Caley & Ors (Guilty Pleas) v R. [2012] EWCA Crim 2821

[2012] EWCA Crim 2821

Case No 201201799A2, 2012022074A2, 201202806A7, 201202711A7, 201202600D1, 201202493A5, 201202497A5, 201202773A8, 201203188A8

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM

The Crown Court at Peterborough, HHJ Enright T20117218 (Caley)

The Crown Court at Peterborough, HHJ Enright T20117219 (Robertson)

The Crown Court at Warrington, Mr Recorder Menary T20120052 (Perry)

The Crown Court at Liverpool, HHJ Clifton T20117823 (Bowen)

The Crown Court at Southwark, HHJ McCreath T20107596, T20107373 (Sanham)

The Crown Court at Snaresbrook, Mr Recorder Nigel Peters T20127024 (Kamwiziku) T20127025 (Didonga)

The Crown Court at Lincoln, HHJ Morris S20120085 (Wade and McWilliams)

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 21/12/2012

Before

LORD JUSTICE HUGHES

MR JUSTICE WILKIE

MR JUSTICE POPPLEWELL

Between

Caley & others (guilty pleas)Appellant

The QueenRespondent

Michael Duffy for Appellant Caley

Tim Bowden for Appellant Robertson

James E Coutts for Appellant Perry

Paul Wood (instructed by Kirwans Solicitors) for Appellant Bowen

Jamas Hodivala for Appellant Sanham

Daniel W. O’Malley (instructed by Michael Carroll & Co) for Appellant Kamwiziku

James Boyle (instructed by Michael Carroll & Co) for Appellant Didonga

Nicola Devas for Appellant Wain

Samuel Skinner for Appellant McWilliams

Tom Little for Respondent

Hearing Hearing dates: 4th October 2012

Judgment

[1]The several cases before us raise a number of different questions associated with the long established practice in sentencing which recognises that a distinction should ordinarily be drawn between a defendant who admits his guilt and one who does not. It has been convenient to hear them together and we believe that it is possible to give some general guidance on some of those questions. We do not, however, set out to re-appraise ab initio every issue which may arise in connection with sentencing upon pleas of guilty. There is an existing guideline issued by the Sentencing Guidelines Council (“SGC”) in July 2007 (a second edition of a document originating in 2004). It is thus necessarily the point of departure. The cases before us do not, moreover, provide the material which would be required if there were to be a wholesale re-appraisal of reduction for plea. Nor would it be appropriate for this court to exercise its powers to deliver a judgment seeking to make fundamental alterations in the practice. It is known that the Sentencing Council has the overall approach to pleas of guilty and sentencing on its agenda, having deferred further consideration of the topic when the possibility existed (now no longer present) that the Government might seek to introduce legislation upon it. When it resumes consideration of the topic, the Council will be able to have access to the product of wide consultation, and probably to research material which is not before us in these cases. Whether any overall re-visitation of the topic is necessary or appropriate must remain for the future. Some questions, however, arise as to how the SGC guideline should normally be applied. Furthermore, some aspects of the handling of cases in the criminal courts have altered in recent years and the manner in which the Guideline should be applied to present procedures needs to be considered. It is to these topics that we address ourselves.

[2]The starting point is in statute. Section 144(1) of the Criminal

Justice Act 2003 is mandatory:

“(1) In determining what sentence to pass on an offender who has pleaded guilty to an offence….a court must take into account: (a) the stage in the proceedings…at which the offender indicated his intention to plead guilty, and (b) the circumstances in which this indication was given.”

Section 174 requires the court which moderates the sentence on this basis to say that it is doing so. (a) the stage in the proceedings…at which the offender indicated his intention to plead guilty, and (b) the circumstances in which this indication was given.”

[3]We draw attention to the wording. The statute refers to the defendant “indicating his intention” to plead guilty, not to his being arraigned and actually entering such a plea. By definition, the latter will often be at a later convenient opportunity in the court timetable.

[4]Section 144 reflects the practice which the criminal courts had developed over many years. The SGC Guideline identifies the purpose of the practice at paragraph 2.2:

“A reduction in sentence is appropriate because a guilty plea avoids the need for a trial (thus enabling other cases to be disposed of more expeditiously), shortens the gap between charge and sentence, saves considerable cost, and, in the case of an early plea, saves victims and witnesses from the concern about having to give evidence. The reduction principle derives from the need for the effective administration of justice and not as an aspect of mitigation.”

[5]In order of importance, plainly the first is the benefit for victims and witnesses. The impact of crime on its victims can be enormous or slight, but whether it is large or small the knowledge that a defendant has accepted his guilt and that punishment will follow normally reduces that impact substantially and thus brings significant benefit to the victim. It is generally worse for the victim when the offender, although guilty, is defiant. The same applies to the impact on those who may have to give evidence; they include, but are not confined to, the victim. A few may relish it, or think that they will, but for most the process is normally stressful and often unavoidably uncomfortable. Moreover the anticipation may often be painful, sometimes even more than the actuality. For both victims and witnesses the benefit from a plea of guilty remains even when it comes late, but generally speaking the later it is the less the benefit.

[6]The second major reason for the practice is a more pragmatic one but it is nevertheless vital in the public interest. The expenditure in public time and money on trials and on preparation for trials is considerable. The case must be thoroughly prepared so that the exacting standard of proof rightly required in a criminal case can be met. Further investigation is likely to be necessary, as may the assembly of a good deal more evidence, lay and expert. Such steps are necessary, but expensive. They are avoided or much reduced by an admission of guilt. The public’s limited resources can then be concentrated on those cases where a trial will really be necessary, and such cases will not be delayed, often with accused persons in custody. At present something of the order of 75% of all Crown Court cases result in pleas of guilty; if in all those cases the defendants were out of defiance or otherwise to insist on each detail of the case being proved to the hilt the administration of criminal justice would be in danger of collapse.

[7]As the SGC’s statement of purpose makes clear, a plea of guilty may of course be an indication of remorse for the offence, but it may not be and the two things are not the same. A defendant may indeed regret his offence, and, beyond that, it may be clear that he wishes to avoid doing it again. Equally, however, he may plead guilty not because he regrets committing the crime but simply because he does not see a way of avoiding the consequences. The benefits which we have described which come from a defendant who is guilty admitting that he is so remain present if it is a case of the latter type. Moreover, it accords with elementary instincts of justice to recognise the difference between two defendants, one of whom is defiant and requires the public to prove every dot and comma of the case against him and the other of whom accepts his guilt.

[8]The well established mechanism by which this is done is by reducing the sentence which would have been imposed after a trial by a proportion, on a sliding scale depending on when the plea of guilty was indicated. The largest reduction is of about one third, and is to be accorded, under the well established practice and the SGC Guideline, to defendants who indicate their plea of guilty at the “first reasonable opportunity”. Thereafter the proportionate reduction diminishes. A plea of guilty at the door of the trial court will still attract some reduction, but it is likely to be of the order of one tenth.

[9]The SGC Guideline rightly makes it clear that the question of when the defendant’s first reasonable opportunity arose is a matter for the sentencing judge. Individual cases may call for individual decisions about this. But it is obviously desirable for there to be a baseline of broadly consistent approach if justice is to be done between different offenders, in all parts of the country. Equally such consistency is necessary if proper advice is to be given to accused persons.

