Lavery, R. v [2008] EWCA Crim 2499

[2008] EWCA Crim 2499Case No 2008/03816/A6
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday 9 October 2008
The Strand
London
WC2A 2LL
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)
MR JUSTICE OWEN
and
MR JUSTICE CHRISTOPHER CLARKE
Between
R E G I N ACrown- v -
Between
DOMINIC ROBERT LAVERY
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 J Morris appeared for ApplicantMr M Kellett appeared for Crown
J U D G M E N T
[1]This is an application for leave to appeal against sentence referred to the full court by the Registrar. On 24 November 2007 the applicant, Dominic Lavery, who was born on 9 September 1988 and is therefore now 20 years of age, appeared at the Crown Court at Bolton where he pleaded guilty to an offence of robbery. On 11 June 2008 he was sentenced to detention for public protection with a period specified under section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 of 30 months (less 215 days spent on remand). In passing sentence on the applicant His Honour Judge Everett took four offences of robbery into consideration. It is the circumstances in which such offences came to be taken into consideration that gives rise to this application.[2]The case against the applicant followed an unusual and troubling course. It arose out of an incident on 29 October 2007. At about 7.50pm a 30 year old man, Mr Radcliffe, was travelling on a bus from Rochdale to Littleborough when the applicant sat down in the seat immediately in front of him. The applicant then said, "Do you like your face?", turned around, head-butted Mr Radcliffe and then asked him if he had any money. Mr Radcliffe replied that he did not, at which point the applicant searched him and took £13 in cash and a college card. He then asked Mr Radcliffe if he had a mobile telephone and again said, "Do you like your face?", but then got off the bus.[3]The applicant was arrested on 5 November 2007. He declined to comment in interview, but after being identified by Mr Radcliffe and another woman who had been on the bus he was re-interviewed and admitted his involvement. It transpired that Mr Radcliffe suffered from learning difficulties and epilepsy and the attack had affected him badly.[4]In the course of his interviews by the police the applicant admitted the commission of a number of other offences: two committed in 2006 and two shortly after the index offence. On 9 November 2007 he signed both a schedule setting out particulars of five offences and a document headed "Other Offences Taken Into Consideration, Memorandum for the Information of the Accused" (the "TIC form"). The memorandum set out in relatively simple terms the basis upon which the court would approach those offences. Short details of the offences, as they appear on the TIC form (which did not set them out in chronological order), were as follows: Lavery in company with one other approached rear of secure dwelling, throws brick through window causing damage. Lavery entered the dwelling through the damaged window and is confronted by the 68 year old male occupant. Lavery punched the male occupant to his face causing his nose to bleed and also kicking the male. Lavery went on to enter the kitchen of the address where the 66 year old female occupant was in the course of making a 999 telephone call to the police. Lavery grabbed the telephone out of the female's hand, throwing it to the ground before kicking her on her shin. Lavery then stole a handbag from the hallway table, including a purse and other property." The second was in the following terms: 5. Lavery engages victim, a 20 year old with learning difficulties, in conversation and requests the use of the victim's mobile telephone. Lavery asked to see the victim's watch and ring and, having been given the jewellery by the victim, is later told he cannot have his property back. Lavery later led the victim to a dark, secluded back alley where he then assaulted him, putting the victim in fear." The third was in the following terms: 6. Lavery approached lone 25 year old male from rear in company with others. Lavery punches male and snatches briefcase together with mobile telephone and paperwork before making off towards Statham House." The fourth was in the following terms: 7. "28-29.10.2006 8. Lavery entered communal kitchen in premises via insecure rear window and proceeded to kick and damage internal doorway leading to flat. Lavery confronted by the male occupant and told the male to sit on bed, which he did. Lavery went on to search property and steal a watch, gold ring and clothing before exiting the premises." The form contained details of a further matter which in the event was not taken into account by the learned judge and which we therefore do not propose to relate.[5]The case first came before the resident judge for sentence on 14 February 2008. The learned judge expressed concern as to the relationship between the offences to be taken into consideration and the offence with which the applicant had been charged. He asked the Crown advocate who appeared before him on that occasion to discuss that question with his line manager or the officer in the case.[6]At the next hearing on 22 May 2008 the Higher Court Advocate representing the Crown Prosecution Service said that the case had been reviewed and that it remained the case that none of the matters set out in the TIC form would be charged. Not surprisingly His Honour Judge Everett was not satisfied with that explanation. He again adjourned the case and required the prosecution to submit a skeleton argument addressing the following four questions:(1) Why no consideration had been given to the TICs prior to the first hearing at the court.(2) Whether the guidelines in 'Operation Clean Sweep' were properly followed by the police with specific reference to the contents of the [applicant's] police interviews and any other informal interviews.(3) What the prosecution say are the judge's powers in general terms to increase a sentence properly to reflect the more serious offences to be taken into consideration.(4) What were his options to refuse to take matters into consideration, and what were the consequences should he so refuse.

