Patmore, R. v [2010] EWCA Crim 2887

[2010] EWCA Crim 2887Case No 2010/4602/A7
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 26 November 2010
Between
R E G I N ACrown
Strand
London, WC2A 2LL
B e f o r e:
MR JUSTICE CHRISTOPHER CLARKE
MR JUSTICE CRANSTON
v
Between
DAVID PATMOREComputer 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 A Long appeared for AppellantJ U D G M E N T
[1]MR JUSTICE CHRISTOPHER CLARKE: On 6th July 2010 in the Crown Court at Manchester, this appellant pleaded guilty to escape. On 28th July he was sentenced to 20 months' imprisonment consecutive to the sentence already being served. He now appeals against sentence by leave of the single judge.[2]The relevant facts are these. On 13th February 2004 the appellant was sentenced to a total of 16 years in a young offender institution for offences of conspiracy to rob and escape. In the company of others he had entered a travel agents and threatened the staff and female manager whilst in possession of an imitation handgun and a knife. Cash, foreign currency and travellers cheques to the value of £9,700 were stolen. Whilst he was appearing at Minshull Street the appellant jumped out of the dock and ran away. Of the overall 16-year sentence, 18 months was a consecutive sentence for the escape.[3]As the years passed the appellant complied with what was required of him as a prisoner, such that he was categorised as a level D prisoner and deemed suitable to serve the remainder of his sentence at Sudbury Open Prison in Derbyshire. At the time that he escaped he was being prepared for release on parole in 2011.[4]On 1st April 2010 he simply walked out of the prison. The fact that he had done so did not come to the attention of prison officers until the evening of that day. The police subsequently received information that he might be at an address in the Whitefield area. On 27th June 2010 several officers and the force helicopter were deployed to that address at about 10.40 in the evening. When he saw police officers outside the appellant went upstairs and smashed a bathroom window. He then climbed out and jumped on to an outhouse and then into neighbouring gardens. He was followed by the helicopter and climbed onto the roof of another property. Officers then attended and after somewhere between half an hour and 45 minutes of conversation the appellant agreed to come down, but only if a particular officer arrested him, as in fact occurred.[5]In interview the appellant made full and frank admissions. He explained that he had received information regarding his partner which had caused him concern and he had walked out of the prison on hearing that information.[6]When he came to pass sentence, the learned judge observed that the fact that the appellant was serving a sentence for a significant and serious offence and that he had a previous conviction for escape were serious aggravating features. The judge accepted that the appellant had escaped for what appeared to have been personal reasons, rather than to commit other offences. The learned judge had been referred to the case of Purchase [2007] EWCA Crim. 1740 in which this court had said this:
"The authorities which have been decided on the appropriate level of sentence in this class of case divide roughly into two: cases like the present where a prisoner on his or her own escapes from custody and has some kind of personal pressure which persuades him or her to do so, and cases where professional criminals are assisted to escape by confederates outside (or sometimes even inside) the prison. The former category of case attracts sentences which are measured in months and the latter category in years."
The learned judge said that it could not be said that there were only two categories of escape. There were persons such as the appellant who were determined escapers for reasons which may not properly be identified. He went on to observe that offences of escape from prison were serious offences, they resulted in the reduction of public confidence in the capacity and ability of the prison service to contain persons sentenced, in particular for serious offences. There had to be an element of deterrence in sentencing so that other prisoners realised that such offences would be dealt with by consecutive sentences of imprisonment.[7]In Purchase this court also observed:
" In this class of case there are a number of factors which the courts have considered over the years in assessing where in the scale of months a particular case should fit. Was there planning or was this an impulse? Was there violence or damage caused? What was the reason for the escape? Did the offender surrender or make arrangements to surrender before he was caught? How long was he at large? What else did he do while he was at large."
[8]Mr Long on behalf of the appellant submits that when one looks at the factors to which the court referred in Purchase and the other mitigating factors, it is clear that the sentence was excessive. First, the appellant walked out of the prison for personal reasons. Secondly, there does not appear to have been any advance planning. Thirdly, no force was used to enable him to leave, no damage was done, no one else appears to have been involved. Thereafter he remained at large for three months but he committed no further offences whilst unlawfully at large. Although he had to be pursued by a police helicopter he surrendered without violence and pleaded guilty, as was inevitable, at the earliest opportunity.[9]Mr Long also prayed in aid the fact that following his escape he will no longer be held in an open prison as a category D prisoner, but will be held in severe maximum security conditions. For that of course he has only himself to blame, but in addition, and this is a matter that has weighed with us, Mr Long observes that he will have to spend approximately three years longer in prison than he would otherwise have had to do on account of this escape. He was sentenced under the previous sentencing regime and the effect of his escape means that he will not attract the parole that he would or might have otherwise have achieved.[10]In those circumstances, he submits, 21 months is excessive and to make it consecutive to the custodial term to which the appellant is presently subject makes it manifestly so.[11]Against those considerations there has to be set the fact, firstly, that this was the appellant's second attempt to escape (he having been sentenced to 18 months for escape previously), secondly, that it was an escape not merely from a place of imprisonment in which he was lawfully confined but also from a place with a less strict regime where a greater degree of trust was being placed in him than elsewhere; thirdly, that no attempt was made by him to surrender even after he had acquired by his escape time to deal with whatever family problems he had.[12]Nevertheless, we have come to the conclusion that the sentence overall was too high, in particular because the effect of the escape itself will bring with it what is in effect an increased sentence of approximately three years. Generally speaking offences of this kind merit, to some extent by way of deterrence, a custodial sentence which is consecutive to the term to which the defendant is presently subject in order to avoid the consequence that in practice no further time is served than that which the defendant is already liable to serve. But, for the reasons that we have stated, the effect of this appellant's escape will itself be to impose a very significant punishment upon him.[13]We are also persuaded that the term of 21 months is too high. We propose therefore to quash the sentence that was imposed, to substitute for the term of 21 months a term of 15 months and to order that that sentence shall be served concurrently and not consecutively with the term to which the appellant is presently subject. To that extent this appeal is allowed.