Gill, R. v [2010] EWCA Crim 1154

[2010] EWCA Crim 1154Case No 200906298/A4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 7th May 2010
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE THOMAS
MR JUSTICE HENRIQUES
MR JUSTICE OPENSHAW
Between
R E G I N ACrownv
Between
JAGIEVEN SINGH GILL
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 J Tucker appeared for Appellant
J U D G M E N T

LORD JUSTICE THOMAS:

[1]The appellant stabbed Ivan Francis with a knife on 3rd December 2008. It appears they had known each other for some months, having met at a community drug and alcohol centre. It also appears that they may have lent each other money. On the papers provided by the Crown it would appear to have been a clear case where stabbing was carried out with intent to cause really serious bodily injury.[2]That explains why the charge that was brought against this appellant was under section 18 and section 20. He appeared at the Crown Court in Bristol on 1st June 2009 and entered a plea of not guilty to both counts. There were apparently some discussions on a plea to section 20. On 15th June 2009 before His Honour Judge Simon Darwall-Smith, a plea of guilty to section 20 was accepted and a basis of plea agreed. The basis of plea was as follows:
"The defendant admits knowing the complainant and being in the complainant's company for most of the night. The defendant gave Mr Francis money. Mr returned without Mr Gill's money. He was with a number of other people. Mr Francis stated that the police had stopped him and they had been taken to Trinity Road Police station as he returned to the flat. Mr Gill wanted his money back. Mr Gill went to leave the flat with Mr Francis. Mr Francis became increasing aggressive and Mr Gill thought he was going to be attacked and so punched him. Mr Francis took a knife from the kitchen (he was later found with this at the hospital) and went to attack Mr Gill. Mr Gill picked up the knife in the kitchen. Mr Gill fled to the corridor. In the corridor Mr Francis went to attack Mr Gill. Mr Gill brandished the knife. He admits stabbing Mr Francis but is unaware how it occurred or that he had any intention to cause Francis really serious harm."
How that plea came to be accepted, we do not know because counsel who appears before us today was not present on that occasion, nor do we have any transcript. The matter was adjourned for pre-sentence and psychiatric reports which took some time to produce.[3]On 26th October 2009 the matter came on before His Honour Judge Lambert in the Crown Court at Bristol. As counsel then appearing for the Crown was about to open the facts, the judge said, after being told by counsel that there was a basis of plea:
"Yes. Let there be no mistake, I have never had anything to do with the acceptance of the pleas in this case. I have never approved the acceptance of this plea, so the public know, and nor did I ever deal with the question of that basis of plea. I am dealing with a set of facts which have been determined for me without my approval."
Counsel for the Crown responded:
"Your Honour, it is my recollection from the case of Underwood that your Honour, even at this stage, could hypothetically call for a Newton hearing but it is not, in the light of what was done and said in front of His Honour Judge Darwall-Smith-- JUDGE LAMBERT: No. It is not really the basis that much concerns me, but let it be known that I certainly have not approved the acceptance of this plea. MR HOWELLS: Yes. Well, your Honour, it is there on the record. Thank you."
[4]As we have observed, the basis of plea that we have before us seems one that it is very difficult to understand how it came to be accepted.[5]What is of great importance is that everyone observes the Practice Direction issued by the Lord Chief Justice in 2009. It has become apparent that many do not know of the existence of this Practice Direction and it is very, very important that it be followed. It is set out in Archbold at paragraphs 573-B and sets out the procedure clearly to be followed. It is the duty of the court to examine a basis of plea to see that it is in the interests of justice. We say no more about the basis of plea in this case because we have no explanation as to what has happened and cannot obtain one.[6]The judge, Judge Lambert, having made those observations then proceeded to consider the material in front of him. He enquired into the injury sustained. The injury was a 2-centimetre incised wound to the right front of the victim’s chest, two incised wounds on the left arm, measuring 2 centimetres and 2.5 centimetres and a two centimetre incised wound of the palm of the right arm. An x-ray showed no evidence of underlying lung injury, and the chest wound was cleansed and closed with three stitches. The wounds on the left arm were closed with five stitches in total. The victim was referred to an orthopaedic doctor for further assessment of the wound but there was no further information available about it.[7]The judge also had before him the appellant's record and two very helpful psychiatrist reports. The appellant was 37. He began offending at the age of 13. He had an extensive history of violence and dishonesty. He progressed to custody quickly. By the age of 20 he had a sentence of 2 years for violence. He was last sentenced in 2005 and given 3 years' imprisonment for an offence of assault occasioning actual bodily harm.