Green, R. v [2006] EWCA Crim 1632

Case No 200600722 A3[2006] EWCA Crim 1632
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 15th June 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE MOORE-BICK
MR JUSTICE BURTON
SIR RICHARD CURTIS
Between
R E G I N ACrown-v-
Between
JOHN DANIEL GREEN
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 A WATKINS appeared for APPLICANT
J U D G M E N TLORD JUSTICE MOORE-BICK:
[1]On 2nd September 2005 in the Crown Court at Manchester before HHJ Ensor the applicant pleaded guilty to an offence of robbery which was committed on 29th March 2005. That was count 1 on indictment No.T20050568. On 27th October 2005 before the same court he pleaded guilty to a further count of robbery which was committed on 10th April 2005. That was count 1 on indictment No.T20050949. He was sentenced to an extended sentence of four years in respect of the second robbery, comprising a custodial term of two years' detention and an extension period, that is an extended period of licence, of two years. The judge ordered that any time spent on remand should count towards the applicant's sentence. No separate penalty was imposed in respect of the first robbery. A further offence of robbery, committed on 21st March 2005, was also taken into consideration.[2]His co-accused in relation to the robbery committed on 10th April 2005 pleaded guilty and was sentenced to a Detention and Training Order for six months.[3]The applicant's application for leave to appeal against sentence has been referred to the full court by the Registrar.[4]It is convenient to describe briefly the three offences which the judge had to take into account in the order in which they were committed. The first was the robbery which the applicant asked to have taken into consideration. It involved his participation in the robbery of a Parcel Force delivery van on 21st March 2005 during which a knife was used. Unfortunately, we have no further information about it.[5]The second involved a robbery of a newsagent's shop on 29th March 2005. The complainant, Mr Taylor, was working in the shop in Blackley when, at about 4 o'clock in the afternoon, four men, including the applicant, entered the premises. They were wearing balaclavas and one of them was carrying a house brick which he threw at the complainant, narrowly missing him and smashing some glass panels behind him. The men were carrying knives and shouted in unison, "Give us the money". The complainant then tried to protect himself with a chair. At that stage the applicant moved his balaclava up and jumped over the counter. The complainant recognised him as a regular customer. The applicant then took a cigar tin containing £160 in cash and all the men left the shop.[6]The third offence involved the robbery of two pizza delivery men on 10th April 2005. Mr Majidi and Mr Jowad were both working as pizza delivery men when they received an order to deliver some food to 23 Andrew Road. On arrival Mr Majidi got out of the car with the food and on reaching a garden near to the delivery address he was set upon by six or seven men, including the applicant and the co-accused, carrying knives. He was ordered to give them the food and to surrender his money. A knife was swung at him, which scratched his face, and the food was taken from him by force. Mr Majidi then ran away but he was chased by members of the group. At the same time Mr Jowad, who was sitting in the car, was approached by another member of the group who threatened to chop his hand off. The car keys were taken from him and while one of the men was searching the boot of the car Mr Jowad ran away. Mr Majidi had managed to flag down a passing police car and as a result the gang were subsequently arrested near the scene.[7]The judge had two defendants to sentence in respect of the second robbery and, no doubt for that reason, he concentrated on that offence. In his sentencing remarks he referred to the fact that the applicant had a previous conviction for robbery (that being the robbery of the newsagents committed on 29th March 2005 to which he had pleaded guilty on 2nd September) and said that he was therefore required to consider whether, in the light of the commission of the later offence in respect of which he was passing sentence, there was a significant risk to the public of serious personal injury resulting from the commission of further offences by the applicant. He concluded that, because a knife had been produced on this occasion, there was such a risk and he held that he was therefore required to impose an extended sentence of detention in respect of that offence under section 228 of the Criminal Justice Act 2003. The judge then imposed an extended sentence of four years consisting of two years' custody and two years' extended licence period. The judge said that, in imposing that sentence, he took account of the fact that the applicant had already been in custody for seven months awaiting trial and sentence.[8]On 29th November 2005 the matter came back before the judge at the request of the prison service for clarification of his order. On that occasion counsel suggested that on the previous occasion the judge had passed on the applicant not an extended sentence of detention but a two-year Detention and Training Order with the licence period extended by two years. The judge accepted that that was what he had done and that his understanding of the effect of his order was that the applicant would serve about one half of the two-year period in custody and that the licence period following his release would be extended by two years. The judge also confirmed that, since time spent in custody on remand cannot be taken into account in the case of a Detention and Training Order, he had indeed taken it into account when deciding on the period of that order; otherwise, he said, he might have given the applicant a longer sentence.[9]The judge was right in his understanding that time spent in custody on remand did not count against a Detention and Training Order and he was also right in his recollection when he said that he had taken that into account when deciding upon the length of the sentence. He was wrong, however, if he thought that he could have imposed a longer period of detention in that form since the maximum length of a Detention and Training Order is two years.[10]It was then drawn to the judge's attention that there is no power to impose an extended licence period when a person is sentenced to a Detention and Training Order, but that it is possible to do so if the court passes a sentence of detention under Section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. Moreover, in the case of a sentence under section 91 time spent in custody on remand is counted in accordance with the relevant statutory provisions.