Bailey, R v [2011] EWCA Crim 397

No: 201004932A1, 201100472A1[2011] EWCA Crim 397
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 10 February 2011
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE AIKENS
MR JUSTICE IRWIN
HIS HONOUR JUDGE ROBERTS QC
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
DARREN LEE BAILEY
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)
Mr GA Russell appeared for AppellantMr P Mytton appeared for Crown
J U D G M E N T

LORD JUSTICE AIKENS:

[1]I will ask Irwin J to give the judgment of the court.[2]MR JUSTICE IRWIN: At 8.45pm on 14 February 2010, Ms Randall and Mr Marsden were sitting outside the Coventry Rail Station on a bench. Mr Marsden looked up and saw this appellant sitting on his (Marsden's) moped. He shouted out, asking the appellant what he was doing. The appellant said, "Where's your keys and helmet?" Then he got off and walked towards the couple on the bench. Mr Marsden said the keys were in his pocket and the helmet was under the bench. The appellant had been drinking and it was clear that his demeanour was threatening. He then started to walk back towards the moped, so the lady, Ms Randall, walked past him and sat on the moped.[3]The appellant stood right next to her and said, "If you don't get off the fucking bike, I'll push you off it. I'm a thief, that's what I do". Ms Randall offered him money to leave the moped alone. He asked her how much, and she said about £5. She called a friend, Ms Hutchins, and asked her to get her bag which she had left on the bench. Ms Hutchins brought the bag over. The appellant turned to her and said, "I'll hit you and push your mate off the bike". In short, by these means he extracted the total amount of money which was in the purse, which was £7.50.[4]As Ms Randall was looking for the money, the appellant put his arm around her shoulder and tried to look through the purse to see if she had more money, but was told to leave her alone.[5]Once the money was handed over, the appellant put his arm around Ms Randall's shoulder again and tried to put more pressure upon her, but eventually she said she did not have any more money. He removed his hand. He walked off, and that was the end of the incident. It had lasted about ten minutes and Ms Randall had been quite significantly frightened by the appellant's actions.[6]The police were contacted and attended, came across the appellant, who was aggressive towards them, and eventually was arrested after a struggle, during the course of which one of the officers was struck in the face.[7]After his arrest, the appellant was held in custody. He has a terrible record of offending, almost all of it relating to alcohol abuse. He has four convictions for threatening behaviour, two for assault (or battery and assault), one for robbery and one for affray. He was born in 1979 and so was 30 years of age at the time of the offending.[8]A pre-sentence report was prepared, setting out the full background. He came before HHJ Ross at the Coventry Crown Court on 27 July 2010, was re-arraigned on the indictment and pleaded to the blackmail count which had been laid against him based on these facts, and to resisting arrest by a police officer.[9]On 13 August he came again before HHJ Ross at the Coventry Crown Court for sentence. Judge Ross made it clear that he wanted to create a sentence which would give this appellant a real incentive to tackle his alcohol addiction, which was clearly at the root of his offending. He said this in sentencing:
"Short sentences have not worked for you. None of the sentences of imprisonment that you have endured have gone in any way to deal with your drug and alcohol problem. The time has come, it seems to me, to look to deal with that in another way. This is a matter which is so serious that only a custodial sentence is appropriate, but I'm going to suspend it. But I make it clear that the fact you have spent 175 days [in fact it was 178 days] on remand is one of the aspects which I have taken into account in identifying that I can deal with this matter by way of a 12-month sentence of imprisonment which I can suspend. I make it clear to you that if you breach my order in any way, none of the time spent on remand will count towards your sentence."