[8]The pre-sentence report showed that he had a difficult upbringing surrounded by violence at his home. It is clear that at a very young age he began to take cannabis and by the age of 20 he was addicted to crack cocaine. That has had an obviously very serious effect. He saw a psychiatrist from the age of 20. He was not then diagnosed as suffering from mental illness. His problems were put down to drugs. Later reports identified problems with anger management. But in 2007 it was suggested he had dissocial and paranoid personality traits.[9]The psychiatric reports that were principally before the judge were clear reports from Dr Jacob who had seen him in the summer of 2009. Dr Jacob diagnosed him as having a paranoid personality disorder and dissocial personality disorder both of long standing. The use of drugs had significantly increased his agitation and reduced his levels of self-control. She concluded there was a high risk of reoffending and of potential violence.[10]The judge came to the view that there was a significant risk of serious harm. There was plainly a basis upon which he could have reached that conclusion, though it has been pointed to us today that, if that issue became relevant we should look at the fact that he had been on bail without incident for some considerable period of time.[11]The judge came to the view that the sentence that he should impose was one of 4 years and, as he had concluded the appellant was dangerous, he was entitled, under the terms of the Criminal Justice Act 2003 (as amended), to impose an extended sentence.[12]On the appeal, which has been argued before us today by Mr Tucker, the principal point taken was that the maximum sentence for this offence was 5 years. On the basis of plea that had been put forward, a sentence of 4 years could not conceivably be justified, taking into account the credit that was due for the guilty plea. We shall turn in a moment to what we consider the appropriate sentence was. But we accept that a sentence of 4 years was manifestly excessive in the circumstances of this case and should not have been passed by the judge.[13]The seriousness of that conclusion is the following. When Parliament, in the summer of 2008, amended the provisions in relation to sentences for dangerous offenders by the provisions of the Criminal Justice and Immigration Act 2008, it amended the powers of the court not only in relation to the imposition of sentences of imprisonment for public protection, but also amended the powers of court in relation to extended sentences for certain violent or sexual offences.[14]It is clear that in the case of the restriction imposed in relation to the detention or imprisonment for public protection, the threshold of a 4-year custodial sentence was intended to prevent judges passing sentences unless a custodial term of that length was merited. The amendment was made in light of the concern that a large number of people were being given imprisonment for public protection; the background to this is set out in the judgment of this court in R v DeLucca [2010] EWCA Crim 710.[15]However, it is more difficult to understand why, when that change was made, a corresponding change was made to the power of the courts in relation to extended sentences. This is a classic case where, given the background which we have set out, a judge would have thought it sensible and right to impose, say, a sentence of two-and-a-half or 3 years plus an extended sentence of two-and-a-half or 2 years respectively. It is apparent that this would have been very valuable to the protection of the public. However, that is not an option that was open, as Parliament for reasons at the moment it is difficult to understand passed the restriction also in respect of the court's powers for extended sentences. Having concluded that the sentence must be one of less than 4 years, it must mean, because of the provisions of the Act, that extended sentence falls away.[16]We then turn to consider what is the appropriate sentence in this case. We, of course, sentence faithfully on the basis of plea and take into account that a sort of case of self-defence is put forward, and the background is explained in a way that shows some mitigating in circumstances. We also take into account the fact that it appears that the appellant did, in the period prior to sentence, attempt to do something about his drug addiction. We have no information as to what has happened in prison.[17]However, looking at the position as it was at the time, and the fact that he did not plead guilty on the first available opportunity, as this was an indictment with two counts, and he could easily have pleaded to the second count, without seeing if he could get a deal out of the Crown, we do not consider this is a case where a full discount is appropriate.[18]Taking into account the facts as accepted in the basis of plea, the very serious record of violence that we have summarised and all the other matters, we consider that the appropriate sentence in this case should have been one of 3 years' imprisonment, less, of course, the time on remand of 134 days. We therefore quash the sentence passed by the judge together with the extended sentence and substitute for it a sentence of 3 years' imprisonment less time on remand.