Welsh, R. v [2009] EWCA Crim 945

[2009] EWCA Crim 945Case No 2009/0205/A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday 24th April 2009
Strand
London, WC2A 2LL
B e f o r e:
MR JUSTICE TREACY
HIS HONOUR JUDGE STEWART QC
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
COLIN WELSH
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr P Sims appeared for Appellant
J U D G M E N T
[1]MR JUSTICE TREACY: This appellant is Colin Christopher Welsh. On 29th November 2007 he admitted before the Magistrates' Court an offence of burglary. He was committed to the Crown Court for sentence. When he came before the Crown Court he asked for three other offences to be taken into consideration. On 14th February 2008 he came before His Honour Judge Rivlin QC at Southwark Crown Court and the judge deferred sentence until July 2008. On 30th July 2008 the judge sentenced this appellant to 18 months immediate imprisonment.[2]The facts of the matter are that on an evening in June 2007 the appellant entered the premises of Hackett Ltd in Old Bond Street, London. He gained entry through a ground floor door by interfering with the lock. Once inside the premises he helped himself to clothing valued at about £3,500. The burglary was discovered the next day. The appellant was identified from CCTV footage.[3]In October 2007 he attended at a police station in Berwick-upon-Tweed and was interviewed about this matter. He made admissions and said he committed the offence because he was in dire financial straits. He also admitted three other offences. One of those involved the theft of clothing worth £2,000 from commercial premises.[4]The appellant is now 41. He has a bad record involving some 26 previous court appearances for 38 offences. A number of those are burglaries.[5]The sentencing judge in February 2008 had a pre-sentence report. It showed that this appellant had moved to Scotland to attend St. Andrews University in 2005 and was still pursuing a course there. The judge was also aware from the pre-sentence report that there was another matter outstanding at that time in February 2008 against this appellant. That was a matter of assault for which the appellant was shortly due to appear before a court in Scotland. The assault was alleged to have been committed in 2006.[6]In deferring sentence the judge said that the appellant should understand that if he stayed out of trouble between the hearing and the deferred date in July, and if he was able to produce to the court evidence from his university to the effect that he had continued with his course and taken his exams, then he might take it that although some form of custodial sentence might have to be imposed it would not be an immediate custodial sentence. The appellant was asked if he understood that and indicated that he did.[7]Some five days after that hearing the appellant was convicted at the court in Scotland of an assault in the course of which he had caused severe injury to another student, namely a fracture of the cheekbone. As we have already stated, that offence was committed in 2006. As a result of being convicted of that assault the appellant was fined and ordered to pay compensation. However, the university authorities came to the conclusion that he should be expelled. At the time of the deferred hearing before the judge there was an appeal being pursued by this appellant against his expulsion.[8]When the matter came back before the judge on 30th July 2008 the judge was aware of the conviction before the Scottish court and was aware of the fact that the offence itself had been committed prior to the date of deferring sentence. In passing the sentence of 18 months immediate imprisonment the judge said this:
"As regards your continued attendance at St. Andrews University, that has not been possible because you have been convicted of assaulting another student, at St. Andrews, and you have been expelled by the university. Plainly, it was very much in my mind when I deferred sentence to give you the continued opportunity to carry on attending the course at St. Andrews in the hope that you might graduate from that university. I believe that having regard to the seriousness of these offences, and having regard to the unfolding of events, the only proper and appropriate course for me to take now is to impose an immediate custodial sentence in respect of these matters."
[9]On the face of things there was nothing wrong with a sentence of 18 months' imprisonment for a substantial burglary of commercial premises committed in addition to three other similar offences by a man who had much experience in this class of crime. However, in the particular circumstances of this case it is argued that applying the ordinary principles in relation to deferment of sentence, the learned judge was bound by his earlier indication to pass no more than a suspended sentence. We think there is force in that argument.[10]We have no doubt that when the judge deferred sentence he had firmly in mind that this appellant had progressed well with his studies at St. Andrews and was prepared to consider taking a course which did not throw away the benefits of those studies and which would enable the appellant to graduate. Although the deferral of sentence was couched in terms which required not only that the appellant remained out of trouble in the interim but also that the appellant should produce evidence that he had continued with his course and taken his exams, it is argued that the appellant had a legitimate expectation of receiving something other than an immediate custodial sentence, when his ability to continue the degree course was not due to any act of his which post-dated the initial sentencing hearing.[11]In our judgment a sentencing judge on the deferred hearing should consider whether the offender has substantially complied with or attempted to comply with the proper expectations of the judge as expressed at the initial hearing. In this case the appellant had indeed stayed out of trouble. There was no evidence before the judge that the appellant had himself done or failed to do anything during the deferral period which he should reasonably have done in order to enable the continuation of his studies. The expulsion from the university resulted from events which took place in 2006. We do not think that in the circumstances the appellant can be held to be at fault because his studies came to an end in circumstances beyond his choosing or control. We consider that the judge was in error in passing an immediate custodial sentence in the circumstances.[12]We allow the appeal and substitute a suspended sentence order. The sentence will be for a period of 52 weeks suspended for a period of 12 months. That of course will operate from 30th July 2008 (the date upon which His Honour Judge Rivlin passed sentence).[13]By virtue of the provisions of sections 189 and 190 of the Criminal Justice Act 2003 it is necessary for us to impose a requirement accompanying the suspended sentence order. We have been informed by Mr Sims who represents this appellant today that this appellant is now also in custody on remand in relation to a serious offence for which he faces trial in July of this year. In those circumstances, the imposition of a requirement is somewhat academic but the statute requires that we impose such a requirement. Being faithful to the statutory provisions, it seems to us that the only appropriate requirement is a residence requirement and therefore we impose a residence requirement as part of the suspended sentence order. That requirement will be a requirement of residence at HM Prison Highdown for a period of 28 days. (Please note that paragraph 13 of this judgment was amended on Friday 8th May 2009 by removing the residence requirement and substituting an exclusion order)