The fourth was in the following terms:

[7]The case came before His Honour Judge Everett for a third time on 11 June 2008. A skeleton argument in response to the learned judge's request was produced. Annexed to it was a copy of the decision of this court in R v Miles [2006] EWCA Crim 256. On this occasion a different Higher Court Advocate attended on behalf of the Crown Prosecution Service. We have now seen a transcript of the hearing. The Higher Court Advocate in question was Dr Woods.[8]There are a number of features of that hearing that cause us grave concern. Suffice it to say at this stage that the learned judge did not receive from the Higher Court Advocate the assistance that he had requested. The exchanges between Dr Woods and the learned judge give rise to issues that we shall address in due course but do not directly affect the application for leave before us.[9]It is against that background that when he eventually passed sentence on the applicant on 11 June the learned judge made the following observations. Having made reference to the offences to be taken into consideration, he said:
"As will become crystal clear to you already, as it is to everybody else in this court, in sentencing you I am extremely unhappy with the task that I have to carry out and I have not been helped -- absolutely not been helped -- by the prosecution in this case, who have, in my judgment, basically abrogated their responsibilities as to how they should have prosecuted this case, but I have to deal with what I have got. I am told that, despite adjourning this case to see what the prosecution will do with the offences taken into consideration, most of which, if not all of which, are more serious than the charge on the indictment, I am told, in a rather pathetic stance carried out by the Crown Prosecution Service, that they would not prosecute these matters, notwithstanding your admissions, because of the difficulties evidentially, which is a complete and utter nonsense. I suspect that what you have said to your counsel is the truth; that you were told that, if you admitted these offences, you would not be prosecuted. I suspect there is more than a grain of truth in that. .... In considering what sentence I have to pass upon you, I have been helped in some features, if not in others. I have kept in mind the fact that, in Blackstone's Criminal Practice 2008, it has made it clear that a judge always has a discretion whether or not to comply with a request to take an offence into consideration; he should not take into consideration an offence which the offender is willing to admit if the public interest requires that the offence be dealt with by indictment. It is my view that these offences should have been dealt with by indictment, but the prosecution is steadfastly refusing to carry out its duty. Furthermore, it would be bad practice to take offences into consideration which are more serious than the offence on the indictment. I agree with that but, once again, I believe I am left in a position where the prosecution has not helped me at all and so I have to take these into consideration because it seems to me justice demands it. You should be sentenced for what you have done and you should at the same time be given the opportunity of wiping the slate clean. The prosecution's dog in the manger attitude carries no clout with me. So I have not been helped by the prosecution and I have considered what Blackstone has said."
Finally, the judge said: 14. "But I have to keep in mind, firstly, the fact that you are facing a higher sentence is because of your own very frank admissions; secondly, wrongly, the Crown, when given the opportunity to prosecute for these matters, decided not to and, astonishingly, today there was a suggestion made that at one stage, if I was unhappy with the offences taken into consideration, then I could ignore them, as if one could, in the circumstances of this case, a preposterous suggestion, in my judgment. I keep in mind the fact that you are still only a young man and your limited offending in the past."[10]We share the learned judge's concern as to the manner in which the case had been handled and presented. This narrative exemplifies the dangers of an approach which suggests that -- and we use colloquial language deliberately -- if a crime can somehow be cleared off the books then all is well. It is not. Inappropriate non-charging and under-charging are inimical to the administration of justice.[11]We turn then to the substance of this application. In passing sentence the learned judge concluded that he was obliged under the terms of the dangerous offender provisions in the Criminal Justice Act 2003 to impose a sentence of detention for public protection. He then went on to consider, as he was obliged to do, the minimum period to be served before the applicant would be eligible for consideration for release on parole. He began by observing that, viewed in isolation, the sentence that the applicant would have received for the index offence would have been round about the two year mark. But he continued:
"However, looking at the rather more serious offences that you admit you committed, the starting point, as I have told you, for robberies (effectively violent burglaries, whichever one calls it) in somebody's home, with persons present, at night, the starting point, after a trial, could be certainly something in the region of up to, it seems to me in this case, taking in mind your age and lack of previous convictions, perhaps twelve years and you would have received normally credit of one-third and so the notional determinate sentence would have been somewhere in the region of eight years."
