Attorney General's Reference No 87 of 2006 [2006] EWCA Crim 2722

Case No 200603942 A6[2006] EWCA Crim 2722
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 24th October 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE SCOTT BAKER
MR JUSTICE AIKENS
HIS HONOUR JUDGE LORAINE-SMITH
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 87 OF 2006
Computer Aided Transcript of the Stenograph Notes of
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MR S DENNISON appeared on behalf of the ATTORNEY GENERAL
MR K C GREEN appeared on behalf of the OFFENDER
J U D G M E N T

LORD JUSTICE SCOTT BAKER:

[1]Her Majesty's Attorney General seeks leave to refer the sentence imposed on Daniel Peter Geddes on the ground that it is unduly lenient. We grant leave.[2]On 12th May of this year, the offender was convicted of making a threat to kill and assault occasioning actual bodily harm, offences committed on 26th November 2005, and common assault, an offence committed on 28th November 2005. On 4th April of this year, he had pleaded guilty to one count of domestic burglary and one count of burglary of a shed, those offences committed on 23rd November of 2005. By reason of two previous convictions for domestic burglary since the 30th November 1999, the domestic burglary to which the offender had pleaded guilty on 4th April of this year rendered him liable to a minimum term of three years for that offence (see section 111 of the Powers of Criminal Courts (Sentencing) Act 2000).[3]On 14th July of this year, the offender was sentenced for all of these offences by Mr Recorder Hawks as follows: for burglary of a dwelling, 28 months and 21 days; for burglary of a shed, a concurrent sentence of 28 months and 12 days; for making a threat to kill, 18 months consecutive; for assault occasioning actual bodily harm, six months' imprisonment consecutive; and for common assault, three months' imprisonment concurrent; the total sentence being therefore one of 52 months and 21 days. He was given credit by the judge for 176 days that he had spent in custody.[4]The facts can be relatively shortly stated and are as follows. The victim of the threat to kill, which is the offence in respect of which the Attorney General seeks to have the sentence increased as unduly lenient, was Dawn Merta, who is aged 32. She had known the offender, who was aged 30, for about eight years. They had a son, who is aged six. For the duration of their relationship, the offender had been in and out of prison, his last release having been in May 2005. They had seen each other on and off since then and their relationship had generally been civil. The offender had a one bedroomed flat close to Ms Merta's home in Brighouse, West Yorkshire, which he shared with his cousin. He would sometimes stay at Ms Merta's flat in their son's room.[5]On morning of Saturday 26th November 2005, the offender was asleep upstairs at Ms Merta's home. She and their son were also in the house. Two males came to the door. Mrs Merta had never seen them before. They walked straight into the house and asked for the offender. She went and woke him and he went downstairs. They immediately attacked him, punching him in the face. They then left.[6]Later that evening, at about 9 o'clock, when they had both been drinking, the offender started swearing and threatening Ms Merta. She was blamed for letting the two men into the house earlier that day. She went with him in his van, feeling she had no option but to go. They took their son to a friend's house then went to the offender's flat. The offender was still verbally abusing her for having let the two men in. He then attacked her. He stubbed a cigarette out on her forehead and punched her on the head. He then produced a crossbow, with the string pulled back and loaded with a bolt and arrow, and pointed it directly at her head. He threatened to kill her by saying, "Why don't I just do you know". She was terrified. She said in evidence that he had "lost it". Eventually, in the early hours of 27th November, he drove her home again. As a result of the assault, she suffered a burn on her forehead and a sore head.[7]On Monday 28th November, the offender again went to Ms Merta's home. He dragged her outside and into his van in the presence of their son. He drove her and their son a short distance and then attacked her in front of him, punching her on the head and face. The boy was crying and very upset. The offender then took them home, collected some belongings and left. Ms Merta called the police. As a result of this assault, she suffered further soreness to her head. The next day, 29th November, the offender's van was seen by the police being driven in Brighouse. The driver was the offender's cousin. The police stopped the vehicle. Behind the driver's seat there was a crossbow and bolt, later identified by Ms Merta as the one that had been used to threaten her.[8]On 17th January 2006 the offender was arrested at Ms Merta's home after she activated an alarm and police attended. He tried to hide in the loft but was seen and apprehended. The offender declined to answer questions when interviewed about these offences but he denied them at trial, alleging that Ms Merta had fabricated the allegations. He presented a defence of alibi. He said that he had the crossbow for hunting purposes. However, in evidence in the course of his trial he said that he would take the crossbow with him when he went out committing burglary but his father, his alibi witness, laughed at the suggestion that the offender was a hunter.[9]The offences of burglary were committed with his cousin at a dwelling house in Golcar, West Yorkshire, during the day of 23rd November 2005, ie three days before the offences on Ms Merta. The offender entered the house and stole a television, a DVD player, keys, clothing and jewellery and he stole also from the garden shed a motorcycle. The offender pleaded guilty to these offences at the first opportunity.