H, R v [2007] EWCA Crim 805

[2007] EWCA Crim 805Case No 2006/04975/A8
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE INNER LONDON CROWN COURT
HIS HONOUR JUDGE ISSARD-DAVIES
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 3 April 2007
Before
LORD JUSTICE PILLMR JUSTICE HENRIQUESSIR RICHARD CURTIS
Between
RRespondentHAppellant
MR RHYS DAVIES for AppellantHearing Hearing date : 30 January 2007
Judgment
[1]On 16 August 2006 in the Crown Court at Inner London before His Honour Judge Issard-Davies and a jury, H was convicted of robbery on indictment 0756. He pleaded guilty before Magistrates and was committed for sentence for a further offence of robbery and an offence of attempted robbery. On 6 September 2006, before the same judge, H was made subject to an extended sentence of 11 years pursuant to Section 228 of the Criminal Justice Act 2003 (“the 2003 Act”). On the offences for which he was committed for sentence, indictment 0501, he was sentenced to 3 years detention for robbery and 3½ years detention concurrent for attempted robbery. For the offence of robbery on indictment 0756, he was sentenced to 3½ years detention consecutive. The total custodial term was stated to be 7 years imprisonment to which an extension period of 4 years was added under Section 228(2) giving a total extended sentence of 11 years.[2]H appeals against sentence by leave of the single judge.[3]At 5:30am on 22 May 2005, the complainant ML was walking home across Streatham Common accompanied by a male friend. A group of males approached them. The appellant pushed the victim to the floor. He kicked her two or three times in the head and pulled her handbag from her shoulder until the strap broke. Three other males held the male friend down on the ground. The appellant took the credit card from the victim’s handbag, kicked her and told her to give him a PIN number. She gave him a false number. He searched her and went off with her handbag containing a mobile telephone, a purse containing £15, and some other personal items. The appellant was later found hiding in a garden. He made no comment on interview.[4]The victim felt dizzy and sick. She suffered from concussion and had to wear a neck brace for a week. She had trouble sleeping and became nervous of groups of males.[5]On 12 July 2005, while on bail, the appellant committed a further robbery when he pinned down a man on a bus and took property from him. For that offence, he was sentenced to a detention and training order for 4 months at the South Western Youth Court. Having completed that sentence, he remained on bail for the offence on indictment 0756.[6]In the early hours of 3 July 2006, two young women alighted from a bus in Stockwell (indictment 0501). The appellant ran towards them and grabbed the shoulder bag of one of them. There was a struggle in the course of which the victim’s arm was scratched and the strap broke. One of the women dialled 999. Soon afterwards, the appellant returned and said: “Give me my f… keys, you stole them”, he said: “Give me £20. Do you want to be stabbed?” while reaching for an object in his pocket. He ran off but was found nearby by the police with some of the stolen property. He was also in possession of a folding knife.[7]The appellant’s date of birth is 26 November 1989. He had previous convictions, including that already mentioned, and an offence of wounding in February 2004 for which he was made subject to a supervision order for eighteen months. That offence involved stabbing with a knife.[8]When sentencing the appellant, the judge stated that despite his youth, the appellant was a dangerous offender. The judge rightly considered an extended sentence under Section 228 of the 2003 Act to be appropriate and that assessment is not challenged. The pre-sentence report referred to problems with his upbringing and concluded that he posed a high risk of re-offending with a high risk of harm to the public. The appellant expressed remorse but had little awareness and understanding of the consequences of his actions. He did, however, have a positive attitude to education and had approached community support agencies.[9]On behalf of the appellant, Mr Rhys Davies submits that the total sentence of 3½ years for the offences of 3 July 2006 was too long and that the overall custodial term of 7 years was too long. He relies on the youth of the appellant, who is still only 17 years old. He refers to Attorney General’s References Nos. 4 and 7 of 2002 [2002] EWCA Crim 127, where guidance was provided for sentencing for robberies in public places of mobile phones and small sums of money. Mr Davies also refers to the case of Chapman [2006] EWCA Crim 1919 where a defendant aged 18, with previous convictions, and for repeated offences of attempted robbery was, sentenced to a total of 4 years in custody, upheld on appeal.[10]A feature of the sentence was of course the imposition of consecutive extended sentences. The court indicated to counsel that it proposed to reserve judgment having been told that the appropriateness of that form of sentence, and other legal issues, was being considered by a court presided over by the Vice-President. The inappropriateness of consecutive extended sentences, as distinct from consecutive sentences generally, was not a point taken by counsel. On 22 March 2007, the court gave judgment in ‘C’& Ors [2007] EWCA Crim 680. Having considered the statutory provisions, and the practice followed by the Secretary of State, the court stated:
“17. But the fact that these practical solutions are not mandated by the 2003 Act underlines why consecutive sentences under the 2003 Act should be approached with great caution. Nonetheless, as we have said, they can be valuable tools in the sentencer's armoury. One particular example is where a defendant is charged with repeated affrays. In such a case, even though an extended sentence may be mandated, the sentencer has to work within the confines of a maximum sentence of three years imprisonment. In such circumstances, consecutive sentences may be the only way to impose an appropriate custodial punishment and provide for a realistic extended period on licence. 18. Having explained how the sentences can be made to work, and explained the pitfalls, we would not expect this court to interfere with consecutive sentence orders unless the appellant can establish that an insuperable difficulty exists in giving effect to such an order in his case. 19. In summary, our conclusions as to the practice to be adopted in dealing with consecutive and concurrent sentences in this complex area of sentencing are as follows: a. There is nothing unlawful about the imposition of a concurrent or consecutive sentence within either regimes relating to extended sentences, and indeed, as explained by Hooper LJ in R –v- O'Brien et al[2006] EWCA Crim 1741, where sentences of life imprisonment or imprisonment for public protection are imposed under chapter 5. This court will not interfere where extended or indeterminate sentences were justified, unless the practical result is manifestly excessive, or for some reason gives rise to real problems of administration. b. Nonetheless, judges should try to avoid consecutive sentences if that is at all possible and adjust the custodial term or minimum period within concurrent sentences to reflect the overall criminality if that is possible within other sentencing constraints.”
The conclusions at 18 c. and d. are not relevant to the present case.[11]These were serious offences and represented a continuing course of conduct. The later offences were committed while on bail. The violence was considerable on the earlier occasion and involved the threat to use a knife on the later occasion. The appellant had other convictions and presents a high risk of future offending.[12]In our judgment, a substantial overall sentence was required and it was not inappropriate to pass consecutive extended sentences in the circumstances of this case. The sentence of 3½ years for the offence on indictment 0756 of which he was convicted was entirely appropriate. While a consecutive sentence was required for the offences on indictment 0501, we have regard to the youth of the offender and the need, in that context, not to make the overall sentence too long.[13]While the sentences on indictment 0501 will remain consecutive to that on 0756, they were too long. They will be quashed and sentences of 18 months concurrent with each other, on each count, substituted, giving a total custodial term of 5 years. 64 days spent on remand will count towards sentence. The extension period will remain 4 years, that is, 2 years on 0501 and 2 years on 0756, to take effect in accordance with the statute, giving a total extended sentence of 9 years (‘C’ paragraph 15).[14]To the extent indicated, this appeal is allowed.