Seed & Anor, R. v [2007] EWCA Crim 254

Case No 2007/00554/A12007/00002/A2[2007] EWCA Crim 254
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday 13 February 2007
Between
R E G I N ACrown
The Strand
London
WC2A 2LL
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Phillips of Worth Matravers)
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
(Sir Igor Judge)
and
THE VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION
(Lord Justice Latham)
__________________
- v -
Between
TRIGGER ALAN MIKE SEEDPHILIP STARK__________________Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)190 Fleet Street, London EC4Telephone 020-7421 4040(Official Shorthand Writers to the Court)__________________MR A COMPTON appeared for APPLICANT TRIGGER SEEDMR A BLAKE appeared for APPELLANT PHILIP STARK____________________J U D G M E N T
[1]Once again judges who have to sentence offenders are confronted with the fact that the prisons are full. When they impose sentences of imprisonment -- and very often the nature of the offence will mean that there is no alternative to this course -- the prison regime that the offender will experience will be likely to be more punitive because of the consequence of overcrowding and the opportunities for rehabilitative intervention in prison will be restricted. Those already serving sentences are subject to the same adverse consequences. The Strangeways Report of Lord Woolf spells out the consequences of prison overcrowding.[2]The numbers of those in prison are a product of the numbers of custodial sentences imposed and the length of those sentences. Parliament has not given judges a free hand in respect of either of these. Statutory requirements have been laid down both in relation to the circumstances in which custodial sentences should be imposed and the length of those sentences. It is of course the duty of the judge to follow these requirements. Requirements of the Criminal Justice Act 2003 dealing with the sentencing for serious offences may well have the effect of increasing the size of the prison population. The requirements of Schedule 21 making provision for the determination of the minimum term in relation to mandatory life sentences may well, in due course, be seen to have this effect. Figures in relation to those serving indeterminate sentences for public protection suggest that these sentences may already be making a significant contribution to the rise in prison numbers.[3]In contrast to the statutory provisions that deal with serious and dangerous offenders, there are other provisions that should tend to reduce prison numbers. Section 152(2) of the 2003 Act provides:
"The court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence."
This is an important provision. It requires the court, when looking at the particulars of the offence, to decide whether the "custodial threshold" has been passed. If it has not, then no custodial sentence can be imposed. If it has, it does not follow that a custodial sentence must be imposed. The effect of a guilty plea or of personal mitigation may make it appropriate for the sentencer to impose a non-custodial sentence.[4]Section 153 of the 2003 Act provides that, where a custodial sentence is imposed, it must be:
"for the shortest term (not exceeding the permitted maximum) that in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it."
This also is an important provision.[5]In times of prison overcrowding it is particularly important that judges and magistrates pay close regard to the requirements of both these provisions. In particular, when considering the length of a custodial sentence, the court should properly bear in mind that the prison regime is likely to be more punitive as a result of prison overcrowding.[6]Section 142 of the 2003 Act sets out the purposes of sentencing. The matters to which the court must have regard when sentencing an offender are: (a)the punishment of offenders; (b)the reduction of crime, including its reduction by deterrence; (c)the reform and rehabilitation of offenders; (d)the protection of the public; and (e)the making of reparation by offenders to persons affected by their offences. Unless imprisonment is necessary for the protection of the public the court should always give consideration to the question of whether the aims of rehabilitation and thus the reduction of crime cannot better be achieved by a fine or community sentence rather than by imprisonment and whether punishment cannot adequately be achieved by such a sentence. We believe that there may have been a reluctance to impose fines because fines were often not enforced. Enforcement of fines is now rigorous and effective and, where the offender has the means, a heavy fine can often be an adequate and appropriate punishment. If so, the 2003 Act requires a fine to be imposed rather than a community sentence.[7]Particular care should be exercised before imposing a custodial sentence on a first offender. Association with seasoned criminals may make re-offending more likely rather than deter it, particularly where the offender is young. A clean record can be important personal mitigation and may make a custodial sentence inappropriate, notwithstanding that the custodial threshold is crossed.[8]We make no apology for emphasising these matters, although we are aware that we are doing no more than repeating a number of previous exhortations of this court in the face of prison overcrowding: see R v Bibi (1980) 71 Cr App R 160, R v Ollerenshaw [1999] 1 Cr App R(S) 65, R v Howells and Others [1999] 1 Cr App R 98, R v Kefford [2002] EWCA Crim 519, R v Delamare [2003] EWCA Crim 424, R v Croft [2005] EWCA Crim 3706 and Attorney General's Reference No 11 of 2006 (R v Scarth) [2006] Crim LR 775.