[10]The SGC Guideline contains at Annexe 1 some general assistance in determining the point of first reasonable opportunity. That document however leaves unresolved a question which is important in the context of current practice for handling the early stages of a criminal prosecution. It suggests that the first reasonable opportunity may be the first time a defendant appears in court and has the opportunity to enter a plea (ie when he is arraigned), but also that a court might consider that he had a reasonable earlier opportunity to indicate a willingness to plead guilty, and “perhaps whilst under interview”. A broad spectrum of possibilities is thus left open, beginning with the police interview of the defendant as a suspect, passing through a variety of possible hearings in the Magistrates’ and Crown Courts and ending with formal arraignment. It has fallen to us to consider whether within that broad spectrum any further general assistance can usefully be given. It is apparent that different approaches are taken by different judges not simply to individual cases requiring special attention (which is clearly necessary) but also to the general or default position. We think that some limited narrowing of the spectrum can be achieved in the interests of greater consistency. We will come below to consideration of formally propounded and well established local schemes, usually known as ‘Early Guilty plea’ schemes.

[11]First, however, some of the cases before us have debated the question whether the first reasonable opportunity generally arises at arraignment, which will normally take place at a plea and case management hearing (“PCMH”) in the Crown Court, or at an earlier stage. If the latter, then at which earlier stage ?

[12]Mr Little, who appeared for the Crown in all these cases, did not ask us to say that the first reasonable opportunity normally arises in police interview. We agree that that would require a significant adjustment to general practice. It might have implications for the terms of the caution and for other rules of practice about how interviews are conducted. Moreover, at the interview stage, although the factual allegation will normally be made, the charge will generally not have been formulated.

[13]It does not of course follow that it is irrelevant to sentence if a defendant frankly admits in police interview what he did. Far from it. The defendant who does so will have additional mitigation which should normally be recognised in sentencing. Its impact on sentence will of course vary according to circumstances. At one end of the scale, the defendant who volunteers an admission when the police could not have brought the allegation home (and occasionally when they did not even know about it) usually has a great deal of mitigation. So has the defendant who, by admitting what he did, spares others who would otherwise have come under suspicion. At the other end of the scale, the defendant who is confronted with evidence which is in practice unanswerable has little, although some, mitigation. The right way for courts to deal with admissions in interview is not, however, by treating them as essential in every case to according the maximum one-third reduction for guilty plea. Rather, the variable circumstances of such admissions are best dealt with not by percentage adjustments prescribed in advance but by recognising them as a factor tending towards downwards adjustment to the sentence passed, to be assessed in the ordinary way by the judge along with other aggravating and mitigating factors, but before adjustment for plea of guilty.

[14]There is sometimes confusion in argument between(i) the first reasonable opportunity for the defendant to indicate his guilt and

(ii) the opportunity for his lawyers to assess the strength of the case against him and to advise him on it. It is obvious that the second depends on the evidence being assembled and served. The first, however, frequently does not. There will certainly be cases where a defendant genuinely does not know whether he is guilty or not and needs advice and/or sight of the evidence in order to decide. We do not attempt to define them, and they do not arise in the present appeals. They might however include cases where even if the facts are known there is a need for legal advice as to whether an offence is constituted by them, or cases where a defendant genuinely has no recollection of events. There may be other cases in which a defendant cannot reasonably be expected to make any admission until he and his advisers have seen at least some of the evidence. Such cases aside, however, whilst it is perfectly proper for a defendant to require advice from his lawyers on the strength of the evidence (just as he is perfectly entitled to insist on putting the Crown to proof at trial), he does not require it in order to know whether he is guilty or not; he requires it in order to assess the prospects of conviction or acquittal, which is different. Moreover, even though a defendant may need advice on which charge he ought to plead guilty to, there is often no reason why uncertainty about this should inhibit him from admitting, if it is true, what acts he did. If he does so, normally the public benefits to which we have referred will flow.

[15]The progress of a criminal case through the courts has undergone considerable streamlining in recent years. Where the offence is an “either way” offence, the magistrates are required to conduct mode of trial proceedings under the Magistrates’ Courts Act 1980, and if the case is suitable for Crown Court trial then formal committal follows. The mode of trial proceedings in the Magistrates’ Court include the requirement that the defendant be read the charge and given the opportunity (if he wishes) to indicate that he will plead guilty: see s 17A(3) and (4). Where the offence is indictable only it will have to be “sent” to the Crown Court, but a similar enquiry must be made at the Magistrates’ Court whether the case is likely to be a plea of guilty or not. This is required by the Rule 9.7(5) of the Criminal Procedure Rules, as well as more generally by Rule 3.8. Both Rule 9.7(5) and paragraph IV41.3 of the Consolidated Criminal Practice Direction ensure that the management directions given by the magistrates at the time of sending will vary according to the answer. A preliminary hearing for the plea to be taken in the Crown Court, and “as soon as possible” will be directed where a plea of guilty is indicated but (unless there is another reason for such a hearing), not otherwise. A case management hearing in the Crown Court will be directed if no such indication is given. In other words, there is always a formal opportunity in the Magistrates’ Court for the defendant to indicate that he accepts he is guilty. The impending abolition of committal and replacement by sending to the Crown, which we understand to be likely to be completed in the next year, is a further streamlining but does not affect this position.

[16]These statutory provisions dovetail with case management initiatives increasingly taken by Crown Courts, often referred to as “Early Guilty Plea” schemes. By this, we do not mean individual sentencing practices of one or more judges but, rather, formally adopted local schemes, publicly stated and usually following discussions as to practicalities with local practitioners, both prosecuting and defending. Whilst these schemes vary in detail, the principle is that the parties are encouraged to give active early consideration, either (under some schemes) at the Magistrates’ Court or (under others) immediately the case arrives in the Crown Court,to whether it is likely to be disposed of by plea of guilty or by trial. If the former, a prompt hearing is set up, with the necessary pre-sentence report available, so that the plea can be taken and sentence passed, all at a single hearing. If the latter, the case will be listed for plea and case management, that is for arraignment and trial planning. Thus under these schemes, at the latest by the time the case arrives in the Crown Court, the defendant is given a formal opportunity through his solicitors or counsel to notify his intention to admit the offence and/or to ask for prompt listing for arraignment and sentence. Even without such formal schemes, every defendant has in fact the opportunity in every Crown Court to give such an indication.

[17]These various procedures all serve a similar end. They aim to advance the point at which everyone can know whether a trial is going to take place or not. The sooner this is done the greater the advantage for the victim and witnesses. The sooner this is done the greater the public saving in preparation of trial-ready evidence by the Crown and in successive Crown Court hearings. The point at which there is, in practice, great saving in the assembly and service of evidence, and in the investigation and making of disclosure, is if and when an indication of a guilty plea is given either in the Magistrates’ Court or immediately on arrival in the Crown Court. The practice of local CPS branches as to the level of preparation for a case leaving the Magistrates’ Court by way of committal (whilst this endures), or by way of ‘sending’, may well vary, and this may well underlie some of the variations in locally hammered-out formal schemes. But by the time of a plea and case management hearing a complete or nearly complete trial file of evidence should normally have been prepared, even if scientific evidence may often be still to come and there may be other evidence which becomes necessary when once the issues are defined for trial. There are undoubtedly considerable savings still to be made if a plea of guilty is tendered on arraignment at such a hearing, but they are normally significantly less than can be achieved if an earlier indication is given.