[10]It is submitted that the sentence for threatening to kill is unduly lenient in that the judge should have imposed imprisonment for public protection under section 225 of the Criminal Justice Act 2003 or, alternatively, the judge did not sufficiently reflect the gravity of the threat to kill and that the total determinate sentence should have been greater. In his initial reference, lodged appropriately within the 28 day period, the Attorney General invited the court to consider only the leniency of the minimum period to be served and did not contend that a sentence of imprisonment for public protection should have been imposed. That suggestion was only made for the first time on Wednesday of last week.[11]This court wishes to say that it regards it as unsatisfactory that the Attorney General should have left it so late to raise such an important matter. It seems to us that if there is merit in the point there is no reason why it should not have been taken when the reference was first lodged. If matters are left to the last minute it is liable to place the offender and his representatives in difficulty in dealing with submissions made on behalf of the Attorney General of which they have not had prior notice. In the event, Mr Green tells us that he has not been embarrassed by the late taking of this point and he is able to respond to the reference today.[12]The offender has a bad record, stretching back to 1991. His offences include 12 domestic burglaries and three attempted burglaries. The longest custodial sentence which he has thus far served is one of three years and nine months' imprisonment imposed in July of 2000. In March of 1998, he was sentenced to four months' imprisonment for affray. The offender and his cousin were fighting another man in the street late at night. At the time of the present offences, the offender was on licence for burglary, a licence that was due to expire on 19th January of this year.[13]Mr Dennison, for the Attorney General, submits that there are a number of aggravating features about the offence of threatening to kill: first, that a loaded lethal weapon was pointed at the victim's head, inducing immediate terror on her part; second, that the threat to kill was made in the course of a prolonged and violent assault; third, that the offender has a previous conviction for affray in 1998; and, fourth, that he was on licence at the time of all of these offences. On the other hand, there is the following mitigation: the offender has never previously been violent to the victim and does not have a history of repeated violence against the person; secondly, the victim has not caused serious physical or psychological injury.[14]Turning then to imprisonment for public protection, section 225 of the Criminal Justice Act 2003 requires the court to impose a sentence of IPP if the court is of the opinion that a significant risk to members of the public of serious harm is occasioned by the commission of further offences by the offender. Serious harm means death or serious personal jury and whether physical or psychological (section 224(3)). Section 229 tells the court how to assess the dangerousness of the offender. Because the offender has a previous conviction for a relevant offence, the 1998 affray, section 229(3) applies. Section 229(3) provides as follows:
"If at the time when that offence was committed the offender was aged 18 or over and had been convicted in any part of the United Kingdom of one or more relevant offences, the court must assume that there is such a risk as is mentioned in subsection (1)(b) unless, after taking into account- (a) all such information as is available to it about the nature and circumstances of each of the offences, (b) where appropriate, any information which is before it about any pattern of behaviour of which any of the offences forms part, and (c) any information about the offender which is before it, the court considers that it would be unreasonable to conclude that there is such a risk."
So the risk referred to in section 225 has to be assumed unless the court thinks that the conclusion is unreasonable after taking into account section 229(3)(a), (b) and (c).[15]The judge should have explained why he thought it unreasonable to conclude that the assumed risk existed. It can be assumed from what he did say that the fact that the offender did not in the course of the offence inflict serious physical or psychological injury to the victim, and had never done so previously, was an important factor. But it is our view that it would have been preferable if the judge had specifically referred to section 229(3) and explained why it was that he concluded that the assumption did not apply in the present case. In these circumstances, it seems to us that it is appropriate that we should ourselves go through the exercise and do our best to put ourselves in the position that the judge was in.[16]However, before doing so, we refer to the very recent decision of this court in the case of R v Johnson and others [2006] EWCA Crim 2486 in which judgment was handed down last week. The President of the Queen's Bench Division referred to the well-known case of Lang and then said, at paragraph 11:
"At the risk of stating the obvious, the final consideration to which we draw attention, is that this court will not normally interfere with the conclusions reached by a sentencer who has accurately identified the relevant principles, and applied his mind to the relevant facts. We cannot too strongly emphasise that the question to be addressed in this court is ... whether the imposition of the sentence was manifestly excessive or wrong in principle. Notwithstanding the 'labyrinthine' provisions of sections 224-229, and the guidance offered by Lang, these essential principles are not affected. They apply with equal force to References by HM Attorney General. In such cases the question is whether the decision not to impose the sentence, in the circumstances, was unduly lenient. In particular, (i) In cases to which section 229(3) applies, where the sentencer has applied the statutory assumption, to succeed the appellant should demonstrate that it was unreasonable not to disapply it."
And then these important words:
"Equally, where the Attorney General has referred such a case because the sentencer has decided to disapply the assumption, the Reference will not succeed unless it is shown that the decision was one which the sentencer could not properly have reached."
