Mintchev, R. v [2011] EWCA Crim 499

[2011] EWCA Crim 499Case No 201006893/A7
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 11 February 2011
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE GROSS
MR JUSTICE WYN WILLIAMS
SIR DAVID CLARKE
Between
R E G I N ACrownv
Between
KIRIL MINTCHEV
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 7404 1424(Official Shorthand Writers to the Court)
Mr A Wright appeared for AppellantMr N Yeo appeared for Crown
J U D G M E N T

LORD JUSTICE GROSS:

[1]On 11 October 2010 in the Crown Court at Kingston upon Thames before His Honour Judge Mitchell, the applicant changed his plea to guilty to unlawful wounding contrary to section 20 of the Offences Against the Person Act 1861 (count 2). On 8 November 2010 he was sentenced by His Honour Judge Dodgson to 12 months' imprisonment with a direction about time spent in custody on remand. Count 1, wounding with intent, was ordered to remain on the file in the usual terms.[2]His application for leave to appeal against sentence has been referred to the Full Court by the registrar. We give leave. We are grateful to Mr Wright, appearing on behalf of the applicant, for his assistance, and we are likewise grateful to Mr Yeo for his written submissions and supporting material on behalf of the Crown.[3]The facts are these and are somewhat unusual. The appellant and the complainant, a Mr Panayotov, were students at Kingston University and were flat mates. On the evening of 9 March 2010 they attended a party on a boat on the river Thames to celebrate the setting up a new investment society at the university. After the party a group of six people, including the appellant and the complainant, went back to their flat and on the way they bought some more alcohol.[4]At flat the appellant became very drunk and was said by witnesses to have shown an interest in two women. Unfortunately the interest was not reciprocated. The appellant then became agitated and started to act aggressively. He threw a laptop and a knife block onto the floor. His friends tried to calm him down. One man put his arm around him to restrain him but he was headbutted. The appellant then picked up a knife and everyone except the complainant left the room. The appellant then stabbed the complainant in the abdomen. The knife penetrated to a depth of 1.5 centimetres. The police were called and the appellant was arrested.[5]Passing sentence the learned judge said that it was not known whether the appellant had suffered a reaction from alcohol and drugs, but he must have known that the alcohol was having a bad effect on him and yet he continued drinking. He had refused to let his friend try to control him and had stabbed one of them with a large knife. It was accepted that he had not intended any serious harm but the use of a knife was extremely serious. It was tragic given the efforts the appellant had made in his life but if he had been someone not as well placed the sentence could well have been a lot more. The appellant was not a danger to the public. Having regard to the guidelines, the starting point was reduced to 15 months to reflect the appellant's positive good character, the efforts he had made while on bail and because this was recklessness rather than intent. Credit was also given for the plea, and so the sentence the judge passed was, as we have indicated, one of 12 months' imprisonment. That sentence could not be suspended as it was more than generous.[6]The grounds of appeal, in short summary, are that, given the appellant's personal circumstances and character, a sentence leading to automatic deportation was manifestly excessive.[7]Some helpful background is furnished in counsel's advice on appeal. Mr Wright points out that the appellant was on a prescribed drug which was assisting him to sleep and that had or may have had a side effect exacerbating the effect of alcohol. Mr Wright reminds us that the appellant had been assaulted at an early stage in his life which led to him suffering ill-health for a number of years and he could not initially take up an university place. But he had worked and become the night manager of a major hotel in Sophia and from that work he had then decided to go to university. He had seen the need for a good education and he began a law degree in Bulgaria in 2006, to his credit funding his studies through part-time work. In due course he decided that a Western education was desirable. He came to this country. He began studying law at Kingston University and passed his first two years, anticipating an upper second class degree. He also worked part-time and was extremely well spoken of in that capacity.[8]In his reply submissions following the receipt of the Crown's submissions, Mr Wright emphasised a number of features in mitigation as it were. The appellant was a man of impeccable character. He had begun higher education later in life than is usual because of the serious assault he had suffered when young. He had shown remorse for his actions and had pleaded guilty, albeit not at the earliest opportunity. He had adjusted his behaviour and medication in order to ensure such a situation did not arise again. He was in the final year of a law degree which had been going well. Mr Wright submitted that in truth the judge had intended the appellant only to spend a few weeks in custody with a view to finishing his education.[9]Confronted with the question of how the sentence should relate to the statutory provisions governing automatic deportation, Mr Wright's case perhaps best appears from his written reply:
"16. In the Attorney General's Reference ... the learned judge did not seem to have any rationale for reducing the sentence to six months other than disapproval of the legislation and a belief that ten years was too long for the notification requirements to apply. The Court of Appeal noted that: 'A judge's personal views about the wisdom of a Parliamentary enactment have no proper place in the sentencing process.' 17. It is not submitted on behalf of the appellant in this case that it would be right for judges routinely to pass sentences which are lower than is appropriate simply in order to defeat the purpose of the legislation. What is submitted is that in a case which falls on the very borderline of the 12 months which leads to automatic deportation, a judge is entitled to look at compelling personal mitigation and consider the effect on an offender of the sentence which is being passed before deciding on the precise length of the sentence."
[10]Mr Wright further submitted that very few defendants would fall into the same category as the appellant here, and, indeed, fall directly on the cusp of the 12 month period.[11]For the Crown Mr Yeo's most helpful written submissions can be very briefly summarised.[12]1. Apart from the issue as to automatic deportation, the sentence was well within the judge's discretion and was not manifestly excessive.[13]2. The new regime for automatic deportation constitutes a consequence of the sentence of the court not a part of the sentence.[14]3. As a matter of principle the likelihood of automatic deportation is not a factor which should lead a judge to reduce the sentence he would otherwise have passed.[15]4. Accordingly the sentence was not manifestly excessive and the appeal should be dismissed. The Sentence[16]On any view an appropriate starting point is to consider the sentence putting the issue of automatic deportation to one side.[17]In our judgment, on this footing, it is impossible to criticise the sentence passed. Having regard to the relevant guideline and the use of a knife, the judge was right to describe the sentence as "arguably more than generous". In reality, but for the provisions as to automatic deportation, we do not for a moment think that any attempt could or would have been made to appeal the judge's sentence. Automatic Deportation[18]It is common ground that the sentence of 12 months' imprisonment passed for this offence results in the appellant coming within the provisions of section 32 of the UK Borders Act which provides for automatic deportation subject only to the exceptions in section 33 of that Act. For the purposes of this judgment it is unnecessary to set out those provisions here.[19]In our judgment, as a matter of principle, it would not be right to reduce an otherwise appropriate sentence so as to avoid the provisions of the UK Borders Act.[20]First, sentences are intended to be commensurate with the seriousness of the offence.[21]Secondly, when passing sentence a judge is neither entitled nor obliged to reach a contrived result so as to avoid the operation of a statutory provision.[22]Thirdly, the automatic deportation provisions are not a penalty included in the sentence. They are, instead, a consequence of the sentence so that section 116(3) of the Criminal Justice Act has no application.[23]If we may say so, authority points to the same conclusion. In Attorney General's Ref. No 50 of 1997 (David Victor V) [1998] 2 Cr App R(S) 155, this court held that it was not appropriate for a sentence to be reduced to limit the extent of an offender's obligation to register under the Sex Offenders Act 1997.

