Sanders, R. v [2006] EWCA Crim 1842

Case No 2006/2155/A9[2006] EWCA Crim 1842
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 12 July 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE GAGE
MR JUSTICE BEAN
HIS HONOUR JUDGE GOLDSACK
(Sitting as a Judge of the CACD)
Between
R E G I N ACrown-v-
Between
SHAUN PETER SANDERS
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 K GLEDHILL appeared for APPELLANTMR M AINSWORTH appeared for CROWN
J U D G M E N T

LORD JUSTICE GAGE:

[1]This applicant (as he still is), Shaun Peter Sanders, is now aged 27. On 4th May 2004 at the Burnley Crown Court on an indictment containing six counts, on rearraignment he pleaded to count 3, wounding with intent to cause grievous bodily harm, and guilty to count 6, a count of affray. On 25th May 2004 he was sentenced in respect of count 3 to an automatic sentence of life imprisonment pursuant to section 109 of the Powers of Criminal Courts (Sentencing) Act 2000 for a second serious offence. The minimum term was set at three years and 70 days. He was sentenced to 16 months' imprisonment concurrent on count 6.[2]The short point on this appeal is that the court lacked jurisdiction to pass an automatic life sentence. Later in this judgment we shall explain why that is alleged to be so.[3]So far as this matter is concerned, it raises an important point of law. The application for leave to appeal is a long way out of time. That is explained by the fact that the point which is raised on the appeal was not raised by counsel who appeared for the appellant at sentence and is now raised by fresh counsel. It is, as we have said, an important point and in the circumstances we think it right to grant an extension of time and, further, to grant leave.[4]The facts are as follows. So far as the count of affray (count 6) is concerned, on 19th July 2003 the complainant in respect of count 3, Clinton Cavaney, went out for an evening in Burnley with his girlfriend and some friends. At about 11.15 pm in a nightclub in Burnley Town Centre, he and his girlfriend came across the applicant. Cavaney and his girlfriend got into an argument with the appellant about the care of Cavaney and his girlfriend's son. Cavaney's girlfriend threw a drink over the appellant. The appellant was ejected from the nightclub. He waited outside for the complainant and his girlfriend. When they came out he began goading Cavaney. One of Cavaney's friends (the complainant in count 6) tried to intervene and calm things down. The appellant punched that man in the face causing him to fall to the ground. There was then some further shouting and a confrontation between the appellant and the others. The appellant left the scene. The complainant sustained cuts and bruises and damage to the iris of his eye.[5]The appellant was arrested on 28th July 2003. At interview he made no comment. He was charged and bailed. The case was due to be heard on 14th November 2003. Cavaney was due to give evidence at that hearing.[6]The facts so far as count 3 (wounding with intent) are these. Just before 9 o'clock on the evening of 3rd November 2003, the appellant burst through the front door of Cavaney and his girlfriend's home address. The appellant was carrying a large knife or machete and wearing a Balaclava helmet. Cavaney fell to the floor as he tried to run out of the house. The appellant repeatedly struck him with the knife in a downward motion. Cavaney tried to shield the blows with his arms and legs. The appellant ran off and Cavaney's girlfriend summonsed some assistance. Cavaney sustained lacerations to his lower left leg and to his left thigh. He also had lacerations to his lower right leg and a laceration to his right forearm. Further, he had a fractured toe.[7]The appellant was arrested on the following day. Again at interview he made no comment.[8]There were before the court victim impact statements. Cavaney said that he felt uncomfortable going out. He had recurring nightmares about the attack and had moments of anxiety. His girlfriend said that their relationship had suffered. They both had begun drinking heavily. She became depressed. It impacted on her working life and University course.[9]The complainant in respect of the count 3 injuries said that they caused him to take time off work. His eye had been permanently damaged and he was having ongoing treatment for it. He said he felt worried about going out and had difficulty sleeping.[10]The appellant had four previous convictions. In February 1998 for an affray he was fined and in December 1998 at a Court Martial in Germany he was sentenced to 20 months' detention in a young offender institution for an offence of wounding with intent to cause grievous bodily harm committed whilst he was a serving member of the armed forces in Germany. In the year 2000 he was fined for criminal damage and in 2001 he was sentenced to two years for wounding.[11]It is in respect of the offence convicted at the Court Martial in Germany that the qualifying offence arose and caused the judge to pass a mandatory life sentence. In his sentencing remarks the judge said (page 2 letter C):
"Looking at the offence which was, if I can describe it as such, the qualifying offence, that which was subject to a conviction on 14th December 1998, and when I look also at the subsequent offence recorded on 9th March 2001 they were both offences of extreme personal violence, violence involving the use of a weapon. As it happened it was a glass on each of those two occasions. In the period from early 1998 until your arrest in November of 2003, your record comprised entirely of offences of serious violence to the person, serious public disorder matters and one offence of damaging property. There is, in my judgment, nothing in the facts, either of the present case, or the conviction, the court martial, in December of 1998 which could be described as 'an exceptional circumstance' which would justify me in departing from the mandatory sentence of life imprisonment."
On page 4B he said:
"In my judgment, subject to the totality principle, the right order to have made, had you been convicted after a trial by a jury, would have been to impose consecutive sentences which would have been a total of 10 years. As to that, that would have been made up of eight years in respect of section 18 and two years consecutive for the affray. You have, however, pleaded guilty to these offences, and you are entitled to reduction of that period to take that guilty plea into account. You cannot expect, and you will not receive, the same amount of reduction as you have received if you had pleaded guilty at the very earliest opportunity, but you will receive a substantial reduction to reflect your guilty pleas, and I would reduce that overall starting point by a proportion of one-quarter. Hence you would have served a total sentence of seven-and-a-half years for these offences. The period that I specify is a period which is one-half of that seven-and-a-half years, namely three years and nine months."