[18]All this leads us to the clear conclusion that, absent particular considerations individual to the case, the first reasonable opportunity for the defendant to indicate (not necessarily enter) his plea of guilty, if that is his mind, is not the PCMH, This court pointed towards this conclusion in R v Chaytors

[2012] EWCA Crim 1810

. The first reasonable opportunity is normally either at the Magistrates’ Court or immediately on arrival in the Crown Court – whether at a preliminary hearing or by way of a locally-approved system for indicating plea through his solicitors. There will, we think, ordinarily be some, but limited, difference in public benefits between the two stages of the Magistrates’ Court and the first arrival in the Crown Court, but for practical purposes either can properly, we think, ordinarily attract the maximum percentage reduction (one third) provided for by the SGC Guidelines. Properly promulgated local schemes which provide for either appear to be working, may well reflect local variations in the preparation of files for committal or sending, and do not, we think, need at present to be disturbed. However, the possibility adverted to in Annex 1 of the Guideline that an indication at the Magistrates’ Court might attract a reduction of 33% and an indication at the first Crown Court hearing 30% is not, we think, generally reflected in practice as experience has developed it over the years, and, given the minimal distinction, is likely to be an unlooked-for complication.

[19]A plea of guilty at a plea and case management hearing will ordinarily not be significantly different from a plea notified shortly after it. Whatever the exact procedure in different courts for fixing trial windows or trial dates this is clearly the stage at which the Guideline contemplates a reduction of about a quarter.

[20]By ‘indicate plea of guilty’ we mean to include the case where, either in the magistrates’ court or at or soon after arrival in the Crown Court, the defendant through counsel or solicitors notifies the Crown that he would admit a lesser charge or invites discussion as to the appropriate charge, at any rate where the position taken up is a reasonable one. The same may be true, where a formal local scheme does not operate, of a considered indication to the court that a trial is unlikely, so long as realistic and prompt discussions with the Crown then take place. Ordinarily these kinds of indication will bring similar public benefits to those which we have described.

[21]We recognise that this may well mean that advocates at the Magistrates’ Court must be equipped to explain to the defendant the practice relating to reduction for pleas of guilty, and that the trial advocate may well need to be instructed earlier than used in years past to be the practice. This is a matter for the parties and their advisers, but to the extent to which these things are wise and necessary they ought already to be the trend.

[22]We also recognise that some courts may wish to embark on consultation with local practitioners with a view to adopting particular schemes consistent with the principles which we have set out, and adapted to local conditions. Provided that the general principles set out above are observed, that appears to us to be perfectly legitimate. “Overwhelming case”

[23]Paragraph 5 of the SGC Guideline expressly advises that it might be appropriate to limit the reduction in sentence for plea of guilty where the case against the defendant is, irrespective of any admission, overwhelming. The terms in which that advice is given in the Guideline are cautious. If the plea is indicated at the first reasonable opportunity, the Guideline states that there remains a presumption that the full reduction of one third ought to be given. If there is reason not to make this full reduction, it is suggested that the reduction should be of the order of one fifth.

[24]In R v Paul Wilson

[2012] EWCA Crim 386

this court recently considered this question in the context of a particularly serious case of two oral rapes of a three year old, which had been recorded on camera. The trial judge had declined to make any reduction in sentence for the plea of guilty although it had been indicated at a very early stage within a week of police interview. This court disagreed and reduced the very long sentence imposed, which reflected also other very serious child grooming offences. After assessing the state of the evidence, the Lord Chief Justice referred to the judge’s view that the defendant had had no choice but to plead guilty but said that “Ultimately the plea is for the defendant”. He then said this at [29] and [31]:

“[29] Even in an overwhelming case the guilty plea has a distinct public benefit. The earlier that it is indicated, the better for everyone…..There are two examples we wish to highlight. First, none of the repellent movie of the little girl would ever be shown in public. No one would ever see her face. In addition, none of it would ever be seen by the jury [who]….would have been horrified… Those are but two advantages of the guilty plea. …….. [31] Although we understand the judge’s view, it would be productive of uncertainty, and would ultimately cause chaos if this court were to suggest that an existing definitive guideline could be disregarded or ignored in this case unless, at any rate, we were able to find a specific reason to conclude that he interests of justice required us to do so. ”

Those observations were made in the context of wholesale refusal of any reduction but they have a wider lesson to teach. The cautious terms of the SGC guidelines on this topic are deliberate and wise. The various public benefits which underlie the practice of reducing sentence for plea of guilty apply just as much to overwhelming cases as to less strong ones. Next, judges ought to be wary of concluding that a case is “overwhelming” when all that is seen is evidence which is not contested. Thirdly, even when the case is very strong indeed, some defendants will elect to force the issue to trial, as indeed is their right. It cannot be assumed that defendants will make rational decisions or ones which are born of any inclination to co-operate with the system, but those who do merit recognition. When contemplating withholding a reduction for plea of guilty in a very strong case, it is often helpful to reflect on what might have been the sentences if two identical defendants had faced the same “overwhelming” case and one had pleaded guilty and the other had not. In any event, the guidelines make clear that normally at least a one-fifth reduction ought to be made, however ‘overwhelming’ the evidence.

[25]As one of the present appeals illustrates, it can be particularly tempting for courts to avoid reduction in sentence for plea of guilty when the statutory maximum sentence is low, or there is other inhibition, and the resulting sentence is felt to be insufficient. However tempting, this must be resisted. As the Guideline says at paragraph 5.6:

“The sentencer cannot remedy perceived defects (for example in an inadequate charge or maximum penalty) by refusal of the appropriate discount.”

[26]The Guideline expressly stipulates at paragraph 4.3(iv) that if the trial of an issue by way of Newton hearing is necessary because the defendant asserts a false basis of plea or otherwise disputes a part of the case against him, then if his case is rejected that should be taken into account in determining the level of reduction for plea of guilty. This is only commonsense. The reduction is to recognise the public benefits which flow from a plea of guilty. If despite a plea to the indictment the defendant insists on a version of events which calls for a trial of the issue before the judge some witnesses may well have to give evidence and even if they do not court time will be taken up and further preparation by the Crown will often be necessary. Of course, if the Crown cannot prove its version, the defendant’s reduction for plea of guilty will be unaffected. But if the defendant fails, the converse follows. It is of no little importance to the administration of justice that where bases of plea which will affect sentence are tendered, judges should decide the facts. It is particularly important that unrealistic bases of plea should receive no incentive.