The Appeal of Trigger Seed

[9]On 5 December 2006, at the Crown Court at Chelmsford, the applicant pleaded guilty on re-arraignment to assault occasioning actual bodily harm. On 8 January 2007 he was sentenced by Mrs Recorder Simler to six months' imprisonment. The Registrar has referred his application for leave to appeal against sentence directly to the full court. We have granted leave to appeal.[10]The complainant, Miss Piscina, is 27 years of age. She has learning difficulties and receives support from social services. The same is true of the appellant, who is aged 36, and was a friend of hers. He has previous convictions for road traffic offences, but no others.[11]On 6 May 2006, the complainant went to the appellant's flat where they drank some alcohol together to celebrate her forthcoming birthday. An argument started between them in the course of which the complainant commented on the fact that the social services had had to remove the appellant's child from his care. The complainant then received a blow to the head in the vicinity of her left eye from a glass mug that appeared to have been thrown at her by the appellant. She left his flat with blood pouring from a wound and telephoned the police. She was taken to hospital where the wound, 2cm in length, was sutured.[12]The appellant was charged with assault occasioning actual bodily harm. Initially he declined to comment. When re-arraigned, however, he pleaded guilty on a basis that was recorded in writing and accepted by the prosecution. It reads:
"He accepts he lost his temper and threw wine over Miss Piscina. In doing so the glass left his hand, struck her and caused the injury complained of."
[13]This version of the facts was opened to the Recorder by Mr Kelly for the prosecution when the appellant appeared before her to be sentenced. The following are the reasons that the Recorder gave for imposing a sentence of six months' imprisonment:
".... this offence of assault occasioning actual bodily harm on Samantha Piscina in which you struck her with a glass, close to her eye, causing a vertical laceration that required sutures is so serious that neither a fine alone nor a community sentence can in my opinion be justified. This was a wholly unprovoked assault with a glass which is, in effect, a weapon on a vulnerable person. Miss Piscina had come to see you to spend the evening with you. You had been drinking together, there was an argument, you told her to leave and in the process of doing so you struck her face with a glass. I therefore pass a sentence of six months' imprisonment. This is the shortest which in my opinion matches the seriousness of your offence and takes into account your personal circumstances as described to me by Mr Compton on your behalf and all that has been said about you, including the fact that you have pleaded guilty to this offence, albeit not at the first available opportunity, the fact that you have learning difficulties, the fact that your character is good save for a number of related driving convictions in 2003, and that you have been engaged in unpaid charity work."
[14]Mr Kelly then asked the Recorder to confirm that she had sentenced the appellant on the basis of his plea. We can well understand why he asked that question. The Recorder replied:
"Yes, I have sentenced you on your basis of plea which is that you lost your temper and threw wine over Miss Piscina. In doing so the glass left your hand and struck Miss Piscina in the face."
[15]The Recorder's sentencing remarks, and the sentence that she imposed, would have been appropriate had the appellant deliberately thrown his glass mug at the complainant. They were not appropriate for an offence of throwing wine at the complainant and unintentionally releasing the mug with it. The basis of the plea, which the prosecution accepted, transformed what would have been a serious offence into a trivial one. Had the prosecution initially viewed this offence as involving an accidental injury, we cannot believe that any charge would have been brought. This was not an offence which warranted a custodial sentence. The appellant has served over a month in prison and, having regard to his limitations, this cannot have been easy. We do not think it right that this appellant's record should include more than a nominal custodial sentence. Accordingly, we propose to quash the sentence imposed and substitute a sentence of seven days' imprisonment.