At the end of his sentencing observations, the judge said: 17. "It is not clear to me what you are admitting in relation to offence number 4. You have admitted in terms the word robbery and so I have to sentence you and keep that in mind. I am prepared to accept you do not even know what happened yourself, but I am not so sure that that assists you. If it makes any difference, it is negligible, because of my remarks, in relation to offence taken into consideration number 1 in particular, but also because this forms part of a series of serious offences, over a period of time, all of which are either drink or drug related and I am quite satisfied at the moment whatever the position, in relation to offence number 4, that you are still that significant risk. 18. .... 19. Had it not been appropriate to impose a sentence for public protection, I would now have passed a sentence of five years' detention, taking into account all of these features; the seriousness and mitigating features and the Crown's abrogation of its responsibilities in this case."[12]The application gives rise to two issues as to the proper approach to be taken to offences that a defendant invites the court to take into consideration. First, how should the court approach offences to be taken into consideration that reveal offending of a substantially more serious nature than the offence or offences for which the defendant stands to be sentenced? Secondly, is the court entitled to take account of offences to be taken into consideration when assessing whether there is a significant risk to members of the public occasioned by the commission by the defendant of further specified offences under sections 225 and 226 of the Act?[13]As to the first issue, we take as our starting point the decision of this court in R v Miles [2006] EWCA Crim 256 in which the Lord Chief Justice (then President of the Queen's Bench Division) identified the respects in which offences to be taken into consideration may be relevant to sentence. He said:
"10. In relation to offences taken into consideration, we have these observations: the sentence is intended to reflect a defendant's overall criminality. Offences cannot be taken into consideration without the express agreement of the offender. That is an essential pre-requisite. The offender is pleading guilty to the offences. If they are to be taken into account (and the court is not obliged to take them into account) they have relevance to the overall criminality. When assessing the significance of TICs, as they are called, of course the court is likely to attach weight to the demonstrable fact that the offender has assisted the police, particularly if they are enabled to clear up offences which might not otherwise be brought to justice. It is also true that co-operative behaviour of that kind will often provide its own very early indication of guilt, and usually means that no further proceedings at all need be started. They may also serve to demonstrate a genuine determination by the offender (and we deliberately use the colloquialism) to wipe the slate clean, so that when he emerges from whatever sentence is imposed on him, he can put his past completely behind him, without having worry or concern that offences may be revealed as that he is then returned to court. 11. As in so many aspects of sentencing, of course, the way in which the court deals with offences to be taken into consideration depends on context. In some cases the offences taken into consideration will end up by adding nothing or nothing very much to the sentence which the court would otherwise impose. On the other hand, offences taken into consideration may aggravate the sentence and lead to a substantial increase in it."
[14]There is no reason in principle why an offence to be taken into consideration and which is of a more serious nature than the index offence or offences, should not result in a higher sentence than would otherwise have been the case, as the sentence will reflect the defendant's overall criminality. That said, we share the concern of the learned judge that it is highly unsatisfactory for a court to be faced with one or more offences to be taken into consideration of a substantially more serious nature than the index offence, particularly where, as in this case, there would not appear to have been any good reason why the robbery of 30 October 2007 could not have been charged.[15]In this context Mr Morris, who appeared for the applicant, helpfully invited our attention to the relevant parts of the Crown Prosecution Service Codes of Practice which provide:
"A defendant should not be invited to have an offence taken into consideration in the following circumstances."
