Forrester, R. v [2006] EWCA Crim 2136

Case No 2006/02121/A7[2006] EWCA Crim 2136
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday 30 August 2006
Between
R E G I N ACrown
The Strand
London
WC2A 2LL
B e f o r e:
LORD JUSTICE RICHARDS
MR JUSTICE COLLINS
and
MR JUSTICE JACK
__________________
- v -
Between
LEVAUN FORRESTER__________________Computer Aided Transcription bySmith Bernal, 190 Fleet Street, London EC4Telephone 020 -7421 4040(Official Shorthand Writers to the Court)__________________MR M STRADLING appeared for APPLICANT____________________J U D G M E N T
[1]This is a renewed application for leave to appeal against sentence following refusal by the single judge. On 10 February 2006 at the Crown Court at Southwark, the applicant, Levaun Forrester pleaded guilty to a number of offences. On 13 March he was sentenced as follows: on count 1, for attempted robbery, imprisonment for public protection pursuant to section 225 of the Criminal Justice Act 2003 with a minimum term of five years; on count 2, for possession of a firearm at the time of commission of an offence contrary to section 17(2) of the Firearms Act 1968, a concurrent sentence of imprisonment for public protection with a similar minimum term of five years; on count 4, for having an offensive weapon, two years' imprisonment concurrent; on count 5, for possessing ammunition without a firearm certificate contrary to section 1(1)(b) of the Firearms Act 1968, five years' imprisonment concurrent; and on count 6, for possession of a class A drug (heroin), twelve months' imprisonment. The total sentence was imprisonment for public protection pursuant to section 225 with a minimum term of five years.[2]Count 3, which charged possessing a prohibited firearm contrary to section 5(1) of the Firearms Act 1968, was ordered to lie on the file on the usual terms. Section 5(1) is a section to which section 51A of the 1968 Act applies and so attracts a minimum term of five years. As to that count, counsel for the prosecution informed

the judge that, although it was good practice to include a count under section 5 where appropriate:

".... in this particular instance it would seem unnecessary to have a plea to count 3 as well as everything else. Your Honour may wish to consider the weaponry in count 2, the Tokarev. That is a prohibited weapon within section 5 to which the minimum of five years' imprisonment is applicable. It is not, strictly speaking, a minimum term under section 17 to which the defendant has pleaded guilty. The firearm itself is a prohibited weapon under section 5."
In our view, where a count under section 5 attracting sentence has been properly included on an indictment and there is no defence to it, a plea should be taken. That is because Parliament has identified section 5 for a minimum sentence under section 51A. It was not appropriate for counsel to invite the court to order that the count lie on the file and at the same time invite the court in some way to adopt the minimum sentence nonetheless.[3]The facts relating to the offences were as follows. At about 6pm on 15 October 2005 Kevin Gyebi was walking through the Mornington Estate in Hackney. He was approached by the applicant. He recognised him as someone he had seen on the estate, but no more. The applicant engaged Gyebi in conversation. He asked him about a gold chain that Gyebi was wearing and asked to try it on. Gyebi refused and continued walking to his home. The applicant became agitated and said, "Don't let me hurt you'. He produced a pistol from a bag that he had been carrying over his shoulder. He cocked it and pointed it at Gyebi's face. Gyebi was petrified and believed that he was going to be shot. He was not far from his flat. He ran, went inside and shut the door. The applicant kicked at the door and demanded that Gyebi come outside. Meanwhile Gyebi's girlfriend telephoned the police. Gyebi attempted to calm down the applicant saying that he would go outside if the gun was put away. The applicant put away the gun and Gyebi opened the door and he spoke with him. The applicant again became agitated and threatened to hurt Gyebi. Gyebi moved back inside. Armed police officers arrived. The applicant winked at Gyebi, which he interpreted to mean, "Don't you dare tell them anything".[4]When he was challenged by the police the applicant admitted that there was a firearm in his bag. He was arrested. Inside the bag officers found a Tokarev 213 9mm semi -automatic pistol. The hammer was back with a round in the chamber and a second round in the magazine. There was also in the bag a lock -knife, a quantity of heroin and £100 in cash.[5]When he was interviewed the applicant said that he had found the bag containing these items in a street in Hackney. He denied the offences.[6]The applicant was born on 24 December 1982 and so is 23. He is a Jamaican national. He had three previous convictions for three offences, namely two for possessing cannabis and one for possession of a bladed article in public. Fines were imposed for each.[7]The judge had before him for the purposes of sentence a pre -sentence report. It stated that the applicant had described his offending as a "cry for help", referring to his need for attention. Family deaths, the applicant had said, plunged him into depression and this was exacerbated by his immigration problems. He had obtained the gun intending to kill himself. The applicant had said that his offending was an attention seeking ploy that went wrong. He preferred to believe that he had not intended to harm Mr Gyebi or anyone else. The author of the report considered those assertions bizarre and unconvincing. He suggested that the applicant portrayed his actions as he did to minimise his offending. The author considered that he had sinister intentions that day and that the offending was deliberate and premeditated. The report recorded that the applicant expressed deep regret for his offending and claimed that he wished to apologise to the victim. In the view of the author, the offences represented a very disturbing escalation in the applicant's criminal activities. The report stated that the applicant had owned a gun since 2004; and also had the lock -knife. The author's view was that there was a very high risk of re -offending with a very high risk of harm to the public. The report stated that the applicant was concerned about serving a long sentence and being deported to Jamaica.[8]Before he passed sentence, the judge called for skeleton arguments from the prosecution and defence concerning the application of section 225 of the Criminal Justice Act 2003. The section applied because the robbery and the offence contrary to section 17(2) were both serious specified offences for the purposes of the section. The court had to consider whether there was a significant risk to members of the public of serious harm occasioned by the commission by the applicant of further "specified" offences: section 225(1)(b). The applicant had not committed any specified offences previously and so the assumption provided by section 229(3) did not apply. In accordance with section 229(2) the court had to take into account all information available about the nature and circumstances of the offence and might take account of any information about any abnormal behaviour of which the offences formed part and any information about the applicant.[9]In passing sentence the judge referred at some length to the pre -sentence report and the addendum report which had also been obtained at his request. It has been suggested to us that the author of the report had taken a wrong approach in some respects. That was something that was pointed out to the judge at the time. The judge stated that, having considered the case independently, he had come to the same conclusion as was expressed in the report. As is stated in paragraph 17(ii) of the judgment of this court in R v Lang [2005] EWCA Crim 2864, a sentencer is guided but not bound by such assessment of risk. The view of the author of the report, and by inference that of the judge, was that the applicant posed a significant risk as postulated in section 225(1)(b). That was based on the circumstances of the offence, in particular that the gun was loaded and cocked and pointed at the head of Mr Gyebi. There is no readily acceptable explanation for the applicant's conduct, save an intention to rob Mr Gyebi. On the other hand, Mr Gyebi was able to return to his flat, despite having the gun pointed at him, and he was later able to emerge and talk to the applicant, though he later retreated again. Mr Gyebi knew the applicant to recognise him. It is curious that the applicant attempted to rob him in the open street at six o'clock in the evening.[10]Nonetheless, we cannot say that the judge was wrong to take the view that he did. There might easily have been a struggle. With or without that, the gun might have gone off with potentially fatal consequences. The incident showed the applicant as capable of very dangerous behaviour. We therefore do not quarrel with the judge's decision to impose a sentence of imprisonment for public protection.[11]The next issue is as to the length of the minimum term. The judge took a notional custodial sentence of ten years following a plea, and so fifteen years following a trial. We consider that he went too high. We consider that, on the somewhat unusual facts, sentences of imprisonment for public protection with minimum terms of three -and -a -half years should have been imposed on the relevant counts. From that must be deducted the 163 days which were served in custody prior to the sentence.[12]There are two further matters. At the conclusion of sentence on 30 March 2006 the judge reminded counsel that they could, if appropriate, bring the case back before him within 28 days. That was done and the defence applied to cross -examine the author of the pre -sentence report. That can only have been as an after -thought, having heard the importance given to the report by the judge when sentencing. The application to cross -examine was refused. This was plainly right. Cross -examination would not have assisted the sentencing process. The judge had to form his own view and the basis of the view expressed in the report and the addendum report was sufficiently clear. We refer to paragraph 100 in R v Burt and Others [2005] EWCA Crim 3616, which states that it will generally be inappropriate for the author of a report to be cross -examined.[13]Secondly, the judge declined to make a recommendation for deportation. If he had based that decision on his assessment of the danger that the applicant posed to the public, that might have raised an inconsistency of approach. He declined to make a representation because the applicant had been in the United Kingdom, married with a child for some years. It was stated in the recent decision of this court in R v Carmona [2006] EWCA Crim 508 at paragraphs 21 and 22 that the court should not now take account of an offender's family position in deciding whether to make a recommendation for deportation. That should be left to the Secretary of State. We trust that when the time comes for the release of the applicant the Secretary of State will have regard to the facts of this case in deciding what, if any, action should be taken. However, we would add the following remarks. Deportation may or may not follow in a case where a recommendation for deportation is made. We think that in at least the great majority of cases the possibility of deportation will be irrelevant to the issue of whether a sentence of imprisonment for public protection is appropriate.[14]The outcome is that we grant leave to appeal limited to the issue of the length of the minimum term, and we propose that the appeal should be allowed to the extent of substituting three and a half years as the minimum term under the sentences of imprisonment for public protection. The appellant (as he has now become) is not present and has given no consent to the hearing of the appeal in his absence. He may apply within 28 days of his hearing the outcome of today's hearing for the case to be relisted for further hearing. We would not advise him to take up that option. If he does not do so, the appeal will be allowed as we have indicated. MR STRADLING: My Lord, yes. May I ask for a representation order? LORD JUSTICE RICHARDS: Yes, we will grant a representation order for counsel.