The Appeal of Philip Stark

[16]On 17 March 2005, at North East Hampshire Magistrates' Court, the appellant pleaded guilty and was committed to the Crown Court for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000. On 8 December 2006, at the Crown Court at Winchester, before His Honour Judge Cutler, he was sentenced as follows: for an offence of bigamy, six months' imprisonment; and for failing to surrender to bail, three months' imprisonment consecutive. He appeals against sentence by leave of the single judge.[17]The bare facts that were opened by Mr Brown for the prosecution to the judge were that the appellant had married a woman called Marjorie Stark on 8 December 1990 in Southend and they lived together in Essex. The appellant then started working in Farnborough and bought a property there, where he stayed during the week, returning to his wife at weekends. His work took him to Russia. His wife discovered evidence that he was in correspondence with a Russian woman. When she confronted him with this, he confessed that he had gone to Russia to see a woman called Marina. He subsequently told his wife that he had married this woman in Russia.[18]Despite this, the appellant continued to live with his wife, at least from time to time, but Marina plainly came to England, for on 19 April 2003 he was recorded as having married her in a civil ceremony at Farnborough. The police became aware of this. Having initially prevaricated, the appellant subsequently admitted that he had gone through a ceremony of marriage with Marina when he was still married to Marjorie. He said that he had failed to complete the paperwork necessary to end his marriage to Marjorie.[19]The appellant was due to surrender to his bail on 8 April 2005, but did not do so. He had gone to live in the United States, but returned to this country when his son died in order to attend his funeral. He was arrested at the funeral on 22 November 2006 and remanded in custody.[20]No evidence was put before the judge from either Marjorie or Marina; nor was either present in court. The judge was understandably perplexed by this, but Mr Brown explained that there had been a lack of support from both women in relation to the investigation. It was Marjorie's sister who had reported the appellant's behaviour to the police. Such background information as the prosecution were able to provide came from her.

The judge gave the following reasons for the sentences that he imposed:

"I have obviously been listening very carefully to all that has been said on your behalf, and you have much to thank Mr Blake for but, at the heart of all this, it is not a question of you being driven by love but you being dishonest. If there were those problems with Marjorie Stark, your true wife, then it is quite simple for you not to have gone through this ceremony of marriage in this country on 19 April 2003. That is quite the simple way, but you nevertheless did; you committed a criminal offence which undermines the status and legality of marriage which is an important institution, whatever anyone else may say about it, in this country, and then when you were found out you ran and left the jurisdiction, and those are serious matters, not something which a court can simply overlook in your case. I bear in mind of course you are a man of 51 years of ago who has a good character, nothing known against you in the past. It is quite clear to me that you are a man of ability and intelligence and clearly a man who has got himself into a tangled web of deception really through your own fault, which gives you no credit at all. It is difficult for me to have details about the effect of any injury you may have caused principally to your first wife, but I accept what is said within the prosecution papers from the prosecution witnesses that clearly she does not seek to get involved in this .... It seems to me in the circumstances that you present me with that there is no other alternative other than a custodial sentence because in my judgment courts must be seen, as I have already said, to uphold the law and the legality of marriage and to ensure that someone leaving the jurisdiction to avoid the consequences of the crime should when you come back into the jurisdiction be punished for that."
[22]These sentencing remarks might suggest that the judge considered that the offence of bigamy was so serious that it must inevitably attract a custodial sentence and that the circumstances of the offence bear solely on the length of that sentence. That is not the case and we do not believe that the judge proceeded on this basis, for Mr Blake, who appeared for the appellant before the judge and appears today, confirms that his submissions to the judge were those that he has placed before us, and they include the leading case on sentencing for bigamy: R v Crowhurst (unreported), referred to in Thomas on Sentencing at B4-43A01. Waller LJ is there recorded as saying:
"Sentences for bigamy must vary very much with the particular circumstances of the case. In many cases of bigamy it is possible to deal with the case by some sentence which does not involve deprivation of liberty. In other cases there may be a clear deception which has resulted in some injury to the woman concerned in which an immediate custodial sentence must be passed, and the length of that sentence must depend greatly on the seriousness of the injury that has been done."
[23]The judge referred to the appellant having involved himself in a tangled web of deception. In giving leave to appeal to this court the single judge observed:
"On the facts of this case the bigamy seems to me to involve rather more folly than injurious deception."

What were those facts?

