Barber, R. v [2006] EWCA Crim 162

Case No 2006/00036/A0[2006] EWCA Crim 162
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT
AT MIDDLESEX GUILDHALL
HIS HONOUR JUDGE LAWRENCE
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday, 17 th February 2006
Before
LORD JUSTICE PILLMRS JUSTICE SWIFT DBEHIS HONOUR JUDGE RADFORD QC
Between
THE QUEENRESPONDENTDEAN BADREDAN BARBERAppellant
(Transcript of the Handed Down Judgment ofSmith Bernal WordWave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR ADAM CROOK for Appellant
Judgment
[1]On 9th November 2005, at the Crown Court at Middlesex Guildhall, the appellant pleaded guilty to one count of assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861, and one count of criminal damage. He had originally been charged with an offence of robbery to which he had pleaded not guilty. On the first day of the trial, the indictment was amended to add counts of assault occasioning actual bodily harm and criminal damage. The appellant was then re-arraigned and pleaded guilty to those counts. The prosecution offered no evidence on the robbery count and a verdict of not guilty was entered on that count. The appellant had made admissions to the police about assault and criminal damage and would have pleased guilty to those offences in the Magistrates’ Court. Effectively, therefore, he pleaded guilty at the first opportunity.[2]The case was adjourned for sentence and, on 7th December 2005, the appellant was sentenced by His Honour Judge Lawrence to six months’ imprisonment on the assault and three months’ imprisonment consecutive on the criminal damage. At the time of sentence, it was agreed by counsel for the prosecution and for the defence that the appellant had served a period of 161 days in custody on remand in connection with the robbery. It is the manner in which that period was dealt with by the sentencing judge that is the subject of this appeal.[3]The appellant applied to the single judge for leave to appeal against his sentence and for bail. The single judge granted leave to appeal but refused bail. He directed that the appeal should be expedited.[4]The facts are these. At about 5.00pm on 12th May 2005, the appellant’s mother, Mrs Fatima Zouyed, decided to go and see her mother. As she went down to the ground floor of the block of flats where she lived, she saw the appellant waiting. The appellant said that he wanted to go up to his mother’s flat to collect some clothes. Mrs Zouyed said that she was on the way out. The appellant insisted that she had to go upstairs with him because he wanted his clothes. Mrs Zouyed followed the appellant to the flat because she was afraid of him and scared about what he might do if she refused him.[5]Once upstairs, the appellant asked his mother for money. She handed over £55 in cash. It was her benefit money and she was left without any source of income until her next benefit payment was due eleven days later. The appellant then lifted his right foot and kicked his mother hard on the right thigh. The force of the blow was sufficient to make his mother stagger to the wall and fall down. Because she was scared and it was evident that the appellant had completely lost his temper, she left the flat in a distressed state, crying. The kick resulted in a bruise to Mrs Zouyed’s thigh which measured seven centimetres by four and a half centimetres. This incident is the subject of the count of assault occasioning actual bodily harm.[6]Mrs Zouyed returned home the next day. On entering the premises, she found that the intercom telephone inside her flat had been torn off the wall. This incident is the basis of the criminal damage count.[7]Later that same day, Mrs Zouyed’s daughter reported the assault to officers at the Paddington police station on behalf of Mrs Zouyed, who does not speak English. On the same day, the appellant attended the police station in relation to another matter and was arrested. When interviewed by the police, the appellant said that he had argued with his mother about him having a set of her keys to her flat. He had got into a rage and lashed out, accidentally kicking her on the leg. He said that he had been angry at himself for what he had done and had smashed the intercom with his fist before leaving the flat.[8]The appellant was born on 2nd September 1984. He is now 21 years old. He has thirteen previous Court appearances for a total of fifteen offences, including offences of theft, wounding, robbery, having a bladed article in a public place and, on four occasions, possession of controlled drugs. Recently, his criminal behaviour has taken the form of committing offences against family members. In October 2002, he was convicted of an offence of criminal damage to property belonging to his mother. In October 2004, he was convicted of two offences of pursuing a course of conduct amounting to harassment of a former partner. On that occasion, the Magistrates imposed community rehabilitation orders and made restraining orders, each to last for 24 months. In