The judge had done so but his approach was trenchantly criticised by Rose LJ as follows at page 157:

"Such an approach cannot conceivably have been intended by Parliament because it would lead inevitably to a partial circumventing of the provisions of the Act itself. ..."
[24]It is difficult to see why the observations of Rose LJ should not apply with equal force in the present context. While it may, with respect, be difficult to reconcile the decision in Hakimzadeh [2010] 1 Cr App R(S) 8 with the approach suggested by the observations of Rose LJ, that decision can be explained as doing no more than approving the adjustment in the structure of an otherwise appropriate sentence in order to avoid the automatic deportation provisions: see Archbold paragraph 5-919. There is, in our judgment, no warrant for widening the ratio of Hakimzadeh and, thus explained, it does not bear on the issues in this case.[25]It is noteworthy that in the commentary to the report of Hakimzadeh in the Criminal Law Review, [2009] Crim LR 677, Dr David Thomas said this:
"Would it be legitimate to reduce the sentence for a single offence to a term below 12 months in order to avoid subjecting the 'foreign criminal' to automatic deportation? This has yet to be decided but cases from other contexts suggest that it would not. ..."
[26]In Lyla Turner [2010] EWCA Crim 2897 this court said at [28]:
"Speaking for ourselves, but without wishing to express a concluded view, we doubt whether it can be right to defeat the intention of Parliament by adjusting what would otherwise be a perfectly proper sentence."
That was said in this very same context of automatic deportation. It is true that no concluded view was expressed but on the facts of that case a concluded view was unnecessary for its decision.[27]In these circumstances, and sad though it may be, if once the decision is reached that the sentence of the judge was otherwise appropriate, then it cannot be right to reduce it simply to avoid the application of the automatic deportation provisions.[28]Mr Wright's arguments appears to concede this by accepting the correctness of the decision in Attorney General's Ref. No 50 of 1997 (supra) in the case of an obviously inappropriate sentence. That a sentence may be border line does not, however, alter the principle. It simply makes the decision as to the correct sentence more demanding. In the present case, however, the sentence was not borderline. The judge had reduced it as much as, if anything perhaps more than, the facts would bear. Any further argument must be for the IAC, not for us, though we obviously express no view as to its outcome. This appeal must be dismissed.