The judge then went on to deduct the period which the appellant had already spent on remand.

[12]As we have indicated, the sole ground of appeal is that the conviction for a section 18 offence at a Court Martial in 1998 is not another serious offence for the purposes of section 109 of the Powers of Criminal Courts (Sentencing) Act 2000. Again as we have said, it appears that this point was not raised before the sentencing judge and was only raised by new counsel instructed by new solicitors.[13]The point is an important one and we have already granted an extension and granted leave.[14]Counsel, Mr Gledhill, who appears today on behalf of the appellant, in a very helpful and careful skeleton argument, has referred the court to the relevant statutory material. Section 109 of the Powers of Criminal Courts Act is the one in point. It reads in the material parts at 109(1):
"This section applies where- (a) a person is convicted of a serious offence committed after 30th September 1997; and (b) at the time when the offence was committed, he was 18 or over and had been convicted in any part of the United Kingdom of another serious offence."
Subsection (5) of section 109 defines serious offence. It includes an offence under section 18 of the Offences Against the Person Act 1861. In the material parts subsection (5) reads:
"An offence committed in England and Wales is a serious offence for the purpose of this section if it is any of the following, namely: [(a, (b) and (c) are not material] (d) an offence under section 18 of the Offences Against the Person Act 1861 (wounding, or causing grievous bodily harm, with intent)..."
Subsections (6) and (7) of section 109 start in much the same way as does subsection (5). We take simply subsection (6) which reads:
"An offence committed in Scotland is a serious offence for the purposes of this section if the conviction for it was obtained on indictment in the High Court of Justiciary and it is any of the following, namely... " and then a list of qualifying offences is set out. Similarly, subsection (7), reads: "
An offence committed in Northern Ireland is a serious offence for the purposes of this section if any of the following, namely... " again a list of four offences are set out.[15]We refer also to section 114 of the Powers of Criminal Courts (Sentencing) Act. That reads as follows in the material parts:
"(1) Where- (a) a person has at any time been convicted of an offence under section 70 of the Army Act 1955 ... and (b) the corresponding civil offence (within the meaning of that Act) was a serious offence... the relevant section of this Chapter shall have effect as if he had at that time been convicted in England and Wales of the corresponding civil offence. (2) Subsection (3) of section 113 above applies for the purposes of this section as it applies for the purposes of that section."
We do not need to set out subsection (3) of section 113. It is in similar terms to 114.[16]The short point is, it is submitted on behalf of the appellant, that section 114 refers to a person who is convicted of an offence. There is no doubt that this appellant was convicted by a Court Martial of an offence corresponding to section 18 of the Offences Against the Person Act 1861, but it does not, it is submitted, satisfy the requirement of section 109(5). Subsection 109(5) requires that the qualifying offence is "committed" in England and Wales.[17]Mr Gledhill on behalf of the appellant relies on a number of subsidiary submissions to support what he submits is the plain effect and meaning of the statutory test. First, he submits that the normal approach to the construction of the penal statute is strict. Here the effect of the statute is to provide for the most severe sentence, namely a sentence of imprisonment for life. Secondly, he submits that Parliament, had it intended to provide for Court Martial offences committed outside the United Kingdom to qualify as other serious offences, could have expressly drafted section 114 to include such offences committed outside England and Wales. Thirdly, he submits that the plain effect of subsections (5), (6) and (7) is to ensure that the qualifying offence was committed in the United Kingdom, hence the word "committed" used in subsections (6) and (7) as well as subsection (5). Finally, he refers to the fact that if the offender in 1998 for the offence of which he was convicted at the Court Martial had actually been handed over to the German authorities and prosecuted under German law, that conviction could not possibly have been a qualifying offence.