April 2005, for breach of the restraining orders, he was sentenced to a fine of £100 or one day’s imprisonment. The community rehabilitation orders were left in place. On 15th May 2005, the appellant was sentenced to three months’ imprisonment for an offence of common assault on his mother. That assault had been committed early in 2005 and the appellant was on bail in respect of that offence at the time he committed the offences with which we are concerned. It was a condition of his bail that he did not go within 100 metres of his mother’s address. It was no doubt as a result of his breach of that bail condition that he was remanded in custody after his arrest for robbery on 13th May 2005. His release date for the sentence imposed on 15th May 2005 was 28th June 2005. He was not released on that date but continued to be remanded in custody until he was sentenced on 7th December 2005.[9]The Pre-Sentence Report on the appellant noted that, although he had pleaded guilty to the offences, he blamed his mother for his actions. He claimed that she had taunted him about his destructive lifestyle and that, as a result, he had lost his temper and lashed out at her. The reference to his destructive lifestyle was in connection with his addiction to crack cocaine. He acknowledged that he had on occasions been violent to his former partner and mother when under the influence of crack cocaine. However, he claimed to have stopped taking the drug in January 2005 and was confident that he needed no assistance in preventing a relapse. The author of the Report expressed the opinion that the appellant abused the love that his mother had for him. His risk of re-offending was assessed as high, with a consequent high risk of harm to his mother and to future partners. Probation intervention had not been effective in the past. A period in custody was the most suitable option available.[10]There was also a Prison Report available to the sentencing Judge, which demonstrated that the appellant had participated in sessions dealing with violence reduction strategy and family responsibilities and had accessed the services of CARAT, an advice service for drug users.[11]In sentencing the appellant, the judge said that he did not accept the appellant’s allegation, as set out in the Pre-Sentence Report, that his mother had taunted him. He observed that the offence of assault was plainly so serious that it merited a sentence of imprisonment. He then said:
“So far as the assault (sic), bearing in mind your pleas of guilty and the period of 161 days that you have since spent in custody, there will be a sentence of six months’ imprisonment. For the criminal damage a further sentence of three months’ imprisonment, to be served consecutively; a total of nine months’ imprisonment.”
[12]We were told that, at the time the appellant was sentenced, both prosecuting and defence counsel believed that the judge had intended that the period of 161 days previously spent in custody should be counted as time served as part of the sentence and that the appellant would therefore be released immediately. Defence counsel informed the appellant that this was the case. Later in the day, however, it became clear that the appellant would not be released. When enquiries were made of the judge through the Court clerk, he confirmed that it had been his intention that the time spent in custody should not count as part of the sentence to be served by the appellant.[13]In his written and oral submissions to this Court, Mr Crook submitted that the learned judge’s sentence was wrong in law. He submitted that the judge should, in accordance with section 240(3) of the Criminal Justice Act 2003, have directed that the 161 days spent in custody on remand should count as time served by the appellant as part of his sentence. Alternatively, if he had considered that such a direction was inappropriate, he should have stated his reasons in accordance with section 240(6)(b) of the Act.[14]Mr Crook further submits that the judge failed to comply with section 174 of the Criminal Justice Act 2003, as he did not clearly state what the effect of the sentence would be. He also points out that, because he was unaware of the judge’s intention as regards the time spent in custody on remand, he had no opportunity to make representations as to why that time should count as part of the appellant’s sentence. He says that, as a result of the confusion that occurred, the appellant has a sense of grievance which he describes as justifiable in the circumstances.[15]Section 240 introduced new provisions relating to the way in which periods of remand in custody are treated by the courts. Section 240 applies where:
“(1) (a) a court sentences an offender to imprisonment for a term in respect of an offence committed after the commencement of this section, and (b) the offender has been remanded in custody … in connection with the offence or a related offence, that is to say, any other offence the charge for which was founded on the same facts or evidence.”