[24]The appellant Philip Stark is a 51 year old American citizen of previous impeccable character. He met his wife Marjorie in the United States in the 1980s and returned with her to the United Kingdom where they married in the Southend Registry Office on 8 December 1990. At that time the appellant was aged 35 and Marjorie Miller was a divorcee aged 51.[25]Their relationship deteriorated and the appellant obtained employment away from his home in Essex with a company based in Farnborough. In February 2001 he purchased a flat in Farnborough where he lived during the week, although he often returned to his wife in Essex at the weekends.[26]In the summer of 2002 the appellant commenced his relationship with Marina. She was a Russian national. He made several trips to Russia during the course of their relationship. In February 2003, whilst in Russia, the couple announced their intention to marry and Marina moved to the United Kingdom.[27]On 19 April 2003 the appellant and Marina went through a purported marriage ceremony at the Basingstoke Registry. Thereafter they lived together as if they were man and wife.[28]Marjorie had become aware of the appellant's new relationship during one of his trips to Russia. He continued to return to stay with her every other weekend in Essex and the couple were still holidaying together in 2004. Marina was aware of Marjorie, but understood that the couple were divorced. That latter fact is one that the appellant has himself admitted. It is the only (albeit significant) element of deception in this case.[29]Neither woman made any complaint about the situation but in the summer of 2004 someone reported the matter to the police and the appellant was arrested. He made admissions in interview and pleaded guilty to bigamy on his first appearance at the magistrates' court on 17 March 2005. He was committed to the Crown Court for sentence. He panicked at the prospect of a lengthy custodial sentence and fled to America.[30]The appellant had commenced divorce proceedings in 2002 and obtained a decree nisi prior to his marriage to Marina. However, he had abandoned these proceedings before obtaining a decree absolute following a diagnosis that Marjorie was suffering from breast cancer. He did not wish to proceed with a divorce while she was in this fragile condition.[31]Those facts do not deserve the description "a tangled web of deception". This was not one of the more serious cases of bigamy. Nor, as the judge was careful to ascertain, was it a case of conduct designed to evade immigration restrictions. Whether this case crossed the custody threshold depended perhaps on the significance of the deception of Marina. As to that, the subsequent rather extraordinary history suggests that this was not of great significance. Here the facts of the offence merge into personal mitigation.[32]When the appellant fled to the United States he took both Marjorie and Marina with him. He and Marina set up home together in Oklahoma and Marjorie lived not far away. The appellant continued to sustain both women financially. He continued to work as a computer engineer in the company that had employed him in the United Kingdom. Marjorie accompanied him back to the United Kingdom for the funeral of his son and her stepson. Although no letter from Marjorie had reached the court, the judge was informed of an attendance note in which the defence solicitors had recorded a lengthy telephone call from Marjorie two days prior to the sentencing hearing in which she expressed her deep concern for the outcome. Marina wrote to the appellant in prison, expressing her love for him and her eagerness to see him again.[33]There is the further important element of personal mitigation that the appellant was arrested at the funeral of his much loved son, who had died in particularly tragic circumstances.[34]The circumstances that we have described significantly reduce the appropriate sentence for this offence. It did not demand a custodial sentence; an alternative should have been considered. The choice of the alternative was not, however, straightforward as the appellant had moved his residence to the United States and was only in the country for his son's funeral. He appears, however, to be a man of some substance. Had the charge of bigamy been the only one with which the judge had to deal, we consider that a substantial fine would probably have been the most suitable disposal.[35]However, the judge also had to sentence the appellant for failing to surrender to his bail. When the appellant was committed to the Crown Court for sentence the appellant concluded, not unreasonably, that he risked a substantial prison sentence. In these circumstances he took advantage of an offer of a job in the United States and left this country with the deliberate intention of evading justice. This was a serious bail offence, although the sentence that he was evading should not have been the custodial sentence that he apprehended. It posed a particularly difficult sentencing exercise for the judge.[36]Mr Blake conceded that, when the two sentences for which the appellant fell to be sentenced were considered together, a custodial sentence was appropriate and, in the unusual circumstances of this case, common sense, if not principle, supports the approach of considering a sentence which reflects the overall criminality of the appellant's behaviour. Sentences for breach of bail are currently receiving consideration by the Sentencing Guidelines Council and the facts of this case are so unusual that it is not an appropriate vehicle for attempting to lay down principle.[37]In these circumstances we have decided to approach this case by asking whether the appellant has already served long enough to reflect his offending or whether he should serve a further period of imprisonment. We have particular regard to the hardship of being taken into prison from the funeral of his son, as well as to the adverse effect of the overcrowded conditions that he is likely to have experienced. Our conclusion is that we should quash the sentence of six months' imprisonment and substitute a sentence that will result in his immediate result. That sentence will be three months' imprisonment, to be served concurrently with the three month sentence imposed for the breach of bail. _____________________

Cited in 2 later judgments