Billy Joe (Aka William) Temple, R v [2008] EWCA Crim 2511

[2008] EWCA Crim 2511Case No 2008/3321/A9
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 16th October 2008
Strand
London, WC2
B E F O R E:
MR JUSTICE GRIFFITH WILLIAMS
THE RECORDER OF WINCHESTER
(His Honour Judge Brodrick)
(sitting as a judge of the Court of Appeal, Criminal Division)
Between
R E G I N ACrown-v-
Between
BILLY JOE (AKA WILLIAM) TEMPLE
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 S Field appeared for Appellant
J U D G M E N T
[1]THE RECORDER OF WINCHESTER: This appellant, Billy Joe Temple, aged 26, appeared at the Crown Court at Chelmsford on 10th March 2008, where he pleaded guilty before His Honour Judge Hayward Smith QC to count 1 in the indictment, alleging blackmail. That was a plea entered on rearraignment and after the appellant had sought a Goodyear indication, to which we will return in due course, and after the Crown had indicated that they were prepared to leave count 2, a charge of robbery, on the file marked in the usual terms.[2]On 19th May 2008 the appellant was sentenced to a term of 4½ years' imprisonment. A direction was made under section 240 of the Criminal Justice Act 2003 that 220 days spent on remand should count towards the sentence.[3]He now appeals by leave of the single judge.[4]The appellant appeared together with a co-accused, who was found not guilty on the count of blackmail. The matter arises in this way. The complainant, a 60-year-old man, had a son, Stephen, with drug problems and as a result of those drug problems it was accepted by the Crown that the son had accrued debts which the appellant was seeking to settle.[5]On 28th September 2007 the complainant was at a friend's house intending to take her to London. He was sitting in a car, putting details into a satellite navigation system, when three men walked towards the car. One of the three, the appellant, knocked on the window. The complainant partially opened the window and spoke to the appellant, and it was made clear that the female friend should leave. She did so, but she had the good sense to open the windows of her house nearby in order to try and listen to what was going on.[6]The appellant said that the son had committed a burglary at an address that he, the appellant, was connected with and that around £5,000 was missing and he wanted it back. The complainant was told that if he did not get the money back he would be shot, as would his son. The appellant told the complainant that he would get a chance, but that he wanted the money. The complainant protested and tried to talk back, unsuccessfully. It was made clear that if the police were involved there would be consequences.[7]Then the appellant made a call on his mobile phone and put the phone on loudspeaker, so that the complainant could hear what was said by the person on the other end of the line. The appellant asked the man on the phone what would happen to the complainant if he did not comply with the request and the man replied, "You'll be hurt really badly." As a result, and not unexpectedly, the complainant was terrified and agreed to what was proposed. He was provided with a mobile phone number to contact once the money had been raised. He had about £100 in his possession and that was taken from him.[8]Notwithstanding the warning about informing the police, the police thankfully were informed and effectively set a trap. It was decided that a meeting would be arranged for the purpose of handing over the money, but that undercover police officers would attend.[9]On 4th October the appellant contacted the complainant and asked where the money was. The complainant was able to stall him for a couple of days, and then over the weekend of 6th/7th October an undercover police officer rang the mobile number that the appellant had provided to the complainant and spoke to someone who identified himself as Billy. Arrangements were made to meet at a McDonald's on the M11.[10]The meeting went ahead. The appellant arrived in a Vauxhall Vectra with another man, and it was the other man who spoke to the complainant. When it became apparent that the matter was a set-up involving undercover police officers, the Vauxhall Vectra drove off pursued by police officers. The car was stopped and the appellant at the time was driving it. He was arrested and interviewed and made no comment about the second meeting. In relation to the first he said he thought it was a travellers' meeting.[11]The appellant sought a Goodyear indication from the learned judge. In order to do so a handwritten document was prepared entitled "Potential Basis of Plea". That may perhaps provide some explanation for the fact that it is a document which contains a very large number of points, many of them peculiarly within the knowledge of the appellant and outside the knowledge of the prosecution. It is not a document which was ever signed by the prosecution. Indeed, in opening the case the prosecution made it clear at the outset that the Crown had indicated previously they did not accept it, but that in relation to the critical difference, the learned judge was reminded that he had indicated there was no need for a Newton hearing. The critical difference was that the appellant was saying, "I didn't personally make the threats. They were simply made in the course of the telephone conversation."[12]The appellant has two previous convictions for threatening behaviour and, as we have said, he is 26 years of age.[13]There were reports before the learned judge, in particular a psychological report to which we will turn in due course.[14]Passing sentence, the learned judge said it was a very unpleasant offence. The victim was subject to threats of serious violence and he was told that his son, too, would be seriously hurt, including being shot in the head. Not surprisingly, both were terrified. A little later the learned judge said that:
"In mitigation I take into account your plea of guilty, albeit at a very late stage in the proceedings. In your basis of plea you contend that it was not you who uttered the threats but you accept that the threats were made in your presence and that you went along with them and took full advantage of them in ensuring that [the complainant] was terrified and you did so in an attempt to obtain money from him. The prosecution do not accept that part of your basis of plea. When the matter was aired before me on a previous occasion I indicated that I felt that whichever version was correct and whether or not you personally uttered the threats you went along with them and I therefore felt that a Newton hearing was unnecessary."