[27]We do not think that it is either necessary or possible to attempt to lay down a rule as to what (if any) reduction for plea should survive an adverse Newton finding. It will depend, as it seems to us, on all the circumstances of the case, including the extent of the issue determined, on whether lay witnesses have to give evidence and on the extra public time and effort that has been involved. Some cases involve little more than an assertion in mitigation which the judge is not minded to accept at face value, so that the defendant is given an opportunity to give evidence about it, often (sensibly) there and then. In that case, the reduction ought normally to be less than it would have been if the (false) assertion had not been made, but significant reduction for plea of guilty will, we anticipate, normally survive. Other cases may be ones where something akin to a full trial has to take place, with full preparation by the Crown, lay witnesses having to be called and considerable court time taken up. In such a case, the reduction for plea of guilty which survives is likely, we suggest, to be very small, and may be none at all. In between there may be a considerable range of situations. These must be left to the informed judgment of the sentencing judge.

Residual flexibility

[28]The general approach which we have endeavoured to set out is, we think, essential to an understanding by defendants and their advisers. But it does not altogether remove the scope of the judge to treat an individual case individually. We make no attempt to anticipate the great variety of circumstances which might arise, but give three examples. One is the case of murder where there is real necessity for advice on the availability of a defence, whether self defence, lack of intent, or the partial defences of diminished responsibility or of loss of control. This court (Judge LJ) recognised this in R v Peters, Peters & Campbell

[2005] EWCA Crim 605

; [2005] 2 Crim Rep R (S) 101 at 627, but only in the context of a defendant who accepts, and makes clear early that he accepts, responsibility for the killing: see paragraph [19]. Next, one of the appeals before us raises the possibility of poor advice. That might, if clearly demonstrated, be relevant to the issue of first reasonable opportunity, especially in the case of a young or inexperienced defendant particularly in need of advice. It is, however, likely that before a defendant could satisfy the judge that it was right to proceed on the basis of poor advice, he would have to consider optional full waiver of privilege. That is because the question may well be raised what (if anything) he was telling his lawyers about his actions. A third case which is sometimes treated as meriting exceptional treatment is the exceptionally long and complex trial, whether in fraud or otherwise (such as people trafficking, complex drug cases, serial sex abuse cases with many complainants and the like). Since the rationale of reduction for plea is the public benefit which we have described, we leave open the possibility that in some such cases, unusually, some considerable benefits may well ensue from a plea of guilty even at a late stage. Care must however be taken with such a proposition so that it does not become routine. If it does, then the incentive to focus on plea at an early stage is lost, and it becomes impossible to maintain proper parity between late-pleading defendants and those who indicate their guilt at the right time. One of the appeals before us (Sanham) is a useful illustration of the fact that there is no real obstacle in a complex fraud case to a defendant who admits his guilt doing so at an early stage.

[29]The necessary residual flexibility which must thus remain does not, however, extend to suggesting an investigation in every case of the savings which have or have not actually ensued. The rationale of the reduction for plea of guilty lies in the incentive provided, not in an ex post facto enquiry into what would or might have happened if a different course had been taken. If that kind of enquiry were necessary in every case, the administration of justice would not be made more efficient but rather would unnecessarily be complicated, slowed, and made more expensive. The appeal of Bowen, infra, affords an illustration of the point.

[30]We apply the foregoing principles to the several cases before us.

Caley & Robertson

[31]Caley and Robertson were two of three men who robbed a newsagent/general store. Robertson and the third (unidentified) man entered the store carrying what appeared to be guns and disguised by stocking masks. The third man brandished a handgun at the solitary shopkeeper, pushing it into his face. Robertson stood guard at the door holding what appeared to be a shotgun, which at one stage he pointed at the shopkeeper. Caley drove them to the shop and remained waiting as the getaway driver outside. The team had inspected the shop about 45 minutes earlier. It escaped with the contents of the till (about £300) and a quantity of cigarettes, carried in a bin liner taken there for the purpose. The car was Caley’s own, and quickly traced to him because a passer-by took its number. These two defendants, but not the third, were caught still in the car within a little over an hour an a half of the offence. The firearms were not recovered and because it was not known what exactly they were the defendants were charged with possession of imitation weapons. The offence had a considerable and lasting impact on the unfortunate shopkeeper, who believed them to be genuine. In interview, Caley answered no questions. Robertson initially did the same and then advanced a false alibi. Both men entered pleas of guilty at the PCMH but had not indicated beforehand that they would do so.

[32]Caley was thirty years of age. He had previous convictions for driving and drugs offences, for battery and for assault on a constable, but had not previously been sentenced to a custodial sentence. He asked the court to take into consideration four other offences of metal stealing, three of them lead from church roofs.

[33]Robertson was 19. He had previous convictions for affray (twice), harassment (twice), the possession of cannabis (three times) and criminal damage; he had not received one short custodial sentence. He asked for five other offences of theft and burglary to be taken into consideration; some of them were metal thefts.

[34]The judge took a starting point of ten years after trial. He reduced that by 25%, made a slight adjustment for Robertson, no doubt for age, and passed sentences of seven and a half years on Caley and seven years on Robertson.

[35]For Caley, Mr Duffy’s principal submission is that the judge was wrong not to treat his plea of guilty as made at the first reasonable opportunity. The sequence of events was as follows. The arrest was shortly after the offence. The police interview followed next day; he declined to answer questions. He appeared at the Magistrates’ Court the following day. The offence was indictable only so he was sent to the Crown Court that day. By 7 November, a week after the offence, the first (“preliminary”) hearing took place at the Crown Court. No indication of plea was given, although the court operated a system with a form asking the question what the plea was likely to be. The case was therefore adjourned for the service of the Crown evidence, which followed on 20 December. The PCMH hearing ensued on 31 January, and at that hearing Caley pleaded guilty.

[36]Mr Duffy asserted that Caley had had poor advice. He told us that the defendant’s instructions were that his solicitor’s representative attended the interview very late, appeared disinterested, and lost patience with the defendant; accordingly Caley disengaged from the process and declined, apparently on his own initiative, to answer any questions. As to the preliminary hearing in the Crown Court, Mr Duffy asserted that counsel had offered no advice at all as to plea, although he accepted that the form must have posed the question. Similar submissions were made to the judge, who recorded that he had been shown some documents, tendered by the solicitors, although they were redacted. The judge took the view that the suggested waiver of privilege was partial, and that it any event the decision whether to make admissions or to plead guilty was a personal one for the accused. That led to his reduction of 25%, but not of 33%.

[37]We investigated the sequence of events a little further with Mr Duffy, who very frankly made it clear that it was at his initiative that the point was taken as to poor advice. We recognise his very proper concern to serve the interests of the defendant. We agree that if the solicitors’ unqualified representative behaved as suggested at the interview, he did not discharge their duty to give professional advice. He ought at the very least to have explained to the defendant that only he (the defendant) knew whether he took part in the robbery or not, but that if he did and wished to admit it, that would be likely to produce a shorter sentence in due course than if he chose not to. But the mixed quality of advice in interview, sometimes at short notice and inconvenient hours, is simply one of the reasons why, as we have held above, the police interview ought not to be regarded as the first reasonably opportunity to indicate a plea of guilty for the purposes of the SGC Guideline. As to the possibility of later indication of plea, we do not agree that the bare assertion that no instructions were given on the occasion of the preliminary hearing in the Crown Court by itself removes responsibility from the defendant. We gave leave for additional written submissions to be made, from which it emerges that there is no unanimity between counsel who appeared then and now as to what exactly occurred. We cannot and do not attempt to resolve that issue. We do not agree that the assertion of poor advice is clearly made out. But even assuming in Caley’s favour, without deciding, that clearer advice could have been given to him, that does not lead to the conclusion that the sentence was in error. If the judge thought that partial waiver was always impossible, he erred (see Seaton

[2010] EWCA Crim 1980

;

[2011] 1 Cr App R 2

). However, in this case, if waiver was to be effective it would have to reveal whether the defendant was telling his solicitors that he was one of the robbers; Mr Duffy acknowledged that this was not revealed.