[11]After some discussion the judge indicated he was minded to amend his original order by substituting for it a sentence of two years' detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 with the licence period extended by two years. The judge then raised the question whether the applicant would get credit for "the time already served". It is not clear whether by that he meant time served under the previous order or time spent in custody on remand, but in view of the context in which the question was asked we think it more likely that he meant the latter. He was told by counsel for the prosecution that it would, so it seems that at that stage that the judge understood that the whole period of seven months which the applicant had spent in custody on remand would count against his sentence.[12]Later, the following exchange occurred:
"JUDGE ENSOR: And I direct that all relevant days spent in custody on remand will count towards the sentence. MR FRYMAN: [counsel for the Crown] Yes, it depends what was in your Honour's mind. If your Honour intended that he in fact spends 12 months in custody, then a two year sentence under section 91 would not be sufficient. JUDGE ENSOR: No. Well, I think in view of the way things have gone, I do not want to prejudice the situation. MR FRYMAN: No. JUDGE ENSOR: And I shall allow such time as he has spent. MR FRYMAN: Yes. So it will be a two year sentence under section 91. JUDGE ENSOR: Yes. MR FRYMAN: Plus a two year extended licence under section 228. JUDGE ENSOR: That is right."
[13]In the light of this exchange we think that the judge must have changed his mind at some point during the second hearing and that, whatever his previous intention may have been, he had decided by this time that the whole of the time spent in custody on remand should count. He was clearly under the impression, to which we think it fair to say that counsel contributed, that the applicant would automatically obtain credit for the whole of the period in custody on remand. However, that was not the case for the reasons which we shall explain.[14]Chapter 5 of the Criminal Justice Act 2003, which includes section 240, came into effect on 4th April 2005. It follows that the first and second robberies were committed before those sections had come into effect and the third afterwards. By virtue of section 240, where the court sentences an offender to a term of imprisonment or detention in respect of an offence committed after the commencement of that section and the defendant has been remanded in custody in connection with that offence or a related offence, it must direct that the number of days for which the defendant is remanded in custody in connection with that offence or a related offence is counted as time served by him as part of the sentence unless it considers it just in all the circumstances not to give such a direction.[15]In the present case, although the judge expressed himself in terms that the applicant should be credited for all time spent on remand, he did not make an order to that effect under section 240 and, what is more, he appears to have overlooked two important matters. The first is that most of the time that this applicant had spent in custody on remand was in connection with the second robbery (in respect of which the judge imposed no separate penalty) not the third. The applicant was in custody on remand in connection with the second robbery from 10th April to 25th October 2005 and on remand in connection with the third robbery only from 25th October to 17th November. The second point which the judge appears to have overlooked is that the three robberies in question took place on different occasions and, apart from the applicant's involvement, were entirely unrelated. The second robbery was not, therefore, a "related offence" within the meaning of section 240(1) because the charge was not dependent on the same facts or evidence. As things currently stand, therefore, the applicant cannot be given credit against his sentence for the period he spent in custody from 10th April to 25th October 2005.[16]In view of the nature of this offence and the applicant's history of offending, we do not think that a sentence of two years' detention with an extended licence period could be challenged if it were not for what occurred when the matter was before the judge on 17th November 2005. Perhaps with that in mind the application for leave to appeal against sentence is made simply on the grounds that the order made by the judge on that occasion will not in fact give effect to his intention. On that ground alone Mr Watkins submitted that this court should interfere to correct the position.[17]Whatever might be said about the course of events in this case, we think that there is force in that submission and we therefore grant the applicant leave to appeal.[18]On the substantive appeal, we would be minded to deal with the matter by quashing the existing sentence and substituting a sentence of 12 months' detention with an extended licence period of two years. That would have substantially the same effect as if the time spent in custody on remand counted in full against the previous sentence of two years' detention. Subject to hearing counsel further, we are minded to make an order to that effect unless an application for a further hearing is made within 14 days.[19]MR WATKINS: There is, of course, no application for any further hearing. I invite your Lordships to make that order.

LORD JUSTICE MOORE-BICK: You invite us to make that order now?

[21]MR WATKINS: Yes, your Lordship. The prior judge consented to the absence. There are no other directions in which this hearing might go.

LORD JUSTICE MOORE-BICK: Yes. (Pause) You have instructions from your client to invite us to make that order without giving him further time for consideration?

[23]MR WATKINS: Yes, I have spoken to his mother this morning and -- yes, as near as --

MR JUSTICE BURTON: This will enable him to get out by tomorrow morning.

[25]MR WATKINS: It will; and any adjournment delays his release.

LORD JUSTICE MOORE-BICK: Well then, we will quash the judge's original order and substitute for it a sentence of 12 months' detention with an extended licence period of 2 years.

[27]Mr Watkins, we are very grateful to you for your assistance. Is there anything else we need to consider now?[28]MR WATKINS: There are no other orders, as far as I am aware.

LORD JUSTICE MOORE-BICK: Thank you very much.