[18]Mr Ainsworth for the respondent accepts that the conviction for the 1998 offence does not fall "directly" (his word) within the provisions of section 109(5). However, he relies on the fact that an offence under section 18 of the Offences Against the Person Act 1861 is a serious offence -- see section 109(5). This, he says, was the offence of which the appellant was convicted in 1998. He refers to section 70 of the Army Act 1995 which in the material parts read:
"(1) Any person subject to military law who commits a civil offence, whether in the United Kingdom or elsewhere, shall be guilty of an offence under this section. (2) In this Act the expression 'civil offence' means any act or omission punishable by the law of England or which, if committed in England, would be punishable by that law; and in this Act the expression 'the corresponding civil offence' means the civil offence the commission of which constitutes the offence against this section."
So he submits that the combination of section 70 and section 114 means that Parliament must have intended that the list of offences set out in subsection (5) of section 109 were deemed to be qualifying offences. He accepts that that is to leave out the first part of subsection (5) which defines the offence as an offence committed in England and Wales. However, he submits that Parliament must have intended that what was being referred to was solely the list of offences rather than the first words of subsection (5).[19]We are quite satisfied that the construction contended for by the appellant is the correct one. In our judgment subsection (5) of section 109 requires the other serious offence to have been one committed in England and Wales. We accept the appellant's submission that section 114 does not convert a conviction for a section 18 offence at a Court Martial in Germany which was committed in Germany to an offence committed in England and Wales. In our judgment, the fact that section 71 of the Army Act provides for a person subject to military law to be guilty of an offence whether he commits the civil equivalent in the United Kingdom or elsewhere does not have the effect of making this offence one committed in England and Wales for the purposes of section 109(5). In our opinion offences under section 71 of the Army Act which are equivalent to serious offences under civil law, are only qualifying offences under section 109 if they were committed in England and Wales.[20]Accordingly, we conclude that the judge lacked jurisdiction to pass an automatic life sentence. That sentence must therefore be quashed.[21]The next matter which we have to decide is what this court can do in relation to the offence to which the appellant pleaded guilty. We cannot of course pass any sentence which is of greater severity than was passed by the judge. In the circumstances, we do not think that either we can or that it would be right that we alter the determinate element of the sentence which the judge expressed as seven-and-a-half years before making the appropriate reductions. However, in our judgment this court is entitled to and can make an order for an extended sentence pursuant to section 85 of the Powers of Criminal Courts (Sentencing) Act 2000. We consider that any period for which this appellant would, apart from section 85, be subject to a licence, would, in the circumstances of his conviction and of his previous convictions, be inadequate for the purpose of preventing the commission by him of further offences and securing his rehabilitation.[22]Accordingly, we propose to pass an extended sentence. The extended period shall be one of five years beyond the determinate sentence. To that extent and for those reasons this appeal is allowed.