[16]The section applies to offences committed on or after 4th April 2005. It is to be noted that, in the present case, the robbery with which the appellant was initially indicted would be a ‘related offence’ within the meaning of section 240 (1) (b) since it was founded on the same facts or evidence as the offence of assault of which he was eventually convicted.[17]Under the provisions of section 67 of the Criminal Justice Act 1967, time spent on remand could only count as part of the sentence if the offender was not in custody for any other reason. Section 67 has now been repealed save in respect of offences committed before 4th April 2005. Section 240 (2) sets out the new position. It provides: “It is immaterial … whether the offender –(a) has also been remanded in custody in connection with other offences; or(b) has also been detained in connection with other matters.[18]Thus, the section applies even where the offender has been in custody at the same time for other matters.[19]Section 240 (3) provides that, in a case where section 240 applies:
“Subject to subsection (4), the court must direct that the number of days for which the offender was remanded in custody in connection with the offence or a related offence is to count as time served by him as part of the sentence. ”
[20]In most cases, the court may be expected to give a direction under section 240 (3) that the whole of the period of remand will count as time served as part of the sentence. The court will then impose a sentence of imprisonment which reflects the seriousness of the offence(s) for which the offender has been convicted. “ By section 240 (5):
“Where the court gives a direction under subsection (3), it shall state in open court-- (a) the number of days for which the offender was remanded in custody, and (b) the number of days in relation to which the direction is given.”
[21]The purpose of this provision is to ensure that everyone with an interest in the offender’s case – in particular, the offender himself and the prison authorities – is made aware of the precise period for which the offender is to be detained in custody.[22]Section 240 (4) deals with the circumstances in which a direction pursuant to section 240 (3) need not be given. The relevant part of the section provides: “(4) Subsection (3) does not apply if and to the extent that--(a) rules made by the Secretary of State so provide in the case of – (i) a remand in custody which is wholly or partly concurrent with a sentence of imprisonment, or (ii) sentences of imprisonment for consecutive terms or for terms which are wholly or partly concurrent, or(b) it is in the opinion of the court just in all the circumstances not to give a direction under that subsection. (i) a remand in custody which is wholly or partly concurrent with a sentence of imprisonment, or (ii) sentences of imprisonment for consecutive terms or for terms which are wholly or partly concurrent, or[23]Paragraph (a) is considered later in this judgment. As to paragraph (b), there may be circumstances in which a court may consider that it is inappropriate that the period spent on remand (or a portion of it) should count as part of an offender’s sentence. In that event, it is open to the court not to make a direction or to make a limited direction, i.e. a direction that fewer than the total number of days spent on remand should count as part of the sentence. Section 240 (6) obliges a judge who decides to exercise his discretion in this way to announce the fact in open court: “Where the court does not give a direction under subsection (3), or gives such a direction in relation to a number of days less than that for which the offender was remanded in custody, it shall state in open court-- (a)that its decision is in accordance with rules made under paragraph (a) of subsection (4), or (b)that it is of the opinion mentioned in paragraph (b) of that subsection and what the circumstances are.[24]Section 240 imposed new obligations on judges when passing sentence. They are now required to make a specific direction that the number of days which the offender has spent in custody on remand in connection with the offence or a related offence should count as part of the sentence being imposed. If a judge decides that it is just in all the circumstances not to direct that the period spent in custody on remand (or part of it) should count as part of the sentence, he is required to say so and to identify the circumstances which have led him to that opinion.[25]In the present case, the judge did not make a direction under section 240 (3). It appears that he did not intend to do so. However, he did not state in clear terms that he did not consider it just in all the circumstances to make such a direction. It is true that, with hindsight, the formula of words he used, namely that he was ‘bearing in mind’ the period which the appellant had spent in custody, could be construed to mean that he was imposing the sentence of six months’ imprisonment for the assault in addition to that period. However, his words did not fulfil the requirements of section 240 (6) and, in particular, he did not identify the circumstances that had led to his conclusion that it was just to impose a sentence which took no account of the period spent in custody. Moreover, his words were capable of being misinterpreted and, indeed, were misunderstood by both counsel in the case.[26]The present case gives us an opportunity to remind judges of their obligations under section 240, to which attention was drawn previously by this Court in the case of Regina v Oosthuizen [2005] EWCA Crim 1978. Judges should state the information required under the section clearly and unambiguously so that everyone present can readily understand it. If a judge intends that the period spent in custody on remand should count as part of the sentence, he should state that fact, together with the information required under section 240 (5), in open court. If a judge decides not to give a direction under section 240 (3) or to give a limited direction, he should say so and he should give reasons for his decision. However, obligations in connection with section 240 do not apply to judges alone. It is the duty of counsel, both prosecution and defence, to be alert to the requirements of the section, to bring the provisions of the section to the attention of the judge when it appears that he may have overlooked them and to seek immediate clarification of any ambiguities that may arise in the course of the judge’s sentencing remarks. Prosecuting counsel should be particularly vigilant in this regard.[27]We would also draw attention to the statement by

Lord Justice Rose, Vice President, in Oosthuizen:

“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 section 240 (3).”
