Good, R v [2008] EWCA Crim 2923

[2008] EWCA Crim 2923Case No 2008/4988/C3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 14th November 2008
Strand
London, WC2
B E F O R E:
LORD JUSTICE HOOPER
MR JUSTICE BEATSON
HIS HONOUR JUDGE JACOBS
(sitting as a judge of the Court of Appeal, Criminal Division)
Between
R E G I N ACrown-v-
Between
GARY GOOD
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 M Butt appeared for AppellantMr R Cherrill appeared for Crown
J U D G M E N T

LORD JUSTICE HOOPER:

On

[1]14th August 2008 at the Crown Court at Hove, before Mr Recorder Gold QC and a jury, the appellant was convicted of one count of assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861.[2]We can take the facts briefly, because the point of law raised in the conviction appeal only incidentally concerns the facts. The case against the appellant was that he had punched the complainant in the face. There had been some earlier altercation. As the complainant left the nightclub it was his evidence that a man he was to identify as the appellant punched him, and he sustained a broken nose and two broken front teeth. There was other evidence supporting the prosecution's case and, from the appellant himself and from evidence he called, evidence to contradict the prosecution case.[3]The appellant was examined-in-chief and then cross-examined. We do not have a transcript of the cross-examination, but a number of matters were put to the appellant by Mr Cherrill on behalf of the prosecution and it was, it has been agreed, a significant cross-examination.[4]Having put all the matters that Mr Cherrill wanted to put in detail, he ended up with this question:
"You were acting out of a desire for revenge. You punched him twice in the face and then celebrated by raising your hand and saying, 'I am the master, I am the master'; is that true?"
Mr Cherrill fairly accepts that that was a question which could be described as self-indulgent. It was, again to use his words, "the big flourish at the end of the cross-examination".[5]The appellant replied either "I am not that type of person" or "that's not the kind of person I am", both of which mean the same thing.[6]Mr Cherrill told the judge that he had an application to make. The jury were sent home. Mr Cherrill told the judge that he wanted to consider overnight as to whether to make an application to allow the previous convictions of the appellant to go in under section 101(1)(f) of the Criminal Justice Act 2003, namely the provision that relates to the creation of a false impression.[7]The next morning Mr Cherrill, having decided he wished to make the application, made his submission and Mr Butt replied. As part of his reply he submitted that this was an ambiguous rolled-up question and that the judge could not be sure that the answer given by the appellant related to the whole of the question or only to the last part namely, "You shouted 'I am the master, I am the master.'"

The judge, having heard argument from both counsel, expressed his conclusion in the following way:

"... I have no doubt that what the impression the defendant was trying to convey was that he was not someone who would behave as a question of totality in the way that Mr Stone's assailant behaved on the night in question; that is a false impression and it is a false impression in my judgment which the prosecution are entitled to correct."
[9]Having been given leave to correct the alleged false impression, Mr Cherrill established that the appellant had been convicted of assault occasioning actual bodily harm shortly before and that in 2005 he committed a common assault, for which he had received a conditional discharge. Mr Butt then established that the appellant had pleaded guilty to both those offences.[10]Mr Butt complains about the directions that thereafter followed. However, we do need to examine those directions. We have no doubt that the judge was wrong to reach the conclusion on the evidence that was available to him that the appellant was answering the whole of the question, rather than merely the last part.[11]Mr Butt submits that at least the appellant should have been given an opportunity to clarify the answer. He should have been asked what he meant by "I am not that type of person". Mr Cherrill points out that unless that had been done first thing at 10.30 in the morning, the appellant would have learnt the nature of the argument being proposed by Mr Butt and could have tailored his evidence accordingly.[12]Mr Butt also argues that the appellant should have been given an opportunity to withdraw or distance himself, pursuant to section 105(3).[13]Whether Mr Butt be right or wrong about an opportunity being given to the appellant to clarify the answer, no such opportunity was in fact given. As we say, we have reached the conclusion that the judge was wrong to conclude that the appellant was answering the whole question rather than the last dramatic part of it. In those circumstances we take the view that the judge made an error. The evidence was not admissible.[14]Mr Cherrill does not seek to argue that the conviction is safe anyway. As he fairly pointed out, he made it clear that the introduction of those two convictions was likely, on the facts of the case, to have a monumental effect on the outcome adverse to the appellant.[15]We will hear any application for a retrial at 2 o'clock this afternoon. (Other cases interposed)

LORD JUSTICE HOOPER: What is your decision?

[17]MR CHERRILL: My Lords, I am instructed to apply for an order that there be a retrial.

LORD JUSTICE HOOPER: Right. What do you have to say? Do you want to say anything in support of that or it is self-evident?

