatening, abusive, insulting words likely to cause harassment, alarm or distress he had been fined.

[10]The mitigation was essentially based on the fact that he was on that night considerably upset because a person whom he considered to be his stepfather had been charged with sexual offences in relation to children who were in his care as a foster parent. It was in those circumstances that he allowed himself to lose his self-control and behave as he did in the garage forecourt.

[11]Counsel acting on behalf of the offender at the trial submitted to the judge that the judge could consider a recommendation made in one of the pre-sentence reports that the court could consider a suspended sentence. In making his speech in mitigation he sought to identify what exceptional circumstances there might be. He did not find it easy to do so. Indeed, in a revealing passage in the transcript the following appears:

"Your Honour may think I am struggling to put my finger on a particular exceptional circumstance. Your Honour knows the ... The Judge: Stop struggling. Counsel: Your Honour, thank you."

It became apparent that the judge was indeed minded at that point to impose a suspended sentence.

[12]In his sentencing remarks the judge dealt, firstly, with the credit that he was bound to give for the plea, albeit at a late stage, and accepted that the offence was so serious that only custody could be justified. He went on:

"However, in the light of the mitigation, particularly your background and the extremely good reports I have on you from your character reference, I am going to suspend that for two years."

[13]On behalf of the Attorney General Miss Cheema submits that the judge simply did not have any material upon which he could properly come to the conclusion that there were exceptional circumstances and those that he identified were simply not capable of amounting to exceptional circumstances.

[14]We accept that submission. There was no basis upon which this sentence could have been suspended on the material before the judge. Accordingly, the sentence that he imposed must be considered unduly lenient, and the Attorney General is given leave to refer it. The minimum sentence that the judge could have imposed, as he himself had accepted and indicated prior to the plea being offered, was one of two years' imprisonment. We consider that that is the right sentence for us to impose today on this reference. Accordingly, the sentence will remain one of two years' imprisonment, but it will be an effective sentence of two years' imprisonment and clearly the supervision order which was dependent on that will go too.

[15]The consequence is that he must now surrender. Are there any submissions, Mr Hossain, in that regard?

[16]MR HOSSAIN: My Lord, no. He knows of the hearing. He was advised to attend. I have provided your clerk with his address, but he was aware of the hearing.

LORD JUSTICE LATHAM: What is his address? Is he still in the Chichester area?

[18]MR HOSSAIN: Yes. It is flat 6 --

LORD JUSTICE LATHAM: Then it seems to me that the appropriate order that we should make is that he should surrender himself within the next 24 hours to the police station in Chichester.

[20]MISS CHEEMA: My Lord, it is the Chichester police station, wherever the central police station is. I am afraid I don't know where the central police station is. But within 24 hours, or by 12 noon tomorrow, or whatever.

LORD JUSTICE LATHAM: It is probably less complicated to say 12 o'clock tomorrow, otherwise we might get into confusion about what particular time we take the 24 hours from.

[22]MR HOSSAIN: My Lord, does your Lordship take any action in relation to the compensation ordered by His Honour Judge Thorpe which your Honour may have seen has not been paid?

LORD JUSTICE LATHAM: Have you made any submissions in relation to that?

[24]MR HOSSAIN: Given that it is now an effective sentence and no money has been paid towards the fine as it stands, it would be my respectful submission that that is removed and it is two years that remains solely not in conjunction with it. (Pause While The Bench Conferred)

LORD JUSTICE LATHAM: Miss Cheema, have you any submissions in relation to costs? We can say that it seems to us that it would not be appropriate for there to be a compensation order.

[26]MISS CHEEMA: My Lord, I doubt, in those circumstances, that the sentencing judge would have made an order to costs if passing an immediate sentence of custody.

LORD JUSTICE LATHAM: That seems to me to be a sensible conclusion to reach. As a result we will simply replace the sentence that was imposed by the judge with a sentence of two years' imprisonment.

[28]MISS CHEEMA: My Lord.

LORD JUSTICE LATHAM: And his sentence commences from the moment that he surrenders to the police.

[30]MISS CHEEMA: My Lord, I also want to make this clear. The sentencing judge at the lower court did not distribute the sentence between the two counts in any way. Obviously the count of common assault would carry a lower maximum sentence.

LORD JUSTICE LATHAM: I think the right thing to do is to order it to be two years' imprisonment in relation to the first count and six months' imprisonment in relation to the common assault, and that will be a lawful sentence, both to be served concurrently.

[32]MR HOSSAIN: Yes.

LORD JUSTICE LATHAM: All right.

[34]MR HOSSAIN: Perhaps I was under the misapprehension that the count of common assault was left to lie on the file, but perhaps I am wrong in that.

LORD JUSTICE LATHAM: Let us have a look. (Pause). You are absolutely correct, Mr Hossain, it was ordered to lie on the file. So the only sentence is two years' imprisonment in relation to the possession of the firearm offence. So we don't need to complicate the issue at all.

[36]MISS CHEEMA: I am sorry to have troubled the Court.