[17]So we now ask ourselves whether the decision was one in this case that the Recorder could not properly have reached. As to (a) section 229(3), the requirement that the court take into account all such information as is available to it about the nature and circumstances of each of the offences, we observe that the judge presided over the trial and therefore was well placed to assess the nature and circumstances of the particular offence of threatening to kill. As to (b), where appropriate, any information which is before it about any pattern of behaviour of which the offence forms part, the offences against Mrs Merta were what can be colloquially described as one-off and were not part of a pattern. As to (c), any information about the offender which is before it, in that regard the Recorder had the pre-sentence report which said that there was a risk of violence to Ms Merta when the offender was angry but the Recorder also had plainly in mind the offender's assurance that it was his intention never to see the victim again and, if that meant never having any further contact with his child, not to have any contact with his child either. The judge was well placed, having heard evidence from both the offender and from the victim, to decide what weight he was able to give to assurances of that kind.[18]Was the Recorder entitled to decide it was unreasonable to conclude that the offender presented a significant risk of committing further offences involving serious harm as so defined? We think that he was so entitled, albeit he did not spell out in terms the exercise that he was required to conduct in going through section 229. Making a threat to kill is an offence which attracts sentences of varying length depending on the circumstances of the particular case. This was a particularly serious offence because of the fact that a loaded crossbow was used. However, as we have indicated, we do not think that it was a case in which a sentence of imprisonment for public protection was required.[19]We turn therefore to consider the length of the determinate sentence. Not only was a crossbow used but the offence and the related offences of assault occasioning actual bodily harm and common assault spilled over a significant period of time. We turn to look briefly at the authorities to which we have been referred. As we have said, the sentences for making a threat to kill are very variable, depending on the particular facts of the case. In Attorney General's Reference No 52 of 1996 (R v Anderson) [1997] 2 Cr.App.R(S) 230, Rose LJ, the Vice President, said that sentence of six years and more might be appropriate for offences in the domestic violence context, it having been argued in that case, unsuccessfully, that a domestic context in some way puts the case into a less serious category. No such argument has been advanced in the present case, nor, in our judgment, could it have been. In R v Mason [1995] 16 Cr.App.R(S) 804 a sentence of four years' imprisonment following a plea of guilty was upheld. Therefore it was a sentence equivalent to one of about six years following a trial. In R v Hasguler [2001] 1 Cr.App.R(S) 36, at page 122, a sentence of three years' imprisonment following a plea of guilty was upheld by this court, that is equivalent to a four and-a-half year sentence after a trial.[20]The effect of the threat on the victim is, in our judgment, and this has been referred to on previous occasions, a very important factor as to the length of sentence. There are these observations by the Recorder during mitigation:
"Now I take the view that this was a squalid and totally disgraceful piece of behaviour but, in terms of assessing the long term harm or the psychological danger that it may have caused the complainant, I have a first-hand view of how it has managed to have affected her. That is to the defendant's benefit rather than anybody else's, so I do bear that in mind."
On the other hand, the threat in the present case was fortified by the loaded lethal weapon and the whole incident, as we have mentioned, lasted for some time.[21]Mr Green, who has appeared before us for the offender, accepts that a sentence of 18 months for the threat to kill was a very lenient sentence but, he submits, it was nevertheless within the range open to the Recorder. Mr Green makes a similar submission with regard to the total sentence for the overall offending.[22]In our judgment, the judge should have started by asking himself what was the appropriate sentence for the threat to kill and related offences, quite independently of the sentences that he was obliged to pass for the burglaries. Had he done so, Mr Green submits that the answer would have been three to four years. We think the appropriate figure is four years and no longer. In reaching that figure, we have given very considerable weight to the judge's assessment of the limited effect of the offender's behaviour on the victim. The next step for the judge was to consider the question of totality, bearing in mind the sentence that he was required to pass on the burglary. It is not suggested in this case that consecutive sentences were other than appropriate. If one adds two years, four months and 21 days for the burglaries to the four year sentence that we think would have been appropriate for the threat to kill and related offences on their own, we come to a total of six years, four months and 12 days.[23]However, that is not the end of the sentencing exercise. The next step is to consider totality and, in our judgment, bearing in mind the total offending and all the circumstances of the case, the issue of totality would have involved rounding down the total sentence to something in the region of five and-a-half years to six years' imprisonment. Sentencing, as has often been observed, is an imprecise exercise and the fact that the sentence is lenient or indeed even very lenient does not mean that it is unduly lenient. Where a sentence is unduly lenient and consideration has to be given for increasing it, then issues of double jeopardy come into play.[24]We think, however, that the total sentence imposed by the judge in the present case was not unduly lenient but was at the very bottom of the bracket that was open to him. Mr Dennison submits that it is important not to indirectly flout Parliament's intention that repeat burglars should have mandatory minimum sentences by passing too short a sentence on the threat to kill. We have borne that in mind but we also have to look at totality. Ultimately, the determining factor in the present case, in our judgment, is that the judge presided over the trial and was best placed to assess what the total sentence should be. Four years, four months and 21 days was, in our view, a lenient sentence but not one that was unduly so. Accordingly we decline to increase the sentence. The Recorder's decision was, as we have observed, based on his assessment of the case. He was best placed to assess the case and, in particular, the effect of the offender's conduct on the victim.[25]This application is therefore refused.