[28]Section 240 does not contain an explicit requirement that a judge who is considering departing from the usual practice of making a direction under section 240 (3) should state in advance that he is considering doing so. Nevertheless, in our judgment, it is plainly good practice for a judge to inform defence counsel if he is considering making no direction and thus to give counsel the opportunity of addressing him on that issue and of seeking to persuade him that the circumstances are not such that it would be just for the period spent in custody on remand not to count as part of the sentence to be served. If this is not done, mitigation may proceed, as appears to have happened in the present case, with defence counsel and the judge at cross purposes as to the effect of the period spent on remand. If there is any reason to suppose that a judge might be considering not making a direction under section 240 (3), or making a limited direction, defence counsel should seek clarification so as to be sure that he is able to address the issue fully.[29]We have already referred to the provision in section 240 (2) that, for the purposes of section 240 (1), it is immaterial that the offender, while in custody on remand for the offence(s) under consideration, has been in custody at the same time for other matters. However, section 240 (4) (a)(i) and (ii) provide that section 240(3) does not apply if and to such extent that rules made by the Secretary of State so provide. On 23rd July 2005, the Remand in Custody (Effect of Concurrent and Consecutive Sentences of Imprisonment) Rules 2005 (the 2005 Rules) came into force. Rule 2 provides: “Section 240 (3) of the 2003 Act does not apply in relation to a day for which an offender was remanded in custody –(a) if on that day he was serving a sentence of imprisonment (and it was not a day on which he was on licence under Chapter 6 of Part 12 of the 2003 Act or Part 2 of the Criminal Justice Act 1991); or(b) where the term of imprisonment referred to in subsection (1) of that section is ordered to be served consecutively on another term of imprisonment, if the length of that other term falls to be reduced by the same day by virtue of section 67 of the Criminal Justice Act 1967.[30]Accordingly, no direction that time spent in custody on remand is to count as part of the sentence should be given when, for the whole or part of that time, the offender has been serving a sentence of imprisonment for another offence.[31]Counsel at the sentencing hearing had calculated the period for which the appellant had been remanded in custody in connection with the robbery at 161 days. Thisrepresented the period from 28th June (the date when he would have been released on licence from the sentence imposed on 15th May 2005) to 7th December (the date of sentence). That approach accorded with the provisions of Rule 2 (a) of the 2005 Rules provided that the Rule applies only to the custodial part of the sentence of imprisonment, as it appears to us it should, although in the absence of argument on the point we do not decide it. We would observe, however, that it is important that counsel, when calculating the period spent in custody on remand for the relevant offence(s), paycareful regard to the terms of the section and the 2005 Rules. The lack of availability of accurate information about time spent in custody on remand has already caused many problems and it is vital that counsel are in a position to give assistance to the court in relation to this important matter.[32]The relevant part of section 174 of the Criminal

Justice Act 2003 provides:

“1) … any court passing sentence on an offender--” (a) must state in open court, in ordinary language and in general terms, its reasons for deciding on the sentence passed, and (b) must explain to the offender in ordinary language— (i) the effect of the sentence” (a) must state in open court, in ordinary language and in general terms, its reasons for deciding on the sentence passed, and (i) the effect of the sentence”