[15]We should have added that when the Goodyear indication was requested, the learned judge indicated that the maximum sentence following a contested hearing would have been a sentence of 6 years' imprisonment. It was following that indication and the Crown saying that the robbery count would lie on the file that the appellant pleaded guilty. In due course, after the reports were obtained, the learned judge passed the sentence of 4½ years' imprisonment, which is now submitted by Mr Field, on behalf of the appellant, to be manifestly excessive.[16]Two points are taken on behalf of the appellant. First, that the learned judge failed to have regard to the basis of plea and, second, that he failed to have sufficient regard to the content of the reports.[17]We are bound to express surprise that any great weight was attached to the first of these points because, as we have indicated, the document was headed "Potential Basis of Plea" and it was made clear throughout that the prosecution did not agree with it and had not signed it. It does not surprise us, given the content of the document, that it was unsigned because, as we have said, much of it was peculiarly within the appellant's own knowledge and therefore it was not a document which any sensible prosecutor was likely to sign, unless supported by independent evidence of which there was none.[18]This is not the only case to come before this constitution in the last few days in which undue reliance has been placed on an unsigned basis of plea. A basis of plea should normally be expected to set out the different facts, different to those in the prosecution papers, on the basis of which the defendant is prepared to admit his guilt. As we have indicated, this document went much further.[19]In our view, too many practitioners have either forgotten the guidance given by this court in the case of R v Underwood or they choose to ignore it. Underwood is reported in [2005] 1 Cr App R 178. It was a reserved judgment delivered by Judge LJ (as he then was). In view of the fact that this case appears to be frequently ignored, we cite from the first part of the headnote in that decision:
"The essential principle in relation to sentencing was that the judge must do justice. So far as possible the offender should be sentenced on a basis which accurately reflected the facts of the individual case. Where the defendant pleaded guilty on a factual basis different from that which appeared from the Crown's case, the responsibility for taking any initiative and alerting the prosecutor to the areas of dispute rested with the defence. If the Crown accepted the defendant's account a written agreement, signed by both advocates, should be made available to the judge, if possible before the acceptance of any plea or pleas. The judge was not bound by any agreement between counsel and was entitled of his own motion to insist on a Newton hearing (R v Newton (1983) 77 Cr App R 13). Where the prosecution disputed the defence version or where it was ignorant of facts raised by the defence the court should be notified in writing of the points in issue. If the defendant was denying that a specific criminal offence had been committed, the tribunal for deciding whether the offence had been proved was the jury and a Newton hearing would be inappropriate. Where the impact of the dispute on the eventual sentencing decision was minimal, a Newton hearing was unnecessary. Where a Newton hearing was appropriate it should be held immediately, unless that was impracticable for some reason. The defendant should be called to give evidence in support of facts which were exclusively within his knowledge. If he did not, then, subject to any explanation, the judge might draw such inferences as he thought fit from that fact. The judge might reject assertions advanced by the defence even if the Crown did not offer positive contradictory evidence. The judge was entitled to decline to hear evidence about disputed facts if the case advanced by the defendant was absurd or obviously untenable. If so, the judge should explain why he reached that conclusion."
Then the learned Lord Justice (as he then was) went on to deal with the situation in a Newton case.[20]A useful summary of that decision is set out in the current edition of Archbold, part way through chapter 5 at paragraph 73, although it should be noted that the reference to Underwood in that passage is incorrect.[21]In the present case, the main dispute was what was said to have happened at the scene and whether the appellant issued threats himself as the prosecution suggested, or whether the appellant handed a telephone to the complainant knowing that threats would be issued via the phone.[22]The learned judge concluded that a Newton hearing was not needed on this particular point. We agree with that view. If anything, the making of threats over the phone by someone higher up the chain would have made the position worse. It follows in our judgment that the learned judge was not bound to give this unsigned basis of plea any more weight than he considered to be appropriate. There is therefore nothing in the first point advanced on behalf of the appellant.[23]Turning to the second point, it would appear that it was accepted that there was an outstanding debt, albeit not one which was likely to be enforceable in a court of law.[24]It is against that background that we have to consider the report of Graham Rogers, a consultant psychologist, which was also before the learned judge. That report shows that the appellant is learning disabled, with an IQ score between 59 and 61, meaning that he functions at an intellectual level in the lowest one per cent of the population. His reasoning skills are described as naïve and simplistic, though he was able to accept responsibility for his behaviour. With correct supervision and monitoring, he was assessed as a low risk reoffender. Given his naïvety and poor reasoning skills, Mr Rogers concluded that the appellant would not have fully appreciated the impact of his actions on the complainant.[25]We do not for a moment seek to undermine the seriousness of offences of blackmail. They are all too often mean and calculating offences, where fear is instilled for the purpose of ensuring that the unwarranted demand is met. Nevertheless, in the circumstances of the present case, we have come to the conclusion that a sentence of 4½ years is manifestly excessive in the circumstances of this case, in part because it appears to fail to give full account for a plea at the earliest opportunity when this plea was open and, second, because in our judgment it fails fully to reflect the personal mitigation and the very poor thinking skills of this individual appellant.[26]We therefore quash the sentence of 4½ years' imprisonment and substitute a sentence of 3 years' imprisonment. The order for time to count will remain in effect and to that extent the appeal is allowed.[27]MR FIELD: Thank you very much, my Lords.

MR JUSTICE GRIFFITH WILLIAMS: Thank you, Mr Field. ______________________________