Cundell, R. v [2008] EWCA Crim 1420

Case No 2008/01040/A3[2008] EWCA Crim 1420
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 6th June 2008
Strand
London, WC2
B E F O R E:
LORD JUSTICE SCOTT BAKER
MR JUSTICE BURNETT
HIS HONOUR JUDGE ROBERTS QC
(sitting as a judge of the Court of Appeal, Criminal Division)
Between
R E G I N ACrown-v-
Between
DANIEL DEAN GLENN CUNDELL
Computer Aided Transcript of the Palantype Notes ofWordwave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr G Short appeared for Appellant
J U D G M E N T
[1]MR JUSTICE BURNETT: On 6th February 2008 at the Crown Court at Leicester, His Honour Judge Collis sentenced the appellant to a term of imprisonment of 2 years and six months following a plea to burglary.[2]With the leave of the single judge, he appeals against that sentence on the ground that it was manifestly excessive.[3]The facts giving rise to the offence are relatively straightforward. On the afternoon of 7th July 2007 the caretaker at Loughborough College was called out because an alarm at the college had been activated. Together with a friend called Mr Mills, he went to the college to investigate. Whilst they were walking along one of the corridors, his friend came across the appellant on all fours emerging from a broken glass panel in a door. The appellant was challenged and Mr Mills tried to detain him. In response, the appellant feigned an asthma attack and was able to get away. Mr Mills noted that the appellant had cut his hand in the process of coming through the glass door, and so in due course a DNA check was made and the blood quickly linked to the appellant.[4]On 9th August 2007 the appellant was arrested. He denied being present at the college on the day in question and provided an alibi. He was unable to explain why the blood found at the scene matched his, but indicated that he had once worked at the college as an office technician.[5]As a result of the appellant's denial at that stage, an identification parade was held and Mr Mills identified him.[6]The appellant was charged on 10th August 2007 with burglary. He appeared at Loughborough Magistrates' Court on 21st September. He did not admit his offence at that stage. The magistrates sent the case to the Crown Court at Leicester.[7]The first hearing was to take place on 6th February 2008. However in the meantime, in December 2007, the appellant admitted the offences to the police and asked for a number of other offences to be taken into consideration. They concerned the theft of a number of laptops, worth £4,632 from Loughborough College on 27th September 2007, the theft of a stereo worth £100 from a car on 18th September 2007 and the theft of a stereo worth £200 from a car on 22nd September 2007. It will immediately be clear that all of those offences that were in due course taken into consideration by the sentencing judge were committed whilst the appellant was on bail.[8]The matter came before Judge Collis on 6th February 2008 when, as we have indicated, the appellant pleaded guilty to burglary and asked that the other three matters be taken into consideration. The judge acceded to a request to proceed immediately to sentence, considering that a pre-sentence report was in that case unnecessary.[9]The appellant's antecedents were before the judge. They are appalling. He was born on 12th August 1976, and so was 31 the time he was sentenced. A steady stream of serious offending stretched back to the time when he was 18. They comprise a large number of convictions for theft, handling stolen goods, obtaining property by deception, and burglary. There are 25 such offences. Additionally there are sexual offences, fraud and other like offences, public disorder offences and offences relating to his dealings with the criminal justice system. There are also some drugs offences.[10]At the time of his being sentenced by Judge Collis, the appellant had just completed a short sentence of imprisonment imposed on him in December 2007 for a sexual offence. He was also the subject of a community order which had been imposed by Leicester Magistrates' Court in September that year. That order was revoked by the judge.[11]In May 2005 the appellant had been sentenced to a total of 34 months' imprisonment. Twenty months of that total resulted from two non-domestic burglaries, thus similar to the offence for which the judge was sentencing him, and a further ten months for other offences of dishonesty.[12]In his sentencing remarks, the judge recognised that he was concerned with a non-domestic burglary, as well as taking account of the other offences to which we have referred. He noted all the relevant features, including that the burglary had taken place during daylight hours when the college was closed. He identified the underlying problem suffered by the appellant as being one of drug addiction. It was to feed his drug habit that the appellant engaged in crimes of dishonesty. He had regard to the appellant's appalling antecedents. He also referred to the appellant's guilty plea in these terms:
"The great problem is, as far as mitigation and credit is concerned, your plea is extremely late. It is very, very late in the day. It is not the day of the trial but it would have been. You denied it right up until very, very recently and that caused a lot more work for the police and everybody else."
That observation appeared to overlook that the appellant had come clean two months earlier.[13]Two grounds are advanced in support of the appellant's contentions. First, it is argued that the judge was wrong to consider the plea as very late, but should have instead given the appellant a discount for his plea of one-third; that is to say, full credit. Secondly, it is said the judge took the period of imprisonment imposed in 2005 as a starting point and should not have done.[14]In giving leave, the single judge saw nothing in the second point and neither do we.[15]So far as the first point is concerned, it is clear that the judge considered the plea to be a very late one. It is reasonably to be inferred from the language used by the judge that he had in mind a reduction from his notional starting point of about ten per cent. We say that because that is the recommendation set out in the Definitive Guideline on this matter provided by the Sentencing Guidelines Council.[16]As is well known, the maximum discount of one-third is usually available in circumstances where a defendant in criminal proceedings accepts his guilt at the earliest opportunity. That may be at the first hearing before the Magistrates' Court, but it is well recognised that the earliest reasonable opportunity may come rather sooner. In our judgment, this is one of those cases. When the appellant was arrested he was confronted with the account of what had happened and the DNA evidence. He persisted in his denials, causing an identification process to be gone through, and then he failed to take the opportunity of accepting his guilt when he appeared before the Magistrates' Court. As we have indicated, he first accepted responsibility in December 2007, when speaking to the police about other matters, and then of course he confirmed it at his first appearance at the Crown Court, at which time a trial date would have been set.[17]Taking account of all those factors, in our judgment a discount of about 25 per cent would have been reasonable. That is consonant with the recommendations of the Sentencing Guidelines Council. He was not entitled to full credit.[18]We do not believe that the judge's implicit starting point of about 33 months can be criticised at all on the facts of this case. The appellant's offending history demonstrates that he is a menace to the public. The recent history suggests that it is likely only to be whilst he is in prison that he ceases offending.[19]However, taking account of the fact that in our judgment a rather higher discount was appropriate than allowed by the judge, we allow the appeal to the extent of quashing the sentence imposed and substituting a term of imprisonment of 2 years in its place.[20]MR SHORT: I am obliged. ______________________________