[33]The remainder of section 174(1) andSection 174(2) set out further matters, not relevant to the present case.[34]Although section 174 imposed for the first time a statutory requirement that judges should state in open court the reasons for and the effect of their sentences, the requirement to explain the practical effects of the sentence passed was not new. It had been clearly set out in the Practice Direction (Criminal Proceedings: Consolidation) [2002] 1 WLR 2870. The Practice Direction recognised that the complex statutory provisions governing custodial sentences were not widely understood by the general public. It emphasised the need, when a sentence is passed, for its practical effects to be clearly understood by the defendant, any victim and any member of the public who is present in court or reads a full report of the proceedings. In order to achieve this, judges were directed that, whenever they imposed a custodial sentence, they should explain clearly and accurately the effect of that sentence which should include provisions governing release and licence. Section 174 gave statutory effect to the requirement contained in the Practice Direction.[35]In the present case, the learned judge said nothing in his sentencing remarks about how long the appellant would serve in prison, or about the period for which he would be on licence thereafter. Had the judge done so, the fact that he had elected not to make a direction under section 240 (3) would have become clear and defence counsel would have had the opportunity, even at that late stage, of addressing him on that point. If the judge had remained of the view that it was just not to make a direction, the appellant and counsel would have clearly understood the position and the confusion that subsequently arose would not have occurred.[36]We would respectfully remind judges of the requirements of section 174 and of the importance of explaining in clear and unambiguous terms the effects of a custodial sentence, including the length of time that the offender will serve in custody and the length of time for which he will remain on licence after his release. Furthermore, we would remind counsel of their obligation to remind the court, where necessary, of the requirements of section 174.[37]We turn now to consider the sentence imposed by the judge. Mr Crook does not seek to suggest that the total sentence of nine months passed for the two offences was in itself excessive. However, he submits that, if the judge did indeed intend that the time spent in custody should not count towards the appellant’s sentence, then the sentence was manifestly excessive, representing as it did a total effective sentence of 20 months’ imprisonment. In particular, he says that insufficient account was taken of the totality of the offending against the appellant’s mother and of the fact that the appellant had served a previous sentence of three months’ imprisonment for the earlier assault upon her. He further submits that the judge failed to take into account the appellant’s guilty pleas for which, in the circumstances, he should have been given a discount of one third.[38]The appellant had committed a series of offences against his mother and a former partner and had been undeterred by the previous non-custodial sentences imposed upon him. The offences of assault and criminal damage for which he fell to be sentenced were committed while on bail for an offence of assault on the same victim and in breach of a bail condition designed to protect her. They were also committed while the appellant was the subject of community rehabilitation orders imposed in connection with offences against his former partner. It would have been open to the sentencing judge to revoke those orders and to sentence the appellant for the offences in respect of which the orders had been imposed. In the event, he did not do so. Taking all these matters into account, we consider that the judge would have been fully entitled to impose a sentence for the assault occasioning actual bodily harm which was significantly in excess of the six months in fact imposed. It was probably with that in mind that the judge decided that the period spent in custody on remand should not count towards the sentence to be served. Nevertheless, we consider that an effective total sentence of 20 months, allowing full credit for the appellant’s guilty pleas, was manifestly excessive.[39]In all the circumstances, we have decided to allow the appellant’s appeal to the extent of ordering that the period spent in custody on remand in connection with the robbery should count as time served by the appellant as part of the sentence totalling nine months’ imprisonment imposed by the judge. The effect of that order is to permit the appellant’s immediate release.[40]That leaves the issue of licence. It has not been argued that the licence period should run other than from the date when the appellant was sentenced. Thus, he will remain on licence for a period equivalent to one-half of the sentence of nine months’ imprisonment imposed by the judge, i.e. four and a half months from 7th December 2005.[41]It was for these reasons and on that basis that the court allowed the appeal at the conclusion of the hearing.