Favell, R. v [2010] EWCA Crim 2948

[2010] EWCA Crim 2948

Case No 2010/02770/A6

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Friday 26 November 2010

Between

R E G I N ACrown

The Strand

London

WC2A 2LL

B e f o r e:

MR JUSTICE CALVERT-SMITH

and

MR JUSTICE GRIFFITH WILLIAMS

__________________

- v -

Between

MATTHEW RICHARD FAVELL

__________________

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__________________

Mr G Stables appeared for Appellant

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J U D G M E N T

[1]On 26 April 2010, at Sheffield Crown Court, Matthew Richard Favell, who had on an earlier occasion pleaded guilty to an offence of inflicting grievous bodily harm, was sentenced by the Recorder of Sheffield to a suspended sentence order comprising a custodial element of 52 weeks and an unpaid work requirement of 200 hours. He was also ordered to pay £5,000 by way of compensation to the victim. That amount was ordered to be paid at the weekly rate of £50 with the first payment to be made on or before 14 May 2010. He appeals against the compensation order by leave of the single judge, who was mistakenly informed that the order for payment was to be at the weekly rate of £100.

[2]The facts relevant to the compensation order can be stated briefly. On 9 October 2009 the appellant was seen to punch the victim three times to the face. The victim suffered three fractures to the lower jaw and lost three teeth. The fractures were plated and screwed under general anaesthesia and he was detained in hospital for two days. Unsurprisingly, he suffered pain and discomfort. He had to pay for dental treatment, and he sustained loss of earnings as a refuse collector.

[3]In approaching the levels of both the compensation order and the instalment order, the judge had to have regard to the means of the appellant: see section 130(11) of the Powers of Criminal Courts (Sentencing) Act 2000. As to the appellant's means, the author of a pre-sentence report dated 8 April 2010 stated that the appellant, a self-employed dry-liner, was earning on average £500 per week and reported no financial difficulties.

[4]In mitigation his counsel at trial, Mr Hughes, referred to the appellant's accounts which showed gross earnings for the year 2009-2010 of £25,054, with allowable expenses of £15,788, and so a net profit of £9,266, approximating to a weekly wage of some £200, although Mr Hughes conceded that in previous years the appellant's net profits had been higher. Indeed, on the material before this court the appellant's net profit for the year ending 2007 was £18,973, and for the year ending 2008, £31,086. There are no figures for the year ending 2009, but for the year ending 2010 a tax return, which is said to be 90% complete, shows a net profit of £9,266 (the profit to which we referred earlier).

[5]In his written Advice Mr Hughes submitted that that the appellant was earning less than £500 weekly because there was less local work and he was incurring much more by way of expenditure because he was having to travel further afield to find work. While the Recorder of Sheffield was not given this information, counsel in his Advice details weekly expenditures on rent and other outgoings totalling £185, and so on the basis of a weekly income of marginally less than £200 there is said to be little by way of disposable income available to meet the compensation order.

[6]When passing sentence the Recorder observed:

"You are also clearly a good worker, effectively running your own business, but you are before the court for a serious offence of violence when in very considerable drink you decided you did not like a man ...."

Later the Recorder said: 7. "In addition, you are in a position over time to pay realistic compensation to your victim for these very unpleasant injuries. The amount of compensation will be £5,000. I am satisfied that your earnings at the moment are down on what they have been for the last two or three years and I will therefore revise the figure I had in mind on a weekly basis downwards. This compensation order is intended to bite and means you will have to curtail your drinking whilst you are paying it. That sum will be paid at the rate of £50 per week, the first payment two weeks this Friday."

[7]Mr Stables, who appears on behalf of the appellant and for whose submissions we are grateful, informed the court that on his instructions work has not improved. The appellant is working less frequently and he anticipates a significant reduction in his earnings for this year. The appellant did not provide Mr Stables with any documentation in support of those instructions. Mr Stables informed the court that the appellant has, in fact, been making payments under the compensation order, not at the £50 weekly rate, but at a significantly lower rate. To date he has paid £400-£500, significantly less than the £1,450 he should have paid had he made the payments in accordance with the learned Recorder's order.

[8]Mr Stables accepted that the compensation figure of £5,000 reflects the compensation to which the victim is entitled for the injuries and losses which he sustained. The issue on this appeal is the very straightforward one: whether the appellant has the means to pay any compensation; alternatively, whether his means are such that the compensation order should be reduced.

[9]We observe that as to that the Recorder had to form his own view. This court will only interfere with the Recorder's conclusions if it considers that those conclusions were unsupported by the evidence and in the circumstances unreasonable.

[10]The evidence, as we indicated earlier in this judgment, comes in part from the appellant's own business accounts and from what he told the probation officer. It is to be expected that the appellant would know how much he was earning and would, when interviewed by the probation officer, give the probation officer accurate information. It therefore must be assumed that the information he gave to the probation officer was accurate.

[11]Even making allowances for the downturn in the building industry, which the Recorder clearly did, the appellant on any view had a successful business. In our judgment the Recorder was entitled to conclude that there is a realistic prospect that the appellant would achieve higher earnings in the short term. In our judgment it was therefore entirely appropriate to make a compensation order in this case. By fixing the instalment order at £50 weekly, it is clear from the sentencing remarks to which we have referred that the Recorder had regard to the downturn in the building industry. Indeed, during the course of mitigation he observed:

"... it is unfortunate that we are heading into the time of the year when builders can do more work and there are those who say the recession is coming to an end. Let us hope they are right."

[12]On the instalment orders as fixed by the Recorder it will take the appellant more than two years to satisfy the compensation order. There can be no criticism of that: see R v Oliver and Oliver

(1989) 11 Cr App R(S) 10

and the judgment given by Lord Lane CJ at page 15. While that decision related to fines, the observations of the Lord Chief Justice are of equal validity to orders for compensation.

[13]Section 133 of the Powers of Criminal Courts (Sentencing) Act 2000 makes provision for those offenders who are unable to satisfy a compensation order. Section 133(3)(c) and (d) provides that a magistrates' court responsible for the enforcement of a compensation order may discharge the order or reduce the amount which remains to be paid if the person against whom the compensation order was made has insufficient means to satisfy the order in full, or "has suffered a substantial reduction in his means which was unexpected at the time the order was made". While the consent of the Crown Court must be obtained before the magistrates' court exercises these powers (see section 133(4)), that consent would not be withheld if the person against whom the order was made cannot pay. The Crown Court would be very mindful of the penal consequences of non-payment.

[14]For the reasons which we have set out in this judgment we have concluded that there can be no criticism of the decision reached by the Recorder of Sheffield on the information before him. He tailored the compensation order to reflect concerns about downturn in the building industry. He was entitled to conclude that the appellant's means would in all probability, if not certainty, improve. There is the section 133 backstop should the appellant's circumstances not improve or further deteriorate.

[15]For all those reasons the appeal is dismissed. __________________________________