[38]Mr Duffy told us, frankly as one would expect, of his own dealings with Caley. There was a conference with counsel on 10 November, shortly after the preliminary hearing in the Crown Court. The defendant admitted his part in the offence at this conference. However, on advice, he did not notify the Crown or the court of his intention to plead guilty. Rather, a reasoned decision was taken, on advice, to await sight of the evidence. The Crown then produced a full file of evidence, and it was after sight of this that the defendant pleaded guilty at the PCMH.

[39]We were grateful to Mr Duffy for clearly articulating the arguments for generally treating the PCMH as the first reasonable opportunity. We accept that from the point of view of defence counsel first instructed on this occasion, it is helpful for him to be in a position to explain to the defendant(a) what the evidence is against him and

(b) that a plea of guilty then and there will normally result in a reduction of about one third in sentence. But that is to fail to put into the scales the consequential need for a trial-ready Crown file, or something close approaching it, to be prepared for the PCMH. It is no doubt true that a reduction of about a quarter available at the PCMH stage is to that extent less incentive to a defendant than a third would be, but it is in no sense insignificant, is consistent with the SGC Guideline, and, as it seems to us, fairly recognises the balance which the Guideline had to strike between the public interest and that of the defendant.

[40]Accordingly we conclude that the Judge was entitled to, indeed right, to adjust the post-trial sentence in Caley’s case by a quarter rather than by a third. The same is clearly so in Robertson’s case, where there was no sign of any indication of a plea of guilty before the PCMH.

[41]The remaining argument on behalf of both defendants was that the judge’s starting point of 10 years after trial was too high. We agree that consideration of the categories of robbery contained in the robbery guideline alone would suggest a lower starting point, but that has to be subject to the impact on the case of the very serious firearms offence. The Guideline itself, at page 6 point (b) expressly counsels courts to consider, where firearms are used, the use of consecutive sentences which properly reflect the totality of offending. It is true that this was not a sophisticated robbery of its kind, and that the defendants’ convictions were, though repeated, not of equivalent gravity to the present offence. The judge’s starting point, however, was, although severe, not outside the bracket properly available to him and cannot be described as either manifestly excessive or wrong in principle

[42]Additional submissions were made in the case of Caley that: i) there was objectionable disparity between the two defendants, since, it was said, Robertson carried a weapon and had not, unlike Caley, tried to help the police recover it; and ii) adjustment ought to have been made in the term of imprisonment for the fact that a deprivation order was made removing from him the car used to commit the offence. We are afraid that neither is persuasive. There were differences between the two defendants, as so often, pointing in both directions. Caley was significantly the elder. The judge was perfectly entitled to treat them as governed by the same hypothetical post-trial starting point, and to make a minimal adjustment for age as he did. There is no reason why a deprivation order should have the consequence of reducing the sentence of imprisonment and the decision in Buddo

(1982) 4 Cr App R (S) 268

, to which we were referred, does not say that it should; it simply says that a deprivation order does not follow automatically in every case but its imposition calls for an exercise in judgment.

[43]For these reasons, the applications for leave to appeal against sentence must in both cases be refused.

Perry

[44]This appellant pleaded guilty to possession of a controlled drug of Class A with intent to supply and, on 12th April 2012, he was sentenced to 4 years and 6 months detention. His case raises the issue of the relevance of an adverse Newton determination to reduction for plea of guilty. The single judge gave leave to appeal.

[45]Perry’s plea of guilty was on a written basis to the following effect:

“He had purchased the drugs on behalf of himself and four friends at the campsite shortly before attempting to enter the festival. They had all contributed some money towards the purchase and they were to share the drugs inside the event. There was no commercial motive or intention to make financial gain on behalf of himself”

[46]The Prosecution did not accept that basis of plea and a Newton hearing was ordered, at the conclusion of which the Judge rejected the Appellant’s version of events and found that he had been supplying drugs on a commercial basis.

[47]Perry had been arrested at 15:40 on 28th August 2011 attempting to enter a dance festival. He had in his possession a snap bag containing yellow tablets and wraps which were MDMA (ecstasy). Within that bag there were 16 wraps and 15 tablets comprising 31 deals. The commercial value, if sold inside the festival site, was between £780 - £940. He was 20 years of age and had no previous convictions but he did have a warning imposed by the police on 23rd April 2010 for possession of cannabis.

[48]The judge followed the Sentencing Council Drugs guideline, saying that he could in all the circumstances see no reason to depart from the suggested starting point for that category of offending of 4.5 years. Because of the outcome of the Newton hearing he felt he could give no credit for the plea of guilty. He therefore sentenced the appellant to 4.5 years’ detention.

[49]The judge’s application of the Guideline was unimpeachable. He concluded that, in terms of culpability, the Appellant had a significant role, namely:

“motivated by financial gain or other advantage whether or not operating alone”

. In terms of harm the offence fell within Category 3 where in an offence of selling directly to users (street dealing) the level of harm is not based on quantity. Applying the guideline to those two factors for a Class A drug, the starting point is 4 years 6 months with a sentence range of 3 years 6 months to 7 years.

[50]The grounds of appeal are twofold. First, that the Judge, having identified correctly the starting point, failed to consider any factors which would indicate a reduction by way of personal mitigation, in particular, no previous conviction and/ or age or lack of maturity. Second, that the judge was wrong in principle in failing to give any credit at all for his plea of guilty albeit it had been on a specific basis which the judge had rejected after a Newton hearing.

[51]In our judgment there is nothing in the first ground. The Appellant was not a person of good character as he had a relevant warning for possession of a Class B drug. Furthermore, in the context of this particular type of offence, committed at such an event, a person of age 20 should not expect to receive any discount merely on account of his age. The judge had found that he was, despite his age and lack of previous convictions, acting, on this occasion, as a street dealer, on a commercial basis, involving a not insignificant amount of drugs and trading within a particularly lucrative market. There was no error in fixing four and a half years as the appropriate sentence after a trial for this offence.

[52]As for the second ground, this was a clear case for a Newton hearing. The facts alleged in the written basis of plea did not go to whether or not he had committed the offence, but were central to the proper basis for sentence. This was a moderately substantial hearing. It involved the prosecution calling police expert evidence on the way in which the festival was organised and the market for drugs within the festival site. The appellant gave a detailed account in evidence which was wholly different from that which he had originally proffered in police interview, when he was saying that the drugs were for his own personal consumption. The interview, he accepted, had been a lie, hence his plea of guilty to the offence of possession with intent. But the judge, in rejecting his evidence that he was a social supplier for himself and his four friends, concluded that the account he gave in evidence was a lie as well. The false basis of plea which he advanced is a particularly common one in cases of this kind. It was important that it be investigated and its truth or falsity determined.