[19]MR CHERRILL: It is self-evident, we would respectfully say. It is a serious offence, if it be an offence, and it is not the only one of its kind perpetrated by this defendant during a fairly short period.

LORD JUSTICE HOOPER: Yes.

[21]MR CHERRILL: Certainly the alleged victim sustained both physical and psychological damage of no mean order.

LORD JUSTICE HOOPER: Thank you.

[23]What do you say?[24]MR BUTT: My Lord, it might be that one of my three submissions on retrial depends upon what your Lordships decide in relation to the appeal against the other sentence.

LORD JUSTICE HOOPER: Sadly blackmail is unlawful in this court.

[26]MR BUTT: My Lord, I think it is the other way round actually.

LORD JUSTICE HOOPER: You are saying, "Please, tell me the answer to the appeal against sentence, and when I know that I will decide whether to oppose this application."

[28]MR BUTT: No, not at all. The difficulty is that my third point in relation to why there should be no retrial is that Mr Good has in fact effectively a significant proportion of this sentence.

LORD JUSTICE HOOPER: Which sentence? He has done three months.

[30]MR BUTT: He has done 15 months in total, six months for the matter to which he pleaded.

LORD JUSTICE HOOPER: He has done three months.

[32]MR BUTT: He has done three months. However, his release date for home detention curfew is 14th December, his automatic release date on the six-month sentence.

LORD JUSTICE HOOPER: At the moment the only sentence he has is six months.

[34]MR BUTT: It is, yes.

LORD JUSTICE HOOPER: And he has served half of that and one would imagine he will be released today if we were to order a retrial and we were to grant him bail.

[36]MR BUTT: My Lord, yes. But were it not for this sentence of nine months' imprisonment, Mr Good would have been released significantly earlier because he was sentenced to a sentence over three months' imprisonment and would have been eligible for home detention curfew. As matters stand, if this conviction had not been quashed, Mr Good would be eligible for release in a month's time, but if there were a retrial it would have the perverse situation that should Mr Good be convicted, he would have to go back to prison and probably serve longer than he would have served had he remained in custody in relation to this matter. That is the difficulty.

MR JUSTICE BEATSON: Such is the glory of our sentencing legislation and administrative practice.

LORD JUSTICE HOOPER: Let us just take the current position. He is serving six months.

[39]MR BUTT: Yes.

LORD JUSTICE HOOPER: If he had not been convicted of the assault occasioning actual bodily harm, he would have been released on home detention curfew about two or three weeks ago?

[41]MR BUTT: I must admit I am not entirely sure what the date would be for six months' imprisonment. Any sentence over three months is entitled --

LORD JUSTICE HOOPER: Can you help us?

[43]THE PRISON OFFICER: I have nothing in the file about home detention curfew.[44]MR BUTT: Certainly he would have been eligible for an earlier release.

LORD JUSTICE HOOPER: He would have been.

[46]MR BUTT: The real difficulty is the effect it will have upon his later release in relation to this matter. He will be in a worse position for the conviction being quashed, in my submission, should he be convicted on a retrial. But quite aside from that, my Lord --

LORD JUSTICE HOOPER: If he were to be convicted, if he were to be, then when he had to be sentenced you would tell the judge, actually, this is all been a bit unfair and he should not get the full nine months.

[48]MR BUTT: My Lord, yes.

LORD JUSTICE HOOPER: He cannot get more than nine months.

[50]MR BUTT: He should barely get anything at all because he could be released in a month's time. The judge would also have to have regard to the unfairness and the oppressive impact on a defendant serving time in custody being released and then being sent back to prison, and it may well be the case that this court would conclude the trial judge would feel his hands were tied and that in effect there would be a retrial, there would be the expense of a retrial but the sentencing judge could do very little to Mr Good, or if he were to do anything significant it would be extremely unfair.[51]My Lord, aside from that difficult issue of home detention curfew, I understand what my learned friend says concerning the serious nature of this offence and I would not wish to trivialise it at all. However, it was a case of assault occasioning actual bodily harm. There were injuries, a broken bone which has healed and a tooth was lost. Not of the most serious nature. I know that the complainant said he suffered problems going out and feeling uncomfortable in public afterwards. He was able to give evidence at trial in a reasonably confident fashion. It has not had the most serious long-lasting effects upon him.[52]The offence dates back to March 2006, so already the matter of assault occasioning actual bodily harm is 2½ years old and, my Lord, that is through no fault at all of Mr Good. I have represented him throughout these proceedings and he has been desperate --

LORD JUSTICE HOOPER: October 2006 was the offence.

