Attorney General's Reference No 17 of 2008 [2008] EWCA Crim 1341

Case No 2008/01922/A6[2008] EWCA Crim 1341
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday 22 May 2008
The Strand
London
WC2A 2LL
B e f o r e:
LORD JUSTICE LATHAM
(Vice-President of the Court of Appeal, Criminal Division)
MR JUSTICE DAVID CLARKE
and
MR JUSTICE McDUFF
ATTORNEY GENERAL'S REFERENCE No. 17 of 2008
UNDER SECTION 36 OF
THE CRIMINAL JUSTICE ACT 1988
Between
R E G I N ACrown- v -
Between
PATRICK SHEEHAN-DINLER
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 J Rees appeared for Solicitor GeneralMr Y Patel appeared for Offender
JudgmentThursday 22 May 2008
[1]This is an application by the Solicitor General under section 36 of the Criminal Justice Act 1988 for leave to refer to this court for review a sentence which she considers to be unduly lenient. We grant leave.[2]The offender is Patrick Sheehan-Dinler. He is 29 years of age. On 14 March 2008, at the Crown Court at Luton, for six counts of perverting the course of justice, he was sentenced by Her Honour Judge Mensah to one month's imprisonment suspended for 18 months on each count, consecutively. In addition, he was ordered to comply with a requirement to perform 200 hours' unpaid work within the 18 month period.[3]The background facts are startling. They relate to a course of conduct over a 17 month period between November 2004 and July 2006 when the offender was photographed by speed cameras in particular along a stretch of the A5134 Elstree Way in Borehamwood in which motorcycles ridden by him were seen speeding on 66 separate occasions. It is a 30mph speed limit. The speeds at which the motorcycles were ridden were mainly between 40mph and 60mph, although on three occasions the offender was travelling in excess of 70mph. The highest recorded speed was 88mph. About half of these speeding offences were committed whilst the offender was a disqualified driver. He had been disqualified on 27 April 2004 in the West Cornwall Magistrates' Court for 18 months under the totting up provisions following offences of speeding, driving without insurance and driving without a test certificate.[4]The offender was charged with perverting the course of justice. The reason for that was that it became apparent that whoever the rider of these motorcycles was, he took every step he could to ensure that he was not identified. The six counts reflect the fact that there were six different motorcycles involved. In relation to each of the motorcycles, the offender constructed by means of false identities the fact that he was the true owner. He also wore distinctive clothing on most occasions, but that varied from time to time so as to hide his identity. He was finally caught on 8 June 2006 riding the last but one of the motorcycles in the counts in the indictment.[5]The police visited the offender's house on 20 November 2006. When they asked him about these matters he told them that a number of his friends had registered their motorbikes at his address because they were of no fixed abode. That was a plain lie. He was arrested on 26 November 2006. The police then recovered from his house items of clothing which matched the clothing seen on the photographs and other items which linked him to the pseudonyms which he had used when registering the vehicles. When he was interviewed he declined to answer any questions.[6]Apart from motoring offences, the offender has two previous convictions. In June 2001 he was sentenced to a Community Punishment Order for an offence of threatening behaviour. In May 2003 he was sentenced to concurrent Community Punishment Orders for offences of handling stolen goods and obtaining property by deception. On 19 September 2006 he was convicted of driving without insurance and otherwise than in accordance with a licence.[7]In addition to the material to which we have referred, there were before the sentencing judge a psychiatric report and a pre-sentence report. They both told a very sad story in relation to the offender's background. It is clear from the psychiatric report that he had a fractured childhood, which included abuse. He had had great difficulty in coming to terms with life. It is the sort of background which this court sees producing offenders who have offended in much more serious ways than this offender. It is clear that the offences took place at a time when he felt anger at the way life had treated him, and it appears that his state of mind was that he did not care what became of him.[8]However, by the time of sentence, the position was considerably different from the position at the time that the offences were committed. The offender had developed a stable relationship with a girl who has now born him a son. According to the reports that we have seen, there has been a complete change in the offender's attitude to life. He has kept out of trouble since then and has a far more positive attitude. He has a stable job at which he is respected and indeed considered to be sufficiently responsible to be capable of being promoted.[9]There is no doubt that those background matters were the reason why the judge felt able to take an exceptional course in this case. In her sentencing remarks she said this:
"The reason I am suspending [the sentence] is because I am told that you have changed your attitude; you are remorseful; you have apologised to the court; and, in particular, you have apologised to the police who have had to spend an awful lot of time investigating the matter; [and] that you have not committed any other offences since this date."
The judge considered that she did not need to disqualify the offender from driving because she concluded that the suspended sentence and the Community Punishment Order were sufficient. She did not want to tempt him into driving while disqualified if for whatever reason there were difficulties in his not being able to drive, which would result in a breach of the suspended sentence and the imprisonment then becoming effective.[10]Mr Rees on behalf of the Solicitor General submits that, despite the mitigation that impelled the judge to take the course that she did, the only proper sentence for these offences was one of immediate imprisonment. He submits that this was a persistent course of conduct over a significant period of time. The offender's actions in seeking to avoid detection were deliberate. They were clearly actions which "cocked a snook" at authority. The consequence was that he avoided a significant sentence in relation to the speeding offences and avoided resulting orders of disqualification. The underlying offences of speeding showed a reckless disregard of the safety of other road users. In those circumstances it is said that there is no justification for not imposing an immediate custodial sentence.[11]Mr Patel, on behalf of the offender, prays in aid all the matters which clearly weighed with the sentencing judge. He adds that the offender has now completed 75 hours of the 200 hours' community work which he was required to carry out. He has behaved impeccably during the period since the trial. His employers remain committed to him. Any disqualification would create difficulties for him in travelling to work. It would also preclude him (at least until the disqualification had expired) from being able to carry out the work which his employers clearly want him to undertake on heavy goods vehicles.[12]We are in no doubt that where a person is convicted of perverting the course of justice it will be only the most exceptional of cases that does not result in an immediate sentence of imprisonment. In the present case, bearing in mind all the matters underlying the offences, and taking into account the pleas of guilty, we consider that the offender could not have expected less than 18 months' immediate imprisonment, subject to personal mitigation. Here there is substantial personal mitigation. Although we consider that immediate imprisonment cannot be avoided, we are accordingly able to reduce that sentence substantially. There is no need for us to repeat the mitigating features to which we have referred. We take into account the fact that the offender has completed a substantial proportion of the community penalty, and we take into account double jeopardy because the offender is facing imprisonment today, having been given a non-custodial sentence in the first instance. We can see from the papers that he has clearly been under considerable strain, as has his partner, as a result of the reference by the Solicitor General. We have come to the conclusion that we can reduce the sentence by a substantial margin to take into account those further matters. As an act of mercy, bearing in mind the way he has turned his life around, we conclude that the sentence of six months' imprisonment that was imposed by the judge, but suspended, is the appropriate sentence. We impose that concurrently in relation to each of the six counts in the indictment, but to be served immediately.[13]We turn to disqualification. Bearing in mind that the objective of the offender was to avoid that consequence as a result of his speeding offences, we consider that there is no justification for not imposing an order of disqualification. We will make it as short as we think appropriate to reflect the matters to which we have just referred. We impose 12 months' disqualification from holding or obtaining a driving licence for each of the offences, concurrently.[14]The consequence is that the offender will serve an immediate sentence of six months' imprisonment and will be disqualified from obtaining or holding a driving licence for 12 months from today.[15]So far as the commencement of the sentence is concerned, Mr Patel, have you taken instructions on that? We would be prepared to allow the offender until midday tomorrow to report to a police station so as to sort out his affairs.[16]MR PATEL: May I take instructions?

LORD JUSTICE LATHAM: Could you take instructions as to which police station he ought to attend?

[18]MR PATEL: Borehamwood Police Station, my Lord.

LORD JUSTICE LATHAM: We order that he should attend at twelve noon tomorrow at Borehamwood Police Station. His sentence will commence from that time. (To the offender) Mr Sheehan-Dinler, you will appreciate the consequence -- and your counsel will undoubtedly explain it. You will serve three months in prison and then there will be nine months during which you will be disqualified from holding or obtaining a licence. In addition, there will be a period of three months after you have been released when you will be subject to licence.