[53]As we have said above, we agree with the generalised submission of the Crown that there will be some cases where after an adverse Newton determination, no reduction for plea of guilty will survive. R v Elicin and Moore

[2008] EWCA Crim 249

[2009] 1 Cr App R (S) 98

was an example where the adverse finding came on top of what was understandably regarded as an overwhelming case since the defendants had been caught carrying into the country a substantial cargo of weapons and their telephones contained messages arranging for their sale. But at that stage the court did not have the advantage of the decision in Paul Wilson (see [25] above), and the sentence of three years was in no sense severe. In a case such as Perry, although the great bulk of the reduction for plea of guilty will be dissipated by advancing a false basis of plea such as he did, the difference does normally need to be maintained between a defendant who pleads guilty and one who, overwhelming evidence or no, refuses to do so. The public expense and inconvenience of a trial in such a situation is yet greater than that involved in a Newton hearing.

[54]For these reasons we conclude that some limited reduction ought to have been made for the guilty plea by which the defendant abandoned any contention that the drugs were for personal use only and relieved the public of the additional expense of a jury trial. We think the reduction should have been of the order of 10%. We therefore allow this appeal to this extent: we reduce the sentence from four and a half years to one of four years detention. The other orders made by the court will remain as before.

Kamwiziku and Didonga

[55]In the early hours of 12th January 2012 the complainant, Vimal Jain, aged 37 was walking along the Ridgeway in Golders Green. He was struck to the back of head with a piece of wood wielded by Kamwiziku. He turned around and was struck across the right side of his face which caused him to fall to his knees. His bag, containing amongst other things an iPad, was taken from him after a desperate struggle during which he was hit several more times in the face and was dragged around the pavement when on the ground. He heard the applicants running off. They had been lying in wait in a place where they had no business, waiting for someone to rob. They were arrested soon after. As a result of the attack Mr Jain suffered severe damage to his optic nerve; he will almost certainly go blind in his right eye. His eye socket and cheek bone had numerous fractures and his nose was broken. He is the breadwinner for his family and had a potentially fulfilling and prosperous career, but his future career and employment prospects are very much at risk, and he will be unable to follow the sports which were important to him. He and his family feel unsafe in the area around their home. The effect on him of a few moments’ terrible violence is enormous.

[56]Kamwiziku was not quite 19 years of age. He had 20 previous convictions. They include an assault occasioning actual bodily harm in 2008, having a bladed article in January 2010, an assault in February 2010, 2 attempted robberies in March 2010 and an attempted dwelling house burglary in September 2011. He had received, in addition to many non-custodial sentences, with some of which he had failed to comply, three terms of detention, of which the longest had been six months.

[57]Didonga was two years older and had four previous convictions. They included an attempted robbery in 2007 and a robbery in April 2008, when he was respectively 16 and 17. He had not previously been sentenced to a custodial term.

[58]In police interview Kamwiziku denied that he had been present. Didonga admitted that he had been there. The two defendants first appeared at the Crown Court at Wood Green on 20th January for a preliminary hearing. At that stage the indictment charged a single count of robbery. No pleas of guilty or indications of pleas were made on that date. Counsel for the Crown invited the judge to inform the defendants formally that that occasion would be last on which a full reduction for plea of guilty could be expected. For the reasons given above, the judge would, in the light of this judgment, have been right to do so. But he did not. He expressly told the defendants that significant reduction would remain available at the PCMH. No doubt that reflected his general practice. Then, when on 2nd March the PCMH took place, the Crown radically altered the indictment by preferring an additional count against both defendants charging a Section 18 offence of causing grievous bodily harm with intent. The sentencing judge surmised, we believe accurately, that this was in order to reflect the more serious aspect of the offending namely the very severe attack with a weapon which accompanied the robbery and it had the effect of potentially raising the correct level of sentence.

[59]On that occasion, at the PCMH, both applicants pleaded guilty to both counts. On 23rd March they were sentenced as follows. Kamwiziku, whom the Recorder adjudged dangerous, was sentenced to 9 years in respect of the robbery and to an extended sentence of 18 years (custodial term 14 years detention and an extended licence period of 4 years) for the section 18 offence. Didonga was sentenced to 9 years imprisonment for the robbery and 10 years imprisonment for the Section 18 offence.

[60]In arriving at those sentences, the Recorder held that the offence merited placement at the top of the range of 9-16 years for section 18 offences. He told Kamwiziku that he could give only “a very small” reduction for plea of guilty since he had denied his involvement until the PCMH. His sentence of 14 years custody suggests that his reduction for plea of guilty was of the order of one tenth or possibly less. He did not refer specifically to reduction for Didonga, but the 10 year sentence may well reflect either a lower starting point or a greater reduction for plea, or both.

[61]The addition of the section 18 counts at the PCMH, although of course legitimate, meant that the defendants were unable to indicate a plea of guilty to them until that day. On the general principles which we have endeavoured to set out above, this did not mean that they were unable to indicate whether or not it was disputed that they were responsible for the attack, and, as we have said, Didonga did admit taking part, albeit whilst minimising his own actions. We think that most judges would have thought it right to recognise the late addition of the more serious charge in adjusting the right reduction for the plea of guilty which was immediately entered on the very day it was made. Thus far, the proper approach would have been to reduce Didonga’s sentence by about one third, in recognition of his prompt admission of presence. For Kamwiziku the reduction may well have been smaller, but it would not have been “very small” or the apparent 10% actually made, for the plea was tendered at the PCMH; at least it would have been about a quarter and given the late addition of the count it might have been a little more. In any event, the Recorder overstated the position, as it seems to us, when he described Kamwiziku as persisting in his denial “until the bitter end”. However, the additional factor is that the defendants had been told at the preliminary hearing that a significant reduction would remain available at the PCMH, and it is clear to us that this did not, in the court in question, convey the message that it would be appreciably less than the orthodox “first reasonable opportunity” one third.

[62]In those circumstances, we agree that the sentence passed on Kamwiziku erred in principle to the extent that the wrong adjustment was made for plea of guilty. We give leave to appeal. Approaching the case afresh, as is then necessary, we conclude that a proper starting point after trial ought not to have been greater than 15 years, and that the right custodial term was accordingly 10 years. We quash the extended sentence and substitute for it one of a custodial term of 10 years with an extended licence of five years. The concurrent sentence for robbery is not affected.

[63]As to Didonga, we do not agree that the sentence is rendered wrong in principle by the decision not to adjourn for a further pre-sentence report. Didonga had not been interviewed by probation officers prior to the date of sentence because the video link was not working on the arranged date. However, on a subsequent day, when he was offered an interview, he refused, without good reason, to cooperate. The recorder indicated that, if he felt that he needed more information following mitigation he would ask for a supplementary pre-sentence report. The recorder had a report from the probation service which was based on information previously assembled and reports previously made. The recorder was perfectly entitled to conclude that he had sufficient information to determine sentence. Nor do we agree that the recorder was not entitled to conclude that the defendants had lain in wait for their victim, albeit that they may have found themselves in the particular part of London after changing buses on their way home. We do, however, agree that there was a proper basis for distinguishing between the two defendants, because Kamwiziku wielded the weapon, on grounds of past record and because he had admitted presence right from the outset. The recorder recognised those factors, but his sentence of 10 years did not sufficiently give effect to them. In our view the proper starting point in Didonga’s case would not be greater than 12 years. We can see no reason not to accord the one third reduction for plea. In those circumstances, we give leave, we quash the sentences of 10 years on the section 18 count and 9 years on the robbery count, and we substitute sentences of 8 years concurrent on each.

