Ali, R. v [2008] EWCA Crim 2159

Case No 200802181/A5[2008] EWCA Crim 2159
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 2nd September 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE LAWS
MR JUSTICE JACK
SIR CHARLES GRAY
Between
R E G I N ACrownv
Between
BODRUL ISLAM ALI
Computer Aided Transcript of the Stenograph 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 F Mcgrath appeared for Appellant
J U D G M E N T

SIR CHARLES GRAY: This is an appeal against sentence by Mr Bodrul Ali which is brought with the leave of the single judge.

[2]The indictment which the appellant faced included four offences, a count of burglary and three counts of possessing Class A drugs. On 4th January 2008 pleas of guilty were entered to the drugs offences. At the trial on the remaining count of burglary, which commenced on 10th March 2008 before His Honour Judge Kemp, the appellant pleaded guilty to the burglary count following a Goodyear indication which had been given by the learned judge, to which we will return in due course. The judge imposed the following sentences: for the burglary, a sentence of 30 months' imprisonment was passed and for the drugs offences, a total of 12 months to run concurrently.[3]At the time of sentence the appellant was, as we understand it, on licence following a previous sentence of four-and-a-half years for aggravated burglary, which had been imposed on 2nd April 2004. The learned judge directed, pursuant to section 116 of the Powers of Criminal Courts (Sentencing) Act 2000, that the appellant should serve 6 months of that sentence before the sentences for the instant offences were to start. By the time he came to be sentenced on 10th April 2008 the appellant had spent 195 days in custody on remand. The learned judge directed that none of these 195 days should count towards sentence.[4]The facts of the burglary for which the 30 month prison sentence was passed can be briefly summarised as follows. On 24th September 2007 a Mr Bowley and his wife and a friend went on holiday and stayed in a caravan. At about 11.50 pm on the 26th September, Mr Bowley went to bed with the caravan locked and secured. A short while later he heard somebody moving around in the caravan. His wife screamed as the appellant entered their bedroom. Mr Bowley stopped the appellant as he tried to leave the caravan and in due course police officers arrived.[5]When he was interviewed the appellant said that he had been using drugs and he claimed that he entered the caravan to find somewhere to smoke the drugs.[6]There was a basis of plea which was the subject of some negotiation. Ultimately it took the following form: the appellant said that he entered the caravan intending to use it as a place to smoke drugs and steal property if there was worth anything taking. He believed the caravan to be unoccupied at the time that he entered. No complaint is or could be made of the learned judge's sentence of 30 months burglary.[7]Mr McGrath, on behalf of the appellant, advances two submissions on behalf of his client. The first is that having given a Goodyear indication, the judge should not have directed the return of the appellant to custody for 6 months pursuant to section 116 of the 2000 Act. Secondly, Mr McGrath submits that the learned judge was wrong to have directed pursuant to section 240 of the Criminal Justice Act 2003, that none of the 195 spent on remand should count towards sentence.[8]We will address those submissions in turn. As to the direction that the appellant should serve 6 months of the earlier sentence, Mr McGrath argues that the appellant was unaware at the time when he tendered his guilty plea that he was at risk of such a direction being made. It was not drawn to the appellant's attention by the judge or by counsel on his behalf, with the result, so it is submitted, that the appellant is left with a legitimate sense of grievance at the addition of this 6 months period.[9]When giving the Goodyear direction, the learned

judge said this:

"I make it clear that any indication I give relates to that count [by which he meant the burglary count] and that count alone, he [meaning the appellant] having already pleaded guilty to other counts on the indictment."
Later on he added:
"In my view, should he plead guilty to this count, and leaving aside whatever sentence falls to be passed in respect of the drugs' counts, I would be likely to impose a prison sentence; it would be not more than two-and-a-half years, thirty months."
[10]At the hearing when the Goodyear indication was given, which took place on 10th March 2008, no mention was made of the judge having the intention (it indeed he did have the intention) of adding to the custodial term 6 months from the earlier sentence passed in 2004. Although it is understandable that at the hearing on 10th March the learned judge should have been focusing his mind on the counts on the indictment then before him, we are persuaded that the appellant could reasonably have understood and did understand the judge to be saying that the maximum custodial term he would be ordered to serve was two-and-a-half years, and that only qualification to that was the possibility that additional penalties might be imposed in respect of the drugs offences. Accordingly, we accept that by what he said the learned judge inadvertently did give rise to a legitimate sense of grievance on the part of the appellant at the imposition of an additional 6 months from the prior sentence. Accordingly we accede to the submission made by Mr McGrath that that additional 6-month sentence should be quashed.[11]We turn to the second limb of the argument on behalf of the appellant, namely the judge's direction that none of the 195 days spent on remand in custody should count towards sentence. The provision pursuant to which that direction was made is section 240 of the Criminal Justice Act 2003. Subsection (3) provides that the court must direct that the number of days for which the offender was remanded in custody count as time served by him as part of the sentence. That is, however, subject to subsection (4), which provides in effect that subsection (3), which we have just quoted, does not apply, if and to the extent that rules made by the Secretary of State provide in the case of(i) a remand in custody which is wholly or partly concurrent with the sentence of imprisonment, or(ii) sentences of imprisonment are consecutive terms or to terms which are wholly or partly concurrent. There is a further subsection which provides that subsections (3) does not apply, if and to the extent that, in the opinion of the court, it is just in all the circumstances not to give a direction under that subsection.[12]It is clear that the judge was alive to the issue as to whether subsection (4) entitled him to give the direction which he was ultimately to give. That appears from the exchange that took place at the hearing on 10th April 2008, when the judge was about to sentence this appellant. The judge raised the question of the balance of the previous four-and-a-half year sentence and made observations about it.[13]We do not need to go into detail of the exchange that took place between the learned judge and counsel because we are satisfied, having listened to Mr McGrath's argument this morning, that the same reasoning which led us to conclude that the judge created a legitimate expectation on the part of the appellant by what he said at the hearing on 10th March 2008 that he would not direct that none of the 195 days spent on remand in custody should count towards sentence. It appears to us that the same process of reasoning has led us to quash the 6 months additional custodial term would lead to our quashing also the direction that the 195 days should not count towards sentence.[14]In addition we are satisfied, for the reasons that Mr McGrath has advanced before us this morning, that it would be illegitimate for the judge to depart from the mandatory direction that the number of days for which the offender was remanded in custody in connection with the offence should count as time served as part of the sentence. It does not appear to us that subsection (4)A(1) can apply in the circumstances of the present case, since there had been no administrative order that the appellant be returned to custody. It does not appear to us that it could be just in the circumstance of the present case for an order to be made depriving this appellant of the entitlement which he has by virtue of subsection (3) to a deduction of time spent on remand in custody.[15]Accordingly, we allow this appeal to the extent that we quash the directions made by the judge in relation to the 6-month period and the 195 days period to which we have alluded.