There then follow a number of subparagraphs. Subparagraph (d) provides: 24. "If the offence to be taken into consideration is likely to attract a greater sentence than the offence for which he is to be sentenced." It is to be regretted both that the Code would not appear to have been followed in this case; nor were these provisions drawn to the attention of the learned judge.[16]We would add only this. It will be open to a judge to refuse to take an offence into consideration if he forms the view that to do so would be to distort the sentencing exercise and to lead to an unjust result and that the public interest requires that the offence be charged. But we recognise that it may be extremely difficult for a judge to decline to take offences into consideration when a defendant wants to wipe the slate clean. That underlines the importance of the prosecution following the relevant Code of Practice.[17]As to the second of the issues, it is in our judgment clear from section 229 of the Act that the court is entitled to take account of offences to be taken into consideration when assessing whether there is a significant risk under sections 225-228. Under both section 229(2) and (3) the court may take account of "any information which is before it about any pattern of behaviour of which the offence forms part" and "any information about the offender which is before it".[18]We turn therefore to the conclusion at which the learned judge arrived in this case. The first point to be made is that in the light of the information before him, the learned judge had no alternative but to find that the dangerous offender provisions of the 2003 Act were satisfied, and in consequence to impose a sentence of detention for public protection. In October 2007 the applicant was convicted of a specified offence, namely a racially aggravated public order offence. That gave rise to the statutory assumption under section 229(3). Furthermore, the assessment of risk contained in the pre-sentence report contained the following conclusions:
"Although the victims will recover from the trauma experienced by the offences, it is essential to note that there has been a serious escalation in Mr Lavery's offending, and this is of a great concern. Mr Lavery has demonstrated that he has the propensity to commit serious offences when in the company of like-minded peers and when he feels the need to fund his alcohol use. In light of the above it is my assessment that Mr Lavery presents a significant risk of serious harm to the public. Mr Lavery is assessed as a dangerous individual presenting a high risk of harm and a high risk of further offending."
The author went on to conclude that in his view the facts of the case and the circumstances of the applicant satisfied the dangerousness criteria under the Act. His careful analysis was supported in a number of respects by the report from the consultant psychiatrist produced by the defence.[19]It is clear from his sentencing observations that the learned judge took account of the offences to be taken into consideration when considering the application of section 225 of the Act. It is submitted on behalf of the applicant that the judge erred in his approach in describing all four of the offences as robbery, when in the course of the hearing counsel had disputed whether that committed on 28/29 October in fact amounted to robbery rather than to burglary. That argument, as Mr Morris candidly conceded at the outset of the hearing, was undermined to a considerable degree by the transcript of the interview in which the applicant had admitted the offence -- a transcript with which he had only been provided shortly before the hearing before us. That, sadly, revealed yet another failing on the part of the prosecution. Mr Morris had taken the point at the hearing on 11 June. He could and should have been supplied with the transcript at a much earlier stage.[20]It is further submitted on behalf of the applicant that the offence committed on 1 November amounted to theft, but not to robbery. We accept that those offences may have been misdescribed in the schedule of TICs, but we do not consider that a correct description would have deflected the learned judge from his conclusion as to the application of the dangerous offender provisions given the serious nature of the offence committed on 30 October 2007.[21]As to the minimum term, the learned judge faced a difficult task. In our judgment the conclusion at which he arrived was a fair reflection of the overall criminality, and gave due credit both for the plea of guilty and for the assistance to the police by accepting responsibility for offences that might otherwise not have been brought to justice. We add that the learned judge is to be commended for the evident care and sound judgment that he displayed in the face of the considerable difficulties presented by the manner in which the case was conducted by the prosecution.[22]We have also had the opportunity this afternoon to see a number of reports from the prison authorities and, furthermore, a letter written to us from the applicant himself. It is greatly to the applicant's credit that he has applied himself in such a positive way during his time in detention. We have no doubt that that application will pay dividends in due course; but it does not persuade us that the sentence imposed by the learned judge was arguably manifestly excessive. It follows that this application must be refused.[23]MR MORRIS: My Lord, would your Lordships grant a representation order?

THE LORD CHIEF JUSTICE: Mr Morris, that is not an application which usually finds much favour if it is unsuccessful, but we are grateful to you and your presence here was absolutely essential. So, yes, we will make that order.

[25]MR MORRIS: My Lord, I am grateful. _________________________________