Sutton, R. v [2006] EWCA Crim 1487

Case No 200602552 A1[2006] EWCA Crim 1487
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Monday, 12th June 2006
Strand
London, WC2
B E F O R E:
MR JUSTICE BURTON
SIR RICHARD CURTIS
Between
R E G I N ACrown-v-
Between
SHAUN SUTTON
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 J DUNNING appeared for APPELLANT
J U D G M E N T
[1]MR JUSTICE BURTON: This has been the hearing of an appeal by Mr Shaun Sutton against the imposition by HHJ Hoffman, on 17th May 2006 at the Crown Court at York, of a sentence of 28 days' imprisonment in respect of the appellant's plea of guilty to failure to surrender to bail at a plea and case management direction on 14th May 2006. This is an appeal which is made without the need for leave to appeal against sentence, because there is an automatic right of appeal against a Bail Act defence under section 13 of the Administration of Justice Act 1960. It perhaps indicates that, whereas, of course, in what one might call ordinary bail cases that may be appropriate, particularly given the speed with which such matters require very often to be considered, it may perhaps be inappropriate for there to be no consideration of the merit of an appeal on paper in an appeal such as this, where Mr Dunning, counsel for the appellant, who has put forward the case with attractiveness, accepts that there is, at the end of the day, no matter of principle involved in this case and that a custodial sentence can hardly have been resisted but suggests that it should have been less than the 28 day period that was imposed. The only significance to this is that, if his client is convicted on serious matters which remain outstanding, he will have credit for a lesser period, assuming that the learned sentencing judge were minded to give credit, than he would otherwise have had by virtue of awaiting trial on remand because, not surprisingly in the light of his failure to surrender to bail, his bail was withdrawn.[2]The indictment which was awaiting a Plea and Case Management Hearing on 12th May, was for supplying a class A drug and the applicant failed to attend and a bench warrant was issued for his arrest. Counsel has told us, as it appears the learned judge was told, that he realised that he was supposed to have attended at court in the afternoon of the Friday, when he should have been at York Crown Court, and he attended his solicitors' office locally in Selby. No steps were taken on that afternoon to contact the Crown Court and it appears that he attended the York Magistrates' Courts on 15th May, a Monday, on a totally unrelated matter, when he was granted bail. It was on Tuesday, 6th June that, on advice from his solicitors, he surrendered at a police station and was taken to the Crown Court for a bench warrant to be executed, and he was dealt with on the following day, on 17th May, when the learned judge imposed the sentence. He indicated that it was not the worst bail offence because, ultimately, he had surrendered himself to the police. He said as follows:
"I cannot understand for the life of me why you were not here on Friday. You must be very unreliable with dates, especially when you were at your solicitors that day and they would have given you a nudge, surely to goodness, and then for some reason you appeared at the Magistrates on Monday and the Magistrates let you out..."
[3]What the learned judge did not specifically mention, but which plainly must have been in the judge's mind, and is certainly before us, is that this was not the first failure by the appellant to surrender to custody in compliance with bail obligations. He had failed to surrender to custody on two previous occasions, once in August 2001 at the York Crown Court, and he was eventually sentenced to 18 months' imprisonment for burglary and theft and there was no separate penalty in respect of his failure to surrender to custody. On 29th April 2003, he again failed to surrender to custody and his sentence was initially deferred and then dealt with, simultaneously with his consequent sentence to a community rehabilitation order in respect of possession of class A drugs and of theft and shoplifting, by the imposition of that same order, which effectively amounted to no separate penalty.[4]This was therefore a man, disorganised or not, who had a previous record and who had been dealt with mercifully on two previous occasions in respect of his failure to surrender. What is said on his behalf is that this was not an actual trial for which he came to surrender, as opposed to a Plea and Case Management Hearing, and that there ought to have been what counsel called a notional sentence, rather than one of 28 days.[5]We can see no substance in those arguments. Of course, any failure to comply with a court order is serious. It may well be that in this case, although there was some inconvenience and cost, the matter was not so serious as if he had absconded from a trial which would have put witnesses to additional inconvenience. But, where as here this is a man who knows perfectly well what his obligations are in relation to court appearances, and who had breached them and been dealt with mercifully on two previous occasions, and who did not pretend to have any other explanation for his failure than the disorganisation which had led to problems on two previous occasions, it appears to us entirely right that the judge should mark his third breach by a substantive period of custody. Although not the worst of bail offences, as the learned judge said, this was plainly a matter which required to be marked with a material sentence of custody, and we can see no basis on which it could be said that 28 days is manifestly excessive, and therefore this appeal is dismissed.