[54]MR BUTT: I am sorry, October 2006, but still over 2 years old. This case went in, I believe, four different warned lists and went straight out at the other end, such is the busy nature of Lewes Crown Court. So it is a dated allegation. Mr Good has been awaiting trial for a long time.[55]Finally, my Lord, in relation to another matter, the matter to which the appeal against sentence is to be brought, Mr Good spent somewhere in the region of six months on curfew, between seven in the evening and seven in the morning. I do not believe it is in force yet, but in due course it will be.

LORD JUSTICE HOOPER: I think it is in force, but I do not think he gets the benefit of it.

[57]MR BUTT: No, because when he was sentenced it was not in force. The latest supplement in Archbold says it is not in force yet.

LORD JUSTICE HOOPER: This is the half-day one.

[59]MR BUTT: The court should take into account the time spent, providing it is more than nine hours. So that if itself also should weigh in the balance as to whether it would be in the interests of justice for there to be a retrial.

LORD JUSTICE HOOPER: Thank you very much. Do you want to say any more?

[61]MR BUTT: The only other matter is it might depend upon what your Lordships do in relation to appeal against sentence on the other matter, because if, for example, that sentence were reduced to four months' imprisonment, then Mr Good would have spent longer in custody effectively doing time on this sentence than he has to date.

LORD JUSTICE HOOPER: I think one needs a computer for your arguments.

[63]Do you want to say anything in reply?[64]MR CHERRILL: My Lord, no further submissions, thank you.

LORD JUSTICE HOOPER: We will retire. (Short adjournment)

LORD JUSTICE HOOPER: This court quashed the appellant's conviction on one count of assault occasioning actual bodily harm and did so this morning. An application has now been made by the respondent for a new trial.

[67]Mr Butt has developed a significant number of arguments in opposition to that application. We take the view that it is not in the public interest now to order a new trial. We are mindful, of course, of the position of the complainant and the distress that he may feel about the outcome of this case. On the other hand, the appellant has already served a period of imprisonment in connection with another assault and but for the outstanding conviction, which we have quashed, it seems likely that he would have been released on home detention curfew and/or under the discretionary early release scheme.[68]We also note that this alleged offence took place in October 2006. There has been a very substantial delay in bringing the proceedings to a conclusion. Mr Butt has also told us that for some considerable time the appellant was subject to electronic curfew whilst awaiting trial.[69]In all those circumstances, we reach the conclusion that it is not in the public interest to order a new trial. (Submissions on the appeal against sentence)

LORD JUSTICE HOOPER: On 11th February 2008 at the Crown Court at Hove, the appellant pleaded guilty on the day of the trial to one count of assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act. He was sentenced on 14th August 2008 to 6 months' imprisonment. That sentence was made consecutive to another sentence, but we have quashed the conviction in relation to that sentence. Thus, he now faces a total sentence of six months' imprisonment only.

[71]Mr Butt, who has said everything that could be said on behalf of the appellant, seeks to renew the application for leave to appeal sentence. We accept his argument that there seems to have been some confusion in the mind of the single judge as to which sentence was being appealed. So we will look at it now on its merits and ask ourselves whether or not it is arguable that the sentence is manifestly excessive.[72]The facts can be simply stated. On 24th March 2007 at around 2.20 in the morning, the complainant was in a kebab house on London Road, East Grinstead. He had been drinking and was leaning against a wall, when the appellant ran into the kebab house and punched him in the face. The complainant slid down the wall and collapsed onto the floor. The appellant ran out of the kebab house and departed in a taxi.[73]The complainant suffered a cut to the eyelid and swelling round his eye. He attended a local hospital and was discharged the following afternoon, but had to return on a number of occasions thereafter to check for injury to his eye.[74]The appellant had a previous conviction dating from 2006 for common assault. That was an assault in a public house or near a public house and the offence has similarities to the offence with which we are concerned. For that the appellant was conditionally discharged for a period of 18 months.[75]We have looked at the Definitive Guidelines of the Sentencing Guidelines Council. This assault is in the lower category, assault resulting in minor non-permanent injury, with a starting point of a community order and a sentencing range of community order to 26 weeks' custody.[76]However, that is not dispositive of this case because there are three aggravating factors here: first, that he has committed a similar sort of offence before; second, when committing this offence he was in breach of the conditional discharge made in respect of that common assault; and third, when he committed this offence he was on bail for an offence committed on 28th October 2006.[77]In the light of those aggravating features, we take the view that it is not arguable that a sentence of six months' imprisonment is manifestly excessive. Therefore the renewed application for leave to appeal sentence is refused.[78]MR BUTT: I am grateful, my Lord.

LORD JUSTICE HOOPER: Thank you. That will mean he is released today, will it not?

[80]MR BUTT: Yes, today is the release date.

LORD JUSTICE HOOPER: You will make sure that that happens or should happen today. Thank you for your help both of you.

Cited in 1 later judgment