Ali, R. v [2011] EWCA Crim 2747

[2011] EWCA Crim 2747Case No 201102920 A8
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 1 November 2011
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE GROSS
MR JUSTICE OPENSHAW
HIS HONOUR JUDGE MILFORD QC
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
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SAEED ALI
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 0207 404 1424(Official Shorthand Writers to the Court)
Miss S Cavander appeared for Appellant
J U D G M E N T

LORD JUSTICE GROSS:

[1]The judgment of the court will be given by HHJ Milford QC.[2]HIS HONOUR JUDGE MILFORD QC: On 20 September 2010 in the Crown Court at Bristol, on the day of his trial the appellant changed his plea to guilty to robbery. HHJ Horton presided that day, as he did on 11 November 2010, when he decided to defer sentence on the appellant for 6 months, applying the following conditions: a curfew between 8pm and 5am, supervision, to keep out of trouble and to attend college.[3]On 3 May 2011 before the same judge, the appellant was sentenced to a community sentence, with a supervision requirement of 12 months and a curfew requirement for 5 months. There were two co-accused: Ayub Mohamed, he too changed his plea to guilty on the day of trial and was sentenced to 16 months' detention in a Young Offender Institution; and Khadar Aden, who did likewise and was sentenced to a Youth Rehabilitation Order for 12 months. The appellant appeals against his sentence by leave of the single judge, Eady J.[4]The robbery took place in the early hours of 25 February 2010 in the eastern area of Bristol. Not long after midnight there had been an allegation of an earlier robbery, and as a result the two co-accused were arrested. They were released. At 1.15am they were seen by a CCTV operator to be following a man along Stapleton Road. That man was the complainant, Simon Kilminster. He had been drinking and staggered as he walked along. The co-accused were then joined by the appellant, and all three then followed the complainant. The complainant turned into a side road. The defendants followed him and there they robbed him.[5]The complainant described how he was rugby tackled to the ground and was then kicked several times to the head and ribs. The defendants then rifled through his pockets and his mobile telephone and wallet were taken from him. After taking the property from the complainant, one of the defendants stamped on his head, before all three made off. The police were quickly on the scene, as the CCTV operator had been following the defendants up to a point just before the robbery, and the appellant was arrested. He was found in possession of the complainant's mobile telephone.[6]The complainant attended hospital, where he was treated for bruising to his forehead, face and his right side. He was in a lot of pain and was left upset and distressed. He had been robbed once before and his confidence had been "knocked" by this second incident.[7]When deferring sentence, the judge observed that the court looked at the appellant's position very carefully, and although he deserved a custodial sentence, other features had to be considered. He was younger in maturity than his age suggested. He was in poor health, and it was noted he was not part of the original plan, but had joined in. The appellant was given an opportunity, and so his sentence was deferred for 6 months with a condition he kept out of trouble, kept a curfew between 8pm and 5am and attended college. He was also subject to supervision and an updated report was expected.[8]At the point of sentence, the judge said that the appellant had been told previously that he deserved a custodial sentence as the offence was extremely serious. He might have expected a sentence of 3 years. If he continued to keep the company of bad people, he would receive a custodial sentence. The sentence was a community order, with supervision for 12 months, as the court was of the opinion that the appellant needed such supervision. It was also noted that he had to look after his mother. The curfew, it was said, would be beneficial to the appellant, although there had been some difficulties, and so there was a further curfew requirement of 5 months between the hours of 9.30pm and 8am. That would help the appellant stay out of trouble. The sentence took into account the plea of guilty and the time already spent on curfew. In fact, he had been on curfew prior to his deferred sentence.[9]The appellant was born on 16 August 1991 and was of previous good character. There was a pre-sentence report which set out much about his family background, in particular the fact that he had to care for his mother, and the unpleasant medical complaint from which he (the appellant) suffered.[10]The single point which is taken by Miss Cavander is this: that the curfew period of 6 months on deferment, followed by 5 months on the community order, resulted in an unlawful sentence, the statutory maximum that it was permissible to impose on a community order being 6 months.[11]The single judge when he granted leave did so, so that Miss Cavander could have the opportunity to develop the points on legality made in her advice of 13 May 2011.[12]Put shortly, Miss Cavander argues that as the appellant had already been subject to a 6-month curfew as a condition of deferment, the court had no power to impose a curfew requirement at all.[13]The power to defer sentence derives from section 1 of the Powers of Criminal Courts (Sentencing) Act 2000, which reads as follows:
"(1) The Crown Court or a magistrates’ court may defer passing sentence on an offender for the purpose of enabling the court, or any other court to which it falls to deal with him, to have regard in dealing with him to— (a) his conduct after conviction ... or (b) any change in his circumstances; but this is subject to subsections (3) and (4) below."
Section 1(3) reads:
"The power conferred by subsection (1) above shall be exercisable only if— (a) the offender consents; (b) the offender undertakes to comply with any requirements as to his conduct during the period of deferment that the court considers it appropriate to impose; and (c) the court is satisfied that it would be in the interests of justice to exercise the power."
Sub-section (4) of section 1 states that any deferment must be for 6 months or less and cannot be further deferred.[14]The Criminal Justice Act 2003 provided for the imposition of the community order which must contain at least one of the requirements listed at section 177. One of those requirements is the curfew requirement, which is defined at section 204. Section 204(3) provides:
"A community order or suspended sentence order which imposes a curfew requirement may not specify periods which fall outside the period of six months beginning with the day on which it is made."
In other words, a curfew requirement may not exceed 6 months.[15]Section 1D(2) of the Powers of Criminal Courts (Sentencing) Act 2000 provides the sentencing court with powers of sentence at the end of the period of deferment. It reads under sub-section (2):
"(2) Where the passing of sentence on an offender has been deferred by a court under section 1 above, the power of that court under that section to deal with the offender at the end of the period of deferment ... (a) is power to deal with him, in respect of the offence for which passing of sentence has been deferred, in any way in which the original court could have dealt with him if it had not deferred passing sentence ..."
[16]In her perfected grounds of appeal, Miss Cavander points to a line of authorities which need not be rehearsed, but which establishes that a deferred sentence is a sentence which may be subject to appeal or to an Attorney General's reference. We do not doubt that to be right. She argues that the deferred sentence is part of the sentence period, not a pre-conviction or a pre-sentence period.[17]What Miss Cavander is unable to do is to point to any legislative restriction on doing what the judge did here, or to any decided case where the point she takes has been argued successfully, or for that matter to any supportive observations from an academic writer.[18]Section 204(3) of the Criminal Justice Act 2003 makes it abundantly clear that the period with regard to curfew requirements runs from the date of the making of the community order. It says so in clear terms. There is no reference back to earlier curfews imposed as conditions of deferment leading up to the point of sentence. Had Parliament wished to restrict the length of curfew in the way contended, it could and would have said so.[19]The 6-month curfew condition of the deferred sentence was history, in the view of this court, at the point that the community order was imposed, and no more than that. It was something which needed to be taken into account when looking at how onerous the community requirements of the order were to be, but it was not a legal obstacle to imposing a curfew requirement at all, as is contended by Miss Cavander today.[20]The deferred sentence did not represent part of the sentence which was imposed at the end of the period of deferment. The curfew requirement of 5 months was not illegal; it was a perfectly proper sentence.[21]We are grateful to Miss Cavander for the very attractive way that she has argued this novel point before us, but even she concedes that, looked at in the round and in all the circumstances of the case, the sentence that her client received was indeed a merciful sentence. He was extremely fortunate not to go straight to custody.[22]Accordingly, the appeal is dismissed.