[10]A little later he repeated the same message and directed that the national standards of the Probation Service were not to apply in this case and that any breach at all should lead to the appellant being brought back to court.[11]The appellant did not comply with the significant conditions which had been attached to the suspended sentence. He breached the curfew twice. According to the probation officer, he showed complete disregard of the curfew. He did not attend the community alcohol service. He continued to drink, and the probation officer reported that the appellant had said to him on numerous occasions that he would rather serve a sentence and come out "scot-free" than have to live up to the requirements of the conditions of the suspended sentence.[12]He came back before HHJ Ross for having breached the conditions of the suspended sentence. There is some confusion about what date he reappeared, but thanks to the assistance of counsel, we presume that 22 October 2010 is correct. The details of breaches were outlined before the judge. He implemented the 12 months' imprisonment. He ordered 14 days spent on remand, since arrest for the breaches, should count, but he ordered that the 178 days on remand before the suspended sentence was passed should not count. He revoked all of the community orders and conditions, and also fined the appellant £10 for drunkenness, which was to be dealt with by way of one day imprisonment in default.[13]Grounds of appeal had already been lodged against the original sentence in August. The contents of those grounds we need not summarise, because they were subsequently altered in the following fashion. On 18 January 2011 this case came before a different constitution of this court. Directions were given, including a direction for counsel to reformulate the grounds of appeal. There are three re-formulated grounds: that the sentence handed down on 13 August was manifestly excessive in the context of the direction that the 178 days on remand should not count; secondly, that there was an error in principle by imposing a suspended term of custody in the light of the 178 days spent in custody prior to sentence; and thirdly that there was an error in principle in failing to give credit for the days spent. In our judgment, all three of those grounds effectively converge.[14]The 178 days served before the initial sentence are nearly the equivalent of a 12-month prison sentence - some nine days short. It is said, in substance, that it was excessive to pass a suspended sentence with the direction that went with it for the facts of this offence.[15]We think the appropriate sentence here, allowing some credit for the late plea, would have been a sentence of 12 months' imprisonment. Of course, the judge was simply attempting to help this appellant by giving him the maximum incentive to change his life, but a suspended sentence of imprisonment is still a sentence, and if there is a breach, it is liable to be served. It is not in the end appropriate, however well intentioned, to pass too long a sentence with the intention of giving an incentive to reform. In any event, an alternative option would have been a community penalty in the light of the time served.[16]It is also correct that if a sentence is being passed, or a suspended sentence passed, normally credit must be given for days served on remand. That is the effect of section 240(3) of the Criminal Justice Act 2003 and of section 240(4)(b). It is not necessary for us to read the text into this judgment.[17]Guidance has been given on this issue by Sir Igor Judge, President of the Queen's Bench Division (as he then was), in the case of Gordon and others [2007] 2 Cr App R (S) 66, in particular at paragraph 31 and paragraph 48. The essence of that guidance is that there must be really clear reasons for any direction under section 240(4)(b) that credit should not be given, and that if there is such a direction, those reasons must be spelt out in the course of the sentencing remarks. No such reasons arise of the quality or nature envisaged by this court in Gordon on the facts of this case. Although the judge did, on the initial occasion, say he would not give credit and reminded the appellant of that on the final sentencing occasion, he did not explain fully why he was doing so. The natural implication of his words is simply that he wanted in effect to pass a longer sentence, to be effective if there was a breach.[18]Since the appellant served 178 days on remand and another 81 days thereafter, the appropriate course here is as follows. We decline to quash the sentence of 12 months' imprisonment passed on 13 August. It was a proper sentence to pass given the facts. We quash the direction indicated on 13 August and made effective on 22 October (if that was the correct date) that the 178 days should not count towards the 12-month sentence, and we direct that credit should be given for those days under section 240, meaning that that sentence had effectively been served by the time of the breaches and sentence for the breaches. We do not order that any of the remaining days of the original 12-month sentence should be served.[19]In respect of the breaches of the suspended sentence, we pass a concurrent prison sentence of 19 weeks and one day in respect of all breaches, with the effect, if any adjustment in that term is needed, that this appellant may be released today. He has not got off "scot-free", but he does have no outstanding penalties from these offences as from today. It will of course be his choice whether he avoids future offending. He now has the chance to prove that he can.