Bowen

[64]Bowen and a cousin fell to be sentenced for an attack on a doorman at a club. On their arrival there, the cousin was refused entry. The defendant was allowed in, but came back to the doorway to remonstrate with the doorman, and then punched him in the face. That resulted in his cousin joining in; he also punched him and, further, kicked him when he was down. The doorman suffered a broken jaw as a result of the attack. The whole event, which lasted only a brief time, was recorded on CCTV.

[65]This defendant was 37 at the time. He had previous convictions for a variety of offences and had served a five year sentence for offences of robbery and assault, as well as two subsequent shorter custodial sentences.

[66]The Crown Court was Liverpool, which operates an Early Guilty Plea scheme of the kind which we have described above. That particular scheme concentrates upon the first hearing at the Crown Court as the normal first reasonable opportunity to indicate a plea of guilty. It provides for the Crown to identify cases which may benefit from the scheme, and for the defendant then to have the opportunity to ask for an early and final single hearing for plea and sentence. If that is done, then ordinarily the full reduction of one third is, as we understand it, accorded.

[67]This defendant was shown the CCTV in his police interview. He elected to answer no questions. At the magistrates’ court he gave no indication of plea of guilty, but this was at that stage an indictable only charge (s 18) and under the Liverpool scheme a failure to indicate a plea at that stage would not remove the probability of a one third reduction providing that an indication of plea and a request for single prompt listing were given on arrival in the Crown Court. However, this defendant declined to take advantage of the scheme and only pleaded guilty at the PCMH, after, no doubt, a trial-ready file or one nearly so, had had to be prepared. Judge Roberts, who is well used to the practice in Liverpool, adjusted the sentence by one quarter from a starting point of 27 months.

[68]Mr Wood, who also is well familiar with the scheme, invites us to say that this plea was indicated at the first reasonable opportunity. He reminds us that in the magistrates’ court a plea to section 20 was not available since the only charge was s 18. We agree, although the defendant could certainly have indicated that a trial was unlikely if the charge were adjusted, but in any event, it is the deliberate decision not to take part in the Crown Court EGP scheme which is significant in this case. Mr Wood suggests that this was reasonable, since the CCTV had not at that point been disclosed as part of the Crown case. But the defendant had seen it. If he wanted Mr Wood to watch it and advise him, that was his right, but it can no longer be said that he was indicating his plea of guilty at the first reasonable opportunity. Nor are we persuaded by the contention that a plea of guilty to section 20 was not acceptable to the Crown until about the time of the PCMH; no-one had asked the Crown until about two and a half weeks before the PCMH whether it would be accepted if tendered. The first opportunity to indicate plea had been a month or so earlier when the Crown had invited participation in the EGP scheme and the defence had declined. The adjustment in sentence in this case was perfectly proper; indeed it seems to us to have been exactly what the case called for.

[69]There is, and can be, no challenge to the starting point of 27 months after trial. The judge distinguished the co-defendant to the extent of starting in his case at 24 months on grounds of the difference in criminal histories. He paid proper attention to the mitigation, which suggested that both regretted what had occurred. There is nothing arguably wrong with the sentence. The application for leave must be refused.

Sanham

[70]Sanham was a mortgage broker of sixty. He pleaded guilty to two offences, one of conspiracy to defraud and one of statutory fraud. Nothing turns on the division of his offending into these two counts; it is the overall picture which matters.

[71]Using his mortgage brokerage business, and over a period of about six and a half years between 2003 and 2009, he prepared and submitted to lending institutions false mortgage applications making bogus claims to remunerative employment for the applicants. Those were supported by false documents which Sanham sourced from others for a fee. They included false P60 certificates, false wage slips, false accountants’ certificates and forged employer’s references. He had at least three different sources of such false documents. He provided the documents to applicants for mortgages, and they enabled them to obtain loans which otherwise they would or might not have been granted. Some 43 dishonest transactions were represented by the two counts. The total amount lent by the lending institutions pursuant to the fraudulent applications was £8,045,849. A significant majority of the mortgages have been fully serviced. Of the 43 transactions, only two have so far resulted in losses to lenders, amounting to £108,928.18. Five other mortgages are in arrears. Given the long term nature of the transactions, there must be a risk that the eventual losses may be greater. All the funds advanced went directly to the mortgagees or their legal advisors. Sanham’s gain was a fee in each case from one or more of three sources, commission from the lender, referral fees from the conveyancing solicitors and insurance commission. Over the period of his offending he profited by a little more than £60,000. The dishonest mortgages constituted about 60% of his total business.

[72]The Defendant had not had a criminal conviction for a period of over 20 years prior to the commencement of these frauds. But between 1975 and 1981 he was convicted on 3 separate occasions of offences of theft and false accounting resulting in sentences of 6 months (suspended) and then of 3 months’ immediate custody. The judge found mitigation in the manner in which he cared for his partner who was in fragile health, but she was also his active partner in the fraud and was convicted after trial of being so. The defendant had inevitably lost his business and his home was likely to be repossessed. He had got another job but would not be able to keep it because of the inevitable sentence. The judge expressed himself as confident that the defendant would not offend again.

[73]The Defendant had been arrested in December 2009 and his office searched. A very large volume of mortgage applications and associated forged documentation was recovered. There were forms sent by Sanham to a supplier of false documents in which he set out the false details that were to be included. There were also forged utility bills and other documents which Sanham had altered. Many of the recovered mortgage applications which had false details and were supported by forged documents were made out in his own handwriting.

[74]He was initially charged with a number of individual offences, and on 2 September 2010 was sent by the magistrates for trial at the Crown Court. In the meantime very detailed plea negotiations had been commenced pursuant to the Attorney General’s Guidelines and eventually resulted in a comprehensive written plea agreement which set out his formal admission of guilt to specific transactions. That was the outcome of a series of meetings.

[75]The first took place on 12 October 2010, between counsel and litigators on each side. The prosecution provided, for discussion, a schedule showing 20 mortgages then identified as having been fraudulent, to a value of about £4 million. The prosecution said they had identified further files, described as the “top 40” which appeared to involve fraudulent transactions, amounting to £8 -10 million in respect of which not all of the evidence had been obtained. It suggested that the extent of the fraud was likely to be over £20 million although the Serious Organised Crime Agency had not yet fully investigated all the files. The meeting concluded with the prosecution agreeing to prepare a schedule for the “top 40” transactions (£8-10 million total) and a further schedule of the transactions making up the anticipated £20 million plus total.

[76]At further meetings involving leading and junior counsel for the Crown and the Defendant’s solicitors and counsel on 8 December 2010, matters discussed included whether Sanham knew or believed he was in effect helping his clients launder the proceeds of crime, whether brokering fraudulent mortgages constituted Sanham’s core business, the extent of defaulting mortgages, repossessions and losses to lenders, particular amounts involved in particular transactions, and the particular fraudulent methods used. There was also discussion about confiscation and the extent of Sanham’s assets which might be available to meet a confiscation order. During the negotiations the time for the preliminary hearing in the Crown Court arrived. By agreement, the court was informed of the continuing discussions and that Sanham was likely to enter a plea of guilty to suitable charges. It was invited to, and did, give time for the negotiations to be completed.

[77]The eventual written plea agreement contained Sanham’s formal admission of guilt to specified transactions. It dealt also with the basis on which the case would be put to the court, on each side. For its part, the Crown accepted that he did not corrupt others, but that they came to him by word of mouth and were willingly involved. Importantly, it also accepted that he honestly believed that the applicants would service the mortgages and would be able to do so from sources of income which, albeit not documented or declared, were not criminal in origin.

[78]The Crown and the defence between them also lodged with the Court a formal joint sentencing document. In it, they correctly identified the relevant SGC fraud guidelines and features of the offending which went, according to those guidelines, to aggravate it. By reference to the guideline category of offences involving more than £500,000 and a mid-point of £750,000, the Crown suggested that the appropriate starting point after trial might be about 6-7 years, whereas the defence contended for about 5-6. Further, the Crown and the defence jointly submitted that an appropriate overall reduction in recognition of the plea agreement and the early guilty plea might be 50%.

[79]The judge did not identify his notional starting point after trial. He did conclude that the evidence had been overwhelming once the office was searched and that for that reason he would make a reduction of 20% in respect of plea of guilty. However, he also said that he would make a further unspecified reduction for the detailed negotiations resulting in the plea agreement which had assisted the investigators and thereby saved time and effort. He took into account also the amount of the actual loss (£108,000) and that the defendant had hoped that the loans would be serviced. He allowed for the personal mitigation. He arrived at a sentence of four and a half years. It was divided between the two counts, but for the reasons which we have given it is the total which matters.

[80]We do not agree that a reduction of 50% in the notional sentence after trial would have been appropriate. It is certainly true that the defendant deserved clear recognition of his co-operation with the Crown, which will have saved the public purse significant sums in chasing down evidence of matters which he admitted. It is undoubtedly true that the trial could, if he had chosen to insist on it, have been lengthy, at further expense to the public. But the process into which he entered was not entirely one-sided. It enabled him to secure the prosecution’s agreement to a number of mitigating features at an early stage, and to avoid any risk there may have been that further investigations might have revealed a different degree of culpability or a larger number of mortgage frauds. In addition the defendant was able to reach agreement which limited any confiscation proceedings.

[81]The judge had tried the co-accused. He was in the best possible position to assess whether the evidence was overwhelming, and we do not feel able to differ from his conclusion. We do, however, draw attention to the dangers of too readily invoking the passage in the SGC guideline which deals with “overwhelming case”: see [24] and [25] above. The present case is a good example of one in which, had the defendant wished to be unco-operative, the scope for so behaving would have been considerable, however strong the evidence found at his office.

[82]The submissions made to the judge about the notional starting point revealed common ground as to a range of about 5-7 years. That is consistent with the maximum sentence for any single offence of fraud (10 years) and with the SGC fraud guideline, which suggests at page 20 a range of 5-8 years for the relevant category (confidence fraud) where the amount involved exceeds £500,000. The guideline does not fully explain its suggested approach to a case where a much larger sum (here £8m) is obtained, and the risk of loss is thus very large, but the actual loss is currently much less, and may remain significantly less. The actual loss is clearly relevant, as is the defendant’s intention, if that be the case, that actual loss be avoided: see the observation on page 6 at paragraph 20 dealing with the situation where no loss is intended. The risk of loss, however, is usually an inevitable consequence of such offences and here was potentially enormous. This risk is part of the harm done by the offence. The hopes of repayment can frequently evaporate, especially where, as here, they depend on the solvency of others, not the defendant, and where, as here, the market may move dramatically downwards. Moreover in the present case there was substantial gain to the defendant. The judge was referred to R v Petkova and Khan

[2011] EWCA Crim 109

. There, the amount obtained was much lower at £1.8m, and the actual loss (thus far) not very different at £110,000. This court there substituted a sentence which looks to have been based on a starting point after trial of about 5 years, for a defendant of hitherto good character. The present case was worse, in amount, in scale of repetition, in duration and in risk of loss. We conclude that a starting point of about six and a half years after trial may well have been taken by the judge and would have been justified. The entry into the detailed plea agreement would have justified movement down, but not necessarily by a fixed percentage. The plea of guilty could well have attracted a reduction of up to a third. The judge’s sentence of four and a half years, however it was in fact arrived at, amounts to a reduction of very close to a third from six and a half years. We conclude that it cannot be criticised as either manifestly excessive or wrong in principle.

Wain and McWilliams

[83]These two defendants come from Southampton. Both are 37 years of age. Both have large numbers of previous convictions for dishonesty. In recent years they had been convicted together of stealing fuel from good vehicles parked in haulage yards. Sometimes fuel cards were additionally stolen and used to obtain fuel. The judge aptly described them as professional thieves, and that is what they were.

[84]At about 9.30 pm they were found near Grantham in Lincolnshire in a van in which they had two large fuel containers, one some 250 gallons in capacity. They were only too plainly in the course of a venture far from home to commit their trademark offence of fuel theft. The big container would take over £2000 worth of diesel. McWiliams was driving. He had neither a licence nor insurance and he gave a false name to the policeman who stopped them. Wain was his passenger and was clearly an equal partner in the commercial venture. Both were on licence from previous sentences at the time.

[85]They were charged with going equipped for theft. The Recorder of Lincoln regarded them, correctly, as devoid of personal mitigation. Neither had ever done an honest day’s work and their thievery might put honest small-scale self-employed lorry owners out of business. He passed sentences of three years on each man, observing that it was time “to put a proper shot across your bows”.

[86]The difficulty about that sentence does not lie in the sentiments which provoked it. Rather it lies in the facts that(a) three years is the statutory maximum for going equipped and

(b) both defendants indicated pleas of guilty on their first appearance in the magistrates’ court and pleaded guilty as soon as they could. The short and unanswerable point is that they were treated as if they had fought the case when they had not. They could equally have been charged with conspiracy to steal – but they were not. We are not impressed with the argument that this going equipped ought to have attracted a lower sentence because the object was theft from vehicles rather than, for example, burglary. That may well make a difference in some cases, but the calculated repetition of these defendants made the maximum sentence (after trial) justifiable. It is true that McWilliams had to answer for the additional offences of driving whilst disqualified and thus without insurance, as well as for giving a false name to the policeman, which produced a separate charge of obstructing the officer. But the reality is that both were jointly responsible and there was no reason to distinguish between them. Whilst the maximum was justifiable if there had been a trial, it was not in the event of very early pleas. If they had chosen to contest the case they would have cost innocent taxpayers even more money. We understand the frustration of the Recorder of Lincoln, but dissatisfaction with the court’s sentencing powers does not justify rejection of the universal practice as to pleas of guilty.

[87]We quash the sentences of three years and substitute ones of two years imprisonment in each case. No alteration is necessary to the sentences for the ancillary offences in the case of McWilliams.

Cited in 13 later judgments

and 4 more of the most senior